Alhaji Isiyaku Yakubu & Anor. V. Nigerian Telecommunication Ltd & Anor. (2005) LLJR-CA

Alhaji Isiyaku Yakubu & Anor. V. Nigerian Telecommunication Ltd & Anor. (2005)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

ALHAJI ISIYAKU YAKUBU & ANOR. V. NIGERIAN TELECOMMUNICATION LTD & ANOR.

(2005)LCN/1860(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of December, 2005

CA/J/249/2001

RATIO

EVIDENCE: WHAT THE COURT IS TO DO WHEN IT IS FACED WITH AFFIDAVITS THAT ARE IRRECONCILABLE IN CONFLICT – AFFIDAVIT EVIDENCE

it is a settled law no doubt, that when a court is faced with affidavits which are irreconcilably in conflict, the judge hearing the case in order to resolve the conflict properly, should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call. See Akinsete Vs Akindutire (1966) 1 All NLR 147 at 148; Eboh & Ors Vs Oki & Ors (1974) 1 SC 179 at pp 189 – 190; Olu-Ibukun & Anor Vs Olu Ibukun (1974) 2 SC 41 at 48; Uku & Ors Vs Okumagba & 3 Ors (1974) 3 SC 35 at 56, 64-65; Falobi Vs Falobi (1976) 9-10 SC 1. PER AMIRU SANUSI, J.C.A.

EVIDENCE: WHETHER IT IS ONLY BY CALLING ORAL EVIDENCE THAT SUCH A CONFLICT IN AFFIDAVITS CAN BE RESOLVED

it is equally the law, that it is not only by calling oral evidence that such a conflict in affidavit can be resolved. Such a conflict can be resolved by authentic documentary evidence at its disposal. It can suo motu resolve conflicting affidavit evidence by resorting to the documentary evidence. See Ezegbu Vs First African Trust Bank Ltd & Anor (1992) 1 NWLR (Pt 220) 699 at page 720; Nwosu V Imo State Environmental Sanitation Authority and Ors (1990) 2 NWLR (Pt 135) 688 at 718. PER AMIRU SANUSI, J.C.A.

JUSTICES

RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

IFEYINWA CECILIA NZEAKO Justice of The Court of Appeal of Nigeria

Between

ALHAJI ISIYAKU YAKUBU

ALHAJI ISIYAKU YAKUBU ENTERPRISES LTD – Appellant(s)

AND

NIGERIAN TELECOMMUNICATION LTD

THE TERRITORIAL MANAGER NITEL, YOLA – Respondent(s)

AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Adamawa State High Court, Curom I. Thomas. J (as he then was), delivered on 20th of May, 1997 (herein after referred to as the lower court). At the lower court, the two appellants herein were the plaintiffs, while the two Respondents herein were the defendants. The two appellants/plaintiffs took a writ of summons and sought the under-mentioned relief as per their Amended Statement of claim filed with leave of the lower court. The reliefs sought are set out below:-

An order of court to the 1st defendant to remove their two poles front the plaintiffs’ premises.

An order of perpetual injunction restraining the further trespass to the plaintiff’s premises.

The sum of N10,000,000.00 (Ten Million Naira) general damages jointly and severally against the defendants for trespass to the plaintiffs’ premises.

A declaration that the recoveries from the 1st plaintiff by the Defendants of two telephone line Nos. 24184 and 24119 situated at No. 19/21 Gimba Road and No.4 Warwar Street, Nassarawa Jimeta, Yola, is illegal, unlawful, unjustifiable, ineffective, null and void and of no effect whatsoever.

An order of the court compelling the defendants to restore the said two telephone lines Nos. 24184 and 24119 situated at No. 19/21 Gimba Road and No.4 Warwar Street, Nasarawa Jimeta-Yola.

The facts which gave rise to this appeal are simple and straight forward, sometime between 1977 and 1978, the 1st defendant which is public utility company, installed two telephone poles in the landed properties owned by the plaintiffs. The plaintiffs claimed that the erection of the two poles caused some inconveniences to them in that it prevented them from embarking on development of their land on which they intended to construct a two-storey building, for which they obtained goverments approval so to do. The plaintiffs claimed that they made incessant demands to the two defendants to remove the two poles, but they turned deaf ears to the plaintiff’s request and thereby failed or refused to acceed to their request of removing the two poles. In view of the defendants’ alleged refusal or failure to remove the poles, the plaintiff sued them at the lower court by filing a writ dated 7th February, 1994. Pleadings were ordered, filed, exchanged and later amended. But before hearing in the matter commenced, the defendants, now respondents filed motion on notice on 2nd April, 1997, praying the lower court to strike out the suit on the ground that the claim made by the plaintiff was statute barred. The plaintiffs filed counter affidavit opposing the application for striking out of the suit. On the 19th of May, 1997, the application came up before the lower court for hearing. On that day, the plaintiffs were present in court, but their counsel was absent. The court thereupon refused to grant the 1st plaintiff’s request that the court should allow his counsel to appear even though he conceded that his counsel was aware that the motion was coming up for hearing on that day. The motion was argued by the defendant’s/applicant’s counsel, while the 1st plaintiff also replied. The lower court thereafter, adjourned the matter for ruling. On 20/5/97, the lower court in a consider ruling granted the defendants/respondents prayers to strike out the suit filed by the two defendants and dismissed it for being statute barred. Aggrieved by the lower court’s ruling, the two appellant’s appealed to this court.

As had been the practice in this penultimate court, the appellants, had on 28/2/2003 filed their brief of Argument wherein they formulated three issued for determination of their appeal. The 3 issued raised are as follows:-

Whether the trial Judge was right, when he held that plaintiffs/appellants action is statute barred and that the respondents are both protected by Section 2(a) of Public officers Protection Act Cap. 379 Laws of the Federation 1990.

Whether the plaintiffs/appellants were given fair hearing by the trial Judge in view of the fact that, after the counsel to the Respondents was heard on his motion, praying the suit be struck out, the appellants were denied the right to allow their counsel to reply on the motion before the ruling dismissing the Appellants suit was delivered.

Whether the trial Judge was right in dismissing the appellants’ suit instead of striking it out as sought by the motion paper filed by the Respondents’ counsel.

On their part, the Respondents when served with the appellants brief also filed their brief of argument on 10th of May, 2004, with leave of this court extending their time to do so out of time. In the said Respondents’ brief of argument, they also formulated three issues for the determination of the appeal which are set out hereunder:-

(a) Whether the plaintiffs/appellants suit is statute barred.

(b) Whether the plaintiffs/Appellants were denied fair hearing.

A cursory look at the issues for determination identified by both parties leaves one in no doubt that they are the same or identical. This appeal will be resolved therefore based on the issues formulated by the appellants as they appear to one to be more elaborative and were elegantly considered serially starting of course with issue No. 1.

ISSUE NO. 1

On the first issue for determination, the learned Counsel for the Appellant, submitted that the learned trial Judge was wrong in law in holding that the action against the defendants/respondents was statute barred as such issue was not raised by the defendants/respondent in their pleadings, since when they (the plaintiffs/appellants) amended their pleadings, the defendants did not care to amend their pleading and by not so-doing, the defendants failed to join issues with them and therefore could be presumed to have been satisfied with the state of pleadings See Apene vs. Ayetobi (1989) 1 NWLR (Pt 95) 85 at 97. On the defendant’s/respondent’s failure to specifically raise the issue of statute bar, which is a defence, he submitted that such failure on the part of the respondents to raise it offends the provisions of Order 24 Rule 6(1) of Adamawa State High Court (Civil procedure) Rules 1987, which requires that special defences must be specifically pleaded. He also cited Kano vs Oyelakin (1993) 3 SCNJ 65 at 72, (1993) 3 NWLR (Pt. 282) 399; Leventis Tech Ltd Vs Petrojessice Ent. Ltd (1992) 2 NWLR (Pt 224) at 459. He added that trial courts are bound to hear and determine only cases put forward by the parties before it. See Okonji Vs Njokanma (1991) 7 NWLR (Pt 202) Pt 131 at 150. Onwoamanam Vs Fatuade (1986) 2 NWLR (Pt 21) 199 at 201 Para 9.

The learned Counsel also submitted that, where a party (as the defendant herein) fails to plead special defence(s) in his pleadings, then he loses his right to rely on it. See Kano Vs Oyelakin (supra). Yasin Vs Berclays Bank (1968) 1 All NLR 171; Mobil Oil Vs Coker (1975) 3 SC 175; Famuyide Vs v. R. C. Irving & Co. Ltd. (1992) 5 SC 112, (1992) 7 NWLR (Pt. 256) 639; Lion of Africa Vs Anuluoha (1972) 5 SC 98; Oline Vs Obodo (1958) 3 FSC 84;(1958) SCNLR 298; FCDA VS Naibi (1990) 3 NWLR (Pt 138) 270 and 281(F).

It was also the submission of the learned Counsel for the appellant that the lower court acted ultra vires, when it considered the issue of statute of limitation as raised by the defendants in their motion dated 2/4/97 because the defence of statute of limitation/or protection Act was not within the ambit of the substantive issues before it. He further argued that interlocutory application made by the defendants ought to have been hinged on the facts as pleaded by the parties. See Adenuga Vs Odumeru (2001) 1 SCNJ 34 at 45. He said the trial Judge ought not to have determined the case on affidavit evidence. See Alhaji Alfa Adaji Vs Alhaji Umaru Amodu. (1992) 8 NWLR (Pt 260) 472 at 479 paras C – D.

The learned Counsel further argued that defence a statute of limitation does not apply to issue of trespass since issue of trespass is a continuing action as in the instant case because a fresh cause of action arises and every continuance of trespass is a fresh trespass.

(1) Thompson Vs Gibson (1841) 7 MOW 456

(2) Clark Vs MGWRY (1895) 2 IrR 294

(3) Konskier Vs Goodman (1928) 1 KB 421

(4) Holmes Vs Wilson (1839) 10 A & E 503

(5) Hudson Vs Nicholson (1839) 5m & W 437

(6) Bowyer Vs Cooke (1847) 4 CB 236.

In another submission, the learned Counsel for the Appellant argued that section 2(a) of Public Officers Protection Law does not apply to cases founded on contract. See.

(a) NPA vs ConstruZioni Generali (1974) 12 SC 81 or (1974) NSCC 622 at 636/7.

(b) Salako V LEDB (1953) 20 NLR 169.

(d) Judicial Service Commission Vs Alaka (1982) 8 -10 SC 42 at 65.

It is also submitted by the appellant’s Counsel, that Public officers Protection Act only applies to natural persons and does not protect an institutions or corporate bodies personalities or public utility companies and in this instant case, it does not protect the 1st defendant/respondent. See Atiyaye Vs Permanent Secretary Borno State (1990) 1 NWLR (pt 129) 728 at 730; Alapiki Vs Government of Rivers State (1991) 8 NWLR (Pt 211) 575 at 598. See also Nwankere Vs Adewunmi (1967) NMLR 45 or (1966) 1 All NLR 129 at 133; Judicial Service Commission Bendel State Vs Alaka (supra); Momoh Vs Okewale & Anor (1977) NSCC 365 or (1977) 6 SC 81 at 88; Yare V Nunku (1995) 5 NWLR (Pt 394) 129 para O Or (1995) 5 SCNJ 104. Quite interestingly, the learned Counsel also cited some authorities of the apex court, which gave decisions in conflict with those mentioned above, wherein the Supreme Court decided that Public Protection Law also extends to artificial persons. Some of these decisions include Ibrahim V JSC Kaduna State (1998) 14 NWLR (Pt 584) 1 at 36; Offoboche V Ogoja LG (2001) 7 SCNJ 468 at 486/7. He then urged this court to choose and follow any of the sets of decisions, it desires or pleases. See NEPA V Mrs Onah Trading under the name and style of El-Par Hair Care Centre (1997) 1 NWLR (Pt 484) 680. Concluding his submissions on this issue however, the learned Counsel in another breath, urged this court to hold that the Public Protection law does not apply to corporate persons, but applies to natural persons only. That is to say he urged this court to be guided by the decisions in the first set of decided authorities he cited earlier.

In his reply, the learned Counsel for the respondents submitted that the lower court was right in its decision, that the plaintiffs’/appellants’ action was statute-barred, adding also, that the respondents were protected by the Public Officer Protection Act, Cap 379, Laws of the Federation of Nigeria of 1990. He said that in order to determine the period of limitation the writ of summons and the statement of claim should be referred to see when the alleged wrong was committed which gave the plaintiff a cause of action. He said that this exercise could be done even without taking oral evidence. See Releigh Ind.(Nig) Ltd Vs Nwaiwu (1994) 4 NWLR (Pt 341) 760 at 764. The learned respondent’s counsel also submitted that it is only when trial or proceedings begin, that a party would not be allowed to call evidence to prove facts which were not pleaded or to rely on special defence that was not pleaded as provided in Order 25 Rule 6 of Gongola State High Court (Civil Procedure) Rules of 1987 applicable to Adamawa State. He said the provisions of the Rules did not preclude or bar a party from raising a defence of statute of limitation in an interlocutory application, even if the defence was not pleaded in the Statement of Defence. He submitted that since the plaintiffs’/appellants’ claims was founded on trespass to land, Section 7(4) of the Act 1966 limits the period for filing cases founded on tort to the six years. He said from the particulars of claim the Appellants, the action complained against by the plaintiffs took place 15 years after the suit was filed in 1993. He said that the action was therefore statute barred and as such no proceedings could be brought in respect of that cause of action. See Releigh Ind. (Nig) Ltd Vs Nwaiwu (supra); Egbe Vs Adefarasin (1987) 1 NWLR (Pt 47) 1.

As for the 2nd claim of protection of public officers, he argued that the provisions of Public Officers Protection Act also apply to cases founded on contract and tort, adding that the persons accused of committing the act are public officers acting in execution of their public duties. They were therefore protected by the provisions of section 2 (a) of Public Officers Protection Law Cap 111 Laws of Northern Nigeria which is in pari material with the corresponding section in the Public Officers Protection Acts Cap 379 Laws of the Federation of Nigeria of 1990. See Ibrahim Vs JSC (supra).

With regard to the second claim of the Plaintiffs/Appellants, their learned Counsel submitted that the protection by the Act applies also to both natural and artificial persons. See Section 2(a) of the Act and the case of Ibrahim Vs JSC (supra) See also section 18(1) of the Interpretation Act Cap 192 on the definition of a “Public Officer.”

I think it is helpful for a better appreciation of the complaints, to set out the relevant provisions of laws which are the pivots on which the appellants complaints revolve. In the first place, the respondents to the application on which the lower court ruled and which said ruling later become the subject matter of this appeal, was made pursuant to Section 7(4) of the limitation Act of 1966 (Act for short reads as below:-

Section 7(4) of the Act states this.

“(4)- Subject to the provisions of this Decree, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action occurred.”

Also, section 2(a) of the Public Officer Protection Act Cap 379, Laws of the Federation of Nigeria 1990 states as follows:-

“(2) Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance of execution or of any public duty, or in respect, or default in the execution of any such Act, law duty or authority, the following provision shall have effect:-

(a) The action, prosecution or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in case of a continuance of damage or injury within three months after the ceasing there of.

Again, the Fifth Schedule to the Constitution of Federal Republic of Nigeria, 1979 as amended provided in its Interpretation Clause, the definition of the phrase “Public Officer” as a person holding any of the offices specified in Part II of the said “Fifth Schedule” Paragraph 14 as follows:-

“14- Chairman and members of the Board or other Governing bodies and staff of statutory or corporations and of companies in which the Federal Government or state Government has controlling interest”.

The foregoing are some of the pertinent provisions of the law to which references were made in the contentions of the parties in this appeal.

I deem it appropriate to deal with the first leg of the appellants’ grouse on the procedure adopted by the respondents by not raising the defence of limitation of time, in his pleading (“i.e. statement of defence) but instead by raising it by way of Motion on Notice before the commencement of the hearing in the suit at the lower court. Much as I am in entire agreement with the appellant’s counsel’s submission that special defences such limitation of action or that on action is statute barred should be specifically pleaded. See Kano Vs Oyelakin (supra); Yasin Vs Barclays Bank (supra). I am however unable to agree with him that such defence can not be raised in a motion even before taking evidence. See Raleigh Ind. (Nig.) Ltd Vs Nwaiwu (supra). Again in Nigeria Customs Service Vs Pazunaiye (2001) 7 NWLR (Pt.712) 357. Such defence was even raised in a Preliminary Objection. In fact, the Supreme Court in P.N. Udoh Trading Co. Ltd. vs. Abere (2001) 11 NWLR (Pt.723) held that a defence founded on statute of limitation is a defene that the plaintiff has no cause of action which can even be raised in limine and even without any evidence in its support. It is sufficient if prima facie, the date taking the cause of action outside the prescribed period is disclosed on the writ of summon and the statement of claim. It is therefore not correct to say that it can not be raised by the defendant/respondents in an interlocutory application.

It is also the submission of the appellants’ counsel in their brief, that interlocutory application made by the defendants ought to have been hinged on the facts as pleaded before the court. That is true. I think the facts as pleaded in the statement of claim brought in issue, the time the cause of action arose. The defendants in the Motion used the time stated in the statement of claim to aver in their affidavit supporting their motion and raised the issue that the action was statute barred. In that regard, I feel it would not be necessary to file or amend their statement of defence again to raise such defence especially in view of the fact, that the suit was disposed of by the lower court through affidavit evidence when it upheld the respondents’ averments and dismissed the action.

The learned Counsel for the appellant raised the issue of conflict in the affidavit supporting the motion and the counter affidavit filed by them (appellants) and queried that the lower court’s failure to call oral evidence to resolve the alleged conflict was fatal to their cases and was erroneous.

Now, on the issue of conflict in averments in affidavits, I agree that it is a settled law no doubt, that when a court is faced with affidavits which are irreconcilably in conflict, the judge hearing the case in order to resolve the conflict properly, should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call. See Akinsete Vs Akindutire (1966) 1 All NLR 147 at 148; Eboh & Ors Vs Oki & Ors (1974) 1 SC 179 at pp 189 – 190; Olu-Ibukun & Anor Vs Olu Ibukun (1974) 2 SC 41 at 48; Uku & Ors Vs Okumagba & 3 Ors (1974) 3 SC 35 at 56, 64-65; Falobi Vs Falobi (1976) 9-10 SC 1. But it is equally the law, that it is not only by calling oral evidence that such a conflict in affidavit can be resolved. Such a conflict can be resolved by authentic documentary evidence at its disposal. It can suo motu resolve conflicting affidavit evidence by resorting to the documentary evidence. See Ezegbu Vs First African Trust Bank Ltd & Anor (1992) 1 NWLR (Pt 220) 699 at page 720; Nwosu V Imo State Environmental Sanitation Authority and Ors (1990) 2 NWLR (Pt 135) 688 at 718. A close look at the depositions in the counter affidavit filed by the plaintiffs/appellants shows that they contradicted the facts contained in the statement of claim filed by them while the affidavit filed in support of the Motion filed by the defendants/respondents tally with the averments of the appellants in their Statement of Claim. It would even appear to me that there was no irreconcilable conflict in the affidavit evidence filed by the parties as would require the court resorting to calling oral evidence in order to determine whether or not the case was statute-barred and even if there was such conflict, the trial Judge could resolve and in did resolve same by referring to the documents available before him without necessarily calling any oral evidence. See also Madagali Local Government V National Population Commission (1998) 11 NWLR (Pt 572) 66; Nwosu V Imo State Environment Sanitation Authority (supra).

It is clear from paragraph 39 of the plaintiffs’ joint amended statement of claim that their claims, inter alia, are as follows:-

The sum of N10,000,000.00 (Ten Million Naira) general damages jointly and severally against the defendants for trespass to the plaintiffs premises.

The sum of N10,000,000.00 (Ten Million Naira, general damages in favour of the plaintiff for being deprived the use of the said two telephone lines. (emphasis supplied by me).

Paragraph 4(d) of the affidavit supporting the motion also incorporates the first claim mentioned in the Amended Statement of Claim as highlighted above. In the same affidavit, the applicants/respondents also in Paragraph 4(e) and (f) averred that the alleged cause of action occurred sometimes in 1977/78 and that they (applicants) are public officers respectively. It was also averred that the action was statute barred. These averments were however denied by the respondents to the motion who are appellants herein. From the nature of the claims as adumbrated supra. I have no difficulty in accepting the submissions, that the claims were founded on contract and tort alike. It is now settled law that statute of limitation is applicable to actions founded on simple contract or tort and that such action shall not be brought after the expiration of six years from the date in which the cause of action accrued. An action on contract must therefore be filed within six years from the time when the cause of action arose. Any such action brought out side the limited period prescribed by law is invalid, incompetent and can not be maintainable See Julius Berger Nig. Plc Vs Omogui (2001) 15 NWLR (Pt 736) 401; Nigerian Broadcasting Co V Bankole (1972) 1 All NLR (pt.1) Humbe Vs A-G Benue State (2000) 3 NWLR (Pt 649) 419; Bello V AG; Oyo State (1986) 5 NWLR (Pt 45) 828; Egbe V Adefarasin (No.2) (1987) 1 NWLR (Pt 47) 1; G & C lines Vs Olaleye (2000) 10 NWLR (Pt 676) 613; Akinbode V Chief Registrar (2003) 3 NWLR (Pt 808) 585. The instant action which relates to trespass and also tortuous, squarely came within the areas of law to which statute of limitation applied.

In the instant case, the appellant alleged trespass committed on his premises between 1977 and 1978 when the defendants/respondents (herein) erected poles on the premises. In Paragraphs 476 of their joint statement of claim, they alleged that they complained to them to remove them. It will seem to me therefore, that cause of action accrued right from the date they complained to the defendants/respondents. As from that date of the complaint for removal the alleged poles, trespass ceases to be continuing. Right from the date of the complaint, the cause of action accrued. In deciding whether an action is caught by law of limitation of action, regards must always be had to the time when the cause of action accrued. A cause of action accrues to a plaintiff when his cause of action becomes complete so that he can begin and maintain his action. See Adimora Vs Ajufo (supra) Per Oputa JSC at 30 – 31. See also Read V Brown (1989) 22 QBD 128; Lasisi Fadare Vs A-G of Oyo State (1982) 1 ALL NLR (Pt 1) 24.

It needs to be emphasized at this stage, that what determines whether a cause of action is statute barred or not is the claim in the Writ of Summons or Statement of Claim alleging when the wrong giving rise to the cause of action was committed and of course the date when the suit was filed. See Gulf Oil Co Nig. Ltd Vs Oluba (2002) 12 NWLR (Pt 780) 92. It is clear and undisputable, that the first cause of action arose in 1977/1978 and the writ was taken in 1993. That is to say a period of fifteen years. Thus, the first claim being one that touches on tortuous liability, is statute barred as held by the lower court by the provisions of Section 7(4) of Limitation Act, claims founded on tort should not be brought after expiration of six years from the date the cause of action accrued.

On the second leg of the plaintiffs’/appellants’ claim at the lower court, they alleged that the defendant’s respondents (herein) recovered their telephone lines. There is no dispute that the respondents are “Public Officer” within the definition of that phrase in Part II of the 5th Schedule to the 1979 Constitution of the Federal Republic of Nigerians as reproduced supra. It goes without saying therefore, that their action or omission is governed by the provisions of Public Officers Protection Act Cap 379, Laws of the Federation of Nigeria 1990, which is in pari materia with Public Officers Protection Law, Cap II Laws of Northern Nigeria. There is no doubt, that action could be instituted against public officers on tort or breach of contract. In other words, public officers could be sued for damages in claim of tort or breach of contract committed by them where such act or omission was committed by them in the execution of their official duty or duties. However, by the corresponding Provisions of Section 2(a) of the Act or Law, such action must be instituted within three months from the date the cause of action accrued. See Ibrahim V JSC (1998) 14 NWLR (Pt 584) Ekeogu Vs Aliri (1990) 1 NWLR (Pt 126) 345; Nwankwere V Adewunmi (supra); Atiyaye v. Permanent Secretary Ministry of Local Government Borno State (supra). In the instant case, as shown in Paragraph 37 of the plaintiff/appellants’ Amended Statement of Claim, the cause of action accrued in December 1992. That was the time the telephone lines were allegedly recovered. The two public officers i.e. the defendants/ respondents were sued in June, 1993 as shown on the Writ of Summons. That is to say, about seven months after the cause of action accrued. As I remarked above, Section 2 (a) of the Public Officers Protection Law/Act precludes any action from being filed against public officers after three months from the date when the cause of action accrued. In the instant case, the cause of action, i.e. alleged recovery of telephone lines occurred between 1987 to December, 1992. The action instituted against the two defendants/appellants is statute barred as rightly held by the lower court. See Ibrahim Vs JSC (supra).

The learned Counsel for the appellant somewhere in his submissions argued that the provisions of the Public Officers Protection Act or Law did not apply to the two Defendants/Appellants as they were not public officers and/or that they both are artificial persons and that the Act Law only applies to natural persons. I am in entire agreement with the finding of the learned trial Judge that the 1st respondent, i.e. Nigerian Telecommunications Ltd (NITEL) is a Company owned by the Federal government and thus covered by the provisions of the Public Officers Protection Act. The 2nd respondent is also a public officer. This contention is further supported by the decision of the Supreme Court in Ibrahim Vs JSC (supra) where it held by the Supreme Court that the word “person” used in a legislation connotes natural person and an “artificial person” such as corporation, sole or public bodies corporate or unincorporated. It was further held that the phrase “any person” used in the statute admits and includes artificial person. On this authority, I am of the view that the defendants/appellants are entitled to protection under Section 2(a) the Public Officers Protection Law/Act. I so hold. I also equally hold, that the plaintiffs’/appellants’ action or suit was statute-barred as found by the learned trial judge. The first issue for determination is therefore resolved against the two appellants and in favour of the two respondents.

Issue NO.2

On this issue the appellant’s counsel submitted that the learned trial judge by on 19/5/97 permitting the respondents’ counsel to move his motion, seeking the court’s order to strike out the plaintiffs/appellant’s case he did not give them fair hearing as guaranteed in Section 36(1) of the Constitution of Federal Republic of Nigeria 1979. He argued that by such provisions, courts should hear both sides in dispute before it determines their rights. He said the 1st appellant who was representing the 2nd plaintiff/appellant, informed the court that he was in their lawyer’s office on 18th and 19th May, 1997, but was informed that their lawyer was not in town. He said the 1st plaintiff/appellant then because of the absence of their counsel sought for adjournment but the lower court refused and ordered the defendants’/applicants’ (now respondents’) counsel to move his motion which he did. He said thereafter, the lower court asked the 1st appellant, who was an illiterate to respond to the submissions of the applicants/respondents counsel even though he asked for time to enable his counsel appear, but the court refused to adjourn and closed the matter. The learned Counsel further submitted that the 1st appellant having been forced into the witness box had no option but to tell the court that he had no reply. He finally argued that in view of the importance of the matter before the court in which they even filed counter affidavit, the lower court should have adjourned the matter for their counsel to appear and reply accordingly. By not granting them adjournment, the lower court, according to the learned appellant’s counsel, had shut them out. He said with the conflicts that manifest in the affidavit supporting the motion and the counter affidavit which would have warranted the calling of oral evidence to resolve the conflict, the lower court ought to have granted them adjournment. He finally submitted that sins of counsel should not be visited on the litigant. He referred to the case of Daniang V Teachers Service Commission (1996) 5 NWLR (Pt 446) 96 at 98. He urged this court to hold that they were denied their right to be heard.

Replying, the learned Counsel for the respondent submitted that the appellants were not denied fair hearing. He said their counsel was duly served, but he refused to appear in court on 19/5/1997 and also did not write to the court to seek for adjournment. He said further that the 1st appellant who appeared personally and also represented the 2nd appellant, did not apply for adjournment to another date, but merely requested the court to wait for their counsel before it could allow the applicants’/respondents’ counsel to move his motion. He said since there was no application for adjournment, the lower court was therefore right in allowing the applicants’/respondents’ counsel to move their motion. He also submitted that there was no application by the 1st appellant for adjournment to reply before or after the motion was heard. He said the appellants were therefore not denied their right to fair hearing as availed them by Section 36(1) of the 1979 Constitution adding that their counter-affidavit was duly considered by lower court in its ruling. For what constitutes denial of fair hearing, the learned counsel cited referred to the case of Wilson V Oshin (2002) 2 SCNQR (Pt 2). It was also the submission of the respondent’s counsel that refusal of the court to wait for a counsel has not occasioned any miscarriage of justice or did not offend the doctrine of audi alteram partem, as courts do not wait for counsel.

In view of the conflicting submissions made by the learned Counsel in the parties on what transpired at the lower court’s proceedings of the 19th May, 1997, I think it would be of immense importance to reproduce below, the proceeding of 19/5/97 as shown on pages 60-61 of the Record of Proceedings of the lower court. The proceedings of that day went this way:-

“This 19th May, 1997.

Plaintiffs and defendants are in court.

Appearances;

Hassan Esq for the defendants/applicant.

Plaintiff’s counsel is absent, and there is no letter from the counsel explaining his absence.

Plaintiff:- My counsel is aware of today’s sitting. I went to his chambers yesterday and today, but his secretary told me that he traveled. He is out of town.

Hassan:- We have a motion on notice and since the plaintiff’s counsel is absent and he is aware, we are ready to proceed with the permission of the court.

Plaintiff:- We have filed a counter affidavit to the motion, I would like the court to wait until when my counsel comes before the motion is heard.

COURT:- The court will not wait for the plaintiff’s counsel to come at the time pleases him. He is aware of today’s sitting, but he has absented himself without even the courtesy of writing to the court explaining his absence or seeking for an adjournment. Since plaintiffs are in court, the motion should proceed.

SGD

(HON.JUSTICE .I.THOMAS)

HC/JUDGE

19/5/97.”

And after the learned Counsel for the applicants (now respondents) finished moving his motion, the proceedings of the lower court of the same 19/5/1999 contained as follows:-

“Plaintiff – Alh. Isiyaku Yakubu:

All that the defendant’s counsel has stated has been explained to me by the court clerk in Hausa, but I want my counsel to reply not me.

COURT:- The court has already explained to you that we can not wait for your counsel to come at the time he pleases. You should either reply or I record that you have no reply to make.

After all you yourself had deposed to and swore to the counter-affidavit dated 5th May, 1997.

Plaintiff: I have no reply to the motion.

COURT:- The motion is stood down to tomorrow 20th May, 1997 for ruling. Parties to appear tomorrow.

SGD

(HON. JUSTICE I. THOMAS

HC/JUDGE

19/5/97”

What can be gathered from the proceedings on what transpired on 19/5/1997 is that the learned Counsel for the appellants herein was aware that the case was to come up on 19/5/1997 but failed or refused to appear in court. He also did not write to tell the court his reason(s) for not coming to court or to seek for adjournment. Again there was nowhere in the record where the 1st appellant who was present in court, asked for adjournment, but he merely asked the court to wait for his count to come. And after the lower court refused to accede to his request to what for his counsel, the motion was heard and he also did not ask for adjournment to reply but merely insisted that he wanted his counsel to reply on his behalf. When there was no reply forthcoming from him, the court recorded him as having ‘No reply’ and thereupon adjourns the case to another date for ruling.

I must state here that question of adjournment is matter of discretion of the court concerned. It must depend on the facts and circumstances of each given case. This is so because, in matter of direction, no one case can be an authority for another and court can not. be bound by a previous decision to exercise its discretion in a particular way, for to be so bound, will in effect amount to putting an end to the discretion See Odusote Vs Odusote (1971) 1 NMLR 228 at 231. To my mind, an adjournment is therefore a matter within the discretion of the court even though such discretion must be exercised judicially and judiciously too. An appeal court will always interfere with refusal of court to exercise its discretion judicially and judiciously in granting application for adjournment where such refusal has occasioned mis-carriage of justice. See also; Tanko Juwa Vs The State (1969) NMLR 168 (SC); Nwokanem Vs State (1967) MLR 178 at 179. I should however point out here, that it is not every application for adjournment that should be allowed. Each case must be treated according to its special circumstances. See Abeki Vs Amboro (1961) 1 All NLR (Pt. 4)368, State V Iyabo Albert (1982) 5 SC 6, R V Shorunke (1946) AC 316.

Now, considering the circumstance of their case, it is clear that the learned Counsel was aware of the date fixed for the hearing of the motion. This is confirmed by the 1st appellant himself. He did not bother to write to the court informing it of his reason for his inability to appear. The court is not expected and in fact should not wait for a counsel to come and conduct his case before it. The 1st appellant when told that the court was not prepared to wait for his counsel as he urged, he did not ask for adjournment to enable him reply to the arguments of learned Counsel for the applicants/respondents in the appeal when moving his motion. In the present circumstances of this case, I do not agree with the appellant’s counsel’s submissions that they were not given fair hearing. This was an application in which the appellant filed counter affidavit and the lower court has duly considered their counter affidavit in its ruling now being appealed against. The appellants had as well, not shown that by not waiting for his counsel and proceeding in the hearing of the motion, a miscarriage of justice was occasioned to them. I therefore hold that the appellants were not denied fair hearing by the lower court. Their issue is again resolved in favour of the respondents and against the appellants.

Issue No.3

In this last issue, the appellants queried the decision of the lower court to dismiss the suit before it, instead of striking it out. By so doing, the learned Counsel submitted, that the lower court granted a relief which was not sought by the applicants/respondents, adding that it was wrong of it to dismiss suit instead of striking it out as prayed by the applicant/respondent in their motion. Responding to these submissions, the learned Counsel for the respondent though conceded that courts are not charitable organizations and would therefore not grant relief not sought, he however argued that where a court finds that an action is statute barred, such finding brings the matter to finality as it could not be relitigated again. Therefore, the order of dismissal made by the lower court was correct. He cited Lamina V Ikeja Local Government (1993) 8 NWLR (Pt 314) 758 at 760. Admittedly, the relief sought by the applicants/respondents was that the lower court should strike out the suit filed by the plaintiffs/respondents (now appellants) as shown in the motion papers. As a general rule, where there is right there is remedy. But an exception to that general rule is in the case of statute of limitation or limitation law. In such type of law the legislature prescribes a period within which a person who claims that his right has been tampered with or infringed upon, could bring an action in court for remedy. Such law is normally promulgated based on public policy and to bring an end to and litigation to avoid litigant from going in deep sleep to infinity and forget to seek redress on their infringed rights. This law will wake them and make them be alert and be up and doing in seeking redress timeously or within a short period rather than to delay in instituting such actions. By such law therefore, a plaintiff who might otherwise have had cause of action loses such right to enforce the cause of action or seek redress, loses such right to enforce such cause of action or seek redress through judicial process, against the person he feels has infringed on his right, because of the time laid down by the law, for instituting such action has elapsed See SPDC Ltd V Farah (1995) 3 NWLR (Pt 382) 148 Muhammed V Military Administrator Plateau State (2001) 16 NWLR (Pt 740) 524.

Now, on the type of final order a court could make, it has since been settled, that where a defendant raises a defence that a plaintiff’s action is statute-barred whether in his statement of defence, preliminary objection or through a motion on notice or in any other way and the court sustains or upholds such defence, the proper order such court will make in that circumstance is that of dismissal of the plaintiff’s action AND NOT merely striking it out. See Egboigbe V NNPC (1994) 5 NWLR (Pt 347) 649; Etim Vs IGP (2001) 11 NWLR (Pt 724) 266 at 285. In the instant case therefore, the learned trial Judge was right when in his ruling he said “the case is therefore not only struck out but is hereby dismissed being statute-barred…” Dismissal of the suit is therefore the proper order to be made in the circumstance of this case, since it can not be relitigated again by the plaintiffs/appellants, having been instituted outside the periods the claims could be made. The third issue is again decided against the appellants.

In the result, the having resolved all the issues raised by the appellants against them, the appeal is devoid of any merit. It fails and is accordingly dismissed. The Ruling of the lower court delivered on 20th of May, 1997 is hereby affirmed. I make no order on costs. So parties are to bear their respective costs.

(2005)LCN/1860(CA)

Adetutu Olanibi & Ors V. Cabe Ohara & Anor (2005) LLJR-CA

Adetutu Olanibi & Ors V. Cabe Ohara & Anor (2005)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

The action, which is the subject matter of this appeal, originated from the Iwara Grade C Customary Court of Osun State, wherein the (deceased) respondent as original plaintiff claimed as follows against the appellants –

“The plaintiffs claim against the defendants jointly and severally is for declaration of title to a piece of farmland, situate, lying and being at Igbo Lomofe Farm via Iwikun in Atakumosa Local Government Area. The plaintiff is also claiming the sum of N200.00 from the 3rd defendant being general damages for trespass into the aid farmland and thereby damages (sic) some cocoa and kola trees on the said farmland. The plaintiff is also seeking for an injunction order restraining the defendants, their agents, wives or servants from further entering into the said farmland pending the determination of the case before the court. The said farmland is bounded as follows-

On the 1st side by Degunduro’s farmland

On the 2nd side by Awikun Chieftaincy farmland

On the 3rd side by Iwara people’s farmland

On the 4th side by Jojo’s farmland”.

This appeal centers on the issue of res Judicata or issue estoppel and it will be necessary to set out the background facts of the case in some detail. It has been the appellants’ contention from day one that there was litigation over the land in dispute between the appellants, Awikun family and the Iwikun Community of which the deceased respondent was a member, and who they argued gave evidence in the earlier suit No. 35/65 between Chief Geolge Adekile, representing the Aribagbeyawo family, Iwukun and Jacob Ademuyiwa representing Iwikun Community. The Judgment in the said suit No. 35/65 and the judgments in suit No. A2/67 & HOS/28A/67, which were the decisions of the appellate court in suit No. 35/65 were in evidence, and therein the High Court sitting as appellate court held as follows –

“The members of the Iwikun Community who farm on the land in dispute must realize that the owners of the land are the descendants of Aribagbeyawo Ekemode Opakun and lalubi” (Italics mine)

At the Iwara Grade C Customary Court, three witnesses testified for the plaintiffs, including the deceased respondent. During cross-examination by the 1st appellant herein, who was 1st defendant, she replied as follows –

B “No I did not witness any case before Ogunseitan. When the Iwikun Community and you were fighting on this farmland. Yes Ogunseitan came to me to ask from me whether my father was paying and (sic) isakole to anybody but I explained that nobody my father or my grandfather was paying any isakole for out of this people (sic) because my father is the owner of this land in dispute. The boundary of this farmland in dispute was marked with Peregun trees and water. Nobody sued me on this farmland in dispute to court”.

The 3 appellants as defendants and 1 other witness testified at the Customary Court. The Customary Court thought it fit to visit the locus in quo, and thereafter delivered judgment on the 19th April 1988, wherein it held –

“This court has carefully gone through the evidence of E both parties and their witnesses and following are observed –

(1) The boundary of the current case instituted by the plaintiff is quite different from the one instituted by the defendants against the Iwikun Community.

(6) The first defendant said that the plaintiff had no common boundary with the Dagunduro but the 2nd defendant confirmed that the kolanut plantation of the plaintiff is bounded by Dagunduro’s farmland.

(7) During the land inspection, we all saw the crops planted by the plaintiff’s grandfather at Igbo Lomofe and ‘the defendants confirmed this, which was also confirmed by the defendants’ friend who was interviewed as an independent witness.

(8) The three defendants confirmed before this court that none of the Awikun of Iwikun had ever received isakole from the plaintiff’s grandfather which automatically confirms that the plaintiff’s great grandfather was given the land by Owa Aponlese as stated by the plaintiff and none of the defendants stated that he knows Fagbemi the great grandfather of the plaintiff, they are only talking of his son Oguntunsin the plaintiff’s grandfather, this shows that they were just saying that they were told because during cross-examination from the plaintiff none of the defendants mentioned the name of Fagbemi, the great grandfather of the plaintiff and the plaintiff is the eldest person of both parties who is supposed to know better.

(9) The boundaries of the farm of the current case is quite different from the one before the court because the farmland of the current case is bounded as follows –

On the 1st side by Dagunduro’s farm,

On the 2nd side by Awikun Chieftaincy farmland,

On the 3rd side by Iwara’s farmland, and

On the 4th side by Jojo’s farmland

While the case before Iwikun Community is bounded as follows-

On the 1st side by Loja Odo-odo’s land,

On the 2nd side by Irode and Igigun’s farmland,

On the top by Agbigbon’s farmland, and

On the bottom by Awikun Chieftaincy farmland

We believe that the plaintiff’s farmland wanted to be snatched by the defendants mainly because she was a witness in respect of the case between the defendants’ family and the Iwikun Community and she was then in the Community’s side. This court also believes that the defendants want to use the advantage of lack of male issue of the plaintiff rather to snatch the farmland away from her (plaintiff) because during the inspection it was obviously clear that the plaintiff’s father’s farmland at Igbo Lomofe was quite different from that of Iwikun Chieftaincy farmland and the defendants confirmed that the crops thereon belonged to the plaintiff’s father….the plaintiff has got the legal advantage of long occupation on the farmland for over two hundred years so much that it was the great grandfather of the plaintiff who planted the crops on the land in dispute….

In conclusion, the plaintiff had established her case against the defendants, that she is the bona fide owner of the farmland in dispute. Finally this court holds that the plaintiff has legal justification on land (sic) to sue the defendants for declaration of title to the farmland. Therefore the declaration of title to the farmland is therefore granted by this court with N50.00 cost …” (Italics mine)

Dissatisfied with the above decision of the Iwara Grade C Customary Court, the appellants herein appealed to the Senior Magistrate’s Court, Ilesa, which examined the case for the parties and came to the following conclusion –

“In the final analysis, it is my opinion that the lower court came to the correct conclusion in this case. I understand the lower court to be saying that the plaintiff and her family has exclusive right to use the land in question and that they are entitled to a customary right of occupancy thereof. I will not apply strict rules to the conclusion of the court but will construe it in the light of the fact that they are laymen. Although the lower court made some mistakes in the evaluation of the evidence before them it has not occasioned miscarriage of justice. In the circumstances, this appeal fails. It is dismissed”.

Still dissatisfied, the appellants appealed to the High Court, Ilesa, which reviewed this case vis-a-vis the earlier suit No. 35/65 and concluded thus –

“I have looked at the form and substance of the cases in exhibit “A” and the instant case and I am of the view that the two cases manifest striking differences for a plea of res judicata to succeed. See … It has been said that estoppel, by its very nature, is so important, so conclusive, that the party who it affects is not allowed to plead against it or adduce evidence to contradict it.

See … The respondent’s evidence at the inspection that “both parties are mine” (sic) is consistent with the circumstances of the possessory right of the respondent.

It is therefore erroneous to argue that she stood by, while suit No. C35/65 was being tried. See … Furthermore, a declaration granted by a trial judge is binding only between the parties and those who identified themselves in their battle of ownership. It is not binding on those who are not parties or who never lent support to any of them. See … By and large the parties, subject matter and issues are not the same. In view of the above-stated reasons, I am of the view that the doctrine of res judicata is inapplicable. So also is the doctrine of issue estoppel by standing by…. Having regard to this new issue of res judicata, which I have resolved in favour of the respondent, I am unable to find anything that will enable me to interfere with the concurrent findings of fact of the two lower courts. See … On the whole, the appeal fails and is accordingly dismissed”.

Further dissatisfied with the decision of the Ilesa High Court, the appellants filed a notice of appeal with 2 grounds of appeal in this court. They are –

(1) The learned High Court erred in law in upholding the opinion of the learned Senior Magistrate that the word “descendants” seemed to be broad enough to embrace every relation by blood or marriage of Aribagbeyawo.

(2) The learned High Court erred in law in holding that the doctrines of res judicata and estoppel are not applicable to this case.

In line with the rules of this court, briefs of arguments were duly filed and exchanged by the parties, and in the appellants’ brief prepared by N. O. O. Oke, Esq., the following issue was formulated as arising for determination –

“Whether the principles of res judicata, issue estoppel are applicable in this case, and if they are whether the jurisdictions of the court were not ousted to entertain the case of the original plaintiff/respondent”.

In their brief settled by E. Adeyeye Adelekun & Co.,the respondents adopted the issue as formulated by the appellants and submitted that the appellants,having formulated only an issue from ground (2), are presumed to have abandoned ground (1) of their grounds of appeal. I agree.

For a ground of appeal to be relevant, an issue must be raised from it, and where no issue is raised from or predicated on a ground of appeal, it is deemed abandoned and liable to be struck out – see Ibiyemi v. F.B.N. Plc (2003) 17NWLR (Pt. 848) 196, & Dahiru v. Kamale (2005) 9 NWLR (Pt. 929) 8. In this case, the appellants’ ground (1) is deemed abandoned and is therefore struck out.

On the sole issue for determination, the appellants submitted that it is a trite principle that where a cause of action in a present suit has been determined in a previous action between the same parties that cause of action becomes merged in that judgment, and it is rule of public policy that no one shall be vexed twice on the same ground or for one and the same cause of action on the same issues, citing Adomba v. Odiese (1990) 1 NWLR (Pt. 125) 165, Omokhafe v. Esekhomo (1993) 8 NWLR (Pt. 309) 58, Yoye v. Olubode (1974) 10 S.C 209. It was further submitted that for a plea of estoppel per rem judicatum to succeed, the party relying on it must establish that –

a) The parties or their privies are the same, that is to say, the parties involved in both the previous and present proceedings are the same;

b) The claim or the issue in dispute on both the previous and present action are the same;

c) The res that is to say, the subject matter of the litigation in the two cases is the same; and

d) The decision relied upon to support the plea must be valid, subsisting and final, citing Adigun v. Governor of Osun State (1995) 3 NWLR (Pt. 385) 513, Balogun v. Adejobi (1995) 2 NWLR (Pt. 376) 131, & Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298.

It is the appellants’ contention that the issues in suit No. 35/65 are the same as this case; that the claim of the plaintiff in suit No. 35/65 was for”

Declaration of ownership to a piece of farmland situated at Iwikun known and called Ulumu farmland that is bounded as follows –

On the right by Chief Loja Odo’s land,

On the left side by Chief Arode and Igigun’s farmland.

On the top by Agbigbon’s farmland,

On the bottom by Chief Awikun Chieftaincy farmland …”

And in the suit, the subject matter of this appeal, the original plaintiff claimed –

The said farmland is bounded as follows –

On the 1st side by Dagunduro’s farm,

On the 2nd side by Awikun Chieftaincy farmland,

On the 3rd side by Iwara’s people’s farmland, and

On the 4th side by Jojo’s farmland”

It was further submitted that parties are not ad idem as to whether the subject matter of the present suits are the same; that the appellants had contended that the farm1and in dispute fa11swithin the parcel of Ulumu farmland litigated upon in suit No. 35/65 while the respondents contended that the present farmland did not fall within that parcel of Ulumu farmland; that the Customary Court found that the land in the present suit is not the same with the land litigated upon in suit No. 35/65; that on appeal, the Senior Magistrate Court reversed the conclusion of the trial Customary Court and found that the land, the subject matter of the present suit forms part of the land litigated upon in suit No. 35/65; and that there has been no appeal against the said finding of the Senior Magistrate Court, therefore it is deemed to be correct, citing Phoenix Motors Ltd. v. Ojewumi (1992) 6 NWLR (Pt. 248) 501. The court was therefore urged to hold that the subject matter in the actions are the same. As to the parties, the appellants submitted that it is an accepted fact that the appellants are descendants of Aribagbeyawo of Iwikun Chieftaincy family who filed suit No. 35/65 against the Iwikun family; that a party who lives in Iwikun and who does not belong to the Iwikun Chieftaincy family must necessarily be a member of Iwikun Community, therefore the deceased respondent was a member of the Iwikun Community.

The appellants’ argument is that being a member of the Iwikun Community, the deceased respondent is bound by the result of suit No. 35/65 and HOS/28A/67 wherein it was adduced that Ulumu farmland belonged to the appellants Iwukun Chieftaincy family, which means that the parties in this suit are the same. On the finality of the decision, the appe11ants argued that the judgments in suit No. 35/65, suit No. A2/67 and HOS/28A/67 show that they are final decisions on the issue of Ulumu farmland; that those decisions have not been set aside, consequently, the ingredients of estoppel have been satisfied, which are applicable to this case to deprive the courts below of the jurisdiction over the claim of the deceased respondent, as same is caught by the principle of res judicata, citing Oshodi v. Eyiwunmi (supra).

The respondents however argued that the deceased respondent’s claim, boundaries and name of the farm in dispute in this case is different from those in suit No. 35/65, and that the land inspection carried out by the trial Customary Court clearly showed that there is a difference between the two farmlands. Furthermore, that the parties are different and the deceased respondent was neither a party nor privy to the said suit No. 35/65 which was decided by the Oshogbo High Court; that she was not a witness as listed on page 115 of the record of proceedings, and therefore could not be bound by the judgments in 35/65, A2/67 and HOS/28A/67 as she could only be bound as privy if she falls within one of the three categories classified in Jacob Oyerogba & Am: v. Egbewole Olaopa (1998) 12 SCNJ 115, (1998) 13 NWLR (Pt. 583) 509 thus –

“In Coker & Ors v. V. Sanyaolu (1976) 9 – 10 SC 203, this court considered the terminology “privies” in relation to the doctrine of res judicata and classified them into three categories –

Privies in blood
Privies in law (as testator and executor intestate and administration) and
Privies in estate (as vendor and purchaser)”

Adone v. Ikebudu (2001) 7 SCNJ 513 @ 534; (2001) 14 NWLR (Pt. 733) 385 per S. U. Gnu, JSC also cited.

The court was also referred to the following cases – Adesina v. Commissioner (1996) 4 SCNJ 112 @ 119; Fadiora v. Gbadebo

(1978) 3 SC 219 @ 229, Adone v. Ikebudu (supra), Yaya Adigun v. The Governor of Osun State (supra), Ibenye v. Agwu (1998) 9 SCNJ 1 @ 16; (1998) 11 NWLR (Pt. 574) 372.

It is the respondents’ submission that the doctrine of res judicata will operate only where it is shown that the parties, issues and subject matter are the same as in the previous case as those in the action in which the plea is raised, and that the lower High Court was right to conclude as it did that the doctrine of resjudicata and issue estoppel are not applicable to the case at hand.

Now, this appeal originated from a Customary Court, and in considering appeals from Customary Courts, an appellate court is required to examine the entire records as men of common sense and not as lawyers trained in all the technical details of the rules of evidence, procedure and substantive law. It is expected to ask itself whether for lack of evidence or for any other reason, there was likely to have occurred a miscarriage of justice in the Customary Court; or whether the decision of the Customary Court is repugnant to natural justice or morality or inconsistent with any of the provisions of any law binding on the Customary Court. In other words, appellate courts are enjoined to look at the substance rather than the form when considering the judgment of a Customary Court – see Ekong v. Udo (2002) 16 NWLR (Pt. 792) 1, & Okeke v. President & Members of Customary Court, Mapo (2001) 11 NWLR (Pt. 725) 507 at 514 where this court explained that –

“The justification of the above position is not far fetched.

This is because the Customary Courts are required to adopt the simplest procedures in dealing with cases before them. For example, pleadings are never filed in such courts. Similarly, strict rules are not followed in many cases before them”. (Italics mine)

In this case, the Iwara Customary Court found as a fact, inter alia that –

“The boundary of the current case instituted by the plaintiff is quite different from the one instituted by the defendants against the Iwikun Community”

(i.e. in suit No. 35/65). I hasten to add that the Customary Court made the finding after a visit to the locus in quo. As the Supreme Court held in Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175 @ 205, the major essence of inspection of locus is to bring to the fore the evidence of both parties without bias. It is a forum to allow parties to show important boundaries and landmarks to enable the court decide the issue or issues in dispute.

The Supreme Court further held as follows @ p. 206 –

“Where parties are given equal opportunity at the locus to show boundaries and landmarks, show other evidence in their favour, an appellate court will not throw out the findings of the trial court, particularly of a Customary Court merely because it failed to comply with technicalities here and there relating to the inspection of the locus. An appellate court will however interfere where the parties are not given equal opportunity to exhibit or showcase their matter by way of evidence as pleaded by them. In that regard, the principles of fair hearing will be hurt and an appellate court will nullify the proceedings” (Italics mine)

What is the situation in this case vis-a-vis suit No. 35/65? The appellants alleged that the deceased respondent was bound by the judgment in suit No. 35/65 because she gave evidence for the Iwikun Community in that case. The respondents however argued that the deceased respondent was not a witness in that case, and was not so listed amongst the witnesses therein. This is true, the parties’ witnesses in suit No. 35/65 are listed on page 115 of the record of proceedings and the deceased respondent’s name is not there. What the record shows is that after hearing the witnesses of both parties listed on page 115, the Iwara Grade B Customary Court with J. O. Ogunseitan as President moved “to Iwikun to inspect Iwikun Farmland now in dispute” on the 4th of November 1966, and the deceased respondent was questioned as an independent witness. The entry at pages 131 – 132 of the record reads –

“The team turned to Iwikun village to check up from the granddaughter of Chief Balomo mentioned in absentia on the farmland. Juliana Orimogunje (F) an independent witness, sworn on the Bible stated in Yoruba. Both parties are nice. My late grandfather had a farm on the farmland in dispute. He and his son, i.e. my father Emmanuel Wenda paid no ishakole to them.

When the crops of their farm were due to be harvested, the Iwikun Community placed a mark on the farm, by which they warned me not to harvest the crops. I subsequently interceded and they allowed me to do this.

I have been in peaceful occupation of the farm. My father died 18 years ago and I have not been paying ishakole on the farmland”.

In her evidence in this case, the deceased respondent explained as follows –

Yes Ogunseitan came to me to ask from me whether my father was paying and (sic) isakole to anybody but I explained that nobody my father or my grandfather was paying any isakole for out of this people (sic) because my father is the owner of this land in dispute”.

The defence of res judicata means that the subject matter now being disputed had been a subject matter of an earlier litigation in which the parties were the same and a final judgment as opposed to a mere interlocutory decision had been given before a competent court duly constituted. This denotes that the party, that is invariably the defendant who seeks to have the case dismissed or struck out must convince the court by cogent facts that the matter before the trial court had been determined finally before in an earlier dispute. He has the onerous duty to marshal facts that would convince the court that the new action instituted by the plaintiff is not merely a waste of time of the court but equally an abuse of the process of court.

This is because estoppel per rem judicatum is a rule of evidence. In other words, the defendant is asking the court to stop or discontinue the trial of the case before it because it had been determined before and a final judgment pronounced – see Bruce-Akwumngio v. Harry (2001) 11 NWLR (Pt. 723) 88, & Eze v. Nwaubani (2003) 7 NWLR (Pt. 818) 50 where Nsofor, JCA stated @ 66 –

“It is settled law that a successful plea of res judicata constitutes a bar to any fresh action as between the parties or their privies. The rule of res judicata is delved from the Latin maxim, “Nemo debet bis vexari pro eadem causa”. It is the cause that matters and a plaintiff cannot by formulating a fresh claim re-litigate the same cause. Res judicata is as a plea a bar, as evidence it is conclusive. It is, therefore, relevant to stress that once the plea of res judicata has been established; the jurisdiction of the court would be ousted”.

In this appeal under consideration, I have to agree with the respondents that the deceased respondent was not a party or privy to the said suit No. 35/65, neither was she a witness in that case. As the records show, and as she herself confirmed, she was merely questioned as an independent witness by the Customary Court in suit No. 35/65 to cross check information given to them at the locus in quo by one of the witnesses. Even in that case, she stated what she maintained in this case, that her grandfather and father never paid ishakole to any body. In her evidence in chief she said that it was after the death of the appellants’ father, Awikun Olanibi, that the appellants started troubling her, damaging her crops, and threatening her life, that she should not go near the farmland or “should be paying ishakole to them”.

During cross-examination by the 1st appellant, she replied as follows;

“My father died about forty years ago. Out of the person who was paying annual rent (ishakole) for me after the death of my father were Owoeye Agunbiade, Adebowale and Apepe paid two tins of – palm oil”

C The said Agunbiade testified in her favour and stated as follows”

What I know about this farmland in dispute was that I was one of the tenants of the plaintiff’s grandfather who gave me a palm trees plantation to tape (sic) and a land for to plant my crops. I use to pay him annual rent (ishakole) yearly. After the death of the plaintiff’s grandfather, then I started to pay the isakole to the plaintiff’s father by name Emmanuel Saba Onifa. I use ten years inside the farmland which I paid isakole yearly to the plaintiff’s father before I left the farmland in E dispute (sic)” (Italics mine)

The 2nd plaintiff’s witness, Jacob Ademiyiwa testified as follows”

The plaintiff’s grandfather was the owner of this land in dispute at Lomofe. All the people who cultivated their farm and planted their crops inside this farmland in dispute were paying their annual rent (isakole) to the plaintiff’s grandfather before. When the plaintiff’s grandfather died, then her father started to use the farmland which all the tenants working inside the farmland in dispute were paying their annual rent (ishakole) to the plaintiff’s father, among of them were one Apepe, Isaac Adebowale, Owoeye, Jibade and other.

After the death of her father then the plaintiff inherited the farmland and she was the person who started to use this farmland”.

During cross-examination by the 1st appellant, the 2nd PW replied as follows –

“It was not on this plaintiff’s farmland at all that I represented Iwikun Community for because (sic) you and Iwikun Community fought on the farmland belonging to Chief Alumu of Ilumu, and the case

favoured you by then. This farmland in dispute is a separate one the farmland is at Igbo Lomofe. The plaintiff’s farmland is different from the farmland you mentioned, the farmland you mentioned is at Ilumu.

Yes, Chief Ogunseitan came to inspect the farmland you mentioned at Ilumu, which all of us made an explanation to him about the land at Ilumu. It was true that the plaintiff was an independent witness when Chief Ogunseitan came to inspect the then farmland in dispute, because the plaintiff farmland is at Igbo Lomofe and the farmland is at IIumu road pass through it (sic)….

The plaintiff was the person who was claiming her annual rent (isakole) from all the tenants working inside this farmland in dispute after the death of her father.

The appellants did not deny the fact that the plaintiff’s father did not pay ishakole to them. The 1st appellant in his evidence in chief stated as follows –

“All the tenant paying isakole for them, they usually collected it and gave it to my father …. But the father of he plaintiff (Fawenda) did not pay any isakole for his own farm among all the tenants inside this farmland’

(Italics mine)

During cross-examination by the court, the 1st appellant replied as follows –

“Yes Awikun Adeleye our father was the person who gave the plaintiff’s father a land for farming. After Awikwl Adeleye our father there were two Awikun installed in our family, but they never received any isakole from the plaintiff’s father. There was no any G misunderstanding between Awikun Adeleye or the other two Awikun installed in our family and the plaintiff’s grandfather nor her father on this farmland at all. …

Yes this farmland was on the hand of the plaintiff’s family when Awikun Olanibi was on the throne at Iwikun”.

In his own evidence in chief, the 2nd appellant testified as follows”

It was true that our great father, grandfather and our father and the father of the plaintiff did not fight on this farmland in dispute when they were alive and also nobody troubled or molested each other”.

During cross-examination by the court, the 2nd appellant replied as follows –

“Oguntosin was the in-law to our grandfather who gave this farmland to him, and he did not get any isakole from him. The great grandfather of the plaintiff was the person who gave our great grandfather a female child to marry. I don’t know the time that our great grandfather married the plaintiff’s great grandfather’s daughter.

About this farmland in dispute I heard it but I have not been born by then when our great grandfather gave plaintiff’s great grandfather this farmland and also I don’t know their agreement on this farmland”

The 3rd appellant also testified and during cross-exam by the court, replied –

“Our grandfather gave plaintiff’s grandfather a farmland to plant his economic crops because plaintiff’s grandfather was an in-law to our grandfather. The matter of the land came out in about 82 years. Our grandfather gave her grandfather a farm at Oko Lomofe because he was our in law. In our intention nobody wants to claim this farmland from her, because since when the farmland was given to the plaintiff’s grandfather nobody troubled or molested them” (Italics mine)

In its judgment delivered on the 19th of April 1988, the Customary Court held –

“The two families had been living in harmony for over 200 years without any problem. Let us assume that the parties are not relatives automatically it had been confirmed even by the defendants that the last generation up to the plaintiff never paid isakole on the farmland in dispute. As said by the defendants, let the plaintiff’s grandfather be the in-law of the defendant’s great grandfather, the plaintiff has got the legal advantage of long occupation on the farmland for over two hundred years in so much that it was the great grandfather of the plaintiff who planted the crops on the land in dispute. If the last seven generations of Awikun lived peacefully with the generation of the plaintiff this court sees no reason why the children should turn out to be enemies.

(Italics mine).

The judgment of the trial Customary Court cannot be faulted. It was affirmed by the I1esa Senior Magistrate Court, then by the I1esa High Court and I see no reason to reverse the trend. It is an established principle that unless it becomes absolutely desirable to do so, the concurrent decisions of lower courts are hardly disturbed by the appeal court – see Usman v. Usman (2003) 11NWLR (Pt. 830) 109, Agu v. Nnadi (2002) 18NWLR (Pt. 798) 103 SC, Nziwu v. Onuorah (2002) 4 NWLR (Pt. 756) 22 SC.

In the final analysis, the plea of res judicata fails the appellants.

I am satisfied with the judgments of the three lower courts, and have no reason whatsoever to tamper with the decisions therein. Thus, the appeal lacks merit and is hereby dismissed by me. I affirm the decision of the lower court. The appellants are ordered to pay costs of N5, 000.00 to the respondents.

Other Citations: (2005)LCN/1859(CA)

Alh. Sani Mani & Ors V. Alh. Shehu M. Shanono (2005) LLJR-CA

Alh. Sani Mani & Ors V. Alh. Shehu M. Shanono (2005)

LawGlobal-Hub Lead Judgment Report

KEKERE-EKUN, J.C.A.

This is an appeal against the judgment of the Kano State High Court in suit No. K/268/96, delivered on the 15th day of June, 2001, in favour of the respondent herein.

The respondent, who was the plaintiff before the trial court filed a writ of summons and statement of claim dated 7th May, 1996, seeking the following reliefs against the present appellants who were the defendants:

“1. A declaration that the purported inclusion of the plot covered by certificate of occupancy No. KN.5458 situate at and known as plot No. 15, Gwarzo Trading plots in the Estate of late Mani by the 1st and 2nd defendants is illegal, null and void.

A declaration that the purported sale of the said plot of land to the 3rd defendant by the 1st and 2nd defendants is illegal, null and void.
A declaration that the plaintiff is still the rightful owner of plot No. 15, Gwarzo Trading plots covered by certificate of occupancy No. KN.5458 and is therefore entitled to peaceful and undisturbed possession.
An order of perpetual injunction restraining the defendants including the entire estate of late Mani from trespassing on the said plot of land and from doing any act prejudicial to the interest of the plaintiff.”

The appellants filed a 15-paragraph statement of defence and joined issues with the plaintiff on his claims. Both parties led evidence at the trial and tendered exhibits. At the conclusion of the trial, the court entered judgment in favour of the respondent and granted all his reliefs.

The appellants being dissatisfied with the judgment have appealed to this court by their notice of appeal dated 26th June, 2001 and filed the same day, at pages 51-54 of the record, on four grounds.

The four grounds without their particulars are as follows:

“1. The learned trial Judge erred in law and arrived at a wrong conclusion by conferring title to the land in dispute on the respondent thereby failing to dismiss the respondent’s suit notwithstanding the respondent’s failure to prove title superior to that of the appellant.

The learned trial Judge erred in law and arrived at a wrong decision by wrongly presuming the validity of the certificate of occupancy relied upon by the respondent in proof of his title to the land in dispute when the respondent had not established its validity, the extent of the grant covered by it and the manner through which his grantor acquired title to the land in dispute.
The learned trial Judge erred in law and arrived at a wrong conclusion by wrongly presuming that the land in dispute is well known to both parties when the appellants have indeed vigorously raised the issue of the identity of the land and challenged the respondent’s witnesses on it under cross-examination.
The learned trial Judge erred in law and arrived at a wrong conclusion by conferring title to the land on the respondent that failed to displace the legal presumption which vests ownership of the land in dispute on the person in possession (the appellant) in this case, and no superior title had been established by the respondent.”

The brief facts that gave rise to this appeal as can be gathered from the printed record are as follows:

The respondent, Alhaji Shehu Mohammed Shanono who was the plaintiff at the trial court applied to the Kano State Government for a plot of land. He was granted a plot of land at Gwarzo in Gwarzo Local Government, which is covered by certificate of occupancy No. KN5458 issued in 1980. In 1981, he applied for and was granted building approval by the Urban Development Board, Kano State. The respondent who testified as PW3 stated that work on the land stopped when the contractor he engaged died and that the 1st and 2nd appellants subsequently encroached on his land and sold it to the 3rd appellant.

On their part, the appellants as defendants testified that they inherited the land in dispute from their late father who cleared the land 28-30 years earlier and farmed on it without any disturbance. They testified that after his demise the Upper Area Court, Gwarzo distributed the said plot of land to them as part of his estate.

In accordance with the rules of this court, both parties filed and exchanged briefs of argument. The appellant’s brief is undated but was filed on 17th April, 2002. The respondent’s brief dated 21st February, 2003 was filed with the leave of this court on 15th April, 2003.

In their brief of argument, the appellants submitted a sole issue for determination in his appeal thus:

“Whether the trial High Court Judge was right in refusing to dismiss the respondent’s claim for title to the plot of land, regard being had to the legal presumption that vests title on the appellant, respondent’s failure to establish the validity of the certificate of occupancy upon which his alleged title is based, the respondent’s failure to establish the manner through which his grantor acquired the title purportedly vested on him, the respondent’s failure to establish the identity of the plot of land by evidence and the weight of evidence.” (grounds 1, 2, 3 and 4 of the notice of appeal).

In the respondent’s brief, two issues were formulated for the determination of this appeal:

“1. Did the learned trial Judge rightly confer title on the respondent or not on the strength of exhibit ‘A’.

Whether the identity of the land in dispute was in issue and if so whether the burden to prove the identity of the land in dispute was not adequately discharged by the respondent.”

At the hearing of the appeal, Mr. Abubakar Malami, learned Counsel for the appellants adopted the appellants’ brief and urged us to allow the appeal. Mr. M. B. Adoke, learned Counsel for the respondent adopted the respondent’s brief and urged us to dismiss the appeal with substantial costs.

Looking at the sole issue formulated by the appellants, I find it to be inelegantly drafted and rather unwieldy. The respondent’s issues are clearer and more straightforward. I shall therefore consider and resolve the two issues formulated by the respondent in determining this appeal. The first issue is however modified slightly to read:

“Whether the learned trial Judge rightly conferred title on the respondent on the strength of exhibit ‘A’.

With regard to the first issue for determination, it was contended on behalf of the appellants that having challenged paragraph 4 of the statement of claim by paragraphs 4 and 12 of their statement of defence, and having led unchallenged evidence at the trial to the effect that they were in possession of the land in dispute by inheritance of same from their late father who had farmed undisturbed thereon for 28-30 years, the onus was on the respondent to prove that they were not the owners of the land. Section 146 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria (L.EN.) 1990 was relied upon to support the contention that the appellants were presumed to be the owners.

It was argued that once a party pleads and traces the root of his title in an action for declaration of title to land to a particular person or source and his ownership is challenged, that party must not only establish his title to such land but must also satisfy the court as to the title of the person or source from whom he claims. It was submitted further that the plaintiff in such circumstances, must satisfy the court by credible evidence as to the devolution of title in respect of the land down to himself. Learned Counsel for the appellants submitted that the respondent failed to lead evidence to establish the title of the Government from whom he claimed title and also failed to show that the presumed title of the appellants had been revoked. In support of this contention, he cited a list of eleven cases inter alia Eso v. Adeyemi (1994) 4 NWLR (Pt. 340) 558 para. G-H; Azi v. Registered Trustees of Evangelical Churches (1991) 6 NWLR (Pt. 195) 111; Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745.

He however failed to relate the facts or ratio decidendi of any of the cited cases with the facts of this case. Nevertheless, I shall consider some of the authorities where relevant in the course of the judgment.

It was submitted that under the Land Use Act Cap. 202 Laws of the Federation of Nigeria, 1990, a certificate of occupancy is not conclusive evidence of any right, interest or valid title of land in favour of the grantee but at best only prima facie evidence of such right, interest or title, which could be rendered invalid, null and void if successfully challenged. Reliance was placed on the case of Lababedi v. Lagos Metal Industries (Nig.) Ltd. (1973) NSCC 1 at 6. It was contended that in the present case, the respondent failed to prove a better title than the appellants and that his title ought to have been deemed defective and discountenanced as invalid. Learned counsel cited the following cases in support Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 528 at 540.

In response to the first issue, learned Counsel for the respondent submitted that in an action for declaration of title, the burden of proof is on the plaintiff and that the standard of proof is minimal. He relied on Adeleke v. Iyanda (2001) 13 NWLR (Pt.729) 1; (2001) 6 SCNJ 101 at 122. He referred to the evidence of the respondent and his witnesses to the effect that he was granted the land by the Kano State Government and was issued certificate of occupancy No. 5458 (exhibit A). He submitted that section 114(1) of the Evidence Act presumes the genuineness of exhibit A. He submitted that all lands in the State are vested in the governor of that state by virtue of the Land Tenure Law Cap. 59 Laws of Northern Nigeria, 1963, under which exhibit A was granted and sections 2(1),4 and 5 of the Land Use Act Cap. 202 L.F.N. 1990. He submitted that exhibit A was granted in exercise of powers conferred by section 6 of the Land Tenure Law and that it is prima facie evidence of title and possession. He referred to Registered Trustees of Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514.

Learned Counsel submitted that having regard to the provisions of sections 4, 5 and 44(1) of the Land Tenure Law, the burden was on the appellants to prove how their father acquired title to the land. He also referred to section 136 of the Evidence Act and submitted that the appellants had failed woefully in this regard. He noted further that the appellants’ evidence that their late father acquired the land by clearing it is not supported by their pleadings and therefore goes to no issue. He submitted that the evidence adduced in that regard was rightly discountenanced by the learned trial Judge. He relied on the following cases: Ukeagbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127 at 156 and Moses Okhuarobo v. Aigbe (2002) 9 NWLR (Pt.771) 657; (2002) 3 SCNJ 109. He submitted that it was not sufficient for the appellants to merely plead vaguely that they and their predecessor in title owned and were in possession of the land, but were bound to prove who founded the land and how it was founded. He relied on Umeano Achiakpa v. Josiah Nduka (2001) 14 NWLR (Pt.734) 623; (2001) 7 SCNJ 585 at 610. He also relied on Order 25 rule 6(3) of the Kano State High Court (Civil Procedure) Rules, 1988.

Finally, learned Counsel submitted that the complaint of the appellants at page 8 of their brief against the approach of the learned trial Judge to the evaluation of evidence ought to be discountenanced as it is not covered by any ground of appeal. He relied on Achiakpa v. Nduka (supra) at 617 and Adeleke v. Iyanda (supra).

In an action for declaration of title to land, it is well settled that the burden of proof lies on the party seeking the declaration in his favour. He is bound to succeed on the strength of his case and not on the weakness of the defence, if any. In the case of Idundun v. Okumagba (1976) 9-10 SC 227 the Supreme Court laid down the methods by which a party can establish his title to land, namely:

by traditional evidence;
by production of documents of title which are duly authenticated;
by acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion of it;
by acts of long possession and enjoyment of the land; or
by 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.

It was held in Abel Nkado & Ors. v. Ozulike Obiano & Anor (1997) 5 NWLR (Pt.503) 31; (1997) 5 SCNJ 33 that the onus on the plaintiff is discharged if he establishes anyone of the five methods.

From the evidence of the respondent at the trial court, he relied on the second method enumerated above, that is the production of his title document: certificate of occupancy No. KN 5458 issued to him by the Kano State Government. This was tendered as exhibit A in support of paragraph 1 of the statement of claim. PW 1 and PW2 also testified on his behalf and stated that they were aware that the land in dispute belonged to the respondent.

Section 137(1) and (2) of the Evidence Act provides:

“(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.”

From the above provisions of the Evidence Act, it is clear that the plaintiff must show a prima facie case before the need to consider the case put up by the defence will arise. See Benneth Ude Agu v. Maxwell Nnadi (2002) 18 NWLR (Pt.798) 103; (2002) 12 SCNJ 238.

Through the oral testimony of the respondent and his witnesses and with the tendering of exhibit A, the respondent had made out a prima facie case in support of his claim. It is trite that a certificate of occupancy or any other document of title is prima facie evidence of title, but will give way to a better title. See Emmanuel Ilona v. Sunday Idakwo & Anor. (2003) 11 NWLR (Pt.830) 53; (2003) 5 SCNJ 330. The appellants in their statement of defence had challenged the respondent’s title on the grounds that they are the rightful owners thereof through inheritance and on the basis of possession spanning a period of 28-30 years. The respondent having made out a prima facie case in support of his claim, the next step was for the court to consider the defence and determine whether a case had been made out in support thereof.

In the case of Adeleke v. Iyanda (2001) 13 NWLR (Pt.729) 1; (2001) 6 SC 18 at 33 Uwaifo, JSC relied on an earlier decision of the Supreme Court in Kaiyaoja v. Egunla (1974) NSCC (Vol. 9) 606 at 609 wherein Ibekwe, JCS stated inter alia:

“The burden of proof takes cognisance, of course, of the imaginary scale to determine to what side the evidence tilts the scale. Where the plaintiff has adduced admissible evidence, which is satisfactory in the con of the case, and none is available from the defendant, the case will be decided upon a minimal proof. This makes the burden lighter.”

The main issue to be determined therefore is, whether the appellants adduced sufficient evidence at the trial to successfully challenge the respondent’s claims. In paragraphs 4, 10 and 11 of the statement of defence at pages 12-13 of the printed record they averred as follows:

The defendants deny paragraph 4 of the statement of claim and avers (sic) further that the plaintiff have (sic) never own (sic) the said land as the same belong to their parents and same was inherited by 1st and 2nd defendants and other.. of Mani from their late father after distribution of the estate of their father at UAC Gwarzo in suit No. CV/90/94 and writ of possession was issued to all heirs after the distribution. The record of proceedings and writ of possession are pleaded and same will be relied upon at the hearing of this suit.
The defendant further avers that the certificate of occupancy which the plaintiff want to rely on if any, was fraudulently obtained by him using his position as the ex-chairman of the Gwarzo Local Government as well as his influence as a commissioner during Alh. Abubakar Rimi administration and the same is to no effect as then (sic) are still in lawful and legal occupation.
The defendant denies paragraph 7 and 8 and avers that the land belong to their father and it was in his peaceful possession until his death in 1993 and that when their father died, the land was posted to them and was accordingly distributed to them by UAC Gwarzo, in accordance with Islamic law of inheritance in suite No.CY/90/94.”

In support of their case, the appellants tendered exhibit C, a writ of possession for the distribution of the estate of their late father. It is pertinent to note that the appellants did not file a counter claim. Furthermore, although they alleged fraud in paragraph 10 of their statement of defence they did not lead any evidence to support the allegation.

At page 4 of the appellant’s brief, learned counsel for the appellants referred to the evidence of DW 1, Alhaji Sani Mani (the 1st appellant herein) at page 33 of the printed record as follows:

“I inherited the farmland from my father, Alhaji Mani Umaru. My father came into possession of the land because it was a forest, a virgin land. My father is now dead. My father clear (sic) the forest and turned it to a farm for about 28-30 years. From the time my father cleared the forest and entered into possession to the present day nobody claimed any possession right over the farm land.”

Learned Counsel submitted that DW1’s evidence was unchallenged and was not discredited through cross-examination. He submitted that the respondent’s title had been validly challenged and that the only way he could succeed against the appellants in light of their evidence of possession was by proving the title of his grantor, i.e. by proving how the Kano State Government acquired the land before it was granted to him and whether the appellants’ title was revoked.

With regard to the evidence of DW1 reproduced above, the learned trial Judge had this to say in his judgment at page 43 of the record:

“In the case before the court, the plaintiff tendered exhibit A, which is the certificate of occupancy issued to him by the Kano State Government in respect of the land. The defendants on the other hand tendered exhibit C, which is a writ of possession for the distribution of the estate of their late father. However the defendants have not established anything before the court that gave their father title to the land, which was distributed to them.”

I have examined all the paragraphs of the statement of defence, particularly paragraphs 4, 10 and 11 thereof. There is no fact pleaded regarding how the appellants’ father acquired the land.

I agree with learned Counsel to the respondent that the oral evidence of DW1 to the effect that the land was virgin land and that their father cleared it 28-30 years earlier and farmed on it without hindrance until he died was not pleaded and therefore goes to no issue. The position of the law is that even where such evidence is inadvertently admitted it would be expunged. See Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127 at 156 A-B; Thompson v. Arowolo (2003) 7 NWLR (Pt. 818) 163. It follows that the appellants did not lead any credible evidence before the trial court to show how their father acquired title to the land, which was distributed among his heirs or to prove that they were entitled to the customary right of occupancy in respect of the land.

I have carefully considered the authorities cited by learned Counsel for the appellants regarding the burden in this matter. It is their contention that notwithstanding the issuance of a certificate of occupancy in his favour, the burden lies on the respondent to prove that they were validly and lawfully divested of their ownership of the land in dispute and that to do this the respondent ought to go beyond the certificate of occupancy and trace the root of the title of the Kano State Government.

In the case of Onubruchere v. Esegine & Anor: (1986) 1 NWLR (Pt.19) 799; (1986) 2 SC 385, relied upon by learned Counsel for the appellants, the plaintiffs at the trial court pleaded that their ancestor was the original founder and owner of the land in dispute but that a portion of it was pledged to the defendants’ ancestors. They contended that notwithstanding the pledge they remained owners of the land. The defendants in their pleading admitted the plaintiffs’ original ownership but contended that the land was never pledged to their ancestors, but that there was an outright customary sale thereof, which extinguished the plaintiffs’ radical title. The learned trial Judge and the Court of Appeal held that the onus was on the plaintiffs to prove the pledge in accordance with Urhobo customary land and as this had not been done, dismissed the plaintiffs’ case. The Supreme Court held, allowing the appeal and setting aside the judgments of the Court of Appeal and the court of first instance, that the onus of proof on the pleadings was wrongly placed on the plaintiffs. The court was of the view that once the defendants had admitted that the plaintiffs were in possession but claimed that the plaintiffs had sold the land to them, the burden of proof shifted to the defendants to show that the original owners had extinguished their title. His Lordship, Oputa, JSC had this to say at pages 400 lines 28 to 401 line 5.

“To hold otherwise will be to “overlook the established rule that once it is proved (here it was admitted by the defendants and found by the trial court) that the original ownership of the property is in a party the burden of proving that the party has been divested of the ownership rests upon the other party” – per Coker, JSC in Bello Isiha & Ors. v. J. T. Hanson & Anor. (1967) 1 All NLR 8. The same principle was applied in the case of Samson Ochonma v. Asirirm Unosi (1965) NMLR 321.”

From the above decision, it is clear that the original ownership of the property by a party must be proved before the burden of proving that the party has been divested of it by he party now claiming to be entitled to a declaration in his favour would arise. Thus, in the instant case, in the face of the prima facie evidence adduced by the respondent, the appellants had the burden of proving their original ownership of the land. If they were able to do so, the burden would again shift to the respondent to prove that such title had been extinguished. The appellants in this case failed to discharge that burden.

In the case of Eso v. Adeyemi (supra), cited by learned Counsel for the appellants this court rightly held per Mukhtar, JCA (as he then was) at page 573 G-H that,

“a person in whose name a certificate of occupancy has been issued can only validly hold unto it if he can show that he legitimately acquired the property …. He should be able to show that the certificate was issued in his favour after he had properly acquired the property through the persons who were the holders.”

In the instant case, the respondent led prima facie evidence to show that he validly acquired the property through the grant thereof to him by the Kano State Government by virtue of exhibit A. It has been noted earlier in this judgment that a certificate of occupancy is only prima facie evidence of title. Exhibit A was issued pursuant to the Land Tenure Law Cap 59 Laws of the Northern Nigeria, 1963. Section 6(3) of the Law provides:

“Upon the grant of a right of occupancy under the provisions of subsection (1) all existing rights to the use and occupation of the land which is the subject of the right of occupancy shall be extinguished.” (italics supplied for emphasis)

Thus, where it is proved that the customary right of occupancy resides in another and such right has not been extinguished the certificate of occupancy is liable to be declared invalid. See Azi v. Registered Trustees of the Evangelical Churches of West Africa (1991) 6 NWLR (Pt. 195) 111. The existence of a customary right of occupancy at the time of the issuance of the certificate of occupancy must be established before the court. In the case of Registered Trustees, Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514 at 529 B-C, the respondent was able to satisfy the court not only that she was the customary owner of the land but that she was also in possession and had not received any notice of intention to dispossess her of the land as provided for under section 34(5) of the Law.

Having placed the evidence led by both parties in this case on an imaginary scale, I am of the view that he learned trial Judge came to the right conclusion that having regard to the competing claims, the appellants failed to adduce any evidence to successfully challenge the respondent’s title to the land in dispute. The first issue is accordingly resolved in favour of the respondent.

The second issue for determination in this appeal is whether the identity of the land in dispute was in issue and if so, whether the burden to prove the identity of the land in dispute was not adequately discharged by the respondent.

Learned Counsel for the appellants argued that the appellants joined issue with the respondent on the identity of the land in dispute in their pleading and during the cross-examination of his witnesses. He referred to paragraphs 7 and 8 of the statement of defence at page 13 of the printed record. He also referred to the evidence of PW1 under cross-examination at page 25 of the printed record, where he testified that he did not remember the demarcation of the land and the evidence of PW2 at page 26 of the record, where he testified that he did not know the boundaries of the subject matter of the dispute. He submitted that it was not sufficient to merely tender plan showing the features of the land in dispute. He contended that the party seeking a declaration of title in his favour must give credible evidence linking the ownership of the disputed land with the features on plan tendered. He relied on Iriri v. Erhurhobara (1999) 2 NWLR (Pt.173) 252: (1991) 3 SCNJ 12.

In the respondent’s brief, learned Counsel for the respondent submitted that when the pleadings of the parties are read as a whole, it would be clear that the identity of the land was not in issue. He stated that paragraphs 7 and 8 of the statement of defence merely narrate what transpired before the Upper Area Court Gwarzo in suit No. CV/337/95. He submitted further that in any event, no evidence was led in support of paragraphs 7 and 8 at the trial. He was of the view that even if there was a dispute as to the identity of the land, the respondent had discharged his duty to prove the identity through the sketch map annexed to exhibit A. He relied on the case of Akinterinwa v. Oladunjoye (2000) NWLR (Pt.659) 92; (2002) 4 SCNJ 149 at 171 and 172.

In order to determine whether the identity of the land in dispute was in issue between the parties, it is necessary to produce some of the relevant paragraphs of the pleadings on either side. Paragraphs 3, 4, 5 and 7 of the statement of claim and paragraphs 3, 4, 7, 8 and 11 of the statement of defence read as follows:

Statement of Claim (pages 7-8 of the record)

“3. The plot of land covered by certificate of occupancy No. KN5458 is situate in Gwarzo Town within the jurisdiction of this Honourable Court.

The plaintiff avers that he owns the plot of land covered by certificate of occupancy No KN5458 same being granted to him by the Kano State Governor sometime in.
The plaintiff avers that he duly processed the issuance of the certificate of occupancy, which was given to him sometime in 1980. The plaintiff hereby pleads the certificate of occupancy No. KN 5458 bearing his name dated 23rd day of December, 1980.
The plaintiff has been in peaceful possession of (sic) plot of land since the time he was granted same by the government, until recently, when the 1st and 2nd defendant and the rest of the heirs of one Alh. Mani (deceased) included the plot of land in the estate of the deceased father and led the Upper Area Court, Gwarzo into distributing the plaintiff’s plot of land along with the deceased Mani’s estate. The plaintiff hereby pleads the Upper Area Court, Gwarzo’s record of proceeding in the case of Alhaji Sani A. & Ahmadu Gwarzo v. Alh. Gamba Zanga Gwarza in suit NO. CV/90/94 together with the English translated version.”

Statement of Defence (pages 12-13 of the record):

“3. The defendant denies paragraph 3 of the statement of claim and avers further that the land in dispute to their knowledge has no number or certificate as the same was passed to them through inheritance and since then they have never requested for the issuance of any certificate from the local or state government.

4 The defendant deny paragraph 4 of the statement of claim and avers further that the plaintiff have never owned the said land as the same belong to their parents and same was inherited by 1st and 2nd defendant and other… of Mani from their late father after the distribution of the estate of their father at UAC Gwarzo in suit No. CV/90/94 and writ of possession was issued to all heirs after the distribution. The record of proceedings and writ of possession are pleaded and same will be relied upon at the hearing of this suit.

The defendant avers that at the time their late father challenged the acquisition of the land without any compensation and since then the matter went to rest and they continued using their land without any hindrance from anybody until sometimes in 1995, after the death of their late father when the plaintiff through his brother, A. Sani instructed (sic) an action at UAC Gwarzo in case No. CV/337/95 on the issue of the land. The said hearing notice is hereby pleaded and same be relied upon at the hearing of this suit.
The (sic) further state that when the matter was mentioned, the plaintiff through his representative was unable to identify the land thereafter they withdrew the action and filed this case.
The defendant denies paragraphs 7 and 8 and avers that the land belong to their father and it was in his peaceful possession until his death in 1993 and that when their father died the land posted to them and was accordingly distributed to them by UAC Gwarzo in accordance with Islamic Law of inheritance in suit No. CV/90/94.”

It is evident from the pleadings reproduced above that the identity of the land in dispute was clearly known by both parties and no issue was joined on the pleadings in respect thereof. I agree with learned Counsel for the respondent that the pleading in paragraphs 7 and 8 of the statement of defence was a mere narration of what transpired in a suit before the Upper Area Court Gwarzo. The identity of the land not being in dispute it follows that there was no burden on the respondent to establish it. See Ogun v. Akinyelu & Ors. (2004) 18 NWLR (Pt.905) 362; (2004) 12 SCNJ 196.

I therefore resolve this issue in favour of the respondent.

There is no ground of appeal in respect of the argument contained at page 8 of the appellants’ brief, regarding the approach of the learned trial Judge to the evaluation of evidence. The submissions therein therefore go to no issue and are accordingly discountenanced. See Achiakpa v. Nduka (supra) also reported in (2001) 7 SC (Pt. 11) 125 at 146.

In conclusion, I find no merit in this appeal, which I hereby dismiss. The judgment of the Kano State High Court delivered on 15th June, 2001, by Hon. Justice Y. Hassan in suit No. K/286/96 is hereby affirmed. There shall be N5,000.00 costs in favour of the respondent against the appellants.

Other Citations: (2005)LCN/1857(CA)

Wilfred Okafor V. The State (2005) LLJR-CA

Wilfred Okafor V. The State (2005)

LawGlobal-Hub Lead Judgment Report

OLABODE RHODES-VIVOUR, J.C.A.

The appellant was charged in the High Court Niger State, sitting in Minna with Robbery, contrary to Section 1(1) of the Robbery and Firearms (Special Provisions) Act, 1990. He was found guilty of the offence on the 6th day of May, 2002, by the Hon. Justice Aisha A.L.B. Bwari and sentenced to 21 years in prison.

To substantiate its case, the State, now respondent in this appeal, called six witnesses and tendered documentary evidence, among which are the statements of the accused person and the complainant, PW1.

The prosecution’s case was that on the 5th day of November, 1999, one Mohammed Ahmed, a commercial driver who testified as the PW1 drove his vehicle, a 505 Peugeot Station Wagon from Lagos to Minna, The registration number of his vehicle is XA 978 MNA. There were passengers and their belongings in the vehicle. On arriving at Edozhigi road junction, about 15 Kilometres from Bida, he ran over oranges stuck with nails. The two front tyres of his vehicle ran flat. He and all the passengers disembarked from the vehicle. He told the passengers to go to the Police checkpoint which was not too far off. He followed them, but on his way, he heard a gun shot. The passengers ran into the bush. Two robbers came out of the bush and attacked PW1 with a stick and robbed him of N11,800 and made away with the passengers’ goods.

PW1 reported the matter to the Police at Lemu Division, Edozhigi. The robbery occurred at about 8.30 p.m.

In her judgment, the learned trial Judge rejected the appellant’s defence. Her lordship accepted the evidence of the prosecution witness and ended her judgment summarizing thus-

“I dare say, I find no such contradictions in the prosecution evidence. Each of the witness (Prosecution) stated step by step what they knew and did with regard to their investigation of the case. Court can do no other than to find the accused person guilty. The accused person, Wilfred Okafor, is hereby found guilty of the offence of robbery under Section 1(1) of the Robbery and Firearms (Special Provisions) Act, 1990.”

Aggrieved by the decision, the Appellant appealed against the conviction by the learned trial Judge to this Court.

In accordance with the Rules of this Court to wit: Order 6 rules 2 and 4 both sides filed and exchanged briefs of argument.

The appellant’s brief filed on 16/1/04 contained seven grounds of appeal, and they are:

“1. The judgment of the lower court is unreasonable and cannot be supported having regard to the evidence adduced during the trial.

The court below erred in Law, when it found the appellant guilty of an offence of Robbery, when the offence was not proved beyond reasonable doubt, or even that there was robbery at all and that the Appellant participated in it.
The learned trial Judge erred in Law, to have convicted the Appellant in the absence of properly conducted identification parade and proper evidence of identification.
The learned trial Judge by attaching undue weight to the evidence of the complainant/PW1 despite previous inconsistent statement made by him to the Police and his evidence in the court.
The learned trial Judge erred in Law, when it held that the sentence is the minimum imposed by the Law.
The learned trial Judge erred in Law, by trying and convicting the Appellant under the Robbery and Firearms (Special Provisions) Act 1990, whereas it has no such jurisdiction under the said Law and therefore, causing substantial miscarriage of justice.
The whole trial conducted by the lower court was a nullity in that the substantial part of the proceedings and delivery of judgment were conducted by the lower court inside the judge’s chambers.”

Five issues for us to determine have been postulated in the Appellant’s brief. They are:-

“1. Whether considering the evidence before the court, the Hon. trial Court was right to have returned verdict of guilt.

Whether having regards to the totality of evidence before the trial court and the circumstances of this case, a case of Robbery was proved beyond reasonable doubt against the Appellant.
Whether the evidence of identification in this case was proper and reliable for the Hon. Trial court to have acted upon, in convicting and sentencing the Appellant.
Whether in the face of irreconcilable contradictions in the evidence of PW1, the Star Witness for the prosecution, the learned trial Judge was right to have convicted the Appellant.
Whether the trial and conviction of the Appellant under the Robbery and Firearms (Special Provisions) Act by the Niger State High Court of Justice was not invalid.”

On his own part, the respondent formulated the following issues for determination in his brief filed on 29/4/04.

“1. Whether considering the evidence before the trial court, the Hon. Trial Court was not right to have returned a verdict of guilt?

Whether having regard to the totality of Evidence before the Court, the prosecution did not prove its case beyond reasonable doubt?
Whether the Minna High Court had no jurisdiction to have tried the robbery case the offence being an Act of National Assembly and not that of the State Assembly. In another word, being a federal offence.
Whether there was even any need for identification parade in this case?”

At the hearing of the appeal on the 11th October, 2005, learned Counsel for the appellant adopted his brief and urged us to allow the appeal and quash the conviction of the appellant.

Interestingly, the appellant was present in Court. This is what his Counsel, Mr. Chukwuma-Machukwu Ume said concluding his submissions:

“The Chief Judge of Niger State quickly freed him because he realized he was wrongly convicted.”

I shall say nothing on this.

Learned Counsel for the respondent adopted his brief and urged us to dismiss the appeal and uphold the judgment of the court below delivered on the 6th of May, 2002.

No issue was formulated for determination from grounds 5 and 7. The position of the Law is that where no issue is formulated in respect of a ground of appeal such ground of appeal is deemed to have been abandoned and would be struck out by the appellate court.

In this appeal as no issue was formulated in respect of grounds 5 and 7 of the ground of appeal, the said grounds 5 and 7 are hereby, struck out having been abandoned by the appellant. See:

Iyayi v. Eyigebe 1987 3 NWLR Pt. 61 p. 528;

Obasi v. Onwuka 1987 3 NWLR Pt. 61 p. 369;

Western Steel Works v. Iron & Steel Workers Union 19871 NWLR Pt. 49 p. 304.

Having given the arguments adduced in the briefs, the most careful consideration the questions for determination in this appeal are-

Whether there was the need for an identification parade in this case.
Whether in the face of irreconcilable contradiction in the evidence of PW1, the star witness for the prosecution the learned trial Judge was right to have convicted the Appellant.
Whether the trial and conviction of the Appellant under the Robbery and Firearms (Special Provisions) Act by the Niger State High Court of Justice was not invalid.

I must at this stage, observe that in all Criminal trials, the burden is always on the prosecution to prove beyond reasonable doubt the guilt of the accused person. See-

Chia v. State 1996 6 NWLR Pt. 455 p. 465;

Babuga v. State 1996 7 NWLR Pt. 460 p. 279.

Consequently, where there are material contradictions on vital issues which create reasonable doubt, the learned trial Judge has the duty to resolve the doubt in favour of the accused person. See Baruwa v. State 1996 7 NWLR Pt. 460 p. 302.

I now deal with the issues for determination in this appeal.

Issue No. 1

Learned Counsel for the appellant observed that what was given as evidence of Identification parade was a shamble, outrageous and very improper. Reference was made to

Okeke v. State 1995 4 NWLR Pt. 392 p. 688;

Madugwa v. State 1988 5 NWLR Pt. 92 p. 60

He argued that since the robbery occurred at night (8.30 p.m.) and the complainant never saw the appellant before the robbery incident a proper Identification parade ought to have been conducted.

Concluding, he submitted that the Hon. trial Judge misunderstood the evidence of identification.

Further reference was made to:

Lado v. State /9999 NWLR Pt. 619 p. 373.

In his own submission, learned Counsel for the respondent observed that an identification parade is one of the ways of identifying an accused person. He submitted that there was no need for any identification parade since the evidence of PW1 is not one of visual or fleeting identification, but that of actual recognition of the appellant.

This is what the learned trial Judge had to say on the identification of the appellant:

“However, I do not hold the view that visibility at about 8.30 p.m. was not possible/or purpose of identification of accused person by the PW1………”

I fail to see how the learned trial Judge can so hold when PW1 said under cross-examination as follows:

“Yes this incident took place at night at about 8.30 p.m. At 8.30 p.m. it is already night since there is no sun. ”

There is no doubt that Nigerian Highways are very dark at night, and once the scene of the Robbery is dark the identity of the offender which is indeed of crucial importance can only be properly done by an identification parade. This is done where as in this case the appellant was not arrested at the scene of the crime. PW1 never knew the appellant before the Robbery. Even if PW1 was confronted by the appellant it was for a very short time and PW1 never observed any features of the appellant as he did not make any mention of that in his statement or in oral sworn testimony in court.

PW1 was robbed in the night of 5/11/99. He reported to the Police. In his statement made to the Police on 9/11/99 he said:

“…………… I can identify them if seen or through their voice ………… and they also speak Igbo …………… the Police suspected some group of Igbo boys in that area and I accompany the Policemen to the houses of the suspected persons……………”

PW2, PW3, PW4, PW5 AND PW6 are all Police officers. The need for an Identification parade becomes mandatory after examining what they said.

PW2 – he charged the appellant to the Magistrates Court.

PW3 – his evidence under cross examination is interesting. He said:

“The complainant told me the people that robbed him spoke Ibo language and that was why my investigation was limited to Ibo speaking people. The first person, I arrested was Victor Okoro. I went in company of the complainant who identified him. The arrest and identification was done at Victor’s house. So also was Cletus Ogbonna and Ogbonna Onye.”

Those people were never charged to Court. His evidence continued:

“Later I showed accused person to the complainant to be one of the Ibos in the area and immediately, he suspects the accused.”

It is not only Ibos that speak Ibo. The Police restricting its investigation to Ibos is wrong as people who are not Ibos, also speak the Ibo language. It must also be noted that immediately PW3 showed the accused person to the complainant, he immediately suspected him. The Law is well settled that suspicion however great is not legal evidence. It does not amount to proof. See

James Ikhare v. Police 1977 6 SC P. 122;

Abiake v. State 1975 9-11 SC. p. 97;

Adio v. State 1986 2 NWLR Pt. 24 p. 581.

PW4 corroborated PW3 and he was also able to recover N22,000 from Victor Okoro, but nothing was recovered in the house of the appellant.

PW5 only recorded the appellant’s statement.

PW6 did not do anything in respect of the appellant.

My Lords, this case rests on the identity of the appellant. In this case, the complainant accompanied the Police to the homes of four Ibo speaking men. He saw them all the time, and did say he suspects the four of them. The identification of the appellant in the circumstances without a properly conducted Identification parade is highly suspect, unfair and unreliable.

ISSUE NO.2

Learned Counsel for the appellant argued that had the learned trial Judge considered the contradictions in the evidence of PW1 on the vital issue of the identity of the appellant the conclusion would have been different.

Reliance was placed on;

Uso v. State 1992 2 NWLR Pt. 224 p. 471;

Onigbogu & Ors. V. The State 1974 ANLR p. 561.

He urged us to set aside the valuation of the entire evidence by the trial court.

In reply, learned Counsel for the respondent submitted that there were no contradictions in the evidence of PW1 and for contradictions to be fatal to the prosecution’s case the contradictions must be in respect of material and not minor facts.

My Lords, the position of the Law is that where a witness has made previous statements inconsistent with the evidence given at the trial, the court has been slow to act on the evidence of such a witness.

In his statement to the Police PW1 said:

“I accompany the Policemen to the houses of the suspected persons……”

In evidence in chief, he said on oath;

“……..I and one Inspector, proceeded to Wuya Village at about 6.30 a.m. and went to the accused’s house, where we were told he has gone to the farm. We then went to the other person’s shop and we were told he is sleeping……”

And in cross examination he said:

“………I did not go to the accused house, it was the Police who went.”

And in re-examination he said:

“I did not go to the house of the accused. It was the Police that went trekking after I had parked my vehicle. At the Police Station ………”

PW1’s previous statement is inconsistent with the evidence he gave at trial.

In C. Onubogu and Anor. v. State 1974 ANLR p. 561, it was held inter alia that where a witness has made a statement before trial which is inconsistent with the evidence he gives in court and he gives no cogent reasons for the inconsistency, the court should regard his evidence as unreliable. See also;

Queen v. Joshua 1964 1 All NLR p. 1 at page 3;

R. v, Golder 1960 1 W.L.R. p. 1169

In the light of the fact that the evidence of the star witness PW1 has been held to be unreliable there is nothing on which to sustain the judgment.

ISSUE NO.3

Learned Counsel for the appellant observed that Armed Robbery is a Federal offence in view of the fact that the Robbery and Firearms (Special Provisions) Act is an Act of the National Assembly.

He further observed that by virtue of the provisions of Section 174(1)(a) of the Constitution it is only the Attorney General of the Federation who has power to prosecute for Armed Robbery.

Concluding he submitted that under Sections 8(1), (2) of the Robbery and Firearms (Special Provisions) Act offences of Armed Robbery can only be tried by a Tribunal and not a High Court. Reference was made to Queen v. Owoh & Ors. 1962 ANLR p.654, contending that the conviction and sentence of the appellant is a nullity.

In reply, learned Counsel for the respondent observed that by the combined effect of Sections 1(1),(3), 6(2),(5),{e), 272, 315(a) the Minna High Court, Niger State is the proper venue to hear cases of Armed Robbery, contending that jurisdiction is only limited by Section 251 of the Constitution.

My Lords, the Tribunals (Certain Consequential Amendments ETC) Decree No. 62 of 1999 came into force on the 28th of May, 1999 with sweeping amendments for the trial of federal offences such as:

(a) Advance Fee Fraud and other related offences;

(b) Counterfeit and Fake Drugs;

(d) Failed Banks recovery of debts etc.

Amendments were also made to Section 8 of the Robbery and Firearms (Special Provisions) Decree.

By the amendments offences under the Decree shall be triable in the High Court of the State concerned.

Decree No. 62 of 1999 is an existing law, and that explains the trial of Robbery cases in State High Courts.

Accordingly, the trial and conviction of the appellant by the Niger State High Court was not a nullity.

For the foregoing reasons, this appeal succeeds and it is accordingly allowed. The conviction of the appellant is hereby set aside. The appellant is hereby acquitted and discharged.

Other Citations: (2005)LCN/1856(CA)

Tell Communications Limited V. Colonel Mohammed Buba Marwa (2005) LLJR-CA

Tell Communications Limited V. Colonel Mohammed Buba Marwa (2005)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

This is an interlocutory appeal against the Ruling of Phillips J. delivered on the 16th July, 1999, wherein the Defendant was restrained from further writing, printing or circulating or causing to be written, printed or circulated, or otherwise publishing similar article on the Plaintiff as contained in the article in the issue of Tell Magazine No. 21 of May 24, 1999, on pages 22, 23, 24, 25, 27 and 30 thereof or any similar article, until the matter is determined. In the Writ of Summons, the Plaintiffs claim are for:

The sum of N250 Million (Two hundred and fifty Million Naira) damages for libel contained in the issue of the Tell Magazine No. 21 of May 24, 1999 on pages 22, 23, 24, 25, 27 and 30 of the said Magazine.
An injunction restraining the Defendant whether by itself or by its servants or agents from further writing, printing or circulating or causing to be written, printed or circulated or otherwise publishing of the Plaintiff the said or similar libel.

The Ruling dealt with two composite applications. The first application dated 3/6/99 was filed by the Defendant raising a preliminary objection to the competence of the suit and asking the court to strike out the writ, while the other application, dated 5/7/99 was filed by the Plaintiff seeking for an injunction to restrain the Defendant from publishing and circulating the said libel or similar libel until the trial of the action. The Preliminary Objection was dismissed while the motion for injunction succeeded and was accordingly granted. The defendant was dissatisfied with the Ruling and filed its Notice of Appeal, dated 29/7/99 containing six grounds of appeal from which the following lone issue was formulated for determination:

“Whether the learned trial Judge was right, in granting an order of Interlocutory Injunction restraining the Defendant from further writing, printing or circulating or causing to be written, printed or circulated or otherwise publishing of the plaintiff the said or any similar libel”.

The Respondent formulated the following three issues for determination which according to Mr. Sofola SAN have arisen from the Notice of Appeal namely-

(a) Having regard to the reason given by the learned trial Judge for restraining the Appellant temporarily from further writing, printing or circulating or causing to be written, printed, or circulated or otherwise publishing the article on the Respondent as contained in the issue of TELL Magazine, until the matter was determined, whether the learned trial Judge exercised her discretion judicially and judiciously.

(b) Whether the order of injunction granted by the learned trial Judge temporarily restraining the Appellant from further writing, printing or circulating or causing to be written, printed, or circulated or otherwise publishing the article on the Respondent as contained in the issue of TELL Magazine No. 21 of May 24, 1999, until the matter was determined violated the constitutional rights of the Appellant as guaranteed under section 39 of the Constitution of the Federal Republic of Nigeria, 1999 and Article 9 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria, 1990.

The appellant tried to substitute the brief dated 13th February, 2001, with an Appellant’s Amended Brief dated 5th October, 2005, but the application was refused. Learned Senior Counsel also gave Notice of Preliminary objection to issue 3 at paragraph 5.00 on page 18 of the Appellant’s brief, arguing that same is incompetent and should be discountenanced and struck out since it did not emanate from any of the grounds of appeal in the Notice of appeal. Learned Counsel for the Appellant conceded that the issue raised was not covered by grounds 5 and 6. He however, argued that the balance of convenience which was complained of in grounds 5 is well covered in the brief. It is my view that since the Amended Brief was struck out, there is nothing left to say on the Preliminary objection as it related to issue No. 2 in that brief. The lone issue in the Appellant’s brief is well covered by grounds 1-4 in the Notice of Appeal.

In arguing the appeal learned Counsel referred to the order made by the learned trial Judge and submitted that the learned trial Judge was wrong in granting an order of Interlocutory Injunction restraining the defendant from publishing an article that has not yet been pronounced to be defamatory of another. It is the contention of the learned Counsel for the Appellant that where a defendant in a libel suit swears to a counter-affidavit that he will justify the alleged libel the court will not grant an order of injunction pending the trial as doing so will imply that the defendant is lying. The following cases were cited in support:

BONNARD v. PERRYMAN (1891) 2 ch. 269 at 284; FRASER v. EVANS & ORS (1969) 1 Q.B. 349; ATTORNEY – GENERAL v. BRITISH BROADCASTING CORPORATION (1980) 3 WLR 109; KHASHOGGI v. I.P.C. MAGAZINES LTD & ANOR (1986) 1 WLR 1412 REGISTERED TRUSTEES OF AMORC V. AWONIYI (1991) 3 NWLR (PT 178) 245. Learned Counsel then submitted that it is not fair and will not be even handed if the plaintiff is not given an opportunity of proving his case before the injunction is granted. Conversely, it will be unfair if the defendants are not given an opportunity to justify what they have published and the plaintiff obtains an injunction which he will display. It was further submitted that by virtue of Section 39 of the Constitution every citizen has a right to freedom of dissemination of information and ideas and this right is for the public interest that individuals should posses and exercise without impediment, so long as no wrongful act is done and injunction should not be granted to restrain free speech.

The arguments of Mr. Sofola, learned Senior Counsel for the Respondent is in three parts, as shown in the three issues raised by him. The arguments are in respect of whether the learned trial Judge in granting the injunction exercised her discretion judicially and judiciously. Secondly, whether the injunction violated the constitutional rights of the Appellant as guaranteed under Section 39 of the Constitution of the Federal Republic of Nigeria, 1999 and Article 9 of the African charter on Human and Peoples Right (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria, 1990 and lastly whether the Appellant has been deprived of her livelihood by the granting of the injunction. Learned Senior Counsel submitted that the complaint of the Appellant is directly against the exercise of the discretion of the trial Judge in granting the interlocutory order of injunction against it. While conceding that the authorities cited by the Appellant in its brief are in support of the refusal of an interlocutory order of injunction in libel; nevertheless, they are not the yardstick for making wide blanket statement that the lower court was wrong in granting the injunction in the libel matter before her. It is the contention of learned Senior Counsel that the order of injunction being an exercise of discretion is granted on the peculiar and particular facts of the case before the court and each case must be treated on its merit. It is submitted that an interlocutory order of injunction will readily be granted if it could be shown prima facie that the matter complained of was libelous in nature and that any court (or jury) would have found that the refusal was unreasonable. The following cases were cited in support:

JARRAHDALE TIMBER CO. LTD & MILEAN BROS LIMITED V. TEMPERLY & CO. AND ELLIOT & SONS (1894) 11 T.L.R 119; LONDON & NORTHERN BANK LTD V. GEORGES NEWNES LTD (1899) 16 T.L.R. 76. Reference was made to paragraphs 13 and 14 of the statement of claim which show that the words complained of are libelous in nature and it would be unreasonable not to grant the injunction. It was contended that since the Appellant did not controvert paragraphs 7, 8, 9 and 10 of the affidavit in support, the motive for the publication was art improper one and although, the court is reluctant to grant an Interlocutory order of injunction in libel cases where the Defendant honestly raised a defence of justification or qualified privilege, in the instant case, the Appellant has not honestly raised the defence of justification as it only indicated a reliance on the defence of justification without more. The Appellant claimed justification of the libelous publication by relying on the right of the members of the public to know everything about the conduct of the Respondent while in public office even if the publication was malicious and without basis. Citing NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALIA LTD V. GTV CORPORATION PTY LTD (1989) V.R. 747; CHOPPEL V. TCN CHANNEL NINE PTY LTD (1988) 4 NWLR 153 and BRYANSTON FINANCE V. DE VRIES (1975) 2 All E.R. 609 at 621 learned Senior Counsel submitted that the issue is not whether it is fair or even handed, but whether from the materials placed before the lower court, that court was right to have granted the injunction. It was submitted further that in all cases of injunction in defamation action, what is essential is that the plaintiff must satisfy the court by affidavit evidence that the Defendant intends or threatens to continue the publication of the defamatory words or statement. On damages to be awarded for publishing untrue material, it was the contention by learned Senior Counsel that the right to reputation is intangible, unquantifiable and no amount of money can assuage a person’s reputation, if it is damaged unjustifiably and the order of injunction is not a fetter to the constitutional right to freedom of speech and dissemination of information as it is a two way affair – the Press and individuals in the society which must be weighed against each other from which the court must strike a balance.

It is necessary at this stage to reproduce the Ruling in order to see the factors which the learned trial Judge took into consideration to grant the order. This is what the learned trial Judge said at pages 34-35 of the records:

“I agree with the submission of learned Counsel for the Plaintiff that the balance of convenience lies with the Plaintiff as he has no magazine fight back with, he therefore is admittedly at a disadvantage especially as he is retired and above all does not have the machinery of the Government at his disposal anymore and even if he did win at the end of the day damages might not be adequate compensation for the damage that might have been done to his name. The depositions in the Counter-Affidavit are enough to convince me that the Defendant will continue with the said publications unless temporarily restrained by this Court”.

There is no doubting the fact that any application for injunction calls for the exercise of discretion of the Judge seized with the matter and the Judge must exercise such discretion judiciously and judicially. All judicial discretion must be exercised according to justice and common sense and upon clear proof that a tort has been committed against the plaintiff and the defendant intends to repeat such tortuous act, the plaintiff will generally be entitled both to recover damages for the injury sustained and to obtain an injunction to restrain the continuance or repetition of the injury in the future. See: BUSARI V. EDO STATE CIVIL SERVICE COMMISSION (1999) 4 NWLR (PT. 599) 365. In the determination of any interlocutory application pending the trial of the substance case care should be taken not to make any pronouncements which may prejudice the trial of the claims filed and still pending before the court. See: GLOBE FISHING INDUSTRIES LIMITED V. COKER (1990) 7 NWLR (PT 162) 265 at 277 and 288.

Learned Counsel for the Respondent has made a great concession that the cases cited by learned Counsel for the Appellant in consideration of the exercise of the discretion of the trial court are all in support of the refusal of an interlocutory order of injunction in libel cases. The rule of law established since BONNARD V PERRYMAN (1891) 2 ch. 269 is that an interlocutory injunction ought not to be granted when the Defendant swears that he will be able to justify the libel. This was explained by Denning M.R. in FRASER V. EVANS (1960) 1 Q.B. 349 at pages 360-361 thus:

“The court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest, That has been established for many years ever since BONNARD V PERRYMAN. The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a judge. But a better reason is the importance in the public interest that the truth should out (sic). As the court said in that case:

“The right of free speech is one which it is for the public interest that individuals should possess, and indeed, that they should exercise without impediment, so long as no wrongful act is done.”

There is no wrong done if it is true, or if it is fair comment on a matter of public interest. The court will not prejudice, the issue by granting an injunction in advance of publication.”

A case similar to the situation we are facing in this appeal is that of KHASHOGGI VS. I.P.C. MAGAZINES LTD & ANOR (1986) 1 WLR 1412. The facts of the case are as follows:-

The first defendants, the publishers of “Woman’s Own” magazine, published a trailer for an article, written by the second defendant, about the plaintiff. As a result the plaintiff told them that she would object to the publication of any such article, and would take steps to prevent its publication. The first defendants’ legal adviser thereupon wrote to the plaintiff saying that they will not publish anything they were not able to justify. In the following week’s issue, the defendants published an article entitled “What makes you divorce the richest man in the world,” which purported to be an account of the plaintiffs life with her husband before and after the dissolution of their marriage and contained various allegations about the plaintiff s sexual behaviour. The plaintiff objected to an allegation in that article that she had committed adultery with a friend of her husband, the president of another nation, and, since the defendants were not at that stage able to advance a plea of justification she obtained an injunction preventing further publication Three days later the defendants applied for the discharge of the injunction on the basis that they intend to justify the sting of the article as a whole, but the application was refused. On appeal by the defendants which was allowed it was held that the principle that an injunction would not be granted to restrain publication of an alleged defamatory statement where the defendant intended to advance a plea of justification extended to the situation where the defendant intended to justify the common sting of several allegations, including the allegation complained of, even though he might not be able to prove the particular facts contained in that allegation; and that, accordingly, since the defendants intended to justify what was said to be the sting of the article, namely promiscuity, the injunction should be discharged.

The decision in BONNARD VS. PERRYMAN supra was followed by this court in REGISTERED TRUSTEES OF AMORC VS. AWONIYI (1991) 3 NWLR (PT 178) 245, where the applicant in that case sought an injunction restraining any defamatory article or material concerning the applicant. Oguntade J.C.A. (as he then was) in refusing to grant the injunction stated at page 255 as follows-

“There is an even more fundamental reason why the injunction sought by the applicant cannot be granted. There is an inherent error of principle in asking the court to restrain a publisher from publishing an article that has not yet been pronounced to be defamatory of another.”

Coleridge C. J. in BONNARD VS. PERRYMAN supra warned on the need for the court to tread cautiously in the granting of interim injunctions in libel cases when he said at page 284:-

“Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. We entirely approve of and desire to adopt as our own, the language of Lord Esher M.R. in COULSON VS. COULSON 3 T.L.R. 846 –

“To justify the court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury have decided whether it was a libel or not. Therefore, the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury will say that the matter complained of was libelous, and where, if the jury did not find, the court would set aside the verdict as unreasonable.”

In the particular case before us, indeed, the libelous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable.”

The fact that the Appellant has not filed a Statement of Defence is of no consequence since in libel cases as in cases of declaration of title to land, there must be evidence in support of the claim for damages and pleadings do not constitute evidence. Where a trial Judge proceeded to enter judgment for the Appellant without any evidence from him or any other witness in support of either the pleadings or the claim for damages in the Statement of Claim that judgment must be set aside on appeal. See: IWUEKE VS. IMO BROAD CASTING CORPORATION (2005) 10 S.C.19 at 58.

I do not think it is the position of the law as canvassed in the submission of learned Senior Counsel that the Appellant needed to controvert every averment made in the affidavit in support of the motion for injunction. As no evidence has so far been taken in the case, I do not see how the trial court could decide on whether the defence of justification which the Appellant is likely to raise is honest or not. See: ODUNTAN VS. GEN OIL LTD (1995) 4 NWLR (PT 387) 1. All that is needed is for the Appellant to give notice of what its defence is likely to be in order to stave off the consideration of the interlocutory injunction and this it effectively did when Abdulfattah Muhammadu Lawal deposed to the following facts in paragraphs 5, 6 and 8 of the Counter-Affidavit:

“5. That Nosa Igiebor, Editor-in-Chief of Tell Magazine informed me and I verily believe him as follows:

(a) that the plaintiff was the immediate past military administrator of Lagos State.

(b) that the policies formulated and implemented by the said plaintiff while in office, his actions and conducts particularly, in matters relating to the office of the plaintiff are issues of public importance which affects the lives of the defendant’s officers and every citizen and residents of Lagos State and as such is open to public discussion, criticism and debate. The defendant is enjoined by the Constitution to publish such issues;

(c) that the defendant is a company that operates a medium, I known as TELL Magazine for the dissemination of information, ideas and opinions.

(d) that the defendant has as its employees, over 300 journalists and pressmen who earn their livelihood by continuously publishing: facts, opinions, ideas information, etc on any matter of public interest or any issue at all receiving and imparting ideas and information to the general public as guaranteed by the Constitutions of the Federal Republic of Nigeria, 1979 and 1999 respectively.

(e) that the words complained of published about the plaintiff/applicant is true in fact and in substance.

(f) that the words complained of relate to matters of fundamental and public importance and interest not only to the defendant/respondent, but also all Nigerians and persons resident in Lagos and the whole humanity at large.

That the defendant will rely on the defence of JUSTIFICATION and will justify every assertion contained in the words complained of by the plaintiff/applicant.
That the public reserves the right to know everything about the conduct of the plaintiff while in public office and such things are not at all private to him”.

Considering the reasons which the learned trial Judge gave for granting the injunction, it seems to me that extraneous considerations weighed heavily on the mind of the learned trial Judge. The fact that the Respondent is not in a position to fight back the alleged defamatory publication cannot be one of the factors to be considered in the granting of an interlocutory injunction. The recourse to self help measures by a party before seeking the assistance of the court is antithetical to the equitable relief of injunction. The law does not admit of self help in mitigation of damage to reputation. See: GOVERNOR OF LAGOS STATE VS. OJUKWU (1986) 1 NWLR (PT 18) 621.

In an appeal against the exercise of a discretion by a lower court, an appellate court cannot substitute its own discretion for that of the lower court. The Appellate court must be satisfied that the discretion was exercised upon wrong principle or that it based its discretion on matters extraneous to the issues before it or where it has omitted to take relevant facts into consideration, under such circumstances the Appellate court will be justified to interfere with the exercise of the lower court’s discretion.

See: OKERE VS NLEM (1992) 4 NWLR (PT 234) 123; OKAFOR VS BENDEL NEWSPAPER CORPORATION (1991) 7 NWLR (PT 206) 651; JOSIAH CORNELIUS LTD VS EZENWA (2002) 16 NWLR (PT 793) 298.

Considering the reasons advanced be the learned trial Judge for granting the injunction which found to be extraneous this court will interfere to set aside the injunction. As one of the reliefs in the substantive claim was for injunction, which could make the Appellant think the learned trial Judge had made up her mind on the plea of justification which the Appellant intended to raise as a defence in the trial, the matter will have to be re-assigned to another Judge for hearing.

The appeal has merit and it is hereby allowed. The interlocutory order of injunction granted by the learned trial Judge is hereby, set aside Instead an order of accelerated hearing of the substantive suit before another Judge of the Lagos High Court is hereby ordered with N5,000.00 costs in favour of the Appellant.

Other Citations: (2005)LCN/1855(CA)

Esther Mueller V. Werner Mueller (2005) LLJR-CA

Esther Mueller V. Werner Mueller (2005)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

s extant in Exhibit A, certificate of marriage, the parties herein got married at the Port Harcourt City Council, on 6th June, 1989. When the marriage headed for the rock, the Respondent petitioned and prayed, inter alia for the dissolution of the marriage and equitable partition of properties jointly owned. The Appellant reacted and prayed for dismissal of the petition. She also cross-petitioned for a dissolution of the marriage. Both petitions were heard at the High Court of Justice, Port Harcourt, Rivers State of Nigeria.

On 20/12/99, the learned trial Judge made an order of decree nisi dissolving the marriage. This was followed with an order partitioning the matrimonial property. The Appellant was ordered to return two generators to the Respondent, though the Respondent admitted that the generators had been returned. As manifest on Page 140 of the record of appeal, the drawn up order in respect of the judgment was signed by the learned trial Judge on the same 20/12/99.

As can be seen at pages 157-158 of the record of appeal, the learned trial Judge, on 15th February, 2000, further granted the undeveloped part of the premises in dispute to the Respondent. Such was geared at correcting an omission in the judgment entered on 20/12/99.

The Appellant felt unhappy with the two decisions of the lower Court. Two Notices of Appeal were filed on her behalf. The Notice of Appeal in respect of the judgment entered on 20/12/99 was accompanied by seven (7) grounds of appeal. One additional ground of appeal was, with the leave of this court, filed on 29/1/01. As against the ruling of 15/2/2000, amending the judgment delivered on 20/12/99, the Appellant also filed a Notice of Appeal accompanied by a ground of appeal.

In respect of the appeal filed against the judgment of 20/12/99, the three issues couched for it’s determination read as follows:

“(i) Whether the learned trial Judge was justified in law, in arriving at the findings of facts/conclusions she made in favour of the respondent, without first appraising or evaluating the evidence led before her.
(ii) Whether the learned trial Judge was justified in law, in ordering the Appellant to return the two generators to the Respondent, whereas the respondent had admitted the return of the said generators.
(iii) Whether the learned trial Judge was justified in law, when she failed to consider the Appellant’s cross-petition.”

In respect of the appeal against the ruling handed out on 15-2-2000, the issue for determination, as distilled, reads as follows;-

“Whether the learned trial Judge had jurisdiction to amend the earlier judgment, delivered on 20/12/99, and to have entered a second judgment on 15/2/2000 awarding additional but unclaimed relief to the Respondent.”

On behalf of the Respondent, the two issues formulated for a due determination of the appeals read as follows:-

“1. Was the trial Judge right in the orders made on 20/12/99, including the order dissolving the marriage having regard to all the evidence before the honourable court?
2. The subsequent order made on 15-02-2000 to correct an omission in the judgment – was it proper and based on available evidence? If not, what is the Proper order in the circumstances?”

Let me say it without any equivocation that it is clear beyond peradventure that the marriage, which had the semblance of a farce, had broken down irretrievably to the knowledge of both parties. No collusion in filing the petition and cross petition was pinpointed by the learned trial Judge. I cannot also pinpoint any collusion to put the marriage at an end by the parties who appeared to be incompatible.
The Appellant was a cleaner with the hotel where the Respondent, a rig operator and a German citizen, lodged when they met. This was before the marriage which later became ill-tuned and clearly incongruous. The marriage was put to an end via an order of decree nisi by the learned trial Judge. It was a real good riddance and none of the parties raised any finger of protest in this respect. The ferocious complaint relates to the partition of matrimonial property, as ordered by the learned trial Judge. This shall be dealt with anon.

Before then, let me treat issue No. 2 formulated on behalf of the Appellant. It is whether the learned trial Judge was justified in ordering the Appellant to return two generators to the Respondent who had admitted the return of the two generators by the Appellant.

The Respondent, under cross-examination at page 71 lines 21-24 of the transcript record of appeal, admitted that the Appellant had released the two generators to the Respondent’s former company as they belong to the company.

The Respondent’s Counsel, rightly in my considered view, conceded the point. He asserted with force that ‘right away, speaking truthfully the Appellant had since returned the two generators to the respondent’s former company which claimed it during the pendency of the action.’
He then urged that the order relating to the return of the two generators by the Appellant to the Respondent be set aside.

The stance of the learned Counsel for the Respondent in this respect is commendable. It is prudent to concede a point which is not a moot one. That is how to assess a counsel who knows his onions very well. The order for the return of two generators by the Appellant to the Respondent has no base to stand. Since, the two generators had been returned by the Appellant to Respondent’s company, the order should not have been made in the first instance. Without much ado, that order is set aside as issue No. 2 is resolved in favour of the Appellant.

It is now time to treat the contentious issue relating to partition of ‘matrimonial property.’ Whereas, the Appellant maintained that No. 16 Rumuibekwe Lane, with structure thereon, belongs to her solely as she acquired it through her sweat during the subsistence of their marriage, the Respondent on his own part, maintained that it is a joint family property for which he provided most of the finance, while the Appellant supervised the construction jobs. He maintained that the property should be equitably partitioned equally for the parties.

On behalf of the Appellant, it was contended that the real judgment is terse and that there was no evaluation of the evidence adduced by the parties before the learned trial Judge made findings and conclusions.
Learned Counsel submitted that in a civil case where the parties have adduced evidence before a trial Court, that court is bound to evaluate such evidence before arriving at any finding of fact. He referred to the case of MOGAJI v. ODOFIN & ORS (1978) 4 S.C. 91 at p. 94.
Learned Counsel felt that findings of fact and conclusions made without evaluation of evidence were perverse. He cited the case of AKINTOLA v BALOGUN (2000) 1 NWLR (Pt. 642) 532 at p. 549.
Learned Counsel strenuously contended that the finding of fact made by the trial court that Appellant was a woman of straw who could not have acquired the property on her own was not based on the case of the parties. He felt that the stated finding of fact was speculative and perverse. He cited the case of OVERSEAS CONSTRUCTION LTD v CREEK ENTERPRISES LTD & ANOR. (1985) 3 NWLR (Pt. 13) 407 at p. 414.

Learned Counsel further submitted that since the learned trial Judge failed to carry out proper evaluation of evidence in respect of the property in dispute before arriving at conclusions made, this court has the power to evaluate the evidence and come to a just decision. He referred to ONWUCHURUBA v ONWUCHURUBA (1993) 5 NWLR (Pt. 292) 185 at pp. 199-200.

Learned Counsel for the Respondent submitted that in accordance with the tradition of the Bar and especially as a minister in the temple of justice, it is clear that though the learned trial Judge fully set out and considered the whole evidence of the Parties and their witnesses, no evaluation of the evidence adduced one for one was done by the trial court; that is speaking truthfully. He felt that the only evaluation done at the end by the learned trial Judge was plausible as conclusions and orders were based on the evidence before the trial court. He felt that a good judgment need not be verbose.

Learned Counsel submitted that in appraising evidence adduced by a trial court, it is not necessary to write it in the judgment that evidence has been put on an imaginary state. He cited the case of INCAR LTD & ANOR. v. ADEGBOYE (1985) 2 NWLR (pt.8) 453.

Learned Counsel submitted that despite the non-evaluation in detail, the trial court duly considered the whole evidence and arrived at acceptable findings of fact and conclusions. He felt that the orders made were valid and proper and that there was no miscarriage of justice whatsoever. He craved that this court should re-evaluate and make correct findings. He cited the cases of OLUBODE v. SALAMI (1985) 2 NWLR (Pt.7) 282 at p.298); EBBA v. OGODO (1984) 4 S.C. 84 at p. 98, (1984) 1 SCNLR 372.

The point must be made that, it is the primary duty of a trial Court to make findings of fact on evidence adduced before it and ascribe due probative value to same. It is only when the trial court abdicates its duty or fails to perform it properly that an appellate court can step in to perform such a function. Even then, an appellate court can only do so, if the demeanour of witnesses is not in point. See ATOLAGBE V. SHORUN (1985) 1 NWLR (PT.2) 360; NARUMAL & SONS LTD V. N.B.T.C. LTD (1989) 2 NWLR (PT.106) 730; AKINLOYE V. EYIYOLA & ANR (1968) NMLR 92; OKAFOR V. EZE IDIGO (1984) 1 SCNLR 481.
Appellate Court will only interfere with findings of fact of a trial Court, if it is shown that the conclusion reached is not in tune with the flow of evidence, or that the decision was wrong or perverse. See NWOSU V. BOARD OF CUSTOMS & EXCISE (1988) 5 NWLR (PT.93) 225.

I put the guidelines in mind and note that the evidence adduced in respect of partition of ‘matrimonial property’ is basically documentary and where oral evidence is called into action, such has nothing to do with demeanour of any witness.

The Respondent strongly maintained that the property in dispute is matrimonial property both in his petition and evidence viva voce. It was the Respondent who tendered Exhibits F-F1; receipts of purchase of the property issued by D.W.1 who agreed that at the time of the transaction, he was satisfied that the Appellant who paid him was married and came to him as Mrs. Esther Mueller. Also, D.W.2 confirmed that he dealt with the Appellant as a married woman.

It is noteworthy to mention it that the appellant, in some letters written by her, acknowledged contributions made by the Respondent. In Exhibit D14, it is manifest therein that the Appellant received from the Respondent, the sum of N100,000 which she used to buy blocks and bags of cement and for redesigning the building plan. Exhibit D15 talked about building the remaining part of the land. The appellant tried to deny the letters, contents of which are relevant, but such denial did not catch my fancy. The handwritings are the same in all the letter and many of them were written on letter headed papers of a company Finest Group Ltd owned by the Appellant, who at every turn of events tried to milk the Respondent dry.

The Respondent said he took loan to develop the land. He tendered Exhibits H and J to support same. A company loan obtained by the Respondent for new residential accommodation in the sum of N320,000 was converted by the Appellant. This loan to the respondent was confirmed by P.W.2. The Respondent admitted that the property was purchased in the Appellant’s name and that she supervised construction works thereon. It must be noted that the properties were acquired in Appellant’s marriage name. Such was not out of ordinary, as earlier on, the rented apartment of the couple was also in the name of the Appellant as extant in Exhibit E. As huband and wife, there is nothing wrong in buying property in the name of one of the parties. Such still remains matrimonial property which belongs to the parties jointly. Refer to RIMMER v. RIMMER (1952) 2 All E.R. 863 at 869; Halsbury’s Law of England 4th Edition Art 1065 at p. 491; COKER v. COKER (1964) L.L.R. 188 and EGUNJOBI v. EGUNJOBI (1974) 4 ECSLR 552 at 561 all cited and/or referred to by learned Counsel for the Respondent.

With the above firm evidence, the onus shifted to the Appellant, who claimed exclusive possession and/or ownership of the property to prove it. She tendered Exhibit O which is the same as Exhibit F1 confirmed by the vendor DW1. She also tendered Exhibit P building plan made by D.W.2 . Both said that they understood that the appellant was married at the material time. She pleaded deed of conveyance for the transaction which was never tendered. She claimed to have purchased the property with profits from her supply business with big companies. She said she would rely on documents to prove same. Not a single document was tendered in this direction. It may be safely presumed that no such documents exist. See Section 149 (d) of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. The Appellant failed to prove her assertion that she bought the property through her sweat.

Each of the parties was a petitioner in his or her own right. Each of them has the onus to prove his or her assertion. This is the tenor of the provision of Section 135 of the Evidence Act. It is clear that when the evidence of the parties is put on an imaginary scale, that of the Respondent must have an upper hand. Refer to MOGAJI v. ODOFIN (1978) 3 SC 91 at pp. 93-94; AROMIRE v. AWOYEMI (1972) 1 ALL NLR (Pt.1) 101; BELLO v. EWEKA (1981) 1 S.C. 101.

Appellant complained that she was referred to as a woman of straw before the marriage and thereafter. There is no cause for complaint as same is borne out in the pleadings and evidence of the Respondent, who said he met the Appellant at Oyigbo Express Guest House, where she was working as a room cleaner. Same was confirmed by the Appellant herself in her evidence. In any event, I do not refer to the appellant as a woman of straw, but one thing is certain. She failed to show how she gathererd money on her own to acquire the property in dispute at the ‘choice’ location of the city of Port Harcourt. In my view, however, the finding of the trial Court was not based on speculation, but rather on pleadings and evidence.

I strongly feel that the learned trial Judge had all the above in her mind, when she concluded at page 138 of the record that –
“The finance for the land and construction definitely came from the petitioner and since they were married, it is only fair that the entire property be partitioned… In truth, the version proffered by the petitioner as to how the properties were acquired and for what purpose are more probable than that of an unreliable person like the 1st Respondent.”

I am of the strong view that the conclusion reached is plausible. The Appellant should be told to go and tell her story to the Marines.

As well, learned Counsel for the Appellant must now realize that brevity is an art. Only the ingenious can comprehend it with adequate precision. A judgment should be assessed by its quality and not by its length. Let me also say it that adequate findings of fact should be made to lead at balanced conclusions.

I need to say it that, it is not correct that the Appellant’s cross petition was not considered. Indeed, she prayed for dissolution of the marriage. And same was granted via an order of decree nisi. She claimed N500,000 for maintenance but failed to lead any iota of evidence on same. The learned trial Judge discountenanced same. I do not see how the Appellant can be granted any award for her maintenance. After all, she maintained that she makes up to N20,000 a day from their ‘mutual’ business.

In short, issues 1 and 3 postulated on behalf of the Appellant are resolved against her and in favour of the Respondent.

I now move to the second appeal in respect of the ruling handed out by the learned trial Judge on 15-2-2000. In that ruling, the judgment entered on 20-12-99 was amended in favour of the Respondent. The issue formulated in this respect, based on the lone ground of appeal, reads as follows:
“Whether the learned trial Judge had jurisdiction to amend the earlier judgment delivered on 20-12-99 and to have entered a second judgment on 15/2/2000 awarding additional, but unclaimed relief to the Respondent.”

On behalf of the Respondent the issue formulated is reproduced again as follows:
“The subsequent order made on 15-02-2000 to correct an omission in the judgment was it proper and based on available evidence? If not, what is the proper order in the circumstance?”

It is common ground that a final judgment was entered on 20-12-99. An order embodying the judgment was drawn up and signed by the learned trial Judge on the same date. Except to correct clerical errors and mistakes, which is often referred to as the ‘Slip Rule’, the learned trial Judge became functus officio as she had discharged her function and performed the imbued assignment.
The learned trial Judge further decreed ‘that undeveloped portion of the disputed land is hereby ordered and granted to the petitioner.’ The Respondent who sought to alter the judgment should in the circumstance invoke such appellate jurisdiction as may apply. Refer to MINISTRY OF LAGOS AFFIARS MINES & POWER & ANOR v. CHIEF AKIN-OLUGBADE & ORS (1974) 1 All NLR (PT. 2) 226 at 755. To my mind, the error discovered was not such that could be corrected via the slip rule. See J.C. LTD v. EZENWA (1996) 4 NWLR (Pt.443) 391 at p.411.

I strongly feel that the appeal in this respect is meritorious and should be allowed as the lone issue is resolved in favour of the appellant. The ruling delivered on 20-2-2000 is hereby set aside.

What then is the proper order in respect of the undeveloped vacant portion of the property in contention? The answer is not far-fetched. The Respondent herein, as petitioner at the lower court, prayed for equitable equal partition of the property between the parties. At page 108 of the record of appeal, his counsel talked of ‘equitable equal partition’ of the property between the parties. It is often said that ‘equity is equality.’ Since that is so, the Respondent who was awarded two of the three houses on the land should not have been further awarded the undeveloped portion of the land. The undeveloped portion of the land should, in the principle of equity, go to the Appellant. That is the proper order in the prevailing circumstance. And the same is ordered accordingly.

In sum, two of the three houses on the land as ordered by the learned trial Judge should go to the Respondent. The Appellant should have the building with business centre and salon as well as the undeveloped portion of the land. Order in respect of return of two generators by the Appellant to the Respondent is set aside. Order in respect of decree nisi which dissolved the marriage remains inviolate.

In effect, the appeals, succeed in part. In the prevailing circumstance of the appeals, each party should bear his or her own costs. I order accordingly.

Other Citations: (2005)LCN/1854(CA)

Edicomsa International Inc. And Associates V. Citec International Estates Ltd. (2005) LLJR-CA

Edicomsa International Inc. And Associates V. Citec International Estates Ltd. (2005)

LawGlobal-Hub Lead Judgment Report

RHODES-VIVOUR, J.C.A.

This is an appeal by the plaintiff/appellant against the ruling of the Hon. Justice Hussein Muktar of the Abuja High Court, delivered on the 23rd day of July, 2003.

The plaintiff/appellant sued the defendant/respondent on a writ of summons issued out of the Abuja High Court on 31/3/03. The plaintiff’s claim was for breach of contract, orders of injunction and an account.

Upon being served the writ of summons and statement of claim, the defendant filed its statement of defence on 16/5/03. Learned Counsel for the defendant/respondent filed a notice of preliminary objection on ten grounds contending in the main that the court lacks jurisdiction to entertain the suit. The objection was subsequently argued on three grounds to wit:

“1. The plaintiff is not a juristic person.

The plaintiff’s case as disclosed in the statement of claim is not one that can be entertained by this court, and
The cause of action is premised on an illegal contract.”

The learned trial Judge heard counsel and in a considered ruling delivered on 23/7/2003, the plaintiff’s/appellant’s action was struck out on the grounds of incompetence. This is what the learned trial Judge said:

“By section 54(2) of the Companies and Allied Matters Act any act of the plaintiff in defiance of the provision of subsection (1) therefore shall be void. The alleged contract or project upon which this suit is brought having been entered into and being executed in Nigeria without the plaintiff having been incorporated or registered in Nigeria as a corporate entity is illegal, null and void by the combined effect of sections 54(1) and (2) and 55 of the Companies and Allied Matters Act, 1990. The plaintiff’s action in this suit is therefore a non-starter being void ab initio. The objection succeeds on this ground. It follows that the plaintiff’s void action must be and is hereby struck out.”

As the plaintiff was dissatisfied with the ruling of the learned trial Judge, it appealed to this court. Briefs were duly filed and exchanged in accordance with the rules of this court. For the appellant, its counsel, P.R. Onoja, Esq. identified a sole issue for determination of the appeal. It reads:

“Whether the learned trial Judge was not in error when he held at a preliminary stage of the trial that the alleged contract, subject matter of the suit having been entered into or being executed in Nigeria without the plaintiff having been incorporated in Nigeria as a legal entity is illegal, null and void”.

On the other side of the fence, the respondent’s learned counsel, Mrs. J.O. Adesina also had a sole issue for determination. It reads thus:

“Does the appellant have any legal capacity to carry on the business in Nigeria and consequently to maintain this action.”

The respondent also filed a respondent’s notice which was deemed duly filed on 22/3/05. It was incorporated in the respondent’s brief of argument. In response, the appellant filed an appellant’s reply brief of argument on 4/4/05.

At the hearing of the appeal on 26/10/05 the appellant was unrepresented.

Learned Counsel for the respondent adopted his brief and proffered oral submissions in support of the argument in his brief. In support of the respondent’s notice, he relied on Bob Manuel v. Briggs (2003) 5 NWLR (Pt. 813) p. 323.

I shall comment on the respondent’s notice and the appellant’s reply brief later on in this ruling.

Before I proceed to consider arguments canvassed by both sides, a brief summary of the facts would be apposite at this stage for better understanding of the issues raised in the appeal.

The appellant claims to be a foreign company incorporated in the United States of America. It never claimed to be registered in Nigeria. The appellant and the respondent executed a series of agreements wherein the former was employed by the latter to provide architectural designs, drawings, civil infrastructural and construction of 5,000 housing units for the defendant and the Federal Government in Nbora district, Abuja.

After the commencement of work, there was serious disagreement between the parties on payments due to the appellant, and so the appellant sued for breach of contract, injunctions, etc.

The defendant filed a defence and a notice of preliminary objection challenging the competence of the suit on the following grounds:

(a) the plaintiff is not a juristic person;

(b) the case as disclosed in the statement of claim is not one that can be entertained by this court; and

(c) that the foundation or cause of action is the alleged contract is illegal and void by force of law. The preliminary objection was sustained, and the suit struck out.

I now turn to the arguments canvassed by both sides in their respective briefs.

Learned Counsel for the appellant argued that the trial Judge was in error to strike out the suit at a preliminary stage on the ground that the appellant had no capacity to enter into the alleged contract having not been incorporated or registered in Nigeria. Reliance was placed on:

Ritz & Co. KG v. Techno Ltd. (1999) 4 NWLR (Pt.598) p.298; Nigeria Bank for Commerce & Industry Ltd. v. Europa Traders (UK.) Ltd. (1990) 6 NWLR (Pt.154) p. 36.

He urged this Court to allow the appeal.

The learned Counsel for the respondent anchored his submissions on two points.

(a) that the appellant is not a registered company in Nigeria or elsewhere and therefore has no legal capacity to sue.

Reliance was placed on: Bank of Baroda v. Iyalabani Co. Ltd. (2002) 13 NWLR (Pt. 785) p. 551; Iyke Medical Mechandise v. Pfizer Inc. (2001) 10 NWLR (Pt. 722) p.540.

(b) that any contract entered into by a company not registered in Nigeria with the intention of carrying on business in Nigeria (like the appellant who was engaged in construction works) is illegal, null and void.

Reference was made to section 54(1) and (2) of the Companies and Allied Matters Act, Cap. 59 Laws of the Federation of Nigeria 1990.

He urged this court to dismiss the appeal.

My Lords, this appeal brings into focus a very important but often misunderstood contractual and commercial issue and it is:

“Whether a foreign company that fails to comply with the provisions of section 54 of CAMA and proceeds to carry on business in Nigeria can sue and be sued.”

Under Common Law and for centuries now, a company properly registered in a foreign country has been recognized as a company. It can sue and be sued in its corporate name. See Dicey, Conflict of Laws 12th Edition Vol. 2 at page 1107;

Halsbury’s Laws of England Vol. 8 para 703; Lazard Brothers & Co. v. Midland Bank (1933) AC p. 289.

This is so because there is basis for reciprocity in international relations as no one jurisdiction is superior to the other.

By virtue of section 60(b) of the Companies and Allied Matters Act, a foreign company can sue and be sued in Nigerian courts. See:

Nigerian Bank of Commerce and Industry Ltd. v. Europa Traders (U.K.) Ltd. (1990) 6 NWLR (Pt.154) p. 36. Olaogun Ent. Ltd. v. S.J. & M (1992) 4 NWLR (Pt. 235) p. 361.

The law is very well settled that just as a Nigerian who attends the University of London and eventually graduates but fails to pay his fees can be sued by the University of London for the outstanding fees in a Nigerian court, so also can a Nigerian company from whom a British company has bought goods and has not paid be sued in a British court. This as I alluded to earlier is reciprocity in international relations.

A foreign company not registered in Nigeria can sue in its name.

There is no need for such a company to sue in the name of its agent in Nigeria.

My Lords, by virtue of the provisions of section 54(1) of the Companies and Allied Matters Act, any foreign company seeking to carry on business in Nigeria shall take steps to obtain incorporation for that purpose, but until so incorporated the foreign company shall not carry on business in Nigeria or exercise any of the powers of a registered company.

If a foreign company fails to comply with the above stated provisions, all its acts shall be void. That is to say a foreign company cannot carry on business in Nigeria unless it is incorporated in Nigeria. To carry on business means to conduct, prosecute or continue a particular vocation or business as a continuous operation or permanent occupation. The repetition of acts may be sufficient. It also means to hold oneself out to others as engaged in the selling of goods or services. See Blacks Law Dictionary 5th Edition p. 194.

In the instant case, the appellant admits in its pleadings that it is a foreign company registered in the United States of America. It did not comply with the provisions of Section 54(1) of CAMA since it is not incorporated in Nigeria.

The appellant executed contract with the respondent wherein it was to build housing units and similar work for the defendant. This falls within the warm embrace of “to carry Oil business in Nigeria.”

My Lords, the learned trial Judge relied heavily on the provisions of section 54(1) and (2) of CAMA to strike out the plaintiff/appellant’s case. Had the learned trial Judge averted his mind to the provisions of section 60 of CAMA, his Lordship would not have sustained the preliminary objection.

Section 60(b) of CAMA reads as follows:

“nothing in this chapter shall be construed as affecting the rights or liability of a foreign company to sue or be sued in its name or in the name of its agent.”

Indeed, the plaintiff/appellant was clearly wrong to Carry on business in Nigeria without complying with the provisions of section 54(1) of CAMA. Failure to comply with the provisions of section 54(1) of CAMA attracts a very inconsequential penalty. See section 55 of CAMA, it reads in part:

“If any foreign company fails to comply with the requirements of section 54 of this Act… the company shall be guilty of an offence and liable on conviction to a fine of not less than N2,500 and every officer or agent of the company who knowingly … permits the default … shall whether or not the company is also convicted of any offence, be liable on conviction to a fine of not less than N250 and where the offence is a continuing one to a further fine of N25 for every day during which the default continues.”

The very low fines for such a grave offence as the non registration of a business enterprise seems to suggest one of the ways the Government has chosen to attract foreign investment and businesses in Nigeria thereby creating an enabling environment that would be favorable to foreigners.

The learned trial Judge was in grave error to hold that since the plaintiff/appellant failed to comply with the provisions of section 54(1) of CAMA, it cannot sue.

The correct position of the law is that a foreign company having the intention of doing business in Nigeria must take necessary steps to obtain incorporation in Nigeria. That is to say it must comply with the provisions of section 54(1) of CAMA before it commences business. If the foreign company carries on business without being incorporated in Nigeria, all its acts are void and it shall be liable to pay fines as provided by section 55 of CAMA.

A foreign company that fails to comply with the provisions of section 54(1) of CAMA and proceeds to Carry on business in Nigeria can sue to protect its rights and be sued where liable. Non compliance with Section 54(1) is not a bar to suits by a foreign company or against it. See-

Ritz & Co. KG v. Techno Ltd. (1999) 4 NWLR (Pt.598) p.298;

Kitchen Equip (WA) Ltd. v. Stamins Cathering Equip. Int. Ltd. Suit No. FAC/L/17/182 delivered on 28/2/83.

All I have been saying is to the effect that a foreign company not registered in Nigeria and carrying on business here can sue and be sued in Nigerian courts.

The Respondent’s Notice

Order 3 rule 14 of the Court of Appeal Rules provides for respondent’s notice.

A respondent’s notice is a process filed by a respondent who agrees with the judgment but wants the judgment varied or affirmed on other grounds. The respondent is not allowed to introduce a fresh case or re-argue his case in a respondent’s notice. See Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt.271) p. 517; Ibe v. Onuorah (1999) 14 NWLR (Pt.638) p. 340.

The thrust of the respondent’s notice is that the respondent challenged the legal capacity of the appellant before the trial court and full arguments were presented on both sides, but the learned trial Judge failed to avert his mind to the issue and did not come to any decision on the point. It is the contention of learned counsel for the respondent that the appellant never proved the fact of its incorporation in Nigeria or its legal capacity. Relying on Bank of Baroda v. Iyalabami Co. Ltd. (2002) 13 NWLR (Pt.785) p. 551, he urged this court to dismiss the appeal because the appellant on record is not known to law.

The appellant filed a reply brief.

By virtue of the provisions of order 6 rule 5 of the Court of Appeal Rules, a reply brief would be filed only when an issue of law or an argument raised in the respondent’s brief calls for a reply.

A reply brief should be limited to answering new points arising from the respondent’s brief, and so when the respondent’s brief does not contain new or fresh points, a reply brief would be unnecessary.

See: ACB Ltd. v. Apugo (1995) 6 NWLR (Pt.399) p. 65; Ijade v. Ogunyemi (1996) 9 NWLR (Pt. 470) p. 17; Umeji v. A.-G., Imo State (1995) 4 NWLR (Pt. 391) p.552.

Learned Counsel for the respondent observed that the issue of the juristic personality of the appellant cannot be raised by respondent’s notice but by cross appeal. He further observed that the trial Judge found that the appellant is a foreign company, contending that the decision can only be challenged on appeal.

A plaintiff and indeed parties in a suit must be proper persons either natural or legal.

A non existent or dead person cannot sue.

See Anyebe v. The State (1986) 1 SC p. 87; (1986) 1 NWLR (Pt. 14) 39.

Nigerian Nurses Association v. Attorney General of the Federation (1981) 11-12 SC. p. 1.

Where the legal capacity of the plaintiff is challenged by the defendant, the onus is on the former to prove his legal capacity and this is done by leading evidence, oral or documentary in proof of same. There is nothing on the record to show that the plaintiff/appellant was given the opportunity to do so.The trial Judge failed to recognize that on the state of the pleadings, the issue of the plaintiff’s legal capacity was in dispute. Surely, the parties should have been allowed to call evidence to determine the issue of the plaintiff’s legal capacity.

The respondent’s notice fails and it is hereby dismissed.

This appeal has merit. It is accordingly allowed.

Trial shall commence with dispatch before another Judge of the Abuja High Court, Federal Capital Territory.

There shall be no order as to costs.

Other Citations: (2005)LCN/1853(CA)

Chuba Chukwuogor & Ors V. Chukwuma Chukwuogor & Anor (2005) LLJR-CA

Chuba Chukwuogor & Ors V. Chukwuma Chukwuogor & Anor (2005)

LawGlobal-Hub Lead Judgment Report

OMOKRI, J.C.A.

This is an appeal against the ruling of Justice M.O. Eneji of the High Court of Cross River State, Ikom Judicial Division, delivered on 13/8/2003 striking out the application of the appellants to enforce their fundamental rights.

The facts, which led to this case on appeal, were that on or about the 27/3/01, the appellants, as applicants, filed an application ex parte for leave to enforce their fundamental rights. Leave was accordingly granted by Obasse J. on 28/3/01 and adjourned the matter to the 10/4/01 for the hearing of the motion on notice. The appellants filed the motion on notice with the accompanying statement and verifying affidavit on 3/4/01. Upon being served with the motion on notice, the 1st respondent filed a notice of preliminary objection dated 28/5/01 challenging the bearing of the appellants’ application for the enforcement of their fundamental rights. For reasons which are not germane or relevant to this appeal. the arguments on the objection were not heard until the 26/3/03 and concluded on 8/5/03 by Hon. justice M. O. Eneji who took over from Justice J. U. Obasse.

At the conclusion of arguments on the preliminary objection, the matter was adjourned for ruling to the 24/6/03. The ruling was not ready on 24/6/03 and it was further adjourned to 13/8/03. On 13/8/03, the learned trial Judge delivered the ruling in which he upheld the objection of the 1st respondent and struck out the appellants’ motion for the enforcement of their fundamental rights on the ground that they did not personally file affidavit of service.

Aggrieved by the ruling of the trial court striking out their motion prematurely, the appellants appealed to this court on 22/8/03 on three grounds. The appellants in their brief dated 11/11/04 and filed on 26/11/04, distilled 2 issues for determination from the 3 grounds of appeal namely:

Whether the learned trial Judge was right in his interpretation and application of the provisions of Order 2 rules (3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules in striking out the appellants’ application for the enforcement of their fundamental rights because they did not personally file affidavit of service?
Whether the learned trial Judge’s refusal to act on the proof of service in his file by both the bailiff of the High Court and counsel to the appellants, which service was not disputed by the respondents, is proper in law.?”

The 1st respondent formulated a single issue for determination in his brief of argument dated 3/2/05 and filed 28/2/05 with leave of the court granted on 3/5/05 and are deemed properly filed. The issue for determination is as follows:

“‘Whether the learned trial Judge was right in striking out the appellants’ application for failure to comply with express and mandatory rules regulating the enforcement of fundamental rights?”

The 2nd respondent in his brief filed on 17/8/05 with leave of this court and deemed properly filed by this court on 13/9/05. The 2nd respondent adopted the two issues for determination formulated by the appellants.

Counsel for the parties all adopted and relied on their respective briefs at the hearing of the appeal before this court. I have carefully considered the issues for determination formulated by the parties in this appeal and in my opinion the two issues formulated by the appellants and adopted by the 2nd respondent over-lap and they ought to be taken together. Indeed, the appellants and the 2nd respondent actually argued the two issues together in their respective briefs. In my view, the lone issue for determination formulated by the 1st respondent in his brief is more concise and comprehensive. I shall therefore adopt the lone issue raised in the 1st respondent’s brief for the purpose of determining this appeal.

In arguing the 2 issues formulated by the appellants together, Mr. Ukweni submitted that the court below was wrong when it held that it is mandatory for the applicant for the enforcement of fundamental rights to personally serve the motion or summons and to personally file affidavit of service under the provisions of Order 2 rule 1 (3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules. It was submitted that nowhere is it provided in the said rules that the applicant must personally serve the motion or summons on all the respondents or persons listed in the motion and that the applicant must personally file an affidavit of service. It is therefore wrong to read or to import into a statute what is not there as that will do violence to the plain meaning of the statute. He referred to U.I.T.H. v. Akilo (2000) FWLR (Pt. 28) 2286 at 2294 – 2295, (2001) 4 NWLR (Pt. 703) 246 and Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1.

Counsel submitted that the interpretation given by the learned trial court is narrow and technical and this approach to interpretation of statutes is what the Supreme Court and this court have variously condemned.

He also submitted that the Fundamental Rights (Enforcement Procedure) Rules made no provision on the mode of service of processes but the practice of our courts, which is known and applied on daily basis is that service of court processes, particularly originating processes, is the responsibility of the sheriff, deputy sheriff, bailiff, officer of the court or any other person appointed by the court or Judge in chambers to do so. See Order 12 of the High Court of Cross River State (Civil Procedure) Rules 1987 and Pavex Co. (Nig.) Ltd. v. I.B.W.A. Ltd. (2000) FWLR (Pt. 26) 1891, (2000) 7 NWLR (Pt.663) 105; Rector, Kana State Polytechnic v. Dan’agundi (2002) FWLR (Pt. 127) 1058 at 1067. Mr. Ukweni pointed out that there were the affidavits of service filed by the bailiff of the trial court on 26/6/02 and that filed by Bassey Okim on 9/11/01.

Counsel concluded that it was wrong for the court below to strike out the appellants’ application because they did not file the affidavit of service. He was of the view that the court should, have pursuant to the provisions of Order 2 rule 1(5) of the rules, adjourned the hearing on such terms, if any, as it or he may direct in order that the motion or summons may be served on that person.

Mr. Matthew Ojua, for the 1st respondent, submitted that the applicant must comply with mandatory rules of court particularly in fundamental rights enforcement matters. Adherence to the rules help in the fair and quick dispensation of justice. He referred to Solanke v. Sowefun (1974) 1 SC 141 at 150. He also referred to the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules and submitted that it is mandatory that an affidavit of service must be filed before the motion is listed for hearing and such affidavit shall be before the Judge on the hearing of the motion and the duty of filing the affidavit of service is on the applicant and not on the court bailiff. He relied In Re Appolos Udo (1987) 4 NWLR (Pt. 63) 120 at 126; Onyemaizu v. Ojiakor (2000) 6 NWLR (Pt. 659) 25. Counsel pointed out that the affidavit filed by the court bailiff is not in the record of appeal and the appellants have neither challenged the record nor have they brought an application for additional records to make the said affidavit part of the record of appeal. Counsel also pointed out that the phantom affidavit of service was allegedly filed on 26/6/02, which is 13 months after the objection was filed and 17 months after appellants’ counsel filed an affidavit of service and 14 months after the date the matter was listed for hearing.

Mr. Ojua also submitted that the appellants’ contention that the trial Judge failed to advert his mind to Order 2 rule 1(5) of the Fundamental Rights (Enforcement Procedure) Rules for the purpose of granting an adjournment holds no water since the appellants did not rely on the said provision to pray for an adjournment before the court below.

Mr. Ikona, Assistant Director of Civil Litigation in the Ministry of Justice of Cross River State made similar submissions and relied on the same cases as the 1st respondent. So it will be unnecessarily prolix to repeat same presently.

The bone of contention in this appeal is very narrow and straightforward. It is predicated on the interpretation of the provisions of Order 2 rules 1(4) of the Fundamental Rights (Enforcement Procedure) Rules, therefore, it is reasonable and necessary to begin with a careful consideration of the rules. Order 2 rules (1) and (4) provides as follows:

“An affidavit giving the names and addresses of, and the place and date of service on all persons who have been served with the motion or summons must be filed before the motion or summons is listed for hearing, and, if any person who ought to have been served under paragraph (3) has not been served, the affidavit must state the fact and the reason why service has not been effected, and the said affidavit shall be before the court or Judge on the hearing of the motion or summons.”

One of the cardinal principles of interpretation is to give the words of a statute, when clear and unambiguous, their grammatical and ordinary meaning. See Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) page 546; Ahmadu v. Gov. Kogi State (2002) 3 NWLR (Pt. 755) 502 and Fawehinmi v. I-G of Police (2002) 7 NWLR (Pt. 767) 606.

The words used in Order 2 rule 1 (4) of the rules stated above, are clear and unambiguous. The use of the word “must” twice and the word “shall” in the rule is indicative of the fact that it is mandatory.

The word must is a word of absolute obligation. It is not merely directory, rather, it is naturally imperative and admits of no discretion.

See: Ogwuche v. Mba (1994) 4 NWLR (Pt. 336) 75 at 86. From the foregoing it is glaringly clear that it is mandatory that an affidavit of service must be filed before the motion referred to is listed for hearing.

Secondly, if any person who ought to have been served under paragraph (3) of the rule has not been served, the affidavit must state the fact and the reason why service has not been affected. Thirdly, such affidavit shall be before the Judge on hearing of the motion. The stipulations above are fundamental preconditions to the hearing of an application under the aforesaid rules. Failure to comply with the said rules is fatal and it robs the court of jurisdiction to hear the application. Therefore, failure to fulfill the preconditions prescribed in Order 2 rule 1 (3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules is not a mere procedural irregularity but it impacts upon the competence of the trial court to entertain the action, which was initiated without following the due process of law.

The appellants also contended that the rule did not specifically say that the applicant must serve the summons or motion and file an affidavit of service and that it will be wrong to read into the rules what is not there. They contended further that it will be contrary to the usual practice of courts, which is, for the bailiffs to serve court processes and file proofs of service. But I observe that the appellants were unable to refer to any legal authority to support their submission.

I agree with the respondents that the provision of Order 2 rules 1(3) and (4) of the Fundamental Rights (Enforcement Procedure) Rules has been considered judicially in a plethora of cases. Firstly, in Ezeadukwa v. Maduka (1997) 8 NWLR (Pt.518) 635. Ubaezonu, JCA, stated as follows:

“The Fundamental Rights (Enforcement Procedure) Rules are rules made by the Chief Justice of Nigeria in exercise of his power pursuant to the Constitution of the Federal Republic of Nigeria. They are peculiar rules restricted to the enforcement by a citizen of his right under Chapter IV of the said Constitution. It makes no provision for the importation of any other rules of court for the enforcement of such rights. It is therefore clearly wrong for the lower court to fall back to the High court rules and purport to derive its power to extend time therefrom. ”

The above decision is valid and subsisting and I see no good reason to depart from it.

Where by a rule of court, the doing of an act is a condition precedent to the hearing of a case, such rule must be strictly followed and obeyed. In view of the decision in Ezeadukwa V. Maduka (supra) it is clear that the submission that the court could fall back to the provisions of Order 12 of the High Court of Cross River State (Civil Procedure) Rules 1987, which provides for the court official to deal with the service of court process, is of no moment. It is clear that the Fundamental Rights (Enforcement Procedure) Rules are special rules made for the enforcement of special rights guaranteed by the Constitution. The rules did not make provision for importation of rules of any other court to complement or supplement them.

Furthermore, In Re: Udo (supra) at page 124, counsel for the appellants in the case, submitted that the Fundamental Rights (Enforcement Procedure) Rules 1979 made no provision as to who should effect service of process on the parties, therefore in the absence of such procedure or provision, the High Court Rules should apply.

Olatawura, JCA, (as he then was) held at page 136 that the contents of the affidavit envisaged by Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules must be sworn to and filed by the applicant and not the court official. His Lordship referred to Order 2 rule 1(4) of the said rules and stated that:

” … if any person who ought to have been served in paragraph (3) has not been served the affidavit must state that fact and the reason why service has not been effected.” … that is not the duty of the officer of the court (apparently, in this case a Bailiff) who should state the reason in the affidavit. The affidavit must be deposed to by the applicant in this case the appellant or any person who has his authority to do so. To construe otherwise is to make an officer of the court who ordinarily is to report process of service to state reasons why process of court has not been served. It is therefore my view that the affidavit must be filed and sworn to by the applicant before the motion can be heard or listed for hearing.”

It is therefore very clear to me that there is no doubt that the content of the affidavit envisaged in Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules must be supplied by the applicant or deposed to by him. Further still, whereas the provisions of Order 12 of the Cross River State High Court (Civil Procedure) Rules as to who should serve processes of court, provides for “a certificate” of service signed by such bailiff or other officer, “an affidavit” is required under Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules and not a certificate of service.

Moreover, the content of an affidavit under Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules is materially different from a certificate of service envisaged in Order 12 of the Cross River State High Court (Civil Procedure) Rules. The conclusion I reach therefore is that the provisions of Order 12 of the Cross River State High Court (Civil Procedure) Rule has no relevance to the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules.

The appellants in this appeal being applicants at the court below ought to have complied fully with the clear, simple and mandatory provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules.

I have also given anxious consideration to the submission of Mr. Ukweni at page 11 paragraph 4.16 of the appellants’ brief where he said:

“My Lord it is our submission that to allow the decision on appeal to stand or to apply the decisions in The State v. C. O. P. (in Re Appollos) (1987) 4 NWLR (Pt. 63) 31 and Onyemaizu v. Ojiakor (2000) 6 NWLR (Pt. 659) 25 cited to the learned trial Judge and which he relied upon, will amount to reducing the rules of practice to mere technical rules.”

That submission is not supported by law. There are a plethora of cases which state clearly that non-compliance with a condition precedent is not a mere technical rule of procedure but it goes to the root of the case. In Onyemizu v. Ojiakor (supra) Niki Tobi, JCA (as he then was) stated at page 47 (while considering a similar rule) that:

“If the non-compliance with the rules affects the root foundation or props of the case the court will not treat it as an irregularity but as nullifying the entire proceedings ….. ”

In law, rules are not only made to be obeyed but equally made to guide the orderliness of conduct of cases in court. They form the basis of a fair trial. See Adediran & Ors. v. Inspector (1991) 6 LRCN 2041.

Moreover, where the law prescribes the doing of a thing as a condition for the performance of another, failure to do so such thing renders the subsequent act void. In Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 422, the Supreme Court held that:

‘There is non-compliance with due process of law when the procedural requirements have not been complied with, or the preconditions for the exercise of jurisdiction have not been complied with. In such a circumstance, as in the other two cases, the defect is fatal to the competence of the trial court to entertain the suit. This is because the court will in such a situation not be seized with the jurisdiction in respect of the action.”

See also FCMB v. Abiola & Sons Bottling Co. Ltd. (1991) 1 NWLR (Pt. 165) 14. The non-compliance with the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules renders the application filed by the appellant a nullity. It is not only bad but also incurably bad. No matter how well conducted and decided, the defect is extrinsic to the adjudication. See Madukolu & Ors. v. Nkemdilim & Ors. (1962) All NLR (Pt. 2) 581 at 590, (1962) 2 SCNLR 341 and Odua Investment company Ltd. v. Talabi (1997) 52 LRCN 2109, (1997) 10 NWLR (Pt.523) 1.

From the above, it is unarguable that non-compliance with the mandatory provisions of Order 2 rule 1(4) of the said rules is not a mere technicality. It is a fundamental vice that affected the root of the application. In Re Udo (supra), Olatawura, JCA, (as he then was) at page 127 of the report, stated clearly that failure to file the affidavit by the applicant affects the hearing of the application and the application cannot be said to be properly before the court.

The appellants also submitted that rather than striking out the applicants’ application, the trial Judge should have had recourse to the provisions of Order 2 rule 1 (5) of the rules and adjourned the matter and direct that those who have not been served be served.

In the first place, the appellants’ submission is of no moment and holds no water since the appellants did not rely on the said provision to apply to the court below for an adjournment pursuant to the provisions of Order 2 rule 1 (5). As the issue was not raised for the consideration of the court below, it made no finding on it.

Therefore the appellants cannot now raise the issue. An appeal is against the decision of the court below and a challenge to the validity of that decision. More importantly an appeal is always against the ratio of the trial court’s decision and can never be at large. See Saraki v. Kotoye (1997) 3 NSCC 331 at 355, (1992) 9 NWLR (Pt. 264) 156. Oba v. Egberongbe (1998) 8 NWLR (Pt. 615) 485 at 489. Moreover, for the appellants to take the benefit of Order 2 rule 1 (5) of the Fundamental Rights (Enforcement Procedure) Rules, they must have complied fully with the provisions of Order 2 rule 1(4) of the rules.

This now brings me to another related issue. The appellants argued that their counsel, Bassey Okim Esq., filed an affidavit of service on 9/11/01 in the application in compliance with the provisions of Order 2 rule 1 (4) of the said rules. It is clear from pages 7 and 8 of the record of proceedings that the order of the court granting leave to the appellants to enforce their fundamental rights slated the motion on notice for hearing on 10/4/01. The affidavit of service filed by Bassey Okim Esq. on 9/11/01 for the appellants was filed 7 months after the matter was entered for hearing. It is therefore clear to me that the said affidavit was filed hopelessly out of time prescribed under Order 2 rule 1 (4) of the Rules.

Secondly, the other affidavit allegedly filed by the bailiff of court below on 26/6/02 is not part of the record of proceedings in this appeal. The appellants have not challenged the records and neither have they brought an application for additional records to make the said affidavit part of the record of appeal. In the circumstances, the appellants should hold their peace and abide with the record of proceedings as produced and presented before the court.

The court and all the parties in this appeal are bound by the record.

That notwithstanding, the phantom affidavit of service allegedly filed on 26/6/02 was filed 14 months after the date the application before the court below was listed for hearing on 10/4/01. Whichever way one looks at it, the appellants’ purported affidavit of service were hopelessly out of time. The conclusion I reach is that the appellants did not comply with the mandatory provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules. Rules of court are made to be followed. They regulate matters in court and help parties to present their case within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with these rules of court that makes for quicker administration of justice. See Solanke v. Somefun (1974) 1 SC 141 at 151. See also Appolos Udo (supra) where the court held as follows:

“Where a rule of court provides for the doing any act before a case can be heard it is my view that the rule of court must be followed strictly. Rules of court are made to be obeyed.”

In the interpretation of statutes, a court is obliged to adhere strictly to the interpretation only intended by the legislature even if such strict construction appears punitive to the litigant. Courts do not administer justice in the abstract and the justice administered by the courts is justice in accordance with the law. It is only by the orderly administration of law and obedience to the rules that legal justice can be attained. See Alale v. Olu (2001) 7 NWLR (Pt. 711) 119 at 127; Willoughby v. International Merchant Bank (Nig) Ltd. (1987) 1 NWLR (Pt. 48) 105.

From the foregoing, I answer the lone issue for determination in the affirmative and in favour of the respondents. This appeal is devoid of any merit. It deserves to fail and I hereby dismiss it. I affirm the ruling of the court below with costs assessed and fixed at N10,000.00 in favour of the respondents.

Other Citations: (2005)LCN/1852(CA)

Chief (Barr) I.e. Nwufo V. Federal Judicial Service Commission (2005) LLJR-CA

Chief (Barr) I.e. Nwufo V. Federal Judicial Service Commission (2005)

LawGlobal-Hub Lead Judgment Report

V.A.O. OMAGE, J.C.A.

This is an appeal against the judgment of Egbo-Egbo J., then of the Federal High Court, Abuja. The Judgment/ruling of the Court was delivered on 2/4/2003. The judgment/ruling was on the preliminary objection raised by the plaintiff/Appellant to the writ of summons filed and statement of claim filed by the Plaintiff. The writ of summons was filed; 28/5/02 and the statement of claim shows the following reliefs:-

(1)Q Declaration that the purported dismissal of the plaintiff, a principal legal officer, enter the Federal Capital Development; Authority released to the Federal Judicial Commission or secondment; not transfer of service for ruling a memorandum not petition dated 9th December, 1999 to the 6th Defendant as conveyed to the plaintiff vide defendant letter’s of 16th and 30th May, 2000 and reaffirmed by letter of 5th February, 2002, delivered to the plaintiff on 27/02/02 is null and avoid and of no effect whatsoever;

(2) Declaration that the plaintiff not having transferred his service from the Federal Capital Development Authority to the service of the 1st defendant was not subject to the…. powers of the 1st defendant as at 10th May, 2000, when the 1st defendant purportedly lack the decision to dismiss the plaintiff at deputy Chief Registrar of Court of Appeal.

The statement of claim of the Plaintiff filed on 30/5/2002, includes nine other reliefs prayed for, with thirty two annexure. They are contained in pages 9 – 33 of the record of proceedings filed in this appeal. The Plaintiff sued eight defendants, namely:

(1) The Federal Judicial Service Commission

(2) The Hon. Justice M.L. Uwais,

(3) The Hon. Attorney-General and Minister of Justice of Federation

(4) M. Justice M.M. Akanbi

(5) Hon. Justice Nzo Anyanwu

(6) Hon. Justice Umaru Abudulalhi

(7) Accountant General of the Federation

(8) The Inspector-General of Police.

All but the eight defendants entered in appearance to the plaintiff’s claim. The 1st, 2nd and 6th defendant’s were represented by one counsel, while the 4 and 5 defendants were respectively represents by different counsel.

The counsel each filed a notice of preliminary object dated 23/1/03. the grounds of the preliminary objection is that the plaintiff’s suit in incompetent and should be truck out or dismissed. The reason being that the complaints of the plaintiff in the reliefs sought by them in the statement of claim are of the performance of the function of the defendants as public officers. (2) The action against them was not filed within three months as required by the law. In that the letter of dismissal which is the origin of the plaintiff’s complaint was issued on 30/5/2000, while the plaintiff’s suit was filed or commenced on 28/5/02.

This is well over one year after and against the provisions of the Public Officer’s Protection Act Cap. 379 Laws of the Federation of Nigeria. In arguing the motion filed first by Abdullahi Ibrahim SAN, of counsel submitted that the suit of the plaintiff been filed outside the prescribed period of three months provided by law, render the suit incompetent and the trial court has no jurisdiction to adjudicate on it. The effect of the provision is to extinguish the plaintiff, right to present the claim in any court of law in Nigeria, because the suit is statute barred. Counsel urged the court to strike out and dismiss the plaintiff’s suit. Gaffa Ayodele SAN, for the 4th defendant referred to the Preliminary Objection filed by him; on the issue of statute bar, and agreed with the submission of the Senior Advocate as stated above. In addition, counsel urged the court to dismiss the action/claim against the 4th defendant as none of the nine items of claim in the writ discloses any cause of action against the 4th defendant and referred to the relevant paragraph were references were made against the 4th defendant and that none discloses any cause of action against the 4th defendant. Counsel for the 5th defendant Mr. Ukelonu adopted the submissions of the counsel for 1, 2, & 6th respondent quoted above and urged the court to strike out plaintiff’s claim. Igwuoson of counsel for the 5th defendant referred to the Preliminary Objection filed by him and associated himself with the submissions made by the counsel for the 1st, 2nd, and 6th defendants and also urged the court to dismiss the suit. Each counsel in this submission objected to the counter affidavit filed by the Defendant/Plaintiff/Appellant. The Preliminary Objection filed by each of them is purely on grounds of law; and not supported by an affidavit, there is therefore nothing to file a counter-affidavit on, as the objection was not supported by an affidavit. Each counsel submitted that the counter-affidavit filed by the plaintiff was an excuse to making farther the defendant. They all urge the court to strike out same.

In his ruling, the trial court upheld the submission of the counsel to the 1st, 2nd & 6th defendants, and of the objection of the 4th & 5th defendants for reasons of the claim been filed after the expiration of three months, infact for the claim been filed well over one-year; when it is apparent that the defendant are public service, and that they acted in the course of their apparent public duties. In the case of the 4 and 5th defendant it is evident from the statement of claim, that the paragraphs which made references to the 4th defendant disclose to the cause of action against him. The court below held that such an objection need not be raised in a statement of defence when it is apparent that the court has no jurisdiction ab initio. The court rejected as misconceived the submission of the Plaintiff/Respondent to the preliminary objection that the action of the defendant was performed in a different colour by which the plaintiff/respondent submitted and suggested that the period of three months protection for public servants will not apply in an action for fraud until such an action is manifest the court below ruled that the plaintiff claim contain no claim for fraud against the defendants only allegation against some of the defendant which is not the substance of the plaintiff’s claim for reinstatement to service or for damages therefore. The court below struck out the suit with six thousand Naira damages against the plaintiff/respondent. The plaintiff was dissatisfied with the ruling of the court below, he has filed grounds of appeal describe as A and B each with copious particulars. He seeks an order of the Court of Appeal to set aside the ruling of the Federal High Court. In his brief, the appellant recorded that the person affected by the appeal are the appellant ad the 1st respondent only, namely the Federal Judicial Service Commission. The 2-5th defendants were not cited in the appeal. It is necessary at this stage to record that the order of the Court below to strike out the plaintiffs claim is in response to; and in upholding the submissions made by counsel to the 1st, 2nd and 6th respondent and to counsel to 4 and 5th defendants; which is duly recorded in the record of proceedings. The appellant filed this brief of argument on 10/3/05 and formulated the issues for determination of the appeal as follows:-

Whether the respondent in dismissing the Appellant from his duty post – post was acting within its statutory or constitution authority or duty as to entitle it to the protection afforded by the public officers protection Cap – 379 L.F.N, 1990.

(2) Whether the trial court was right in holding that the appellant suit was statute barred. The appellant flied also a reply brief in which the appellant submitted that the period of commencement of action, and of the filing of the writ should not include the date of the occurrence of the event. The Appellant argued and submitted that since the date he received the last communication from the respondent is 27th day of February, 2002, and the action commenced on 28/5/2002, the three months period of protection should count from 28th not 27th February, 2002, and the date of last communication to him should not count until 29th May, 2002. The reply is in response to the issue raised in the respondent brief. The respondent also raised what they, the counsel described as the Preliminary objection to the effect that the plaintiff claim is against the eight Defendants in favour of whom the court made its ruling to strike out the suit. The appeal filed by the appellant against the 1st defendant’s only suggest a devious plan of the plaintiff to seek to appeal against the other defendant one by one. The 1st Respondent counsel refers to order 3, rule 2 Rules of the Court of Appeal 202. He urged the court to hold that the appeal as constituted is improper and fundamentally defective, and should be dismissed. Subject to the above, the respondent formulated issue for the determination of the appeal thus:-

“(1) Whether the honourable court in considering the Provisions of the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria, 1990, rightly held that the Respondent’s did not act outside the colours of their offices

(2) Whether the honourable trial court was right in the computation of time when it held that the action was statute barred.”

The two sets of issues of the appellant and of the respondent are on the same theme. I will deal with the two sets of issues together treating issue one of the appellant with issue one of the Respondent and issue 2 in both cases similarly. On issue one of both parties, one of the grounds, indeed, the main ground submitted by the appellant for objection to the exercise of jurisdiction on the appellant which groused the appellant in saying that the 1st Respondent has no power to dismiss him from the Services at the Deputy Chief Registrar is because he the appellant- said he is on Secondment to the service of the Federal Judicial Service Commission and that at worse he the appellant should have been sent back to the body that seconded him to the Federal capital Territory. I find in such a submission, absolute fallacy. The letter of appointment offered the appellant as Deputy Chief Registrar supports no suck averment.

The appellant applied for appointment as a Deputy Chief Registrar to the Chief Registrar Court of Appeal by his application dated 9th February, 1997, exhibit in the proceedings below. Apart from stating in the application that he “was currently a legal officer with the Federal Capital Development authority; the appellant did not state in the application that he wished to be considered on Secondment from any previous or current employer; and the appellant had responded to an advertisement for the post of a Deputy Chief Registrar see page 35 of the record of proceeding. On page 36 of the said record is the letter of offer of appointment to the appellant. Nothing is contained in the said offer of appointment made to the appellant by the Federal Judicial Service Committee; about the appointment of the appellant being on Secondment from anywhere; or from the Federal Capital Territory Authority. In particular in paragraph 2 of the letter of offer of appointment the following are recorded “Your appointment is subject to the terms and condition laid down in the Federal Public Service of Nigeria, and to the rules and regulations of the Federal Judicial Service Commission.” Please see page 36 of the record of proceedings.

At no time during the Service of the appellant with the 1st respondent did the 1st respondent participate in the vainglorious communications shown as exhibit in the record of proceedings which the appellant indulged in, with the Federal Capital Authority. The letter in response to the several letters written by the appellant was never endorsed to the Federal Judicial Service Committee and the latter did not know of the day dream of the appellant that he simultaneously belong in the Services of “two separate arms of Services” of the Federal Government of Nigeria. By the acceptance of letter of appointment as the Deputy Chief Registrar, the appellant has accepted the terms of his appointment to be bound by the conditions laid down in the Federal Public Service of Nigeria and the Rules and Regulations of Federal Judicial Service Committee. Consequently, the submission is false, that the appellant was not on a full time Service of the Federal Judicial Service Committee or that the Respondent “acted out of colour” when the appellant was dismissed from Service. In my view and I so rule the appellant by his acceptance that his appointment was subject to:

(i) Condition and rules laid down in the public service;

(ii) That he is subject to the rules and regulations of the Federal Judicial Service Commission is under the Sole and direct control and authority of Federal Judicial Service Committee; and subject to the rules of the Judicial Service Commission.

The Appellant cannot with parol statement vary or contradict the term and conditions of his appointment which is writing see Akpare v U.M 20 NLR. The order made of the dismissal of the appellant was properly made. If therefore the appellant wishes as he did, to exercise a right to go to court on the issue of his dismissal he must and should have done so within three months of the receipt of the letter of dismissal, as provided in the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria. Indeed, if the issue raised by the appellant is to be treated facetiously the answer should be, since the appellant claim to have a right of return to the Federal Capital Territory office; he should suo motu return to the latter; and the question may be asked why commence litigation, why does the appellant not just proceed to his original employer in another government as he submitted. The clear answer is that the appellant seeks to engage in unprofitable semantic argument; which in this case goes to no avail. I resolve issue one against the appellant.

Issue two of both parties is on the method of calculation of the three months period from when the cause of action arose to be caught by the Public Officers Protection Act.

The cause of action in the instant appeal of the appellant arose the date on the letter of dismissal from the service of the plaintiff/appellant unless the letter states otherwise. The letter which issued from the Federal Judicial Service Commission to the appellant is dated 30th May, 2000, but the date of the dismissal in the letter is 16/5/2000. Within three months of the date after 16/5/2000 the plaintiff/appellant may, acting within the provision of the Public Officers Protection Act Cap 397 commence an action against the Public Servants cited in the Writ of Summons if the respondents are acting within their judicial jurisdiction. The letter is contained all page 140 of the record of proceedings and it states the dismissal is with effect from 16/5/2000.

Any subsequent letter from the defendant which does not change the date of dismissal, and which conveys nothing differently from letter of the 16/5/2000 is a confirmation, of the contents of the earlier letter. The confirmation became necessary for the avoidance doubt as a result of representation made to the Federal Judicial Service Commission by the appellant. The reliance by the appellant of the respondent’s letter of confirmation of dismissal on a subsequent date as creating the fresh cause of action is idle. The subsequent letter did not renew the date the cause of action arise as that date. So certain of his dismissal from service of the Respondent that he wrote several petition to the head State appealing against his dismissal. The petition are dated 23/5/2000; see page 141 of the record. The Senate President 23/5/2000 pages 171. A letter to the Inspector General of Police praying for the reversal “the criminally” motivated dismissal from the service to name a few. The letter is also dated 23/May/2003. All the letters petitions and representations were made by the appellant in the expectation and hope that his dismissal from service on 16/5/200 which was conveyed in a letter dated 30/5/2000 could be reversed. If the appellant claimed to have received a letter from the respondent on 27/March/2002, which does not reverse the decision conveyed to him of his dismissal from the service, the cause of action and remained a date after 16/5/2000. Therefore, the date from which the appellant can institute his right of Action is 16/5/2000 if interpreted liberally 17/5/200 not 27th March, 2002. The suit was commenced against the defendants on 28th May, 2002, see The Registrars Certificate on page 1 of the record of proceedings, and the writ was issued by the Registrar on 30th May, 2002 from the time the cause of action arose on 16 or 17/5/200, to 28/May, 2002 is a period of over one year, which exceeds the three months period within which the appellant as plaintiff in he court below can commence proceedings against a public officer. In the instant case, the period has elapsed and the right of the plaintiff/ appellant to institute the action in a court below is extinguished and lost for all times See IBRAHIM V JSC (1998) 14 NWLR (pt 584) p.1. Per Iguh JSC; (ii) JARE v NUNKU 1995 5 NWLR Pt 394 129 SC.

In the instant appeal, the appellant in the court below has failed to show to the court below the true condition of service as being under the Federal Judicial Service Committee/Commission; instead he affects to be still under another service which is not alien to the Federal Government of Nigeria. It is a sufficient reason why his claim should be determined adversely against him. There is nothing in his written terms of service which suggest that the appellant is on secondment service to the lot Respondent. It is not so contained in the letter of appointment to the appellant. The appellant merely hoped to compound issue by engaging in an oral evidence to his service situation. It is settled law, that parole evidence is not admissible, to add, to vary or contradict a written document. See OLANYILE V AFRO CONTINENTAL NIGERIA LTD (1996) 7 NWLR (Pt 458) 29, 40;

(ii) MRS BISI OLATOYE V MADAM SARAH A BALOGUN (1990) 7 SCNJ 205, at 207.

There is no issue of secondment of service in the appellant’s appointment with the Respondent. Admittedly after receiving the letter of dismissal from the service of the Respondent the appellant wrote to several people, including the respondent in the hope of seeking a reversal of the letter of dismissal and hoping to be registered to his former position, such period may be described as a period of negotiation. The period of negotiation does not stultify; or renew the date of the cause of action arose.

The situation arose in the case of EBOGBE V NNPC (1994) 5 NWLR (Pt 347) 649 at 659. The Supreme Court in a majority decision held that the period of negotiation since a cause of action arrives does not revive or affect the date the cause of action arose. This decision it held despite the humane obiter dictum in the reasoning of the Hon Justice S. Onu JSC. Consequently, once the cause of action has arisen unless an intervening event alter the original event the date after the event remains the date from which calculations of applicable date should commence. See BRITISH AIRWAYS PLC V AKINSOYE 1995, 1 NWLR Pt 374, at 724; (ii) JALCLCO LTD V OWONILOYE TECH. SERVICES LTD. 1995 4 NWLR Pt 391 534 at 583 SC. The cause of action in this instant appeal is 16th May, 2000, from which date three months within which the appellant should have commenced his action against the Defendants in the court below, or Respondents in this court to fall within the period to sue under the Public Offices Protection Law Cap 397. LFN the appellant has failed to do so, his right to sue is extinguished.

I wish now to comment on the observation recorded in the respondents brief who expressed the anxiety that the ruling of the court below affects all the parties, in favour of all of whom the court struck out the plaintiffs claim, but the appeal filed is against the 1st Respondent alone. This sufficient to state here that this court is not in the habit of pronouncing judgment on hypothetical issue. Until the appellant seeks to appeal against any other of the affected parties in favour of whom the judgment of the court below is given this court will keep its peace on that issue. The appellant has complained that the objection to the jurisdiction of the court made by the Respondent months after the cause of action arose under the Public Officers Protection Act Cap 397 Laws of Federation of Nigeria and the learned trial Judge below has properly so rule. I resolve issue 2 also against the appellant in favour of the Respondent. I affirm the decision of the court below, and dismiss the appeal. I make an order against the appellant of N10,000.00.

Other Citations: (2005)LCN/1851(CA)

Central Bank of Nigeria V. Uchenna Godswill Dinneh (2005) LLJR-CA

Central Bank of Nigeria V. Uchenna Godswill Dinneh (2005)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER ODILI, J.C.A.

This is an appeal against the ruling of Honorable Justice A.I. Chikere of the High Court of the Federal Capital Territory, Abuja, whereby the learned Judge granted the application of the Plaintiff/Respondent in allowing the amendment sought of the Statement of Claim by a motion of 18/10/2004, which read inter alia:-

(1) An order granting leave to the Plaintiff/Applicant to further amend his statement of claim in term of the schedule attached hereto as Exhibit A”.

The Schedule of Amendment stated as follows:-

”SCHEDULE OF AMENDMENT”

AMENDED STATEMENT OF CLAIM

Add the following words immediately after the word ‘suit’ which is the last word in paragraph 12 “which document was made pursuant to the provision of the (law) Act setting up the defendant.
Add the following immediately after the last word in paragraph 52 “although plaintiff is still willing and able to work if given the opportunity”
Remember the original paragraph 60 in the amended statement of claim as No. 61 and add a new paragraph 60 as Follows:

“(60) But for the decision of the defendant which was based on wrong premises and unfounded. Plaintiff would have remained in the employment of the defendant until he attains the age of 60 years when he would have put in 35 years in service”

In the new paragraph 61 (that is, original paragraph 60 of the amended statement of claim dealing with reliefs) add a (new) relief as an alternative relief to relief No. 3 immediately after the said original relief 3 as follows:

“ALTERNATIVELY:

a. An order directed at or against the defendant to pay to the plaintiff his salary and other emoluments mentioned in paragraph 58 above for the remainder of 13 years which the plaintiff would have served but for the wrongful action of the defendant mentioned in the statement of claim.

b. Further, order directed at or against the Defendant for the immediate payment to the plaintiff the latter’s gratuity and pension benefit calculated as if the plaintiff had retired at the age of 60 years and as if (six) he has served the defendant for 35 years.

c. An order directed at or against the defendant for payment of all other entitlements to the plaintiff as obtain or applicable in the policy, practice and or tradition of the defendant”.

The Application was supported by a 16 paragraph affidavit with Exhibit A (Schedule of amendment). There was no counter affidavit. The motion was extensively argued by counsel on either side and the learned trial Judge on 1/12/04 delivered her ruling and stated inter alia in conclusion:

“The issue for determination is ‘whether the reliefs sought to be amended in the schedule to amendment need calling of fresh witnesses with respect the answer is No. As I have already stated the facts of the Plaintiffs salary and emoluments (sic) are pleaded already in paragraph 58 of the Statement of Claim. I agree with learned (Counsel) L.O. Fagbemi (SAN) that the evidence in support of the new relief sought to be amended is already on record, so that it is necessary and in the interest of justice that the amendment be allowed. I so hold. I am fortified in my view by the decision of the Apex Court in the case of IMONIKHE v. ATTORNEY GENERAL, BENDEL STATE, (supra).

The Defendant/Respondent may if necessary amend its Statement of Defence.

No order as to cost”.

It is against that ruling that the defendant/Appellant has appealed on four grounds of appeal contained in its notice of appeal at pages 44 and 45 of the record.

The Appellant filed its Amended Brief of argument in which it formulated through learned Counsel four issues for determination which are:-

Whether following proper application of the applicable legal principles the trial Judge ought to have granted the relief sought by the plaintiff in the light of the following facts and circumstances:-

(a) at the time the application was made the statement of claim, and hence the suit, was incompetent by reason of the fact that all the existing reliefs sought in the statement of claim were not maintainable in law on the facts and circumstances of the case, i.e, the cause of action was non-existent.

(b) the limitation period of three months within which an action could properly be instituted pursuant to Section 2(a) of Public Officers Protection Act in respect of the new relief had expired.

(c) by legal principles an amendment relating to additional reliefs does not relate back to the date of filing of the original statement of claim but from the date on which the amendment was made; and

(d) the case of both sides had been closed and the case had been fixed for hearing of addresses by counsel.

Whether the amended statement of claim which was existing at the time the motion was filed disclosed a reasonable cause of action and whether the trial judge was wrong in refusing in her ruling to entertain the oral application by the counsel for the defendant in the course of his address on the motion to have this suit struck out for being incompetent for the reason that the suit did not disclose a cause of action as the reliefs claimed in it were not maintainable, an issue that concerns the jurisdiction of the court to entertain the suit.
Whether the trial Judge acted in breach of the defendant’s constitutional right to fair hearing when she failed to consider the case put forward before her by the defendant that she ought not to grant the motion for amendment in this case because the limitation period prescribed for bringing a suit against the defendant by Section 2(a) of Public Officers Protection Act had expired because she only mentioned the fact that that submission was made to her and authorities cited before her to support the contention, but she totally neglected to embark on the consideration of them in her ruling.
Whether the ruling of the trial Judge is erroneous in that at the commencement of the suit, the writ of summons and the statement of claim did not disclose a reasonable cause of action because none of the reliefs claimed by the plaintiff in those two processes was maintainable by it because:-

(i) the employment of the plaintiff did not and was not alleged to have statutory flavour and he was not alleged to have a legal estate or right in the official quarters in which he resided;

(ii) the effect of the writ of summons and the statement of claim in a suit to disclose a cause of action is to render the suit incompetent and incurably bad and liable to be struck out;

(iii) the only remedy that is open to such a plaintiff is to commence a new suit; it is not open to the plaintiff to amend such processes;

(iv) the court lacks jurisdiction to entertain such a suit; and

(v) the court and/or the parties lack the power to confer on the court jurisdiction to entertain an incompetent suit by amendment or any other means.

The Respondent raised three issues for determination which are as follows:-

Whether having regard to the legal principles guiding amendment of pleadings and all the circumstances of this case, the learned trial Judge was wrong in granting the amendment sought?
Whether the Appellant has not waived his right to defence of limitation if any at all and whether the relief sought to be included in the Plaintiff/respondent’s claim was caught by the provisions of Public Officers Protection Act and
Whether the Plaintiff/Respondent’s suit was incompetent?

While the Appellant in its Amended Brief argued their four issues together the Respondent in his Brief took his issues for determination seriatim and I find it easier to handle, to utilize the issues in the form articulated by the Respondent. I shall however, take them from the bottom up that is Issues 3, 2 and 1 respectively.

ISSUE 3:

This issue has to do with whether or not, the plaintiff/respondent’s suit was incompetent since the Appellant contended that at the commencement of the suit the writ of summons and the statement of claim did not disclose a reasonable cause of action because none of the reliefs claimed by the plaintiff in those two processes was maintainable by it because:

(i) the employment of the Plaintiff did not and was not alleged to have statutory flavour and he was not alleged to have a legal estate or right in the official quarters in which he resided;

(ii) the effect of the writ of summons and the statement of claim in a suit to disclose a cause of action is to render the suit incompetent and incurably bad and liable to be struck out;

(iii) the only remedy that is open to such a plaintiff is to commence a new suit, it is not open to the plaintiff to amend such processes;

(iv) the court lacks jurisdiction to entertain such a suit; and

(v) the court and/or the parties lack the power to confer on the court jurisdiction to entertain an incompetent suit by amendment or any other means.

The Respondent in response said that the fact that a claim or action may not succeed is not a reason or basis to conclude that the court lacks jurisdiction to entertain the same. He cited the cases of Arowolo v. Akapo (2003) 8 NWLR (Pt. 823) 451 at 502 – 503, Gudu v. Kitta (1999) 12 NWLR (Pt. 629) 21.

Mr. Fagbemi (SAN) learned Counsel for the Respondent stated that it is a settled principle of law that in order to determine whether the statement of claim discloses a reasonable cause of action or not, what the court should consider are the contents of the statement of claim and not the extent to which one relief can co-exist with another. That it is irrelevant to consider the weakness of the plaintiff’s claim. That the important thing is to examine the averments in the statement of claim and see if they disclose some cause of action or raise some questions fit to be decided by the court. He cited Dantata v. Muhammed (2000) 7 NWLR (Pt. 664) 176 at 197.

Learned Counsel went on to say that the plaintiff’s statement of claim discloses his right to institute an action for a wrongful act alleged, to wit; wrongful termination of his employment and breach of his constitutional right to fair hearing by an organ or institution regulated by statute and the constitution. That Section 36 of the 1999 Constitution of the Federal Republic of Nigeria confers on every citizen with a grievance the right of access to courts. That it makes it obligatory on the court that will determine the rights of the person to accord him a fair hearing. He referred to the case of: Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12 at 33 -34.

Mr. Fagbemi (SAN) submitted further that the two declaratory reliefs claimed by the respondent in paragraph 60 of his Amended statement of claim are the principal reliefs upon which other reliefs depend. That it is a settled principle of the law that the court can grant declaratory reliefs alone. He referred to Order 25 Rule 5 of the Federal High Court Rules 2000 and the case of Shitta-Bey v. Federal Public Service Commission (1981) SC 40.

Learned Counsel for the Respondent said the action is competent and the court has power and jurisdiction to adjudicate upon it. That what the appellant is attempting is to defeat justice on the altar of mere technicalities which the court frowns at. He cited Obiora v. Osele (1989) 1 NWLR (Pt.97) 279 at 302.

Also, that the appellant’s arguments are hypothetical and academic. That where there are two simultaneous applications, one destructive and the other curative, the court will hear the curative one before the destructive application. The learned Counsel said even if the appellant had a valid objection on the incompetence of relief No.3 which is not conceded that the said relief is incompetent the alternative relief sought to be let in and which the learned trial Judge allowed has the effect of curing the incompetence. He cited the cases of Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 667 -778. Consortium MC v. NEPA (1992) 6 NWLR (Pt. 246) 132 at 142 paras G – H. Ceekay Traders v. G.M. Co. Ltd. (1992) 2 NWLR (Pt. 222) 132 at 147 – 148 to 159.

The learned SAN said that the Respondent’s action is maintainable in law and in no way caught by the provision of the Public Officer’s Protection Act.

Furthermore learned Counsel said the questions raised in the pleadings can only be resolved at full trial and evidence taken.

In his reply Brief, learned Counsel for the Appellant, Aluko-Olokun (SAN) said that this is not a case in which a claim or action may not succeed but one in which the court has no right to grant the reliefs claimed as the court has no jurisdiction to entertain incompetent claims. That where multiple reliefs are claimed any relief over which the court lacks jurisdiction is liable to be struck out.

I would want to see what the judicial authorities or at least some of them said on the matter presented in this issue. See World Gate Ltd. V. Senbajo (2000) 4 NWLR (Pt. 654) 681- 682 per Galadima JCA.

“In an amendment of a statement of claim, a new cause of action which did not exist at the date of the writ cannot be introduced.

Indeed, if the true points at issue are to be determined, the pleadings of either party should be rigidly adhered to and the court should make such arrangement as are necessary for the real rights of the parties to be determined. However, if an amendment is to the effect that it would bring into an action an entirely fresh cause of action arising after the action had been started, such an amendment may not be allowed. The amendment in such a case should not be entertained in as much as it relates to a cause of action which did not exist at the time when the writ was issued. Facts which arose after the action by the 1st respondent was filed has the effect of starting a fresh cause of action (Gowan v. Ike-Okongwu (1994) 2 NWLR (Pt. 326) 355 referred to.

An amendment merely for the purpose of determining the real issue (5) in controversy between the parties ought to be permitted at any stage of the proceedings even where the action had been reserved for judgment or an appeal provided:

(a) the applicant is not acting mala fide or trying to over reach the other party;

(b) the amendment will not entail injustice or embarrassment or surprise to the other party;

(c) by his blunder the applicant has done injury to the other party which cannot be ameliorated by costs or otherwise assuaged.

An amendment which is intended by a party to change the nature of the case before the court will generally be refused because it is not made bona fide but mala fide and is intended to overreach the other party” (Oladiti v. Sungas Co. Ltd. (1994) 1 NWLR (Pt. 321) 433 referred to) P. 681 paras D-G per Galadima JCA.

A cause of action accrues when a breach of a person’s legal right occurs and not when damages are suffered. See USA Plc. v. Abdullahi (2003) 3 NWLR (Pt. 807) 359, See. Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1.

In Consortium MC v. NEPA (1992) 6 NWLR (Pt. 246) 132 at 142 per Nnaemeka-Agu JSC D – E, G – H.

”I must reiterate the fact that our courts have deliberately shifted away from the narrow technical approach to justice which characterized some earlier decisions of courts on the matter. Instead, it now pursues the course of substantial Justice….

To hold that learned Counsel for the appellant was right in his contention will tantamount to sanctioning injustice through the short arm of technicality. That is not our current aim in the administration of justice”.

The point is that the spirit of justice does not reside in Rules of Court, in forms and formalities, nor in technicalities. These should aid not defeat justice. see Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279 at 302 per Oputa J.S.C.

It is trite that jurisdiction can be raised even for the first time at the Supreme Court. See Usman Dan Fodio University v. Kraus Thompson Organisation Ltd. (2001) 15 NWLR (Pt. 736) 305 per Aderemi JCA.

If there are two motions, one seeking to raise a point of non-compliance with a rule or an order by court and the other seeking to strike out or dismiss the proceedings on the ground of the non-compliance, a court of justice and equity ought to take the motion which seeks to regularize the proceedings and preserve the form being struck out or summarily dismissed first before considering the application for striking out or dismissal for non-compliance. Indeed, invariably in practice, the motion to summarily dismiss or strike out the appeal is withdrawn and struck out and the applicant compensated with costs. This is in accord with the rule that the courts are now expected to do substantial, and not technical justice. In such cases, the aim of the court ought to be to lean in favour of the proceeding that will bring about the doing of substantial justice. See Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 667 – 668 per Nnaemeka-Agu JSC.

Once there is jurisdiction in the court to adjudicate on a claim, a defendant/applicant can only determine the case in limine by application under the Rules of Court. See Ege Shipping & Trading Industry v. Tigris International Corporation (1999) 14 NWLR (pt. 637) 70 at 89 – 90; Shell BP Petroleum Dev. Co. of Nigeria v. Onasanya (1976) 6 SC 89.

It must not be lost sight of however that the jurisdiction of the court is determined by the claim on the writ of summons of the Plaintiff. See Adeyemi v. Opeyori (1976) 9 – 10 SC 31.

From all that have been stated above and the authorities enabling it is clear that the Issue No 3 raised is answered by me in the Positive. That is the Plaintiff/Respondent’s suit was not incompetent and the arguments and submissions to the contrary obviously academic and flawed, with the overreaching capacity to terminate a suit in limine without a legal basis with the added injury of causing substantial miscarriage of justice. For emphasis the trial court did not lack jurisdiction to adjudicate.

ISSUE 2:

On this issue, Mr. Aluko Olokun (SAN), learned Counsel for the Appellant said one of the grounds on which the appellant opposed the motion of the respondent was that in respect of the additional reliefs sought by the Respondent the limitation period within which the additional reliefs could lawfully be sued for had expired pursuant to Section 2(a) of the Public Officers Protection Act, cap. 359 of the Laws of Nigeria, 1990 and that being so what the respondent was seeking to do was to prosecute a stale claim as the prescribed limitation period was three months while the cause of action occurred about one year and a half before the motion was filed.

In Response learned counsel for the Respondent said this issue relates to waiver and the nature of reliefs and whether reliefs are mutually exclusive or whether they are contiguous upon one another. That assuming without conceding that Appellant’s argument is valid, considering the time it raised the issue of incompetence or noncompliance with the provisions of the Public Officers Protection Act the appellant is taken to have waived that right. That the position of the law is that a person who is entitled to the benefit of a statutory provision may waive same and allow the transaction to proceeds as though the provision had never existed. He cited the case of Udu v. Kraus Thompson Organizations Ltd. (2001) 15 NWLR (pt. 736) 305.

Learned Counsel for the Respondent stated that raising such a defence after the close of case and in response to a motion on amendment amounts to a waiver of that right. That the defence of limitation being a special defence, the way and manner in which it can be raised are governed exclusively by the rules of court. That it should be noted that demurrer had been abolished; hence the raising of the defence of limitation cannot be raised without first raising it in the pleadings for reason of fair hearing and to avoid springing a surprise on the opponent. He cited Order 25 Rules 1 and 2(1) Federal High Court Rules 2000. Ademolaju v. Adenipekun (1999) 1 NWLR (pt. 587) 440 at 450 D – E.

Learned Counsel submitted further that the appellant has failed woefully in this regard as he raised the issue of limitation for the first time in response to the motion for amendment which showed appellant’s disregard for the rules of court which are to be obeyed failing which the action taken in that regard is vitiated for noncompliance. He referred to Onyemeizu v. Orjiako (2000) 6 NWLR (pt. 659) 45 E – F.

Learned Counsel said that the statute of limitation is a defence which can be waived and so it cannot be strictly said that an action taken outside the limitation period is incompetent for lack of jurisdiction of the court. He cited Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) 718 para A.

The learned SAN went on to contend that where one of the reliefs claimed is improper as complained by the Appellant that the plaintiff/respondent’s Relief 3 is not maintainable for reason of master/servant relationship between the parties, the claimant goes home without the improper relief whilst other reliefs properly claimed survive and thus saved. That it has nothing to do with the issue of jurisdiction which is a constitutional matter. That even if all the reliefs are improper, the court is not precluded from looking at their merit to know whether indeed they are improper or not and this interlocutory stage is not the right time to delve into that. Learned Counsel said courts should guard their jurisdiction jealously and anything that would restrict their power must be resisted. He cited the case of Olaofe v. University of Ibadan (2001) 10 NWLR (pt. 720) 149 paras B – C. That the court has a duty to do justice in any case before it between parties to a dispute and not to obstruct the course of justice.

In the Reply Brief learned counsel for the Appellant said it would not have served any useful purpose to raise a defence of limitation of time when the new relief was not yet in place. That it is their legal defence to the application to amend. That they were alerting the court that the time limited by statute for making such an application properly had expired and that at that point in time such an application was incompetent. learned counsel said in any event since such an additional relief by law cannot date back to date of filing the suit granting such an amendment to include it at that point in time was otiose.

That is in summary the arguments for and against the issue under review. I shall cite some of the authorities to me for a clearer picture of the legal principles guiding in the specific circumstances of this present case.

See the case of:- Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) 684 Held Per Iguh JSC at 710.

A Limitation Law or Act removes the right of action, the right of enforcement and the right to judicial relief and leaves the plaintiff with a bare and empty cause of action which he cannot enforce if such a cause of action is statute barred. Accordingly, where the law provides for the institution of an action within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be commenced after the time prescribed by such a statute. (Obiefuna v. Okoye (1961) 1 SCNLR 144; Egbe v. Adefarasin (1987) 1 NWLR (pt. 47) 1; savannah Bank of Nigeria Ltd. V. Pan Atlantic Shipping Co. Ltd (1987) 1 NWLR (pt. 49) 184 referred to).

Where limitation of action is related to torts and contract, it is an accepted principle that the statute of limitation is a defence which can be waived.

To that extent it cannot strictly be said that an action taken outside the limitation period is incompetent for lack of jurisdiction of the court. However, after the plea of limitation has been raised and established, the court lacks jurisdiction to proceed further to determine other issues of merit in the case. See Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) 684 at 718 para A per Ayoola JSC.

See also Ademolaju v. Adenipekun (1999) 1 NWLR (pt. 587) 440 at 450 D – E per Rowland JCA:

A limitation law does not operate in a vacuum. Hence it is the defendant who ought to plead and prove that the action is statute barred (Savannah Bank Ltd. V. Pan Atlantic (1987) 1 NWLR (pt. 49) 212 at 259 referred to).

Where a statute confers specific and special powers on any person or authority for the performance of certain acts and prescribes the manner in which the powers are to be exercised he cannot deviate from that procedure, else the excess can be called into question in the court of law except where ouster of jurisdiction abound. See Oraofe v. University of Ibadan (2001) 10 NWLR (pt. 720) 126 at 146 paras F – G per Adekeye JCA.

A provision in a statute ousting the ordinary jurisdiction of the court must be construed strictly. Thus if such a provision is reasonably capable of having two meanings that meaning shall be taken which preserves the ordinary jurisdiction of the court. See Olaofe v. University of Ibadan (2001) 10 NWLR (pt.720) 126 at 147 para D – E, 149 para C per Adekeye JCA.

Generally, courts should guard their jurisdiction jealously and anything that would hamper their powers must be resisted. In the instant case, the Public Officers (Special Provisions) Act of 1984 is a punitive Act which takes away the vested right of a public officer in certain circumstances and restricts his access to court. It is interpreted strictly and narrowly against the maker. P. 149 paras B – C per Adekeye JCA in Olaofe v. University of Ibadan (supra).

A court should not be in a haste to decline jurisdiction where and when it affects deprivation of right of citizens P. 149 para E per Adekeye JCA in Olaofe v. University of Ibadan (supra).

Bearing that caution above in mind and seeing nothing to encourage me to deviate from the warning I would say without difficulty that the matter of the Statute of Limitation does not come into play in this instance the reasons not only those earlier mentioned but because the pleading as amended is to take the date of the filing of the earlier pleading which is now being amended and since by that earlier date limitation did not occur, it would therefore not be relevant to the successor of that pleading which stepped into the position of the previous. Therefore Issue No.2 is answered in the negative that is that issue whether or not limitation occurred is not relevant for the purposes of this interlocutory appeal.

ISSUE 1:

In respect of this issue the learned counsel for the Appellant referred to the reliefs sought from the trial court up to the time the motion which gave rise to this appeal was filed. He said in regard of the first three reliefs that the law is clear that an employee whose employment does not enjoy statutory flavour, where he is dismissed or otherwise relieved of his employment, cannot seek these three reliefs because the determination of the employment brings the relationship of master and servant to an end and the employee cannot obtain an order for annulment of the determination of his employment because the doing of such an act is within the right of the employer. That the only remedy that avails the employee is an award of damages for breach of contract. He referred to the cases of:

Katto v. CBN (1999) 6 NWLR (pt. 607) 390.
CBN v. Okosun (1996) 2 NWLR (pt 428) 77.
Ogbaji v. Arewa Textiles Plc. (2000) NWLR (pt. 678) 322.
Union Bank v. Ogboh (1995) 2 NWLR (pt 360) 647.
Ogbuike v. National Steel Council (1976) NNLR.
Jida v. CBN (2001) 5 NWLR (pt. 705) 165.

Learned Counsel for the Appellant went on to state that in the instant case having regard to the facts of the case the employment of the plaintiff did not have statutory flavour because there is no statute which protects it. That the terms of the employment are merely contained in a written document which gave the defendant the right to bring the employment to an end by giving the plaintiff one month salary or one month notice at the absolute discretion of the defendant. Learned Counsel said the fifth relief which sought to prevent the defendant from ejecting the plaintiff from the premises that was allotted to the plaintiff as his official residence while he was in the employment of the defendant is not maintainable because it is settled law that the plaintiff did not have an estate in the property. Learned counsel said Plaintiff/Respondent was only a licensee and following the determination of his employment, he ceased to have any legal right over the property and a party who has no legal right cannot obtain an injunction. He referred to the cases of:

Yalaju-Amaye v. A.R.E.C. (1990) 6 SCNJ 149; (1990) 4 NWLR (145) 422 at 451 – 452.
Akibu v. Oduntan (1991) 2 NWLR (pt. 171) 1 at 10.
Union Beverages Ltd v. Pepsi cola (1994) 3 NWLR (pt. 330) 1 at 12.
Paul v. Ozokpo( 1995) 4 SCNJ 119 at 139.
Akuneziri v. Okenwa (2000) 15 NWLR (Pt. 691) 526.

In respect to the 4th claim learned counsel for Appellant said that the failure of the first three reliefs makes it unnecessary to consider the claim as it is predicated on the success of the plaintiff on those claims. That it is ancillary to the first three reliefs and when an employment is determined the employee ceases to work and he ceases to have a right to demand for his salary and the payment of salary to him ceases from the day the employment is determined.

Learned Counsel for the Respondent stated on his own part that the additional relief sought by the plaintiff/respondent and granted by the lower court is sustainable by the existing facts at the commencement of the action and the relief being sought did not arise after the cause of action. That the reliefs sought to be amended need no calling of fresh witnesses as facts of the plaintiff’s salary and emolument are already pleaded in paragraph 58 of the Statement of Claim and admitted. Learned Counsel said the opposition to the amendment on the solitary ground of being statute barred is untenable since all amendments date back to the time of the commencement of the action. He cited Vulcan Gases Ltd. v. G.F. Ind. (2001) 9 NWLR (pt. 719) 610 at 640 – 641. Learned Counsel said the proper consideration for the court is whether the averments in the statement of claim can sustain the new relief. That if yes, then other Issues or arguments become otiose and academic, which the court is not enjoined to dabble into. He referred to Ogbonna v. The President Federal Republic of Nigeria (1997) 5 NWLR (pt. 504) 284 at 288.

Learned Counsel further stated that the grant of the amendment of the relief will not give rise to any need to call new evidence to prove same because the pecuniary entitlements of the Respondent is not in issue as parties had agreed in the pleadings as to the respondent’s pecuniary entitlements and the only issue remaining is whether or not the plaintiff is entitled to those reliefs in law which is to come at the hearing of the substantive case and not otherwise. Learned counsel said it is settled principle of law that when one talks of fair hearing, it must be conceived with reference to the real issues in litigation between the parties. He cited the case of Consortium MC v. NEPA (1992) 6 NWLR (pt. 246) 132 at 142 paras E- F.

Mr. Fagbemi (SAN) of counsel for Respondent said the totality of the appellant’s argument is to determine the substantive issue at the High Court at this stage of interlocutory appeal whereas, the issue in this appeal, strictly speaking relates to amendment and it is trite law that the Court of Appeal should not in an interlocutory appeal determine the substantive issue as doing so will prejudice the pending substantive cases. He cited the case of United Spinners (Nig.) Ltd. v. Chartered Bank (2001) 14 NWLR (pt. 732) 195 at 220 paras E – F. Mobil Prod. (Nig) Unlimited v. Monokpo (2001) 18 NWLR (pt. 744) 212 at 249 paras D – F.

In his reply brief learned counsel for the Appellant said in the present instance the amendment will not date back to the date of the filing of the suit because such an amendment will not be allowed to deprive the opposite party of a defence of limitation.

I would want to restate the relevant part of the statement of claim paragraph 60:

DECLARATION that the dismissal of the plaintiff from his employment with the Defendant on 20th June 2003 is illegal, ineffectual and unconstitutional for the breach of the plaintiff’s right to fair hearing and the rules and regulations governing his contract of service with the Defendant.
DECLARATION that the dismissal of the Plaintiff from his employment with the Defendant on 20th June 2003 for offences acts and or omission which occurred during the period when he was on annual/eave and not on duty is wrong and unlawful, null and void.
AN ORDER reinstating the plaintiff back to his employment with the Defendant.
AN ORDER directing the defendant whether by itself, its servants, agents, privies or assigns howsoever to pay to the plaintiff the latter’s salaries, emoluments and entitlements from July 2003 until the Plaintiff’s re-instated.
AN ORDER of injunction restraining the Defendant whether by itself, its servants, and/or privies howsoever from ejecting the plaintiff from the defendant’s quarters at Block 06 Flat 44 (Intermediate and Junior) Garki Abuja.

In seeking the amendment and further amendment the foregoing remained what was asked to be brought in the amendment was an ALTERNATIVE RELIEF:-

In the case of Ibe v. Onuorah (1998) 7 NWLR (pt. 558) 383 at 393 B – C per Ubaezonu JCA:

It is not a blank cheque that every application for amendment must be granted. Every application for amendment to correct a mistake or slip in the proceedings and designed to meet the ends of justice shall be granted no matter at what stage in the proceedings the application is made.

On the other hand, any application that is mala fide or will prejudice or cause injustice to the other side will not be granted. (Okafor v. Ikeanyi (1979) 3 – 4SC 99 referred to).

By virtue of Section 16 of the Court of Appeal Act, the Court of Appeal has powers to amend pleadings filed in the High Court. See Ibe v. Onuorah (supra) at 392 G – H.

Owata v. Anyigor (1993) 2 NWLR (pt. 276) 380 referred to In Union Bank Ltd. v. Ogboh (1995) 2 NWLR (pt. 380) 647 at 663 Paras C – E per Belgore JSC:-

Sometimes, to obviate ambiguity or to aver some facts, a party may amend his pleadings under certain principles before the end of hearing or judgment or sometimes on appeal. It is for the sake of doing justice to the parties that the court is always lenient and favorably disposed to an amendment of pleading at any stage of hearing and before judgment so as to bring to focus the trend of substantial evidence of the dispute between the parties. The appellate court can even make such an amendment if asked for so far as it will not be to the disadvantage of the other side or occasion a miscarriage of justice. (Ogwuma v, IBWA Ltd. (1986) 1 NWLLR (pt 73) 658; Kate Enterprises Ltd. V. Daewoo Nig. Ltd. (1983) 2 NWLR (pt. 5) 116 referred to.

On the exercise of a trial court’s discretionary powers, see Ceekay Traders Ltd. v. Gen. Motors Co. Ltd. (1992) 2 NWLR (pt. 222) 132 at 162 – 163 paras H – A.

A trial Judge is entitled to exercise discretion but he must give reasons for so doing to give the appellate court opportunity to know how he exercised his discretion. (Solanke v. Ajibola (1968) 1 All NLR 46 at 54 referred to) per Olatawura JSC.

Where a trial court has exercised discretion over a matter, an appellate court should not interfere on the ground that it might have exercised it differently if it were in a position to do so. An appellate court is however, entitled to interfere with the exercise of discretion of a trial court if the appellate court is satisfied that it is in the interest of justice to do so. See Kawu JSC at 146. (University of Lagos v. Aigoro (1985) 1 NWLR (pt. 1) 143 at 148; Demuren v. Smith (1967) 1 All NLR 329 at 333; President of Ijebu Province v. Laguija (1955) 14 WACA 549 at 552 referred to. I would answer this Issue No.1 in the negative as the learned trial Judge had the discretion to consider the amendment sought which discretion she properly exercised judicially and judiciously. I agree with the attitude of the Respondent’s Counsel that Appellant is seeking to use this forum to determine the substantive suit which this court cannot do.

In the circumstances of this case and the reasons above given this appeal lacks merit and is dismissed. I affirm the ruling of the lower court granting the amendment.

I order N5,000.00 costs to the Respondent.

Other Citations: (2005)LCN/1850(CA)