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.

ADDITIONAL GROUNDS OF APPEAL

5. The trial Court misdirected itself when it held in its judgment as follows… It is my view that the main questions which call for determination are:-

“(1) Was the judgment/order of Court made in Suit No. S/63/81, as far as it affects the “SAND”, obtained by FRAUD.

(2) If the answer to 1 above is in the negative, then Judgment shall be entered in favour of the Defendants. But if the answer is in the AFFIRMATIVE, I shall then proceed to determine whether or not the Plaintiff has sufficient evidence to entitle him to judgment as claimed.”

6. The trial court erred in law when, the question of ownership having been pleaded and evidence adduced, it failed to, evaluate the evidence on this issue and failed to make a finding thereon.”

7. The Trial Court erred when it found that the first Defendant Bank, a bank of long standing, to be involved in this shameless fraud on the court, after properly directing itself that such fraud was to be proved beyond reasonable doubt by the Plaintiff/Respondent.

The Appellant filed a Brief of argument and a Reply Brief, Out of the 7 grounds, of appeal the Appellant formulated 4 Issues for determination thus:-

1. Whether the trial Court ought to have rejected the admissibility of Exhibit ‘IDY’ in evidence.

2. Whether the trial Court ought not to have established at the outset whether or not the sand could properly have been sold at the auction sale as the property of BIFCO LTD.

3. Whether on the state of the pleadings and the evidence, the respondent had proved the Appellants’ fraud beyond reasonable doubt.

4. Whether the learned trial Judge was right in law when he proceeded to grant the injunction sought without making specific findings of fact on the issue of ownership.

Having regard to the grounds of appeal the Respondent submitted 3 Issues for determination as follows:-

(a) was the learned, trial Judge wrong to reject as inadmissible the High Court judgment on appeal in a criminal case – “IDY”?

(b) on the state of the pleadings and evidence led, was the trial Judge wrong in entering judgment for the plaintiff?

(c) on the pleadings in this case, was the question of ownership of the sand dump in issue or put in another way, was the validity of the auction sale of the said sand dump conducted the Sheriff pursuant to a writ of execution in issue?

It is my view that the issues submitted by the Appellant have encompassed those of the Respondent hence I shall treat the 4 issues submitted by the Appellant in this appeal.

The first issue in this appeal touches on the question of admissibility of the Document “IDY” in evidence.” This is the document involved in the Ruling delivered by the learned trial Judge on 28/2/86 wherein he rejected the document as inadmissible.
What is this document ‘IDY’ and on what grounds did the learned trial Judge reject it in evidence? “IDY” is a judgment in a criminal appeal case No. S/8CA/81 – Commissioner of Police v. Josiah Efemini & 3 Ors. delivered by Obi J. in his appellate jurisdiction.

When the Appellant in this case sought to tender the document in the Court below, Counsel for Respondent objected to its admissibility on the following grounds.

1. That the plaintiffs was none of the parties to the said criminal proceedings.

2. That the document is not one of the judgments or orders covered by section 48 – 50 of the Evidence Act and therefore irrelevant.

3. That on the authorities, judgment in a criminal case is not admissible in proof of civil matters relying on the cases of (a) Hollington versus F. Hewthorn & Coy Limited reported in (1943) 1 KB page 587 or (1943) 2 AER at page 35 (6) Oyewole versus Keloni 12 WACA at page 327 and (c) Nwanko versus Arika reported in (1975) ECSLR at page 334.”

On the other hand Appellant’s Counsel submitted that the document “IDY” is relevant and admissible in evidence relying on section 6 of Evidence Law. He further submitted that the document is a judgment which supported the fact of FORGERY pleaded in paragraph 4 of Statement of Defence. He conceded that sections 48, 49, 50 and 51 of Evidence Law did not apply to this case.
In his brief of argument the Appellant submitted that “IDY” was relevant to a fact in issue and ought to have been admitted as such. He refers to “IDY” as admissible on issue of Estoppel. He then referred the Court to paragraph 6 of his statement of defence which according to him was his answer to paragraphs 5 and 6 of Respondent’s statement of claim.
I quote both parts of the pleadings in paragraph 6 of his statement of Defence. The Appellant averred thus

6. In further answer to paragraphs 5 and 6 of the statement of claim 1st Defendant says that Suit No. S/24/78 was an action between Josiah Efemini as Plaintiff and BIFCO Limited as Defendant/Judgment debtor.
The heap of sand referred to in the said paragraphs of the statement of claim did not belong to the judgment debtor, i.e. BIFCO Ltd. and the inclusion or insertion of heap of sand in the inventory of property to be sold under execution of the judgment in Suit No. S/24/78 is void as an illegality or fraud for which its perpetrators were charged and tried for the offences of conspiracy to commit forgery forgery and uttering the forged inventory in Suit No. S/24/78.
The Judgment of the Sapele High Court which decided on appeal that the inventory in Suit No. S/24/78 was forged by insertion of heap of sand thereon will be relied on or founded upon at the trial.

Paragraphs 5 and 6 of Respondent’s Statement of Claim read thus:-

5. The said public auction sale of the said sharp sand was conducted by the Deputy Sheriff pursuant to the Writ of Execution in Suit No. S/24/78 in the execution of which the said heap of sand was attached, as the moveable property of the judgment debtor in the said Suit.
Plaintiff will rely on the writ of Execution, the Inventory, the Attachment Notices as well as the other documents in connection with the exercise by the Deputy Sheriff of his powers pursuant to the said Writ of Execution.

6. The Defendants knew of the auction sale at which the Plaintiff bought the said heap of sand and knew that the Plaintiff had bought the said heap of sand. Plaintiff will rely on:-

(a) Letter ref. No. JA/GEN/79/T dated 6th October 1979 Written by the third Defendant’s Solicitor Messrs Ojeme & Co. to the Deputy Sheriff at the High Court of Justice, Sapele and the Deputy Sheriff reply ref. No. 258/Vol.20/222 dated 6th November, 1979 addressed to the Defendant’s said solicitors.

(b) Letter ref. No. DC/ACBA/1/80 dated 25th March, 1980 addressed to the Deputy Sheriff Magistrate’s Court, Sapele by the first Defendant’s Solicitors Chief Dafe & Co. and the Deputy Sheriff’s two letters ref.
No. 258/Vol. 20/246 dated 27th March, 1980 and 258/Vol.20/248 dated 2nd April, 1980 addressed to the 1st Defendant’s said Solicitors.

In his brief of argument the Respondent is contending that the doctrine of Estoppel is inapplicable in this case as the condition for its application are not present here. He cited the case of Ezewani v. Onwordi (1986) 4 NWLR (pt. 33) p. 27 at 42-43 and referred to the 3 reasons given by the learned trial Judge for rejecting the document in evidence.

In his judgment the learned trial Judge in rejecting the document ‘IDY’ in evidence stated thus

“It seems to me that Mr. Onakughotor has no answer to Mr. Okpoko’s objection. It is clear from the Evidence Act, that judgment or order or decrees other than those set out under sections 48, 49 and 50 are irrelevant. The Plaintiff was not a party to the said criminal proceedings and it must be rejected on the ground that it was res inter alios acta. The plaintiff had no opportunity to cross-examine the witnesses in the case and he is not allowed by law to appeal against the said decision.
I do not intend to delve into other authorities but suffice it to say, that the decision of the Court of Appeal English Law in Hollington versus F. Hewthorn and Co. Ltd. case supra, is regarded the correct statement of the law.
See also Bello Adeleke versus Benyamire Adewusi (1961) ANLR at page 37. It is settled that a civil court must base its findings on the facts placed before it and not on other facts, transplanted into it, from other courts or tribunals.

In the result, I hold that the objection of Mr. Okpoko is well taken and therefore sustained and the document marked “IDY” is hereby marked “REJECTED” The substantive case is adjourned to 25/3/86 for further hearing.
(Sgd.) Mitaire Unurhoro
(Judge)
28/2/86

In considering whether a judgment is admissible or not on issue of Estoppel, it must pass the following tests.

1. The parties must be the same

2. The subject matter must be the same.

3. The issues being litigated upon must also be the same in both the previous action and subsequent action.

4. In determining whether the issues in the previous and subsequent actions are the same, it must be considered whether the evidence adduced to prove the issues in the earlier action will be the same to be used in establishing the subsequent case – see the cases of Madukolu & Ors. v. Nkemdilim (1962) 1 ANLR 587 and Godfrey Ojo Aiwerioba V. Ogieva Bello (1968) NMLR 257 at 266.

From another angle Issue Estoppel must be distinguished from Res Judicata. Although the concept of Estoppel is usually viewed as a substantive rule of Law – see the case of
Heystead V. Commissioner of Taxation (1926) A.C. 155 at 165 yet in practice it is essentially a rule of Evidence.

The Supreme Court in the case of LADEGA V. DUROSIMI (1978) 3 SC 91 has brought out the distinction very clearly where it held as follows:-

Issue Estoppel on one hand relates to debarring a party from litigating an issue which had been isolated and raised in a particular proceeding and had been finally determined in that proceeding.

2. Res Judicata on the other hand, relates to the whole cause of action in previous proceedings including all matters settled in those proceedings and those matters which ought to have been raised in such proceedings. A party to such proceedings, by virtue of the principle of Res Judicata is barred from relitigating that cause of action all over again.

3. The proper order in the case where Issue Estoppel applies is one of striking out while the proper order in the case where Res Judiciata operates is one of dismissal of suit.

4. Although normally regarded, as a substantive rule of law, estoppel is essentially a rule of evidence.
Idigbe JSC (as he then was) has also distinguished clearly the two kinds of Estoppel in the case of Fadiora v. Gbadebo (1978) 3 SC p. 219 where he opined thus

“Now, there are two kinds of Estoppel by record inter parties or per rem judicatam as it is generally known.
The first is usually referred to as Cause of action Estoppell and it occurs where the cause of action is merged in the judgment, that is Transit in rem judicatum. See King v. Hoare (1844) 13 M & W 495 at 504.
There on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter.
They are precluded from relitigating the same cause of action.

There is however; a second kind of Estoppel ‘inter partes’ and this usually occurs where an Issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issues comes up incidentally in question in any subsequent proceedings between the same parties or their privies; in these circumstances, “Issue Estoppell” arises.

In that case the Court further held inter alia

1. That Issue Estoppel arises where an Issue has earlier on been adjidicated upon by a Court and the parties to a subsequent cause of action are prevented from re-opening such settled issue all over again.

2. That Issue Estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law.

It is very clear in this appeal that the Appellant has tried to make a case for an Issue Estoppel with respect to the document ‘IDY’ and not Estoppel per rem judicatam. The learned trial Judge in rejecting the document in evidence based his reasoning on the principle of Res inter Alios acta alteri nocere non debet meaning that the transactions between strangers do not affect those who are not parties to them.

It is true that on the face of the Document ‘IDY’ the parties have no direct connection with the parties in Suit No. S/28/84 but if the learned trial. Judge had looked at the issues involved in the criminal case and the participants in it along with the parties involved in Suit No. S/28/84 he would have preferred to give some consideration to the principle of Issue-Estoppel submitted before him.
In his argument on the Issue Estoppel, Counsel for the Appellant submitted that the facts and circumstances as set out in this case show inextricable connections between the various parties in all the civil and criminal cases related to this appeal. He further submitted that the State and the complainant in S/8/CA/82 are no strangers to the Appellant i.e. in this appeal while the accused persons in S/8CA/82 especially Josiah Efemini and Respondent i.e. in this appeal cannot also be strangers.
In other words the Appellant is trying to persuade the Court to look at the parties in this appeal (or in S/28/84 as privies to the parties in the criminal appeal in ‘IDY’ which was rejected by the learned trial Judge.
The Appellant is insisting that the finding of fraud as highlighted in ‘IDY’ is conclusive against Josiah Efemini and his privy – the Respondents who bought the sand during an auction sale at Efemini’s instance. Josiah Efemini was the judgment debtor in the writ of Fifa issued in S/24/78 and the Respondent bought the said ‘heap of sand’ from the auction sale – as Item 10 in the Inventory.
On the other hand the Appellant has also sold the same heap of sand to the 2nd Defendant in Suit S/28/84 as property of BIFCO their own judgment debtor in Suit S/63/81. Two different bodies cannot be claiming the same heap of sand. There is some fraud or false claim somewhere. It is this issue of fraud that has been well highlighted in the claim of the Respondent before the lower court.
It is also this same issue of fraud that came up for decision in ‘IDY’ which was sought to be tendered as exhibit before the lower court.
It is my candid view that the document ‘IDY’ is not only relevant to the case before the lower court but has thrown a lot of light on the case of the Plaintiff/Respondent and has decided the question of case of fraud which the learned trial Judge has found to have been proved beyond reasonable doubt before him. I am of the view that the doctrine of Issue Estoppel applies in this case as there are enough materials on record to show that the issue of fraud was raised between the parties in ‘IDY’ and their privies in S/28/74 and in a well considered judgment of the Chief Magistrate Court Sapele and in the criminal appeal before Obi J. of Sapele High Court. The learned trial Judge was wrong in rejecting ‘IDY’ as an exhibit.

It is a document which is not only relevant to the case of the parties who have close connections as privies in both cases i.e. S/8CA/82 and S/28/74 but has also decided the issue of FRAUD upon which the Respondent had attacked the Appellant’s claim in Suit S/63/81 and the Appellant the Respondent’s claim in the court below.

If the learned trial Judge had allowed the Issue Estoppel to apply in considering the issue of admissibility of ‘IDY’ he would not have come to the decision he made in respect of his orders in the judgment delivered on 29/1/87 whereby he set aside the Judgment in S/63/81.
The learned trial Judge was wrong to have rejected Document ‘IDY’ as exhibit in the action in the court below. It should be admitted and marked Exhibit ‘D’. Upon a correct perusal of Exhibit ‘D’ the learned trial Judge would see exactly who committed fraud in the circumstances of the 2 auction sales whereby the same heap of sand was sold to two different parties on different occasions.
Section 6 of the Evidence Act also supports the case of the Appellant. I quote
”Evidence may be give in any suit of proceeding of the existence or non-existence of every fact in issues and of such other facts as are hereinafter declared to be relevant, and, of no others.”

If anything was tainted with fraud it was the wit of execution in Suit No. S/24/78 under which the Respondent purported to have bought Item 10 “the included sand heap”.
The suspects of the forged Inventory were prosecuted but none of them was ever convicted by either the trial Chief Magistrate or the Appellate High Court.
The next Issue posed by the Appellant was whether the trial court ought not to have established at the outset whether or not the sand could properly have been sold at the auction sale as the property of BIFCO Ltd.

In view of the Exhibit ‘D’ formerly rejected by the learned trial Judge but now in focus in the case, the learned trial Judge ought to have decided at the onset whether or not the sand was properly sold at the auction as property of BIFCO Ltd. because then the validity of the auction becomes an issue. If by considering the new exhibit along with other matters in the case the Court was satisfied that the Company BIFCO Ltd. was the owner of the sand, then he would say so and proceed to give judgment that the later auction by the Appellant was null and void and the decision in S/63/81, could not have been valid with respect to sale of the sand heap.
But then he would have to go further to say that Fraud was established against the Appellant beyond reasonable doubt before Respondent could be entitled to judgment.
In his judgment the learned trial Judge held as follows:-

“The 4th, Defendant was the brain behind this Fraud Syndicate. He deliberately concealed and surpressed material facts before the Court in Suit No. S/63/81 as he had prior knowledge of the earlier sale of the said sand to plaintiff and I so hold. I also find as a fact he in collusion with the 1st Defendant brought the action in the said Suit No. S/63/81 wherein he and his Company the 3rd Defendant styled themselves as Defendants in order to secure a legal and valid document by way of Court Order, to give a legal cloak to this deal.”

I have looked at the entire records in this appeal there is nothing to suggest the existence of a Fraud syndicate with 4th Defendant as the leading brain or any deal with 1st Defendant/Appellant and the 4th Defendant.
In Suit S/63/81 the Plaintiffs are ACB/the Appellant and Chief J.T. Adjarho when the Defendants are two in no Godau Agro Allied Industries Ltd. and Godwin S.K. Ukay. The 1st Appellant has sued the 4th Defendant as second Defendant in Suit S/63/81, where is the evidence of collusion?
Collusion according to the Oxford Illustrated Dictionary – 2nd Edition revised by Dorothy Eagle means

“Fraudulent secret understanding, especially between ostensible opponents as in a law suit.”

The Appellant and 4th Defendant are in fact ostensible opponents because one is a Creditor and the other is a Debtor but where is the evidence of secret and fraudulent understanding between them? I fail to see such. If there was a secret and fraudulent understanding between them, they will both be Appellants in this case – to see that judgment in S/63/81 is not overturned. It is the duty of a trial court to confine itself to the issues before it in a case and not go to formulate new irrelevant issues or go on a vegage of speculations. See the cases of (1) Carten Nig. Ltd. V. Unyos & Anor. (1994) 1 NACR 12554 and (2) Onibudo v. Akibu (1982) 2 FNLR p. 224.

It is my view that the learned trial Judge has wrongly held that upon the facts tendered before him that the fraud alleged in paragraphs 9 a – h of the Respondent’s Statement of Claim have been proved beyond reasonable doubt.
The learned trial Judge cannot rightly say this upon a rightful appraisal of the whole evidence before him.
The allegation of Fraud is a very serious criminal offence and the learned trial Judge having warned himself of the situation in such a case of the standard of proof required, should not have based his decision inter alia on the omissions made by 1st Defendant in failure to tender its Deed of Mortgage or Public Auction Notice.
It is trite law that in a criminal case it is the duty of the prosecution to prove its case against an accused person and not for an accused to prove his innocence.
See the cases of Obiode v. The State (1970) 1 ANLR p.35; Kim v. The State (1992) 4 NWLR (pt. 233) 17 SC and Chukwu v. The State (1992) 7 NWLR (pt. 253) 325 CA and where an allegation of a crime is made in a civil case, the standard of proof is not lowered – the allegation must be proved beyond reasonable doubt.

If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt-see section 137 (1) Evidence Act. Also a Judgment obtained by fraud can be impeachable by means of an action instituted in a Court of first instance subject to the satisfaction of the following conditions

a. The fraud alleged must be exactly particularised

b. The allegation must be established by strict proof

c. A strong case must be shown

d. The fraud must relate to matters which prima facie would be reason for setting aside the judgment if established and not to matters which are merely collateral

e. The fraud must have been discovered since the judgment complained of. See the case of-
Olufunmise v. Falana (1990) 3 NWLR (pt. 136) 1 followed in Iweka II v. Anatogu (1991) 4 NWLR (pt. 185) 305

The Respondent I hold has failed to discharge this onus of proof of Fraud against the Appellant in this case hence the judgment in S/63/81 cannot be set aside as null and void on ground of Fraud in so far as the heap of sand was concerned.
Assuming that the Appellants knew of the earlier sale of the sand to the Plaintiff, they were right to send a letter to the Deputy Sherriff Magistrates Court Sapele through their Solicitors as notice of their claim to the attached property – This is in compliance with Order 6 rule 2 of Judgment Enforcement Rules.
Issue 3 has been resolved earlier above in favour of the Appellant.

With regard to Issue 4 on the question of injunction especially where ownership of the sand has also been claimed by the Appellant by virtue of the Deed of Mortgage Over the land of the judgment debtor where the sand was found. The doctrine of Quic quid Plantatur Solo Solo Cedit can be evoked in favour of the Appellant as against the Respondent who has bought from a questionable and controvertible source. The learned trial Judge said sand dug in 1979 cannot be the subject of the Deed of -Mortgage executed in 1977. Agreed it was the land that was mortgaged what stops the land from appreciating in 1979 with a heap of sand on it owned by the Judgment Debtor’s Company. Moreover the Appellant is no longer in control of the sand hence an injunction in this case is an effort in futility – and should not have been granted.
Another point which is material to this appeal is whether the trial court as a court of coordinate jurisdiction with the trial court in S/63/81 had the right to set aside the judgment of his brother Judge.
The general position of the law is that a court of coordinate jurisdiction has not the jurisdiction to set aside the judgment of another court of similar jurisdiction.
That is the function of an Appellate Court.
But the Supreme Court in the following cases have decided that where an order of a Court is a nullity, ab initio, such an order could be set aside by another Court of similar jurisdiction without much ado. See the cases of
1. Sken consult Nig. Ltd. v. Ukey (1981) 1 SC 6
2. Okoye v. NC & F Co. Ltd. (1991) NWLR (pt. 199) 501
The learned trial Judge in this case would have been right to set aside the judgment of his brother Judge if the case of fraud had been proved beyond all reasonable doubt before him. This has not been the case hence he has wrongly set aside the Judgment.

On a final analysis this appeal succeeds and the judgment of the court below delivered on 29/1/87 in suit No S/28/84 is hereby set aside. In its place the claims of the Respondent in Suit No. S/28/84 are hereby dismissed.” The Appellant is entitled to costs in the court below and in this court which I assess at N500 each making a total sum of N1,000.00.

Other Citations: (1994)LCN/0198(CA)