African Continental Bank Limited V. Chief Benson Elosiuba (1994)

LawGlobal-Hub Lead Judgment Report

ATINUKE IGE, J.C.A.

The Respondent who was the Plaintiff in the court below claimed against 1st Defendant (now Appellant in this case) and 3 others in Suit No. S/28/84 thus

1. A declaration that the judgment obtained by the 1st and 2nd Defendants in Suit No. S/63/81 in respect of the sand dump was obtained fraudulently and is null, void and of no effect whatsoever.

2. An order setting aside the said judgment obtained in the said Suit No. S/63/81 on 15/6/84.

3. An injunction restraining the Defendants by themselves, their servants and privies from touching or trespassing on the said sand dump or in anyway interfering with the same.

Pleadings were ordered and filed. The Plaintiff filed his Statement of Claim and 1st and 2nd Defendants filed their Statement of Defence. 3rd and 4th Defendants did not file any defence but were represented in Court.
The trial was before Unurhoro J. of Sapele High Court and after taking evidence on both sides and listening to the address of both counsel for Plaintiff and Counsel for Defendants, the learned trial Judge gave judgment in favour of the Plaintiff/Respondent on 29/1/87.

In the course of the trial the 2nd Defendant sought to tender in evidence a judgment in a criminal appeal Suit No. S/8CA/81 – Commissioner of Police v. Josiah Efemini & 3 Ors. Counsel for Plaintiff/Respondent objected and in a Ruling delivered on 28/2/86, the learned trial Judge upheld the objection and rejected the judgment marked Identification ‘Y’.

It is against this Ruling and the judgment that the 1st Defendant/Appellant has appealed to this Court.

The Appellant filed 4 grounds of appeal originally but later filed by leave of this Court 3 additional grounds of appeal.

I shall set out the 7 grounds of appeal without their particulars. These are the grounds:-

Ground 1. The learned trial Judge erred in law and on the facts in holding that the fraud alleged in paragraph 9 (a) – (h) of the statement of claim were proved to his satisfaction and beyond reasonable doubt, having held that “in this instant case the fraud alleged are of a serious nature and standard of proof should be that beyond reasonable doubt”

Ground 2. The learned trial Judge failed to consider and make specific findings on the vital issue of ownership of the sand in question raised copiously by the 1st and 2nd Defendants in their defence and thereby came to a wrong decision.

Ground 3. The learned trial Judge failed to accord the proper probative value to Exhibits D1 and to the evidence of defence witness, John Erubami, in the proceedings which establish beyond doubt the 1st and 2nd Defendants case and thereby came to wrong decision

Ground 4. The decision is against the weight of evidence.