Bello Salami & Anor. V. Alhaji Adetoro Lawal (2008)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

The appellants were the plaintiffs at the Oshogbo High Court of Osun State where they claimed against the respondent as the defendant the following reliefs:

“(i) A declaration that the Plaintiffs are the persons entitled to a statutory Right of Occupancy to the piece or parcel of land consisting of an area approximately 9.865 hectares, verged Blue and shown on plan No. OMS/OSfMISC/08/91 drawn by E.O, Omisola & Associates, Licensed Surveyor and bounded as follows:

(a) On the front side or Northern side by Osogbo to Iwo Road

(b) On the Eastern side by Adegoke Family landed property

(c) On the Southern side by Onifade Family land and

(d) On the Western side by Yemoja Stream

(ii) Five thousand naira (N5,000.00)General damages for trespass committed by the defendant on plaintiff family land at Yemoja area, Oyatedo.

(iii) Perpetual injunction restraining the defendant, his servants, agents or privies from committing any further acts-of trespass on the said piece or parcel of land. The rateable value of the said land is (N100)(one hundred Naira)”

Parties filed and exchanged pleadings after which the case was heard by Ademakinwa J. The appellants called five witnesses including the 2nd appellant. Similarly, five witnesses including the defendant testified in support of the defence case. In a well-written judgment delivered on 17-03-74,the trial judge concluded as follows:

“The conclusion I have therefore reached in this case is that by entering the land in dispute to erect a signboard thereon, the defendant has committed an act of trespass against the Plaintiffs’ exclusive possession of the said land.

The plaintiffs have however claimed N5,000.00 as general damages for the trespass committed by the defendant. It is well known that in the absence of any special damages arising from the trespass committed only nominal damages could be awarded in the form of general damages. I would therefore allow N5,000.00 as general damages. Since the plaintiffs are entitled as customary tenants to remain in possession, I think there is a need to protect their possession of the land in dispute until their customary tenancy is properly determined. I would therefore grant the order of injunction sought.

In the result, the plaintiffs’ claims succeed in part and they are hereby granted N5,000.00 as general damages for the trespass committed by the defendant on the land in dispute and an order of injunction restraining the defendant, his servants, or agents from further acts of trespass on the land in dispute while the customary tenancy of the plaintiffs subsists.”

The respondent was dissatisfied with the judgment of the trial court. He brought an appeal against it before the Court of Appeal, Ibadan (hereinafter referred to as ‘the Court below’). Before the court below, the three issues submitted by both parties to the court for determination are:

“(I) Whether the trial (sic) judge was not wrong in holding that the plaintiffs action for declaration of title to statutory right of occupancy is in respect of the parcel of land in dispute;

(2) Whether the learned trial Judge had not committed an error of law in holding that the previous decision by the Supreme Court in respect of the same parcel of land between the same parties did not constitute estoppel.

3) Whether the learned trial judge was not wrong in holding that the plaintiffs had locus standi to institute the suit against the defendant.”

The Court below in its judgment on 14-06-01 held:

“As respondents failed to establish lawful and cogent evidence of possession, the finding of fact of possession was perverse and hereby set aside. As damages for trespass is rooted in possession which respondents failed to establish, the Order for damages for trespass for the sum of N5,000.00 as general damages is hereby set aside, so also the order of injunction which is granted at the discretion of the Court acting judicially and judiciously.”

The Court below in effect allowed the respondent’s appeal and set aside the judgment in favour of the appellants. The appellants were dissatisfied with the judgment of the court below. They have come before this court on a final appeal against the said judgment. In their appellants’ brief, the solitary issue for determination in this appeal was identified to be:

“Whether the Court of Appeal was right to have set aside the finding of the trial Court on possession and the status of the plaintiffs which entitled them to be in possession and to maintain an action for trespass against the defendant.”

The respondent in his brief formulated the issue for determination in the appeal differently thus:

“Whether the learned Justices of the Court of Appeal were not right in upholding the respondent (sic) appeal before it when the appellants evidence of possession on which the claims for damages and injunction were granted by the trial Court were found not to be rooted in the traditional history of title as pleaded.”

In the consideration of the single issue for determination in this appeal, I intend to consider preliminarily the pleadings upon which the case was tried.

The appellants pleaded in their further amended statement of claim that the land in dispute was granted to their ancestor BAMIGBOLA by OBA ADEGBOYE ATOLOYE, the Olofa of Ofatedo over two hundred years ago. It was pleaded that the descendants of BAMIGBOLA including the appellants had from their generation to generation exercised acts of possession and ownership over the said land. In paragraphs 21-23 of the Further Amended Statement of claim, the appellants pleaded thus:

“(21) The plaintiffs and members of their family are still farming on the land in dispute, planting cocoa, kola nuts, oranges and other crops like yams, cassava, sweet potatoes without any hindrance or disturbance from anyone until 1982.

(22) The plaintiffs are the descendants of their ancestors called BAMIGBOLA and they derived their respective inheritance titles under Native Law and Custom.

(23) Sometime in 1982, the defendant visited the land in dispute and started erection of sign posts on the land. the 2nd plaintiff uprooted the sign posts and 2nd Plaintiff together with others were charged to the Senior Magistrate’s Court, Ede. In charge Number MED/6C/83, the 2nd plaintiff pleaded not guilty and after the trial he was fined a sum of N1 00.00 which fine was paid by the 2nd plaintiff.”

The Respondent in paragraphs 6, 9, 10, a and b, 22 and 24 of his further amended statement of defence, pleaded thus: “(6) With further reference to paragraph 7 of the amended statement of claim, the defendant states that the Olofa of Ofatedo is a tenant of the Timi of Ede and has got no right to grant land without the knowledge and consent of the Timi of Ede.

(9) With further reference to paragraphs 9, 10, and 11 of the Amended Statement of claim the Defendant avers that the land in dispute forms part of a larger area of land acquired by conquest by Timi Ajeniju about 200 years ago.

10(a) That since the conquest referred to above, the Timi of Ede (Timi Ajeniju) and all other succeeding Timis became owners of all parcel of land in Ede and District or what is now known as Ede and Egbedore Local Government Areas.,

10(b) Timi Ajeniju settled many people as customary tenants on parts of the conquered Areas such as Awo, Iwoye, Ara, Oloki, Iddo-Osun, Ofatedo, Okinni, etc.

(22) With reference to paragraph 28 of the statement of claim, the defendant avers that he had been the owner long before 1982 and that the plaintiffs are duly aware of the defendant’s ownership of the land in dispute.

(24) With reference to paragraph 30 of the statement of claim the defendant states that he had been in possession since he bought the land in dispute from Oba John Laoye in 1975 or thereabout”.

It is apparent from the extracts of the parties’ pleadings above that the appellants traced their title to their ancestor BAMIGBOLA who was said to have been granted the land in dispute by Oba Adegboye Atoloye, the Olofa of Ofatedo who himself received the grant of the land from the then Olubadan of Ibadan. The appellants claimed to be in possession of the land in dispute and that the

respondent came to disturb their possession when in 1982 he came on the land and erected sign posts thereon. The respondent on the other hand, claimed that he had been in possession of the land since 1975 when he purchased it from Oba John Laoye, the Timi of Ede whose ancestor Oba Timi Ajeniju acquired the land by conquest 200 years ago. It was pleaded that the Olofa of Ofatedo whose title the appellants relied upon was in fact a tenant to the Timi of Ede.

On this state of pleadings, the trial court needed to determine the party whose traditional history was superior to the other, and the tangential question as to who of the parties was in possession of the land. It must be stated here that the respondent did not file a counterclaim.

He merely came to defend the appellants’ suit. The trial judge in his judgment came to the conclusion that the appellants did not call satisfactory evidence in support of the traditional history they pleaded. He dismissed the 1st leg of their claims which was for a declaration of title. As to the person who was in possession of the land in dispute, the trial judge at pages 61 – 62 of the record found as follows:

“The Clear evidence before the Court which I accept (and this much was admitted in the document Exhibit ‘H’ and recognized in the judgments (Exhibits ‘E’ and ‘F’) is that the Ofatedo people (including the plaintiffs) have all along been in exclusive possession of a much larger area of land (of which the land in dispute forms part) as customary tenants of the Timi of Ede. Indeed, this was the case made out for the defendant in his pleadings. That being the case, the plaintiffs family were lawfully in exclusive possession of the land in dispute as customary tenants, although the title to the reversion remained vested in the Timi of Ede as their customary landlord. It is trite law that customary tenants are, subject to good behaviour, entitled to enjoy their use and possession of the land in perpetuity until forfeited by order of Court.see Owoade v. Omitola (1985) N.W.L.R. 1 at page 9 Nwawuba and Othoera v. Eremuo and others (1988) 5 S.C.N.J. 154 at page 168 and Abioye v. Yakubu (1991) 5 N.W.L.R. (part 190) 130 at pages 201 – 202. It is pertinent to emphasise that even where a customary tenant is alleged to have committed an act amounting to misbehaviour it does not necessarily follow that his tenancy would automatically be forfeited. There is the need for the customary landlord to institute appropriate proceedings in Court for that purpose. see Aromolaran v. Waddel (1958) S.C.N.L.R. 267; Abioye v. Yakubu (1991) 5 N.W.L.R. (Part 190) 130 at pages 245 – 246.

There is no evidence that before the Timi of Ede (3rd D.W.) executed the deed of conveyance transferring the title to the land in dispute to the defendant the customary tenancy of the plaintiffs thereon had been properly terminated by order of Court. It follows therefore that all that the defendant had been able to obtain from the Timi of Ede by virtue of the deed of conveyance Exhibit ‘D’ was the reversionary title to the land in dispute, while the possessory title still remains vested in the Plaintiffs as customary tenants. It is therefore clear that as at the time the defendant entered the land for the purpose erecting signboard thereon, the plaintiffs were in exclusive possession thereof.

The principle has always been stated that a trespasser in possession of land can maintain an action in trespass against all persons except the true owner or someone claiming through the true owner see: Aromire v. Awoyemi (1972) 1 All N.L.R. 101 at 112; Fabunmi v. Agbe (1985) 1 N.W.L.R. 299; Mogaji V. Cabdury (1986) 2 N.W.L.R. (Part 7) 393 at page 432. The exception created with regard to the inability to maintain an action in trespass against the true owner or someone claiming through the true owner is, of course predicated on the finding that the person seeking to maintain the action is himself a trespasser. It has, nevertheless been long recognized that a tenant lawfully in possession, could in certain instances maintain an action in trespass against his landlord. As stated by the Learned author of Halsbury’s Laws of England, it is trespass for a landlord to levy an illegal distress or having rightfully entered on the land for the purpose of distress to remain there when the distress was become wrongful. see: Halsbury’s, Laws of England (3rd Edition) Vol. 38 page 741 paragraph 1206. Mortiori, a person claiming through a customary landlord, who unlawfully purported to have terminated or forfeited the interests of the customary tenant in the land and proceeded to enforce the illegal forfeiture or termination by seeking to take possession of the land and erecting signboards thereon, has committed an act of trespass.

The conclusion I have therefore reached in this case is that by entering the land in dispute to erect a signboard thereon, the defendant has committed an act of trespass against the plaintiffs’ exclusive possession of the said land.”

In the extract from the passage of the trial court’s judgment reproduced above, the trial judge stated that the appellants were in possession of the land in dispute when the respondent entered thereon; and further, that there was evidence which he accepted that the appellants’ family had been on the land as customary tenants of the Timi of Ede and further that such customary tenancy was not determined before the land was sold to the respondent.

The Court below in its judgment on 14-06-01 overturned the judgment of the trial court on the ground that the appellants had not in the case they made before the trial court admitted that they were customary tenants of the Timi of Ede. The court below in its judgment said:

“Applying Woluchem v. Gudi (1981) 5 SC 291 the finding of possession in favour of respondents who never agreed to being customary tenants of TIMI OF EDE was perverse and as an appellate court ,I set aside and disturb the finding of possession in favour of respondents and state that applying Section 135, 136 and 137 of the EVIDENCE ACT Cap 112, Laws of the Federation of Nigeria 1990 that plaintiffs/respondents failed to establish exclusive possession as the court below found that contrary to their case to be customary tenants with reversionary interest vested in TIMI OF EDE. As Respondents failed to establish lawful and cogent evidence of possession the finding of fact of possession was perverse and hereby set aside. As damages for trespass is rooted in possession which Respondents failed to establish the order for damages for trespass for the sum of N500.00 as general damages is hereby set aside, so also the order of injunction which is granted at the discretion of the court acting judicially and judiciously.

The attitude of appellate court is well settled as the rule in University of Lagos v. M.I. Aigoro.(1985) 1 NWLR pt.1 page 143 SC. As the grant of injunction to respondents was based on wrong principle of law in exercise of judicial discretion, an appeal court can set aside the grant based on wrong principle of law. The order of injunction granted by the lower court is set aside and the prayer refused.”

Was the Court below right in its approach to the matter I think not. There is no doubt that on the pleadings, the appellants had pleaded that their ancestor BAMIGBOLA had been granted the land in dispute by the Olubadan of Ibadan and that they were in possession of the land in dispute as the descendants of Bamigbola, their ancestor. The respondent on the other hand relied on the title of the TIMI OF EDE from whom he claimed to have purchased the land in 1975. He claimed to be in possession of the land. The trial court in its judgment came to the conclusion that the land in dispute belonged to the Timi of Ede but that the appellants as well as all the people of Ofatedo had from several years back been the customary tenants of the Timi of Ede. As a result of these findings, the appellants’ claim for declaration of title was dismissed. In addition to the appellants’ claim for declaration of title however, they had sued in trespass for damages and an injunction. Now in Olum V. Eniola (1967) N.M.L.R. 339 at 340 – 341, the Supreme Court per Lewis JSC discussed the approach of the court to a situation where a plaintiff who has sued for declaration of title and trespass fails to sustain his claim for declaration of title. He said:

“The claim for trespass, however is not in our view, dependent on the declaration of title as the issues to be determined on the claim for trespass were whether the plaintiff had established his actual possession of the land and the defendant’s trespass on it, which are quite separate and independent issues to that on his claim for a declaration of title.”

In this case the trial court having dismissed the appellants’ claim for title was right to have proceeded to consider the claims for trespass and injunction. The grouse of the court below was that the appellants had not in their further amended statement of claim relied on the title of the Timi of Ede for their possession. It seems to me that the court below by dwelling so much on the failure of the appellants to rely on a customary tenancy with Timi of Ede as their over lord failed to detach the claim for declaration of title from the claim for trespass and injunction. It is the law that even a trespasser in possession can successfully maintain an action in trespass against all the world except the true owner. See Amakor v. Obiefuna (1974) 3 SC 49 at 56 (Reprint) where this court per Fatayi Williams J.S.C (as he then was) said:

“….a trespasser in possession of land, as against everyone but the true owner, can devise or convey his interest in the land or transmit it by inheritance see Asher v. Whitlock (1865) L.R 1 Q.B. page 1). In this connection, we refer, with approval, to the statement of Cockburn, C.J., at page 5 of the judgment in the Asher case, It reads -”

“But I take it as clearly established, that possession is good against all the world except the person who can show a good title; and it would be mischievous to change this established doctrine. Doe v. Dyeball Mood and M 346, one year’s possession by the plaintiff was held good against a person who came and turned him out; and there are other authorities to the same effect. Suppose the person who originally inclosed the land had been expelled by the defendant, or the defendant had obtained possession without force, by simply walking in at the open door in the-absence of the then possessor, and were to say to him, you have no more title than I have, my possession is as good as yours,’ surely ejectment could have been maintained by the original possessor against the defendant.”

“It only remains for us to add that, on the authority above an original trespasser’s against every one but the true owner, can, if he is in exclusive possession of the land, maintain an action in trespass against a later trespasser whose possession, whether taken by force or not, would be clearly adverse to that of the original trespasser. Therefore, assuming without deciding,that the plaintiff/appellant in the case in hand is also an original trespasser, it seems to us that he can maintain an action for trespass against the defendant/respondent who has disturbed his possession.”

It is to be emphasized here that the trial court found that the appellants were in possession of the land. Even if the appellants were not able to show a good title to the land, they were still entitled to remain thereon unless and until someone with a better title challenged their possession. The question that the trial court had to decide is,Did the respondents show a better title It is the answer to this question that spelt the death knell to the respondent’s case. The respondent claimed to have purchased the land in dispute from the Timi of Ede in 1975. The said Timi of Ede as found by the two courts below had the radical title to the land. But the land as found by the trial court had been granted to the Ofatedo people of which the appellants formed a part under a customary tenancy. There was no evidence before the trial court to suggest that the customary tenancy of the appellants’ Ofatedo people had been forfeited or brought to an end. It seems to me in the circumstances that the respondent had not adverted his mind to the nature of a customary” tenancy under customary law before he bought the land in 1975. This case falls on all fours with Lasisi V. Tubi (1974) 12 S.C. 62 (Reprint) at pages 64- 66, where this Court per Dan Ibekwe JSC stated the position of the law on customary tenancy as follows: ..

“We wish to begin by emphasizing the fact that, under our law, the customary tenant enjoys a most enviable position. Once in possession, he is always in possession; for, time does not run against him”.

It is settled law that the possessory right of a customary tenant goes on and on, in perpetuity, unless and until the tenancy is forfeited. Be it noted also that the courts in this country are very slow in granting forfeiture. Indeed, it will be more correct to say that, in so far as customary tenancy is concerned, our courts have always been willing and ready to grant a relief against forfeiture, except in an extreme case, where the refusal to grant it would tend to defeat the ends of justice. But such cases are few and far between. They are, therefore, very difficult to come by in our law reports.

The theory behind the concept of our customary tenancy is that where strangers or immigrants have been granted land for occupation and user, they are entitled to continue in peaceable enjoyment until they forfeit their rights on such grounds as, e.g. alienating a portion of the land to others without the prior consent of the grantors, or by putting the land to uses other than those originally agreed upon, or by failure to pay the customary tribute, or by denying the title of the overlord. The list is not exhaustive, though it is important to observe that it is also well-established that customary tenants should not suffer forfeiture for minor acts of misbehaviour, and that the courts are loath to order forfeiture except in the most exceptional circumstances. See Ashagbon v. Oduntan 12 NLR 7, and Ogbakumanwu & Ors. v. Chiabolo 19 NLR 107

It is therefore obvious that, neither the overlord, nor his successor-in-title, could dispossess a customary tenant, except it be by means of an action for forfeiture. It is, of course, always open to the customary tenant to abandon his tenancy if he so desires, but that is another matter.

We think that we should point out here that customary tenancy has no equivalent in English law. It is neither a leasehold interest nor a tenancy at will, nor a yearly tenancy. The main incident of such tenure is the payment of tribute, not rents, by the customary tenant to the overlord.

It is no longer in doubt that a customary tenant remains in possession in perpetuity, provided that he is of good behaviour.See Ejeanalonye & Ors, v. Omabuike & Ors. (1974) 2 S.C. 33, at 39 where this court put the law succinctly as follows:-

“…The customary tenant pays tribute and enjoys perpetuity of tenure subject to good behaviour, which means in practice that he may forfeit his holding only as a result of an order of court for forfeiture at the instance of the customary landlords.

It therefore follows that, whoever deludes himself into purchasing the overlord’s radical title will soon discover that he has to take the land as he finds it. Such purchaser might have acquired titled, but never in the least, possession which, at all times, is reposed in the customary tenant until forfeited.”

And at page 67, the learned JSC added:

“We think that we should also draw attention to the fact, that as far as the customary tenant is concerned, the question of title seems to be academic. As a matter of fact, the customary tenant is concerned only with possession simpliciter which, in the absence of any misbehaviour on his part, is indefeasible.

It is also pertinent to stress the fact that a purchaser from the overlord will simply step into the shoes of the vendor. The rule is “Nemo dat quod non habet” – “no one gives what he does not have” in other words, a purchaser can never get what the vendor himself did not possess. We accordingly take the view that just as the overlords, the Oloto Chieftaincy Family, are without power to dispossess the customary tenants in the present case so also their successors-in-title (the respondents) are completely devoid of any such right. In short, we are of the view that the respondents in the present case bought the disputed land, subject to the unextinguished possessory title of the appellants – the customary tenants.”

It is this point that the trial court eloquently made in the passage of its judgment reproduced earlier in this judgment that since the Timi of Ede, the overlord of the land in dispute had not determined the customary tenancy of the appellants’ Ofatedo people, the land could not have been validly sold to the respondent.

The court below was in error to have set aside the judgment of the trial court. The only way the respondent could have acquired a valid title was to have got the Timi of Ede to first revoke the customary tenancy of the appellants’ Ofatedo people. This is a case which clearly demonstrates the logic of the principle that a trespasser in possession of land is entitled to keep his possession against the whole world except a person who can show a better title than himself (i.e. trespasser -in-possession).

In concluding its judgment, the Court below said:

“as it has been a pyrrhic victory for the parties, each party should bear his or their own costs in the court as no order of costs is made in favour of any of the parties.”

It is patent that the respondent could not have had anything but a ‘pyrrhic victory.’ The judgment of the court below which on its face was in favour of the respondent could not have conferred any advantage on the respondent since the said judgment still left the appellants in possession of the land in dispute, a situation which makes it inevitable for the respondent to first get his overlord to bring the appellants’ customary tenancy to an end before the appellants could be evicted from the land. This was what the High Court did by protecting through the grant of an injunction the possessory rights of the appellants.

This appeal is meritorious. It is allowed. The judgment of the Court below is set aside and the judgment of the High Court is restored. The appellants are entitled to costs in the Court below and this court which I fix at N25,000.00 and N50,000.00 respectively.NIKI TOBI, J.S.C: The appellants were the plaintiffs in the High Court. The respondent was the defendant. The appellants as plaintiffs claimed three reliefs in the High Court: (i) Declaration that they are entitled to a statutory right of occupancy to the piece or parcel of land indicated in the claim. (ii) N5,000.00 general damages for trespass and (iii) Perpetual injunction against the respondent and his servants, agents or privies.

The learned trial Judge dismissed the relief for declaration of title. He however granted the relief for trespass. He awarded nominal damages and granted injunction in favour of the appellants. An appeal to the Court of Appeal was allowed. That court set aside the award of damages for trespass and injunction granted in favour of the appellants. The Court of Appeal said at page 128 of the Record:

“As respondents did not cross-appeal from the dismissal of the grant of declaration for statutory right of occupancy that order of dismissal stands and the claims for trespass and general damages for the sum of N5000.00 is set aside, so also the grant of injunction in consequence of the setting aside the judgment of the High Court of OSOGBO all the claims” of the respondents against appellant are dismissed.

The appeal is dismissed in respect of issues 2 and 3 of issues for determination for the reasons given above in this judgment. Issue 1 succeeds and the appeal is allowed on this ground.”

Dissatisfied, the appellants have appealed to this court. Briefs were filed and exchanged: The appellants formulated the following issue for determination:

“Whether the Court of Appeal was right to have set aside the finding of the trial court on possession and the status of the plaintiffs which entitled them to be in possession and to maintain an action for trespass against the defendant”

The respondent formulated the following issue for determination:

“Whether the learned Justices of the Court of Appeal were not right in upholding the Respondent appeal before it when the Appellants’ evidence of possession on which the claims for damages and injunction were granted by the trial court were found not to be rooted in the traditional history of title as pleaded.”

Learned counsel for the appellants, Mr. M. O. Agboola, submitted that the claim by DW3 is an admission against interest as far as the right of the plaintiffs to remain in possession is concerned. He cited Sections 20 to 22 of the Evidence Act, 1990 and Olatunji v. Adisa (1992) 2 SCNJ 90. He also submitted that the allegation that he paid for plaintiffs crops on the land is an admission by the plaintiffs that as at the time he entered the land, the plaintiffs were in possession; and since the defendants’ grantor had conceded that the plaintiffs were lawfully in possession, the onus is on him to prove that the right to possession has been terminated before he made the sale to the defendant; otherwise the defendant takes subject to the earlier encumbrance. He cited Ojomu v. Ajao (1983) 2 FNR 258. As the defendant conceded that the plaintiffs were in possession of the land ahead of him, they need not prove possession, as what is admitted needs no proof. He cited Siesmograph Services Nig. ltd. v. Eyeafu (1976) 9-10 SC 135. Counsel argued that what a claimant in trespass needs to prove is possession or right to possession and if that is admitted by the defendant, a claim for trespass should succeed. He cited Narindex ltd. v. NIMB ltd. (2001) FWLR (Pt. 49) 1046.

Citing the case of Melifinwu v. Eghuji (1983) 3 FNR 262, learned counsel wondered why the Court of Appeal held that the finding of the trial Judge on possession was perverse. He urged the court to hold that the Court of Appeal’s attack on the finding of the trial Judge on possession is erroneous as possession was not in contention at the trial court.

Learned counsel submitted that as there was no appeal on the finding of the trial court on the status of the plaintiffs as customary tenants in possession, the Court of Appeal was wrong to suo motu attack a finding not appealed against. He cited Olusanya v.Olusanya (1983) 3 SC 41 and Alli v. Aleshinloye (2000) FWLR (Pt.15) 2610.

Learned counsel argued that forfeiture is not automatic as any misbehaviour by the customary tenant is not enough; rather there must be a court order forfeiting the tenant’s interest. He cited Aromolarin v. Waddel (1958) SCNLR 267.

Dealing with the findings of the Court of Appeal, learned counsel submitted that that court cannot be excused for disturbing what he called primary findings of the trial Judge based on demeanour. He cited Nwizigha v. Okosisi (1958) SCLR 292; Sha v. Kwan (2000) FWLR (Pt. 11) 1790; Oshatoba v. Chief Olujitan (2000) 6 SCNJ 159. Counsel urged the court to allow the appeal.

Learned counsel for the respondent, Mr. N. O. O. Oke (SAN) relying on Idundun v. Okumagba (1976) 10 SC 227 submitted that there are five ways of establishing ownership of land. He argued that possession was never a separately canvassed means of acquisition of the land in dispute and having failed on traditional evidence of title, the appellants could not justifiably in law fall back on possession.Learned Senior Advocate pointed out that the appellants did not in their claims as formulated for trial solely claim for damages and injunction which claims could have well been grounded in possession alone; rather they tied the two and ancillary reliefs to their main claim for declaration of title of the land in dispute. Except the defence of acquiescence and laches are made out as a defence, issue of possession will fizzle out upon the appearance of someone with a better title or someone who is privy to someone with a better title, counsel contended. He cited Amakor v. Obiefuna (1974) 1 All NLR (Pt. 1) 119.

Relying on Ebba v. Ogodo (1984) 4-5 SC 84, learned counsel submitted that a finding of possession in favour of the appellants, who have not made out their claim on title as pleaded, is perverse, as the appellants must establish the pleaded title before their acts thereon can be seen as acts of ownership or rightful possession. It would have been another matter if the appellants had pleaded that they had no title but wished that their acts of long possession be taken as evidence of their exclusive possession, learned Senior Advocate argued. He cited Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 333.

Learned Senior Advocate contended that as the appellants did not plead possession and establish it, they cannot be granted the relief. He cited Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7) 393; Kuti v. Attorney-General of the Federation (1985) 2 NWLR (Pt. 6) 211 and Chukwueke v. Nwankwo (1985) 2 NWLR (Pt. 6) 6. He justified the interference by the Court of Appeal on the findings of the trial Judge which he regarded as perverse. He cited Lawal v. Daodu (1972) 1 All NLR 270 and Solomon v. Mogaji (1982) 11 SC 1. He disagreed with the submission of counsel for the appellants that the respondents as appellants in the Court of Appeal did not appeal against the finding of the trial court that the appellants were customary tenants of Timi of Ede. He called in aid, Ground 2 of the Grounds of Appeal and the particulars therein. He also disagreed with the submission of counsel for the appellants that the appellants as customary tenants have the right to remain in possession until such a possessionary right is forfeited by a court order. To learned Senior Advocate, such argument could have been valid if the appellants have originally conceded the fact of their being customary tenants of Timi of Ede both by pleadings and evidence.

Learned Senior Advocate submitted that the issue of forfeiture does not arise at all in this case because the appellants did not predicate their case of possession on customary tenancy and landlord relationship. The appellants failed to establish cohesive, logical, lawful and cogent evidence of possession, counsel argued. He submitted that a plaintiff should succeed by the strength of his own case and not by the weakness of the defendant’s case, except where the evidence in the defendant’s case eventually supports the case of the plaintiff to give it conditional strength. Citing Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252, learned Senior Advocate contended that such is not the position in this appeal. Also citing Lawal v. Olufowobi (1996) 10 NWLR (Pt. 477) 109, learned Senior Advocate urged the court to dismiss the appeal as the appellant did not prove title, it is totally unnecessary to consider acts of possession.

In his reply brief, learned counsel for the appellants submitted that the respondent’s issue for determination is warped by the intricate confusion of the legal requirements by a claim of trespass with those of a claim of title. He submitted that the appellants exclusive possession and right to possession which are the basis of the claim in trespass were clearly manifested by (a) The fact a s found by the trial court that the plaintiffs’ people who have become settled in an identified community called Ofatedo have been in exclusive possession for a long time. (b) The plaintiffs’ exclusive possession was testified upon by four witnesses including the plaintiffs’ boundary men for decades who were not cross-examined at all on the point. (c) Exhibit F (Supreme Court Judgment) which the defendant produced in which the plaintiffs’ people were established as having been in exclusive possession. (d) The defendant’s testimony that he paid compensation for the plaintiffs’ crops. (e) The evidence of the defendant’s grantor who further ‘strengthened the plaintiffs’ case by asserting that the plaintiffs were his customary tenants without going on to show that the plaintiffs possessory rights as tenants were determined before the defendant’s entry.

The above, learned counsel submitted, show that the appellants claim in possession was not based on their traditional history alone, but also on recent acts of possession which the respondent conceded, thus proving or providing a useful support to the appellants case. He submitted that Ebba v. Ogodo, (supra) also submitted that Ground 2 in the Notice of Appeal cannot withstand the argument of learned Senior Advocate. As the rest of the reply brief is a repetition of the appellants brief, I will not take the arguments here.

The first comment I want to make is on the brief of the appellants. It is a brief of one issue made up of what counsel calls sub-issues. They are four in number. I do not know sub-issue in a brief. I know issue; not sub-issue. There is no provision in Order 6 of the Supreme Court Rules for sub-issues. I shall therefore take the sub-issues as part of the main Issue. I do hope that counsel will not involve himself in such an innovation that is not known to our rules of Court. I have no objection for counsel introducing innovations in our system if they are consistent with our rules of court. I certainly have objection if innovations are not consistent with our rules of court. And this one learned counsel tried is not in our Rules. So let it go.

There are five ways of proving title to or ownership of land. They are: (1) By traditional evidence. (2) By production of documents of title duly authenticated ‘and executed. (3) By acts of ownership, extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership. (4) By acts of long possession and enjoyment. (5) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See Idundun v. Okumagba (1976) 9-10 SC 227; (1976) NMLR 200. See also Omoregbe v. Idugiemwanve (1985) 2 NWLR (Pt. 5) 41; Mogaji v. Cadbury (Nigeria) Ltd. (1985) 2 NWLR (Pt. 7) 393; Ezeoke v. Nwagbo (1988) 1 NWLR (Pt 72) 616; Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263; Okpuruwu v. Chief Okpokam (1988) 4 NWLR (Pt. 90) 554.

Of the five ways enumerated in Idundun v. Okumagba, supra, two ways deal with possession. One way is acts of long possession and enjoyment of the land in dispute. The other is proof of possession of connected or adjacent land. Possession per se may not be proof of ownership. The possession must be long and the length of the period will be determined in the light of the facts of each case. Apart from the long possession, a plaintiff can prove ownership of the land in dispute if he proves possession of land connected or adjacent to the land in dispute. The plaintiff must prove proximity of the two pieces of land. He must prove some nexus or contiguity. Where the pieces of land are kilometers apart or away, a trial judge will not give judgment to the plaintiff. Again, the connection or adjacent nature of the two pieces of land will be determined by the facts of each case. Plaintiff must prove that the two pieces of land are very close; they touch or almost touch each other. They must join or in relation substantially or materially; not necessarily like Siamese twins.

The prominent place given to possession in Idundun v. Okumagba (two of the five ways or factors) justifies in some way the maxim of the 17th Century that possession is nine-tenths of the law. Possession of property or parcel of land means the occupation or physical control of the property or parcel of land either personally or through an agent or servant of the claimant. See Etaluku v. NHC Plc (2004) 15 NWLR (Pt. 896) 370; Aminu v. Ogunyebi (2004) 10 NWLR (Pt.882) 457; Anyabusi v. Ugwunze (1995) 6 NWLR (Pt.401) 255.

A person in possession can bring an action against a person in trespass. This is because the act of trespass physically injures the rights of the person in possession. Therefore, a plaintiff who is in possession has a legal right to commence an action against a defendant who is in trespass of the land. In other words, a person in possession can commence or maintain an action in trespass against any person other than the person who can establish better title. Am I repeating myself I think not. See Onyeakaoru v.Ekwubiri (1966) 1 NLR 32; Amakor v. Obiefuna (1974) NMLR 311. Section 146 of the Evidence Act 1990 compels a defendant who admits that the plaintiff is in possession of the land in dispute to establish that the plaintiff is not the owner of the land. See Onubruchere v. Esegine (1986) 1 NWLR (Pl. 19) 799; Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208; Ebueku v. Amola (1988) 2 NWLR (pt. 75) 128.

Dealing with the issue of the claim of trespass, the learned trial Judge said in his judgment:

“It is well known that the claim for trespass is based on the exclusive possession of the land.. the clear evidence before the court which I accept (and this much was admitted in the document Exhibit H and recognized in the judgment Exhibits E and F is that the Offatedo people including the plaintiffs have all along been in exclusive possession of a much larger area of land (of which the land in dispute forms part) as customary tenants of the Timi of Ede. Indeed this was the case made out for the defendant in this case.

That being the case, the plaintiffs’ family were lawfully in exclusive possession of the land in dispute as customary tenants, although title to the reversion remain vested in the Timi of Ede as their customary landlord. It is trite law that customary tenants are entitled to enjoy their use and possession of the land in perpetuity until forfeited by order of court (authorities cited). It is pertinent to emphasise that even where a customary tenant is alleged to have committed an act amounting to misbehaviour, it does not necessarily follow that his tenancy will be forfeited. ‘

As Exhibit H features prominently in the judgment of the learned trial Judge, I will read it here:

“THIS AGREEMENT is made this 19th day of April 1982, BETWEEN (1) MR. SALAWU AJAYI (2) MONISOLA AJAYI (3) AWERO AJAYI all of Offatedo via Ede representing AJAYI ONIDA FAMILY Offatede Oshun central Division Oyo State of Nigeria, (1) MR. BELLO OJO, (2) LIASU ADEYI, (3) LAMIDI ASUNMO all of Offatedo via Ede representing GBENGA FAMILY Offatedo via Ede Osun central Division Oyo State of Nigeria for themselves and acting on behalf of ONIDA and GBENGA FAMILIES Offatedo hereinafter referred to as the VENDORS) which expression shall where the content permits shall under their heirs, assigns, executors, successors in title on the one part and CHIEF ALHAJI RAHEEM ADETORO LAWAL of opposite District Hospital Ede Oshun central Division Oyo State of Nigeria hereinafter called the PURCHASER) on the other part.

WHEREAS:-

1. The vendors are customary tenants and are farming on the land to be hereinafter described and intended to be sold to the purchaser.
2. The Timi of Ede who is the paramount Natural Ruler of Ede and District is the overlord of all parcels of land in Ede and District
3. By virtue of this position the Timi of Ede under customary law and usage of Ede he is the only person saddled with the authority to sell, lease, assign or deal with all parcels of land in Ede and District
4. The said parcel of land to the hereinafter described forms part of Ede Community land.
5. The vendors have been farming on the said land with the consent, authority and approval of Timi of Ede.
6. UNDER AND BY VIRTUE OF A Deed of conveyance dated 11th day of November, 1977 and registered as No. 28 in volume 2199 of the lands Registry the said hereditaments shown on Plan No. MAY 861177 COVERING AN AREA OF 52.916 Hectares and attached to the Deed of conveyance recited above and thereon edged RED was sold to the purchaser by the said Timi of Ede for a consideration therein stated.
7. AFTER the said sale to the purchaser he went into possession to discover that the vendors, their agents, and servants are farming on the said land.

WHEREBY IT IS AGREED AS FOLLOWS:

1. The vendors have agreed to assign all their interest on the said land situate, lying and being at Offa, Oshogbo Road, Ede Oyo State of Nigeria shown on Plan No. MAY 861/77, ATTACHED TO THE Deed of conveyance dated 11th day of November, 1977 recited above to the purchaser for a sum of EIGHT HUNDRED NAIRA (N800.00).”

I entirely agree with the learned trial Judge that the Conveyance, Exhibit H is to the effect that the “Offa-tedo people, the vendors, including the plaintiffs have all along been in exclusive possession of a much larger area of land (which the land in dispute forms part) as customary tenants of the Timi of Ede.” I also agree with the learned trial Judge that Exhibit E and F are judgments which are admissions of the over lordship of the Timi of Ede. In Exhibits E (Suit No. HOS/48664) which was delivered on 14th February, 1968, Fakayode, J. made’ the following declaration in the last paragraph of the judgment:

“Therefore I hereby declare that the land in dispute belongs to the plaintiffs under native law and custom. I hereby restrain the Defendant from selling or alienating any portion of the land in dispute without. Plaintiffs previous approval or consent. The existing farming and occupational rights of the people now on the land in dispute shall not be affected in any way by this declaration.”

In Exhibit F (Appeal NO.SC.47/1970) delivered on 15th October, 1970, Udo Udoma, JSC, said at pages 11 and 12 of the judgment:

“It follows therefore that this appeal succeeds. The judgment of the Western State Court of Appeal in Case No. CAW/48/68 is hereby set aside including the order for costs in the High Court and in the Western State Court of Appeal. The judgment and order of the High Court granting the plaintiff a declaration of title to the ‘land in dispute and injunction is restored with costs.

Accordingly, the order of this court is that the plaintiff be and is hereby granted a declaration of title to all that piece or parcel of land, the subject matter of this action, lying and being at Ede described in his Survey Plan No. AB.1900 and therein verged green. The plaintiff is also granted injunction to restrain the defendant, his agents, servants, assigns and executors from committing further acts of trespass on the said land.”

In both Exhibits O and F, the Timi of Ede, Oba J. O. Laoye, was the plaintiff and plaintiff/appellant, respectively.

In the light of the above exhibits and the evidence of the appellants, I do not see my way clear in supporting the decision of the Court of Appeal that the findings of fact by the learned trial Judge on possession were perverse. The court, with all respect, is wrong. There is no perversity in the findings of the leamed trial Judge.

A person who has possession of a thing has the support and strength of the law to protect that thing; subject to the rights of a person with better proof of title. And that is the position of the appellants who, in the 17th Century maxim, has nine points as against the respondent who has only one point. On the lighter side, one can say that one point out of ten is a failure. In the teachers language, it is a very big failure, next to zero, ignoring the quarter, the half and the three quarters. I can still say on the lighter side that the one point scored by the respondent will not win the case for him. He will fail and he fails. The appellants who scored nine points will win the case and they have won.

In sum, it is for the above reasons and the more detailed reasons given by my learned brother, Oguntade, JSC, that I too allow the appeal. I abide by my learned brother’s order as to costs.

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SC.417/2001

Usman Kaza V. The State (2008)

LAWGLOBAL HUB Lead Judgment Report

CHUKWUMA-ENEH, J.S.C.

This appeal is against the judgment of the Court of Appeal Kaduna Division, that is to say the Court below, delivered on 10/12/2003 which while dismissing the appellant’s (Usman Kaza) appeal affirmed his conviction and sentence by hanging passed on him (the appellant) by the trial court (Kebbi State High Court of Justice). In the trial court the appellant as the 2nd accused was jointly arraigned with 5 others for criminal conspiracy, abetment and culpable homicide punishable with death under Sections 97,85 and 221(a) of the Penal Code respectively.

Being aggrieved by the decision of the court below the appellant finally has appealed to this court by a Notice of Appeal filed on 27/12/2007 wherein he has raised four grounds of appeal. In the result the parties have filed and exchanged their briefs of argument in this matter. In the appellant’s brief of argument, three issues for determination have been distilled as follows:

“(1) Whether the prosecution proved the case of conspiracy, abetment and murder against the appellant.

(2) Whether mere presence at a scene of crime proof of actual participation in the commission of the crime.

(3) Whether the defence of provocation and justification avail the appellant.”

The respondent in its brief of argument has adopted issues 1 and 3 of the appellant’s issues for determination as the more proper and salient issues to resolve the appeal.

As the facts of this heinous crime are not in issue, I have culled the facts of the same as vividly and graphically set out in paras. 2.1 and 2.2 of the respondent’s brief of argument as follows:

“2.1. On the 14th day of July, 1999, a rumour was spread in Kardi and Randali villages of Birnin Kebbi Local Government Area of Kebbi State of Nigeria that one Abdullahi Alhaji Umaru of Randali village (the deceased) insulted the Holy Prophet Muhammad (S.A.W). In consequence thereof the appellant, together with co-accused, at the trial court who were ‘both resident of Kardi, went Randali in search of the deceased. The deceased was arrested on this account and taken to the outskirt of Kardi village near the village burial ground and kept in the custody of Suleiman Dan Ta Annabi (6th accused in the trial court) and Mohammed Sani (3rd accused in the trial court). In the interim, Musa Yaro (1st accused in the trial court) in conjunction with the appellant (2nd accused in the trial court) as well as Abdullahi Ada (the 4th accused at the trial court) went to Randali, the village of the deceased, in search of the deceased and clarification of whether the deceased ulter the insult or not after the arrest of the deceased they went to the house of the village head at Kardi to inform him that the deceased was caught and the prescribed death punishment of whoever insulted the Holy Prophet Muhammad (S.A.W.) would be carried out on him. Where upon the said village head did not say anything.

2.2 The appellant, Musa Yaro and Abdullahi Ada returned to the out-skirt of the village where the deceased was held captive under the custody of Mohammed Sani and Suleiman Dan Ta Annabi. On getting to the place, Musa Yaro read a portion of the Risala to the effect that whoever insult the prophet should be punished with death. And following this recitation, Mohammed Sani (3rd accused at trial court) matcheted the deceased on the neck and also the appellant as a result of which the deceased fell down and was slaughtered by the neck with a knife by Abubakar Dan Shalla and the deceased died and thereafter the appellant and his co-accused at the trial dispersed from the scene.”

At the trial, the prosecution called 8 witnesses including the brother of the deceased as p.w.3. In addition, the prosecution before the trial court tendered a total of 18 exhibits including particularly exhibits K and K1 and being appellant’s extra judicial statements to the police to show the appellant’s involvement in the killing of the deceased. The prosecution’s case as can be gathered from the Record shows that the 1st accused gave the instruction to kill the deceased. The 3rd accused cut him down by the neck with a matchet and the 5th accused slaughtered the deceased with a knife “like a goat’ while being held to the ground by the 3rd and 6th accused. The 1st, 2nd, 4th and 6th accused persons it is alleged abetted the commission of the crime in a manner that will become clearer anon. Be it noted that the appellant as the 2nd accused in line with the nature of the defence he opted for, before the trial court did not lead any evidence. He rested his case on the prosecution’s case.

On the issues for determination raised by the appellant herein vis-a-vis the background to the judgment of the court below, having gone over the same, I agree with the appellant’s submissions that the four main pillars upon which the court below has predicated its reasoning for its decision are, firstly, that all the accused including the appellant took part and participated in killing the deceased hence they are respectively convicted and sentence accordingly.

2.That the prosecution has led evidence to prove the essential ingredients of the offences for which the appellant and the co-accused were charged.

3.That the prosecution’s case has dispelled any availability of defences of provocation and justification to the appellant and other accused.

4.That the confessional and voluntary statements of the appellant and other accused to the police were neither denied nor retracted.

The appellant has, as it were, joined issues with the respondent on these findings, as borne out by his four grounds of appeal and the issues raised therefrom as per his brief of argument. I now proceed to deal, firstly with the brief of arguement.The appellant’s case as per his brief of argument is that he went to the scene to witness what was going to happen to the deceased. He submits in this vein that it has not been showed that he used any physical assault against the deceased as was the case with the 1st accused who as held by the trial court read the punishment from Risala; the 3rd accused who matcheted the deceased by the neck or the 5th accused who slaughtered the deceased with a knife. And that on the totality of the evidence of the prosecution witnesses coupled with the extra judicial statement of the accused person and other Exhibits, the prosecution has not established a case of conspiracy, abetment and murder against the appellant beyond reasonable doubt. He submits that there is no basis therefore for his conviction by the trial court on the unproven charge for taking part in killing the deceased. He contends it is a grave error for the court below upholding the finding to the effect that “all the accused persons (including the appellant) herein took part and participated in the unfortunate incident that led to the gruesome murder or killing of the deceased … ” [words in bracket supplied] It is strongly contended that as regards the offence of conspiracy in particular the prosecution has failed to establish the existence of any previous agreement to kill the deceased in the face of irrefutable evidence that the accused persons came from different villages and so could not have formed the necessary common intention to ground a charge of conspiracy. Furthermore, that such agreement has to be express albeit to warrant relying on it to convict the appellant. As regards the offences of abetment and murder, it is argued that the prosecution has not proved conclusively either or both of them by evidence, that is to say, beyond reasonable doubt vis-a-vis the ingredients of these offences. The appellant has therefore relied on the cases of Yakasi v. Nigeria Air Force (2002) 15 NWLR (pt.790) 294 at 314 paras. B-G, Shonde v. The State (2005) 12 NWLR (pt.939) 301 at 320 Paras. H-A for so submitting. The point is made that the appellant could not have conspired all by himself alone to kill the deceased and that the onus is on the prosecution to prove its case in any event against the appellant beyond reasonable doubt and not for the appellant to prove his innocence.

The appellant has claimed entitled on the available evidence before the court to the defences of provocation and justification which, it is urged should have been addressed even more so suo motu by the courts below. In this respect it has been submitted that the blasphemy, that is, insultive words uttered by the deceased had provoked the appellant and other accused persons as the rumour made it rounds in the neighbourhood and the evident want of enough cooling time with regard to the appellant in the circumstances. It is broached on behalf by the appellant the serious question of the contradictory evidence of the prosecution witnesses which as contended by the appellant has thrown the prosecution’s case asunder.

I must, however, observe that the appellant has not covered the offences of abetment and culpable homicide punishable with death as well as the defence of justification in his brief of argument. This summarises the appellant’s case.

As can be seen the appellant’s case put in a nutshell is one of total failure on the part of the prosecution to prove its case beyond reasonable doubt and that having, as it were, failed in that regard it tantamounts to a miscarriage of justice for the trial court to convict and sentence the appellant for these offences and even moreso a grave error for the court below to uphold the said conviction and sentence. Because of the peculiar nature of this case I have taken great care in articulating the appellant’s submissions thereof so expansively on the three issues posed in this case.

The respondent on the other hand, on issues I have submitted that the inference to be drawn from the evidence of P.W.2, P.W.5 and p.w.6 shows that the appellant conspired with other co-accused to kill the deceased. The respondent also has reverted to extra judicial confessional statement of the appellant, that is, Exhibit K 1 (English transaction) in which he has outlined his role in this heinous saga of an offence to support the contention that acting in concert with his co-confederates they killed the deceased.

On Issue I – that is, the offence of conspiracy under Section 97 of the Penal Code, the respondent has submitted that the agreement to kill the deceased has to be inferred from circumstantial evidence of P.W.2, P.W.5, and p.w.6 as per the principle settled in Obiakor v. The State (2002) 10 NSCQR 972 at 930 and Ahmed v. The State (1998) 1 AIR 71 at 72. Furthermore, and rightly in my view, that the acts or omission of any of the conspirators done in furtherance of the common design are receivable in evidence against any other or others of the conspirators and that the appellant need not have inflicted physical assault on the deceased as propounded in the case of Abacha v. The State (2002) II NSCQR 346 at 353 to be a party to the offence of conspiracy. The appellant having spent a large chunk of its brief discussing this issue, I think, I should deal with it firstly.

Having rehearsed over and over again the parties cases on this issue as presented in their respective briefs of argument on the backdrop of the evidence of the prosecution witnesses thereof, I see no reason for not upholding the respondent’s submission that the prosecution has proved its case of offence of conspiracy as encompassed under Section 96 of the Penal Code against the appellant beyond reasonable doubt. Section 97 of the Penal Code, the punishment section of the offence of Criminal Conspiracy provides:

“97(1) whoever is a party to a criminal conspiracy to commit an offence punishable with death or with imprisonment shall where no express .provision is made in this Penal Code for the punishment of such conspiracy be punished in the same manner as if he had abetted such offence.

2. Whoever is a partly to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment for a term not exceeding six months or with a fine or with both.

Although Section 97 is the punishment section it is really section 96 that explicates the import of criminal conspiracy. It is Section 96 of the Penal Code that conceptionalises the import of criminal conspiracy and for ease of reference it provides that:

“96(1) When two or more persons agree to do or cause to be done –

(a) an illegal act, or

(b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.

(2) Notwithstanding the provisions of subsection (1); no agreement except an agreement to commit on offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement, or is merely incidental to that object.”

The import of the provisions of Section 96 supra has been considered in a long line of cases including Chianagu v. The State (2002) 2 NWLR (pt.750) 225 at 236 para.A.; Obiakor v. The State (2002) 10 NWLR (pt.776) 612 at 628 Upahar v. The State (2003) 6 NWLR (pt.816) 23 at 262 and Idi v. Yau (2001) 10 NWLR (pt.722) 640 at 651 and 658. These cases in summary establish that to secure the conviction of an accused on a charge of conspiracy it must be proved beyond reasonable doubt that:-

(1) The agreement to commit an offence – an illegal act is between two or more persons.

(2) That the said act apart from the agreement itself must be express in furtherance of the agreement.

However, authorities abound to the effect that agreements under Section 96 of the Penal Code can be inferred from circumstantial evidence. In this regard the evidence of PW2, PW5 and PW6 becomes very crucial bearing in mind that the appellant as the 2nd accused before the trial court rested his case on the prosecution’s case. In this regard, I have to examine the evidence of PW2, PW 5 and PW6 in relation to this question. Firstly the PW2’s testimony English Translation from Hausa as per the Record at page 42-44 runs thus: (male Muslim, speaks Hausa, affirmed).

“My name is Aliyu Magga. I live at Randali village in Birnin Kebbi Local Government Area. I am a farmer. I know the Ist accused Musa Yaro, I know the 2nd accused, the 3rd accused, 5th accused and 6th accused very. I also know one Abdullah Umaru. He is now dead.

I returned to Randali around 3:00 am and was in my house when the 1st accused Musa Yaro, one Mamman Dambu Umaru Kaza (2nd accused), Abdullah Ada (4th Accused), Suleiman Danta Aunabi (6th Accused) along with some other people whom I did not know woke me up and that I should come out as I am lucky because they would have killed me if they had not seen Abdullah. When I came out, they asked me whether I knew exactly what Abdullah said about the Prophet and I told them that I didn’t know. I however asked them to go to the house of our village head and we went together. At the house of the village head, I called the attention of one Shehu Yanliyya and Ustaz Mamman on what was happening. Then Ustaz Mamman read a verse from the Holy Quran and translated it in Hausa to the 1st accused and his group which included the other accused persons, that it is not their responsibility to punish a person who insults the Prophet but that it is only the authority that will punish him. The accused persons led by the 1st accused were not satisfied with the explanation and they just went away towards Kardi village and I followed them. On getting to Danfili within Randali Market one Shehu Yanliyya asked me to go through the motor park so that I can find people who will go with me to Kardi in order to rescue Abdullah even by force. I only got Baba Sambari and Abun Dambu and we proceeded together to Kardi. At then the accused persons and their remaining group members had proceeded to Kardi.

On reaching Kardi near the burial ground we already met the late Abdullah being held by Sule Dan ta Aunabi (6th accused) and Mohammed Sani (3rd accused) there were so many people around the scene. At then the 1st accused was not around. I went very close to where Abdullah was being held and I saw one Abu Maigirgi and Adamu Aljani holding a spear and stick respectively. Ustaz Mamman was also around and he repeated to the accused what he said at Randali that it is not their duty to punish Abdullah. Then the 5th accused Dan Shalla came and asked Ustaz Mamman whether he too is not a Muslim. The 5th accused further asked whether Ustaz Mamman was using a tape recorder to record what was happening. I used my torchlight and lit at the tape recorder and only then the 5th accused got satisfied that the recorder was not being used to record the happening.

As this was happening, Abu Dambu came and told me that Abdullah has been slaughtered. Then the accused persons and their group members started shouting (Allahu Akbar) God is great and moved away through a footpath into the town. I thought they were going away with Abdullah and I asked Ustaz Mamman to follow them. But Aba Dambu repeated that we should go home because Abdullah had been slaughtered. The incident happened between 3:00 am and 4:00 am. We proceeded to the exact place where Abdullah was slaughtered and found his corpse close to the footpath near millet stalks dead slaughtered by the neck full of blood and we left him there and went back to Randali. There were more than 50 people at the scene of crime. I only identified those I mentioned because I know them very well and they cannot deny this fact.”

As for P.W.5 his account of what happened as recorded by the police at p.51 of the record is as follows:

“My name is Atiku Dan Ayi. I live at Kardi village in Birnin Kebbi Local Government Area. I am a farmer. I know the 1st, 2nd, 3rd, 4th, 5th and 6th accused persons very well, I know one Abdullahi Alh. Umaru. He is now dead. What I know is that on 14/7/99 I was at my sleeping place at Kardi when one Mr. Bello Dan Nana woke me up and asked me whether I was aware of what was happening and I told him that I didn’t know. He told me that somebody was accused of insulting the Prophet Mohammed (SAW) and asked whether I will go to the place where he was being held. I took my catapult and started going to the scene along with Bello at Shiyar Riyoji where the person who was accused of insulting the Prophet (SAW) was arrested. On my arrival I found that it was Abdullahi Alh. Umaru of Randali village who was being held by the 6th accused Suleiman and the 3rd accused Muhammadu Sani, boy and arrest him and brought to him, then we decided to come back to our village Kardi, on our way back home, we meet with some of our Village boys on the road who told us that the boy have been arrested that is Abdullahi Alh. Umaru inside Kardi township, we proceeded to the place, on reaching there the late Abdullahi Alh. Umaru alive, while the following persons surrounded him. (I) Kalli Musa (2) Adamu Aljani (3) Shehu Danbega (4) Dan Bala Matar Kura (5) Abubakar Dan Shallah (6) and Sani Aci B/Kebbi from there I and Musa Yaro and Abdullahi Danada went to the Village Head of Kardi. Then Musa Yaro asked the Village Head whether he is aware of what is happening The Village Head replied him no, there Musa Yaro told the village Head that there is a boy of Randali who abuse Prophet Mohammed ‘SAW’, then the Village Head asked Musa Yaro what is the next line of action Musa Yaro told the Village Head that whoever abused Prophet Mohammed ‘S.A.W.’, God said he should be killed. Then the Village Head said should do mercy on us. We then returned back to where Abdullahi Alh. Umaru is arrested, before we could reach those people who arrested him took him to the bush on reaching the bush, then Musa Yaro read a word from the Qu’ran saying ‘Masabba Rasullilahi Kutoilla, that is to say whoever abuse Prophet Mohammed “SAW”, Islamic Law says he should be killed. Immediately Musa Yaro said this one Sani Aci BlKebbi macheted the said Abdullahi Alh. Umaru with cutlass, he fell down, then when he fell down Abubukar Dan Shallah slaughtered the boy with a knife as we were there he Musa Yaro was in possession of a iron stick while I was with torchlight. That is all I have to state.”

The trial court in its review and findings on the prosecution’s case against the appellant vis-a-vis the charge of conspiracy at p.67 LL6-14 stated thus;

“In the case of the 2nd accused person the evidence against him is that he was among the group that went to Randali on inquiry and subsequently returned to Kardi in search of the deceased. After the deceased was arrested he was also among the people who came to the house of the Village Head of Kardi to inform him what was going on. He was further among the group that come (sic) back to the place where the deceased was being held and remained there until the deceased was killed. This is supported by the testimony of PWs 2, 5 and 6 and the voluntary statement of the accused himself as in Exhibit K. This evidence too is uncontradicted and unchallenged. I am therefore satisfied that the 2nd accused took part in the conspiracy to kill the deceased.”

Concluding this aspect of its review and findings of the prosecution’s case of the 1st to 6th accused persons i.e. including the instant appellant the trial court from the third paragraph at p.68 of the record rightly in my view held that:

“From the above, it is evident that there is direct evidence of conspiracy against all the accused persons as in their voluntary statement and testimony of p.w.2 who told the court how the accused persons confronted him and even threatened to kill him in place of the deceased at the earliest stage. Furthermore the circumstances of this case are inferable to the only conclusion that the accused persons conspired to kill the deceased. In the case of Onochie v. The Republic (1966) 1 ANLR 86 it was held that the proof of conspiracy can even be inferred from the circumstance of a case.”

The court below on the other hand in agreeing with the foregoing abstract has observed at p.117 of LL5-16 thus:

” …. it is not in dispute that all the appellants took part and participated in the unfortunate incident that led to the gruesome murder or killing of the deceased by name Abdullahi Alhaji Umaru for the alleged (but unproven) use of abusive, defaming or insultive words against the Holy Prophet Mohammed (SAW). The prosecution has led evidence to prove the essential ingredients of the offences for which the appellants were charged including their confessional and voluntary statements to the Police which was neither denied nor retracted from by the said appellants. It is also to be noted as rightly pointed by the learned trial judge and as reflected by the record that the appellants rested their case on the evidence adduced by the prosecution and chosed (sic) not give or call any evidence for their defence.”

The foregoing findings cannot be faulted or flawed as the sale issue taken before the court below by the appellant ranged on whether the appellant suffered any miscarriage of justice when the trial court refused to consider possible several defences open to the appellant and his confederates. In this court the instant appellant has reopened all the questions dealt with at trial court in addition to the sale issue in the Court below. This act of chopping and changing a party’s case at every stage of the hierarchy of the courts as here has been frowned upon and roundly condemned in the case of Jumbo v. Bryanko internationals Ltd (1995) 6 NWLR (ptA03) 545 at 555-6. I have ignored this anomaly, as this is a murder case.

The findings of both courts below as stated above, I must again emphasis, are unimpeachable. It certainly cannot be contested on the facts of this case that the fatal act, that is to say, the heinous act of slaughtering the deceased like a goat by the 5th accused person and even before then hacking him (the deceased) down with a matchet by the 3rd accused person with the common intention of causing him grievous bodily harm and kill him are outside the scope or tacit agreement of the accused persons to kill the deceased albeit in furtherance of their common intention to kill him for insulting the Prophet Mohammed. Again, it is an unchallenged fact that the appellant was present at and aiding and abetting the others of them including the 3rd and 5th accused persons particularly in the execution of the gruesome slaughtering of the deceased. It is my view that in such circumstances as here the prosecution does not have to prove that the accused persons were acting in pursuance of a common design of a prearranged plan. It is inferable from the surrounding circumstances. My reasoning here certainly begs the question – What did the accused persons agree to do Pertinently, this is so in that if what the appellant and the other accused persons agreed to do is, on the facts known to them, an unlawful act they are guilty of conspiracy and cannot excuse themselves by unfoundedly contending that owing to their ignorance of the law they did not realise as per their Religious persuasion that such act is a crime. I have here anticipated appellant’s claim to the defence of justification. I shall return to it later. All the same, I hold that the appellant is rightly convicted of the offence of conspiracy.

On the offence of abetment – this is covered under Section 85 of the Penal Code and it provides as follows:

“85 Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by this Penal Code or by any other law for the time being in force for the punishment of such abetment, be punished with punishment provided for the offence.

The clear purport of the above provisions of Section 85 of the Penal Code is clear to the extent that to secure the conviction of an accused person as the appellant here the prosecution has the responsibility to establish as follows:

(1) that the accused abetted the offence

(2) that the abetted offence was committed in consequence of the abetment (These stipulations flow naturally from the definition of abetment as per the foregoing provisions).

I have set out in extenso the evidence of P.W.2, P.W.5 and P.W.6 herein in so far as they are relevant to establish this offence and I shall revert to them anon. The trial court at p.69 LL 16-25 of the record has found as regards this offence as follows:

“In respect of the 2nd and 4th accused persons, it is in evidence that after the arrest of the deceased, they ordered for his detention until their return. It is also in evidence that they told the Village Head of Kardi what was to happen to the deceased and acted as strong supporters of the 1st accused following him closely. It was when they came to (sic) scene of crime that the deceased was callously killed. The acts of the 2nd and 4th accused persons were supported by the voluntary statement of the accused persons in Exhibits K and F respectively and the testimony of p.w.2. I am in agreement with the learned counsel for the prosecution that the ups and downs and final arrest of the deceased by the accused persons facilitated his killing. I am satisfied that the prosecutions have proved beyond reasonable doubt the charge of abatement (sic) against the 2nd and 4th accused persons.”

This finding cannot be faulted as it has brought to the fore the complicity and indeed the liability of the appellant for aiding and abetting the commission of the heinous crime. The court below as per the record has not adverted to nor made any specific findings on this question apart from its overview of the offences for which the appellant was charged as per my excerpt above i.e. as per p.117 LL5-16 of the record. As I observed herein this question has not been raised as an issue for determination before the court below hence it did not consider it.

For my part I must turn to examining this question by scrutinising the distinction between the offences of conspiracy and abetment as properly accentuated by the trial court in its judgment at p.66 LL 13-22 of the record where it said thus:

“I am of the view that from the nature of the provisions of Section 85 and 97 of the Penal Code the two provisions are distinct. Conspiracy is distinguished from abatement (sic) in that the crime consists of simply in the agreement or confederacy to do some act, no matter whether it is done or not. In the other (i.e. abatement) (sic) the intention to do a criminal act is not a crime itself until something is done amounting to do or attempting to do some act to carry out the intention. More so the offence of abatement (sic) deals only with offenders who may be described as accessories before the fact and at the fact. Abattors (sic) must have committed acts or omissions which must take place in pursuance of the conspiracy. I therefore find the two charges as framed by the prosecutions are distinct.”

This is a correct statement of the law on the distinction between conspiracy vis-a.-vis abetment and I uphold it. The exposition recognizes the distinction between the persons otherwise known as principals in the first degree who actually did the criminal act and those other parties or co-confederates who are secondary parties present at and assisting in the commission of the felony, for example by keeping watch. And so conspiracy is distinguishable from abetment; the two offences have different ingredients, in the case of conspiracy prior agreement is necessary, it is not so in abetment. See Mohun v. R (1967) 2 AELR 58.

I have followed meticulously the evidence of P.W.2, P.W.5 and P.W.6 as per the record indicating that the appellant and his co-accused persons were present at and assisting in the commission of the offence of killing the deceased by slaughtering him. Although the appellant is apparently a secondary party to this crime according to the law he has been rightly convicted and punished as a principal offender (i.e. as the 3rd and 5th accused persons) who did the criminal act, and I so hold.

I now turn to the offence of culpable homicide punishable with death under section 221 (a) of the Penal Code which section provides as follows:

“221(a) Except in the circumstances mentioned in section 222 culpable homicide shall be punished with death –

(b) If the act by which the death is caused is done with the intention of causing death.”

By the foregoing provision the prosecution is to establish the following elements beyond reasonable doubt to secure conviction to wit;-

(a) That there was a death of human being

(b) That the death was caused by the act of the accused person

(c) That the act of the accused person was done with intention of causing death.

At the trial of the appellant and his co-confederates the evidence of P.W.2, P.W.3, p.w 4, P.W.5 and Exhibit D as per the prosecution witnesses as found by the trial court has established beyond reasonable doubt all the above ingredients of the offence of culpable homicide punishable with death to secure the conviction and sentence of the appellant by hanging. On the first element the prosecution has proved the death of the deceased being i.e. Abdullahi AJhaji Umaru, P.w.3, a brother to the deceased testified to the effect that he came to Kardi village and found the corpse of his brother who had been slaughtered. P.W.2, P.W. 4, P.W.5 and P.W.6 all testified that the deceased was severely beaten and matcheted by the neck and eventually slaughtered to death by cutting his throat. This gruesome and chilling account of this callous murder was further corroborated by Exhibit D – the medical report and Exhibits E, E I, E2, E3, F, F1, G, G1, H, HI, J and J 1 and exhibits K and K I in particular that is, the extra judicial statements of the accused person confessing to the crime.

On the 2nd element – as rightly found by the trial court, it was the appellant and other accused persons who killed the deceased. I have expatiated on this aspect of the crime above and I need not even then flog that aspect of the case any further see: R. v. Isa (1965) ANLR 68 and Erik Uyo v. AIG Bendel State (1986) 1 NWLR 48.

The appellant as the 2nd accused person made a confessional statement Exhibits K and K1 so also did other accused persons charged along with the appellant – this was corroborated in every material particular by the testimonies of p.w.2, p.w.5 and p.w.6 and Exhibit D. Exh. D has described the injuries inflicted on the deceased thus: ” ….. severe signs of violence around the neck – cutting all the blood vessels around the neck and the air wav thereby resulting in the death of the deceased on the spot.” There can be no doubt that the conviction of the appellant and 5 other accused persons for causing the death of the deceased is well grounded. See Bwoshe v. The State (1972) 6 SC 93, Kan Dan Adamu v. Kano N.A. (1956) 1 FSC 25.

On the 3rd ingredient i.e. whether the act was done with intention of causing death. All the accused persons it is agreed were present at the scene of the crime and each of them including the appellant assisted in the commission of the offence of slaughtering the deceased. The evidence as per the record has acknowledged signs of violence around the neck region of the deceased, cutting of all the blood vessels and the air ways as per Exhibit D. The murder weapons, that is to say, the matchet and the knife Exhibit A used by the 3rd and 5th accused persons respectively are no toys. These are dangerous weapons that can cause grievous bodily harm and as they did here. P.W.3 has testified as to how the deceased was cut with a matchet by the 3rd accused who struck him down by the neck with a matchet and slaughtered by the 5th accused with a knife while the other accused persons including the appellants abetted the crime. The accused persons including the appellant intended not only to cause the deceased grievous bodily harm but to kill him: See George v. The State (1993) 6 SCNJ 249 at 257. From all accounts of this matter the appellant and his co-confederates must have intended the consequences of their act and must take the consequences. As for the appellant, the 1st and 4th accused persons the prosecution’s case has showed them not to have used any physical assault against the deceased. The trial court nonetheless and rightly for that matter found conclusively that all accused persons i.e. 1st to the 6th were joint actors i.e. participes in criminis. In discussing their complicity and liability in this matter the law is settled that where persons have embarked on a joint enterprise, each is liable criminally for the act done in pursuance of the joint enterprise and even including unusual consequences arising from the execution of the joint enterprise see R v. Anderson and Morris (1966) 2 AER 644; Nyam v. The State (1964) 1 ANLR 361 and Buje v. The State (1991) 4 NWLR (pt.185) 287 at 298-304. It is clear that right from the outset of this despicable saga that the appellant and the other accused persons left Kardi village with the avowed intention apparently fired by the unproven rumour that Abdullahi Alhaji Umaru had insulted Prophet Mohammed to put the deceased to death.

The trial court therefore, rightly in my view held thus: “at p.74 LLI3: “1 am therefore satisfied that 1st, 2nd and 4th accused persons (including the appellant) were equally guilty under section 221 (a) of the Penal Code. I found that the act of accused persons was done with the intention of causing the death of the deceased.” (words in bracket supplied) And I agree and also so hold.”

Reverting to the confessional statement of the appellant Exhibits K and KI, I agree with the submissions of the respondent and also the finding of the trial court that the confessional statement of the appellant as per Exhibits K and K 1 has remained as proved by the prosecution positive, direct, voluntary and consistent confession as to the offences charged and that from the prosecution’s case which the trial court rightly accepted that the appellant had every opportunity as well as all of his co-confederates to commit the offence of murder see: Kanu v. The State (1952) 14 WACA 30 at 32. There are factors external to Exhibits K and KI. I have showed herein in clear support of the trial court’s reliance on Exhibit K and K I to convict the appellant. And as held by the trial court I see no reason therefore, declining to act on appellant’s confessional statement again, particularly when it has been endorsed by a superior police officer attesting to its voluntariness and was tendered at the trial without any objection. In regard to the appellant, Exhibit K and K 1 have not been retracted. The confessional statement is so conclusive as to sustain by itself alone the conviction of the appellant

The appellant has raised questions of contradictions in the testimonies of the prosecution’s witnesses as regards 2nd, 5th and 6th witnesses so much so that I cannot gloss over it. He has dwelt passionately on P.W.2’s evidence as per Exhibit C and his oral testimony before the trial court. Exhibit C, the critical exhibit in this regard, for ease of reference reads as follows:

“I of the above given name and address wish to state that: on Wednesday 14/7/99 at about 2000 hours when I was coming from Randali Garrage, heading to market field, I met with one Mamman Abobo who gist me that Abdullahi Alh. Umaru was said to have abused Prophet Mohammed and that me being his friend shall find a solution to how the friend Abullahi will escape that the issue had even reach the village head but he was not found at home. On hearing this information I later saw Abdullahi then I invited him to his mother Amarya Alh. Umaru and then demanded transport money from the mother to enable Abdullahi leave the town to some where, but the mother said that she have no money to give Abdullahi then I later advice Abdullahi to park his properties and go. Immediately we finish discussing one Shugaban Samari arrive with Dan Ashibi and Oanladi Umaru Giwa and called me, as I went Abdullahi left then these ‘3’ persons still went to the town telling people that I asked Abdullahi to go, and that if they did not see Abdullahi, I will be held responsible with that, I ran to Kardi to find out from one of his friend called Bello Aliyu and Bello told me that he did not see Abdullahi then I told him about the incident that happened, and I also advised him that in case if he see Abdullahi let him take him to the Police Station, or hide him somewhere and ran to inform Inspector Sule Dogon Yaro that my life is in danger that people says if they did not see Abdullahi, they will hold me responsible and that Abdullahi abused Prophet Mohammed, and if he is seen he should be arrested and hidden, then the Inspector told me that he will take care, then I went back to Randali when I was in my room sleeping at about 03 00 hours Mallam Musa Yaro, Shugaban Samari and others came and woke me up and they told me that I was lucky that they have arrested Abdullahi and that did I witness that kind of insult altered to the Prophet I said no, then they all left.

And I later went and woke Shehu Yalliya and Mamman Dan Mallam and went to Kardi to rescue Abdullahi. As we reached Kardi, we met people surrounded with Abdullahi then Mamman Dan Malami who was in possession of tape recorder warned the crowed that, Islamically it is not right to touch whoever abused Prophet Mohammed, but that such person should be taken to the authority concerned. But they insisted, that Mamman Dan Mallam is a fake Moslem they attempted to damage his tape. We made our effort to rescue the deceased, but we were too limited. And after the struggling, one Abu Magaji drew my attention to one side arguing on why Abdullahi must be killed, then one Abu Danbu whom we went together to rescue the deceased later came and informed me that, we have to go home because they have killed Abdullahi then we left back to Randali.”

The pieces of contradictions with regard to P.W 2 as per para.29 at p.20 to para. 32 of the appellant’s brief read thus:

“29. In Exhibit C, he told the police that he invited him (Abdullah) to his mother Amarya Alh. Umaru and then demanded transport money from the mother in his evidence in chief he said On hearing this I returned to the motor park where I met Abdullahi Umaru and called him and went with him to his mother’s place along with one of the brothers of the deceased called Kallamu part of the spicing of his evidence is that. In his evidence in chief is that while he forgot immediately the incident took place to mention that deceased’s brother Kallamu was with him when he took the deceased’s mother, he remembered it in his evidence in chief in Exhibit C he said One Shugaban Samari arrive with Dan Ashibi and Danladi Umaru Giwa and called me, as I went Abdullahi left then these ‘3’ persons still went to the town telling people that I asked Abdullahi to go and that if they did not see Abdullahi I will be held responsible.

30. In his evidence in chief he said: ‘the mother did not give him the money. As we were coming out we met with 3 people namely Mamman Dambu. Dan Ashibi and Daladi Umaru Giwa and they asked me to follow them. We went to the motor park where they looked for Abdullahi but he was not seen as he sneaked away when we were going to the Garage’.

The ‘we’ that ‘were coming out’ including the deceased since he was the one that was taken to his mother’s place. How come he PW2 was seen and deceased was not seen that the have to go looking for him.

3 I. In Exhibit C PW2 wrote:

When I was in my room sleeping at about 0300hrs Mallam Musa Yaro, Shagab and Samari and others. But in spicing up his evidence and in an attempt to rope in the Appellant said I returned to Randali around 3.00am and was in my house when the Ist accused Musa Yaro, one Mamman Dambu, Umaru Kaza (2nd accused), Abdullahi Ada (4th Accused), Suleiman Danta Aunabi (6th Accused) along with some other people whom I did not know woke me up and that I should come out:one begins to wonder why the PW2 failed to mention the names of the 2nd accused person (Appellant) in his Exhibit C which was a statement made two days after the incident but suddenly remember this name in his oral evidence on 19th January, 2000 almost six months after the incident.

32. This witness alleged that he along with some other persons attempted to rescue the deceased but that while were still trying to rescue the deceased, somebody came to inform him that the deceased had been killed. One then wonders where this witness was trying to rescue the deceased that somebody has to come from somewhere to inform him that the deceased whom this witness was trying to rescue had been killed.”

It is submitted that these alleged contradictions go to the root of the entirety of the prosecution’s case against the appellant and ought to have been countenanced by the trial court and even more so by the court below. And, that if it had been upheld it would have left the prosecution’s case weak, insufficient and unreliable and devoid of any credible materials to sustain the conviction of the appellant. See Ani v. State (2003) 11 NWLR (pt.830) 142 at 162 paras. B-D, pt. 166. A-B, at 171 para. D-G., Akpabio v. The State (1994) 7 NWLR (Pt.359) 655) at 660-661 Paras. G-A, at 664 paras.D-E.

Respectfully, I think the appellant’s complaints here amount to no more than a storm in the tea cup. I entirely agree with the respondent’s statement of the law at paragraph 7.4 of the respondent’s brief of argument on this question to the effect that

“there can only be contradictory evidence where a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated not when there is just a minor discrepancy between them. Thus, for any conflict or contradiction in the evidence of the prosecution witnesses to be fatal to the case, it must be fundamental to the main issues before the court ….. ” See Agbo v. The State.

I have more or less rehearsed the areas of contradictions as raised as per the appellant’s brief of argument vis-a-vis the evidence of the prosecution’s witnesses at the trial court and I find no such conflicts or contradictions but minor discrepancies or inconsistencies in the testimonies of P.W.2 and P.W.S at the trial in terms of chronology or sequence of events. This is only natural in a case of this kind and they are as can be expected in human affairs. There is no merit on this question and I reject the insinuation.

In the result, issue I is resoundingly resolved against the appellant.

On issue 3 i.e. on whether the defences of provocation and justification avail the appellant, if I may add, on the peculiar circumstances of this case. The appellant in his brief of argument has left no stone unturned in making his point in this regard. It is trite law that a court trying a criminal case as here must consider all the defences raised by the accused and all other defences which surfaced in the evidence before the court however slight or minor. See: Ahmed v. The State (1999) 7 NWLR (pt.612) 641 at 679 para. D. Having taken the point in this regard, the appellant has, therefore submitted that the killing of the deceased was done in retaliation for insulting Prophet Mohammed as clearly borne out by Exhibits K and K I i.e. the voluntary statements of the appellant.

It is settled that for an accused as the appellant here to avail himself of this defence he has to satisfy certain conditions as stipulated under S.45 of the Penal Code which reads as follows:

“45 Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be justified by law in doing it.”

The conditions for the defence of justification to apply arising from the foregoing provisions are:

“(1) That the criminal act is justified by law

(2) That the criminal act was done as a result of mistake of fact not mistake of law.

(3) That the act was done in good faith believing same to be justified by law in doing it.”

See: Lado v. The State (1999) 9 NWLR (pt.619) 369 at 381; R v. Adamu (1944) 10 WACA 161; Aka1ezi v. The State (1993) 2 NWLR (pt.2730 1 at 14; Ubani v. The State (2001) FWLR (pt.44) 483 at 490; Ekpenyong v.The State (1993) 5 NWLR (pt.295) 513 at 522. I hold the view that the appellant’s claim to the defence of justification is wrong footed on the premises that he cannot excuse himself of this heinous crime by contending that owing to his ignorance of the law he did not realise that the act of killing the deceased on the peculiar facts of this matter is a crime. After all, entitlement to this defence has to be rooted in good faith, which is not the case here.

It is also, significant here that the only evidence the appellant and his co-confederates have against the deceased is the unproven rumour that the appellant and his co-accused overheard, that is, hearsay allegation that the deceased had insulted Prophet Mohammed in a neighbouring village of Randali. And it is noteworthy that what constitutes the content of the insult so far has remained a mirage to the courts below and so also this has disabled the respondent to refute it. Even then, on this ground alone, in my respective view, it is not open to the courts below to speculate on the words of the abusive insult. I therefore hold that there is no iota of evidence in the prosecution’s case including Exhibit K and Kl on the appellant’s confessional statement to sustain a plea of justification for the dastardly act of killing the deceased by slaughtering him like a goat, I therefore, agree with the respondent’s submission that the courts below cannot give the appellant the benefit of this defence as it is not supported by evidence on the record: see Abara v. The State (1981) 2 LNRC 110 at 117.

The appellant also has taken issue with the failure of the courts below to give due consideration to the defence of provocation. Section 221 (1) of the Penal Code has provided for this defence and it reads:

“221(1) Culpable homicide is not punishable with death if the offender whilst deprived of the power of self control by grave and sudden provocation causes the death of any other person by mistake or accident.”

Therefore, for the appellant or an accused person to avail himself of this defence he has to establish by evidence the following conditions to wit:

“(a) That the act of provocation is grave and sudden

(b) That accused lost self control, actual and reasonable

(c) The degree of retaliation by the accused person must be proportionate to the provocation offered. See Ihuebek v. The State (2006) 5 SCNCR 186 (vol.2) and Shande v. The State (2005) 22 NSCQR 756. ”

Again, if I must repeat, this defence as in the case of justification cannot be taken or indeed discussed in vacuo. By its peculiar nature it must be predicated upon the evidence accepted by the court. Again, if I must repeat, and even more importantly the evidence upon which the appellant as well as his co-accused has rooted his plea of provocation is the overhearing of the rumour making rounds in Randali village that the deceased insulted Prophet Mohammed (SA W). As I stated earlier the exact insultive words have not been proved to the courts below as there is no evidence to that effect and so it is a fundamental flaw and must fail. The appellant, if I may recall, did not give evidence in his own defence at the trial having rested his case on the prosecution’s case. Meaning in effect that the defence of provocation is as founded, if at all, as per the case of the prosecution. And in the absence of the exact insultive words uttered by the deceased about Prophet Mohammed there can be no basis for considering the defence of provocation; it is even not clear to whom the insultive words were uttered certainly not to the appellant. He has not contended that the words were directed to him. I wonder if the defence of provocation could avail him on these facts. It cannot in this instance be taken in vacuo as it would tantamount to working on mere speculation and so, it is a nonstarter.

On the foregoing basis it is not possible to determine whether the defence avails the appellant. See Ahmed v. The State (1999) 7 NWLR (pt.612) 641 at 684. Idemudia v. The State (1992) 7 NWLR 356.

Therefore, it does not arise for consideration in this case whether the insultive words were even uttered to the appellant or could be sustained on mere rumour. Even more so, the provocative act as reported by the co-accused, Musa Yaro, the 1st accused, cannot in law be a ground for the appellant to kill the deceased, it is too far fetched to say the least.

In conclusion, I find no merit in the appeal; the court below rightly in my view rejected the plea of provocation as it is on the whole highly speculative. I also resolve this issue against the appellant.

Finally, this appeal is unmeritorious. I dismiss it and uphold the conviction and sentence passed on the appellant by the trial court is affirmed by the court below.

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SC.212/2004

Alhassan Maiyaki V. The State (2008)

LAWGLOBAL HUB Lead Judgment Report

P.O. ADEREMI, J.S.C.

This is an appeal against the decision of the Court of Appeal (Jos Division) holden at Jos, which has, in a considered judgment delivered on the 25th of April 2007, dismissed the appeal against the judgment of the Yobe State High Court sitting at Potiskum in Potiskum Judicial Division.

In the court of first instance (High Court sitting at Potiskum) the appellant was charged with causing the death of Habu Usman of Potiskum at the Texaco Filling Station on the 7th day of June 2004 by shooting him (Habu Usman) on the head with his (appellant) rifle in the cause of struggles with others with the knowledge that the death of the deceased would be the probable consequence of his act. The case proceeded to trial before the court of first instance and after concluding evidence on both sides and sequel to taking the final addresses of counsel on both sides, the trial judge, in a reserved judgment delivered on the 21st of June 2005, convicted the appellant of the offence and consequently sentenced him to death. In so doing, the trial judge held inter alia:-

“From the entire case, I tried to see what defences are available to the accused other, other than the only single defence of accident but I could not find any. I must therefore say that the accused was negligent in his conduct. Generally, in a criminal trial, it is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence and that it was his act which caused the offence. In the instant case, evidence abound (sic) and infact that was conceded to even by counsel for the accused that a human being died; one Habu Usman that it was the act of the accused that caused the death. What was disputed by counsel was the intention or necessary mens rea which according to counsel for the accused, was lacking. However, in my considered view, having considered the entire circumstances of this case particularly taking into account the nature of the weapon used, the force applied and the part of the body affected by the act of the accused, I am not left in any doubt that the accused actually intended killing the deceased and no more and he thus succeeded.”

Dissatisfied with the judgment of the trial court, the appellant appealed therefrom to the court below (Court of Appeal). That court dismissed the appeal and in so doing, it held inter alia: –

“Considering that the appellant is a policeman who has been trained to handle a gun, the shooting of the gun by the appellant directly on the head of the deceased will only infer that the appellant has by this singular act intended to cause the death of the deceased and the learned trial judge had rightly found so….In the instant case, the appellant having failed to adduce evidence to show that the act of the shooting of the deceased was accidental, the only inference was that the act itself was intentional the defence of accidental discharge will thus not avail the appellant in the instant case and I so hold.”

Again, dissatisfied with the judgment of the court below, he appealed to this court via a Notice of Appeal which has incorporated into it nine grounds of appeal. The appellant and the respondent filed their respective briefs of argument.

When this appeal came before us for argument on 17th April 2008, Mr. Paul, learned counsel for the appellant, referred to, adopted and relied on his client’s brief of argument and while referring us to the evidence of DW2 – Sgt. Ibrahim Bello – who was described as a key witness and who gave evidence of accidental discharge by the appellant; he submitted that the evidence of accidental discharge be believed and consequently, the appeal be allowed. Mr. Kehinde, learned counsel for the respondent, referred to, adopted and relied on the respondent’s brief of argument filed on 12th December 2007, he urged that the concurrent findings of the two courts below be not disturbed, the judgment of the court below be affirmed while the appeal be dismissed.

As I have said, both the appellant and the respondent did exchange their briefs of argument after filing same. Distilled from the nine grounds of appeal by the appellant and as set out in his brief of argument are five issues which are in the following terms:

(1) Whether the lower court was right in upholding the judgment of the trial court that the defence of accident was not made out by the appellant.

(2) Whether the lower court was right when it declined to interfere with the findings of the trial court on the ground that the trial court had properly evaluated the evidence before it when in fact the trial court did not properly evaluate the evidence.

(3) Whether the lower court was not in error when it failed to set aside the conviction of the appellant by the trial court in view of the manifest irreconcilable material contradictions in the evidence of the prosecution’s witnesses.

(4) Whether the lower court was right in raising the presumption of withholding evidence against the appellant for failure to call the other policemen passengers and drivers as defence witnesses.

(5) Having regard to the entire evidence before the trial court, whether the lower court was right in its conclusion that none of the defences raised by the appellant before the trial court availed him.

For their part, the respondent identified four issues from the said nine grounds of appeal for determination and, as contained in their brief of argument, they are as follows: –

(1) Whether the learned justices of the Court of Appeal were right by declining to interfere with the findings of the trial court on the ground that the trial court had properly evaluated the evidence before it.

(2) Whether the learned justices of the Court of Appeal were right in upholding the trial court’s

decision that none of the defences raised by the appellant can avail him.

(3) Whether the learned justices of the Court of Appeal were right in upholding the trial court’s

decision that the defence of accident is not available to the appellant.

(4) Was the appellant (sic) conviction rightly upheld in the face of contradiction in the

evidence of the prosecution.

I have had a close study of the two sets of issues identified by the appellant and the respondent for determination in this appeal. A marriage of the two sets leaves me in no doubt that two cardinal or fundamental issues are thrown up by the said two sets and they are:-

(1) Whether the prosecution proved the charge of murder of Habu Usman against the Appellant (Alhassan Mai Yaki) beyond reasonable doubt.

and (2) Whether the appellant adduced credible and satisfactory evidence in support of his defence of accidental discharge.

The appellant had argued in his brief of argument filed on 23rd August 2007 that from the totality of the testimonies of the witness that testified before the trial court, there is no evidence linking the appellant with the murder of Habu Usman; there was no proper evaluation of the evidence of DW1 and DW2. It was also his argument that the evidence of PW3 – Abubakar Musa – contradicts his statement to the Police which statement was admitted in evidence as exhibit D; and that similarly PW4 – Abdullahi Hassan – contradicted himself in that his viva voce evidence before the trial court is at variance with this statement to the Police tendered and admitted as exhibit “E”. It cannot therefore be said that the case was proved beyond reasonable doubt it was further argued while relying on the decision in Uwaekweghinya v. State (2005) NWLR (pt. 930) 227.

On the portion of the judgment of the trial court where it was held that the failure of the appellant to call the other Policemen, drivers and passengers who were eye witnesses raised a presumption that the testimonies of these persons would have been disadvantageous to the appellant which finding was upheld by the court below. It was again argued that it was never demonstrated or even suggested before any of the two lower courts that the appellant withheld these people from coming to testify; the lower court, it was then submitted was in error when it raised the presumption of withholding evidence against the appellant, adding that the error led to miscarriage of justice. On the issue of defence of accidental discharge, the appellant submitted that the defence was not given a thorough consideration having regard to the evidence led; adding that the facts are consistent with the defence of accident raised by the appellant.

In its own brief, the respondent submitted that to secure a conviction on murder charge contrary to Section 221 (a) of the Penal Code, the prosecution must prove the ingredients of the offence beyond reasonable doubt. After reviewing the evidence led at the trial and the entire circumstances of the case particularly taking into account the nature of the weapon used, the force applied and part of the body of the deceased affected by the act of the accused, it was submitted that the accused knew or would have reason to believe that death would be the likely consequence of his action. Evidence of PW3 and PW4 amply supports this contention it was again argued. On the defence of accidental discharge, it was submitted that there was no dispute that the appellant was carrying a gun on that day, no dispute that it was the bullet from the appellant’s gun that killed the deceased; there is no evidence of any struggle to collect the gun from the appellant either by the deceased or any person or group of persons that defence (accident) is therefore not available to him (appellant) and the trial judge was therefore right in his consideration of the defence of accident and by a similar token, the court below was right in upholding the decision of the trial court on that defence. On the issue of contradiction in the evidence of the prosecution witnesses, particularly the evidence of PW3 and PW4; after reviewing the testimonies of the aforesaid two witnesses, it was submitted that contradiction, if any, between the testimonies of PW3 and PW4 was not material and substantial as to affect case of the prosecution; reliance was placed on such cases as (I) Ibrahim v. The State (1991) 4 NWLR (pt.186) 399, (2) Nasamu v. The State (1979) 6-9 S.C. 153 and (3) Atano v. A-G Bendel State (1988) 2 NWLR (pt.75) 201. It was finally urged on us to dismiss the appeal and uphold the judgment of the court below.

As I have said above, the two cardinal issues for determination in this appeal are (1) whether the prosecution has proved beyond all reasonable doubt the charge of murder against the appellant and (2) whether from the evidence available, the defence of accidental discharge will avail the appellant. The appellant was charged at the court of trial (Yobe State High Court of Justice) with culpable homicide punishable with death in that he was alleged to have caused the death of one Habu Usman of Potiskum Town on the 7th of June 2004 by doing an act to wit _ shooting the head of the deceased with his (appellant) rifle. From plethora of judicial authorities, it is now well settled that to secure a conviction on a charge of murder, the prosecution must prove:

(1) that the deceased had died.

(2) That the death of the deceased had resulted from the act of the appellant; and

(3) that the act or omission of the accused which caused the death of the deceased was intentional with the full knowledge that death or grievous bodily harm was its probable consequences. See (1) Daniels v. The State (1991) 8 NWLR (pt. 212) 715; (2) Fred Dapere Gira v. The State (1996) 4 NWLR (pt.443) 375 and (3) Nwaeze v. The State (1996) 2 NWLR (pt.428) 1. These three ingredients must co-exist and where one of them is absent or tainted with some doubt, the charge cannot be said to have been proved. See (1) Obudu v. The State (1991) 6 NWLR (pt.198) 433, (2) Ogba v. The State (1992) 2 NWLR (pt.222) 164.

PW3 – one Abubakar Musa, an artist while giving evidence said a luxurious bus in which the appellant was travelling together with some other passengers stopped at their place of business near the Texaco Petrol Station and he said others said the bus should not park there as the passengers of such buses always alighted from their vehicles and urinate around the area. But the appellant, to his hearing, asked all the passengers to alight from the vehicle and urinate there. The deceased, by name Mallam Habu, who was a security man at the filling station told the passengers to go further and urinate. The appellant, he said, stepped back and shot at the security man- Mallam Habu. The other escort in the luxurious bus immediately shot into the air to scare away people while the passengers ran into the bus and they all immediately left in the bus leaving the dead body there. He was emphatic that it was the appellant that shot the deceased. He was not shaken under cross examination. PW 4 – one Abdullahi Hassan, a fuel dealer selling fuel at Texaco Petrol Station who was also present at the scene on 6th June 2004 corroborated the evidence of PW3 in all material respect when he said the appellant along with others alighted from a luxurious bus and were urinating when the security man – Habu Abubakar – the deceased told the passengers not to urinate at that place; the appellant, he continued his evidence, urinated there and cocked his rifle and shot the security man Habu Abubakar. He reported the incident to the owner of the Texaco Petrol Station who came out with him to have a look at the dead body of Habu Abubakar. He was emphatic that Habu Abubakar was shot on his head, He like PW3 said he made statement to the Police, He was not shaken under cross-examination, With his evidence, the prosecution closed its case, DWI was Alhassan Mai Yaki – the appellant, said on their journey in the luxurious bus from Lagos to Maiduguri, the driver stopped at Texaco Petrol Station Potiskum at the instance of the passengers who said they wanted to pray, Continuing, he said as the passengers alighted from the vehicle and while some were performing their ablution, he saw some group of men who were holding iron and sticks beating the passengers; his colleague escort – Ibrahim Bello also urinated at the same site and some people went and grabbed him along with his gun, He claimed he was about five to seven feet away from where Bello was standing struggling with the men and shouting that they wanted to snatch his gun, He (appellant) claimed he rushed to where Bello was and while hanging his (appellant) gun, he held on to Bello’s gun struggling with the men and, according to him, unfortunately his hand touched the trigger and it went off He admitted that boy died as a result He claimed he did not kill the DW2 – Sgt Ibrahim Bello – the second escort corroborated the evidence of DW1 as to his (DW1) coming to rescue him from the people and in the process an accidental discharge occurred, He also made a statement to the Police, When they left Potiskum, they did not stop at Damagun it was Damaturu where they stopped and made a report. Under cross-examination DW2 said and I quote him: –

“It is correct that the accused person was the one who shot the deceased. The accused was in the

process of rescuing me when he shot.”

As I have said earlier in this case, the defence of the appellant is that Habu Abubakar died as a result of accidental discharge from his gun. The defence of accident is clearly defined in Section 48 of the Penal Code which is applicable to this case; that section says:

“Nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the course of doing a lawful act in a lawful manner by lawful means and with proper care and caution.”

Suffice it to say that Section 48 of the Penal Code is in pari material with Section 24 of the Criminal Code applicable generally to the southern part of the geographical entity called Nigeria. If I may go further, I wish to say that the provisions of Section 48 of the Penal Code and Section 24 of the Criminal Code are in line with the rules of English Law relating to mens rea under which a person should not be convicted of an offence unless he has a guilty mind. Going by the wording of the said section 48 of the Penal Code, it is quite clear to me that the defence of accident presupposes that the accused physically committed the offence with which he is charged, but having regard to the facts which he admits, all the same he should be acquitted because his conduct in the commission of the offence was an accident. For an accident is generally regarded as the result of an unwilled act and is understood to be an event without the fault of the person alleged to have caused it. It follows from the above that where an accused person raises the defence of an accident as in the present appeal, the onus still remains on the prosecution to prove its case beyond reasonable doubt by leading credible and admissible evidence to negate the defence and of course convince the trial court that the defence does not avail the accused person. See (1) Chukwu v. The State (1992)1 NWLR (Pt. 217) 255 and (2) Bello & Ors v. A-G Oyo State (1986) 5 NWLR (Pt. 45) 828.

I have set out above the ingredients which the prosecution must prove to earn conviction for murder. From the evidence before the trial judge, it admits of no argument that Habu Usman died and that his death was as a result of the gun shot which resulted from the appellant’s act. Whether the death was brought about by the intentional act of the appellant Which to his (appellant) knowledge would reasonably cause the death of the deceased (Habu Usman) is what I shall now examine anon .. Let me however quickly say that in our jurisprudence, a man is taken to have intended the natural consequences of his act. But for the dcfence of accident raised by the appellant, I would not have had any hesitation in coming to the conclusion that the act of the appellant was intentional and therefore, the three ingredients that must co-exist in law to earn conviction were present here. And I would have come to the conclusion that the prosecution had discharged its duty. What is the evidence in support of this defence DWI – Alhassan Mai Yaki – the appellant said in his evidence before the trial court inter alia: –

“As the passengers alighted from the vehicle and which some were performing their ablution some group of men holding iron and sticks started beating the passengers. Some of the passengers had started praying while others ran into the vehicle. My colleague escort-Ibrahim Bello also urinated at the site and the group of people went and grabbed him along with his gun. I was about 5 – 7 feet away so I rushed to him. I hanged my gun and I held his gun struggling with the people and unfortunately my hand touched the trigger and it went up (sic). A boy died as a result.”

As I have said earlier, the appellant said he made statement to the Police. Indeed, the appellant made two written statements to the Police. In the first one he made on the 7th of June 2004, the appellant said inter alia:-

“On reaching Potiskum town in Yobe State at about 07.20 hours some Muslim passengers inside the vehicle pleaded to the driver in order to pray and he driver stopped near Texaco filling station along Maiduguri Road. Immediately the vehicle stopped the passengers went out to urinate at the other side of the road. However, one of the escorts also went to urinate, by then there were some people sitting on top of an un-completed building numbering about ten. So they went and brought some sticks and started beating the passengers saying that why are they urinating at that place. Meanwhile, five out of the men went and attacked Sgt. Ibrahim Bello who was also urinating struggling to disarm him. So 1 quickly rushed for (sic) his rescue as well as Sgt. Jimoh Adenugba. In fact, during this development , I heard a sound of gun shot while there was a heavy cram (sic) in which it became difficult for me to know the person who fired that rifle/gun.”

The appellant made a second statement to the Police on the 8th of June 2004; in it he said inter alia: –

“On the 7/6/04 at about 07.20 hours when I saw some youths attacking Sgt. Ibrahim Bello in order to collect his rifle, I went there to rescue him from the hands of the youths. When the youths were struggling to snatch the rifle “from him, accidentally my hand touched the trigger of his riffle and fired somebody as I was trying to separate them. I did not intentionally mean to fire anybody. It was an accidental discharge.”

In the first statement he made to the Police on the 7th of June 2004, he never raised the defence of accidental discharge. Again, in his second statement made on the 8th of June 2004, all he said was that his hand accidentally touched the trigger of the rifle of Sgt. Ibrahim Bello who incidentally is DW2. He did not say that he accidentally touched the trigger of his own (appeI1ant) rifle. DW2 also testified before the trial court confirming that the appellant came to his rescue when he was attacked by the mob and, according to him, it was at that moment that an accidental discharge occurred. He did not mince his words in saying that the appellant shot the deceased on the head.

As I have said, if the defence of accidental discharge were successfully set up in the present case, it would certainly relieve the appellant of criminal responsibility as it would constitute a negation of any deliberate act or omission on his (appellant) part. See Chukwu v.The State (1992) 1 NWLR (pt.217) 253. For the defence to avail an accused person, it must be raised timeously. In his evidence before the trial court, the appellant never admitted that he pulled the trigger of his rifle and consequently shot the head of the deceased. In his first statement to the Police, he said he suddenly heard a gun shot; he would not know who released the gun shot; of course, he never admitted he shot the deceased. But in his (appellant) second statement, he said in the course of his trying to rescue DW2 Sgt. Bello his (appellant) accidentally touched the trigger of DW2’s rifle and the shot was let go. These are inconsistent statements and the evidence of the appellant thus became tainted. That defence was not even raised timeously by the appellant; and he (appellant) was. even very economical as to the truth of the matter in his second statement. This again makes his testimony unreliable. Can it then be said, in law that the defence was successfully set up My answer, from the evidence on record, is in the negative. The appellant made a spirited effort to save the day for himself by contending that there were contradictions in the evidence of the prosecution witnesses. I have carefully gone through the record; there is no material contradiction in the evidence of the prosecution adduced to prove the murder case.

In the final analysis, and for all I have been saying, this appeal is devoid of any merit. It must be dismissed and I hereby accordingly dismiss it. I affirm the judgment of the court below which itself has accorded approval to the judgment of the trial court delivered in the High Court of Yobe State delivered on 21/6/GS wherein it convicted and sentenced the appellant for culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code.

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SC.218/2007

R. O. Iyere V. Bendel Feed And Flour Mill Ltd (2008)

LAWGLOBAL HUB Lead Judgment Report

I.T. MUHAMMAD, J.S.C.

The appellant herein, as plaintiff at the High Court of Edo State, holden at Ekpoma in Ekpomu judicial division, was employed by the defendant (respondent in this appeal) as SILO attendant at the defendants Feed and Flour mill at Ewu. The plaintiff claimed that on the 7th of August, 1991, he was in the course of his said employment assigned to the duty operator in the absence of the production manager and the suo superintendent to discharge a truck of fish mill along with his colleagues. The plaintiff averred that during the process of discharge there was frequent stoppage of intake of materials which he said he reported to the duty operator who confirmed to him that he was aware of the problem. The duty operator was one D. Agbator who, as usual assigned the plaintiff to clear the conveyor or running machine to check the constant stoppage of intake of materials by the running machine. Plaintiff said that he obeyed the switch operator. Plaintiff left the switch operator at the switch room and went down the mill below to clear the blockage on the instructions of the operator (employee of the defendant). While the plaintiff was downstairs clearing the blockage with his right hand, the defendant’s switch operator started running the machine without waiting for a feedback or clearance from the plaintiff and the running machine caught the plaintiffs right arm and damaged it. The plaintiff furnished particulars of the damage as follows:-

a) The right upper limb or hand suffered a fracture of the radius and transverse fracture of the ulna

b) A creep punctured wound at the dorsal aspect of the forearm

c) Bruises at anterior limb and

d) Deformity of the forearm.

As a result, plaintiff was operated upon on 8th August, 1991. The plaintiff averred that the said injuries, loss and damages were occasioned to him by reason of the negligence and or breach of duty on the part of the defendant, its servant, agents or employees. Plaintiff gave particulars of such negligence which caused him permanent deformity as he can no longer use his right hand to do any hard labour or carry a brief case or object. Plaintiff’s appointment with the defendant was later terminated on the 14th of February, 1994. Plaintiff averred that the purported termination of has employment is illegal, wrongful, unreasonable, unconstitutional and of no legal consequence. The plaintiff claims against the defendant the sum of N5,000,000.00 (Five million naira) being special and general damages.

The defendant, in its amended statement of defence denied every material, allegations contained in the plaintiff’s statement of claim save and except those facts which have been expressly and specifically admitted by it and put the plaintiff to the strictest proof of those facts denied. The defendant went further to aver that it did not assign the plaintiff to clear the conveyor or the running machine since there was no fault whatsoever and that the plaintiff was never sent by the defendant or by any of its agents to clear the alleged blockage. The plaintiff’s going down the stairs was not known to the operator of the mill and it was a sole decision taken by the plaintiff which was not authorized by the defendant and its agents. The defendant averred further that after the alleged industrial accident the plaintiff was immediately taken to Nazareth Hospital, Furgar on the same day, i.e. August 7th, 1991. He was given intensive medical treatment on the account of the defendant that by 23rd August, 1991, he was discharged from the hospital after the operation. He was however advised to be coming to Nazareth Hospital at regular intervals. He was responding to treatment. However, to the dismay of, the defendant and the management of Nazareth Hospital, the plaintiff abandoned the, medical treatment and opted for native treatment as a result of which the hospital was unable to write a final medical report on him. This made it impossible for the defendant’s insurance company to pay any compensation. The defendant placed reliance on several documents. The defendant averred in relation to the termination of plaintiff’s employment that it terminated his employment in accordance with plaintiff’s contract of service. The defendant urged the trial court to dismiss the suit as being vexatious and an abuse of process. The defendant contended that it was not liable to the plaintiff in the sum of N5,000,000.00 or any sum at all.

The suit proceeded to trial stage with both parties calling witnesses. After full hearing the learned trial judge found the suit “incompetent ab initio”. He dismissed the case.

Dissatisfied with the trial court’s decision, the appellant appealed to the court of Appeal Benin Division (court below). After having reviewed the proceedings at the trial court and submissions by respective counsel, the court below dismissed the appeal.

Aggrieved further by the decision of the court below, the appellant filed his appeal to this court.

In this court, parties filed and exchanged their respective briefs of argument.

Learned counsel for the appellant formulated two issues viz:

1. “Whether failure to join the respondent’s duty operator, one D. Agbator, as a defendant in the action against his master is fatal to the appellant’s claim see , grounds 1, 2.
2. Whether the Court of Appeal was right to dismiss the appellant’s claim founded on negligence see grounds 2”.

Learned counsel for the respondent formulated one issue which reads as follows:-

“Whether the Court of Appeal was right in its decision that the appellant had failed to prove his claim against the respondent at the trial court.”

In treating this appeal, I prefer the issues formulated by the appellant. In his submission on issue 1, learned counsel for the appellant argued that the appellant was an employee of the respondent. He testified to the effect that the respondent owed him a duty of care and in breach, its servant, one D. Agbator (appellant’s boss) on duty recklessly set the machine on after sending appellant underground to clear the blockage on the running conveyor and did so without waiting to get clearance from the appellant. Learned counsel submitted further that failure to join the respondent’s agent, who caused the injuries to the appellant is not fatal to appellant’s claim for he is at liberty to pick and choose who, between the employer and its servants, he was to sue. He cited and relied on the case of Ifeanyi Chukwu (Osondu) Co. Ltd. v. Soleh Boneh (Nig.) Ltd. (2000) 5 NWLR:(Pt.656) 366 at 367.

Learned counsel for the respondent submitted that the appellant has urged this court to reverse the judgment of the lower court on the ground that “non joinder” of A. D. Agbator is no longer necessary in the proof of negligence. This, he argued, is a wrong proposition. He buttressed his argument with two grounds

[i] Judgment of the court below was not based on non joinder alone. The court below was properly invited and it rightly pronounced on all issues raised including the non-joinder of D. Agbator. Learned ccounsel cited and relied on Nwokedi v. Egbe (2005) 9 NWLR (Pt.930) 293 at pages 306 – 307 H – C; Royal Ade (Nig.) Ltd. V INOCM Co. Plc (2004) 8 NWLR (Pt.874) 206 at page 226 C-D, 227 E-F

[ii] that in the case of Ifeanyi Chukwu Osondu Co. Ltd v. Soleh Boneh (Nig.) Ltd, (supra) cited by the appellant, it was stated clearly therein that in the absence of proof of negligence by the appellant against the respondent, no question of liability can arise. The fact that D. Agbator was not called as a witness by the appellant was fatal to his case.

In resolving this issue, I find it pertinent to revisit the facts giving rise to this appeal. There is no dispute that the appellant from his appointment uptill the 14th of February, 1994, had been an employee of the respondent. The fact of the appointment was averred to by the appellant in paragraph 3 of his statement of claim. The respondent admitted that fact in paragraph one of its amended statement of defence. It is trite law that facts admitted require no further proof. See: Odunsi v. Bamgbola (1995) 7 NWLR (Pt. 374) 641; Bajoden v. Iromwanimu (1995) 7 NWLR (Pt. 410) 655.

Appellant was appointed as a SILO ATTENDANT with the respondent. As the trial court did not consider the merit of the case, there is no finding of that court on the issue of employment and or its termination. The court below, however, made the following findings:

“there is no doubt from the facts of this case as borne by the records that the respondent owed the appellant a duty of care on 7th August, 1991 when the appellant with some other workers of the respondent were discharging a truck load of fish mill for the respondent.”

Consequent upon the above averment, admission and subsequent findings by the court below, it is important to state that although much of modern employment law is contained in statutes and statutory instruments, the legal basis of employment (by whatever means) remains the contract of employment between the employer and the employee. The contract of employment is important in itself, in that it may give rise to a common law action for its enforcement or for damages for its breach. I should add that an employee, except where a different meaning is given in the con of the employment, means an individual who has entered into or works under, or where the employment has ceased, worked under, a contract of employment. A contract of employment connotes a contract of service or apprenticeship, whether express or implied, and if it is express, whether it is oral or in writing.

The general requirement of the law where there exists a service relationship between employer and employee is that the former is under a duty to take reasonable care for the safety of the latter in all the circumstances of the case so as not to expose him to an unnecessary risk. See Latimer v. AEC Ltd. (1953) AC 643. The level of this duty is the same as that of the employer’s common law duty of care in the law of negligence.

Thus, in relation to his averments in paragraphs 4 to 17 of the statement of claim, the appellant averred as follows:

“4. The plaintiff says that it was the duty of the defendant to take all reasonable prevention either by itself or through his (sic) agents, servants or employees for the safety of the plaintiff while he was engaged upon his work as a silo attendant assigned to the mill and not to expose the plaintiff to risk of damage or injury, and to provide and maintain adequate and suitable plants and appliances to enable the plaintiff to carry out his work in safety.

5. The plaintiff says that on 7th August, 1991 he was in the course of his said employment assigned to the duty operator in the absence of the production manager and the silo superintendent, to discharge a truck of fish mill along with his colleagues.
6. The plaintiff says that during the process of discharge there was a frequent stoppage of intake of materials.
7. The plaintiff says that he came to report the stoppage or the running machine to the duty operator who confirmed that he was aware of the problem.
8. The plaintiff says that the duty operator was one D. Agbator and as usual he assigned me to clear the conveyor or running machine to check the constant stoppage or intake of materials by the running machine.
9. That plaintiff says he obeyed the defendant’s switch operator and left him at the switch room and went down the mill below to clear the blockage on the instructions of the employee of the defendant.
10. The plaintiff says that while he was downstairs clearing the blockage with his right hand and while still clearing the blockage the defendant an operator at the switch room upstairs started running the machine without waiting for a feedback or clearance from him and the running machine caught the plaintiff’s right arm and damaged it.
11. The plaintiff says that in consequence of the defendant’s operator’s act of starting the machine while he was still in the process of clearing the blockage on Agbator’s own instruction, he sustained injuries and has suffered pains, shock suffering, loss and damage.
12. The plaintiff says that the said injuries and loss and damage were occasioned to the plaintiff by reason of the negligence and/or breach of duty on the part of the defendant, its servants or agents or employee,
13. The plaintiff says that the defendant company’s negligence has caused him permanent deformity as he can no longer use his right hand to do any hard labour or even to carry a heavy brief case or object, .
14. The plaintiff says that the defendant having rendered him useless for life purportedly terminated his appointment on 14th February, 1994. This letter shall be relied upon at the hearing.
15. The plaintiff says that the purported termination is illegal wrongful, unreasonable, unconstitutional and of no legal consequence. ”

Although most of the averments above were denied by the respondent and put the appellant to the strictest proof, the appellant testified and called one witness to establish his claim. The, learned trial judge refused to give any provative value to the evidence placed before him. He determined the case on the premise that there was non-joinder of a necessary party, Mr. D. Agbator. The learned trial judge stated, inter alia:

“In the instant case, the plaintiff (sic) (defendant) is a juristic person and not a biological person and it can only be liable in negligence when such officer is joined in the action and his liability established. D. Agbator is a necessary party to be joined in this suit as he is the principal tortfeasor, This the plaintiff has failed to do. The non joinder of D. Agbator to this proceeding is fatal to the claim. In as much as (his action is incompetent ab initio), I should not waste my time, going into the merits of this case. The case is hereby dismissed accordingly with N500.00 cost to the defendant.

The court below based its affirmation of the trial court’s judgment partly on this reason and on failure of the appellant to establish case of negligence against the respondent. On the issue of non-joinder of Mr. D. Agbator, there is a finding by the learned trial judge that Mr.D. Agbator, “is the principal tortfeasor” “a servant of the defendant company and a necessary party to be joined in the suit for the appellant to succeed follows:

The court below affirmed so. It stated among other things, per Rowland, J.C.A; as follows:

“Thus, quite apart from the failure of the appellant to sufficiently prove his case against the respondent, , the non-joinder of D. Agbator as a defendant by the appellant to the proceedings at the court below is fatal to his claim. I therefore need say no more.”

Now, what was the position and assignment of Mr. D. Agbator with the respondent and in relation to the appellant From the averments and evidence of the appellant, Mr. D. Agbator was a duty operator/switch operator. He was a “boss” to the appellant. In his evidence in chief, the appellant stated:

“I was in my place of work. As we were discharging a truck of fish meal (sic) to the silo and there was a blockage by the conveyor I now went to the operator one D. Agbator. He told me that he was aware of the fault and that I should go into the underground to clear the blockage. I went underground. As I was clearing the blockage, Agbator started the machine. He did not let me come to tell him that f had finished the clearing before he started the machine. As a result my hand twisted in the machine and I started to shout which attracted my colleagues who now came to meet me underground. My right hand was broken. I was rushed to the clinic in our company.”

While being cross-examined by learned counsel for the respondent, the appellant stated:

“I resumed work with the company in April, 1992. I was working in the silo as silo attendant. I was a labourer who could be sent to work anywhere. On that day Agbator send (sic) me underground to clear the blockage.. Agbator was the most senior that night and … was my boss. I took orders from him.”

So, irrespective of their different status, both the appellant and Mr. D. Agbator were employees of the respondent Could Mr D. Agbator as an employee be “a principal tortfeasor” or an “agent” of the respondent as variously described in the judgments of the two courts below

In the law of agency, the relationship which arises when a person called “agent”, acts on behalf of another called “principal”, whereby the latter undertakes to be answerable for the lawful acts the former does within the scope of his authority, is what amounts to agency. Liability falls on the principal where he gives his agent express authority to do a tortous act or that which results in a tort. He may also be liable for a tort committed by his agent while acting within the scope of his implied authority. But where the tort by the agent falls entirely outside the scope of his authority, the principal is not liable.

In case of a tortfeasor each of two or more joint tortfeasors is liable for the entire damage resulting from the tort. See: De Bodreugam v. Arcedekere (1302) YO 30 Edw 1 (Rolls series) 106. The following for instance, are joint tortfeasors:

1. Employer and employee where the employer is vicariously liable for the tort of the employee.
2. Principal and agent where the principal is liable for the tort of the agent.
3. Employer and independent contractor where the employer is liable for the tort of his independent contractor.
4. A person who instigates another to commit a tort and the person who then commits the tort.
5. Persons who take concerted action to a common end and in the course of executing that joint purpose commit a tort.

The present appeal falls within the first category of joint tortfessor, i.e. employer and employee. The common law principles which govern the relationship of an employer and his employee in respect of torts committed by the latter is well stated in the Halsbury’s laws of England vol. 45(2) fourth edition, paragraph 817:

“Where an employer expressly authorizes his employee to do a particular act which is in itself a tort or which necessarily results in a tort, the employer is liable to an action in tort at the suit of the person injured. His liability is equally clear where he ratifies a tort committed by his employee without his authority.Where the act which the employee is expressly authorized to do is lawful, the employer does the act in such a manner as to occasion injury to a third person, the employer cannot escape liability on the ground that he did not actually authorize the particular manner in which the act was done, or even on the ground that the employee was acting on his own behalf and not on that of his employer. ”

In 1952, Denning L. J. (as he then was), stated the law as follows:

“In all these cases it is of importance to remember that when a master employs a servant to do something for him, he is responsible for the servant’s conduct as if it were his own. If the servant commits a tort in the course of his employment, then the master is a tortfeasor as well as the servant. ”

See the case of Jones v. Manchester Corporation (1952) 2 OB 852 at page 870.

For the employer (master) to be vicariously liable it is necessary to prove that his employee (servant) has been guilty of a breach of duty towards the person injured. The appellant in the appeal on hand had averred as follows:-

“4. The plaintiff says that it was the duty of the defendant to take all reasonable prevention either by itself or through his (sic) agents, servants or employees for the safety of the plaintiff while he was engaged upon his work as a silo attendant assigned to the Mill and not to expose the plaintiff, to risk of damage or injury, adequate and suitable plant and appliances to enable the plaintiff to carry out his work in safety.

5. The plaintiff says that on 7th August, 1991 he was in the course of his said employment assigned to the duty operator in the absence of the production manager and the silo superintendent, to discharge a truck of fish mill along with his colleagues.
6. The plaintiff says that during the process of discharge, there was a frequent stoppage of intake of materials.
7. The plaintiff says that he came to report the stoppage or the running machine to the duty operator who confirmed that he was aware of the problem.
8. The plaintiff says that the duty operator was one D. Agbator and as usual he assigned me to clear the conveyor or running machine to check the constant stoppage or intake of materials by the running machine.
9. That plaintiff says he obeyed the defendant’s switch operator and left him at the switch room and went down the mill below to clear the blockage on the instructions of the employee of the defendant.
10. The plaintiff says that while he was downstairs clearing the blockage with his right hand and while still clearing the blockage the defendant an operator at the switch room upstairs started running, the machine without waiting for a feedback or clearance from him and the running machine caught the plaintiff’s right arm and damaged it.
11. The plaintiff says that in consequence of the defendant’s operator’s act of starting the machine while he was still in the process of clearing the blockage on Agbator’s own instruction, he sustained injuries and has suffered pains, shock, suffering, loss and damage.

The court below, which evaluated the evidence, found as follows:

“There is no doubt from the facts of this case as borne by the record that the respondent owed the appellant a duty of care on 7th August, 1991 when the appellant with some other workers of the respondent were discharging a truck load of fish mill for the respondent. It’s the claim of the appellant that the respondent was negligent in its duty of care to him.”

The averments set out above and the evidence of the appellant as shown earlier, established that Mr. D. Agbator, an employee of the respondent was the cause of the appellant’s injuries, pains, shock, suffering, loss and damage.

Inspite of the appellant’s evidence and that of the medical doctor who testified in his favour, I was, dismayed to have read from the judgment of the court below that the appellant was unable to establish his claim against the defendant company. There are situations where the facts speak for themselves (res ipsa loquitur) and raise a prima facie presumption against the employer of a breach of duty on the part of his employee. I think the facts of this case, in the absence of any eye witness (even where that is the case) are strong, cogent and convincing to establish a breach of duty of care. (I shall come back to the issue in course of this judgment).

On the principle of the law held by the trial court and affirmed by the court below that the non-joinder of Mr. D. Agbator to the proceedings was fatal to the claim. This was affirmed by the court below. The general disposition of the law is that an employer is liable for the wrongful acts of his employee authorised by him or for wrongful modes of doing authorised acts if the act is one which, if lawful, would have fallen within the scope of the employee’s employment, as being reasonably necessary for the discharge of his duties or the preservation of the employer’s interests or property, or otherwise incidental to the purposes of his employment, the employer must accept responsibility in as much as he has authorised the employee to do that particular class of act and is therefore precluded from denying the employee’s authority to do the act complained of. If on the other hand, the act is one which, even if lawful, would not have fallen within the scope of the employee’s employment: the employer is not bound unless the act is capable of being ratified and is infact ratified by him. This, infact, is what this court said is James v. Mid-Motors (Nig.) co. Ltd. (1978) 11 – 12 31 at page 68.

“Where a company is said to have done an act by the very act of a company not being a human being, it can only do the act through its human agents or servants. Where the said agent or servant has committed an act, the company may rightly be said to have committed an act since in law, the principle of vicarious responsibility, the act of the agent or servant is the act of the company. The evidence by which the act is to be proved against the company will be the conduct of the agent or servant. ”

This dictum was cited and relied upon by the trial court. The court below as well, cited and relied on the same case. In a complete summersault however, both the trial court and the court below relied heavily on a Court of Appeal decision in the case of Ifeanyi Chukwu Osondu Co. Ltd. V. Soleh Boneh (Nig.) Ltd. (1993) 3 NWLR (pt.280) at page 246, to say that in an action for negligence, if the principal actor, the offending servant is not joined as a party so that his liability may be established the question of finding the master vicariously liable can never arise and that once a servant is not joined in the action, the action is incompetent ab initio. Judgment on the above case was delivered by the Benin Division of the Court of Appeal on Friday the 20th of November, 1992, On further appeal to this court, the court relied on different grounds and affirmed the Court of Appeal’s decision. The judgment of this court is now reported in Ifeanyichukwu , (Osondu) Co. Ltd. v. Soleh Boneh (Nig.) Ltd. (2000) 5 NWLR (Pt.656) 322. The unanimous decision of this court in that case is a complete reversal of the logical reasoning of how the Court of Appeal arrived at its decision. It is of interest to quote some portions of this court’s decision:

Ogundare, J.S.C; who delivered the lead judgment stated among other things, as follows:

“I now turn to Management Enterprises v. Otusanya (supra) where Oputa J.S.C is reported to have said:

The liability of the 1st defendant is not direct but consequential and vicarious. It rests on the successful action against the 2nd defendant … I hold that the ljebu-Ode High Court lacked the necessary competence to carry on this case against the 2nd defendant. If then the trial court could not validly deliver any judgment against the 2nd defendant, and since the liability or otherwise of the 1st defendant depended wholly on a verdict against the 2nd defendant then the Court of Appeal was wrong in its judgment against the 1st defendant/appellant. ‘

It is this passage that the two courts below relied on in holding that the plaintiff’s failure to join the defendant’s driver in the present proceeding was fatal to his case. With profound respect to their Lordships of the two courts below, I think they misconceived the true purport or meaning of the expressions – ‘successful action’, any judgment against the 2nd defendant’, ‘a verdict against the 2nd defendant’ used by the learned Justice of the Supreme Court in the passage. From the number of authorities on the point statutory, judicial and academic – some of which (have cited in this judgment it is a finding of liability against the servant that results in the master’s liability. In other words, in an action against the master, the plaintiff to succeed must produce sufficient evidence from which the court makes a finding of fact to the effect that the servant is liable for the tort complained of. That is, the plaintiff must establish the liability of the servant in order to succeed against the master in an action. I believe that when Oputa J.S.C used those expressions in the passage in his judgment he meant findings of fact of liability against the servant (the purported 2nd defendant in the case) must be made before there could be a successful action against the master (the 1st defendant in the case). To suggest (otherwise, would mean that this court, per Oputa JSC), was laying it down that in every case of vicarious liability, the servant must first be successfully sued before the action against the master or that both must be jointly sued and a verdict entered against the servant before the master could be held accountable for his servant’s tort. Such would not only be absurd and lead to injustice but would also run against the grain of all authorities both Nigerian and foreign on the point. A person who has suffered damage as a result of the tort of the servant of a master would, not be able to recover simply because the servant is dead or has absconded and disappeared into thin air. Such a situation would undoubtedly encourage a master to keep his servant out of the reach of the injured person. I do not think this court meant to create such a state of injustice by its judgment in Management Enterprises v. Otusanya & anor or alter the existing state of the law. It is interesting to note that the trial court in that case found that the accident was not established. The conclusion I reach is that Management Enterprises v. Otusanya is no authority for the finding of law made by the two courts below. And as that finding is inconsistent with the existing law, I find no hesitation in concluding that it is wrong.”

(Underlining supplied for emphasis)

Iguh, JSC; observed as follows:

“The Court of Appeal in coming to its erroneous decision reasoned that the liability of the driver can only be established if he is made a party to the action and that where, as in the present case, the driver is not joined in the suit, no liability may be ascribed to him thus rendering the action incompetent. Again, with profound respect, I cannot accept this proposition of law as well founded. It is plain to me that the question of the liability of the servant is purely an evidential issue, which can easily be established by cogent and acceptable evidence before the court and it would make no difference whether or not the driver of the offending vehicle is joined in the suit. Indeed, to suggest otherwise would mean that in all motor accident cases, where an offending driver dies, the collision, no action in negligence based on vicarious liability of the owner of the vehicle may ever arise. This, with respect, is not and cannot be the state of the law.

So, in Benson v. Lawrence Otubor (1975) N.S.C.C. 49 at 54, Elias CJN in a motor accident case before this court had cause to observe as follows:

We think that the learned trial judge was right in his finding that negligence had been established against the driver and that the appellant was vicariously liable for the driver’s tort committed against the respondent in the course of his employment.

The significance of this observation lies in the fact that the offending driver in that case was not sued or joined as a party in that proceeding. Nonetheless the liability of the appellant, in that case, the master of the driver, was accordingly upheld by this court. Reliance was also placed by the Court of Appeal on the decision of this court in Management Enterprises. Ltd. v. Janathan Otusanya (1987) 4 S.C. 367 at 395; (1987) 2 NWLR (Pt.55) 179. I need only state that entirely agree with the analysis and treatment of that case in the leading judgment of my learned brother, Ogundare, JSC and I do not propose to add anything thereto. There is one final point I desire to make in connection with the question under consideration. This concerns the issue of joint tortfeasors.It is beyond dispute that an agent who commits a tort on behalf of or on the instruction of his principal is along with the said principal joint for theasors in law.The same is true where a servant commits a tort in the ‘course of his employment. He and his master are in law equally joint tortfeasors as the law, in appropriate cases, .imputes the commission of the same tort or wrongful act to both of them jointly. Where several persons are jointly liable, the plaintiff is at liberty to select and sue anyone or any number of them and he can recover his claim in full from those he sued: the issue of contribution among such persons to meet the claim is their internal affair. ”

Mohammed Bello, CJN; observed that.

“No cause or matter shall be defeated by reason of misjoinder or non-joinder of parties and the parties may in every cause or matter deal with the matter in controversy so that as regards the rights and interests of the parties actually before it.”

In further analysis, I may go on to say that it can hardly stand to reason to suggest, say, in case of accident of a commercial vehicle that once the offending driver , is not joined along with the owner, the action . . automatically becomes incompetent, improperly constituted and unmaintainable. Although the doctrine of joint tortfeasors in law of negligence postulates, in appropriate cases, that the commission of the same tort or wrongful act by the servant binds his master, this does not by all means impute, that both must fall, sink or rise together. The law is that where several persons are jointly liable the plaintiff is at liberty to select and sue anyone or any number of them as he can recover his claim in full from those he sued. The issue of contribution among such persons to meet the claim is their internal affair. See: Ifeanyichukwu (Osondu) Ltd. v. Soleh Boneh Ltd (supra). I therefore find it difficult to agree with both the trial court and the court below that the non-joinder of Mr. D. Agbator is fatal to the appellant’s claim. In general, the correct position of the law is that ordinarily, non-joinder of a party, except where there are statutory provisions to the contrary, cannot by itself, defeat an action such as the one on hand. See: Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd (supra); Onayemi v. Okunubi & Another (1965) All NLR 362; Peenok Investment Ltd. v. Hotel Presidential (1982) 12 SC 1 at 21 – 27 & 30 – 40.

Further, in a case involving tortfeasors, the plaintiff is at liberty to choose his victim; he may decide to sue either of the master and servant separately or both of them jointly. See: Salmond on the law of torts, page 443. Where he sues one of them separately and succeeds, this is not a bar to an action against the other, who would, if sued, have been liable as a joint tortfeasors in respect of the same damage.

Appellant’s issue No.1 succeeds.

Issue No. 2 is on the propriety of court below dismissal of the appellant’s claim for his inability to prove his claim against the respondent. This is the same issue formulated by the respondent.

Learned counsel for the appellant submitted that it is true that the respondent called four witnesses but their evidence did not rebut the appellant’s claim as none of them saw the incident. This is against the holding of the court below that the respondent called four witnesses to rebut the claim of the appellant. Learned counsel added that the only evidence as to how the damage was caused by the negligent act of the respondent is that of the appellant himself. He argued further that the appellant testified in support of the pleadings and called a medical doctor who highlighted the extent of his injuries. Learned counsel challenged the respondent that he failed to call the duty manager to rebut the evidence of the appellant. The court below, he argued, was bound to act on the unchallenged evidence of the plaintiff. He cited and relied on the case of Omoregbe V. D. P. Lawani (1960) 314 SC 108 at 117. He urged this court to hold that the findings of the court below that the appellant has not proved negligence is perverse when synchronized with the evidence on record.

Learned counsel for the respondent submitted that from the totality of the evidence adduced by the appellant and his sole witness at the trial court, the appellant failed to prove, a case of negligence against the respondent. He cited sections 135(1) and 136 of the Evidence Act. He further stated that in a case of negligence, the onus does not shift to the defendant until and unless the plaintiff has proved the negligence of the defendant. He cited the cases of International Institute of Tropical Agriculture v. Armani (1994) 3 NWLR (Pt. 332) 291 at page 315 G: Duruji v. Azie (1992) 7 NWLR (Pt.251) 688 at 698 D – E.

Learned counsel submitted that the Court of Appeal was invited by the respondent under section 16 of its Act to evaluate the entire evidence given at the trial court. He extends the same invitation to this court and arrive at same decision as that of the lower court. He supported his submission with the case of Ogolo v. Ogolo (2006) 5 NWLR (Pt.972) 163 at page 190 F-G. Learned counsel added that the lower court had rightly held that the respondent is not liable to the appellant’s claim based on the pleadings and evidence adduced before the trial court. Learned counsel also raised an issue on exhibit ‘D’ which the appellant signed exonerating the respondent from any liability shortly after the accident that the appellant continued to work for the respondent with the same hand from 1991 till his employment was terminated in 1994. He argued that the appellant sole evidence was challenged and rebutted by the respondent’s entire oral and documentary evidence from the four witnesses who testified on behalf of the respondent company. I think I should start examining this issue by stating the basic principle of the law of negligence. It is that there can be no action in negligence unless there is damage. Negligence is only actionable if actual damage is proved. The gist of the action is damage and there is even no right of action for nominal damages. See: Munday Ltd. v. L. C. C. (1916) 2 KB 331: Hambrook v. Stokes Bros (1925) 1 KB 141 at page 156.

Lord Reading, C.J. observed in Munday v. London County Council (supra) that

“Negligence alone does not give a cause of action, the two must co-exist.”

This statement of law received approval of the judgment of Her Majesty’s Privy Council Per Viscount. Simon, L. C. in E. Suffolk Rivers Catchment Board v. Kent (1941) AC. 76 at page 86.

The burden of proof in an action for damages for negligence, certainly, rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by the negligent act or omission for which the defendant is in law responsible. This involves

(i) the proof of some duty owed by the defendant to the plaintiff

(ii) some breach of that duty and

(iii) an injury to the plaintiff between which and the breach of duty a casual connection must be established.

See: Robinson v. Post Office (1974) 2 NLER 737; Mc Ghee v. National Coal Board (1972) 3 All ER 1008; Keay v. British Nuclear Fuels Plc (1994) PIQR, 171. In the case of Makwe v. Nwuko (2001) 32 WRN 1 at page 12 – 13 (2001) 14 NWLR (Pt.733) 356 at 374 – 375, (2001) 7 SCNJ, 67 at page 1. Iguh, JSC, summarized the ingredients necessary for the proof of negligence in the following words:

“In the second place, the essential ingredients of actionable negligence are:

i. The existence of a duty to take care owed to the complainant by the defendant.

ii Failure to attain that standard of care prescribed by the law;

iii. Damage suffered by the complainant which must be connected with the breach of duty of care.

Once those requirements are satisfied, the defendant in law will be held liable in negligence.”

As a result of the failure of the trial court to give any probative value to the evidence laid before it, the respondent invited the court below to evaluate the evidence pursuant to section 16 of that, court’s act. The court below did so and made the following findings:

“I have taken a hard look at the evidence adduced by the appellant before the trial court vis-a-vis the germane averments in his statement of claim and I am satisfied that the appellant, was unable to establish his claim before the trial court. He was unable to establish a case of negligence against the defendant company. It is manifest from the pleadings that D. Agbator who is the alleged principal tortfeasor was never called as a witness by the appellant. He was not also joined as a defendant to the case. It seems to me that in a case of negligence the onus does not shift to the defendant. See: International Institute of Tropical Agriculture v. Armani (1994) 3 NWLR (Pt.332) 296; Duriji v. Azie (1992) 7 NWLR (Pt.256) 688.”

The appeal was accordingly dismissed by the court below.

Learned counsel for the respondent invited this court to re-evaluate the evidence placed before the trial court. Although this court does not ordinarily involve itself in re-evaluation of evidence taken by a trial court, it seldom finds it necessary to do so in order to ensure that no principle of law is flauted or subverted through adherence to technicalities or for failure to comply or apply known or established principles of the law and practice. Section 22 of the Supreme Court Act, empowers this court to assume all the powers, exercisable by the court below including power to evaluate evidence. I find it necessary to rely on this section to re-examine the depositions made by the parties before the trial court and as evaluated by the court below.

Starting from the first ingredient in proof of negligence i.e. existence of duty of care owed to the plaintiff by the defendant. This, the lower court has already made a finding as follows:

“There is no doubt from the facts of this case as borne by the records that the respondent owed the appellant a duty of care on 7th August, 1991 when the appellant with some other workers of the respondent were discharging a truck load of fish mill for the respondent.”

By this finding,the court below could not be heard to say anything to the contrary as it cannot approbate and reprobate.

Ingredient [ii] is failure by the defendant to attain the standard of care prescribed by the law. Paragraphs 4 and 10 of the appellants’ statement of claim state as follows:

“4. The plaintiff says that it was the duty of the defendant to take all reasonable prevention either by itself or through his (sic) agents, servants or employees for the safety of the plaintiff while he was engaged upon his work as a silo attendant assigned to the mill and not to expose the plaintiff to risk of damage or injury, adequate and suitable plant and appliances to enable the plaintiff to carry out his work in safety.

10. The plaintiff says that while he was downstairs clearing the blockage with his right hand and while still clearing the blockage the defendant an operator at the switch room upstairs started running the machine without waiting for a feedback or clearance from him and the running machine caught the plaintiff’s right arm and damaged it.”

In his evidence in chief, the plaintiff testified as follows:

“I was employed by the defendant as a silo assistant. I know the defendant and co. they were my employer. On 7th August, 1991. I was in my place of work. As we were discharging a truck of fish meal to the silo and there was a blockage by the conveyor I now went to the operator one D. Agbator. He told me that he was aware of the fault and that I should go into the underground to clear the blockage. I went underground. As I was clearing the blockage, Agbafor started the machine. He did not let me come to tell him that I had finished the clearing before he started the machine. As a result my hand twisted in the machine and I started to shout which attracted my colleagues who now came to meet me underground. My right hand was broken. I was rushed to the clinic in our company. This accident happened at about 10:45pm when the nurse came to see (sic) they said that only two veins were holding my hand that I should be sent to Nazareth Hospital Fugar. I was then taken to that hospital. I was operated and in bed from 7th August, to 23rd August. I was discharged on 23rd August. A letter was written by the doctor to the company that 1 should not do any work until after six months.”

On cross-examination, the plaintiff stated:

“My hand injury happened on 7th August, 1991. I resumed work with the company in April, 1992. I was working in the silo as silo attendant. I was a labourer who could be sent to work anywhere. On that day Agbafor sent me underground to clear the blockage. Agbator was the most senior that night and was my boss. I took orders from him. When I resumed in April, 1992, I continued to work for the defendant. It was the operator that sent me to the underground to clear the blockage.”

The respondent called four witnesses: DW1 M. B. Bosede Odigie who was a principal nursing officer with the defendant’s clinic; DW2 – James Otokunrin who was the assistant general manager of the defendant’s company. DW3 Benard Ekhator who was defendant company’s insurance officer and DW4 – Dr. Alfred Esiemoghie of the Nazareth Hospital Fugar. I have carefully examined the testimonies of the defence witnesses and i failed to see where any of the witnesses contradicted what the plaintiff said in his evidence. The position of the law is that where evidence given by a party is unchallenged or uncontroverted, a court of law must accept it and act on it unless it is palpably incredible. See: International Bank of West Africa Ltd. v. Imana (Nig.) Ltd. and Anor (2001) 6 SCNJ 470; Dr. Joseph Akhigbe v. Ifeanyi Chukwu Osondu Co. Ltd. & Anor (1999) 7 SCNJ 1. Thus, as the respondent in this appeal has failed to attain the standard of care placed upon it by law vis-a-vis the appellant while performing his authorized job, which led to the injuries he sustained, the respondent must be held liable for such injuries.

The third requirement is on damages suffered by the complainant. It is beyond paragraph 11 of his statement of claim which reads as follows:

11. The plaintiff says that in consequence of the defendant’s operator’s act of starting the machine while he was still in the process of clearing the blockage on Agbator’s own instruction, he sustained injuries and has suffered pains, shock suffering, loss and damage.

In his evidence in chief, the appellant stated inter alia:

I went underground. As I was clearing the blockage Agbator started the machine. He did not let me come to tell him that I had finished the clearing before he started the machine. As a result my hand twisted in the machine and I started to shout which attracted my colleagues who now came to meet me underground. My right hand was broken, was rushed to the clinic in our company.”

PW1, who was the Doctor in charge of Uromi General Hospital, where appellant went after receiving treatment from the Nazareth Hospital, testified as follows:

“I did a medical examination found out he had Multiple Surtare Scare on the right forearm with fitiated forth finger and reduced measure power on the side of the distal aspect. An X-ray was done which revealed marked carious formanon on both the radius and colar bones at the mid point indicating previous fracture and bold healing also indicated on the radius bone was a large scale with fibrar diamanice compression plate with four screws. On the ulnar bone was a stick nail. Radius bone showed multi million healing. While the ulnar bone showed no healing. He was then put on thermotherapy and physiotherapy on out patient basis. On 20th September, 1994, a repeat X-ray was done, which new nails and screws still in with marked soft tissue fibrosis and early sign of fracture and discise fracture dimoris. Deformity was 60%.”

The defendant did not discredit the evidence. The court below was bound to act on it.

See: International Bank of West Africa Ltd. v. Imana (Nig.) Ltd. and Anor (supra); Sunmonu Ololunde & Anor v. Osundo Co. Ltd. & Anor (supra). Furthermore, even the witnesses called by the defendant especially DW1 – a principal nursing officer with the defendant’s clinic stated that she discovered that the appellant had a fracture on the right hand. She rushed him to Nazareth Hospital Furgar for further treatment. DW 2 – Assistant General Manager Personnel and Administration of the respondent testified:

“It was reported that he had some injuries during work. The company clinic informed me that during the night a case of accident was reported and the person was sent for treatment at Nazareth Hospital Furgar. I approved money for his treatment in hospital.”

A medical report was tendered through DW2 and was admitted in evidence as exhibit ‘A’. Exhibit ‘A’ reads as follows:

“NARAZETH HOSPITAL

College Road. P. O. Box 614, Auchi, Furgar, Bendel State

MEDICAL REPORT

Re: Mr. Iyere R. O.

The above named person was involved in an industrial accident on 7th August, 1991. His Rt. upper limb was said to have been caught in a running machine. He was brought to this hospital on the same day.

On admission, he was found to be conscious, well oriented.

His general condition was fair.

In the Rt. upper limb, there was a deep punctured wound at the dorsal aspect of the forearm. There were superficial bruises at the anterior aspect. There was deformity of the forearm, but no neuro-vascular involvement was evident. ”

X-ray showed comminuted fracture of the radius and transverse fracture of the ulnar.

On 5th August, 1991, he was operated upon.

Radius: comminuted piece was fixed with a leg screw and then the fracture was reduced and held with a 5-hole ‘Dynamic Compression Plate, with 4 screws.

Ulnar: Fracture was reduced and was held by a street nail.

Post operative recovery was uneventful. On 23rd August, 1991, he was discharged from hospital.

As advised, he was coming for follow up regularly. On 26th November, 1991, x-ray on 25th April, 1992, showed union is quite advanced.

He has been advised not to carry anything with his Rt. hand. Night duty certificate has been given. He has been asked to come for follow up every four weeks.

The percentage of his disability which is temporary is estimated to be 10%. ;

Signed.

Dr. M. H. Choudhury,

Ag. Managing Director.”

DW 4 – was, a doctor from Nazareth Hospital. He testified that from records Iyere (plaintiff) had a fractured hand which was treated. At the end of treatment he was asked to go back for follow up. Appellant went for follow up four times. DW 4 said appellant was 10% deformed and it was temporary. Although these pieces of evidence were called by the respondent/defendant, they turned out to favour the appellant/plaintiff’s case. It is trite law that the plaintiff is entitled in law to rely on defendant’s evidence which supports plaintiff’s case. See: Anyaeze Chukwueke & Anor v. Okorie Okoronlawo and Ors. (1999) 1 SCNJ 441. It is my finding that the evidence was overwhelming which established the damages suffered by the appellant and which was effectively connected with the respondent’s/defendant’s breach of duty of care. The respondent must here also shoulder responsibility.

The appellant has in my view effectively proved his case. I think I should draw attention that except where a statute prescribes otherwise, it is not the number of witnesses a party calls that entitles it to what it claims. It is the quality of the evidence that is given by the witness or witnesses that matters. One witness may be enough to prove a case. See Dr. Segun Oduneye v. The State (2001) 1 SCNJ 17.

I also had a look at Exhibit ‘D’ which DW2 said that the plaintiff signed it as a guarantee letter. Exhibit ‘D’ does not absolve the defendants from liability in case of torts committed by the defendant as argued by learned counsel for the respondent. It can hardly be of any help to the defendant/respondent in this case.

It is my view, having considered the totality of the evidence placed before the trial court and the circumstances of the case as contained in the printed record of proceedings before this court, that the appellant proved his case before the trial court. Accordingly, the decisions of both the trial court and the court below are perverse. Having held that I will proceed to determine the issue of damages claimed by the appellant.

The plaintiff/appellant has claimed as follows:

WHEREOF the plaintiff claims against the defendant the sum of N5,000,000.00 (five million naira) being special and general damages for negligence.”

In Shell Petroleum Devt. Co. (Nig.) Ltd. v. Telbo & Ors. (1996) 4 NWLR (Pt. 445) 657 at p. 680, the word “damages” has been defined to mean:

“a sum of money awarded to a person injured by the tort of another.”

It is in general that pecuniary compensation which the law awards to a person for the injury he has sustained by reason of the act or default of another whether, that act or default is a breach of contract or tort. See: Umuje & Anor v. Shell Petroleum Dev. Co. of Nig. (1975) 9-11 SC. 155 at 162. Where the claim of a plaintiff before a trial court is premised on damages, this court has stated in several decisions, that it is the duty of that court to assess damages even if its decision goes against a plaintiff. Where the trial court fails, to do, this court, and indeed any appellate court, by virtue of the general power conferred upon it by the enabling law which created it, is in a position to assess the damages. See English Exporters (London) Ltd. v. Ayanda (1973) 3 SC 51; Okupe v, Ifemembi (1974) 3 SC 97; Yakassai v. Incar Motors (1975) 5 SC 107 at 115 – 116; Dumbo v. Idugboe (1983) 1 SCNLR 29; Soleh Boneh Overseas (Nig.) Ltd. v. Ayodele (1989) 1 NWLR (Pt. 99) 549 at 559; Onwuka v. Omogai (1992) 3 NWLR (Pt.230) 393 at 417 and Obot v. C. B. N. (1993) 8 NWLR (Pt. 310) 140 at 162 B-D.

As the trial court did not consider the merit of the case, it did not make pronouncement on the plaintiff’s claim of damages. The court below, too, failed to give any consideration to the plaintiff’s issue of damages as that court dismissed the appeal and affirmed the trial court’s decision. The learned counsel for the appellant made a submission that the findings of the court below that the appellant has not proved negligence is perverse when synchronized with the evidence on record. The lower court, he argued, failed to consider this issue of damages due to the aforestated erroneous findings and failed to consider some relevant cases such as Ediagbya v. Dumez (Nig.) Ltd. (1986) 3 NWLR (Pt.31) 753; U.B.A. Ltd. v. Achoro (1990) 6 NWLR (Pt.156) 254. Learned counsel urged this court to uphold the appellant’s claim for damages for pain and suffering in line with the decision in the case of C & C Construction Co. Ltd. v. OKHA (2003) 18 NWLR (Pt851) 79.

In his submissions on the issue of damages, learned counsel for the respondent argued that the lower court had rightly held that the respondent is not liable to the appellant’s claim based on the pleadings and evidence adduced before the trial court. Learned counsel submitted further that since the claim of the appellant was for damages and the evidence of the respondent’s DW3 was to the effect that the appellant discontinued his treatment at Nazareth Hospital, Furgar, and that no final medical report was issued and hence the Insurance Company did not pay the appellant his entitlements, was not controverted or denied by the appellant. Appellant’s action, he argued, was unmeritorious and unmaintainable.

The particulars given by the plaintiff/appellant under paragraph 18 of his statement of claim are as follows:

“PARTICULARS OF CLAIM

a) Permanent loss of his right hand – N1,000,000.00

b) Shock, pain and suffering – N3,000,000.00

c) General Damages – N1,000,000.00

TOTAL – N5,000,000.00

By looking at the above subheads or particulars of damages suffered by the appellant, I already made a finding that the appellant indeed suffered loss of his right hand which certainly renders him to become a disabled person which, I think, no amount of compensation will restore him back to normalcy. This is a personal injury case. There is in law no specific and fixed quantum of evidence that must be adduced in support. It is evident from decided cases that evidence of physical disability arising from the damage is sufficient. See: USA Ltd. v. Achoro (1990) 6 NWLR (Pt.156) 254 at pages 282-283 H-A.

On the subhead on shock, pain etc; it is trite that a person injured by another’s wrong, such as in this case is entitled to general damages for non-pecuniary loss such as pain and suffering and loss of amenity and enjoyment of life. See: Metropolitan Rly Co. v. Jackson (1877) 3 App. Cas. 193 HL.

Further, in the assessment of damages, a distinction is always drawn between two main heads of damages. One classification distinguishes pecuniary loss from non-pecuniary loss. Another classification is between special damages and general damages. Special damages can be defined, according to Salmond, as those pecuniary losses actually suffered up to the date of the trial e.g: loss of earnings. General damages on the other hand, are those other heads of loss e.g. pain and suffering. (See: Salmond on Torts, 16 ed; Sweet and Maxwell London, Chapter 23, page 575 particularly page 585 para 213).

The requirement of the law is that where the damage is based on special damages, it must be pleaded and proved. See: Domsalla v. Barr (1969) 1 W. L. R. 630; A. G. Leventis (Nig.) Plc v. Akpu (2007) 17 NWLR (Pt.1063) 416; Nwobosi v. A C. B. Ltd (1995) 6 NWLR (Pt 404) 658.

General damage is implied. See: British Transport Commission v. Gourley (1956) A C. 185 at page 206; UBN Ltd. v. Odusote Bookstores Ltd (1995) 9 NWLR (Pt. 421) 558.

On the head of pecuniary loss, the principle of law which relates to it is that of RESTITUTIO IN INTEGRUM – so far as actual or prospective pecuniary loss is concerned the amount of compensation can be assessed with a degree of accuracy which will go towards putting the injured person in the same position as he would have been in had he not sustained the wrong. On the principle relating to non-pecuniary loss it is that of fair and reasonable compensation. Money, certainly, cannot renew a shattered human frame. However, monetary compensation can be awarded, so that the court must do the best it can in the light of the circumstances of each case as the object of the award be damages is to compensate the plaintiff fairly and adequately but not necessarily punishing the defendant. See: The Mediana (1900) AC. 18 at 116; West and Son Ltd. v. Shephard (1956) 1 W. L. R. 51 and McGregor, “Compensation verses Punishment in Damages Awards” (1965) 28 M. L. R. 629.

The facts of the appeal on hand and the heads of damages as set out earlier, can only fall within the second classification i.e. non – pecuniary loss (General damages). It is the law that general damages may be awarded for the pain and suffering and nervous shock which the plaintiff has undergone in the past and is likely to undergo in the future. See: Heaps v. Perrite Ltd (1937) 2 All E. R. 60. This may include a substantial sum for the mental agony due to the plaintiff’s appreciation of the fact that his life has been shortened. Oliver v. Ashman (1962) 2 Q.B. 210. Secondly, the court may award substantial damages for loss of amenity or loss of faculty. See: Andrew v. Freeborough (1967) 1 Q.B. But these damages can only be fair and adequate compensation; no sum could be perfect compensation for a grave injury. Thus, everything must depend upon the nature of the injury and the circumstances of the particular plaintiff. For instance, a young and active man who has been blinded or crippled might recover substantial damages under this head as the “joy of life,” will have gone from him. He cannot ride a bicycle, cannot kick a football.

Perhaps this was what made Field, J., in addressing the July on what to consider in respect of a plaintiff, in the case of Philips v. London and South Western Railway (1879) 4 QBD 406 affirmed (1895) 5 OBD 78 that:

“There is another matter, which has been discussed a good deal, and it is one of consideration (sic: considerable) difficulty, viz: how far you are to take into account the plaintiff’s position. In the case of a poor man, who lost his leg or arm, by which he earned his living you would probably in considering what sum you would give him take into account that he was deprived of the power of earning a livelihood. On the other hand, my Brother Ballantine asks you to take into account that the plaintiff and his wife are in receipt of an income of something like #3,500.00 a year, so that he will be above all want, and will be able to live comfortably and with all the reasonable enjoyment of life. I must confess for myself I have very great difficulty in seeing how you can say that because a person who is injured is very welt off, therefore, a person who injures him is not to pay reasonable or proper compensation. The damages to which a man is entitled are the consequences of a wrongful act by which he suffers. The consequences of a wrongful act here are undoubtedly that Dr. Philips has been likely to earn if this accident had not happened. That has been taken from him, and am at a loss to see how the fact that he enjoys considerable income from other sources can alter the amount which you ought to give him.”

This direction to the jury was adopted and applied by Ademola, CJF; in the case of Anamali v. Ijirigho (1960) 1 NSCC 65 at page 67 – 68, or, as reported in (1960) 5 FSC 97 at page 99 – 100.

Now, all I have been trying to say is that here is a man who was full of vigour and vitality. The respondent engaged him, put him in use on payment of appropriate wages at appropriate times. In course of carrying an assignment given to him by his “boss” he sustained the injury complained of. The respondent has an Insurance Scheme meant to assuage this kind of sufferings undergone by any of its staff. Yet, the lot another come of form of medication. This, in my view, is not enough to deny him a reasonable compensation. The appellant, forever, has lost the use of his right hand. He is certainly deformed and disabled!! No compensation, in my view, will be to high for him. I do not enter into his heart, neither do I use telepathy, but I know he would prefer the restoration of his hand if possible, than any other compensation.

I am therefore in favour of granting a fair compensation to the appellant to reduce the rigour of life for him and in order not to render him to be a street beggar. Nigeria has so many of street beggars. We must not facilitate in increasing their number. Accordingly, I make the following orders:

i. I allow this appeal and:

[a] I hereby set aside the decision of the court below which affirms the decision of the trial court.

ii. I enter judgment in favour of the plaintiff/appellant. The plaintiff/appellant is entitled to be compensated on the following damages:

[a] permanent loss of his right hand N1,000,000.00

[b] shock, pain and suffering N2,000,000.00

TOTAL- N3,000,000.00

There is nothing to warrant the grant of special damages.

The plaintiff/appellant is also entitled to costs as follows:

a) at the trial court – N10,000.00

b) at the court below N20,000.00

TOTAL- N80,000.00

The appellants entitled to a total sum of N3,080,000.00 payable by the respondent.

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SC.309/2002

Anireju Ekudano & Anor V. Sunday Keregbe & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

A. AKINTAN, J.S.C.

The appellants were the plaintiffs in this case which was filed at the Warri Area Customary Court while the respondents were the defendants. The plaintiffs’ claim before the court as amended was: (1) for N2000 damages for trespass committed by the 1st defendant when he entered the plaintiffs’ bush between August and September, 1992 at Uba Majebi Ogbosanine in Warri Local Government Area where he fell timber trees without the consent and authority of the plaintiffs; (2) Declaration that the plaintiffs were entitled to the customary right of the land in dispute; and (3) Forfeiture of the customary tenancy granted to the defendants in all the fishing camps situated in the plaintiffs land.

At the trial which commenced in the court, the 1st plaintiff and two other witnesses had given evidence and they were duly cross-examined by learned counsel for the defence. Thereafter the case had to be adjourned on a number of times at the instance of learned counsel for the plaintiffs. This was followed by the appearance of new counsel for the plaintiffs who again requested for a further adjournment to enable him study the case as he claimed that he was recently briefed. His request was granted. But at the resumed hearing, the new counsel applied to the court to discontinue the case on the ground that the court lacked jurisdiction to entertain the claim before the court. The court took submissions on the application and adjourned its ruling.

In its reserved ruling, the court overruled the objection to its jurisdiction and went ahead to dismiss the plaintiffs’ claim. The plaintiffs were dissatisfied with the order dismissing the case. An appeal was therefore filed against that decision to the Warri High Court sitting in its appellate capacity. The appeal was dismissed. A further appeal to the Court of Appeal, Benin Division was also dismissed. The present appeal is from the decision of the Court of Appeal.

The parties filed their brief of argument in this court. The appellant formulated the following three issues as arising for determination in the appeal:

“1 Did the learned Justice of the Court of Appeal err in upholding the decision of the Warri Area Customary Court dismissing the plaintiff’s suit, after it ruled that it had jurisdiction to entertain it, without first calling on the plaintiffs to proceed with their case

2 Were the plaintiffs not denied the right of fair hearing when the Court of Appeal upheld the decision of the court of first instance not to call on the plaintiffs to proceed with their case after it ruled that it had jurisdiction

3 Did the learned Justice of the Court of Appeal err in upholding the decision of the Warri Area Customary Court that it had jurisdiction to entertain plaintiffs suit”

Three similar issues were also formulated in the respondent’s brief. I therefore consider it unnecessary to reproduce them.

It is the contention of the appellants, as canvassed in the appellants’ brief, that the lower court was wrong in dismissing the claim without first calling on the plaintiffs (now appellants) to proceed with their claim after over ruling the objection to the court’s jurisdiction. This is their main complaint. It is submitted that the action of the trial court in dismissing the plaintiffs’ claim after overruling the submissions made on the court’s lack of jurisdiction to entertain the suit was premature. It is argued that the correct procedure is that if the court refuses the application, the trial Judge is expected to call on the plaintiffs to proceed with the case. It is where the plaintiffs refuse to proceed that the Judge will consider the evidence led so far and then decide either to strike out the suit on conditions given or dismiss same. The decision of this court in Olayinka Rodrigues v. The Public Trustees & Ors. (1977) 4 SC 29 is cited in support of this submission.

It is submitted in reply in the respondents’ brief that whether issue of jurisdiction could be raised at any stage does not arise in the appeal. That what happened was that the appellants had made up their mind to withdraw their claim and as such the court could not compel them to go on with the case which they had instituted in a court of their choice. Calling on the appellants to proceed with their case after the ruling that the court had jurisdiction to entertain the claim therefore could not arise. It is further submitted that it was obvious to the judicial minds of the Area Court Judges that the implication to withdraw was not made bona fide but merely an attempt to fight and run away in order to fight another day, thus having a second bite at the cherry. The decision of the trial court to dismiss the appellants’ claim before the court is therefore said to be quite appropriate. Similarly, both the Warri High Court and the lower court acted within the law by affirming the stand taken by the trial court. A number of decisions of this court are cited in support of this submission.

The appellants’ grievance in this appeal is in respect of the trial court’s order dismissing the case instead of making an order striking out the case. The law is settled that the principle underlying the requirement for leave to discontinue a suit is that after proceedings have reached a certain stage, the plaintiff who had brought his adversary into court, should not be allowed to escape by the side door and avoid the contest. At that stage, he is to be no longer dominus litis and it is for the trial Judge to say whether the action should be discontinued and upon what terms. It follows, therefore that a plaintiff may, without the leave of court, discontinue a suit against all or any of the defendants or withdraw any part of his claim before the date fixed for hearing. In such a situation the notice of withdrawal automatically terminates the proceedings and a formal order striking out the suit may be made by the court. See Soetan v. Total Nig Ltd. (1972) 1 ALL NLR (Pt. 1) 1; Izieme v. Ndokwu (1976) NMLR 280; Aghadiuno v. Onubogu (1998) 5 NWLR (Pt. 548) 16.

But where the request for discontinuance is made after the date fixed for the hearing of the suit, the plaintiff may discontinue only with the leave of the court and subject to conditions that may be imposed by the court. In granting the request, the trial Judge may order that the case be struck out or make an order for outright dismissal of the suit. Whichever order the court makes will depend on all the circumstances of the case and an appellate court will not ordinarily tamper with the trial court’s exercise of such judicial discretion. See Nigerian Properties Co. Ltd. v. Alegbeleye 19 NLR 101; Giwa v. John Holt Co. Ltd. (1930) 10 nlr 77; Eronini v. Ihuko (1989) 2 NWLR (Pt 101) 46; Ajayi v. Odunsi (1959) SCNLR 496; Rodrigues v. Public Trustee (1977) 4 SC 29; and Aghadiuno v. Onubogu, (supra).

The facts of the present case, as already set out above, are that the appellants, as plaintiffs filed their claim in the Area Customary Court. The trial started and in fact three witnesses, including the first plaintiff, had given evidence and were duly cross-examined. It is also on record that some of the vital documents the plaintiffs relied on in proving their claim were rejected when they tried to tender them. Thereafter their enthusiasm to prosecute or continue with their claim diminished. They started to ask for adjournment which culminated in procuring another Counsel to appear for them. Eventually, their newly introduced Counsel applied to discontinue the suit on the ground that the court lacked jurisdiction to entertain the claim. The court, in a reserved ruling, over ruled the objection to jurisdiction and then dismissed the claim.

The order dismissing the claim was quite within the discretionary power of the court and comes within the powers of the court as I have declared above. In the result, the appeals filed by the appellants to the two lower courts were properly dismissed. I also hold that this appeal lacks any merit and I accordingly dismiss it. I also hold that the issue whether the appellants right to fair hearing was breached, raised as an issue, does not arise and the appeal as it relates to that issue also fails. In conclusion, I dismiss the entire appeal with N10,000 costs ill favour of the respondent.

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SC.208/2002

Chief Edmund I. Akaninwo & Ors. V. Chief O. N. Nsirim & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

In the High Court of Justice of Rivers State sitting at Port-Harcourt, the Plaintiffs for themselves and on behalf of the members of Rumueme Community Village Council instituted their action against the defendants who were required to defend the action for themselves and on behalf of the other members of the Ogbakor Rumueme Organisation and asked for the following declaratory and injunctive reliefs in paragraph 47 of their amended statement of claim as follows –

“(a.) A declaration that the Defendants are not members of the Rumueme Community Village Council in the Port Harcourt Local Government Area of the Rivers State but the descendants of Apara resident in Rumueme, Port Harcourt.

(b.) Perpetual injunction restraining the defendants, their agents, servants and privies from holding themselves out as, or claiming to be, or parading themselves as members of the said Rumueme Community Village Council.”

The case of the plaintiffs was heard on their amended statement of claim and the defendants original statement of defence after the defendants’ application to also amend their statement of defence was refused by the learned trial judge. In the course of the hearing of the case, the plaintiffs called two witnesses in support of their claim while the defendants in their defence called three witnesses. However at the conclusion of the evidence in chief of the plaintiffs’ second witness and the cross-examination of the witness by the learned Counsel to the defendants, the defendants filed their application for leave of the trial Count to amend their statement of defence. This application was heard and refused by the learned trial judge before the hearing of the case was concluded. The learned trial judge in his judgment delivered on 3rd July, 1987, granted the two reliefs sought by the plaintiffs at pages 245 – 246 of the record of this appeal where the learned trial judge said –

“I am convinced from the facts and circumstances I have so far examined, to hold that the plaintiffs have proved their case on the preponderance of evidence and are therefore entitled to the reliefs they (sic) seek.

I am convinced that the said reliefs if granted will have far reaching consequences to make for peace in Rumueme where both parties will remain to enjoy. I therefore enter judgment in favour of the plaintiffs by granting them the reliefs sought as follows:

(1) I hereby declare that the defendants are not members of the Rumueme Community Village Council, otherwise – known as Rumueme Village Council in the Port Harcourt Local “Government Area of Rivers State, but the descendants of Apara resident in Rumueme, Port Harcourt.

(2.) I hereby restrain the defendants, their agents, servants and privies perpetually from holding themselves as members of the said Rumueme Community Village Council.”

All the Defendants who were aggrieved by the judgment of the trial High Court, appealed to the Court of Appeal against it. In addition, the defendants also sought and were granted leave by the Court of Appeal to appeal against the interlocutory ruling of the trial High Court refusing their application to amend their statement of defence. Upon hearing both defendants’ appeals, the Court of Appeal in its judgment delivered on 15th July, 1997, dismissed the appeals and affirmed the decision of the trial Court in both its ruling and Judgment. Still dissatisfied with the decision of the Court of Appeal against them, the defendants are now on a further and final appeal to this Court.

Before the appeal came up for hearing, the Defendants who are now the appellants in this Court have filed their appellants’ brief of argument and the appellants’ reply brief which were duly adopted by their learned Counsel. The plaintiffs who are now respondents in this Court also duly filed their respondents’ brief of argument which was deemed adopted by them in their absence and the absence of their learned Counsel on the day the appeal was heard in accordance with Order 6 Rule 8(6) of the Rules of this Court.

In the appellants’ brief of argument, three issues were identified for the determination of the appeal. The issues are

1. Were the learned Justices of the Court of Appeal right when they upheld the ruling of the learned trial judge dismissing the Defendants application for amendment at a stage when the Plaintiffs were yet to close their case If answered in the negative has the failure to grant the defendants’ application for amendment occasioned any miscarriage of justice
2. Were the learned Justices of the Court of Appeal right when they held that there was nothing inequitable in granting the reliefs sought by the Plaintiffs
3. Were the learned Justices of the Court of Appeal right when they held that exhibits ‘A’ & ‘B’ were legally admissible in instant proceedings and that they constituted admissions against the defendants

In the respondent’s brief of argument however, after attacking issue number two in the appellants’ brief that the issue does not arise from the decision of the Court below by way of a preliminary objection, the Respondents proceeded to formulate the following two issues for the determination.

1. Have the defendants/appellants shown any ground on which this appellate Court should interfere with the discretion of the trial judge as affirmed by the Court below in refusing their application to amend their statement of defence at that stage of the proceedings where the Respondents have called their last witness.
2. Whether exhibits ‘A’ and ‘B’ were admissible in evidence; and if not, whether their admission as exhibits occasioned a miscarriage of justice.

Although the respondents in their respondents’ brief have raised preliminary objection to the second issue. In the Appellants’ brief of argument, and taking into consideration that that issue relates to the grounds of appeal arising from the judgment of the trial Court on their substantive case; I shall first treat and dispose of issue number one in both the appellants’ and the respondents’ briefs of argument arising from the interlocutory ruling of the trial Court refusing the defendants’ application to amend their statement of defence. I shall then come back to the issues arising from the judgment of the trial Court affirmed by the Court below on the substantive claims of the respondents as the case may be.

The nature of the dispute between the parties in this appeal as revealed from the record of appeal is quite simple taking into consideration that the parties have lived together as members of Rumueme Community for many years until 1965 when the appellants formed Ogbako Rumueme Organisation. Separate from the Rumueme Village Council to which both parties hitherto-for belong. This development gave rise to the dispute as to whether the appellants are indigenes of Rumueme Community eligible to participate in the sharing of the farmlands in the area and also benefit from the compensation money paid to the Community by the Government. While the respondents who were the plaintiffs at the trial Court are claiming to be the only indigenes of Rumueme to the exclusion of the appellants who were said to be strangers, the appellants are in turn asserting that they are also indigenes of the area.

Now coming back to the first issue for determination in this appeal, it is whether or not the Court below was right in upholding and affirming the ruling of the trial Court dismissing the appellants’ application as Defendants to amend their statement of defence. It was pointed out by the learned Counsel to the appellants that the defendants/appellants’ application to amend their statement of defence was refused by the learned trial judge in the course of the proceedings while the second witness to the plaintiffs/respondents was being cross-examined; that although the Court below seemed to have .agreed with the reasons given by the trial Court for refusing the amendment including causing undue delay of the trial with the resultant injustice to the respondents, that Court having plainly disagreed with the trial Court that it was too late at the stage of the proceedings to have granted the amendment, the appellants’ appeal ought to have been allowed by the Court below. Learned Counsel referred and relied on the cases of Adekeye & Anor. v. Ogunbade (1987) 6 S.C. 268 at 280-281;(1981) 3 NWLR (Pt. 60) 214 and First Bank of Nigeria Plc v. May Medical Clinics and Diagnostic Centre Ltd & Anor. (2001) 9 N.W.L.R. (Pt. 717) 28 at 44, on the principles guiding Courts in deciding whether or not to grand application for amendment of pleadings, and argued that the Court below was wrong in holding that the trial Court was right in refusing the defendants/appellants’ application. With regard to one of the reasons given for refusing the.application which was affirmed by the Court of Appeal that the affidavit in support of the application was defective having been deposed under the Oaths ” Law, learned counsel to the defendants/appellants stressed that as the affidavit was only defective in form arid not in substance, the trial Court was permitted under Section 84 of the Evidence Act and the case of Attorney General of the Federation & 2 Ors. v. Abdullahi Yunusa Bayawo (2000) 7 N.W.L.R. (Pt.665) 351 at 359, to use the affidavit in arriving at its decision. Learned Counsel finally concluded that the judgment of the Court below affirming the dismissal of the application to amend the Statement of Defence; had occasioned a miscarriage of justice justifying allowing this appeal to set aside that decision and grant the appellants’ application to amend their statement of defence.

For the plaintiffs/respondents, it was contended that the defendants/appellants’ application having been brought at the stage in the proceedings when the learned Counsel to the plaintiffs/respondents had told the trial Court that he was not calling any other witness after the testimony of PW2 who was then being cross-examined by learned Counsel to the defendants/appellants, the trial Court was right in refusing the application for amendment of the statement of defence on the grounds among others that it would have delayed the hearing of the case and cause hardship to the plaintiffs/respondents and for that reason, the Court below was right in affirming that decision. Learned Counsel emphasized that the amendments sought by the defendants/appellants which abandoned a number of paragraphs in which some of the facts pleaded in the statement of claim were admitted, with entirely new facts being brought into the case of the defendants/appellants, would work hardship on the plaintiffs/respondents resulting in filing further amendments and recalling of witnesses. The ground of refusal of such application being matters within the discretion of the trial Court which exercised that discretion not only judicially but also judiciously, the decision of the Court below not to interfere with the exercise of the discretion of the trial Court in refusing the application was quite in order, argued the learned Counsel, who called in aid many cases in support of his stand. These cases include University of Lagos & Anor. v. Olaniyan & Ors. (1985) 1 N.W.L.R. (Pt. 1) 156 at 175; University of Lagos v. Aigoro (1985) 1 N.W.L.R. (Pt. 1) 143 at 148 – 149; Enekebe v. Enekebe & Anor. (1964) All N.L.R. 95 at 100; Saffieddine v. C.O.P. (1965) 1 All N.L.R. 545; Odusote v. Odusote (1971) 1 All N.L.R. 219 and Awani v. Erejuwa 11 (1976) 11 S.C. 307.

The circumstances under which a Court may grant or refuse leave to amend pleadings are clearly set out in Order XXXIV of the Rules of the High Court of Justice of Rivers State under which the Defendants/Appellants’ application was filed. It reads:-

“The Court may at any stage of the proceedings, either of its own motion or on the application of either party order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just. ”

In the exercise of the no doubt discretionary powers conferred, the Court must have more regard to substance. In other words as a general rule, an amendment of any proceeding including pleadings under Order XXXIV quoted earlier, will be granted if it is for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties. The law is indeed well settled that an amendment of pleadings should be allowed at any stage of the proceedings unless it will entail injustice to the other side responding to the application. The application should also be granted unless the applicant is acting mala fide or by his blunder, the applicant has done some injury to the respondent which cannot be compensated in terms of costs or otherwise. See Tildesley v. Harper (1878) 10 Ch. D. 393 at 396; Cropper v. Smith (1884) 26 Ch. D. 700 at 710; Shoe Machinery Co. v. Cutlan (1896) 1 Ch. 108 at 112; Amadi v. Thomas Aplin & Co. Ltd. (1970) 1 All N.L.R. 409 and the case of Oguntimehin v. Gubere & Anor. (1964) 1 All N.L.R. 176 at 180 where the Court upheld an amendment of pleadings after the close of evidence of the parties and in so doing the Court observed –

“In the present case either party called his surveyor at the start of the trial, and both parties agreed on what was in issue between them by reference to their plans. In effect they proceeded with the contest as if the plaintiffs’ pleading had been what it became after the amendment; all that the amendment did was to write down what the defendant had known all along to be the plaintiffs’ case. The amendment did not take him by surprise, and he has no just cause for complaint.”

Taking into consideration of the principles considered and applied by the this Court in Oguntimehin’s case quoted above, it is not difficult to see that in the instant case, the trial judge was in error when he gave as one of his reasons for refusing the application that it was brought too late which even the Court below could not agree. In Oguntimehin’s case (supra), the application for amendment of pleadings was brought after the close of evidence on both sides, and the application was granted by the lower Court and upheld on appeal by this Court. Definitely, on the question of the appropriate time for bringing application to amend pleadings in the course of trial, the position in the present case where the defendants/appellants brought their application to amend their statement of defence after the conclusion of their cross-examination of second witness for the Plaintiffs, is certainly on a firm ground and the Court below having so found, ought to have allowed the amendment.

Important questions of what an amendment is and when it may be refused were considered and answered by this Court in Chief Adedapo Adekeye & Anor. v. Chief O. B. Akin-Olugbade (1987) 6 S.C. 268 at 280 – 281 where Eso J.S.C. said –

“The aim of an amendment is usually to prevent the manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of Counsel. It will certainly be wrong to visit the inadvertence or mistake of Counsel on the litigant. The Courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party. The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.”

Although the guiding principles in granting or refusing amendments to pleadings outlined in Adekeye’s case (supra) are based on the provisions of Order 25 Rule I of the High Court of Lagos State Civil Procedure Rules which are not in pari materia with the provisions of Order XXXIV of the Rivers State High Court Civil Procedure Rules now under consideration, the guiding principles applicable to the Rules and the Order in practice, .are virtually the same.

Some of the reasons given by the learned trial judge and endorsed by the Court below for refusing the defendants/appellants’ application to amend their statement of defence include that the amendments which affected 10 out of the 23 paragraphs of the statement of defence, amounted a complete substitution of a new statement of defence. Not only that, the learned trial judge also found that the amendments would have the effect of allowing the defendants/appellants to withdraw or abandon paragraphs in which part of the claim of the plaintiffs/respondents have been admitted, thereby forcing the plaintiffs/respondents to have to file a reply to the new statement of defence with the necessity of having to recall the two witnesses who had already testified. The question is, are these reasons given for refusing the application for amendment justified, most especially taking into consideration of the clear finding of the learned trial judge at page 160-of the record of this appeal This is what the learned trial judge said:-

“The statement of defence has 23 paragraphs out of which ten (10) are affected by the proposed amendment. It is interesting to note that the ten paragraphs being amended constitute the main defence of the defendants’ case.”

Indeed if the amendments being sought by the Defendants/ Appellants in their application constitute their main defence to the case against them by the Plaintiffs/Respondents, that finding alone was enough to have put the trial Court on guard on the need to adhere to the guiding principles in granting or refusing amendments of pleadings. With this findings, both the trial Court and the Court below ought in my opinion, to have found that the amendment being sought was necessary for the purpose of determining the real questions in controversy between the parties and therefore should have been granted in order to prevent manifest injustice to the defendants/appellants by allowing them to plead their main defence to the case against them. Since the claims of the plaintiffs/respondents in their action was for a declaration that the defendants/appellants are not members of the Rumueme Community Village Council and a perpetual injunction restraining the Defendants (appellants from asserting that they also belong to the same village council, it is quite clear that the amendments being sought in the application for amendment revolves around these claims which are the real questions in controversy between the parties.

It is therefore difficult to see how amendment of the statement of defence which even the learned trial judge found to have constituted the main defence of the defendants/appellants in the case against them, could possibly prejudice, injure, surprise, over-reach or embarrass or work any injustice to the plaintiffs/respondents evidence.

Although in the respondents’ brief of argument, their learned counsel relied on the statement made by the learned trial Judge as part of his reasons in his ruling for refusing the application to amend the statement of defence that the plaintiffs’ counsel on 24/9/86 had told the trial court that PW2 was his last witness and that the plaintiffs were not calling any more witnesses, is not supported by the record of the trial court. This is because from the record at pages 114 – 120 containing the proceedings of the trial court of 24/9/1986 when both witnesses of the plaintiffs PW.1 and PW 2 testified at the trial court, the record shows at page 120 that at the end of the evidence in chief of PW2, the case was adjourned to 8/10/1986 for cross-examination and continuation. There is no statement by the learned counsel to the plaintiffs on record that PW2 was his last witness and that he was not calling any other witness for the plaintiffs as wrongly attributed to him by the learned trial Judge in his ruling now on further appeal to this court. This of course means that the discretion exercised by the learned trial Judge in dismissing the application to amend the statement of defence in this case, is not supported by the facts relied upon by him in showing that the plaintiffs would be prejudiced, injured, surprised or over-reached. In this respect, the court below was wrong in failing to examine these facts in coming to the conclusion that the discretion of the trial court was exercised judicially and judiciously. In other words, a discretion exercised by court in vacuo, unsupported by the relevant facts cannot pass the “judicial and judicious” test. See Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 587 at 660.

Another reason given by the trial Court and endorsed by the Court below for dismissing the application to amend the statement of defence was that granting the amendment would lead to allowing the defendants to withdraw or abandon the admissions to the case of the plaintiffs they had earlier made thereby prejudicing the plaintiffs. However, having regard to the fact that the main relief claimed in the plaintiffs’ action at the trial court is a declaratory relief which by law is not granted on admission by the defendants but on proof by evidence to the satisfaction of the trial Court before exercising its discretion of whether or not to grant the relief, the reason given by the learned trial judge that to allow the withdrawal of the admission would have prejudiced the plaintiffs, is not supported by law. This is because with or without the admission in the statement of defence, the duty on the plaintiffs to prove their entitlement to the declaratory relief on their own pleading and evidence, would not have changed. This is because the law is well settled that the Court does not make declarations of right either on mere admissions or in default of defence without hearing appropriate evidence and being satisfied with such evidence. See Metzger v. Department of Health & Social Security (1977) 3 All E.R. 444 at 451 where Megarry, V.C. said:-

“The Court does not make declaration just because the parties to litigation have chosen to admit something. The Court declares what it has found to be the law after proper argument not merely after admission by the parties. There are no declarations without arguments, that is quite plain.”

See also Wallensteiner v. Moir (1974) 3 All E.R. 217; Vincent Bello v. Magnus Eweka (1981) 1 S.C 101; Motunwase v. Sorungbe (1988) 4 N.W.L.R. (Pt. 92) 90; Okedare vs. Adebara (1994) 6 N.W.L.R. (Pt. 349) 157 at 185; Quo Vadis Hotels and Restaurants Limited v. Commissioner of Lands Midwestern State & Others (1973) “6 SC 71 at 96; Agbaje v. Agboluaje (1970) 1 All N.L.R 21 at 26 and Fabunmi v. Agbe (1985) 1 N.W.L.R. (Pt. 2) 299 at 318 where Obaseki J.S.C said-

“A claim for declaration of title is not established by admissions as the Plaintiff must satisfy the Court by credible evidence that he is entitled to the declaration. The court does not grant declaration on admission of parties. It has to be satisfied that the plaintiff owns the title claimed.”

In any case, the Court below in its judgment now on appeal agreed .with the trial Court that in refusing the application for the amendment of statement of defence, the trial Court had exercised its discretion judicially and judiciously hardly giving any room for interference by the lower Court. However, taking into consideration that the parties are merely disputing over the membership of a Community Village Council and the plaintiffs were allowed by the trial Court to amend their statement of claim in paragraphs 13 and 34 by substitution of new paragraphs on 24/9/86, while barely less than two months later, the defendants application filed on 11/11/86 to amend 10 out of 23 paragraphs of their statement of defence was refused by the same trial Court, clearly this same discretion of the learned trial judge can hardly answer the description that it was exercised judicially and judiciously as found by the Court below. In other words, in the instant case where it had not been shown that the plaintiffs would suffer any prejudice by the defendants’ application to amend their statement of defence after similar application was granted to the plaintiffs, the fact that the defendants’ application was made after the cross-examination of the second witness to the plaintiff was not enough reason to refuse the application because such application by a Defendant may be granted even after the close of the case of the plaintiffs. See Okolo v. Nwamu (1973) 2 SC. 59 at 68. This is why I cannot agree with the learned counsel to the respondents that to allow the amendments sought in the present case would be unjust to the respondents. Indeed to me, the proposed amendments have raised points which appear to be vital to the case between the parties, and unless they are adjudicated and pronounced upon, the real issues between the parties will be left undecided. I am therefore satisfied that the plaintiffs/respondents were not misled or embarrassed by the proposed amendments. In reality, the learned trial judge clearly proceeded on wrong principles in refusing the defendants/appellants’ application and the Court below was equally wrong in affirming the decision of the trial Court. I am not in any doubt in this respect that to allow the Ruling of the trial Court as affirmed by the Court below to stand, would result in a real injustice to the defendants/appellants.

In the result, this appeal succeeds and the same is hereby allowed on the first issue for determination alone. The judgment of the Court below delivered on 15th July, 1997, dismissing the defendants/appellants’ appeal and affirming the Ruling and Judgment of the trial Court, is hereby set aside. In place of that judgment set aside, judgment is hereby entered for the defendants/appellants granting their application to amend their statement of defence. Consequently, the case between the parties is hereby remitted to the trial High Court of Justice of Rivers State for hearing by another Judge on the pleadings of the parties as amended.

With this conclusion, there is now no need to consider the appeal on the remaining two issues for determination.

I am not making any order on costs.

---

SC.88/2001

Shena Security Company Ltd V. Afropak (Nigeria) Ltd & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C.

In a writ of summons taken from the High Court of Justice of Ogun State holden at Ota Judicial Division (trial court for short), the plaintiff made the following claim against the defendant:

“[i] A declaration that the unilateral termination by the Defendant of the plaintiff’s contract for service with the Defendant on the 22nd October, 1992 is unlawful, null and void.

[ii] N35,913.00 (Thirty Five Thousand, Nine hundred and Thirteen Naira) special and general damages for unpaid services and unlawful termination of the contract of employment between the plaintiff and the Defendant and/or for breach of contract.

SPECIAL OF PARTICULARS DAMAGES

[a} unpaid services for September, 1992 – N4,667.00

[b} unpaid services for October, 1992- N2,846.00

[c} Expected earning for the rest of October,

1992, November, 1992 and December, 1992 – N8,400. 00

N15,913.00

In paragraph 21 of his statement of claim, the plaintiff “Claims as per the writ of summons.”

The defendant denied the claims of the plaintiff in its entirety and maintained that the whole claim was misconceived, speculative gold digging, vexatious and frivolous and a grand abuse of due process of court which should be dismissed with substantial costs.

After taking evidence from the parties and closing addresses, the learned trial judge found that the termination of the plaintiff’s employment by the defendant was unlawful. He also found that the original contract was varied. He held that the plaintiff was only entitled to one month’s notice to terminate the contract or one month’s payment in lieu thereof. No general damage was awarded, according to the plaintiff but a sum of N15,001.00 was awarded.

Dissatisfied with some aspects of the trial court’s decision, the plaintiff appealed to the; Ibadan Division of the Court of Appeal (court below). The court below dismissed the appeal.

Further dissatisfied, the plaintiff, now appellant before us, appealed to this court on three grounds of appeal.

The parties filed and exchanged briefs of argument on the appeal. in his briefs learned counsel for the appellant formulated the following issues:

“[i] Whether the Appellant needed to prove more by evidence than that the contract was one of general hiring (which could only be terminated with the current year)

[ii] Whether the Court of Appeal was right to accept that one month’s pay in lieu of notice was adequate to compensate the Appellant in the circumstance.

[iii] Whether general damages should not have been awarded.”

Learned counsel for the respondent adopted the three issues formulated by the appellant, on behalf of the respondents. Before I go into the arguments proffered by the parties, permit me my Lords, to give a brief account of the facts leading to this appeal.

A parole contract was entered between the appellant and the 1st respondent for the supply of six (6) security guards. The contract commenced according to the appellant from the 15th of November, 1991 and there was no fixed duration. The six security men comprised of four ordinary security men, each at the rate of N420:00 per month and two supervisors each at the rate of N500:00 per month.

At the end of August, 1992, the parties yet agreed that the appellant would supply seven (7) ordinary guards each at the rate of N500:00 per month and two (2) supervisors each at N600:00 per month as from September, 1992. Here again, there was no fixed term, nor was the contract written, signed or sealed.

The appellant stated that apart from the fact that the 1st respondent did not settle the bill of the appellant as in Exhibit A, presented for September, 1992, it unilaterally, without any just cause and due process, terminated the contract on the 22nd October, 1992. The appellant instituted an action at the trial court and made the following claim as per its amended writ of summons and statement of claim:

“1. N76,004. 00, special and general damages for unpaid services and unlawful termination of the contract of employment between the plaintiff and the defendant and/or for breach of contract.

2. A declaration that the unilateral termination by the defendant of the plaintiff’s contract for service with the defendant on the 22nd October, 1992 is unlawful, null and void.”

Now in treating this appeal, I think the first thing to be determined is the nature of the contract entered by the parties to this appeal. Learned counsel for the appellant in his issue No.1, submitted that the contract of employment which was terminated was a contract of general hiring and could only be terminated with the current year unless any of the exceptions to the principle was established. No such exception was established in this case. With the new contract entered by the parties on 1st of September, 1992, the contract could only be terminated on the 31st of August, 1993. This was the finding of the trial court. Thus, as the contract was unlawfully terminated in October, the 1st respondent was bound in law to make payment to the appellant up till 31st of August, 1993 not in lieu of notice as such but in lieu of forbearing till the legal end of the contract. Learned counsel for the appellant argued that the legal conclusions reached by the court below are contrary to the position of the law accepted by this court in several decided cases including: International Drilling Co. (Nig.) Ltd v. Ajiyala (1976) NSCC 88, 94 lines 5 – 12.

On the length of Notice to be given, learned counsel for the appellant argued that the position is that of a contract of general hiring i.e. a general hiring which operates as a hiring for a year can only be terminated within the current year unless there is a stipulation or custom or some other circumstances to the contrary. He relied on the case of International Drilling Co. (Nig.) Ltd. v. Ajiyala (supra). Learned counsel argued finally on this issue that the contract is a specie of contract of employment that could only be terminated with the current year and that as it was unlawfully terminated midstream the respondents are liable by implication of law to pay the appellant for the months remaining for that year, i.e. November, 1992 to August, 1993.

Learned counsel for the respondents made his own submission on issue No.1 as follows:

That the trial court and the Court of Appeal were right in holding that the contract did not become a contract of general hiring merely because it has no fixed duration. The nature of the contract was misconceived by the appellant. The contract was not a contract for services. The first respondent did not have a contract of employment with any of the security guards employed by the appellant. The contract was with the appellant to provide security services by supplying security guards.

Learned counsel for the respondents argued further that although the trial court and the Court of Appeal assumed that it was common ground between the parties that the contract in dispute was a contract of employment, he urges this court to apply Order 8 Rule 12(2) of the Supreme Court Rules 1985 (as amended) to hold that the proper inference to be drawn from the facts of this case is that the contract was not one of service or hiring, but a contract for services. He further urged that this court can make such a finding notwithstanding that the respondents did not file a notice of intention to affirm the decision of the Court of Appeal on grounds other than those relied on. He cited the cases of Katto v. CBN (1999) 6 NWLR (Pt 607) 390; Omo Uhafe v. Ese Khomo (1993) 8 NWLR (Pt.309) 58. He argued that the Jackson’s case is completely inapplicable to the facts of this case.

Learned counsel for the respondent submitted that the appellant seemed to have overlooked the finding of the learned trial judge that one month would be the reasonable notice for both parties for the termination of the contract. The appellant, he argued, did not attack this finding. The trial court and the Court of Appeal were right in holding that one month’s notice was sufficient.

Now from the pleadings of the parties it is clear that in the plaintiff’s amended statement of claim, the following averments were made:

“3. By an oral agreement between the plaintiff and the Defendant, the plaintiff was engaged by the Defendant to supply security guards at the Defendants factory at Sango – Otta, in addition to the security guards engaged by the Defendant.”

In its statement of Defence, the defendant averred as follows:

“3. The Defendant denies paragraph 3 of the statement of claim and says that the security services of the plaintiff the Defendants factory and premises.”

The trial court made its finding on the nature of the contract between the parties in the following words:

“I have read the evidence as contained in this case I have no difficulty in coming to the following conclusion:

[i] The valid contract was that of employment. ”

The court below held as follows:

“The law is settled that in action for wrongful termination of appointment, as in the instant case, the onus is on the plaintiff to prove, among others, the terms of the agreement allegedly breached. He is therefore required to place before the court the Terms of the Contract of employment, and to prove in what manner the said terms were breached by the employer.”

Thus, the two courts below found the contract entered by the plaintiff and the defendant to be that of employment.

A contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. That is by the definition of the Labour Act (Cap. 198) LFN, 1990 which applies to workers, strictly defined to the exclusion of the management staff. A worker is defined by the Labour Act as any person who has entered into or works under a contract with an employer whether or written and whether it is a contract of service or a contract personally to execute any work or labour (section 91 of the said Act). This contract is commonly referred to as “Contract of Service.” But where the contract allows the contractor to work for people other than the employer, on the other hand, these are persons referred to as independent contractors or self -employed.

Where there is a dispute as to which kind of contract the parties enter, there are factors which usually guide a court of law to arrive at a right conclusion. For instance:

[a] If payments are made by way of “wages” or “Salaries” this is indicative that the contract is one of service. If it is a contract for service, the independent contractor gets his payment by way of “fees”. In alike manner, where payment is by way of commission only or on the completion of the job, that indicates that the contract is for service.

[b] Where the employer supplies the tools and other capital equipment there is a strong likelihood that the contract is that of employment or of service. But where the person engaged has to invest and provide capital for the work to progress that indicates that it is a contract for service.

[c] In a contract of service/employment it is inconsistent for an employer to delegate his duties under the contract. Thus, where a contract allows a person to delegate his duties thereunder, it becomes a contract for services.

[d] Where the hours of work are not fixed it is not a contract of employment/of service. See: Milway (Sourthern) Ltd. v. Willshire (1978) 1 RLR 322

[e] It is not fatal to the existence of a contract of employment/of service that the work is not carried out on the employer’s premises.

However, a contract which allows the work to be carried on outside the employer’s premises is more likely to be a contract for service.

[f] Where an office accommodation and a secretary are provided by the employer, it is a contract of service/of employment.

Now applying the above criteria to the appeal on hand, and, although the contract between the appellant and the respondent was not one reduced into a formal one i.e. by writing, signing and sealing, it appears to me to be a contract of service/employment. I easily find support in the pleadings and evidence of the parties.

In the amended statement of claim, the plaintiff claimed that:

“3. By an oral agreement between the Plaintiff and the Defendant, the plaintiff was engaged by the Defendant to supply security guards at the Defendant’s factory at Sango-Otta, In addition to the security guards engaged by the Defendant.

5. The Plaintiff commenced the supply of security guards to the Defendant on the 15th of November, 1991 upon the aforesaid oral agreement.
6. From the commencement of the contract until the 31st of August, 1992 the Plaintiff supplied at least 4 ordinary guards and 2 supervisor guards to the Defendant at the rate of N420.00 (four hundred and twenty naira) per month per ordinary guard and N500.00 (five hundred naira) per month per supervisor guard.
7. At the end of August, 1992 the Defendant’s agents orally instructed the plaintiff to supply additional guards, especially to cater for the newly erected warehouse which had no doors.
8. The plaintiff’s Managing Director agreed to supply 3 additional ordinary guards but upon her insistence it was agreed with the Defendant’s agents that as from September, 1992, every ordinary guard supplied would be paid. N500.00 (five hundred naira) per month while every supervisor guard would be paid N600.00 (six hundred naira) per month.

8a. The Plaintiff avers further that the subsequent variation in terms of contract between itself and the Defendant marked the beginning of a fresh contract between them.

9. Thus in September, 1992, the plaintiff supplied 7 ordinary guards and 2 supervisor guards to the Defendant such that the money to be paid to the plaintiff for that month amounted to N4,667.00 (four thousand, six hundred and sixty seven naira) after the appropriate deduction for absenteeism (for one guard for 2 days) was deducted.
10. In accordance with the practice between the plaintiff and the Defendant (with regards to the contract of employment in issue) the plaintiff caused its Fees Note for the sum of N4, 667. 00 (four thousand six hundred and sixty seven naira) as the payment due for September to be presented to the Defendant but the same was not honoured. The Defendant is hereby put on Notice(sic) to produce the original copy of the Fees Note No. 117 dated the 30th of September, 1992 which will be relied upon at the trial of this case.
11. In October, 1992 the plaintiff supplied 4 ordinary guards and 2 supervisor guards to the Defendant up till the 22nd of October, 1992 when the Defendant unilaterally and unlawfully terminated the contract.
12. The plaintiff avers that on the 22nd of October, 1992 the Defendant’s Managing Director without any justification and due process of the law unilaterally terminated the contract of employment by forcing the plaintiff’s guards out of the Defendant’s premises. ”

Although the defendant denied most of the averments reproduced above, the plaintiff called evidence which, according to the learned trial judge afforded him to conclude that the valid contract entered by the parties was that of employment; it was varied and unlawfully terminated by the defendant (p.346 of the printed Record of Appeal). For the avoidance of doubt and for clarity sake, 1st PW; a Managing Director of the plaintiff/respondent stated in her examination in chief, as follows:

“My Company was engage (sic) in providing security guards for the defendants company from 15th November, 1991 till 22nd October, 1992. The end of the contract was not arranged. We had an oral arrangement with the defendant. We prepared an agreement but it was not signed by the defendant. We were supposed to provide four guards and two supervisors from 15th November, 1991 till end of August, 1992 and we provided as such. At the end of the month of August for none guards we provided 3 (three) guards but no additional supervisors.

From 15th November, 1991 guards were supplest (sic) at N420.00 per guard per month supervisors were supplied at N500.00 per one per month to the end of August, 1992. From August, 1992 the fees for guard were increased to N500.00 per guard per month and N600.00.per Supervisor per month. All these arrangement were made with the General Manager of the Company.

We were always paid by cheque but one or two times we were paid by cash.

At the end of the month my Company issue (sic) fees not to demand payment (sic) and we were paid by cheque. ”

DW2, Personnel Manager to the defendant stated under cross-examination:

“I am not aware of the time the plaintiff was flushed out of the premises. I am not aware of the time the contract between the plaintiff and the defendant was terminated. I am not in a position to tell the court the relationship between the parties. ”

DW 3, Financial Controller of the defendant stated, among others:

“I know the plaintiff Company. We engaged them as security for our Company. The contract with the defendant was not in writing …”

All these have gone to show that the contract entered by the parties was that of service/employment. A contract of hiring and service, on the other hand, as learned counsel for the appellant submitted, that the contract entered by the parties is, is generally taken to be one without limitation of time. Where that is the case, the presumption is that the hiring is for a year whether the contract is oral or is in writing. It is noteworthy however that the presumption exists not only when the original contract was a general hiring, but also when, at the expiration of a contract for a definite period of service, the service is continued under a second contract which is indefinite as to time. See: Halburys Laws of England, Vol. 22 p. 144 Para. 235, Hailsham Edition; Drilling Co. (Nig.) Ltd. v. Ajijala (1976) NSCC 88. Permit me, my Lords, to have recourse, once again, to the facts of this case as contained in the parties pleadings. The plaintiff averred as follows:

“5. The plaintiff commenced the supply of security guards to the Defendant on the 15th ‘of November, 1991.”

6. From the commencement of the contract until the 31st of August, 1992 the Plaintiff supplied at least 4 ordinary guards and 2 supervisor guards to the Defendant at the rate of N420.00 (four hundred and twenty naira) per month per ordinary guard and N500.00 (five hundred naira) per month per supervisor guard.
7. At the end of August, 1992 the Defendant’s agents orally instructed the plaintiff to supply additional guards, especially to cater for the newly erected warehouse which had no doors.
8. The plaintiff’s Managing Director agreed to supply 3 additional ordinary guards but upon her insistence it was agreed with the Defendant’s agents that as from September, 1992, every ordinary guard supplied would be paid N500.00 (five hundred naira) per month while every supervisor guard would be paid N600.00 (six hundred naira) per month.

8a. The Plaintiff avers further that the subsequent variation in terms of contract between itself and the Defendant marked the beginning of a fresh contract between them.

9. Thus in September, 1992, the plaintiff supplied 7 ordinary guards and 2 supervisor guards to the Defendant such that the money to be paid to the plaintiff for that month amounted to N4,667.00 (four thousand, six hundred and sixty seven naira) after the appropriate deduction for absenteeism (for one. guard for 2 days) was deducted.
10. In accordance with the practice between the plaintiff and the Defendant (with regards to the contract of employment in issue) the plaintiff caused its Fees Note for the sum of N4,667.00 (four thousand six hundred and sixty seven naira) as the payment due for September to be presented to the Defendant but the same was not honoured. The Defendant is hereby put on Notice(sic) to produce the original copy of the Fees Note No. 117 dated the 30th of September, 1992 which will be relied upon at the trial of this case.
11. In October, 1992 the plaintiff supplied 4 ordinary guards and 2 supervisor guards to the Defendant up till the 22nd of October, 1992 when the Defendant unilaterally and unlawfully terminated the contract.
12. The plaintiff avers that on the 22nd of October, 1992 the Defendant’s Managing Director without any justification and due process of the law unilaterally terminated the contract of employment by forcing the plaintiff’s guards out of the Defendant’s premises.
13. By a letter dated the 19th November, 1992 (written upon the instruction of the plaintiff while hoping for an amicable settlement of the matter), Seun Akinbiyi Esq. (as Solicitor) sent the plaintiff’s Fees Note for October, 1992 to the Defendant and demanded payment of the sum of N7,513.00 (seven thousand, five hundred and thirteen naira) as sum due to the Plaintiff for supplying security guards to the Defendant in September and October (up to the 22nd October).

The Defendant is hereby put on Notice to produce the original copy of Seun Akinbiyi’s letter together with the plaintiff’s Fees Note No. 126 dated the 3rd of November, 1992 which will be relied upon at the trial of this case.

14. The Defendant to accede to the demands contained in the aforesaid letter of Seun Akinbiyi Esq.
15. The Plaintiff contends that the Defendant is liable to pay not only for the remainder of October, 1992 but also for the next 10 months namely, November, 1992, to August, 1993 over which the contract was expected by the plaintiff to have lasted, or which would have served as a moderate notice to the plaintiff.
16. The average earning per month expected by the plaintiff from the Defendant is N3,200.00 (three thousand, two hundred naira). ”

The defendant denied and it averred as follows:

“4. The Defendant denies paragraphs 4, 5, 6 and 7 of the statement of claim and specifically denies that at no time was there any instruction or demand made for additional security guards.

Since the whole premises had been placed in the hands of the plaintiff, the plaintiff as a security company must know the number of guards it will engage for that purpose. There was no warehouse built on the Defendant premises without doors.

5. The Defendant denies paragraph 8 of the statement of claim and maintains that it never agreed to additional guards being used or the contractual rate be increased.
6. The Defendant denies paragraph 9 and says that it was not liable to pay for services not rendered and did not agree to increment in the contractual rate or three additional guards.
7. The Defendant says in respect of paragraph 10 that since the fee note did not reflect the contractual rate and more importantly, the services contracted for were not rendered but negated by the felonious activities of the plaintiff’s employees, it refused to pay.
8. The Defendant denies averments contained in paragraphs 11 and 12 and strictly says that at no time was the plaintiff under the Defendant’s contract of employment.
9. The Defendant avers further to the foregoing paragraph that the contractual relationship between it and the plaintiff is independent of any employment, the plaintiff was merely an independent security contractor.
10. The Defendant denies paragraphs 13 and 14 and puts the plaintiff to the strictest proof of the liability contained therein.
11. In respect of the tenure of the contractual relationship, the Defendant denies that there was an agreed tenure for the security services contract to last, and further maintains that it was not liable to give “redundancy allowance” to the plaintiff as is implied under paragraph 15 of the statement of claim.
12. To the extent that the Defendant is not a Master to the plaintiff, but a mere contractual party, paragraphs 16, 17, 18, 19 and 20 are expressly denied and controverted and the plaintiff is put to the strictest proof thereof.
13. The Defendant maintains that there was total failure of consideration in respect of the security contract and the parties were discharged.
14. The Defendant says that since the plaintiff turns itself into wolves in sheep’s clothing rather than the keeper and guard of the Defendant’s properties, the Plaintiff cannot be said to have earned the September/October, 1992 claim, as its agents and employees looted the Defendant’s properties and negated its obligation to maintain security services by these conducts.”

The learned trial judge made his own findings as follows:

“It is in evidence in this case that there is no written agreement and therefore the parties orally agreed to supply the defendant numbers of guard and supervisors and until September, 1992, the defendant was paying at the end of every month after a demand by the plaintiff.

When there is no written agreement parties can be taken to agree either on the practice of the trade or by conduct. In this case there is always a supply of guard at monthly and payments are made monthly. In that wise would be (sic) the reasonable notice for both parties for the termination of the contract…. In the presence case (sic) I am of the view that parties are to be judged by their conduct in the execution of the agreed contract ….As I have said earlier the reasonable notice in this case is only one month and cannot be more.”

In affirming that decision, the court below, per Akintan, JCA (as he then was) stated, inter alia:

“The position of the law as regards the length of notice required to terminate an employment when there is no express or specifically implied provision for the termination of an appointment by notice is that the common law will imply a presumption that the appointment can be terminated by giving reasonable notice by either side. See: HONIKA SAWMILL NIG. LTD. v. HOFF (supra). However, what will amount to reasonable notice in every case will depend on the facts of each case. In other words, there is definitely no laid down rule as claimed by the appellant, that in an unwritten contract of employment by which a worker would be paid a specified sum of money every month, has to be terminated by giving one year notice or by paying a year’s salary in lieu of such notice in the event of a breach.

I therefore hold that the applicable principle is still that all that an employer or employee wishing to terminate an employment in this category, as in this case, is to give reasonable notice of his intention to the other side. As no specific period is prescribed as a reasonable period, I have no doubt in holding that the award of one month’s pay in lieu of the necessary notice made by the learned trial judge is quite appropriate. There is therefore no merit in the appeal as it relates to that issue. ”

In view of the above findings of the two lower courts that the contract between the parties was that of service and that from all the material facts pleaded and the evidence led there is nothing to support that there is any stipulation or agreement as to the manner of termination or length of notice of termination required, the trial court had nothing more to do than to fall back to the normal practice of what happens when parties have made no provision governing notice of termination.

Where a contract of services provides for termination by either party giving a specified and pre-agreed period of notice, this poses no problem at all as to how the contract comes to an end when either party exercises his right to give notice of intention to bring the contractual relationship to an end. This, in fact, tallies with the stipulation of section 11(i) of the Labour Act, Cap. 198 LFN, 1990 which states:

“Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so. The notice to be given for the purposes of subsection (1) above shall be:

One day, where the contract has continued for a period of three months, or less, one week, where the contract has continued for more than three months but less than two years. Two weeks, where the contract has continued for a period of two years but less than five years and, one month where the contract has continued for five years or more. ”

The above provision, it should be noted, is without prejudice to the common law right of an employer to dismiss without notice for certain gross misconduct of the employee.

The 2nd situation is where the contract of service is for a fixed term. This is where the term of service is pre-determined at the commencement of the contract. Notice mayor may not be in the contemplation of the parties. The proposition here is that in such a contract the employee cannot be removed during the period of the term contracted except for misconduct or where the employer dies. See: Igbe v. Governor of Bendel State (1983) 2 SC 14. Where the contract of an employee is determined before the expiration of the term agreed, the employer shall be made to pay the employee the full salary he would have earned for the unexpired period of his fixed contractual term. See: Swiss Nigeria Wood Industries Ltd. v. Bogo (1970) NCLR 423. Thus, this kind of contract also poses no problem, although the trial court may consider taking into consideration some factors in determining the amount to be paid, such as the fact that the money is being paid in bulk and in advance and the employee has the opportunity of investing it. See: Ifander v. 8erius (1961) All NLR 40; Garabadia v. Jarma-kani (1961) 1 All NLR 177; Orosanye v. Electricity Corporation of Nigeria (1969) NSCC, Vol. 6, 128.

The 3rd and last situation which poses no problem again in matter of notice is where the contract of service expires by performance or on the happening of a specified event. Here, performance of the specified duty or event within an indeterminate period brings the contract of service to an end.

Now, where there is no mode of termination of the contract of service by any form of notice, the common law rule will apply. That rule is that the court will imply a presumption that contract of service is to terminate by reasonable notice given by either party. What amounts to reasonable notice will depend on the intention of the parties as revealed by the terms of the contract. In Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303; Maiduguri Flour Mill Ltd. v. Abba (1996) 9 NWLR (Pt.473) Page 506. There is support that where there is a contract of service which contains no provision for notice required for termination thereof, there is an implied term that the contract can only be terminated by reasonable notice. What is reasonable notice is dependant upon [a] the nature of the contract and [b] the status of the employee in the establishment. Thus, the higher the position held by the employee, the larger his salary, the longer will be the notice required to put his contract to an end. In Daniels v. Shell B. P. Development Co. Ltd (1962) All NLR 19, it was held that the period of notice could be determined from evidence offered by the servant as to the period of notice normally given to staff of similar status and that a custom or trade practice may be presumed to have been incorporated into the terms of contract where no provisions are agreed.

In the appeal on hand, the appellant did not in anyway attack or refute the above finding of the trial court which was affirmed by the lower court that acceptance of monthly payments by the appellants was an indication of the period of notice necessary to determine the contract.

At this juncture, it is pertinent now to answer learned counsel for the appellants on the point he tenaciously held that the contract entered by the parties was that of general hiring which operates as a hiring for a year and can only be terminated with the current year unless there is stipulation of custom to the contrary. The case cited and relied upon by the learned counsel for the appellant is International Drilling Co. Nig. Ltd. v. Ajijala (supra). The other authority relied upon by learned counsel for the appellants is the provision from the Halsburys Laws of England, Vol. 22, p. 144 paragraph 235 which was applied in the English case of Jackson v. Hayes Candy & Co. Ltd. (1938) 4 All E. R. 587 paragraph 3 where it was stated:

“If a contract of hiring and service is a general/ hiring, that is to say, without limitation of time there is a presumption that the hiring is for a year whether the contract is oral or in writing. This presumption exists not only when the original contract was a general hiring, but also when, at the expiration a contract for a definite period of service, the service is continued under a second contract which is indefinite as to time …”

On the case of International Drilling Co. Nig. Ltd. v. Ajijala (supra), learned counsel for the appellants would have given us the basic facts giving rise to that case and what this court said in relation to the principle of the law governing a contract which makes no provision for its termination during its tenure. The brief facts of Ajijala’s case (Supra) are that Mr. Ajijala (respondent) was employed as a camp Boss on a salary of 340.00 a month under a written service agreement, clause 6 of which provided that the agreement may be terminated at any time during its tenure by either party giving to the other two weeks notice of termination or on the payment of 2 weeks wages in lieu of notice. Clause 5 puts the contract on yearly basis unless notice of termination is served by either party. The agreement which was operative from 16th January, 1971 was terminated without giving the 2 weeks notice or payment of salary in lieu of notice on 16th March, 1972. The respondent sued for ‘a32,395 damages. The Appellant offered ‘a344:12s:3d special damages. The appellant appealed to the Supreme Court.

The Supreme Court held that the trial Judge erred by applying the principle of law governing a contract which makes no provision for its termination during its tenure. On a proper Construction of clause 6 of the agreement, all the plaintiff was entitled to was the amount already paid into court viz. two weeks salary plus leave entitlements. Obaseki, AG. J.S.C, stated:

“In our view, as there are express provisions in clauses 5 and 6 of the written contract of service (exhibit A) in the case in hand, that the contract should operate as a yearly contract of service until termination, by giving two weeks notice or by payment of two weeks salary in lieu of such notice, the presumption arising from general hiring does not arise. Indeed, it is outside the province of the learned trial judge to look anywhere for terms of termination of the contract other than in the Agreement, exhibit A.

The words “at any time” in the sentence – This Agreement may be terminated at any time during its tenure, cannot by any stretch of the imagination be construed to mean only the end of the year of contract.

We are therefore satisfied with the contention of learned counsel for the defendants/appellants that clause 6 of the Agreement was not given its correct construction by the learned trial judge.”

It is clear now that the contract of service involved in the case of Ajijala (supra) was not of general hiring.

The quotation drawn by learned counsel from the Halsbury’s Laws as relied upon by DU PARCO L. J., sitting as an additional judge, at the Kings Bench Division, was in relation to a contract of hiring and service, i.e. one without limitation of time. DU PARCO, L. J. stated inter alia:

“The law with regard to the duration of contracts between master and servant is set out in HALSBURY’S LAW OF ENGLAND, Hailsham Edn; Vol. 22, p. 144 Para. 235. The only words I need read from it are these:

‘If a contract of hiring and service is a general hiring, that is to say, without limitation of time, there is a presumption that the hiring is for a year, whether the contract is oral or in writing. This presumption exists not only when the original contract was a general hiring, but also when, at the expiration of a contract for a definite period of service, the service is continued under a second contract which is indefinite as to time…. The presumption of a yearly hiring is capable of rebuttal; it is not an inflexible rule and must be considered in connection with the circumstances of each case’….”

The learned Lord Justice observed further:

“These words are contained in an article for which I see that Hilbery, J. is one of the writers responsible. It is not, of course, authoritative, and I would not quote that passage at the beginning of my judgment but for the fact that it has been in terms approved by one of the members of the Court of Appeal very recently – that is to say, by SLESSER L. J; in DE STEMPEL V. DUNKELS (1937) 2 All ER 215. SLESSER L. J. said at p. 252.

‘……..there is no doubt in my mind that the law is correctly summarised in HALSBURY’S LAWS OF ENGLAND, Hailsham Edn, Vol. 22, p. 144 …..’”

DU PARCQ L. J. was however of the view that there is no inflexible rule that a general hiring is a hiring for the year. There might be many circumstances which would rebut the presumption of yearly hiring apart from the question of whether or not a custom was proved, which would show that a yearly hiring could not be intended. DU PARCQ L. J. concluded that the fact that the employee was to be paid by Commission calculated on a complete year rather supports the presumption of a yearly hiring, because unless he served the year, he would not have a chance of being paid commission, and he was to be paid not only an annual salary, but also a commission, which is not payable yearly but also calculated on the whole year. This, in my view, puts to rest the issue of whether the contract of service entered by the partied is that of a yearly hiring or is a simple contract of service. This is because the difference has now been made clear. I am thus satisfied that the authorities cited by learned counsel for the appellants, i.e. the case of International Drilling Co. Nig. Ltd. v. Ajijala (supra) and the English case of Jackson v. Haves Candy & Co. Ltd. (supra) are materially distinguishable from the appeal on hand. The later is found to be based on a simple contract of service. The former, particularly the case of Ajijala was, though a contract of service, but with specific clause relating to a period within which any of the parties can exercise his right to terminate the contract. The English case of Jackson, persuasive as it is, was decided on the principle of a contract of hiring. Thus, none of the authorities cited by the learned counsel for the appellant is on all fours with the current appeal. The trial court was right in my view to have applied the principle of reasonable notice, which, from the custom and mode of the operation of the verbal contractual terms of the partied, could only imply one month notice.

The line toed by learned counsel for the appellants in arguing issue No.1 is that he was of the forgone conclusion that the contract entered by the parties to this appeal was one of general yearly hiring or one with specified duration for notice of termination of the contract. My findings as above have now shown otherwise. I am together with the two lower courts in their decisions that one month’s pay in lieu of notice is adequate in the circumstances prescribed in the appeal. This is in line with the common law principle that where no time duration is agreed upon within which to terminate a contract of service, the court shall fall back to the principle of reasonable notice taking some factors (mentioned earlier) into consideration.

I resolve issues 1 and 2 in favour of the respondents.

Appellants issue No.3 is on the award of general damages, that it should have been awarded to the appellant. Learned counsel for the appellant contended fervently that the appellant suffered a loss, which is not direct, specific or special but is general in nature and it is measurable by or comparable to the interest in monetary quantum which the appellant could have earned. The loss is the fact that the appellant was deprived of the money which it had earned as well as money which it ought to have earned but the 1st respondent kept custody of and took advantage of the monies. The money which the appellant had earned was the payment for September and October, 1992. A demand for the payment was made but it was not honoured. The appellant, learned counsel argued, should not have been impoverished. Several English cases were cited among which are: Hadley v. Baxendale 9 Exch 354 or 156 E. R. 151; Jefford v. Gee (1970) 2 W. L. R. 702. Our own case of Swiss Nigerian Wood Industries Ltd. v. Bogo (supra) was also cited.

Learned counsel argued further that the principle operated in such a way that the damages by way of interest is awarded whether it is specifically claimed or not. He strongly urged us to be persuaded by the Jefford’s case (supra).

In his submission, learned counsel for the respondents argued that the appellant has been unable to establish that general damages ought to be awarded. If such award is not permitted by law, the question whether such general damages should be calculated by way of interest becomes irrelevant.

The learned trial judge held in respect of the claim for damages as follows:

“On the issue of failure of the lower court to award interest on the sum granted to the appellant, such an award cannot be made by the lower court because the appellant did not include a claim for interest in its claim before the court and as the court is not a charitable institution, the lower court was right by not granting such an award. This is particularly so because the claim for interest in the instant case is not one that the court ought to make as of right. See: ENAHORO v. I. B. W. A. Ltd (1971) l NCLR 180; and JOS STEEL ROLLING CO. LTD. v. BERNESTIELE Nig. Ltd. (1995) 8 NWLR (Pt.412) 201.”

The damages recoverable usually in cases of wrongful dismissal/termination have well been pronounced upon by our courts in several decided cases, such damages are said to be the losses reasonably foreseeable by the parties at the time of the contract as inevitably arising if one breaks faith with the other. Certainly, they do not include or take account of speculative or sentimental values. The court in awarding damages will certainly not include compensation for injured feelings or the loss that may have been sustained from the fact that the employee having been dismissed makes it more difficult for him to obtain fresh employment. See: Ajolore v. Kwara State College of Technology & Anor (1980) FNLR 414.

It is to be noted as well that the contract of service between the parties in this appeal was a simple contract with no fixed period of notice. The learned trial judge found as a matter of fact that apart from the one month salary paid in lieu of notice, the appellants were entitled to payments for the work they did in the months of September and October, 1992. These were part of the total sum payable to the appellants. I think the learned trial judge was correct. I also think that the court below was justified in affirming that decision and refusing to endorse the request on interest payment. I hold the same view also. I venture to add that when such new propositions of law which can hardly find a resting place in the prevailing law as it is presently advocated by learned counsel for the appellants that is substituting damages which is the known and acceptable method of classifying a wrongfully dismissed employee with claim for interest, a lot of inc81culable damage will be done to the law. After all, no claim for interest was made in the appellant’s pleadings. A court of law is not known or equated to a charitable organisation or Father Christmas distributing largesse to all and sundry. I think the awards made by the learned trial judge and affirmed by the court below are in order. I too affirm same.

In the final result, Hind no merit in this appeal and I dismiss it. Order each party to bear its own costs in this appeal.

---

SC.368/2002

Benjamin Onwughamba Ezenwa V. Okpara Oko & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, holden at Enugu in appeal no. CA/E/102/79 delivered on the 11th day of November, 1999 in which the court dismissed the appeal of the appellant against the judgment of the High Court of Imo State holden at Afikpo Division in suit no. HAF/13/78 delivered by that court on the 18th day of June, 1979 in which it dismissed the appellant’s claim for statutory right of occupancy, trespass, injunction and specific performance, but awarded the sum of N500.00 (Five hundred naira) damages in lieu of specific performance.

On the 26th day of May, 1978, the appellant, as plaintiff, caused a writ of summons to be issued against the respondents, as defendants, claiming the following reliefs:-

“(i) A declaration that plaintiff is the person entitled to a statutory right of occupancy to a parcel of land near Eke Market, Afikpo and which is part of a larger area of land situate at Amachi village, Afikpo in Afikpo Local Government Area of Imo State within Judicial Division, the annual value which is N10.00 (ten naira).

(ii) N500.00 (Five hundred naira) being general damages for trespass upon the said land.

(iii) Injunction perpetually restraining the defendants, their servants, agents and workmen from further entry upon or interference with the land.

(iv) Specific performance against the defendants in respect of the contract and for lease agreement made on the 26th day of January, 1965 in connection with the renewal of the lease.”

The facts of this case are very simple and straight forward just as they remain undisputed. The original 1st defendant granted a lease of the property in dispute to the appellant on the 26th day of January, 1965 for 10 years as evidenced in exhibit A. Exhibit A was therefore to expire on 26th day of January, 1975, with an option for renewal. In 1966, appellant took possession of the land and laid foundation for a concrete building thereon up to the floor level before the Nigerian civil war forced him to flee Afikpo to his home town, Achina from where he returned in 1971 to find motor mechanics in occupation of the property who atoned tenancy to him as appellant continued with the leasehold.

Sometime in February, 1975, the appellant approached the original 1st defendant/respondent for the renewal of the lease who refused to allow appellant exercise the option and refused to collect further rents from the appellant on the ground that the original 1st defendant/respondent has made a gift of the land in dispute to the 3rd respondent.

On his part, the 3rd defendant/respondent knew of the lease to the appellant and the fact that the mechanics on the land were the sub-tenants of the appellant. In 1978, the 3rd respondent peacefully quitted the mechanics from the land and surveyed same after which the land was formally conveyed to the 3rd respondent by the 1st respondent and he commenced building thereon in April, 1978. In May, 1978, when it finally dawned on the appellant that the 1st respondent had no intention of changing his mind on the option of renewal of the lease, the appellant instituted this action claiming the reliefs earlier reproduced herein.

Learned counsel for the appellant, Chief H. B Onyekwelu in the appellant’s brief filed on 30th day of September, 2007 and adopted and relied upon at the hearing of the appeal on the 29th day of October, 2007, formulated the following issues for the determination of the appeal, to wit:

“3.1 Whether specific proformance of the appellant’s equities cannot be enforced against the 3rd respondent whose ostensible interest over the land is that of a mere volunteer, but is the alleged successor in-title of the 1st respondent;

3.2 Whether on the facts of the case, the appellant was guilty of delay at all or such delay as in the circumstances could deprive the appellant, enforcement of specific performance against the 1st respondent or the 3rd respondent or their successors-in-title;

3.3 Whether fraud or unconscionable behaviour should be specifically pleaded as against setting out facts in support thereof;

3.4 Whether the appellant was not entitled to notice to quit from the land if so what would be the length of time of the notice, in view of exhibit A which was a lease for ten years, in the first instance;

3.5 Was the court of appeal right in holding that the 3rd respondent was not liable in trespass on the facts and applicable law in the circumstances; AND that the appellant was not entitled to damages at all in lieu of specific performance If not whether the appellant is not entitled to the market value of the land and improvement thereof by the appellant, of the property so well commercially situated;

3.6 If the Supreme Court holds that the appellant is entitled to specific performance, is the lease perpetually renewable or merely for another ten years or so;

3.7 Whether the provisions of the Land Use Act 1978, made it impossible for an order of specific performance to be entered against the 1st and 3rd respondent.”

On the other hand, learned counsel for the respondent, Chief Ebele Nwokoye identified the following issues for determination in the respondent’s brief filed on 18th day of October, 2005:-

3.1 Whether specific performance of this appellant’s equitable interest could not have been ordered by the court below in the circumstances of this case;

3.2 As opposed to appellant’s 2nd issue, whether the appellant has pleaded, argued and satisfied the court that the special reasons to interfere with the concurrent findings that appellant did not come to court promptly to claim the equitable relief of specific performance;

3.3 As opposed to appellant’s 3rd issue, whether the appellant pleaded fraud and, if so, why the appellant is at pains to pinpoint paragraphs of the statement of claim where he did so;

3.4 As opposed to appellant’s 4th issue, whether the appellant who did not appeal against the finding of the High Court that he was quitted from the disputed land peacefully can now agitate the contrary view, without specific leave to do so and furthermore, whether the appellant has pleaded, argued and satisfied the court on special reasons or circumstances to interfere with the concurrent finding on the issue by the two lower courts;

3.5 Appellant’s 5th issue is hereby adopted for argument;

3.6 Appellant’s 6th issue is hereby opposed on the ground that it is not based on any ground of appeal before the court. Awosile v. Sotunbo (1992) 5 NWLR (Pt.243) 514, (1992) 6 SCNJ 182;

3.7 Appellant’s 7th issue is hereby opposed on the ground that it is not based on any ground of appeal before the court. Awosile v. Sotunbo (1992) 5 NWLR (Pt.243) 517; (1992) 6 SCNJ 182;

3.8 It is further submitted that no issue have been raised on the grounds of appeal numbered (3) (9) ( 11) and (12) and those grounds are therefore deemed to have been abandoned. David Ogunlade v. Ezekiel Adeleye (1992) 8 NWLR (Pt.260) 409, (1992) 10 SCNJ 58.”

It is important to note at this stage that the learned counsel for the appellant filed no reply to the brief of the respondents in answer to the complaints as to whether appellant’s issues 6 and 7 arose from the grounds of appeal before this court and also the abandonment of grounds 3, 9, 11 and 12 of the grounds of appeal following the non formulation of issues therefrom.

The above complaints are very germane as it is settled law that whereas ground(s) of appeal must arise from the decision appealed against, issues for determination must be formulated from the said grounds of appeal otherwise they are invalid. In that respect, it is my view that appellant’s issues 6th and 7th not having been formulated from any of the grounds of appeal filed in this court, are incompetent and are hereby struck out.

As regards appellant’s issue no.4, I agree with learned counsel for the respondents that appellant never appealed against the concurrent finding by the lower court that appellant was quitted from the land in dispute peacefully and cannot now turn round to argue the contrary, without leave of the court. To that extent, the argument on appellant’s issue no.4 is hereby discountenanced.

With respect to grounds 3, 9, 11 and 12 of the grounds of appeal filed in this court in respect of which no issue(s) has/have been formulated. It is settled law that the said grounds are deemed abandoned by the appellant and liable to be struck out. I hereby order accordingly.

Be that as it may, it is unfortunate that from the simple and straight forward facts of this case, which is very much undisputed, so many issues could have been properly raised for determination when the primary issue before the court remains whether having regards to the facts and circumstance of the case, appellant was entitled to a decree or order of specific performance, every other issue remains ancillary if at all relevant.

In arguing issue 1, learned counsel for the appellant submitted that the 3rd respondent, having stepped into the shoes of the 1st respondent in respect of the land, was bound by any equities attached to the land in that before he acquired his supposed interest, the 3rd respondent was a volunteer with full knowledge of the appellant’s equities in the land; that it is trite law that where a purchaser of land or a lessee is in possession of the land and has paid the purchase money to the vendor or has paid the rent to the lessor as the case may be, then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land, for value without notice of the prior equity, relying on the case of Obijuru v. Ozims (1985) 2 NWLR (Pt. 6) 167 at 179. Learned counsel also cited and relied on Vol. 36, Halsbury’s Laws of England (3rd Ed. 330 Para. 482) which states that “where there is a contract for the sale or demise of property and the property is thereafter transferred to a third party, the general principle is that specific performance may be had against the transferee;

(i) If he is a volunteer, or

(ii) Takes with notice of the prior contract, or

(iii) Acquired only an equitable title and has no better equity than the purchaser or intended lessee.

Learned counsel for the appellant argued that the 3rd respondent being a volunteer who also took the land with notice is liable to specifically perform the contract of renewal attached to the land by virtue of exhibit A, that the lower court was in error when it held that specific performance cannot be ordered against the 3rd respondent because he was not privy to the agreement to renew the lease particularly as that court had earlier held that the 3rd respondent stepped into the shoes of the 1st respondent in relation to the land in dispute; that it is not correct, as held by the lower court, that the original lease had expired before appellant started to ask for renewal as there is evidence to show that appellant started to demand for renewal before 25th January, 1975 when the lease expired; that even if the lease had expired, appellant continued in possession and was collecting rents from his sub-tenants until April, 1978 thereby being led to believe that the 1st respondent was ready or could be persuaded to renew the lease.

On his part, learned counsel for the respondents referred to the holding of the lower court at page 202 of the record to the effect that “I have already held that at the time appellant went to court, the basis of his claim had lawfully ceased to exist. It was the continued existence of his status of a tenant at sufferance that would have made the 1st respondent compellable” meaning that the appellant lost the status of tenant at sufferance or the relationship of tenant and landlord which must exist to qualify him to seek specific performance to compel 1st respondent and that since appellant cannot compel performance against 1st respondent he cannot also do so against the 3rd respondent; that the lower court did find that the appellant’s option for renewal had ceased to be and there was not, for that reason, a cause of action, sealed the fate of the appellant; that appellant did not appeal against this specific finding and should not now be allowed to impugn same; that the issue of privity of contract does not really arise nor have effect on the conclusion judging from the above findings of the lower court which completely took care of the appellant’s case, that the court should refuse the grant of specific performance on the following grounds:

(a) the trial court refused to exercise its discretion in favour of the appellant and the appellant did not appeal against that refusal;

(b) the Court of Appeal did not interfere with the exercise of the discretion not grant specific performance and, indeed, affirmed what the trial court did as appellant has shown no special circumstances to warrant the interference of this court;

(c) the lower court’s finding that the appellant’s option to renew had ceased to be and there was not for that reason a cause of action even though complained against in ground 11 of the grounds of appeal before the lower court, the same was abandoned when no issue was raised therefrom;

(d) the appellant who covenanted to build on the land could not do so after possessing the land for over 13 years and contented himself with a mere concrete foundation up to floor level;

(e) appellant brought action for declaration of title against his former landlord;

(f) that the claim on specific performance is an after thought as the same was not claimed in the writ of summon; that the claim for specific performance as claimed on the statement of claim was never paid for.

I will begin a consideration of the issue in contention between the parties by stating that it is settled law that the statement of claim supercedes the writ of summons and that what is claimed in the writ but omitted in the statement of claim is deemed abandoned while what is not claimed in the writ but claimed in the statement of claim becomes the claim before the court though subject to the payment of appropriate filing fees where appropriate, In the instant case, the additional relief was not for monetary compensation but for specific performance. It is not that appellant never paid for the filing of the statement of claim but that he failed to pay for the additional relief of specific performance. Learned counsel cited and relied on Order VIII rule 5 of the High Court Rules applicable to Eastern Nigeria Vol. IV Laws of Eastern Nigeria, 1963 which provides as follows:-

“5. The fees prescribed in Part 1 of the second schedule shall be payable by the party prosecuting a proceeding or asking for a service as therein provided in respect of the proceedings or services to which they relate and such fees may afterwards be recovered as costs of cause if so ordered. Fees may be waived or remitted, by a Judge on the ground of the poverty of the person chargeable therewith where it appears that there are substantial grounds for his taking the proceeding or asking for the service to be rendered. Provided however, that a Judge may, where he thinks fit, order any party to pay any fees so waived or remitted.”

Counsel also relied on item 10 of the Part 1 of the second schedule to the above rules which provides for the payment of the sum of E33,15.0 “for any other relief or assistance not specifically provided for “as the basis for his submission that appellant ought to have made payment separately for the relief of specific performance. I do not agree with learned counsel for the respondents in that respect particularly as appellant paid for the filing of the statement of claim, in which the relief is claimed and did so after the registrar duly assessed same for payment. I therefore hold the view that the relief of specific performance is properly before the court and that the lower courts were right in considering whether to award same or not.

Having taken care of the preliminary matter, the issue is whether this is a proper case for the court to exercise its equitable jurisdiction by ordering specific performance.

In cases, where there is a subsisting contract or agreement for the sale or lease of land, the court, being also a court of equity is always inclined to grant specific performance because the land being sold or leased may have a peculiar value or significance to the purchaser or lessee particularly where it is a choice land in a busy commercial centre of the town, as in the instant case.

Since the grant of an order of specific performance is at the discretion of the court, it is always advisable that the party claiming same should call evidence on damages claimed or suffered in the event that the court, for some reason is unable to grant specific performance.

It is also settled law that the onus is on the person who seeks to enforce his right under a contract to show that he has fulfilled all the conditions precedent, and that he has performed all those terms which ought to have been performed by him. Where the plaintiff fails or defaults in the discharge of his own obligations under the contract, the action must fail – See Balogun v. Ali-Owe (2000) 3 NWLR (Pt.649) 477; Ezenwa v. Ekong (1999) 11 NWLR (Pt. 625) 55.

From the above stated principles, it is very clear that a decree or an order of specific performance is a form of relief that is purely equitable in origin and the fundamental rule is that specific performance will not be decreed or ordered if there is an absolute remedy at law in answer to the plaintiff’s claim, for instance, where the plaintiff would be adequately compensated by the common law remedy of damages. The jurisdiction in specific performance is therefore anchored on the inadequacy of the remedy of damages at law – See Afrotec Tech. Servo (Nig.) Ltd. v. MIA & Sons Ltd. (2000) 15 NWLR (Pt. 692) 730 at 790. The question then is, how do the facts of this case fit into the principles guiding the order of specific performance.

It is not disputed that appellant entered into a lease with the 1st respondent in respect of the land in dispute for a term of 10 years which was to expire on 25th January, 1975 with an option to renew same for a further term of years.

The lease duly came to an end by efflux of time though appellant had, meanwhile put up a foundation on the land up to the floor level before abandoning same following the outbreak of the Nigerian civil war. It is important to note that the lease ended without the 1st respondent agreeing to renew the lease nor to accept further rents from the appellant. The lower courts therefore came to the right conclusion when they held that the lease was duly terminated by efflux of time.

However, the action for specific performance appears to be founded on the option to renew contained in the lease between the appellant and 1st respondent.

Learned counsel for the appellant has submitted that the 3rd respondent can be ordered to specifically perform the contract of option to renew particularly as he stepped into the shoes of the 1st respondent and was a volunteer and did take with notice of appellant’s equities-option to renew. By “a volunteer” the law means a person who enters into any transaction of his own free will or a person to which property is transferred without valuable consideration. It is the second meaning that is more relevant to the facts of this case.

We have to bear in mind that the principles of specific performance relate to enforcement of contract entered into between the parties and that a contract involves offer and acceptance of the offer coupled with provision of consideration. One may ask in relation to this case, what is the contract that appellant wants the court to specifically enforce There is only one lease agreement between the parties which lease expired by effluxion of time. With that expiration, any rights arising therefrom became spent or non-existent and consequently unenforceable or is the appellant talking of the option to renew as constituting the contract he wants specifically enforced If so is an option to renew a lease a contract enforceable by specific performance particularly where there is no provision in the lease to the effect that the lease is renewable in perpetuity or that the landlord or lessor shall not withhold consent to renew the lease. Even where there is a provision that the lessor shall not unreasonably withhold consent to renew the lease It still leaves the lessor with the discretion either to renew or not to renew the lease how much more where there is no such provision and the lessor refuses, as in the instant case, to renew the lease. Is he bound to renew the lease”

If the option to renew is considered the contract to be enforced, where is the acceptance of that offer by the lessor 1st respondent, and what, if one may ask, is the consideration so as to make the alleged contract binding and enforceable”. I am unable to see the basic constituents of a valid contract existing between appellant and 1st respondent and by extension 3rd respondent which can be said to be amenable to specific performance having regard to the fact that the only valid contract between them had expired without renewal. It is on the above basis that one has to agree with the lower court that “the appellant’s option to renewal had ceased to be and there was not, for that reason, a cause of action”.

It should be noted that the facts of this case is different from the usual factual situations where specific performance is obtainable. Learned counsel for the appellant has cited and relied on the decision in Obijuru v. Ozims (1985) 2 NWLR (Pt. 6) 167 at 179 where it was held thus:-

“It is trite law that where a purchaser of land or a lessee is in possession of the land and has paid the purchased money to the vendor or has paid the rent to the lessor as the case may be, then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and his equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity” and also Halsbury’s Laws of England (3rd Ed) 330 Para. 482 where it is stated thus:-

“Where there is a contract for the sale or demise of property and the property is thereafter transferred to a third party, the general principle is that specific performance may be had against the transferee,

(i) if he is a volunteer, or

(ii) takes with notice of the prior contract, or

(iii) acquired only an equitable title and has no better equity than the purchaser or intended lessee.”

Though the above statements represent the law applicable to the situations described therein, the principles do not apply to the facts of the instant case because primarily, and this is the most important consideration for its applicability, there is no existing valid contract of lease or purchase of land between the parties, the earlier one having expired by effluxion of time, so the 3rd respondent cannot be said to have taken the property “with notice of the prior contract between the appellant and 1st respondent neither has he acquired any further interest in the property in issue by payment of rents particularly as 1st respondent refused to renew the lease or collect further rents from the appellant. I hold the considered view that an option to renew a lease is an offer made to the landlord, the acceptance of which would constitute a valid contract enforceable by specific performance; it remains an offer until accepted. In the instant case, it was never accepted by the 1st respondent so no enforceable contract exists. I therefore resolve the issue against the appellant.

On the second issue which deals with the question as to whether appellant was guilty of any delay in presenting his case for renewal of the lease, like the other issues, it is my view that their consideration will have no meaningful effect on the position of the case particularly as a resolution of issue no. 1 has rendered the second issue irrelevant. In any event it is not disputed that appellant went to court after three years of the expiration of the lease at which time the 3rd respondent had acquired his interest thereon.

On the third issue which deals with fraud, it is trite law of practice and procedure that for one to rely on fraud in any case he must first and foremost specifically plead same and in addition supply particulars of the alleged fraud so as not to take the other party by surprise. See Order XXXIII rule 13 of the applicable High Court Rules of Eastern Nigeria, 1963.

In conclusion, I find no merit in this appeal which is accordingly dismissed with costs which I assess and fix at N10,000.00 (Ten thousand naira) against the appellant. Appeal dismissed.

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SC.426/2001

Jimoh Michael V. The State (2008)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

In charge No. HCL/6C/2001 before High Court,Kogi State holden at Lokoja, the appellant herein as the second accused with two others were jointly titled on four heads of charge of criminal conspiracy, culpable homicide, armed robbery and mischief by fire contrary to sections 97(1), 221, 336 and 298(c) of the Penal Code Law. The charges read as follows:

1st Head of Charge:

“That you Benjamin Oyakhire, Jimoh Michael and Gershon Soba on or about the 17th day of February, 2001, at Okene within the Kogi State Judicial Division committed culpable homicide punishable with death in that you caused the death of Mamodu Abdullahi Ajawu and the death of Rafiu John, John Ogara, Thomas Ona and Alfa by doing an act to wit: You shot Mamodu Abdullahi Ajawu with a rifle and set Rafiu, John Ogara Thomas Ona and Alfa ablaze with the intention of causing their death and you thereby committed an offence punishable under section 221 read along with section 79 of the Penal Code.”

2nd Head of Charge:

“That you Benjamin Oyakhire, Jimoh Michael and Gershon Soba on or about the 17th day of February, 2001 at Okene within the Kogi State Judicial Division while armed with your service rifles robbed Saka Jimoh, Abdullahi Ajawu, Suleiman Badumos, and other passengers in a vehicle Registration No. OSUN XB 104 SGB of the total sum of N400.000.00 and you thereby committed an offence punishable under section 298 of the Penal Code”

3rd Head of Charge:

“That you Benjamin Oyakhire, Jimoh Michael and Gershon Soba on or about the 17th day of February, 2001, at Okene within the Kogi Judicial Division set a vehicle with the registration No. OSUN XB 104 SGB on fire, intending to cause or knowing that the said vehicle will likely be destroyed or damaged and you thereby committed an offence punishable under section 336 of the Penal Code.”

4th Head of Charge:

“That you Benjamin Oyakhire, Jimoh Michael and Gershon Soba on or about the 17th day of February, 2001, agreed to do an illegal act to wit: to commit armed robbery, culpable homicide and to set ablaze property of another person and you thereby committed an offence punishable under section 97 of the Penal Code.”

The appellant and the other two accused persons pleaded not guilty to the heads of charge. After the trial before Eri, C.J, the accused, including the appellant herein, were convicted as charged. On the 1st head of charge, each accused was sentenced to death, on the second head of charge, each was sentenced to life imprisonment, on the 3rd head of charge, each of the accused was sentenced to 7 years imprisonment, on the 4th head of charge criminal conspiracy, each was sentenced to life imprisonment. All the sentences were ordered to run concurrently. Aggrieved with the decision the appellant herein and the 3rd accused appealed to the Court of Appeal. On the 14/12/2006. the Court of Appeal dismissed the appeal of the appellant and affirmed the decision of the trial court. This is a further appeal by the appellant to this court. The notice of appeal contains two grounds of appeal. One issue for the determination of the appeal was submitted by the learned counsel for the appellant. The issue reads:

“Whether the offence of culpable homicide punishable with death and setting the vehicle on fire as charged against the appellant were proved beyond reasonable doubt as affirmed by the Court of Appeal.”

Before the examination of the issue for the determination of the appeal, it is convenient to state be it briefly the facts, The facts are that, on the 17/2/2001 the appellant and the two other accused were serving policemen in the PMF 37 Mobile Squadron of the Nigeria Police Lokoja. Kogi State. They stopped a commercial passenger vehicle Registration No. OSUN XB 104 SGB at Okene. The vehicle had earlier on took off from Oshogbo through to Akure to Okene and had 10 passengers including PW4 and PW5. The appellant and his partners arrested the vehicle, searched the passengers and saw that some of the passengers had a lot of money on them. The appellant and the other policemen drove the vehicle on the Okene to Lokoja Federal highway and stopped at a secluded spot where they robbed the passengers of their money at gun point.

The total amount robbed was N400,000,00. In the process of the robbery, one of the passengers Mamodu Abdullahi Ajawu was shot dead by one of the policemen. The vehicle was set ablaze and as a consequence the driver whose identity remained unknown, Rafiu, John Ogara, Thomas Ona Alfa and Sarafa Isiyaka, were burnt to death. PW4 and PW5 survived the ordeal by escaping, The only issue in controversy between the appellant and the other policemen was who among them shot and killed the passenger who died of gun shot wounds and the other passengers who were burnt to death. Each accused including the appellant blamed one another. As mentioned above, all the accused including the appellant were at the end of the trial, found guilty as charged and sentenced. The appellant and one other unsuccessfully appealed to the Court of Appeal.

The appeal by the appellant is confined to the affirmation of the conviction of the appellant by the Court of Appeal on the offences of culpable homicide and mischief by fire. The appellant did not appeal against his conviction on armed robbery and criminal conspiracy, It is the law that where there is an appeal on some points only on a decision, the appeal stands or falls on those points appealed against only while the other points or decision not appealed remain unchallenged. So, in instant case, the issue of criminal conspiracy and of armed robbery stand accepted as correct by the appellant and discussion on them does not arise.

It is submitted for the appellant that the cause of death in the instant case cannot be attributed to the act of the appellant. The trial Judge found it was accused No.1 who fired the gun that caused the deaths of the passenger and ignited the fire that caused the burning of the vehicle and the deaths of the other passengers inside the vehicle. The appellant also testified that it was accused No.1 who fired the gun that caused the deaths and burnt the vehicle. It is submitted that since the appellant was not the one who fired the gun that caused the deaths and the mischief, the appellant could not be held responsible for them. It is argued that there must be evidence of intention between the act of the appellant and the resultant offences committed. Learned counsel referred to Okafor v. The State (1990) I NWLR (Pt.128) 614. It is further stressed that the deaths of the victims, are not unequivocally traceable to the act of appellant. Learned counsel referred to the cases of Okorogba v. State (1992) 2 NWLR (Pt.222) 244 at 253. See also Igabele v. State (2004) 15 NWLR (Pt.896) 314 at 336; Nwosu v. The State (1986) 4 NWLR (Pt.35) 348 at 359; Amaike v. The State (2004) 6 NWLR (Pt.870) 541 at 548, it is again argued that the appellant did not by his act cause the fire that caused the damages nor did the evidence manifest any intention on his part to do so.

On the issue of the conviction of armed robbery, section 298(c) of the Penal Code, it is submitted that the charge was framed against the appellant under section 298(b) and that the evidence of the weapon (i.e horse whip) used was not proper, learned counsel referred to the case of Aruna v. The State (1990) 6 NWLR (Pt 155) 125. It is further argued that “horse whip” was not part of the charge nor is it a dangerous weapon see Ibrahim v. The State (1991) 4 NWLR (Pt.186) 399 at 417.

On the issue of common intention, it is submitted that the principle of common intention should not be too readily applicable at all times. Learned counsel referred to the cases of Alarape v. The State (2001) 5 NWLR (Pt. 705) 79 at 110; Ofor & Ofor v. Queen (1955) 15 WACA 4; R. v. Mensah & Anor: (1941) 7 WACA 212; R. v. Bada & Anor (1944) 10 WACA 249.

On the issue of common intention, the learned counsel submitted that there are five ingredients and all must be present vide Okeke v. State (1999) 2 NWLR (Pt.590) 246; Muonwem v. Queen (1963) 1 SCNLR 172; Akanni v. Queen (1959) SCNLR 183; Ajao v. Queen (1959) SCNLR 197; Alabi v. Queen (1959) SCNLR 269; Digbehin v. Queen (1963) 2 SCNLR 371.

It is further submitted that where a co-accused went beyond what was tacitly agreed as the scope of the evil enterprise, the other accused should not be or held liable for the consequences of the extraneous acts. Learned counsel referred to Archbold Criminal Pleading Evidence and Practice, 4th Edition, P. 1423 and the case of R. v. Morris (1966) 2 Q.B. 110.

The learned counsel for the respondent on the other hand submitted that in a criminal trial the prosecution has the onus of proving its case against the accused person beyond reasonable doubt.

Learned counsel referred to section 138 of the Evidence Act and Woolmington v. D.P.P. (1935) A.C. 462; Haruna v. C.O.P (1998) NWLR (Pt.557) 215; Onubogu v. The State (1998) 1 ACLR 141; Morka & Others v. The State (1998) I ACLR 141;(1998) 2 NWLR (Pt.537) 294; Nwankwo v. The State (1990) 2 NWLR (Pt.134) 627.

It is further submitted that to establish an offence of culpable homicide under section 221 of the Penal Code the prosecution must establish beyond reasonable doubt that:-

(a) the death of the deceased;

(b) that the act or omission of the accused caused the death; and

(c) that the act or omission that caused the death was intentional or with knowledge that death or grievous bodily harm would be the probable consequence of the act or omission.Learned counsel referred to the cases of Uguru v. The State (2002) 9 Akpan v. The State (1994) 9 NWLR (Pt.368) 347.

It is submitted that the prosecution clearly established by credible evidence and beyond reasonable doubt all the necessary ingredients for the proof of culpable homicide against the appellant. The learned trial Judge found all the deceased died on the spot when the injury was inflicted. It is not necessary to prove the cause of death where a person was attacked with a lethal weapon such as a gun and he died on the spot. See Bakuri v. The State (1965) NMLR 163 at 164. It is submitted that the deaths of all the deceased in the instant case were caused by gun shot and fire inflicted by the appellant and his colleagues acting towards a common intention and a common end. It is again stressed that there is a clear nexus between the intention and the act of the appellant and his partners in crime and the deaths of all the six persons. That the learned trial judge rightly found as a fact that the appellant and his partners in crime caused the deaths of all the deceased persons and later shared the booty which they were able to cart away from the scene of the mayhem.

It is submitted that when the 1st accused fired the gun into the bus he did it in furtherance of the common intention already formed with the appellant and the 3rd accused as rightly found by the trial Judge. See Alarape v. The State (supra) at 179-184; Oyakhire v. The State (2006) 15 NWLR (Pt.1000) 157; Nwankwoala v. The State (2006) 14 NWLR (Pt.1000) 663. It is further submitted that the absence of the bodies is of no moment. See the cases of Dare Kada v. The State (1991) 8 NWLR (Pt.208) 134 at 137; Lori v. The State (1998) 1 ACLR 267.

It is again added that since the appellant and his colleagues had consented to the commission of crime which resulted in the death of the deceased persons, the appellant must be held liable for the acts of each of his colleagues and partners in crime. Sec the cases of Solomon Ehot v. The State (1993) 5 SCNJ 65 at 77-78; (1993) 4 NWLR (Pt.290) 644; Buba v. The State (1994) 7-8 SCNJ 472; (1994) 7 NWLR (Pt.355) 195.

On the offence of mischief by fire, it is common ground and that there is no dispute about it, that it was the gun shot that caused the fire and accordingly the appellant even if he was not the one who fired the gun but by his partner in crime, he cannot escape liability for the act of his colleague as he had already a common intention with 1st accused to commit a crime. The appellant both in his evidence and his statement to the police admitted participating in the armed robbery, and confessed to the sharing of the loot, he was therefore well aware of the charge and it was of no significance whether it was under section 298(b) or 298(c) of the Penal Code. There was no miscarriage of justice.

It is submitted further that there is no dispute that the appellant and his partners in crime were prosecuting an unlawful purpose of armed robbery in which process Mamodu Ajawu was shot and some passengers were burnt to death, in that case it did not matter whether the appellant himself fired the gun or not. He is deemed in law to have carried out the act himself. See section 79 of the Penal Code law and the cases of Akinkunmi v. The State (1987) 1 NWLR (Pt.52) 608; Alarape v. The State (supra); Adio v. The State (1986) 2 NWLR (Pt.24) 581; Okoro v. The State (supra); Oyakhire v. The State (supra); and Nwakwoala v. The State (supra).

Now, the only issue formulated by the appellant is “whether the offences of culpable homicide punishable with death and setting the vehicle on fire as charged against the appellant were proved beyond reasonable doubt as affirmed by the Court of Appeal” Thus the complaints of the appellant against his conviction on conspiracy and armed robbery, do not form part of the issue and I accordingly discountenance the arguments submitted by counsel on these matters.

See Guobadia v. The State (2004) 6 NWLR (Pt.869) 360. I will say no more about the complaints on the conviction for conspiracy and armed robbery.

In order to establish the offence of the culpable homicide punishable with death, the law requires the prosecution to prove essential the following:

(a) that the death of a human being has actually occurred,

(b) that such death was caused by the act of the accused’s act or omission and was done with the intention of causing death or grievous bodily harm; and

(c) that the accused knew that death would be a probable consequence of his act.

It is also trite that a basic and essential element of the offence of culpable homicide required to be proved that the cause of death must be linked to the act or omission of the accused. See Dare Kada v. The State (1991) 8 NWLR (Pt.208) 134; Nwokedi v.C.O.P (1977) 3 SC 35. Where the deceased died on the spot soon after an injury was inflicted by an accused person, the accused person will be guilty of causing the death. See Adamu v. Kano N. A. (1956) SCNLR 65; Bakuri v. The State (1965) NMLR 163.

It is also the law that in a charge of culpable homicide, the nature of the weapon used, its weight and size are in the circumstances of the case essential in determining whether the conviction should be one of culpable homicide punishable with death or not. See Umaru Gwandu v. Gwandu N.A. (1962) I All NLR 545 at 546; (1962) 2 SCNLR 293.

The charge of culpable homicide as recited at the beginning of this judgment was contrary to section 221 (a) read along with section 79 of the Penal Code. See the case of Nyam P. The State (1964) 1 All NLR 361. Where two or more person, form a common intention to do an unlawful act, such as armed robbery and in furtherance of that unlawful act a person is killed, each of them is guilty of the killing under section 79 of the Penal Code and none of them can claim that it was not his own act or attack that killed the deceased. See Miri v. The State (1968) 1 All NLR 55. See also Maijamaa v. The State (1964) 1 All NLR 212. In the case of Alarape(supra) where common intention under section 8 of the Criminal Code of Ogun State was interpreted, Iguh, JSC delivering the leading judgment of the Supreme Court stated at page 102 thus:

“… I need hardly point out that “common intention” in criminal law may be inferred from circumstances described in the evidence led before the court and need not be provable only by agreement of the accused persons. See Ogu Ofor & Anor v. The Queen (1955) 15 WACA 4 at 5. The test of liability under section 8 of the Criminal Code Law of Ogun State, 1978 is not whether the other accused persons counseled or procured the principal offenders to use the lethal weapon that caused the death of the deceased but whether it was a probable consequence of the prosecution of their joint unlawful act or intention. So, where two or more persons set out to steal, as is the case in the present appeal, and one of them is known by the others to be armed with a lethal weapon, all of them will be held criminally responsible for any consequences which result from the use of the weapon by the one who carried it, even if there is no evidence to show that there was any express preconcerted agreement that he was to use it. See Jide Digbehin & 2 Ors. v. The Queen (1963) All NLR 392; (1963) 2 SCNLR 371.”

See also Gyang & Anor v. The Queen (1954) 14 WACA 584. The point that needs to be emphasized in these kind of cases is that once it is firmly established that two or more persons form the necessary common intention to prosecute an unlawful purpose and in furtherance of the execution of such an unlawful purpose and offence of such a nature that its commission was a probable consequence of the prosecution of such unlawful purpose is committed, each of them is deemed to have committed the offence.

See Atanyi v. Queen (1955) 15 WACA 34.

In the present case, the learned trial Judge found as a fact see page 99 of the printed record thus:-

“In the main therefore, the three accused persons who by agreement went out on a voyage to search for money decided to commit robbery and in the process of achieving their aim, they all committed culpable homicide by causing the deaths of five human beings. Since there is overwhelming evidence and more particularly, exhibit 2 that a gun was fired at Mamodu Abdullahi Ajawu, I believe and find as a fact that the probable consequence or firing a gun at a human being is the death of that human being, Secondly, I also believe and find as a fact that the probable consequence of firing a gun into a motor vehicle containing passengers and a jerrycan of petrol is undoubtedly a probable cause of the death of human beings in that vehicle including the destruction of that vehicle.”

The Court of Appeal affirmed these findings of fact. Applying the law therefore, each of the accused including the appellant not only participated in the killing of the human beings but also in the destruction of the vehicle by mischief by fire. Needless to say that all the ingredients of the offences were proved beyond reasonable doubt.

For the avoidance of doubt section 79 of the Penal Code provides:-

“When a criminal act is done by several persons in furtherance of a common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

In the instant case, all the three elements are present.

(a) there was a common intention of the accused persons to commit unlawful act to wit robbery.

(b) in furtherance of the offence of robbery a person was killed in circumstances amounting to culpable homicide punishable with death: and

(c) the deaths of the persons was a probable consequence of the prosecution of the robbery.

It did not matter who shot Ajawu or set the bus ablaze see also Fulani v. Bornu NA. (1966) All NLR 260: (1966) 2 SCNLR 274: and Miri v. State (supra); Garba v. Hadejia N.A. (1961) NNLR 44. All what I have been saying is that the prosecution have proved their case against the appellant beyond any reasonable doubt, consequently the single issue submitted by the appellant for the determination of the appeal is resolved against the appellant. The appeal fails and is dismissed by me. I affirm the decisions of the courts below.

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SC.204/2007