Alhaji Abubakar Daniya Waziri & Ors V. Alhaji a. B. Abubakar (2004)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

The appellants as plaintiffs before the Minna High Court No.6 Coram Mayaki, J. with leave of the court sued the respondent as defendant in a representative capacity for themselves and on behalf of 30 other children of late Alhaji A.B. Waziri claiming the following reliefs:

1. An order on the defendant to give a satisfactory account of the assets of the late Alhaji A.B. Waziri who died on the 3rd of May, 1995.
2. An order that the defendant should disengage from administration of the estate of the said deceased.
3. An order that the defendant should surrender all assets of the said deceased in his possession to the plaintiffs.

The late Alhaji A.B. Waziri held substantive shares in Arewa Construction Ltd. and was its chairman prior to his demise. He also had other assets. On his death, on the advice of the late Etsu Nupe and other elders, the appellants as children of late A.B. Waziri donated a power of attorney to the respondent to take charge and manage all the assets of the deceased father on their behalf. The respondent was thereafter made the Chairman of Arewa Construction Ltd. The respondent failed to render account to the appellants despite several demands.

They accordingly initiated the action before the lower court claiming the above reliefs.

The defendant filed a motion to join Arewa Construction Ltd. as a party which application was heard and refused by the lower court. He then filed a notice of preliminary objection on the ground that the power of attorney was donated to Arewa Construction Company Ltd. rather than to him, asking that the suit be struck out for failure to sue the proper party. The objection was similarly heard and dismissed and the matter proceeded to trial.

The plaintiffs filed their pleadings and only one witness testified on their behalf. The defendant did not file pleading or adduced evidence in support of his case. The learned trial Court in a considered judgment delivered on the 16th October, 2002, dismissed the claim of the appellants in that they did not adduce sufficient evidence in support.

The appellants dissatisfied with the said judgment have now appealed to this court on a notice of appeal filed on the 23rd October, 2002, containing the following grounds.

Ground of Appeal:

1. The judgment is against the weight of evidence.
2. The learned trial Judge misdirected himself on the facts when he held that plaintiffs did not lead evidence on their averments that they authorised the defendant to deal with their late father’s property.

As is the practice in this court the parties filed and exchanged their respective briefs of argument.

In their briefs the appellants identified this issue for the determination of the appeal:

“Whether the trial court was right when it held that there was no evidence to sustain the plaintiff’s claim.”

The respondent in his brief adopted and argued the sole issue formulated by the appellants.

It was argued for the appellants that the respondent having been served with a statement of claim and having refused to file a statement of defence is deemed to have admitted to the facts as averred in the statement of claim:

1. that he was, at the instance of the Etsu Nupe, appointed to take charge and oversee the affairs of the deceased on behalf of the appellants;
2. that he succeeded the deceased as the Board Chairman of Arewa Construction Ltd. and;
3. that despite several demands he has refused to render accounts to the appellants.

Submitting further that where a defendant refused to file a statement of defence after having been served with the plaintiffs statement of claim, he will be deemed to have admitted the statement of claim without hearing evidence and relied on Nwadikev. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Oke v. Aiyedun (1986) 2 NWLR (Pt.23) 458, 565; Nzeribe v. Dave Eng. Co. Ltd. (1994) 8 NWLR (Pt.361) 124; Mobil Producing (Nig.) Unltd. v.Monokpo (2001) 18 NWLR (Pt.744) 212, (No.2) (2001) FMLR (Pt.78) 1210. He also submitted that a court will act on the unchallenged evidence adduced by the plaintiff where the defendant had the opportunity to challenge same but did not as there is nothing to put on the other side of the scale citing Nzeribe v.Dave Eng. (supra) at 137; Oguma v.IBWA (1988) 1 NWLR B (Pt.73) 658; Balogun v. UBA Ltd. (1992) 6 NWLR (Pt.247) 336 as authorities.