Tibil Dung V. Zang Chung Gyang (1994)

LawGlobal-Hub Lead Judgment Report

ORAH, J.C.A.

The appellant herein was the plaintiff at the Area Court Grade 1 Bukuru in Suit No.CV.421/84H/Date 27/12/84. In that case, the appellant had sued the defendant (respondent herein) claiming possession of a farm land fenced with cactus situate at Manga Gyel in Bukuru.

At the Area Court Grade 1. Bukuru, the plaintiff’s case was:-

“That he (plaintiff) inherited the farm land in dispute from his father. That Zang Chung Gyang who was the defendant’s senior brother and the plaintiff’s father were from the same parents. The land in dispute went into the defendant’s possession, when Zang Chung Gyang came to the plaintiff’s father and begged the plaintiff’s father for a place they will use in farming in order to feed. The plaintiff’s father agreed and gave Zang Chung Gyang, the farm land now in dispute for farming on the condition, that if the plaintiff’s children should grow up, Zang Chung Gyang should return the farm. Zang Chung Gyang promised not to cheat the plaintiffs children. After the death of the plaintiff’s father, the plaintiff went to (his cousin) the defendant to ask for the farm. The defendant asked the plaintiff to come later. When the plaintiff came later, the defendant told the plaintiff that he has no farm land there. The plaintiff then took out the suit against the defendant claiming possession of the said land.

On the other hand, the defendant’s case, was, that he was born on the disputed land. He was 61 years. He gave birth to others on the said land, who have also given birth. Since he had been on the land, nobody ever said the land now in dispute is his, until last year, that the plaintiff and one Makinji took out a summons against him claiming the said farm land as theirs.

The Area Court Grade 1 Bukuru, after hearing the case found as follows:-

That the plaintiff called 4 witnesses, all of whom told the court, that the farm land belongs to the plaintiff. They all shared common boundary with the plaintiff and they are from the same family/ house. The court also found, that the defendant called two witnesses none of whom could say how the defendant came about the farm land. The defendant however told the court that he was born there and never heard any person challenging them except last year when the plaintiff and one Makinji sued him.”

At the locus in quo, where the court went round with both the plaintiff and the defendant, there were four uncompleted buildings on the disputed farm. The plaintiff showed the court, their old building to the East and a farm land behind the building. On the farm of one of his witnesses to the North is the house of the defendant.

After reviewing the case of the parties, the trial Area Court Grade 1 Bukuru delivering its judgment on 5/5/85 held that:-

‘The farm land belongs to the plaintiff which he inherited from his father and awarded possessions of the said land to the plaintiff.

Dissatisfied with the judgment, the defendant appealed to the Customary Court of Appeal Plateau State sitting at Jos (YUSUFU YAKUBU – president and ILIYA SHITU COFWEN, JJ.CCA) and in a lucid judgment delivered by Y. Yakubu, president C. C. A. on 15/9/86, allowed the defendant’s appeal thereby reversing the judgment of the lower court. The plaintiff, dissatisfied, with the judgment of the said Customary Court of Appeal has now appealed to this court.

Originally three (3) grounds of appeal were filed with the Notice of Appeal (at pp. 34 to 35 of the Records of Appeal). By leave of this court on 19/9/90, the appellant was granted leave to file and argue one additional ground of appeal now numbered ground one. In effect four grounds of appeal are filed in this case. The grounds of appeal without their particulars are as follows:-

(1) That the Customary Court of Appeal lacked jurisdiction to hear and allow the respondent’s appeal since the Area Court Bukuru has no jurisdiction to try the case, situated at Bukuru in Jos Urban Area for want of jurisdiction.

(2) That borrowing of land by one person to another is a rule of Customary Law in Jos and that such land given out to the borrower still has its title in the owner. The Customary Court of Appeal misdirected itself in law when it failed to uphold this rule of Customary Law.

(3) That before a person gives another piece of land on loan the person giving the land to another person on loan must do so in the presence of the witnesses who have common boundaries with the land being loaned. The Customary Court erred in law by failing to give judgment to the appellant who gave evidence and called witnesses to reflect this rule of Customary Law.

(4) That the appellant’s father gave the land in dispute to the respondent’s brother on loan. And on the death of the respondent’s brother, the respondent wrongfully entered on the land and claimed ownership when the land was never given to him by the appellant. The Customary Court of Appeal wrongfully held that the land was loaned and or a gift to the respondent and that this has occasioned a miscarriage of justice.

Part of the Decision complained of

The whole Decision.

Reliefs Sought from the Court of Appeal.

(a) That the appeal be allowed and

(b) That the decision of the lower court be set aside and an order giving judgment for the appellant with costs to the appeal be entered.

The plaintiff will hereinafter be referred to as the appellant and the defendant as the respondent. Based on the four grounds of appeal, the appellant in his amended brief of argument filed on 9th July, 1991, (at pp. 3-4 of the brief) formulated the following four (4) issues for determination:-

1. Whether the Area Court Grade 1 Bukuru had the Jurisdiction to try this case in view of section 34(1) and Section 39 of the Land Use Act, 1978, which conferred jurisdiction on the High Courts alone to hear and determine dispute over land areas designated as URBAN AREA and whether the judgments of the Grade 1 Area Court Bukuru and the Customary Court of Appeal. Jos are null and void in view of their lack of jurisdiction.
2. Whether the Customary Court of Appeal was right to give judgment in favour of the respondent in the face of overwhelming evidence from the appellant and his witnesses to the fact, that the disputed land was given on loan by the appellant’s father to the respondent brother (deceased) and when the respondent has no title whatsoever to the disputed land.
3. Whether the Customary Court of Appeal was right in holding in its judgment, that the disputed land was “an out and out gift and not a revocable gift”. See page 29 of the record).
4. Whether the respondent can inherit the land in dispute when the land was borrowed to the respondent’s deceased brother (Zang Chung Gyang).

The respondent filed respondent’s brief of argument on 19th September, 1991. Not satisfied with the 4 issues formulated by the appellant, the respondent formulated the following two issues for determination:-

Respondent’s two issues for determination:-

1. Whether the trial court Bukuru had jurisdiction to try the case.
2. Whether the appellant established his claim under native law and custom as to entitle him to judgment.

As I have already stated, the appellant filed four grounds of appeal and formulated four issues for determination. This court and indeed, the Supreme Court, takes a disfavourable view of proliferation of issues for determination formulated from grounds of appeal and frowns at such practice. The principle governing the formulation of issues for determination is, that a number of grounds could where appropriate, be formulated into a single congruous issue and it is penalty undesirable to split issue in a ground of appeal see Dokun Ajayi Labiyi v. Alhaji Mustapha Moberuagba Anretiola & ors. (1992) 8 NWLR (Pt.258) 139 CA at p. 159.

Where there is a proliferation of issues, as in the case in the instant appeal, the Court of Appeal is free either to adopt the issues formulated for determination or to formulate such issues as are consistent with the grounds of appeal. See Labiyi v. Anretiola (supra).

In observance of this principle, in pursuit of the proper administration of justice in the instant case, I consider appropriate and consistent with the grounds of appeal, the two issues formulated by the respondent. I prefer the two issues formulated by the respondent to the four issues formulated by the appellant.

The respondent’s two issues for determination, which I have adopted as the issues for determination in this appeal, are precise, cogent and encompass the four grounds of appeal filed in this case. For the avoidance of doubt, the two issues for determination in this case are as follows:-

1. Whether the trial court Bukuru had jurisdiction to try the case.
2. Whether the appellant established his claim as to entitle him to judgment.

Upon hearing the appeal before us, P. O. Akiya, learned counsel for the appellant, adopted appellant’s brief of argument filed on 9th July, 1991, relied on it, and by way of emphasis, respectfully urged the Court to allow the appeal and set aside the judgment of both the Area Court and the Customary Court of Appeal, on the ground, that the trial Area Court lacked jurisdiction to entertain the case. He submitted, that there is evidence on record, that the land in dispute is in Bukuru, which is a designated Urban Area, and it was wrong for the Customary Court of Appeal to have affirmed the decision of the trial Area Court. Both decisions of the two courts are therefore a nullity.

Mr. M. A. Tende, learned counsel for the respondent, in reply, also adopted and relied on the respondent’s brief of argument dated and filed on 19th September, 1991. By way of elaborating and emphasising the respondent’s brief, learned counsel for the respondent, in oral argument submitted that it is the appellant who instituted the action at the Area Court Bukuru.

Mr. Tende, counsel for the respondent submitted, that the trial Area Court had no jurisdiction to try the matter and that there was no evidence on record, that the land in dispute is within the Urban Area. He however conceded that the said land is in Bukuru. He urged the court to dismiss the appeal.

The first issue which arises for determination in this appeal is issue number 1 (one):-

Whether the trial court Bukuru had jurisdiction to try the case

This issue is covered by ground 1 of the grounds of appeal. It is contended in appellant’s brief on issue 1 (one),-

(a) That the Area Court Grade 1 Bukuru had no jurisdiction to try the case in view of sections 34(1) and 39(1) of the Land Use Act 1978 and Edict No.7 of 1981- the Land Use Act 1978 – Designation of Urban Areas 1981.

(b) That the land in dispute is situated at Bukuru and Bukuru and Jos by Edict No.7 were designated Urban Areas – vide page 4 of the Edict re GREATER JOS.

(c) That by section 34(1) and 39(1) of the said Land Use Act, 1978, only the High Court of a State, shall have exclusive original jurisdiction in respect of any land designated an Urban Area.

(d) That the subject matter of the said suit before the trial Area Court Grade 1, Bukuru, is in the Urban Area of Jos and Bukuru; consequently, the Area Court has no jurisdiction to try the case. The case of Madukolu v. Nkemdilim & ors. (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt.4) 587 at pp. 589-599 is cited in support.

It is further submitted in the appellant’s brief, that it is trite law:-

(i) That where a court purports to exercise jurisdiction which it does not have, the proceedings before it and its judgment will amount to nullity. The issue being one of jurisdiction, is a fundamental one and can be raised at any stage of the proceedings, even in the Supreme Court for the first time. The case of Alhaji Baha Salati v. Alhaji Talle Shehu (1986) 1 NWLR (Pt.15) 198 at p. 199 is cited in support.

(ii) That parties cannot by consent confer jurisdiction upon a court or tribunal which by law has no such jurisdiction. Thus, the appellant by instituting the action at the Area Court Grade v. Bukuru could not confer jurisdiction on the court. The cases of R. Ariori & Ors v. Maraino B. O. Elemos & Ors; (1983) 1 S. C. 13 at p.16; (1983) 1 SCNLR 1 and Papadopoulos v. Papadopoulos (1926) 31 Probate Division p. 55 are cited in support.

Following the above submissions, the Lords of Appeal are urged in appellant’s brief to hold, that the trial and judgment of the Area Court Bukuru are a nullity together with the judgment and decision of the Customary Court of Appeal, and to allow the appeal.

In reply to issue number I (one) above-stated, it is submitted in the respondent’s brief of argument:-

(a) That since the issue of Land Use Decree, 1978 and Legal Notice No.7 of 1981 – the Urban Area Designation Edict 1981, were not raised in the trial Area Court, Bukuru or before the Customary Court of Appeal Jos, the question ought not be entertained by this court. The case of Ahinabina v. Enyimadu (1953) 12 WACA 171; and Ejiofodomi v. Okonkwo (1982) 11 S.C 74 at pp. 93-98 are cited in support.

(b) It is admitted in the alternative, that if this court is disposed to entertain the said ground of appeal, because it has raised a FUNDAMENTAL ISSUE OF JURISDICTION, there is no evidence on the record of proceedings before the court to sustain this ground. A party who intends to rely on the Urban Area Designation Edict must adduce evidence to show that the area where the land in dispute is situated falls within the designated Urban Area as it is not all land within a given place that is Urban.

It is submitted, that no evidence of a Surveyor was adduced to show that the area where the land in dispute is situated is within the designated Urban Area so as to oust the jurisdiction of the Area Court as contemplated by sections 34(1) and 39(1) of the Land Use Act 1978. The case of Dweye v. Iyomahan (1983) 2 SCNLR 135; (1983) NSCC 393 at 395-396 is cited in support.

It is submitted that this ground must fail since there is no evidence to support the ground, that the land in dispute is within the area designated “Urban Area” as contemplated by the Plateau State Legal Notice No.7 of 1981.

The issue of want of jurisdiction by a trial court and in the instant case, by the trial Area Court Grade 1, Bukuru in this appeal, is so vital, so fundamental a condition precedent, so important and critical, that it is the duty of this court and indeed every court of law, to determine the issue first, whenever at any stage, it is raised even for the first time before the Supreme Court, because if the issue succeeds, that is the end of the case, no matter how eminently or well conducted and decided. For this reason, it is the duty of all courts of law, before embarking on hearing a case, to consider and determine first, whether there is jurisdiction to entertain the matter in the first instance see Kalio v. Daniel-Kalio (1975) 2 S.C. 15; Barclays Bank of Nig. v. CBN (1976) 6 S.C. p. 175.

For the same reason, it is the duty of this court, to consider and pronounce on all the arguments raised on the issue in this appeal.

The issue of want of jurisdiction has been raised in a plethora of decided cases which are locus classicus on the point and reportedly pronounced upon by eminent justices in a myriad of eminent judicial dicta. They defy enumeration. It will F suffice to mention a few namely:-

In the case of Madukolu & Ors v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt.4) 587 at pp. 589-599, Bairamain J.S.C. held as follows:-

“A court is competent when;

(a) It is properly constituted with respect to number and qualification of its members;

(b) The subject matter of the action is within its jurisdiction;

(c) The action is initiated by due process of law.

(d) Any condition precedent to the exercise of its jurisdiction has been fulfilled.

Any defect in competence is fatal, for the proceedings are a nullity, however well conducted and decided the defect is extrinsic to the adjudication.”

In the case of Agnes Deborah Ejiofodomi v. R. O. Okonkwo (1982) 11 S.C. 74 at p.114, an eminent judgment of Aniagolu, J.S.C. (as he then was), where the issue as in the instant case is one of want of jurisdiction. One of the issues which came up for determination on Ejiofodomi v. Okonkwo (supra) was a challenge of jurisdiction, that by virtue of section 39 of the Land Use Act, 1978, the jurisdiction in respect of that case was exclusively vested in the High Court of Kano State by reason thereof, the District Court Kano, which heard the case was without jurisdiction. The objection taken in limine by respondent’s counsel, whether the defendant/appellant ought to be permitted to raise now, in the appeal, the issue of jurisdiction which was raised neither in the High Court nor in the Court of Appeal, was dismissed by a unanimous judgment of the Supreme Court.

Aniagolu, J.S.C., delivering the lead judgment of the Supreme Court in Ejiofodomi v. Okonkwo (supra) at p. 96 said

“As I understand Chief Williams’ argument on the matter, there was a veiled suggestion from him, that the ground(s) of appeal being one of law, this court by reason of section 213 of 1979 Constitution, has to allow the grounds, especially the one of jurisdiction to be argued”.

Continuing, Aniagolu, J.S.C. said:-

“I am in no doubt whatever, that this court possesses unfettered discretion to allow or refuse to argue, a point of law, on appeal, not raised in the court below and that as in so far as one can call it a fetter, the only inhibition is, that the discretion has to be exercised in accordance with principles and practice laid down by law and/or recognised by judicial precedents. This court in Fadiora v. Gbadebo & Anor (1978) 3 S.C. 219 at 248, while recognising, that a court of last resort, as a matter of practice, is competent to entertain a point of law raised for the first time before it, and when the justice of the case so dictates, it is expedient that it should entertain it, also acknowledged in its use of the word ‘may’, that it is discretionary.

The fact that the point of law involves substantial substantive point of law and that no further evidence could have been adduced which could effect it, are matters which could be taken into consideration in exercising the discretion. (see Abinabina v. Enyimadu. (1953) A.C. 207 at 213.”

Continuing, Aniagolu J.S.C. in Ejiofodomi v. Okonkwo (supra) at p.97 said:-

“An appellant’s right of appeal as of right does not confer on him unlimited right to argue any ground of appeal filed in exercise of that right. This court has discretion and indeed the duty, to refuse appellant leave, where the justice of the circumstances so dictates…”

It is therefore my view that nothing in section 220 of the Constitution has the effect of affecting, or in anyway abridging this discretion.

In the House of Lords’ case of Sutherland v. Thompson (1906) AC. 51 at 55, it was held:-

“In exercise of its jurisdiction under section 4 of the Appellate Jurisdiction Act, 1876, the House of Lords has a duty to determine what ought to be done in the subject matter of an appeal. It therefore has discretion to allow argument on points of law which were abandoned or not raised in the court below, but is averse to doing so unless a refusal would result in injustice. (Vol. 10 Halsbury’s Laws of England 4th Edition para 745).”

In Fadiora v. Gbadebo (1978) 3 S.C. 219 at p. 248, the court, after stating, the necessity for the court of last resort to allow a question of law to be raised for the first time in the interest of justice in an appropriate case, continued at pp. 248-249 and said:-

”The-rule of practice, however, is subject to the qualification, that the court of last resort may refuse, to entertain the question of law sought to be raised for tile first time, if it is satisfied that the court below would have been in a more advantageous position to deal with the matter”.

A similar view has been expressed by the Court of Appeal in England by Sir Raymond Evershed M.R. in the case of United Dominions Trust Ltd. v. Bycroft (1954) 3 E.R .455 pp. 459 at 450 thus:-

“As a matter of principle the Court of-Appeal has always been strict in applying the rule, that an appellant from a county court, unless the other party consents, cannot be allowed in this court to raise a new point of law not raised below … It is not in accordance with the public interest that a party who had ought a case in the county court and been defeated should then raise in this court a new point and put his case in an entirely different way as matter of law and so make the other party hitherto successful, litigate the matter again at the risk of having to pay the costs not only below, but in this court. Within the scope of a general issue, in the course of the trial of that general issue, a party’s case might be put in many ways, and it would not be difficult to imagine, the putting of a case before an appellate court in so different a way, although within the general issue, as to amount quite plainly to a new point of law… One of the reasons for the court’s attitude is the consideration, that if the new point of law sought to be taken in the appellate court, had been taken in the court below, evidence might have been taken at the court below to meet it. See Smith v. Bakers (1891) AC 325”.

Citing the case of Akpene v. Barclays Bank of Nigeria (1977) 1 S.C.47 in Ejiofodomi v. Okonkwo (supra) at p.114, Aniagolu, J.S.C. said:-

“It would follow, that where no further evidence could have been adduced which would affect the decision of the case, the court, in order to prevent a possible miscarriage of justice, would allow the new point to be taken.”

In Ejiofodomi v. Okonkwo (1982) 11 S.C. 74 at p.114 the Supreme Court held that:-

“A challenge to jurisdiction of the court can be based on varied and diverse points for example:-

(a) that the Judge was not properly appointed,

(b) that the matter in issue is outside the limits of the territorial jurisdiction of the court.

(c) that the claims is above the justiciable power of the adjudicating court,

(d) that the period allowed the court to embark upon the hearing of the case has expired.

Each issue there, is a matter of jurisdiction, but quite different, one from another”.

Based on the foregoing preview of the authorities of decided cases on the issue, which I have explored and considered at considerable length, I do not agree with the submissions in respondent’s brief, that the new issue of jurisdiction which was neither raised in the trial Area Court nor in the Customary Court of Appeal below, and now raised in this court for the first time, should not be entertained. The point is validly raised and very well taken by this court in view of the mandatory provisions of section 34(1) and 39(1) of the Land Use Act, 1978 and Order 3 Rule 2(6) Court of Appeal Rules, 1981.

There is however, more to the case, having regard to the provision of the Plateau State Notices, Edict No.7 of 1981 – The Land Use Act 1981 – Designation Urban Area 1981; the subject matter in dispute and the evidence adduced in the case, on record.

It is submitted in respondent’s brief, that if this court is disposed to entertain the said ground of appeal, because it has raised a fundamental issue of jurisdiction, there is no evidence on the record of proceedings before the court to sustain this ground. It is further submitted in respondent’s brief that a party who intend to rely on Urban Area Designation Edict must adduce evidence to show, that the area where the land in dispute is situated, falls within the designated Urban Area, as it is not all land within a given area is Urban.

Section 34(1) of the Land Use Act, 1978 provides as follows:-

“34(1)The following provisions of this section shall have effect in respect of land in Urban area vested in any person immediately before the commencement of this Decree”, while, section 39-(1) of the Act provides as follows:-

“39(1) The High Court shall have exclusive original jurisdiction in respect of the following:-

(a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted by him under this Decree; and for the purposes of this paragraph proceeding include proceedings for a declaration of title to a statutory right of occupancy.

(b) Proceedings to determine any question as to the persons entitled to compensation payable for improvements under this Decree”.

It is trite to say, that by the combined effect of sections 34(1) and 39(1) of the Land Use Act, 1978, the High Court of a state has exclusive jurisdiction in respect of land in Urban Area.

It is also trite to say, that by virtue of the Plateau state Legal Notice Edict No. 7 of 1981- the Land Use Act 1978 – Designation of Urban Area 1981, Order 1 and 2 at page 4 headed:

“CHAPTER JOS: MAP. Reference: Nigeria 1:50,000 NRC -11 (168 M.S.)”, that “All that parcel of land at Jos and Bukuru and their environs in Jos Local Government Areas of Plateau State of Nigeria, whose boundaries are as follows:-

Starting from the triangulation point YK 1456 about 2.4 km S.W. of Bukuru road, whose national grid co-ordinates are 639218.56WN and 708 806.55MS the boundary runs for a distance of 3.3 km on a bearing 03 degree 001…. YK 1456 which is the starting point, thus enclosing the area which is the Greater Jos Urban Areas. All bearings given are referred to National Grid North, the High Court of a State, has exclusive jurisdiction over an area of land within a designated Urban Area.

The Land Use Act 1978 – Designation of Urban Areas, 1981 provides as follows:-

ORDERS 1 AND 2

“1. This order may be cited as the Designation of Urban Areas Order, 1981 and shall be deemed to have come into operation on the 15th day of May, 1981”.

“2. The term specified in Column 1 of the Schedule thereto are, for the purpose of the land Use Act, 1978, hereby designated as Land in urban area and the extent of each such town shall be set out in column 2 thereof opposite the town”.

I have read in vain, through the record of proceedings in this case, and failed to see any evidence on record, that the land in dispute is in an urban area or within the designated Urban Area in Bukuru. It is not enough to allege that the Land is in Bukuru, for it is not all land in Bukuru, that is designated urban area. Such a designated Urban Area in Bukuru must fall within the boundaries whose triangulation and national grid co-ordinates are described in Edict No.7 of 1981 – Land Use Act 1978 – Designation of Urban Areas 1981, Orders 1 and 2 re Greater Jos in respect of all that parcel of land at Jos and Bukuru.

I am therefore, of the firm view, that a party who pleads or alleges, the land in dispute is in an urban area under section 34(1) of the Land Use Act, 1978, or within a designated urban area, under the Land Use Act 1978 – Designation of Urban Area Edict/Law, must adduce concrete evidence in the nature of a map to sustain that contention so as to oust the jurisdiction of the Area Court by virtue of section 39( I) Land Use Act, 1978, See Dweye v. Iyomahan (1983) 2 SCNLR 135; (1983) NSCC 399 at pp 395-396.

In the case of Rufai v. Olugbeja (1986) 5 NWLR (Pt.40) 162 at p.169 Wali, J.C.A. (as he then was) said:

“For the appellant to succeed he must adduce additional evidence of a map showing that the land in dispute at Ngwa Sanusi new Extension Kaduna is designated Urban Area of Kaduna State (Designation of Land in Urban Area) order 1980”.

In an unreported case of Ijoh v. Pius Awuna CA/J/32/86 decided on 16th October, 1986, it was held, that Urban Area cannot be presumed but must be specifically averred and proved at the trial per Agbaje, J.CA. (as he was)

“I have no doubt that if the premise upon which counsel for the plaintiff based his argument existed, his arguments cannot be faulted. A thorough look at the relevant passages of the plaintiff’s statement of claim which I have quoted above will show, that no where in it is it pleaded, that the land in dispute is in an Urban Area. All that is pleaded the statement of claim, is that the land in dispute is in Makurdi. To my mind, this is not synonymous with an allegation that land in dispute is in an Urban Area”.

In the instant case, where there was no pleading in the Area Court Grade 1, Bukuru, there is no iota of evidence on record, let alone by a map, that the land in dispute is in an Urban Area or within the designated Urban Area of Bukuru. I will therefore resolve issue number one against the appellant and ground 1 (one) of the grounds of appeal upon which issue one is formulated must also fail and hereby fails.

It is evidently clear from the foregoing considerations that the High Court of a State does not have exclusive original jurisdiction over the land in dispute. As a matter of fact it is expressly and explicitly stated at page 3 line 8 of the record of proceedings in the said Area Court Grade I, Bukuru in Suit No.CV.421/844/Date 27/12/84 in the instant case as follows:-

“Cause of Action: Land dispute on Birom custom”‘

On the foregoing, I hold, that the Area Court Grade 1 Bukuru, had jurisdiction to entertain and try the case as it did. The land in dispute was within its territorial jurisdiction and therefore neither its proceedings nor that of the Customary. Court of Appeal is a nullity.

It has been submitted in the respondent’s brief, that it was the appellant who initiated and instituted the action in the said Area Court, i.e the party raising want of jurisdiction of the said Area Court. My answer to this is based on decided authorities.

It is trite law, that a party cannot by acquiescence, waiver, submission or consent confer jurisdiction on court, a jurisdiction it has not got. See A. -G., Bendel State & 2 Ors v. P.L.A. Aideyan (1989) 4 NWLR (Pt.118) 646; Chief Etudor Utih & Ors. v. Jacob Umurhurhru Onoyivwe & 5 Ors. (1991) 1 NWLR (Pt.166) 166 at p. 264, Aka Bashorun v. Government of Gongola State (1991) 1 NWLR (Pt. 168) 512 at p. 524; Papadopoulos v. Papadopoulos (1926)-(1931) PLR 55.

Issue (2) i.e., ‘whether the appellant established his claim as to entitle him to judgment,’ borders on the undisputed evidence before the trial court. Issue two covers grounds 2, 3 and 4 of the grounds of appeal.

The appellant’s issues Nos. 2, 3 and 4 argued separately in that brief are hereby taken together in issue 2 above stated. It is submitted in the appellant’s brief, that the Customary Court of Appeal was wrong, in allowing the respondent’s appeal in that court, in the face of overwhelming, unchallenged evidence of the appellant and his four witnesses before the Area Court. It is further submitted, that since the evidence of the appellant and his witnesses were not challenged by the respondent, the appellant had established his claim and was entitled to judgment see Nwabuoku v. Ottih (1961) 2 SCNLR 232; (1961) All NLR (Pt.3) 487 S.C.

It is also submitted, that the unchallenged evidence, was, that the disputed land was borrowed to the respondent’s deceased brother Zang Chang Gyang to farm, which should be returned to the appellant and his relations when they grow up, that the Customary Court of Appeal was wrong in holding in its judgment, that the land in dispute was an out and out unrevocable gift.

The appellant is at a loss how the learned Judges of the customary Court of Appeal got the fact. This, it is submitted, was mere speculation which occasioned miscarriage of justice.

The appellant in his brief submitted further, that the respondent took the disputed land by force wrongly. And because title to the land is not in respondent’s deceased brother, the respondent cannot inherit the land and there is no evidence from the respondent that Zang Chang Gyang is the owner of the land to entitle respondent to inherit it. On this ground, the court is urged to allow this appeal.

In reply to issue 2, the respondent’s brief adopted the reasoning of the learned Judge of the Customary Court of Appeal where they said in summary as follows:-

(i) The customary law is a question of evidence which has to be proved by facts,

(ii) That it is a cardinal principle of law, that he who alleges must prove.

It is submitted, that the appellant’s claim was based on the primary fact which is disputed, that the land in dispute was a loan or a gift to the respondent’s deceased brother. The question is, was the appellant able to establish a loan or a gift of the disputed land before the trial court, so as to entitle him to judgment? It is submitted, that there was no evidence of Birom Custom at all by any of the witnesses for the plaintiff to enable the court in coming to the conclusion one way or the other, whether the disputed land was in fact, a loan or a gift revocable or an out and out unrevocable gift. It is submitted, that the Customary Court of Appeal’s reference to out and out gift was mere inference from the records before it, which is no evidence of misapplication of customary law.

Citing section 145 of the Evidence Act, with which I am in agreement, which provides:-

“Section 145 Evidence Act: When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner”.

The Customary Court of Appeal applied section 145 Evidence Act, to the undisputed evidence of the respondent in summary, at page 6 of the record of proceedings; that the respondent was born on the land in dispute. He had children in the land who have also had their own children. The respondent was at the time of the trial of the case 61 years of age. The Customary Court of Appeal after due consideration of the evidence adduced at the trial Area Court and the provisions of section 145 Evidence Act held, that the burden of proving a better title to the land is on the appellant not on the respondent. It held that the appellant has not discharged this burden: See the case of Anthony Oyeyiola v. Stephen Adeoti (1973) NMLR 103. The Customary Court of Appeal also held, that it is manifestly established, that none of the witnesses called by the appellant, witnessed the said gift or loan of the disputed land. The Customary Court of Appeal went on and cited Professor Nwabueze in his book titled: “Nigeria Land Law” at pp. 367-388 where it is thus stated:-

“Customary Law requires no writing for transfer of land by way of sale or gift. In lieu of writing, there must be actual handing over of the land to the donee in the presence of witnesses and an acceptance by him of the gift, acceptance being so much of the customary law as the delivery of possession in the presence of witnesses without which it is invalid: see the learned Author – Professor Nwabueze in his book titled: Nigerian Land Law at pp. 367-388, see the cases ‘therein cited – Bankole v. Tapo (1961) 1 All NLR 140; Hammond v. U.A.C. Ltd. (1935) 2WACA385 (Ghana) Kwakuwah v. Nayenna (1938) 4 WACA 165 (Ghana).”

The Customary Court of Appeal, on the above held, that the appellant could not have been said to have prove a gift of the said land by his late father to the respondent’s late brother and the appellant’s claim must fail.

Generally, an appeal is a continuation of the original suit rather than the inception of a new action. Because of this, in an appeal, parties are confined to their case as pleaded in the court of first instance. An appeal being a judicial examination by a higher court of an inferior court, it follows that such examination should normally be confined to the facts and issues that came before the inferior court for decision.

Since all appeals are by way of rehearing (Order 3 Rule 2(1) Court of Appeal Rules 1981). I am satisfied. after a proper review of the evidence adduced at the trial Area Court and the judgment and the decision of the Customary Court of Appeal, on appeal to it, that the appellant did not at the trial court, adduce unrebutted or unchallenged evidence which establishes in his claim against the respondent in terms of his claim/writ to entitle him to judgment.

At page 3 line 8 of the printed record of proceedings, before the trial Area Court is written thus:-

“Cause of Action: Land in Dispute: Birom custom”.

I am satisfied, that no evidence of Birom customary law in respect of the gift/loan of the disputed land was adduced throughout the proceedings before the trial Area Court. None of the appellant’s four witnesses was present when the alleged gift/loan of the land in dispute was made by the appellant’s late father to the late brother of the respondent.

The appellant was not able to prove a better title to that of the respondent who had been in possession of the land in dispute for about 61 years certain. The case of Nwabuoku v. Offih (1961) 2 SCNLR 232; (1961) All NLR (Pt.3) 487 at p. 488 cited in the respondent’s brief, does not apply to the instant case of which it is the very opposite. The onus lies on the plaintiff who is the appellant in this case, to satisfy the court, that he is entitled on the evidence brought by him to a declaration of title. If this onus is not discharged, the weakness of the respondent’s case will not help the appellant. Such a judgment decrees no title to the respondent, he not having sought the declaration. So, if the whole evidence in the case, does not establish the appellant’s case, he fails in the decree he seeks and judgment must be entered for the respondent. See Kodilinye v. Odu (1935) 2 WACA 336 at p. 337. Accordingly, I affirm the decision of the Customary Court of Appeal in part, i.e.-that the appellant did not establish his claim at the trial Area Court Grade 1, Bukuru, to entitle him to judgment.

As to the other part of the decision of the Customary Court of Appeal i.e.

‘That the land in dispute is an out and out gift/loan to the respondent’s late brother

I hold it to be mere speculation, an unnecessary exploration on a journey unsolicited. There is no such evidence on the printed record of proceedings at the trial court by any witness. And I ask, where did the Customary Court of Appeal find that piece of evidence of an out and out unrevocable gift? See Seismograph Ltd. v. Ogbeni (1976) 4 S.C. 85

The Customary Court of Appeal held, that the appellant did not establish a gift/loan of the land in dispute, why should it go further to say that the gift or loan of the land not established, was an out and out gift which is not revocable? That was mere speculation and unnecessary conjecture, concocting or scrounging for evidence which may have the effect of raising one type of defence or the other in answer to the claim. See The State v. Aibangbee & Anor (1988) 3 NWLR (Pt.84) 548 at 551.

I however, hold, that it is not a question that must determine the appeal. It therefore did not occasion miscarriage of justice as to affect the decision reached by the Customary Court of Appeal or indeed this court. On the totality of the evidence before the trial court and the law, I hereby resolve issue 2 against the appellant. Ground 2, 3 and 4 of the grounds of appeal on which issue 2 is formulated must also fail. Accordingly, on all the issues and grounds of appeal filed, this appeal fails. It lacks merit and is hereby dismissed with costs in favour of the respondent’s which I assess at N450.00 (Four Hundred and Fifty Naira):

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Other Citations: (1994)LCN/0212(CA)

Ameh Ebute & Ors V. The State (1994)

LawGlobal-Hub Lead Judgment Report

SULU-GAMBARI, J.C.A.

The 1st to 6th appellants are in custody having been refused bail by the learned Chief Judge of the Federal High Court on the 22nd of June, 1994. They are facing a charge brought under S.41(a) of the Criminal Code for an offence of treasonable felony which is stated as follows:-
“That you Ameh Ebute; (2) Chief Polycap Nwite; (3) Rev. Mac. Onyemethi Nwulu; (4) Onyeka Amadi Okoroafor; (5) Abu Ibrahim and (6) Bola Ahmed Tinubu and others at large on the 30th day of May, 1994 at Lagos in the Lagos Judicial Division of the Federal High Court formed an intention to remove during his term of office other than by Constitutional means the Head of State of the Federal Republic of Nigeria and Commander-in-Chief of the Armed Forces, General Sani Abacha as Head of State and manifested such intention by issuing a Press Statement declaring the Federal Government illegal and thereby committed an offence contrary to Section 41 (a) of the Criminal Code Act 77, Laws of the Federation, 1990 and punishable under the same section.”

The first and second appellants were arraigned before the learned Chief Judge on the 6th day of June, 1994, on two counts:-
(i) treasonable felony; and
(ii) Conspiracy.

The two appellants applied for bail which the learned trial judge refused giving as reason the seriousness of the offence, the gravity and severity of the punishment attached thereto and that there are others still at large.

The 3rd, 4th and 5th appellants were arraigned before the same trial judge on the 14th day of June, 1994 on similar counts as the 1st and 2nd appellants. The learned trial judge considered their applications for bail and granted same, saying:-
“I have taken into account the very nature of the substance of the charge and I do not consider anything grave enough or injustice enough to prevent me from exercising my discretion of granting bail and I do so.”

On the 22nd day of June, 1994, by leave of the trial court, the Director of Public Prosecution amended the whole charges by filing a single charge against all the 1st to 5th appellants and included a new accused as the 6th appellant in a charge as set out earlier in this judgment.

Following this amendment, the learned Senior Advocate for all the 6 accused persons at the trial court applied for their bail pointing out that the court had already granted bail to the 3rd, 4th and 5th appellants on the same count.

In opposing the application for bail for all the appellants, the learned Director of Public Prosecutions, Lagos State Ministry of Justice gave as reason the seriousness of the offence and the gravity and severity of the punishment thereto.

In refusing bail for all appellants, the learned trial judge said that in view of the proof of evidence, particularly the press release and the statement of the majority of the accused persons, different consideration has arisen for him to refuse bail; and he so refused and revoked the bail he had already granted to the 3rd, 4th and 5th appellants on the 14th of June, 1994.

The learned counsel for the appellants filed a total of eight grounds of appeal which he argued together. The gravamen of his submissions is to the effect that (i) the learned Director of Public Prosecutions opposed the bail on the ground of the seriousness of the offence and the gravity and severity of the punishment; whereas, the trial judge relied on proof of evidence as constituting changed circumstances for deciding the issue of bail.

Learned Senior Advocate argued that the learned trial judge should not have considered what was not canvassed before him by the Director of Public Prosecutions because if the prosecution had raised the question of the proof of evidence as constituting changed circumstance, he would have been in position to respond to that. This opportunity had been denied him by the way the learned trial judge considered the matter and consequently, the appellants have not been given a fair hearing.
I think there is merit in this submission. The law is clear on this matter that the court should not make a case for a party or create a situation where fair hearing is denied to a party as in this case. See Nwokoro v. Onuma (1990) 3 NWLR (Pt 136) E 22: Mbele v. The State (1990) 4 NWLR (Part 145) 484 SC. and The State v. Onagoruwa (1992) 2 NWLR (Pt 221) 33 SC.
(ii) The learned Chief Judge stated that there was a changed circumstance in view of the proof of evidence but he did not indicate the factors therein which informed his discretion to revoke the bail already granted to the 3rd, 4th and 5th appellants and to refuse the bail of the 1st, 2nd and 6th appellants.

Learned Senior Advocate submitted with much conviction that the trial court having granted bail to the 3rd, 4th and 5th appellants ought not in law revoke such bail unless there is evidence of some changed circumstance placed before him because such situation is analogous to res judicata – which is issue estoppel. He cited R. v. Nothingham Justices exparte Davies (1980) 17 Cr. App. Rep. 178 at 182 – 183.

I feel inclined to agree with him and wish to add that a court exercising judicial discretion must do so judicially and make plain what material it took into consideration in the exercise of that discretion. The appellate court in such circumstance may interfere with the exercise of the judicial discretion of the lower court if it is shown that the discretion has been wrongly exercised or it took into consideration irrelevant materials or failed to consider relevant material in arriving at his decision – University of Lagos v. Aigoro (1985) 1 SC. 265 at 271 (1985) 1 NWLR (Pt.1) 143.

In the exercise of a discretion, the court must state the reason relied upon – see Ceekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (Part 222) 132 SC. This is so because the duty on judges or Courts is to do substantial justices: see Akpan v. The State (1992) 6 NWLR (Part 248) 439 SC.

In the case of the 6th appellant, the facts are that he voluntarily submitted himself for arrest by the police. This fact was not adverted to by the learned trial judge in considering the 6th appellant’s bail. Before this court, the learned Director of Public Prosecutions did not wish to oppose the appeal of the 6th appellant on this ground. I think this was forthright to him and I commend him. I agree that the 6th appellant’s bail ought to have received favourable consideration.

In the circumstance, I think the learned Chief Judge erred in his exercise of the judicial discretion by refusing to grant bail to the appellants. I therefore allow the appeal and make the following orders:-
(i) Bail is granted to each of the 6 appellants in his own recognizance.
(ii) Each of the appellants shall within 24 hours hereof deposit his passport (s) with the Deputy Chief Registrar of this court pending the determination of his charge before the trial court.
(iii) Each of the appellants should show his presence to the Deputy Inspector General in charge of C. I. D. Alagbon, Alagbon Close, Lagos, or any other officer designated by him in an area nearest to the place of abode of the particular appellant on every Friday at 10 to 11a.m. of the week beginning from 29th day of July, 1994 pending the determination of his charge before the trial court.

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Other Citations: (1994)LCN/0211(CA)

Alhaji Musa Bello & Anor V. Farmers Supply Company (Kds) Limited (1994)

LawGlobal-Hub Lead Judgment Report

UMARU ABDULLAHI, J.C.A. 

This appeal is against the judgment of Kaduna State High Court delivered on 20th day of February, 1992.

The respondent in this appeal sued the appellants and two other parties, foreign based companies called Folkrose Limited and Ratten Limited before the Kaduna High Court claiming a total sum of 422,190.08 U.S. Dollars (Four hundred and twenty-two thousand, one hundred and ninety dollars, eight cents) or the equivalent of N6,586,165.20, being money had and received and/or paid by the respondent to the appellants and the two other companies for the supply of certain agro-chemicals and Cuban sugar bags, which were not supplied.

The suit was brought on the undefended list suing the present appellants and the two foreign based companies mentioned above as 1st, 4th, 2nd and 3rd defendants respectively.

I think for the purpose of clarity and also in view of the way the appeal was approached by both learned counsel for the parties, it will be better to set out the writ of summons in full. It reads as follows:-

Application for the issuance of a writ of summons marked in the undefended list pursuant to Order 22 rules 1-5 of the High Court (Civil Procedure) Rules, 1987.

Kindly cause a writ of summons marked in the “Undefended List” pursuant to Order 22 rule 1 – 5 to issue against the defendants at the instance of the plaintiff in the following terms:

1. Against the 1st and 2nd defendants (jointly and severally) the sum of $143,800 (One Hundred and Forty Three Thousand Eight Hundred Dollars) or its Nigerian Naira equivalent of N2,243,280.00 (Two Million, Two Hundred and Forty three Thousand, Two Hundred and Eight naira) being money had and received and or paid by the plaintiff to the said defendants for the supply of certain agro-chemical to wit:

Quick concentrate, 24 D Sel Amine and Renster (PL) 2 SEC upon the plaintiff’s purchase Order No.311, 312, and 313 variously dated 29th June, 1990 and 3rd July, 1990 – all with 180 days as the delivery cum validity period and which orders the defendants have failed, neglected or refused to honour despite repeated and persistent demands by the plaintiff.

2. Against the 1st and 3rd defendants (jointly and severally), the sum of $87,874.08 (Eight Seven Thousand, Eight hundred and Seventy Four Dollars and Eight Cents) or its Nigerian Naira equivalent of N1,370,835.60 (One Million, Three Hundred and Seventy Thousand, Eight Hundred and Thirty Five Naira, Sixty Kobo) being money had and received and or payments made by the plaintiff to the said defendants for the supply of 61,024 No. Cuban Sugar Bags upon the plaintiff’s purchase Orders Nos.314 and 315 both dated 4th July, 1990 with 180 days as the validity cum delivery period and which orders the defendants have failed, neglected or refused to honour their contractual obligations.
3. Against the 1st and 4th defendants (jointly and severally) the sum of $190,516.00 (One hundred and ninety thousand five hundred and sixteen dollars) or its Nigerian Naira equivalent of N2,972,049.60 (Two Million, Nine Hundred and Seventy Two Thousand and Forty Nine Naira, Sixty Kobo) being money had and received and or payment made by the plaintiff to the said defendants for the supply of certain agro-chemicals to wit: Ingram Combi 500 EC, Gradonprim A500 FW, Apron plus 50 DS Polytrine 440 EC upon the plaintiff’s purchase Orders Nos. 315, 317, 318 and 319 all dated 20th July, 1990 with 180 days as the validity and or period within which delivery is to be made and which orders the defendants have failed, neglected or refused to honour, despite repeated and persistent demands by the plaintiff.

Total value of payments $422,190.08

Total value of payments (Nigerian Naira Equivalent) N6,586,165.20

Consideration has totally failed due to non-delivery of either the relevant documents or goods by the defendants to the plaintiff.

Defendants have failed, refused and or neglected to discharge their obligation by the tendering of genuine, authentic and valid shipping documents covering the ordered goods and or the goods to the plaintiff in spite of several demands.

The plaintiff further claims on each of the stated sums or total sums interest at the rate of 21% from 21st January, 1991 until judgment is delivered and thereafter at the rate of 10% until eventual liquidation.

Dated at Kaduna this 8th day of January, 1992.”

The writ of summons was accompanied with a lengthy 37 paragraphs affidavit. In paragraph 36 of the affidavit, it was averred that the defendants have no defence to the suit.

The writ of summons in respect of all the four defendants was served in the office of the 1st defendant now 1st appellant, which is also the place of business of the 4th defendant now 2nd appellant, on the personal assistant to the 1st appellant, one Alh. Mohammed Ali.

The said Mohammed Ali tried to reach the 1st appellant, who was then outside the country. He succeeded on 4/2/92 and 1st appellant instructed Mohammed Ali to forward the papers to the present learned counsel for appellants.

On 5/2/92, learned counsel for appellants prepared and filed a motion on notice praying for the following orders:-

(1) An order enlarging the time within which the defendants/applicants should enter their notice of intention to defend.

(2) An order deeming the annexed notice of intention to defend exhibited hereto as Exhibit’ A’ as properly filed and served; and for such other orders as this honourable court may deem fit to make in the circumstances.

The application was equally supported with an affidavit explaining the reasons for the delay as well as averring that the defendants have a very good defence to the case and that in the interest of justice the matter should be transferred to a general cause list and determine same on the merits.

I think it is important to mention at this juncture, that the motion for extention of time within which to enter notice of intention to defend the suit, the notice of intention to defend the suit were supported with one joint affidavit.

On the 6th of February, 1992, when the learned counsel for the parties appeared in court, learned counsel for appellants raised the issue that the two foreign companies, as 2nd and 3rd defendants had no business office in Nigeria and no leave was obtained to serve them outside jurisdiction of the court. The learned counsel for respondent conceded to the issue raised by the counsel for appellants about the validity of services on the 2nd and 3rd defendants and he made an oral application to withdraw the action against the two defendants. The application was granted and consequently the 2nd and 3rd defendants were struck off as parties in the suit. Thus leaving the present two appellants.

The matter was then adjourned to 20/2/92 for the motion on notice of intention to defend the action. The motion was moved on that day and no objection was raised.

In a short ruling, the trial court ruled as follows:-

“Court: Very well, defendants give (sic) leave to file their (sic) intention to defend out of time. The annexed notice is deemed file (sic) and served subject to payment of necessary fees.”

The learned counsel for appellants, then moved and prayed the court to transfer the action to the general cause list.

The learned trial Judge then wrote his ruling and it reads as follows:-

“Court: I do not call on Mr. Oredola to reply, Order 22 rule 3(1) provides that if a defendant files a notice of intention to defend the suit “together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just”.

The defendants have just been given leave to file their notice of intention to defend out of time. This is sequel to their application on notice, dated the 5th day of February, 1992 but filed on 6th day of February, 1992. The application for extention of time was accompanied as usual, by an affidavit in support of the application for extention of time. The notice of intention to defend was annexed to the application and marked as “Exhibit A”. However, the notice of intention to defend is not accompanied by an affidavit attached to it, disclosing a “defence on the merit”.

The notice of intention to defend is therefore grossly defective as it has not complied with Order 22 rule 3(1). It is the affidavit that will disclose a defence on the merit, to enable the matter to be transferred to the general cause list. If there is no affidavit, then there is nothing before this court to exercise its discretion judicially and judiciously in favour of the defendants/applicants. I think this is a very bad way of representing a client and borders on incompetence.

For what it is worth, one would mention the affidavit in support of the application for extention of time to file the notice of intention to defend. Several references have been made to 2nd and 3rd defendants who are not parties in this suit, having been struck out on 6th February, 1992. How incompetent and careless to still refer to them in this application before me today.

Further, paragraphs 4(o) and (p) depose to the fact that what the plaintiff deposed to in its affidavit is not correct and that the defendant have a “very good defence to this case”. This affidavit is not the affidavit in support of notice of intention to defend so it cannot by any stretch of the imagination be the one meant to disclose a “defence on the merit to the case. Even if it is remotely argued, then it would be sufficient to say that the paragraphs which are supposedly incorrect in the plaintiffs affidavit, have not been spelt out and the nature of the errors given, for this court to determine one way or the other. It is certainly not sufficient to give notice to the plaintiff for it to be able to answer by way of another further and better affidavit. Also, the Supreme Court has already stated that just to aver that a party has a good defence to the case” is not enough.

For all the above reasons, the application to transfer the matter to the general cause list for determination, completely lacks merit and is hereby dismissed. Since I had adjourned this matter to today for hearing, and since there is no defence on the merit, judgment is hereby entered for the plaintiff against the 2 defendants in this suit, to the sum of $422,190.08 or the equivalent value in naira of N6,586.165.20 with interest at 10% until judgment sum is totally liquidated.”

The appellants were not happy with the ruling and they appealed to this Court. The appellants filed jointly ten grounds of appeal.

Briefs of arguments were filed and exchanged. The learned counsel for appellants also in a joint brief identified five issues for determination arising from the 10 grounds of appeal.

The issues are as follows:-

“(1) Whether the learned trial Judge was right in law when he held that the appellants did not make out a defence on the merits and thereby refused to transfer this case to the general cause list because the appellants’ facts for Extention of time within which to file notice of intention to defend and the facts for the notice of intention to defend were contained in one affidavit.

(2) Whether the learned trial Judge properly directed himself when he entered judgment for the whole sum of N6,586,165.20 against the appellants and in view of the fact that the other two parties viz: Folkrose Limited and Ratten Limited had earlier been withdrawn from this suit by the respondent?

(3) Whether on the basis of the facts before him the learned trial Judge was right in law to adjudicate on this case and thereby treated the parties in this case as properly joined in one suit.

(4) Whether on the totality of the evidence before the lower court, the respondent proved its case and was entitled to judgment for the whole sum of N6,568.165.20 against the appellants jointly and severally?

(5) Whether the learned trial Judge rightly assumed jurisdiction over this case in view of the non-compliance with order 5 rule (1) and (8) of the Kaduna State High Court (Civil Procedure) Rules, 1987.”

For his part, the learned counsel for respondent identified four issues for determination. They read as follows:-

(i) Whether on the affidavit evidence before the learned trial Judge, he was right to have held that the appellant did not disclose a defence on the merit and thereby entitle him to refuse to transfer the suit to the ordinary cause list as he did.

(ii) Whether on the State of the affidavit evidence before the learned trial Judge and having regard to the fact that the original 2nd and 3rd defendants were withdrawn from the suit, the amount of N6.586,165.20 (Six million five hundred and eighty-six thousand, one hundred and sixty-five naira twenty kobo) or the Dollar equivalent of $422.190.80 (four hundred and twenty-two thousand, one hundred and ninety Dollars, eight cent) awarded to the respondent and against the appellants jointly is justified and if not, what amount is the respondent entitled to on the state of the affidavit evidence and against whom of the appellants.

(iii) Whether or not there was misjoinder of parties in the suit and if not what is its effect on the proceedings before the trial court.

(iv) Whether the proceedings before the trial court were in anyway vitiated by procedural irregularities regard be had of the form of the writ used, the fact that it was signed by the trial Judge and the fact that the appellants did not raise any objection either orally or by way of motion to the competence or the suit at the trial court on these grounds.”

In my view, the issues identified by the learned counsel for appellants are more germane to the determination of this appeal. I shall adopt them.

In his submission under issue number one, the learned counsel for appellant contended that the learned trial Judge was wrong in holding that the appellants did not make out a defence on the merit and consequently refused to transfer the suit to the general cause list for determination on the merits. Learned counsel maintained that the learned trial Judge was wrong to hold that the notice of intention to defend had no affidavit attached to it when in fact there was an affidavit attached to the joint motion for Extention of time to file notice of intention to defend as well as the notice of intention to defend. Learned counsel contended that. There is nothing in Order 22 rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules 1987, on which the learned trial Judge placed reliance, which precludes the using of a joint affidavit for the two motions placed before the trial court. Learned counsel for appellants went further to contend that the learned trial Judge himself after holding that there was no affidavit in support of the motion for notice of intention to defend, turned round to consider some paragraphs of the same joint affidavit to make another finding that the affidavit did not disclose a defence on the merit.

Learned counsel submitted again that the learned trial Judge favoured technicalities in closing his eyes to the defence of the appellants. In the circumstances the learned trial Judge did not exercise his discretion judicially and judiciously in the matter.

Learned counsel for appellant extravagantly went into wide area and citing authorities not quite relevant to the peculiar nature of this case, particularly the cases of U.T.C. (Nig) Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244 where the Supreme Court held that even where a defendant to a suit on the undefended list files a statement of defence instead of a notice of intention to defend, the Court cannot ignore it. Learned counsel also referred to the case of Adjarho v. Aghogborwia & Ors (1975) 1 S.C. 17 in support of the proposition of law, that a statement of defence filed anytime before judgment must be considered by the court and will generally prevent the plaintiff from obtaining judgment.

Clearly, those authorities and others cited by the learned counsel for appellants are not relevant to the peculiar nature of this case. In this case no statement of defence has yet been filed. At best there were only few paragraphs in the affidavit filed in support of the motion for Extention of time to file notice to defend, which was granted by the learned trial Judge and also notice of intention to defend, which the learned trial Judge rejected.

For his part, the learned counsel for respondent submitted that the learned trial Judge was right in holding that the appellants did not disclose a defence on the merit to the action and was correct to refuse the transfer of the suit to the general cause list. Learned counsel referred to the provision of Order 22 rule 3 and 4 of the High Court (Civil Procedure) Rules 1987, Kaduna State. Learned counsel also agreed with the learned trial Judge in holding that no affidavit was annexed to the notice of intention to defend the suit. Learned counsel contended further that the learned trial Judge did not favour technicalities or shut his eyes to the defence of the appellants, and even if the learned trial Judge was to hold that there was no affidavit, the error did not engender any miscarriage of justice since he finally reached a decision that the affidavit did not disclose a defence to the writ. Learned counsel then submitted that the learned trial judge had exercised his discretion correctly.

Now Order 22 rules, 1, 2, 3(1) (2) 4, and 5 provide as follows:-

Rules 1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.

2. There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.

3(1) If the party served with the writ of summons and affidavit as provided in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the Court may think just.

(2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the ordinary Cause List; and Court may order pleadings or proceed to hearing without further pleadings.

4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.

(5) Nothing herein shall preclude the court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under rule 4.”

The rules are clear guide as to what the court should do. They require no further clarification. To bring the provision of Rule 3(1) into play, for the benefit of a defendant, it is important that the affidavit in support of the application must disclose a defence on the merits. Once that has been done, other things will follow.

Now having regard to the peculiar circumstances of this case, have the appellants disclose any defence on the merit.

It is clear from the facts of this case that it is not correct to say that the appellants’ notice of intention to defend the suit was not supported with an affidavit. The learned trial Judge himself retracted from his earlier finding that there was no affidavit.

It is also clear from the ruling of the learned trial Judge that he considered only paragraphs 4(o) and (p) that is only two out of about sixteen averments, to come to the conclusion that no defence was disclosed on the merit. There is for example averment (n) which states that no payment was made to the defendants by the plaintiff. There is also the issue of non service of the writ of summons on three of the four defendants. Infact two of the defendants 2nd and 3rd defendants, the foreign based companies were withdrawn from the suit when the learned counsel for plaintiffs realised the hopelessness of his case against them. But in spite of this major step taken by the learned counsel for the plaintiffs/respondent in withdrawing the suit against the two defendants the writ of summons which made them parties jointly and severally with 1st appellant remained unamended. This issue was also raised in paragraph 4(1) of the affidavit.

On the whole, I am of the view that the leaned trial Judge did not give adequate considerations to all the relevant averments in the affidavit in support of the notice of intention to defend.

It is noteworthy to mention that even the learned counsel for respondent himself conceded that the judgment entered by the learned trial Judge in their favour for the total sum claimed in the writ of summons cannot be supported by him. He however contended that they could be entitled to a judgment of a such lesser amount.

In this circumstances, I cannot say that the learned trial Judge had exercised his discretion judicially and judiciously in refusing to transfer the suit in the ordinary cause list. The learned trail Judge was clearly wrong to have treated the matter the way he did and entered judgment against the appellants for the whole sums of money claimed in the three segments of the writ of summons.

It is my view that this appeal has merit and it deserves to succeed. It is allowed accordingly. The judgment of the lower court is hereby set aside. The case is remitted back to the Chief Judge of Kaduna State for assignment to another appropriate court for trial.

I only wish to mention that, having reached this decision and the substratum of the appeal having been disposed of, the other issues raised have now become mere academic in nature. I do not find it necessary to go into them.

The appellants are entitled to costs which I assess at N1000.00.

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Other Citations: (1994)LCN/0210(CA)

British American Insurance Company Nigeria Limited V. Matthew Ekeoma & Anor (1994)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

This is an appeal against the judgment of Ojiako J, as he then was., The judgment was delivered on 24/11/87 at the Owerri High Court in Suit No. HOW/243/85.

The respondents were the plaintiffs in the court below while the appellant, an insurance company was the defendant. The 1st and 2nd respondent were, respectively the son and widow of one John Ekenma Ekeoma, hereinafter called the deceased or the insured. In 1983, the deceased took out a life insurance policy with the appellant company for the sum of N1,500.00 with the respondents as the beneficiaries. Following the death of the deceased, the respondents, commenced the action leading to this appeal. In their six paragraphed statement of claim they alleged in paragraph 5 thereof that the deceased died accidentally on 23/11/84 and pleaded a Medical Report dated 24/11/84. By reason of the accidental death of the deceased, they claimed to be entitled under the life policy to the sum of N6,500.00 particularised in paragraph 6 of the statement of claim as follows:-

“6. The plaintiffs’ claim against the defendant is as follows:-

(a) Accidental claims under first Degree N1,500 x 2 -N3,000.00

(c) Accidental Death dis-membership (sic) N2,000.00

Accident injury policies N1,500.00

Total N6,500.00

The appellant, in its 11 paragraphed statement of defence admitted that the deceased had a life policy with it in favour of the respondents. In paragraph 3 of the statement of defence, the appellant company denied that the death of the insured was accidental within the purview of the terms of the policy. It alleged that the death of the deceased was non accidental and that the respondents were entitled only to the sum of N1,500.00 and furthermore that the respondents were offered this amount which they refused to accept.

At the trial, the respondents called an expert witness, a medical doctor. Dr. V.C. Onuoha (P.W.1) to establish that the death of the deceased was accidental. The appellant also called one expert witness, a medical doctor viz Dr. R.C. Okoli (D.W.1) to prove that the death of the deceased was non-accidental. The appellant’s staff manager, Mr. Hyginus Ohaji (D.W.2) tendered the deceased’s life policy which was admitted as Exh B. He sought to tender a letter allegedly written by the 1st respondent to the appellant to report the death of the deceased. The letter was rejected following an objection by the respondent’s counsel on the ground that the 1st respondent did not sign the said letter. The D.W.2 further testified that the respondent’s entitlement if the deceased died a natural death was N1,500 and that since the policy was taken on 1st December, 1983 and was under one year before his death, the beneficiaries are only entitled to N1,500.00 even on accidental death of the deceased.

On the agreement of both counsel for the parties, one Innocent Onwuegbuchulam presumably an insurance expert was called to testify on the entitlement of the respondents under the policy Exh B. He confirmed that the amount payable under the policy for natural death was N1,500.00 and N6,500.00 in the case of accidental death.

At the conclusion of the trial, the learned trial Judge entered judgment for the respondents in term of their claims.

Dissatisfied with the judgment the appellant has appealed against it. There are six grounds of appeal subjoined to the notice of appeal.

The six grounds without their particulars read as follows:-

“(1) Error in Law

The learned trial Judge erred in law when he failed to consider and construe the conditions set out in the Insurance Policy subject matter of the suit in the court below when the policy was clearly an issue in the pleadings at the trial.

(2) Error in Law

The learned trial Judge erred in law when he held that the death of the deceased assured was accidental in terms of the Insurance Policy relying on the controverted evidence of a witness who never in any way claimed to know or appreciate the general custom and practice of insurers especially as to the language and usage of insurers relevant to the suit.

(3) The learned trial Judge erred in law when he held the defendant/appellant liable in the court below when the pleadings of the plaintiff at the trial was (sic) patently and fatally devoid of material averments as to the liability of the company under the policy in support of their claim at the trial.

(4) The learned trial Judge erred in law when he admitted evidence at the trial for the plaintiff’s as to the liability of the defendant/appellant when there were no facts pleaded to which such evidence went at the trial.

(5) Error in Law (sic)

The judgment is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence at the trial.

(6) Error in Law

The learned trial Judge erred in law by failing to admit that letter written to the appellant company in evidence on the ground that the 1st plaintiff said it is not his writing.”

The appellant, by its counsel filed a brief wherein the following five issues were formulated for determination:-

“1 Whether or not the trial Judge acted rightly when he failed to interpret Exh “B” at the trial before coming to the conclusion of the case.

2. Whether the terms of the Insurance Policy, Exh “B” ought to be interpreted to include Cadio Vascular Accident which P.W.1 interpreted to mean trauma leading to bleeding inside the skull and if not, ought oral evidence be admitted at the trial to vary the terms of Exh “B”.
3. Whether the learned trial Judge properly weighed the evidence at the trial.
4. Whether the learned trial Judge was right in rejecting the letter merely on 1st plaintiff’s denial (not on oath) of its authorship.
5. Whether the statement of claim, even if admitted in its entirety disclosed a prima facie case on which evidence was received in favour of the plaintiffs/respondents given the terms of Exh B.”

On their own part, the respondent through their counsel, filed a respondents’ brief of argument in which the issues formulated read as follows:-

“(a) Whether the plaintiffs/respondents proved their case and were entitled to judgment.

(b) Whether the learned Judge misdirected himself in any way as to the standard of proof.

(c) Whether the learned trial Judge correctly directed himself as to the onus of proof having regard to the pleadings and evidence before the court.

(d) Whether the learned Judge made a correct approach to (sic) tendered by both sides to the case.”

Dealing with the 1st and 2nd issues together, counsel to the appellant, in his brief of argument, referred to the insurance policy Exh B on the meaning of accidental death. He submitted that there were no facts pleaded nor evidence led to show that the deceased died accidentally in terms of the insurance policy Exh B. It was contended that the Medical Report Exh A issued by P.W.1 stating that the deceased died of Cardio Vascular Accident (CV A) did not establish that the deceased died accidentally in terms of the insurance policy Exh B because there was no evidence of any contusion or wound on the body of the deceased nor was any autopsy carried out. Counsel finally submitted on this issue that the learned trial Judge, by relying on the evidence of P.W.1 in holding that death was accidental had abdicated his responsibility of interpreting Exh B and of evaluating other evidence before him; the case of A.-G., Oyo State v. Fairlakes Hotels Ltd (No.2) (1989) 5 NWLR (Pt. 121) p.285 was referred to. In his response, learned counsel to the respondents submitted in his brief that the learned trial Judge was justified in preferring the evidence of the respondent’s expert witness (P.W.1) who had the opportunity of seeing, examining and treating the insured before death as against the appellants’ expert witness (D.W.1) who admitted not seeing the insured before or after death.

In regard to the 3rd issue in the appellant’s brief, it was submitted firstly, that the evidence of P.W.1 that the deceased fell was hearsay and inadmissible on the authority of the case of Subremanian v. Public Prosecutor (1956) 1 WLR 965 and secondly that the evidence of P.W.1 on the cause of death of the deceased was conflicting and if properly evaluated, could not have been believed. Counsel referred to the evidence of the appellant’s expert’ witness (D. W.1) which is in conflict with that of P.W.1 and submitted that the trial Judge should not have rejected the evidence of D.W.1 merely because he the D.W.1 did not see the deceased before or after death. It was contended that the trial Judge should have called a third expert witness and decide on the preponderance of the evidence of all the expert witnesses. In reply to the foregoing submissions, learned counsel to the respondents argued that the only witness who is competent to give opinion to the court on the cause of death was the doctor who saw a patient, examined and treated him.

The fourth issue in the appellant’s brief complained of the wrongful rejection of the letter said to have been written by the 1st respondent to the appellant on the ground that the 1st respondent stated that the letter was not his writing. It was contended that a document, if relevant and pleaded ought to be received in evidence and that the question of its authorship is only relevant in assessing the weight to be accorded to the document; the case of Odogwu v. Odogwu (1990) 4 NWLR (Pt.143) p.224 at 233 was cited.

It was submitted that since the letter in question was rejected, the court ought to have held that the notification of the death of the deceased to the appellant which is a condition precedent to liability had not been fulfilled in which case the case should have been dismissed. Responding, the respondent’s counsel argued that the appellant did not prove that it was the I st respondent who wrote the letter and that issue was not joined on the pleadings as to whether the appellant was notified about the death of the deceased. He referred to the evidence of D.W.2 offering to the respondents a cheque for N1,500.00 and argued that was conclusive that the appellant had notification about the death of the deceased.

Under the fifth issue, learned counsel to the appellant, apparently alluding to the wordings of the insurance policy Exh, B stated that it was not alleged in the statement of claim that the death of the deceased was as a result of bodily injuries effected solely through violent and accidental means and or that there was a visible contusion or wound on the exterior of the body nor was it pleaded that any autopsy was carried out on the body of the deceased. It was further contended that the heads of claim in paragraph 6 of the statement of claim did not satisfy the rules of pleading as they did not disclose facts on which they were based. To these, the respondents’ counsel referred to paragraph 6 of the statement of claim which specifically averred that the deceased died accidentally.

The grounds of appeal, the issues distilled there-from and the arguments of counsel in their briefs all revolve largely on the proper construction of the insurance policy Exh. B. In paragraph 5(a) of the statement of defence the appellant quoted the provisions contained in the last page of Exh. B. part of the provisions relevant to the matter under consideration reads as follows:-

PAYMENTS FOR ACCIDENTAL DEATH OR INJURY AS FOLLOWS

“If any of the following events occur after the insured has attained age five and prior to attaining age sixty five while this policy is in full force and effect and has not been exchanged for Extended Term, Insurance, the company will pay the amounts set out below in addition to the amount of insurance.

(1) On the death of the insured as a direct result of bodily injuries effected solely through external violent and accidental means of which (except in the case of drowning or of internal injuries revealed by autopsy) there is as evidence a visible contusion or wound on the exterior of the body and that death occured within ninety days of such accident an amount equal to the amount of insurance.

(2)……………….

(3)……………….

provided that the total amount payable under this section shall not in any circumstances exceed the amount of insurance”

As is evident from the above provision, two questions arise for consideration. The first is the nature of the accidental death for which benefits are payable and the second is the amount of benefits payable. I will dispose of the latter first. The above term of the policy does not appear to be the basis of calculation under which the respondents claimed the total sum of N6,500.00 under paragraph 6 of the statement of claim. It would appear that their claim as set out in paragraph 6 of their statement of claim was based on entirely different provisions. But the appellant in its statement of defence did not specifically challenge or dispute the basis of claim. Presumably, it was proper for it not to have done so for according to the rules of pleadings, damages are always in issue and so failure to deny them is not fatal: Re The Nigerian Produce Marketing Board v. Adewunmi (1972) 11 S.C. 111. At the trial, the appellant’s witness (D.W.2) giving evidence in chief testified inter alia, as follows:-

“My name is Hyginus Nnanne Ohaji. I am a staff manager to the defendant company’s .The insured did not die of accident and so plaintiffs are not entitled to N6,500.00. The company made out a cheque for N1,500.00 which the plaintiff’s refused. Cheque. tendered as Exh C.”

It is pertinent to observe that the witness did not say that if death had been accidental, the respondents would not have been entitled to N6,500.00. However, answering questions under cross-examination which took place two weeks after the examination-in-chief he said-

“By the terms of the Insurance, the beneficiaries would be entitled to the sum of N1,500.00 on natural death of the insured. By the terms, the beneficiaries would be entitled on accidental death to N1,500.00 as the insured has not contributed up to one year. The policy was issued on 1st December, 1983 and he died on 22nd November, 1984.”

The witness did not make reference to any particular provision of the policy on which he based his calculation. His evidence is however at variance with that of an independent witness, Innocent Onwuegbuchulam who was called by the court to testify with the consent of both parties and who testified, in part, as follows:-

“I am a beer distributor. I was formerly for six years an agent to British American Insurance Company, district 599, that is, covering parts of Bendel, Ondo and Anambra states …. I have seen and read the life assurance in question in this suit. From the policy, on the death of the insured, Mr John E. Ekeoma, the plaintiffs who are the beneficiaries are entitled on the natural death of the insured to N1,500.00 only. On death by accident the company will pay to the beneficiaries double N1,500.00, that is. N3,000.00. As the policy is under one year, the insurance company will pay in addition the amount stated her (sic) schedule, that is, N2,000.00. On the A.J.P. (Accident Indemnity Policy) the company will pay in addition the weekly premium of N15 x 100, that is,N1,5000. The total payment therefore due to the beneficiaries is N6,500.00 as stated in the policy. This is what applies.”

It is obvious from the evidence of this witness that he was not relying on paragraph I of the policy set out earlier. Reference was made to schedule which mayor may not be part of Exh B. In accepting the evidence of the independent witness, that is Innocent Onwuegbuchulam, the learned trial Judge said:-

“The plaintiffs in paragraph 6 of their statement of claim claimed from the defendant the sum of N6,500.00 resulting from accidental death of the insured John Ekeoma Ekeoma. The defendant denied

liability to the amount claimed on the ground that the insured died a natural death not by accident and tendered this sum of N1,500.00. This means that the defendant did not dispute the said amount of N6,500.00 if it was proved that the insured died accidentally. However, to make assurance double (sic) sure the court with the consent of the two opposing counsel called an independent witness, Innocent Onwuegbuchulam. The person had been an agent of the defendant’s company for six years and from his testimony the life assurance policy of the defendant company is the same all over the country. His evidence which is very clear and which I believe is that what the beneficiaries are entitled to if the insured died accidentally was a total of N6,500.00.”

The learned trial Judge, based on the evidence of the independent witness, found that the amount due and payable to the beneficiaries on the accidental death of the deceased was N6,500.00. There is no appeal against this finding. It is settled law that the weight to be attached to a document is a matter of inference to be drawn from established facts and has nothing to do with the credibility of witnesses and in this regard both the trial court and the appellant courts are in the same position when the question involved is the proper weight to be attached to that document: A.-G. Oyo State v. Fairlakes Hotels Ltd (supra); Akinola v. Oluwa (1962) 1 All NLR 224 (1962) 1 SCNLR 352. Since there has been no appeal against the finding of the trial Judge that the amount payable on accidental death is N6,500.00, it is unnecessary for me to embark on a reappraised of the whole of the insurance policy Exh B to see if the finding is in accord with the terms of the policy.

I will now advert my mind to the meaning of accidental death in the context of the policy Exh B. As this is the bone of contention in this case, I would at the risk of repetition reproduce hereunder paragraph I of the terms of the policy on Payment for Accidental Death:

“On the death of the insured as a direct result of bodily injuries effected solely through external violent and accidental means of which (except in the case of drowning or of internal injuries revealed by autopsy) there is as evidence a visible contusion or wound on the exterior of the body and that death occurred within ninety days of such accident… ……………….”

Under the above provisions, accidental death must be one caused by external violent and accidental means giving rise to (a) bodily injuries evidenced by contusion or wound on the exterior of the body, or (b) internal injuries revealed by autopsy.

The contention of learned counsel to the appellant is that the statement of claim was devoid of facts such as that the deceased had contusion or wound on the body or that a autopsy was carried out on the body of the insured, and that in the absence of averments in the pleadings in respect of such facts, evidence could not be admitted to prove that the deceased died accidentally.

With due deference to counsel, there is no force in that contention. In paragraph 5 of the statement of claim the respondents pleaded inter alia. thus –

The late John Ekenwa Ekeoma died accidentally on 23rd of November, 1984.” (Italics supplied)

According to Lord Denman C.J., In the case of Williams v. Williams (1838) A & E 314, 331 –

“It is an elementary rule in pleading that, when a state of facts is relied on, it is enough to allege it simply without setting out the subordinate facts which are the means of proving it or the evidence sustaining the allegation.”

It is my view that the respondents having averred in paragraph 5 of their statement of claim that death was accidental, it was not necessary for them to plead subordinate facts alleging that there were contusi0ns or wounds on the body of the deceased or that autopsy on his body was carried out.

In regard to the evidence as to whether the insured died accidentally or not two registered medical practitioners testified, one (P.W.1) for the respondents and the other, (D.W.1) for the appellant. P.W.1 gave evidence to the following effect:”

“My name is Vital is Chukwuemeka Onuoha. I am a registered medical practitioner resident at Eziudu Mbaise. Iknow the plaintiffs. I know one John Ekeoma. I treated him last before he died. He was rushed to my clinic. Modem Clinic and Maternity as an emergency case. He was in an unconscious state. The history from his relations was that he was healthy before he had a fall from a standing state which gave a high impact to the brain. He became unconscious. I examined him. The blood pressure was continuously low and continued to fall till his death despite all the treatment given-to him. I diagnosed an intra crania bleeding inside the skull. All efforts to stop the bleeding proved abortive. He eventually died and we certified him dead. He was rushed to my clinic on 22/11/86. He died after about 4 hours. In my opinion the remote cause of death was tvauma leading (0 bleeding inside the brain. In my opinion the fall created a high impact between the hard object and the hard skull. This led to continuous bleeding inside the brain which led to heart failure, the immediate cause of death.”

XXD by defence counsel

“Before 22/11/84 I had not treated the deceased. I gave a medical report (in) which I said that the deceased was admitted and treated as a case of Cardio Vascular Accident. Report tendered as Exh A. The C.V.A. is not same as high blood pressure. By Cardio Vascular Accident (C. V.A.) I meant that there was a vascular accident which eventually led to heart failure. I cannot say whether the deceased was hit with a hard object which led to the fall. The patient with cardiac illness can get a shock, fall down and hit their head against hard objects. High blood pressure cannot cause cardio vascular accident but could cause cerebo vascular accident, i.e. stroke. It is not true that the deceased died of high-blood pressure.”

The appellant’s witness D.W.1 testified to the following effect

“My name is Rowland Chukwudi Okoli. I am a registered medical practitioner as well as a consultant physician and a cardiologist. I work at the Chapel Hospital 148 Tetlow Str Owerri. I know what is called Cardio Vascular Accident. It is another term for stroke and can be defined as a sudden but prolonged loss of power or paralysis usually affecting one half of the body. This usually occurs following damage to the opposite half of the brain. This damage to the brain usually results from the sudden obstruction to blood flow and commonly occurs in hypertensive patients. Somebody who is said 10 have died (sic) Cardio Vascular Accidental could have died of the complications of high blood pressure. A person who dies of Cardio Vascular Accident could not he said to have died of direct result of bodily injuries effected solely through external in (sic) violent means.”

XX D by defence counsel

“I do insurance medical exams for some of the clients of the (defendant) company. I did not examine the deceased for the defendants. I had no occasion to see him before he died. Generally I would not recommend a person who is suffering from hypertension to be covered by a life insurance. Cardio Vascular Accident is another name for stroke.”

The above are the two conflicting versions of the testimony of expert witnesses proferred to the court to prove or disprove the assertion that the insured died accidentally. The learned trial Judge rejected the evidence of the appellant’s witness (D.W.1) and accepted that of the respondent’s witness (P.W.1). In this connection, he stated as follows:-

“The real question which the defendant company contested was whether the insured died a natural death or an accidental one. Each party to the dispute called a medical doctor. The plaintiff’s doctor was the one who admitted the insured, treated him before death and stated in his evidence that the death in relation to the insurance policy was accidental. The defendant’s doctor did not see nor treat the insured. His evidence was hypothetical based on the medical report and it was his opinion that the death of the insured could not be accidental in relation to the insurance policy. As between the two doctors, I hold that the doctor who saw and treated the insured was in a better position to state the sort of death that the insured met with. If Dr. Okoli who testified for the defence had seen or treated the deceased insured, he would have been better equipped to say for certain the nature of death the deceased insured suffered.”

The above conclusion reached by the learned trial Judge is unimpeachable. It is trite law that where there is conflict in the opinions of experts, it is the duty of the court to come to a conclusion in the case by resolving such a conflict and can do so by rejecting the opinion of one or the other such experts. See John Wilberforce Bamiro v. S.C.O.A. (1941) 7 WACA 150; R v. Godo (1975), 61 Cr App R.131; Ozigbo v. Police (1976) 1 NMLR 273, Laws and Practice Relating to Evidence in Nigeria by Aguda at p.115 Article 9-05.

It was contended that the evidence of P.W.1 is conflicting and to some extent hearsay evidence. With respect, there is no conflict in the evidence of P.W.1 which gave the remote cause of death as trauma leading to bleeding inside the brain and heart failure as the immediate cause of death. Although the P.W.1 stated that he was told that the deceased fell down, his evidence on cause of death was based on his observation of the deceased. It was further contended that there was no evidence that an autopsy involving the dissection of the deceased was carried out as required under the insurance policy. The simple answer to this is that though the policy stated “internal injuries by autopsy”, it did not say that it is only by autopsy that the death resulting from internal injuries can be asserted. Besides, the P.W.1 was not cross-examined on the question as to whether or not he carried out autopsy on the body of the deceased. In the case of Oyakhire v. Obaseki (1986) 1 NWLR (Pt. 19) p.735 at 742 cited by learned counsel to the respondents, this court (Benin Division) decided that:-

“In case where the court is afforded the opportunity of an expert evidence on a matter pleaded and on which issue is joined, the expert evidence is uncontroverted either due to failure to cross-examine the experts or after cross-examining him his credibility remains untainted due to failure to elicit any evidence adverse to his expert opinion, the court must believe his evidence.”

Since the appellant’s counsel did not cross-examine the P.W.1 on whether or not he carried out an autopsy on the deceased, it is too late in the day to complain about the matter.

It was also sought to impugn the judgment of the court below on the ground that the letter allegedly written by the 1st respondent to the appellant was wrongly rejected. In that letter which was pleaded in paragraph 7 of the statement of defence. the 1st respondent was said to have notified the appellant that his father the insured had died on 22/11/84 at Modern Clinic and Maternity after a few day, illness. The appellant had sought to tender the letter apparently to establish that the death of the insured was not accidental. The document was objected to and rejected on the ground that the 1st respondent denied its authorship. In my view, if a document is relevant and has been pleaded and the only objection to it that it was not made by a party to the proceedings alleged to have made it, it ought to be admitted and at the end of the trial a decision made on its authorship and what weight if any to attach to the document. The rejection of the letter is not per se a ground for the reversal of the judgment of the court below. It is trite law that the wrongful exclusion of admissible evidence is not of itself a ground for the reversal of any decision if it appears to an appellate court that had the evidence excluded been admitted, the decision would reasonably, nevertheless have been the same: section 227(2) of the Evidence Act Cap 112, Laws of the Federation of Nigeria, 1990 Wahabi Alao Lawal v. The State (1966) 1 All NLR 107. In my view the purpose of the letter in question was merely to notify the appellant about the death of the insured and not to state the circumstances or the cause of death. It seems to me that if it had been admitted, it would have been irrelevant on the issue of the cause of death of the deceased for which expert medical evidence was available. I am therefore unable to hold that the rejection of the letter in question had occasioned a miscarriage of justice. Furthermore, since issues were not joined on the pleadings on the question of notification of the deceased to the appellant, it is preposterous to argue that the rejection of the letter meant that the condition precedent to liability had not occurred.

In view of the foregoing, and in particular being of the view that the trial Judge was right in his finding that the deceased died accidentally and that the respondents’ entitlement is N6,500.00, this appeal lacks merit and is hereby dismissed. The appellant is to pay to the respondents costs assessed at N1,500.00.

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Other Citations: (1994)LCN/0209(CA)

Alhaji Bello Barau V. Influence Chaba (1994)

LawGlobal-Hub Lead Judgment Report

OPENE, J.C.A. 

This is an appeal against the decision of Coomassie J. (as he then was) on 24/04/92 in which he found the appellant liable for malicious prosecution of the respondent whereupon he awarded the sum of N50,000.00 (Fifty Thousand Naira) in favour of the respondent.

A brief fact of the present case is that on or about the 5th day of July 1989, the appellant’s house at No.3 Wasiri Maccido Road, Malali, Kaduna was burgled by some unknown persons and so many valuable properties were stolen.

The appellant then lodged a report at the Police Station, Malali, Kaduna. Before this incident, the appellant had a contractual relationship with Security Guard System (a Security Company) at No. 6/7 Gboko Road, Zango House, Ungwan Kanawa, Kaduna in which the respondent and three other persons were employees.

The respondent and the three other persons were at various times posted to guard the appellant’s house before the appellant’s house was burgled.

In course of the Police Investigation, P.W.3, a Police Officer went to the Security Guard System to find out the persons that were guarding the appellant’s house prior to the incident. Later the respondent and three other Security men were arrested and then arraigned before the Area Court, Malali Kaduna for criminal conspiracy and theft.

At the Area Court the appellant and the investigating Police Officer (I.P.O) that is P.W.3 were not called to testify and the respondent and the other three persons were discharged under Sect. 165 of Criminal Procedure Code for failure of the prosecution to call the witnesses.

On 17/5/90, the respondent filed this suit claiming as follows:-

“The plaintiff’s claim against the defendant is for the sum of N1,700,000 (One Million, Seven Hundred Thousand Naira) being damages for the malicious prosecution of the plaintiff at the instance of the defendant.

PARTICULARS

1. At the instance of the defendant, the plaintiff was on or about 7th July 1990, arrested and subsequently arraigned before the Malali Area Court for conspiracy and theft of the defendant’s property.
2. The plaintiff was after several adjournments, all at the instance of the defendant, discharged by the court.
3. The plaintiff did not steal the defendant’s property as alleged and there was no basis for his prosecution for the alleged theft.”

Pleadings were duly filed and exchanged and the matter went into a full trial and at the end, the learned trial Judge found the appellant liable for malicious prosecution and awarded the sum of N50,000.00 (Fifty Thousand Naira) in respondent’s favour. Dissatisfied with the said Judgment the appellant has now appealed to this court.

The appellant filed 7 grounds of appeal which read as follows:

Grounds of appeal:

(1) That the learned trial Judge erred in law in holding the defendant/appellant liable for malicious prosecution of the plaintiff/respondent in this suit when:-

a. The evidence adduced clearly shows that there was reasonable and probable cause for the prosecution.

b. There is evidence that on the 5/7/89 the appellant’s house was burgled and some valuable items stolen by unknown persons.

c. The respondent admitted during the trial that a person whose house is burgled and some items stolen had reasonable cause to report the matter to police.

d. Exhibit 1 tendered by the respondent clearly stated that unknown person or persons broke into the appellant’s house and stole the items named in paragraph 5(b) of the Statement of Defence which said Exhibit 1 supported the viva voce evidence of the appellant in this matter.

(2) The respondent as the plaintiff did not establish an absence of reasonable and probable cause for his prosecution.

a. That the learned trial Judge erred in law in that he held the appellant liable for malicious prosecution of the respondent when:-

a. There was/is no evidence of malice

b. There is evidence that the appellant was occasionally giving the respondent gifts, which gifts the respondent admitted receiving during the trial.

c. The admission of receiving occasional gifts by the respondent from the appellant negatived malice.

(3) That the learned trial Judged erred in law in giving judgment against the appellant when the respondent failed to prove that the prosecution in issue in this matter was without reasonable and probable cause and that the prosecution was malicious.

(4) That the learned trial Judged erred in law in giving judgment in favour of the respondent when:-

i. In an action for malicious prosecution it is not enough to prove that the real facts established no criminal liability against the respondent unless it also appears that these facts were within the personal knowledge of the appellant.

ii. The evidence adduced did not disclose any falsity of the report which the appellant made to the Police at Malali, Kaduna.

iii. No evidence that it was the appellant that instigated the Police to arraign the respondent before the Area Court Malali

Kaduna.

(5) That the learned trial Judged erred in law in holding the appellant

liable for malicious prosecution of the respondent when:-

i. There is no evidence of any criminal charge framed by the Area Court Judge Malali Kaduna which is the function of the Judge after taking evidence and a prima facie case has been disclosed/established against the respondent.

ii. There is no evidence that the respondent was discharged and acquitted of any offence for which the respondent was arraigned before the said Area Court Ma]a]i Kaduna.

iii. The discharge under section 165 of the Criminal Procedure Code Law is not a discharge on the merit as no evidence was taken and heard from either or both parties in this matter.

(6) That the sum of N50,000.00 damages awarded in favour of the respondent is excessive having regard to all the circumstances of this case.

(7) The decision is against the weight of evidence in this matter.”

The learned counsel for the appellant in the appellant’s brief formulated five issues for determination by the Court and they read:-

ISS UE NO.1 – Whether or not there was/is reasonable and probable cause for the prosecution of the respondent in this matter or alternatively did the respondent establish an absence of reasonable and probable cause for his prosecution in this suit?

ISSUE NO.2 – Did the respondent establish MALICE which is one of the essential elements of the offence of Malicious Prosecution?

ISSUE NO.3 – Whether or not all the necessary ingredients of Malicious Prosecution have been established by the respondent entitling the trial court to award him N50,000.00 damages.

ISSUE NO.4 – Whether or not especially in view of the evidence of P.W.3 under cross examination the police were not in law the prosecutors of the respondent in this matter?

ISSUE NO.5 – Is the N50,000.00 damages awarded not excessive putting into consideration all the circumstances of this case?”

In the respondent’s brief, the learned counsel for the respondent identified 4 issues for determination by the Court and they read:-

i. “Whether or not there was/is reasonable and probable cause for the appellant naming the respondent as the person he suspected of breaking into his house which ultimately led to the prosecution of the respondent at the Malali Area Court?

ii. Whether the plaintiff (respondent) proved his case and was entitled to judgment?

iii. Whether or not the appellants was not responsible for the prosecution, of the respondent at the Malali Area Court?

iv. Whether or not the award of N50,000.00 as damages was excessive?”

After a perusal of the issues formulated by both counsel, it appears to me that issues formulated by the appellant’s counsel are more germane and I will adopt them for the purpose of this judgment.

Issue No. 1 is:

“Whether or not there was/is reasonable and probable cause for the prosecution of the respondent in this matter or alternatively did the respondent establish an absence of reasonable and probable cause for his prosecution in this suit.”

It has been settled in all decided cases that for a plaintiff to succeed in an action for malicious prosecution that he must establish four elements of the tort i.e.

(1) that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge;

(2) that the prosecution was determined in his favour;

(3) that it was without reasonable and probable cause;

(4) that it was malicious.

The onus is on the plaintiff to prove every one of those four elements.

Mr. Ekhasemomho, the learned counsel for the appellant has submitted that the respondent has failed to prove that his prosecution was completely without reasonable and probable cause and that the respondent admitted that a person whose house is burgled and properties stolen has the right to report to the Police.

He stated that P.W.3 did not say that the complaint of the appellant at Malali Police Station was false; he argued that in law that there may be a reasonable ground which will not necessarily lead to conviction in which case there is probable and reasonable cause as in this case which would vitiate proceedings for malicious prosecution. He referred to: Bradshaw v. Warlow & Sons Ltd. (1915) 3 K.B. 527 at 534.

He stated that the arrest of the respondent consequent upon the house breaking and theft in the house of appellant on 5/7/89 five days after the respondent had stopped guarding the appellant’s house and that P.W.3 had admitted that the complaint made by the appellant to the police was in order. He submitted that this means that the arrest of the respondent was made on reasonable and probable cause more so when there was no evidence that the report of house breaking and theft made by the appellant and supported by Exh, 1 was false or was a fabricated story.

He referred to the evidence of P.W.3 at p. 21 where he said that the appellant specifically mentioned the respondent to the police as the suspect and at p.22 where he stated:-

“It is normal in the Police Station when a complaint is lodged, the Police do ask the complainant who and who does he suspect. This is to enable us know where to start investigation. During the investigation we may discover that the names may be correct or not. The complainant’s complaint to Malali Police Station was in order.”

He submitted that even if the appellant had specifically mentioned the respondent as the suspect that this will not make him liable in malicious prosecution because what he did was to enable the Police to know where to start their investigation.

He also submitted that Exh. 1, the proceedings from Area Court tendered by the respondent shows that the appellant did not mention anybody and that this is at variance with the evidence of P.W.3 at p. 21 lines 9-10.

He referred to: Hicks v. Faulkner (1878) 8 Q.B.D. 167 at p.171; Horst Sommer & 2 Ors v. Federal Housing Authority (1992) 1 SCNJ 73 at p. 80 (1992) 1 NWLR (Pt.219) 548; Leibo v. Buckman Ltd. & Anor (1952) 2 All E.R. 1057 at 1064. He submitted that respondent has failed to establish absence of reasonable and probable cause against the appellant and then urged the court to dismiss the case.

Mrs. Aigbogun, the learned counsel for the respondent in her brief of argument stated that a person whose house was burgled and some valuable items therein stolen has reasonable and probable cause to lodge the complaint to the Police but that once a person starts naming specific persons as the people who broke into the house that it is then the duty on him to show why he suspects the person that he named.

She said that there is no evidence of the purported burglary and theft either from the appellant or more especially the Police and that the appellant in his report to the Police specifically named the respondent and some other persons as the people who broke in to his house and stole the stated items.

She submitted that once he named the respondent as the probable burglar and thief that the burden was on him to state the grounds for his suspicion and belief and this burden the appellant did not discharge and that it follows that he had no reasonable or probable cause for naming the respondent as probable burglar and thief which led to the prosecution of the respondent.

She argued that P.W.3 testified that the respondent was innocent as revealed by investigation but that he was still arraigned as he had been specifically named by the appellant and the offence was not compoundable by the Police and that only the appellant could compound the offence by withdrawing his complaint against the respondent.

She submitted that the evidence of P.W.3 being unchallenged and uncontradicted that the learned trial Judge who had opportunity of watching him rightly believed his evidence and that it is no longer open for the appellant to challenged this evidence on appeal.

In Hicks. Faulkner (1878) 8 Q.B.D. 167 at p. 171, reasonable and probable cause was defined as follows:-

“An honest belief in the guilt of the accused based upon a full conviction founded upon reasonable ground of the existence of a state of circumstances which assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.”

In Balogun v. Amubikahun (1989) 3 NWLR (Pt.107) p.18 at p. 27 Belgore J.S.C. observed:-

“The reasonable and probable cause to my mind, entails the defendant having in his possession as a reasonable and sane person, a set of facts which to an ordinary man would lead to the conclusion that the plaintiff has committed a criminal offence. The belief in the criminal culpability of the plaintiff must be honest, based on full conviction, founded upon reasonable grounds in relation to a set of facts and circumstances which if true would lead every reasonable person to believe the plaintiff has committed an offence.

The set of facts and circumstances must lead a prudent man to the conclusion that the plaintiff is probably guilty of the offence he is accused of committing. (Harriman v. Swith (1938) A.C. 305).

There may be reasonable ground in some cases which may not necessarily lead to conviction in which case there is probable and reasonable cause as to vitiate proceedings for malicious prosecution. Bradsbaw v. Waterlow & Sons Ltd. (1915) 3 K.B. 527,534; Dawson v. Vansandace (1863) 11 W.R 516.”

In Leibo v. D. Buchman Ltd. Anor (1952) 2 All E.R. 1057 at p.1064, it was D observed:-

“The question whether there was reasonable or probable cause is not, I think, to be determined subjectively, as has been suggested. It is a question which objectively the court has to decide on the evidence before it.”

In the instant case, the appellant’s house was burgled by some unknown persons and some valuable properties removed from his house. He went to Malali Police Station, Kaduna and reported the incident. Exh. 1, the proceedings from the Area Court shows that the appellant did not mention any name.

Mrs. Aigbogun’s contention is that the respondent was arraigned and prosecuted before Malali Area Court because the appellant specifically named the respondent and the offence was not compoundable by the Police and that the arrest, detention, arraignment and prosecution of the respondent was without reasonable and probable cause.

The learned trial Judge at p. 41 of the records rightly observed:-

“The evidence shows that the defendant was perfectly right to have lodged complaint at the Police Station because his house was broken into and his properties stolen therefore. Nobody can fault his action so far.”

It is surprising that after making such a finding that he stated as follows:

“But the million question is this, can the defendant’s complaint be reasonable and probable when he told the Police that it was the plaintiff who should be arrested and detained?

The Police has certain form and it is their tradition to fill in a column that the complainant reported against unknown person or persons whatever happened.

In this case, an investigator came out clearly and testified in court that it was the defendant who clearly and specifically pointed at the plaintiff as a suspect. In this case, the plaintiff reported his injury to the defendant about five days and the incident of the burglary and the cosch P.W.3 testified as an eye witness to what caused the wrist-injury and the Kaduna State Sport Council granted him some days off.

The prosecution of the plaintiff by the defendant under those circumstances could not have been reasonable. Going by the definition as propounded by Hawkins J. in Hicks v. Faulkner (supra), the prosecution can never be reasonable and probable. I am satisfied that the prosecution was regrettably without reasonable and probable cause.”

In the first place P.W.3 that the trial court so relied on his evidence as unchallenged and uncontradicted did not say that it was the appellant who told the Police that the respondent should be arrested and detained.

Secondly it appears that the tort of malicious prosecution is being mixed up with that of false imprisonment which consists of the acts of arresting or imprisoning any person without lawful justification from exercising his right of leaving the place in which he is. It may also be committed by continuing a lawful imprisonment longer than is justifiable. See Richard Omokaro Iyalekhue v. Osifo Omoregbe (1991) 3 NWLR (Pt.177) p.94 at pp.104 and 105.

Further if the learned trial Judge had rightly applied the test laid down in the decision in Hicks v. Faulkner (supra) obviously he would have arrived at a different conclusion.

The test is, whether the appellant’s brief in criminal culpability of the respondent is honest, based upon full conviction, founded upon reasonable grounds in relation to a set of facts and circumstances if true would lead every reasonable person to believe that the respondent committed an offence.

It is a question which objectively the court has to decide on the evidence before it. P.W.3 under cross examination stated:-

“It is normal in the Police Station when a complaint is lodged the Police do ask the complainant who and who does he suspect.

This is to enable us know where to start investigation. During the investigation we may discover that the names may be correct or not. The complainant’s complaint to Malali Police Station was in order.”

The appellant at p. 23 of the record stated:-

“I was asked by the Police whether I have a night watchman. I told them that there was a company called Security Guard System whom I appointed to guard my house. From there the Police went to that company and started their investigation.”

The evidence before the court shows that it was not only the appellant that was arrested and charged. He was charged with three other employees of the security Company; it is in evidence that the appellant’s house was burgled by unknown persons or person on the 5th July 1989 and that the incident took place only five days after the respondent had stopped guarding the appellant’s house.

All these do not show any lack of reasonable and probable cause on the part of the appellant. P.W.3 has stated that the appellant’s complaint to Malali Police Station was in order and the learned trial judge has also stated that “Nobody can fault his action so far.”

This case is very unlike the incident in Balogun v. Amubikahun (supra) where the Supreme Court held that the reasonable and probable excuse to be relied upon by the appellant was punctured by the fact that the witness gave evidence of how she was to implicate the respondent and that the plaintiff paid her N300.00 for this conspiracy.

I am therefore of the view that there is evidence that the appellant’s house was burgled and some valuable items stolen and as a result of which he lodged a report at Malali Police Station whereupon the appellant and three other employees of Security Guard System were arrested and charged and that the facts before the court show that the appellant’s belief in criminal culpability of the respondent was honest, based upon full conviction and that a reasonable man would have acted in a way that he did.

I am also of the view that the respondent failed to establish absence of reasonable and probable cause.

Issue No.2 is:-

“Did the respondent establish MALICE which is one of the essential elements of the offence of malicious prosecution.”

At p. 42 of the records, the learned trial Judge found as follows:-

“The evidence of the plaintiff under cross examination that the defendant used to dash out some money to him and that they never quarrel previously does not assist the defendant’s case. The fact that the prosecution was devoid of reasonableness tantamounts to saying that the prosecution was malicious. There was no evidence to negative malice. The defendant has no reasonable and probable cause to prosecute the plaintiff the way and manner he did.

Knowing fully well that the plaintiff was indisposed to guard his house and another person Nuhu was doing the plaintiff’s duty. I hold that the plaintiff adduced sufficient evidence to prove and sustain his claim.”

It can be seen that the main reason that the learned trial Judge held that there was no evidence to negative malice was because the appellant knew fully well that the respondent was indisposed to guard his house and that another person Nuhu was doing the respondent’s duty. The fact that the respondent reported that he was indisposed and that another person was doing his job is not the basis to infer malice on the part of the appellant.

The term ‘Malice’ in this form of action is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives. See Clerk and Lindsell on Torts, 15th Ed. paras. 18 – 43 page 877.

Malice can only be inferred from a total lack of belief in the mind of the appellant as to the guilt of the respondent which the respondent has failed to establish in this case.

In Balogun v. Amubikahun (supra) at pp. 27 and 28, Belgore, J.S.C. stated:”

Certainly, the appellant wanted by any means, to harass the respondent and frighten him away from the land case he had with him. That was his malice. He knew ab initio that he was making false criminal allegation against the respondent. He was actuated by improper and indirect motives because he knew he was making false allegation and his desire was for persecution and not prosecution for the right and proper ends of justice. What he had was not bona fide but malus animus.”

In the instant case, the respondent had admitted under cross examination that he never had any previous quarrel with the appellant and that in fact the appellant used to dash him money.

There is nothing to show that the appellant knew that he was making a false criminal allegation against the respondent and the other three people. The learned trial judge and P.W.3 said that what he did was in order. There is also nothing to show that the appellant’s motive was to harass and punish the respondent and that it was not a desire to secure ends of justice.

Mrs. Aigbogun had argued that while the appellant had a right to report the purported burglary and theft to the Police that the appellant has no such right or duty to specifically name and point out the respondent as the person he suspected of committing the crime imputed and that that was actuated by the appellant’s desire to almost see somebody or anybody punished for purported burglary and theft not because he had any honest belief or any belief at all in the guilt of the respondent.

The appellant did not specifically point and name the respondent. It was the respondent and other 3 workers of the Security Company that were arrested and charged and the evidence before the court does not show that he had not an honest belief in the guilt of those four people and that he wanted to see them punished at all cost.

I am of the view that the respondent had failed to establish Malice on the part of the appellant.

In respect of Issue Nos. 3 and 4, it will be more convenient to deal with them together and they read:-

“ISSUE NO.3 – Whether or not all the necessary ingredients of Malicious Prosecution have been established by the respondent entitling the trial court to award him N50,000.00 damages?

ISSUE NO.4 – Whether or not especially in view of the evidence of P.W.3 under cross examination the Police were not in law the prosecutors of the respondent in this matter?

For the respondent to succeed in this case, he must also establish that he was prosecuted by the appellant, that is, that the law was set in motion against him on a criminal charge.

In Balogun v. Amubikahun (supra) at p. 30 Obaseki J.S.C. observed:

“To prosecute is to set the law in motion and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question and to be liable for malicious prosecution a person must be actively responsible or instrumental in setting the law in motion. If a charge is made to Police Constable and he thereupon makes an arrest, the party making the charge if liable at all will be liable for false imprisonment but if he goes before a Magistrate who thereupon issues a warrant for summons then his liability, if any, is for malicious prosecution.”

In the present case other than reporting the matter at the Police Station which the investigating Police Officer (1.P.O.) P.W.3 and also the learned trial Judge H found to be in order there is nothing to show that the appellant was instrumental to the matter being charged to court. P.W.3 stated that a search was conducted and nothing was recovered and that “since the Police have no power to compound the case of theft we arraigned them to Malali Area Court.”

It can be seen that the reason that the respondent was charged to court was because the Police have no power to compound a case of theft. There is no evidence to show to show that there was a pressure on the part of the appellant that the respondent should be charged to court or that it was brought to the knowledge of the appellant that there was no evidence to support the charge against the respondent and that he mounted pressure on them and eventually saw that the respondent was charged to court.

It is in evidence that when the matter was taken to court that the appellant was not invited to give evidence and likewise P.W.3 with the result that the respondent was discharged.

The only thing that is shown in this case is only that the appellant made a report to the Police which has been found to be quite in order. If the appellant had strenuously and actively pursued the matter by mischievous lying or other dubious means to see that the respondent is charged to court, or even engaging a counsel to prosecute the matter, it can be said that he has set the law in motion.

What the appellant did is what any reasonable person that was placed in his position should do, it will be a bad law that if any person whose house is burgled into that reports that incident to the Police will be made liable for malicious prosecution. As I had earlier observed, if a person simply makes a report to the Police, a ministerial officer and the Police using their discretion decide to arrest, charge and prosecute the suspect, the person making the report, if liable at all will be liable for false imprisonment on the ground that he set in motion a ministerial officer and not a judicial officer. I am therefore of the view that the appellant did not set the law in motion.

As to whether the matter ended in favour of the respondent; Mr. Ekhasemomhe has submitted that the respondent was discharged under Sect; 165 of the Criminal Procedure Code and that the said discharged does not act as an acquittal as the case has not been decided on its merit.

The prosecution terminating in the respondent’s favour does not mean that he has to be discharged on the merits. It suffices if he is discharged. In Clerk and Lindsell on Torts 15th Ed. Chap. 18 pp. 866-867, the learned author opined as follows:-

“The end, however, need not be a final and conclusive one. If a magistrate refuses to commit for trial a person charged before him, the particular prosecution is concluded, although it may be lawful to institute a fresh prosecution for the same offence. So the refusal of examining justices to commit for trial is a dismissal of the charge within the costs in Criminal Cases Act 1952 and is the end of the proceedings………………..

Craig v. Hassel shows that it is enough if the proceeding was brought to an end by consent of the plaintiff and on terms. So it is enough if the proceeding has been abandoned without being brought to a formal end, though this can not often happen in a criminal prosecution.”

In the Law of Torts, by Harry Street 6th Ed. p. 397, the learned Author stated:-

“The proceedings must have terminated in favour of the plaintiff.

Even though the plaintiff has been convicted of a lesser offence, or had his conviction quashed on appeal, or has been acquitted on a technicality, e.g. a defect in the indictment, this requirement is satisfied

The plaintiff seems to satisfy the present requirement if he proves that the defendant has discontinued the proceedings.”

It can be seen that the plaintiff’s discharge under Sect. 165 of Criminal Procedure Code brings the proceedings to an end and in favour of the plaintiff even though that it may be lawful to institute a fresh prosecution for the same offence. The plaintiff has therefore satisfied the requirement that the proceedings terminated in his favour.

Apart from showing that the prosecution terminated in his favour, the respondent has woefully failed to establish all the other necessary ingredients of the tort of malicious prosecution to entitle him to judgment and an award of the sum of N50,000.00.

The law is very clear that all the four essential ingredients have to be proved and this the respondent has failed to do, the appeal is therefore deemed to fail.

Issue No.5 reads:-

“Is the N50,000.00 damages awarded not excessive putting into consideration all the circumstances of this case?”

As I have already found, the respondent has failed to establish all the necessary ingredients of malicious prosecution to entitle him to an award of the sum of N50,000.00

In view of this, Issue No.5 is being dealt with solely for academic purposes.

The attitude of the appellate court to award of damages by a trial court has been aptly stated in Chief F.R.A. Williams v. Daily times of Nigeria Ltd. (1990) 1 NWLR (Pt.124) p. I at pp. 56 and 57 where Uwais J.S.C. observed:-

” ….. the defendant did not establish that the principle laid down for the award of damages by the trial court had been breached. It is only when there is a failure to follow the settled principles that an appellate court can properly interfere with the award of damages made by a trial court. The principle which have been established by a legion of cases are:-

l. That the trial Judge acted on a wrong principle of law.

2. That the Judge made an estimate of damages which is entirely erroneous, that is which no reasonable tribunal would have made, and
3. That the appellate court is not disturbing the award of damages merely on the ground that it would have come to a different figure had it heard the case itself.”

The learned trial Judge at p. 43 stated:-

“After taking everything into consideration including the social standing of the defendant, the natural consequences of malicious prosecution, the damages arising therefrom, the station in life of the plaintiff and his financial standing I think to award Fifty Thousand Naira would not be out of place.”

The appellant’s complaint is not that the learned trial Judge acted on a wrong principle of law or that the estimate of damages is erroneous and that no reasonable tribunal would have made such award. His complaint is that the amount is excessive but the law is that an appellate court will not disturb an award of damages merely because it would have come to a different figure if it had heard the case itself.

If the respondent had established a case of malicious prosecution, against the appellant, the sum of Fifty Thousand Naira would not have been deemed excessive.

For the reasons given above, I am fully of the view that there is merit in the appeal.

I hereby allow the appeal and set aside the judgment of the learned trial Judge delivered on 24th April 1992.

I dismiss the respondent’s claim with costs assessed and fixed at N1,000.00.

---

Other Citations: (1994)LCN/0208(CA)

British Airways Plc V. Xchief Funso Akinyosoye (1994)

LawGlobal-Hub Lead Judgment Report

KALGO, J .C.A.

This is an appeal from the ruling of Omotoso J. of the High Court of Lagos delivered on the 24th of August, 1990. The main issue in dispute and which this Court is called upon to determine in this appeal, is whether the action filed by the plaintiff/respondent is statute-barred having regard to the pleadings before the trial Court.

On the 7th of March, 1990, the plaintiff/respondent (hereinafter referred to as “the respondent”) filed a writ of summons claiming from the defendant/appellant (hereinafter referred to as “the appellant”):

“the sum of $232, 589 (two hundred and thirty two thousand, five hundred and eighty-nine U.S. Dollars) or its Naira equivalent at the rate of exchange at the date of judgment, being 5% of the amounts transferred, and interest on the same at the rate of 15% per annum from 24th February, 1982 to date of judgment, and subsequently, at the rate of 5% per annum until judgment debt, interest and costs have been fully liquidated.”

The respondent subsequently filed a Statement of claim which was dated 5th March 1990 (See pp. 4-9 of record of appeal). On the 22nd of May, 1990, the appellant filed a Statement of Defence to the action as contained on p 13 of the record. On the same day, the appellant filed a motion on notice praying the trial Court to “dismiss the action herein on the ground that the plaintiff’s action is barred by section 8(1)(a) of the Limitation Law Cap. 70 Laws of Lagos State of Nigeria, 1973.” The respondent filed a counter-affidavit of 12 paragraphs sworn to by Solomon Sofunmade on the 11th of June, 1990.

The learned trial judge heard the application and in a considered ruling delivered on the 24th of August, 1990, concluded on p.48 of the record thus;-

“Until evidence is led and the case unfolds, it will be impossible for the court to decide whether or not the case of the plaintiff falls within the exception to the general rule that negotiations do not extend the limitation period on the facts presented by the plaintiff. It will be premature at this stage to rule that this action is statute barred, the contents of the letters pleaded and evidence on the negotiations of the parties are vital to the consideration of the issue as to whether or not the action is statute barred. The long age procedure of interrogation and/or Discovery of Documents are open to the Defendants. The Application is premature and it is accordingly dismissed.”

.The appellant was dissatisfied with this ruling and on the 12th October, 1990, having obtained leave of this Court of Appeal, filed a Notice of Appeal against the said ruling on one ground of appeal which without particulars reads as follows:”

The learned trial Judge erred in law in failing to dismiss the plaintiff’s claim and in concluding that it was necessary to lead evidence at trial to determine whether the plaintiff’s action is Statute barred having regard to the state of the pleadings and in particular the plaintiff’s Statement of Claim.”

The parties to this appeal filed their briefs of argument in this court. The appellant formulated, in his brief, the following issues to be determined this appeal:

“i) Whether having regard to the indorsement on writ of summons, the Statement of Claim and Statement of Defence, the suit filed by the respondent ought not to have been dismissed “in limine” on the grounds stated in the appellant’s motion to dismiss, viz the action is statute barred.

(ii) Whether the learned trial judge was correct in ruling that the appellant’s application to dismiss could only be considered in the light of the evidence to be adduced in supporting the respondent’s claim.”

The respondent in his brief submitted that only one issue arises for determination in this appeal and it is this:-

“Whether or not the action, having regard to the facts and law is statute-barred.”

At the hearing of the appeal before this court, the learned counsel for the appellant adopted his brief of argument. He then referred the court to Chitty on Contracts, 26th Edition Vol.1 , paragraph 1942, p. 1263, the case of Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1, Coburn v. Colledge (1987) 1 QB 702, and submitted that the trial Judge was wrong in holding that she could not determine the relevant date the cause of action arose without taking evidence. On the issue of fresh negotiations constituting an exception to the general rule, the learned counsel, submitted that this was not pleaded by the respondent and so everything said about it went to no issue and should have been disregarded by trial Judge. He then referred to Halsburys Law of England, 4th Edition, Vol. 28 paragraph 608 in support of his submission.

The learned counsel for the respondent also adopted his brief of argument. He submitted that the letter dated 14th December 1984, which was pleaded in paragraph28 of the Statement of Claim controls the period the cause of action arose in this case. He then cited the cases of Ajike v. Kelani (1985) 3 NWLR (Pt. 12) 248 and Nwadialo v. Shell Petroleum Dev. Co. Ltd: (1990) 5 NWLR (Pt. 150) 322 and submitted that the action of the respondent was filed within time and is not statute-barred.

The appellant filed only one ground of appeal in the notice of appeal (pp71 – 73 of the record), complaining of the refusal of the learned trial judge to hold that the action of the respondent was statute-barred and should be dismissed in limine.

In my view the main issue for determination here is whether or not the action of the respondent is statute-barred, having regard to the facts and the law to be considered by the trial judge in the circumstances of this case. For this reason, it is my view that the only issue for determination in this appeal is that set out by the respondent and I adopt it as such.

The first point I wish to look at is how does one determine the period of limitation in any particular case? Here I refer to the case of Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1 at p. 20 where Oputa, J.S.C said:-

“The answer is simple-by looking at the writ of summons and the Statement of Claim alleging When the wrong was committed Which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence. If the time on the writ is beyond the period allowed by the Limitation Law then the action is statute barred”

What then is the meaning of cause of action? In Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 169, the Supreme Court held that:-

“Cause of action has been held to mean every fact which is material to be proved to entitle the plaintiff to succeed, or all those things necessary to give a right to relief in law or equity. See Bello v. A.G. Oyo State. (1986) 5 NWLR (Pt. 45) 828; Letang v. Cooper (1965) 1. QB 232 at 242.”

Therefore the period of limitation simply put, is that period of time after the accrual of a cause of action during which legal proceedings can be brought by a competent party because the period laid down by the Limitation Law on Act has not lapsed.

My next point is when does the cause of action accrue to a party and when does the period of limitation begin to run? I am taking these two questions together because it appears to me that they are co-terminus. In the case of Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 at p. 17, the Supreme Court considering when a cause F of action is said to accrue held;-

“What is meant by cause of action? In its best definition it consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. Cooke v. Cill (1873) E.R 3 CP. 107; Read v. Brown (1889) 22 QBD 128. When these facts have occurred and provided there are in existence a competent plaintiff and a competent defendant a cause of action is said to accrue to the plaintiff because he can prosecute an action effectively. Thus the accrual of a cause of action is the event whereby a cause of action become complete so that the aggrieved party can begin and maintain his cause of action”

From this, it appears very clear to me that the period of limitation in respect of any particular action will begin to run from the date the cause of action accrues. See Rhodes v. Smethurst 150 E.R. 1335; Pritam Kaur v. Russell & Sons Ltd., (1973) 1 All E.R. 617 and Egbe v. Adefarasin (supra).

Having laid down the legal principles above, I now come back to the case on appeal. From the record of appeal, it is not in dispute that the writ of summons in this action was filed in the trial court on the 7th day of March 1990. The Statement of Claim was also filed about the same time in the same Court. It is also not in dispute that the appellants instructed the respondent to arrange the transfer of large amount of money in foreign exchange through the Central Bank of Nigeria from Nigeria to London on their behalf and it was agreed that the respondent would be paid 5% of the amount transferred as his professional fees. (See paragraphs 8-12 of the Statement of Claim). The respondent made all the necessary contacts and arrangements with the Central Bank of Nigeria and Department of Inland Revenue and finally succeeded in effecting the transfer in foreign exchange equivalent of a total sum of N4,651,794.68 vide Central Bank approved Release Batch No. 689251 of 24th February 1982. Thereafter the respondent informed the appellants of the completion of his assignment and demanded payment of his professional fees. The appellants refused to pay and disputed liability to pay the fees. (See paragraphs 18-23 of the Statement of Claim) ..

From the above facts, it cannot be disputed that, the respondent entered into a simple contract to transfer the appellant’s money from Central Bank of Nigeria in foreign exchange to London on payment of 5% of the amount so transferred. He had carried out his part of the contract but the appellants refused to pay him. There is therefore a breach of that simple contract by the appellants. In the case of Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 379 at p. 388; The Supreme Court held that:-

“In actions for breach of contract, the cause of action accrues for the plaintiff’s benefit from the time the breach of the contract is committed and not when the damage is suffered.”

See also Olaogun Ent. Ltd v. S.J. & M (1992) 4 NWLR (Pt. 235) 361 at 388. This means that in respect of this appeal, as soon as the appellants denied liability, the respondent’s cause of action arose, and the time begins to run against him for the purposes of limitation. But the respondent did not specify any date or referred to any document in which the appellants notified him of their denial of liability. But in explaining their position in the Counter-affidavit to the appellants motion to dismiss the action in limine for being statute-barred, the respondents averred as follows:-

“5. That in paragraphs 19 and 20 of the Statement of Claim, the date 24th February, 1982 is merely the time when approval for remittance was granted by the Central Bank of Nigeria.

6. ………………………………………………….
7. ………………………………………………….
8. That sometime in November 1983, the plaintiff reminded the defendant of the outstanding fee and indicated his desire to commence legal proceedings if the fee was not paid.
9. That the defendant by its Solicitors Messrs. Irving & Bonnar’s Letter dated 14th December 1984, denied being liable to the plaintiff.”

The learned counsel for the respondent had however submitted at the hearing of this appeal that the date 14th December 1984, was the date when the cause of action accrued to the respondent and that the time begins to run on that day for the purpose of the Statute of Limitation.

Looking at paragraphs 23 and 28 of the Statement of Claim, it is only in paragraph 28 that the actual date when the appellant denied liability was specified i.e. 14th December 1984. The appellant in his Statement of Defence filed on 22nd of May 1990, (p.12 of the record) made a general denial of all the allegations of fact contained in the Statement of Claim. The allegations or averment made by the respondent in paragraph 28 of the Statement of Claim, is an essential and material one in the circumstances of this case which in my respectful view required a specific traverse. The need for specific traverse in a situation such as this was emphasised and explained by Salami, J.C.A. in the Olaogun Ent. Lid” (supra) at Pp. 380-381 where he said:-

“The purpose of traverse in a statement of defence is to contradict an assertion of fact in the Statement of Claim, as a result it must not be vague, evasive or general in respect of essential and material allegations such a general denial ought not be adopted, essential allegation should be specifically traverse; per Lord Denning M.R in Wallersteiner v. Moir (1974) 1 WLR 991, at 1002. A refusal to admit must be denied explicit! y and clearly……….. However paragraphs which are purely introductory or explanatory of facts which paragraphs are known as matters of inducement and the statement at the end of the claim which are not essential or do not form part of the main cause of action can be denied generally.”

I agree entirely with my learned brother Salami, J.C.A. on this proposition and I adopt in to to in respect of this appeal. The averments contained in paragraph 28 of the Statement of Claim are indeed very essential and material to the main cause of the respondent’s action and must therefore be specifically and not generally denied. They are not merely introductory or explanatory of certain facts averred in the Statement of Claim. The appellants in their Statement of Defence did not deny them specifically. Therefore paragraph 28 of the Statement of Claim stands out untraversed. The effect of this in my view, is that the trial court was entitled to rely on it in deciding the application to dismiss the action.

Also in paragraphs 8 and 9 of the respondent’s counter-affidavit in the application to dismiss the action (p. 26 of record) as earlier set out in this judgment, the respondent further explained the contents of his Statement of Claim particularly paragraph 28 thereof. This constitutes affidavit evidence which is consistent with the contents of the pleadings, and could be relied upon by the trial court. The appellants did not challenge this in their further affidavit also. In the case of Ajide v. Kelani (supra). Oputa, J.S.C. said that a party should be consistent in stating his case and consistent in proving it. On p. 271 of the report, the learned Justice of the Supreme Court said:-

“Justice is not interested in scoring debating points. The defendant cannot make one case in his pleadings and an entirely different and inconsistent case by his sworn testimony and hope to win on appeal. No, he cannot.”

But if the sworn statement is consistent with his pleadings, then the defendant can win. Therefore since the affidavit evidence is sworn evidence, and is consistent with the averment in the respondent’s pleadings, then the Court can rely and accept it.

According to S.8(1)(a) of the Limitation Law (Cap.70) Laws of Lagos State, 1973, all actions founded on simple contract like in the present appeal, shall not be brought after the expiration of six years from the date on which the cause of action accrues. I have indicated earlier in this judgment that the date of 14th December 1984 was the date the appellant denied liability to the respondent and consequently committed breach of the contract between them and the respondent. The cause of B action in this case, accrued to the respondent on that day and time begins to run from that day, for the purpose of limitation. Since in this case, the action must be brought within 6 years, the respondent must bring his action against the appellant on or before the 14th of December, 1990. The respondent, according to the record, has filed his writ of summons in the trial Court on the 7th day of March 1990. Therefore, I am satisfied that the respondent filed his action within time and that his action is not statute-barred.

The learned counsel for the appellant made heavy weather of the fact that the case of the appellant did not fall within the exception to the general rule of limitation of action specified in Halsbury’s Laws of England 3rd Edition, Volume 24 p. 182 paragraph 333 and p. 204 paragraph 366, because according to him, the respondent failed to satisfy the requirements of such exception. The learned counsel argued in his brief that there was no subsequent agreement entered into between the parties arising from any negotiations on the payment of the alleged money owed to the respondents, and that even if there was such an agreement, it was not supported by any consideration. Even if, counsel argued, that the alleged service of the respondent could be taken as consideration, it was past consideration which cannot sustain a legally enforceable contract. Therefore, learned counsel submitted in his brief that the exception mentioned in the Halsbury’s Laws of England referred to above, cannot apply to the case of the respondent.

Learned counsel further argued that even if it is accepted for the sake of argument that the circumstances mentioned in the exception to the general rule of limitation in the Halsbury’s Laws referred to above, apply in this appeal, none of these circumstances were pleaded by the respondent. Therefore, counsel submitted, the respondent cannot rely on the exception the circumstances of which have not been pleaded. He cited a number of legal authorities in support of his contention.

I have carefully considered all this beautiful and searching arguments of the learned counsel for the appellant, but with due respect to him, I do not think they are relevant to the circumstances of this appeal, having regard to my findings earlier in this judgment.

In the respondent’s Statement of Claim, it is abundantly clear that the only date specified when the appellants denied liability was 14th December 1984 (paragraph 28). Although in paragraph 23 of the Statement of Claim, it was also mentioned that the claim was denied, no mention was made of any date and the appellants failed to specify any date when they denied liability themselves. They also failed to specifically traverse the essential averments made in paragraph 28 of the Statement of Claim as required by law. And the fact that there were negotiations between the parties on the respondent’s efforts to recover his fees, lasting to about 2 years after completing his services, does not make the averments in the Statement of Claim unlikely. What matters here is that there must be a specific denial of the liability for payment when the cause of action arises and time begins to run for purposes of limitation. Here, the respondent averred that this was the 14th of December 1984, which date was not specifically traversed by the appellant who also failed to point to any specific date when the liability was denied.

Therefore, I have no doubt in my mind that the 14th of December 1984, was the relevant date in this case and for the reasons stated above it should have been relied upon by the learned trial Judge instead of considering the exception to the general rule. I think that the learned trial Judge was wrong in basing her decision on the application to dismiss on the exception since the date of 14th December 1984 should have been clear to her as the only date when the appellants denied liability to pay the fees of the respondent.

Finally, for all what 1have said above, I find that the action of the respondent was filed within the period of limitation and therefore proper. Therefore for different reasons I dismiss the application of the appellants at the trial Court. I affirm the orders of the learned trial Judge Omotoso J. Made on the 24th of August 1990, and dismiss the appeal of the appellants. I award N1,000.00 costs to the respondent.

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Other Citations: (1994)LCN/0207(CA)

Bendel Pilgrims Welfare Board V. Alhaji Wahabi Irawo (1994)

LawGlobal-Hub Lead Judgment Report

JUSTIN THOMPSON AKPABIO, J.C.A. 

This is an appeal from a judgment of Oki, C.J. of the then High Court of Bendel State (but now Edo State) sitting in Benin City, in Suit No. B/181/83 delivered on 27th October, 1988, wherein he dismissed in its entirety the plaintiff’s claim against the defendant for the sum of N101,001.00 being balance of debt owed the plaintiff by the defendant in respect of Hajj operations in 1977/1978. The plaintiff being dissatisfied with the said judgment has now appealed to this court.

At the trial court the claim of the plaintiff was worded as follows:-

Sometime in 1978 the plaintiff handed some control cards for pilgrims travelling to Saudi Arabia to the defendant in Benin-City within the jurisdiction of this Honourable Court. The control cards were to be sold at N691.00 per card or returned to the plaintiff. The defendant sold all the control cards, paid part of the money to the plaintiff and has since refused, neglected and failed to pay the balance to the plaintiff despite repeated demands.

The plaintiff’s claim against the defendant is for the sum of N101,001.00 (One hundred and one thousand and one naira) being the balance of the debt which the defendant owed the plaintiff.

The plaintiff also claims interest at 10% from October, 1978 till judgment in this suit.”

In the statement of claim which was later filed in this case, the facts were further elaborated upon as follows:- The plaintiff was a State owned Board set up by the then Bendel State Government to handle the welfare of pilgrims performing pilgrimage to holy lands. The defendant on the other hand was at all material times a Pilgrims Assistant and ran a Pilgrims Agency. It appears that as a Pilgrims Agent, the defendant was usually given a number of control cards to sell to intending pilgrims, and later to render account of such sales to the Board. In respect of 1977 operations, the defendant was indebted to the plaintiff to the tune of N163,277.00 (There was no indication as to how many cards were sold to realize this amount). However, in respect of 1978 operation, the evidence was that the defendant was given 200 control cards to sell at N691.00 each. The defendant sold the cards at a total cost of N138.200.00. So, as at the time of the 1978 Hajj operations the defendant was owing plaintiff the sum of N163,277.00 for 1977 plus N138,200.00 (for 1978) making a total of N301,477.00. The defendant later made various cash payments and bank lodgment to the plaintiff, which totalled N200,476.00. When the total payment of N200,476.00 was deducted from total indebtedness of N301,477.00, that left a debit balance of N101.001.00, which was the amount being claimed from the defendant with interest as mentioned above. The defendant in his statement of defence admitted at paragraph 2 that he owed the plaintiff a total of N49,752.00. He then went further at paragraph 3 to aver that he was never given 200 control cards or any card at all for 1978 as pleaded in paragraph 6 of Statement of Claim. He contended that he had paid more than the amount credited to him by the plaintiff to Alhaji Haruna Aliu, the former chairman of the Board, for onward payment into the Board’s Bank Account, and that he will tender all his receipts at the trial of this action.

However, soon after the matter went to Court, there was a move for settlement during which it was admitted on both sides that the defendant had made further payments totaling N40,000.00 during the pendency of the case in court. During that time, the defendant was also said to have developed eye trouble, which caused him to be hospitalised both in this country and overseas for a long time. Even after he came back from overseas, he still did not attend court even for one day. As a result, the matter was finally determined, based only on the evidence given by plaintiff’s only witness, one Alhaji Ahmed Tijani Momoh, (P.W.1) who was the Secretary of plaintiff’s Board.

After hearing the evidence of P.W.1, and taking addresses of learned counsel on both sides, the learned trial Chief Judge gave a reserved judgment in which he dismissed plaintiff’s claim in its entirety, without giving cognisance to the fact that defendant had himself admitted owing the sum of N49,752.00 to plaintiff, out of which N40,000.00 was said to have been paid to plaintiff during the pendency of this case in a move for settlement.

The plaintiff being dissatisfied with the said judgment now appealed to this Court on three grounds. It is unnecessary to set out the grounds as they were later subsumed by the issues for determination formulated. Briefs of arguments were later filed and exchanged and issues for determination formulated.

The plaintiff who will hereinafter be referred to as the appellant formulated four issues as follows:-

“(a) Whether the learned trial Judge was right when he dismissed the appellant’s case despite the fact that the evidence given by the appellant of the respondent’s indebtedness was never challenged by evidence in rebuttal.

(b) Whether the learned trial Judge was right in dismissing the appellants’ case in its entirety when the respondent admitted that he was indebted to the appellant to the tune of N49,752.00.

(c) Whether the learned trial Judge was right to have set the pleadings of the respondent against the unchallenged evidence of the appellant.

(d) Whether the weight of pleadings can be set against the weight of evidence.”

On the other hand, the defendant who will hereinafter be referred to as the respondent, adopted issue No. (b) formulated by the appellant, and then went further to formulate three other issues himself as follows:-

(i) Whether based on the totality of evidence adduced by the plaintiff, the plaintiff has adduced sufficient evidence to entitle it to the amount claimed in the Statement of Claim.

(ii) Whether the erroneous consideration of paragraph 3 of the defendant’s statement of defence by the learned trial Judge has occasioned any miscarriage of justice, given the evidence before the Court.

(iii) Whether the plaintiff can be entitled to the full amount claimed where evidence adduced cannot sustain claim and amount admitted is for a lesser sum.”

However, in arguing the appeal the learned counsel for the appellant found it convenient to argue issue (a) and (b) together, while issues (c) and (d) were also argued together. After a careful appraisal of all the issues formulated above, I am of the view that issues (a) and (b) formulated by the appellant are the two most important issues with practical consequences, while issues (c) and (d) are purely academic or peripheral. This appeal will therefore be disposed of under the first two issues, with issue (b) being taken before issue (a).

Re-Issue (b)

Whether the learned trial Judge was right in dismissing the appellant’s case in its entirety when the respondent admitted that he was indebted to the appellant to the tune of N49.752.00.

In the view of the learned counsel for both the appellant and the respondent, the answer to this question should be in the negative, and so there should be no controversy over it. Both agree in their submissions that it is a cardinal principle of our law as enshrined in Section 75 of our Evidence Act that “facts admitted need not be proved.” therefore since the respondent in paragraph 2 of his statement of defence had admitted owing the sum of N49,752.00., the appellant should have been credited with that amount instead of the whole claim being dismissed. There was divergence of views as to what the final judgment should have been, in view of the fact that respondent had paid a further sum of N40.000.00 during the pendency of the suit in court.

According to the appellant at p.5 of his brief:

“After these proceedings, had been started, the respondent admitted that he was owing part of the debt and actually paid N40,000.00 out of the admitted debt. (See page 25 lines 1 to 2). And the balance now outstanding and for which the appellant asked for judgment is N61,001.00.”

On the other hand, the respondent at page 6 paragraph 47 of his brief under the heading Consequence of Admission had the following to say:-

“It is pertinent however to point out that out of the sum of N49,752.00 admitted by the defendant/respondent, the sum of N40,000.00 has so far been paid leaving a balance of N9,752.00. I refer to p. 24 line 33 to p. 25 lines I – 2 of the record of appeal.”

The short of the foregoing is that while the learned counsel on both sides are agreed that judgment should have been given for the amount admitted by the respondent, they are nevertheless not agreed as to the outstanding balance having regard to the N40,000.00 later paid in court. Be that as it may, the important thing is that the learned trial Judge ought not to have dismissed appellant’s claim in its entirety without giving him credit for the amount already admitted by respondent, part of which was also already paid in court. So this issue must be answered in the negative. As to what the correct balance of the judgment debt should have been will now be considered in the next issues:-

Re-issue (a)

“Whether the learned trial Judge was right when he dismissed the appellant’s case despite the fact that the evidence given by the appellant of the respondent’s indebtedness was never challenged by evidence in rebuttal.”

Under this issue it was the contention of the appellant by their learned counsel, that the learned trial Judge was clearly wrong when he dismissed the appellant’s case. The whole evidence led by the appellants was not challenged by the respondent by evidence in rebuttal.

The case of Isaac Omoregbe v. Daniel Pender Lawani (1980) 3 – 4 S.C. 108 at 177 and other cases cited under it were relied upon as authorities. The learned trial Judge was clearly wrong when he set the pleadings of the respondent against the evidence of the appellants that was not challenged by the respondent. It was then submitted that based on the authorities cited, the learned trial Judge had no alternative but to give judgment to the appellants on their unchallenged evidence. It was trite law that cases before the courts are decided on evidence before the court and not on the pleadings unless there were no issues in dispute between the parties.

The case of Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. & Anor. (1981) 1 NWLR (Pt. 49) 212 at 261 was cited in support. Finally, under this issue, it was pointed out that under the rule in Mogaji v. Odofin (1978) 4 S.C. 91 at 94, it was the practice in a civil case for the court to weigh the evidence of plaintiff against that of defendant in an imaginary scale of justice before deciding which was weightier. But in a situation where a defendant led no evidence at all, as in the instant case, the court had nothing to weigh against the evidence of plaintiff. Therefore, the unchallenged evidence of the plaintiff should clearly carry the day.

In reply to the above, it was submitted on behalf of the respondent that in Civil cases a plaintiff must succeed on the strength of his case and not on the weakness of the defence Kodlinye v. Odu (1935) 2 WACA 336. Therefore where the plaintiff’s case was based on hearsay or otherwise incredible evidence, the court will not act on it. Reference was made to S. 77 of our Evidence Act, which requires that oral evidence must be direct. It was then pointed out that in the instant case the plaintiff relied mainly on the evidence of P.W.1. (the Secretary of the Board) who was employed only in 1986, whereas the transaction testified about took place in 1977 – 78. P.W.1’s evidence was clearly hearsay and could not have been acted upon by the learned trial Judge. P.W.1 purported to have been speaking from records, yet not a single record of the Board was produced to substantiate the allegation that respondent was given 200 control cards to sell in 1978. None of the other documents tendered as Exhibits “C – C1, D and E” could support the appellants’ claim for the sum of N101,001.00. It was conceded that the principle enunciated in the case of Omoregbe v. Lawani (supra) is correct, but it was submitted that where evidence cannot sustain a claim. a plaintiff could not succeed merely because the evidence adduced was unchallenged.

The court was then urged to dismiss this appeal, after giving judgment for the sum admitted.

I have carefully considered all the arguments canvassed above, and came to the following conclusions:-

First there appears to have been some misapprehension on the part of the appellant as to the function of pleadings in our jurisprudence. It does not appear right to me to say that the learned trial Chief Judge should not have looked at respondent’s statement of defence at all, simply because no evidence was adduced by the defence. If the law did not allow him to look at it, how then could he have known that the respondent has admitted owing the sum of N49.752.00 as pleaded in his paragraph 22. The most important function of pleadings was recently stated by the Supreme Court in the case of Morohunfola v. Kwara Tech. (1990) 4 NWLR (Pt. 145) 506: Per Karibi-Whyte, J.S.C. as follows:-

“It has often been stated and well settled that the main function of pleadings is to ascertain with as much certainty as possible the various matters actually in dispute between the parties and to isolate those in which there is agreement. See Oduka & Ors v. Kasunmu & Anor (1968) NMLR 28 at 31.”

From the above, it becomes clear that a trial Judge has a duty before commencement of trial to place the pleadings of both parties side by side, and go through them to see the areas in which there is disagreement. In areas where there are disagreements, issues are said to be joined, and a plaintiff will be expected to prove his case in those areas.

In the instant case the respondent admitted owing N49,752.00 out of total sum of N101,001.00 claimed. That meant that issues were joined as to the balance of N50,249.00 and the appellant was expected to call credible evidence to prove that part of his claim. According to S.77 of our Evidence Act, oral evidence must in all cases be direct, if it relates to a fact that could be seen, then it must be the evidence of a witness who said he saw that thing, if it relates to a fact that could be heard, then it must be the evidence of a witness who said he heard the fact. In the instant case, the fact that 200 control cards were given to respondent to sell to pilgrims in 1978 (which fact was denied by respondent at paragraph 3 of his statement of defence) could be proved by the evidence of a witness who either gave the cards to the respondent or was present and saw when the cards were given, or in the alternative, by the production of any document such as a receipt by means of which respondent acknowledged receipt of the said cards.

In the instant case, the appellant called only his Secretary who was employed only in 1986. Such a witness clearly could not testify about a transaction that took place in 1978. The alternative was for him to have produced a document or documents in which respondent acknowledged receipt of the control cards (since he said he was speaking from their records.) This was not an impossible task, as the same thing is usually done by Bank Managers to prove the indebtedness of their customers in Court.

Frequently a Bank Manager who was not at a particular Branch when a loan or overdraft was granted to a customer, usually come to court several years after to tender ledger cards. Statement of Account or application for overdraft facilities by a customer to prove the customer’s indebtedness to conform with section 96(1)(h) and 2(e) of our Evidence Act. See e.g. the case of Olasehinde v. African Continental Bank Ltd. Ltd. (1990) 7 NWLR (Pt. 161) 180.

In the instant case however, the appellant did not tender any document from its Board in which respondent acknowledged receipt of the 200 control cards, or even showing that such cards were forwarded to him. Under the circumstances, the learned trial Judge rightly rejected the claim concerning the 200 control cards for 1978, valued at N138,200.00. There also appears to have been a misconception on the part of learned counsel for appellant as to what is meant by “unchallenged evidence” which must entitled plaintiff to judgment under the rule in Omoregbe v. Lawani (supra). Such evidence must be the evidence or a “credible witness” and not that of just any witness who gave hearsay evidence as in the instant case. See also the case of Ajao v. Ashiru (1973) 11 S.C. 23 at 86. However, since we have earlier noted that the respondent had himself admitted owing the sum of N49,752.00, which would clearly be in respect of 1977 operation, judgment should have been given to the appellant in respect of the said sum of N49,752.00 less the sum of N40,000.00 admitted on both sides to have been paid in court, leaving a balance of N9,752.00.

There was also the fact that appellant had claimed for interest at the rate of 10% from 1978 until judgment was delivered. Since the respondent did not dispute that aspect of the claim, the said interest should also have been awarded. Under our law unrebutted facts are taken to have been admitted and therefore need no proof. Alagbe v. Abimbola (1978) 2 S.C. 39 at 40. In effect therefore this issue must be answered in the affirmative.

On the totality of the foregoing this appeal succeeds in part and it hereby allowed in part. The judgment of the lower court is hereby set aside. In its place judgment is hereby entered for the plaintiff/appellant in the sum of N49,752.00 admitted by the respondent, less N40.000.00 already paid in court during pendency of the action, leaving a balance of N9,752.00. Interest is hereby ordered to be paid on the said sum of N9,752.00 at the rate of 10% per annum from 27/10/88, when judgment was delivered at the court below till final liquidation of the judgment debt in accordance with Order 40 rule 7 of High Court Civil Procedure Rules 1988 of Bendel State. Cost of this appeal is assessed at N300.00 (Three hundred naira) against the respondent.

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Other Citations: (1994)LCN/0206(CA)

Yahaya Muhammed & Ors V. Mr. Julius Oladimeji Kayode (1994)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

This is an application brought on behalf of the applicants praying this court for the following orders:

1. An order extending the time within which the Applicants may seek leave to appeal from the Rulings of the Kogi State High Court of Justice delivered on the 20th day of May 1993 and 8th day of July 1993 in suit No. KGS/OB/4/92.
2. An order granting leave to appeal from the said Rulings of the Kogi State High Court of Justice delivered on the 20th day of May, 1993 and 8th day of July 1993.
3. An order extending the time within which the applicants may file such appeal, as per the Notices of Appeal containing the grounds of appeal, marked as Exhibits to the affidavit in support of this application and, to deem the Notice of Appeal as properly filed.
4. And for such further and/or other orders as this Honourable court may deem fit to make in the circumstances.

The application is supported by a 4 paragraph affidavit to which the 2 rulings of the lower court and 2 Notices and grounds of appeal are exhibited. Uyi Igunma moving the application for the applicants said he relied on all the paragraphs of the affidavit with the attachments particularly paragraphs 3(f) and 4(a), (b) and (c) which disclosed reasons for the delay.

A 17 paragraph counter-affidavit was filed by the respondent in opposing the application. Mr. Aderinboye had submitted for the respondent that having regard to the principle that justice delayed is justice denied, and the fact that hearing in the case has virtually been concluded by the parties at the lower court this application is nothing but aimed at delaying justice. He relied on paragraphs 4, 5, 6 and 7 of the counter affidavit and 3(f) of the affidavit in support of the application. In particular it was argued for the respondent that the issues raised in the proposed appeals in this application could still be raised in an appeal against the final judgment if the applicants fail to succeed in the case at the lower court on the authority of Bank of Baroda v. Mercantile Bank (Nig.) Ltd. (1987) 6 SCNJ 165: (1987) 3 NWLR (Pt.60) 233 and University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156 at 169. Counsel therefore urged the court to dismiss the application.

In reply, Mr. Igunma relying on the case of Saraki v. Kotoye 11/12 SCNJ Part 1 page 26 at 49, (1992) 9 NWLR (Pt.264) 156 pointed out that the applicants, in the circumstances of this case are not precluded from exercising their right of appeal and therefore urged the court to grant the application.

It is now well settled that for an applicant praying for the grant of extension of time to apply for leave to appeal, leave to appeal and extension of time to appeal, to succeed, the applicant must show good and substantial reasons for not appealing within the prescribed period and exhibit grounds of appeal which prima facie show good cause why the appeal should be heard. In Re-Adewunmi (1988) 3 NWLR (Pt.83) 483 and Co-operative and Commerce Bank (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (Pt.284) 630.

In the present application, the reasons given for the delay in appealing within the prescribed period is contained in paragraphs 3(f), 4(a), (b) and (c) of the affidavit filed in support of the application. These paragraphs read:-

“3(f) That it was only on the 21st day of July 1993 that their counsel advised them on the urgent need to appeal against the aforesaid rulings and they promptly briefed him to appeal.

4. That I am informed by Uyi Igunma Esq., counsel handling the case for the applicants and I verily believe as follows:-

(a) That after he got the applicants’ brief to appeal he had to make arrangement to get certified true copies of the rulings (Exhibits A & B) from the High Court of Justice Obangede.

(b) That because he resides in Katsina State some time elapsed before he could obtain the aforesaid rulings which are necessary for this application.

(c) That the rulings exhibits A & B are crucial to the determination of the substantive suit.’”

The grounds proposed to be canvassed in the two appeals if the application is granted also read as follow in the 1st Notice of Appeal:

“1. The learned trial Judge erred in law when he rejected the two civil subpoenaes marked R4 and R5

PARTICULARS

1. The documents were relevant to the determination of the suit and admissible.
2. The grounds for rejecting the documents are totally irrelevant.
3. The learned trial Judge misdirected himself on the facts when he found as follows. “The defendants’ counsel has sought to put in the civil subpoenaes which are to be served in Onitsha in evidence to show that they could not be served because there was no such address …. The witness testified that he travelled to Onitsha, but could not trace the place.”

PARTICULARS

1. The purpose for which the civil subpoenaes were tendered was to show that the company from which the plaintiff purposely bought spare parts (sic) do not in fact occupy the address given by the plaintiff.
2. The witness testified that he went to that particular address but found a different company there.
3. The decision is unwarranted unreasonable and cannot be supported having regard to the weight of evidence.”

In the second Notice of Appeal the grounds are:-

(1) The learned trial judge erred in law- “when he admitted ‘Receipt from Cinter International Agency Ltd. dated 16 February, 1992 for N72, 283.96 and the one from Oremeji Mechanic works dated 17th February 1992 for N21, 199.33” evidence as Exhibits 2 and 2A respectively.

PARTICULARS

1. The documents were made when the proceeding was pending or anticipated.
2. The learned trial judge did not fully apply the provisions of Section 90(3) of the Evidence Act.
3. The decision is unwarranted unreasonable and cannot be supported having regard to the weight or the evidence

It is pertinent to observe that the two Rulings sought to be appealed against were delivered on 20th May 1993 and 8th July 1993 respectively. However the time allowed for appealing against such interlocutory matters is 14 days under section 25(2) (a) of the Court of Appeal Act Cap 75 of the Laws of the Federation, 1990. This application was filed on 4th August 1993. Evidently therefore, at the time this application was brought there has been some delay of about two months in respect of the Ruling delivered on 20th May 1993, while in respect of the Ruling of 8th July 1993, the delay was only for 16 days.

I am not unaware that in deciding whether to grant or refuse an application for extension of time to apply for leave and extension of time to file notice of appeal, the length of time that has elapsed is always a material factor. In this respect, the applicants who were out of time by about 2 months and 16 days respectively cannot be regarded as having waited for too long before bringing their application seeking the indulgence of this court. In other words there was no culpable delay on the part of the applicants.

Going back to the affidavit in support of the application, it is crystal clear from paragraphs 3(f), 4(a) (b) and (c) earlier quoted in this ruling that the reasons for the delay in the applicants appealing against the said Rulings of 20th May 1993 and 8th July 1993 are solely attributable to the error of judgment on the part of their learned counsel whose duty it was to take the decision to appeal in good time. There is no doubt that in considering an application of this nature, which calls for the exercise of judicial discretion, the court must satisfy itself that the reasons given by the applicant are good and that on the hard facts placed before the court, he deserves to be granted the indulgence being sought. It is well settled that such discretion in the judicial and judicious exercise of the function of the court, ought to be more readily made in favour of an applicant particularly where the delay was due to the fault of the applicants counsel. See Doherty v. Doherty (1964) 1 All NLR 299 and Alagbe v. Abimbola (1978) 2 SC 39.

Where there had been error of judgment on the part or counsel such as in the present application, the correct approach to the mistake vis-a-vis an application for extension of time to appeal is to find out whether having regard to the mistake there is a probability of a miscarriage of justice occurring if the indulgence sought by the applicant is granted. In other words it will be up to the respondent to the application to show in what respect having regard to the mistake he would be prejudiced if the indulgence sought by the applicant is granted. See Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 643. Merely for counsel for the respondent to say as contended in this application that justice delayed is justice denied, will not be enough to establish that the respondent will be prejudiced if the application is granted. For these reasons, I hold that the applicants have adequately explained their reasons for failure to appeal within the prescribed period.

Although learned counsel for the respondent has argued rather strongly that the grant of this application will result in delaying the determination of the case pending at the lower court since the applicants will have a chance of appealing against the same issues at the end of the case if they lost, that argument had been effectively checked by the case of Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 cited by the learned counsel for the applicants. It is clear from that decision of the Supreme Court that the 1979 Constitution has conferred a right of appeal in respect of decisions on questions of law under section 220 (1)(b) thereof to appellants from the decisions of the High Court whether interlocutory or final. The exercise of that right cannot be denied by any other law or authority. It will therefore amount to the violation of the provisions of section 220(1)(b) of the said Constitution to interfere with the exercise of the right even by postponing it to the final determination of the substantive case. This is because in every case there are principal and subsidiary issues in respect of which parties are before the court. Where a subsidiary issue is essential or crucial to the determination of the principal issue in the controversy in respect of which the parties are before the court, as in the present application where there is allegation of wrongful admission and wrongful exclusion of essential evidence crucial to the case of the applicants, the determination of such subsidiary issue by an appellate court cannot wait until the lower court decides the issues before it. This is because other issues in the case are still dependant on the subsidiary issue of whether the alleged wrongful admission and wrongful rejection of evidence was right. Therefore the fact that the applicants will have a chance to appeal against the rulings at the end of the substantive case would not be aground for refusing this application since the respondent has failed to show that he will be prejudiced by the grant of the application.

Now coming to the second requirement of Order 3 Rule 4(2) of the Court of Appeal Rules 1981 of whether the grounds of appeal exhibited to the notice of appeal are grounds which prima facie show good cause why the appeal should be heard, I must say that both proposed notice of appeal in the present application contain grounds of appeal relating to wrongful admission of evidence and wrongful rejection of evidence. Obviously these grounds alone are grounds of law which will require the determination of this court if the application is granted. The applicants’ proposed appeals are therefore far from being frivolous. I think the applicants’ grounds of appeal exhibited in the proposed notices of appeal have disclosed prima facie good cause why the applicants’ appeal should be heard.

For the foregoing reasons, taking all the factors considered in this application into consideration I am inclined to the view that this application ought not be refused. Accordingly the application is hereby granted. Time is extended to today for the applicants to apply for leave to appeal against the rulings of the Kogi State High Court of 20th May, 1993 and 8th July, 1993 respectively. Leave is also granted to the applicants to appeal against the said rulings of the lower court. Time is also extended by 14 days from today within which the applicants may file their notices and grounds of appeal.

The respondent shall have N500.00 costs against the applicants.

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Other Citations: (1994)LCN/0205(CA)

African Continental Bank Limited V. Alhaji Taofiki Aloa (1994)

LawGlobal-Hub Lead Judgment Report

SAMSON ODEMWINGIE UWAIFO, J.C.A. 

The main issues in this appeal concern the Bills of Exchange Act and the Exchange Control Act. They touch upon what to do with a total of forty-five bank drafts with proceeds of ?212,310.00 to which the plaintiff, a Benonois living in Port Novo, claims to be entitled to. The said claim is based on some loans of some amount of unspecified CFA Francs which he allegedly gave to some also unnamed Nigerian traders for the payment of their children’s school fees in the United Kingdom (U.K.) when they met in Cotonou between December, 1980 and January, 1981. The forty-five bank drafts which were said to be in repayment were made payable in the U.K. They were issued by the defendant bank in Lagos, on the application of whom no evidence was led. They were all dated between December, 1980 and January, 1981. The honouring of the drafts ran into difficulty in London. The plaintiff wanted them credited into his account in London. The drafts were not however in his name and were crossed and endorsed ‘A/C payee only. Not negotiable.’9191 The defendant bank in London turned down all efforts by the plaintiff to get the proceeds of the bank drafts.

The plaintiff then took action at the Lagos High Court to seek three declarations and a mandatory order. On 31 May, 1988, C. O. Segun J., granted all four reliefs. The reliefs which the plaintiff claimed against the defendant were stated as follows:-

“1. A declaration that the 45 drafts amounting to #212,310 (Two hundred and Twelve thousand, Three hundred and Ten Pounds Sterling) drawn by the defendant in Lagos on its London branch office and presented to the said London branch office by the plaintiff through his various bankers are valid, properly and regularly, negotiated drafts.

2. A declaration that the said drafts have not expired and are still negotiable.
3. A declaration that the plaintiff is entitled to have the drafts honoured by the London Branch of the defendant.
4. An order of the court compelling the defendant to direct its London Branch to honour the drafts.”

The defendant having complained against the judgment in its appeal to this court, raised the following four issues for determination in its brief of argument:-

“(i) Whether the learned trial Judge in law directed himself properly by entering judgment for the plaintiff/respondent in respect of a transaction whose illegality is not only transparent on the fact of it but also pronounced by statute.

(ii) Whether the learned trial Judge in law directed himself properly by holding that the 45 Bank Drafts tendered in evidence are mere Promisory Notes and therefore not within the provisions of Section 3(1) of Bills of Exchange Act Cap. 21 Laws of the Federation of Nigeria.

(iii) Whether the learned trial Judge erred in law by deviating from and/or not following the Supreme Court of Nigeria decision in Chief Harold Sodipo v. Leminkainen (sic) ANR (1986) 1 S.C. 197 by granting judgment to the plaintiff/respondent.

(iv) Whether the learned trial Judge erred in law by relying only on the single uncorroborated evidence of the plaintiff without more to come to a decision that the plaintiff has an enforceable right.”

I think the issues which really arise from the grounds of appeal are two, namely: (a) whether there was apparent or proved illegality affecting the plaintiff’s cause of action; (b) whether, apart from illegality, the evidence justified the plaintiff’s claim to the proceeds of the forty-five bank drafts.

At the lower court, learned counsel for the defendant, Chief Ezeogu, referred to some paragraphs of the statement of claim as showing the illegal transaction which brought about the plaintiff’s claim of right to the drafts in question. He also specifically pleaded illegality in the statement of defence. In regard to the statement of claim, the plaintiff having pleaded that he did a lot of business with some of his Nigerian friends, averred in paragraphs 4, 5, 7, 8 and 9 as follows:-

“4. Between 1980 and 1981 some of these Nigerians in the ordinary course of business, approached the plaintiff in Benin or/and in Europe to enable them settle various schools and universities bills of their children and dependants in Europe and America thus sparing such children and dependants hardship and inconveniences which late settlement of schools and other bills might entail.

5. The Nigerian friends who approached the plaintiff to accommodate them as stated in the foregoing paragraph did so because of the long delay in their getting the Central Bank of Nigeria’s approval for Foreign Exchange applications to enable them remit funds to their children and dependants abroad.
6. The plaintiff granted the requests of his Nigerian friends in this regard and provided funds abroad to them through his country’s local currency, the C.F.A. Francs which is fully and freely convertible in the world currency market being aligned to French Francs.
7. When the Nigerians eventually obtained the foreign exchange approvals from the Central Bank of Nigeria, the drafts issued by the defendant to the Nigerians in relation to the school fees and maintenance allowance of their children and other dependants were passed to the plaintiff in settlement and reimbursement of the sums earlier advanced by him.
8. The plaintiff and the said Nigerians also agreed on how to meet any shortfall or surplus as the case might be, should there be any shortfall or surplus after the plaintiff would have collected the proceeds of the drafts.
9. The plaintiff received altogether 45 drafts from the Nigerians pursuant to this arrangement the total value of which was ?212,310. The particulars of the drafts are set out in the schedule to this statement of claim.”

The plaintiff in his testimony said he had helped seven Nigerians the same way previously and that he was able to claim the proceeds of seven bank drafts which they later brought to repay him. I must say that there is of course no evidence whatsoever to support this. But even if there had been such evidence it would have no bearing on whether the present transaction was illegal. The plaintiff further said:-

“After this transaction (meaning of those seven bank drafts), other customers of mine came seeking for my help in the same way. This was between December, 1980/January, 1981. The customers were all from Nigeria and I decided to help them like the first one. I loaned them the money and transferred the money to their children through my bank and they came back with their bank drafts and remittance slips. The drafts were endorsed at the back for me by them and paid into my account. In all 45 bank drafts were brought down by the defendants in Lagos on its London Branch Office.”

The drafts were admitted in evidence and marked exhibit A to A44.

From the above quoted evidence taken along with the paragraphs of the statement of claim already reproduced above, and what has since transpired, it appears that (1) the said unnamed Nigerians negotiated and obtained loans in foreign currency from the plaintiff; (2) the said loans were to be repaid from the foreign reserve of Nigeria; (3) the loans were negotiated and obtained between December, 1980/January, 1981; (4) the repayment of the loans as per Exhibits A to A44 is what the plaintiff sought to enforce by the action he subsequently brought. I make the following preliminary comments: Not one of those Nigerians was pleaded by name and none testified as to the amount of CFA Francs he received as loan. He did not produce any document in support of his having sent the money through his bankers to the children of the alleged Nigerians in the U.K.

It will be noted further that the reason given for the said Nigerians approaching the plaintiff for urgent assistance is the delay in getting the Central Bank of Nigeria to give approval for the remittance of money to their children. In the present case, the loans were said to have been given between December, 1980 and January, 1981. Yet, an examination of the 45 bank drafts (Exhibits A to A44) shows that the earliest one was issued on 10/12/80, 2 others on 15/12/80 and 17/12/80 respectively, 6 on 29/12/80, 2 on 30/12/80, 28 in January, 1981 (most of them early January) and 6 in the first week of February, 1981. It follows that it was about the same time that the alleged loans were given that the bank drafts were issued. One may then ask what delay by the Central Bank the said Nigerians were worried about that made them approach the plaintiff?

From all the preliminary comments I made above and as further noted, the proximity between the time of the alleged loans and the issuance of the bank drafts is relevant for consideration in the present case because the defendant pleaded in sub-para. 18(2) of particulars of fraud that all or most of the applications made for foreign exchange to the Central Bank of Nigeria in respect of the 45 bank drafts were fraudulently made in the names of non-existent educational institutions or students in the United Kingdom. It pleaded certain documents including a letter addressed to the defendant branch in London by the South Coast International School of Management Marketing and Sales Ltd., Bournemouth, on 27 October, 1983 by a certain Babatunde Adio (one of the so-called student beneficiaries of the bank drafts). It reads;-

“Your letter dated 24 October, 1983 refers. We regret to have advise you that the above-named has never been a student at this school and is unknown to us. In addition the letter purportedly from us to the Central Bank of Nigeria is not genuine and the signatory Moris Bruce-Foreign Students Adviser’ is not and has never been an official of this school.

We intend very shortly to take this matter up with the Nigeria High Commission in London and we are also advising the local police.”

The letter and three annexures were admitted as exhibits E, E1-E3. The draft involved, exhibit A19, was for ?8,800.00. There was also evidence that most of the schools or institutions where some student beneficiaries were said to attend were non-existent.

This obvious evidence of an attempt to swindle from this country’s foreign exchange reserve escaped the thoughtfulness of learned counsel for the plaintiff, Mr. Alao Aka-Bashorun. First, he submitted in the count below that the drafts are not bills of exchange but promissory notes and that the defendant is bound to honour them. Second, that the evidence led by the defendant that the schools were non-existent went to no issue and that being an allegation of crime it must be proved beyond all reasonable doubt. The learned trial Judge held that the drafts were promissory notes. He added: “If Exhibits A to A44 are mere promissory notes made by the defendant/bank to pay the amount stated therein, then they are bound to pay up”. As regards the schools, he said: “The evidence given by them was that the schools mentioned in the various drafts were non-existent. This is an allegation of crime and proof beyond all reasonable doubt is required to sustain it.”

I have illustratively referred to only two aspects of the submission of learned counsel for the plaintiff and the reliance on them by the learned trial Judge to eventually give judgment for the plaintiff. That was how all other untenable submissions of learned counsel for the plaintiff were accepted. That was how, in particular, the learned Judge avoided the effect of the decision in Sodipo v. Lemminkainen OY (No.2) (1986) 1 NWLR (Pt.15) 220 which was cited to him by learned counsel for the defendant. He went to rely on the definition of ‘securities’ under section 2(1) of the Exchange Control Act 1962, which has no bearing whatsoever on the issue at hand, when what his attention was drawn to was section 3(1) of the Bills of Exchange Act as to what a bill of exchange is, and then held that the bank drafts were promissory notes. He further said inter alia:-

“It seems to me from the above provisions of section 2(1) that the Exchange Control Act has removed promissory (sic) notes out of the application of the Act. It would therefore not apply to the transaction which is the subject matter of this action. There cannot therefore be a contravention of any of the provisions of the Exchange Control Act 1962 and the transaction cannot be illegal nor tainted with illegality under the Laws of this country. If it is illegal, this court would not lend its aid to enforcing it… The evidence shows clearly that the plaintiff and the said citizens of this country discussed the transaction in Cotonou, Republic of Benin and came to terms whereby the bank drafts were handed over to the plaintiff in that country. The offer was, presumably, made without dissimulation, in a quixotic attempt to help business associates in need. The plaintiff in my opinion has an enforceable right against the defendants who issued the drafts to their London Branch asking that branch to pay the amount stated therein.”

I cannot pretend to follow the reasoning in the above-quoted passage nor to comprehend how, even if the drafts were promissory notes intended to repay foreign currency loans which had allegedly been received, the transaction would not be a contravention of the Exchange Control Act in the circumstances of this case. In my view, the learned trial Judge was in error to have held first, that the bank drafts were not bills of exchange but promissory notes and secondly, that there was no illegality in the transactions. In Black’s Law Dictionary 5th Ed. page 215, a cheque is defined as: “A draft drawn upon a bank and payable on demand, signed by the maker or drawer, containing an unconditional promise to pay a sum certain in money to the order of the payee.” At page 132, a bank draft is called a cheque, draft or other order for payment of money, drawn by an authorised officer of a bank upon either his own bank or some other bank in which funds of his bank are deposited. It is plain that a bank draft is a cheque: it is sometimes called a certified cheque.

By Section 73 of the Bills of Exchange Act (as codified) in Cap. 113 vol. II Laws of the Federation of Nigeria, 1990, the following definition of a cheque is given:

“73. A cheque is a bill of exchange drawn on a banker payable on demand; and except as otherwise provided in this part, the provisions of this Act applicable to a bill of exchange payable on demand apply to a cheque.”

A cheque or bank draft is therefore an aspect of a bill of exchange which itself is defined in section 3(1) as follows:-

“3(1) A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to or to the order of a specified person, or to bearer.”

The plaintiff himself treated the drafts in question as cheques. He paid them into his bank account in Cotonou for clearance in London into his bank account there. That means he regarded them as a means of payment, bills of exchange. Section 5 of the Bills of Exchange Act provides:-

“5(1) A bill may be drawn payable to, or to the order of, the drawer; or it may be drawn payable to, or to the order of, the drawee.

(2) Where in a bill the drawer and the drawee are the same person, or where the drawee is a fictitious person or a person not having capacity to contract, the holder may treat the instrument, at his option, either as a bill of exchange or as a promissory note.”

Provisions similar to Sections 3(1) and 5 of the Bill of Exchange Act were considered in the rather technical decision of the House of Lords in Gordon v. London City and Midland Bank Ltd. (1903) A.C. 240 where it was held that a bankers’ draft payable to order on demand addressed by one branch of a bank to another branch or head office of the same bank and not crossed is not a cheque. Although in the present case the drafts were addressed by one branch of the defendant bank to another, they were all crossed, unlike those in the Gordon’s case. Lord Lindley observed at page 250:-

“But I agree with the Court of Appeal in thinking that the bank, which is both drawer and drawee of these instruments, is not entitled to treat them as bills of exchange as defined in S. 3 of the Bills of Exchange Act, although a holder may sue the bank upon them, and treat them either as bills of exchange or as promissory notes: see S. 5 sub. s. 2.”

It seems to me unrewarding for the plaintiff to have argued and for the learned trial Judge to have accepted the argument that the drafts were not bills of exchange but promissory notes. They were obviously a medium of payment in pounds sterling – a foreign currency. That was the material issue. It is what brings about the illegality under section 7(e) of the Exchange Control Act.

It is without dispute clear that the plaintiff’9191s action is founded on the loan transactions he said he entered into with some (unnamed) Nigerians by which he loaned them, according to him, CFA Francs in Cotonou to the value of ?212,310.00 and the promise by those Nigerians to repay him in pounds sterling. The said promise, according to him, was sought to be fulfilled by the procurement of 45 bank drafts issued in the names of various persons and institutions but the proceeds of which he has been unable to realise. These matters involve foreign exchange control. I must therefore turn to the Exchange Control Act. Section 2(2) provides:

“2(2) The obligations and prohibitions imposed by this Act shall, unless otherwise prescribed, apply to all persons ‘notwithstanding that they are not in Nigeria and are not Nigerian citizens.”

I shall next refer only to section 3(1) and 7(c) in view of the facts of this case. Section 3(1) provides:-

“3(1) Except with the permission of the minister, no person other than an authorised dealer, shall, in Nigeria, and no person resident in Nigeria other than an authorised dealer, shall, outside Nigeria, buy or borrow gold or foreign currency from or sell or lend any gold or foreign currency to any person other than an authorised dealer. Section 7(c) states:-

“7. Except with the permission of the minister, no person shall do any of the following things in Nigeria, that is to say: –

………………………………………………………..

(c) make any payment whatsoever in respect of any loan, bank overdraft or other credit facilities outside Nigeria.”

From the facts relied on by the plaintiff, some Nigerians resident in Nigeria took loans of CFA Francs (i.e. borrowed foreign currency) from him in Cotonou. That clearly contravenes section 3(1) of the Exchange Control Act without the minister’s permission, he not being an authorised dealer. Later, those Nigerians made payment in respect of the said loans outside Nigeria by procuring 45 bank drafts encashable in the U.K. This contravenes section 7(c) being without the minister’s permission. Both acts are consequently illegal. The first act which contravenes section 3(1) and the second act which contravenes section 7(c) apart from being illegal are now criminal offences under sections 1(1)(e) and 1(1)(d)(iii) respectively of the Exchange Control (Anti-Sabotage) Act, 1984 now in Cap.114, Vol. II Laws of the Federation of Nigeria, 1990 and severely punishable.

The illegality involved in this matter has been the pith and substance of the defence in the court below and the defendant/appellant’s argument in this appeal. I do not think, with due respect, that Mr. Nwadialo for the respondent has any reply to that contention. He says in the respondent’s brief: “It was for the Nigerians who borrowed the moneys from the respondent in Benin Republic to obtain any necessary permission required for such external loans under the law of their country. This was certainly not the concern of the respondent”. As already shown, the Exchange Control Act applies to both Nigerians and non-Nigerians. Once illegality is committed, a transaction under the Act is not spared simply because the plaintiff who relies on it is not a Nigerian, or that the person who normally should ensure that the minister’s permission was obtained did not do so. The transactions are simply tainted with illegality and no action is available to any of the parties: exturpi causa non oritur actio. All through the said brief I have been unable to find, with due respect, any submission of substance worthy of attention.

The law has been well established in this country on the effect of illegality on a transaction. As was held to be the law in Onyinke v. Okeke (1976) 10 NSCC 146 at 150, when the object of either the promise or the consideration is to promote the committal of an illegal act, the contract itself is illegal and cannot be enforced. In my view, an act which is directed at repaying an illegal loan is itself illegal because it is a promise to promote obligations arising out of the very act of the illegal loan. It is as much as illegal as the execution of a deed of charge in respect of gaming debts which by virtue of the Gaming Act 1835 were deemed to be illegal as in Williams Hill (Park Lane) Ltd. v. Hofman (1950) 1 All E.R. 1013.

In Sodipo v. Lemminkainen OY (1985) 2 NWLR (Pt.8) 547, Aniagolu, J.S.C. in his leading judgment said at 557-558 inter alia:

“No court… ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court….

It mattered not whether the defendant pleaded the illegality or not. If the evidence adduced by the plaintiff proved the illegality, the court ought not to assist him… A contract may be against public policy either from the nature of the acts to be performed or from the nature of the consideration. Where the illegality of the contract, although not pleaded, is disclosed in the evidence it is the duty of the court to take objection…

The same principle applies in respect of a contract which is made illegal by a statutory order, even though the question of illegality is raised by the party who has been guilty of it, and even though the other party honestly believed, as a result of the statements made to him by the party guilty of the illegality, this no breach of the order was being committed, the reason for this attitude of the law being that the contract sought to be enforced was altogether prohibited.”

These views were largely reiterated in Sodipo v. Lemminkainen OY (No.2) (1985) 1 NWLR (Pt.15) 220 where also section 3 of the Exchange Control Act was considered. They are aptly relevant to this case and answer Mr. Nwadialo’s submission that it was the responsibility of the Nigerians who borrowed CFA Francs from the plaintiff to get the necessary permission.

I believe it must be clear beyond doubt that the plaintiff, upon the combined effect of sections 3(1) and 7(e) of the Exchange Control Act, cannot seek the aid of the Court to have the reliefs he has sought. The entire transaction from the pleading and evidence of the plaintiff is illegal and the so-called obligations arising out of the procurement of the bankers’ drafts are equally illegal and unenforceable.

I will add that from the nature of the evidence in this case, particularly having regard to exhibits E, E1 to E3, it would appear that the plaintiff in collaboration with others had contrived to benefit unlawfully from the foreign exchange reserve of this country. It seems to me that no part of the ?212, 310.00 was intended to meet educational fees. I cannot forbear to draw attention to the implication of what had happened. The plaintiff had resorted to subterfuge to deplete for personal and diabolical ends the foreign reserves of this country. He flouted the law of the land.

He is an alien but some Nigerians collaborated with him. This instance might, must be, is, a tip of the iceberg. In the prevailing world economic order, it is no exaggeration to say that a buoyant foreign reserve is the life-blood of our development. It ought not to be allowed to be misused. It appears in this case to have been attempted to be done with much ease just by presenting fake documents.

All that is frightening enough. But what I find extremely worrying is that in the face of the clear illegality and fraud shown, the effort nearly received judicial approval.

I think it is necessary to advise that trial courts should take a firm stand against illegality (and fraud) properly brought to their attention, and proved, for, as said by Bairamian J. F. in George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117 at 121,”… the courts administer the law of the land and will not help a plaintiff who breaks it.” In the same case at page 120, the Federal Supreme Court quoted with approval the observation of Kennedy, J., in Gedge v. Royal Exchange Assurance Corporation (1900) 2 Q.B. 214 at 220, part of which reads:-

“No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality.”

This admonition cannot be more relevant for strict and uncompromising compliance than in the observance of the Exchange Control Laws. For this reason and others already given the decision of the learned trial Judge in this case is entirely perverse and cannot be allowed to stand. He unfortunately overlooked patent illegality and fraud.

I accordingly allow the appeal and set aside the judgment of the lower court together with the order for costs. I would instead dismiss the action. I would in addition order that the 45 bank drafts be impounded and photostat copies of them immediately brought to the notice of the Minister of Finance and also the Attorney-General of the Federation and Minister of Justice together with each of this judgment for their necessary attention. I award the defendant/appellant N2,000.00 as costs in the court below and N2,500.00 as costs in this court against the plaintiff/respondent.

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Other Citations: (1994)LCN/0204(CA)

Apav Agbanyi V. The State (1994)

LawGlobal-Hub Lead Judgment Report

ADRIAN CHUKWUEMEKA ORAH, J.C.A.

On 26th November, 1992, the appellant was convicted in the Katsina-Ala High Court of Benue State by E. Ekpo, J. in charge No. KHC/17C/89 for an offence of mischief by fire contrary to Section 337 of the Penal Code.

The charge read as follows:-

“That you Apav Agbanyi, on or about the 21st day of March, 1989, at Mbagena Kpav, Shitile committed mischief by fire to wit by setting ablaze two thatched houses belonging to one Suega Ande intending to cause the destruction of the buildings ordinarily used for human dwelling and custody of property and thereby committed an offence punishable under Section 337 of the Penal Code”.

A.N. Awulu Esq. State Counsel, Ministry of Justice, Katsina-Ala brought an application dated the 29th day of August, 1989 for leave to prefer a charge in the High Court under Section 185(B) of the Criminal Procedure Code. It is stated in the application, that no proceedings under Chapter XVII of the Criminal Procedure Code have been taken, it is in the interest of justice to have the accused person tried summarily and that evidence contained in the proofs of evidence shall be available at the trial are true to his knowledge, information and belief.

Ikongbe, J, granted the applicant leave under Section 185(B) of the Criminal Procedure Code to prefer the charge and fixed the case for hearing on the 13th day of September, 1989. On record, the case came up for hearing two times on 22nd January, 1992, and on 18th February, 1992, was adjourned until 6th April, 1992, when P.W.1 testified.

The facts of this case which are quite straight-forward are as follows:-.

P.W.1 Suega Ande, a farmer from Mbagena Shitile alleged, that the accused person Apav Agbanyi from Mbagena Kpav, on 21st March, 1989 set ablaze his two dwelling houses at Mbagena Shitile. The two houses were burnt down. The accused person denied setting the two houses ablaze. He pleaded Alibi saying, that he was working behind his house with Agbidye Aba and two named others, when P.W.1 came to his house and called him by name – “KPAV, KPAV – You are here but my house is burning”. The accused said, that P.W.1 levelled the allegation against him because of a long standing dispute.

At the trial and hearing of the case, the prosecution called three witnesses. The prosecution witnesses are P.W.1 Suega Ande the owner of the two houses set ablazed, P.W.2. Teghtegh Agum an uncle of P.W1.1 both of whom are of the same grand father and P.W.3 Police Corporal Francis Tysor Investigating Police Officer (I.P.O.), who was at the time attached to the Police Post Abiji.

The accused person Apav Agbanyi who testified as D.W.1. pleaded alibi saying, that he was not at the scene at the time and place. D.W.1 called one witness D.W.2 Agbidye Aba his cousin who testified in his defence. At the end of the trial, the learned trial Judge after a consideration of the evidence adduced, held,-

“The defence offered is simply not there. It is lacking in substance and has not discredited nor contradicted the evidence of the prosecution“. (Italics mine).

Continuing, the learned trial Judge said:

“I am, therefore, convinced beyond reasonable doubts that the charge against the accused has been proved. Accordingly, the accused is hereby convicted as charged for the offence of mischief by fire to the two huts belonging to P.W.1. The offence is punishable under Section 337 of the Penal Code”

After the allocutus, the convict persisted in his innocence and pleaded with the Court to reduce his sentence on the grounds, that the allegation was leveled against him because of a long standing dispute between him and P.W.1. The convict pleaded for leniency saying, that he has a wife and two children whom he takes care of.

Dissatisfied with the said judgment, the accused person gave notice of appeal dated 18th December, 1992 with four grounds of appeal (see pp.25-26 of the Records). The accused person shall hereinafter be referred to as the appellant and the State as the Respondent.

The appellant’s four grounds of appeal with their particulars are as follows:-

“1. The trial learned Judge misdirected himself on the onus of proof when he held that the Alibi of the Defence was “lacking in substance, and has not discredited nor contradicted the evidence of the prosecution”, and this occasioned a miscarriage of justice.

Particulars of Error

(a) In criminal cases the onus remains on the prosecution to prove the guilt of the accused.

(b) The only onus on the accused person is the evidential burden.

(c) The misapprehension on the onus therefore affected the Judge’s credibility of the Defence witnesses.

2. The learned trial Judge erred in law when he convicted the accused person thus rejecting his defence of alibi pleaded and established on the evidence.

Particulars of Error

(a) There was material contradiction in the evidence of the prosecution witnesses on the date of the alleged offence.

(b) The alibi raised by the accused person was not investigated or rebutted by the prosecution evidence. ‘

(c) The prosecution did not prove date and time of the offence.

3. The sentence was excessive in view of the circumstances especially the insistence of the accused/convict by the existing animosity between P.W.1 and himself, and the fact that there was no record of previous conviction against the accused.
4. The Judgment is unwarranted, unreasonable and cannot be supported having regard to the evidence adduced.”

In my view, the four grounds of appeal on record are precise and cogent to this appeal. The particulars of grounds 1 and 2 are herein-above reproduced. The part of the decision and the reliefs sought are not stated though they are apparent from the grounds of appeal.

Briefs of arguments were duly filed and exchanged. Based on the said grounds of appeal, the following two (2) issues for determination are formulated on behalf of the appellants –

“1. Whether the learned trial Judge properly considered the defence of Alibi raised by the appellant and properly apprehended the onus and standard of proof thereof.

OR

Whether the learned trial Judge misdirected himself in the assessment of evidence offered as ALIBI and wrongly placed the burden of proof and standard of proof of the said defence of Alibi on the appellant.

2. Whether the sentence was excessive in the circumstances.

The respondent raised three (3) issues which he called Questions for determination in his brief namely:-

“A. Whether or not the trial Judge was justified in finding that it was the appellant who set fire and burnt down the two thatched houses of P.W.1 Suega Ande. (Vide grounds 2 and 4)

B. Whether the defence of Alibi raised by the appellant at the trial was proved amidst the uncontradicted and unchallenged evidence by the prosecution. (Vide ground 1)

C. Was the sentence passed on the appellant by the lower court excessive (Vide ground 3).”

All the issues formulated by both the appellant and the respondents are based on and related to the grounds of appeal filed. The respondent’s issue ‘C is the same as the appellant’s issue two (2). I must however, here observe that the two issues for determination raised by the appellant will suffice in the determination of this appeal. The appellant’s two issues for determination are precise, cogent and encompass all the relevant points raised in the grounds of appeal and include the respondent’s issues for determination. Issue No. 1 covers grounds 1, 2 and 4, while Issue No.2 covers ground 3 of the grounds of appeal.

Upon argument of the appellant before us, T.A. Kune learned counsel for the appellant adopted appellant’s brief of argument filed in court on 9th July, 1993. He urged the court to allow the appeal, set aside the conviction and sentence and acquit the appellant.

In reply, Mr. S. Haruna, learned counsel of the respondent adopted respondent’s brief filed in court on 14th October, 1993 in its entirety. He urged the court to dismiss the appeal as lacking in merit and affirm the decision of the Benue State High Court.

Both counsel for the parties had nothing more to add in oral argument by way of emphasis to elucidate arguments in their respective briefs. On issue No. 1,-

Whether the learned trial Judge properly considered the defence of alibi raised by the appellant and properly apprehended the onus and standard of proof thereof,

or

Whether, the learned trial judge misdirected himself in the assessment of the evidence offered as alibi and wrongly placed the burden of proof and standard of proof of the said defence of alibi on the appellant,

it is submitted in appellant’s brief that in criminal cases, the onus or burden of proof remains throughout on the prosecution to prove the guilt of the accused person by virtue of s.137(1) of the Evidence Act. If there is any reasonable doubt of the guilt of the appellant from the evidence adduced by the prosecution, the court must discharge the appellant: (See Woolmington v. D.P.P.) (1935) AC 462 at 481.

It is further submitted that the only onus on the accused person who raised an alibi in his defence is the evidential burden. The appellant in Exht. ‘A’ in his statement to the police, has put the prosecution on notice of his defence at the hearing. In Exht. ‘A’ the appellant gave particulars of his alibi to the effect, that he was not at the scene and time of the crime on the said date (see Ozaki v. The State (1990) 1 NWLR (Pt. 124) 99).

It is submitted, that the alibi raised by the appellant was not investigated or rebutted by the prosecution. It was therefore the duty of the prosecution, especially the I.P.O. to investigate the truth or otherwise of the alibi especially, in this case where the appellant gave particulars of his whereabouts and the name(s) of person(s) with whom he was throughout the day up to the time when P.W.1 came and accused him of having set his two thatched houses on fire. (See Obide v. The State) (1970) NSCC 31 cited in support.

It is further submitted that the misapprehension of the onus on the appellant on a defence of alibi affected the Judge’s credibility of the defence witnesses whereby, the trial Judge elevated the evidential burden on the appellant, when he held that, – “the defence is lacking in substance and has not discredited nor contradicted the evidence of the prosecution”, and went ahead and convicted the appellant.

It is submitted, that the failure to investigate the alibi set up by the appellant by the I.P.O. who visited the scene of crime should have raised reasonable doubts in the mind of the trial Judge, there being no burden of proof imposed on the appellant to establish an issue e.g. alibi as a defence to a charge. Therefore, where as in this case, the appellant puts forward an alibi, the onus is not on the defence but on the prosecution to disprove it. See Yanor v. The State (1965) NMLR 337; Ikono v. State (1973) 5 S.C. 231 at 256; 1 All NLR 598 cited in support. The failure to investigate the alibi put forward by the appellant, could have provided the measure to test the credibility of P.W.1 and P.W.2 against that of D.W.1 and D.W.2 occasioned a miscarriage of justice. It is submitted, that this was the only litmus test that would have determined the cogency and the proper weight to attach to the evidence of each witness. It is immaterial that P.W.1 and P.W.2 knew the appellant before the date of the offence and purportedly fixed him at the scene of crime. The learned trial Judge therefore, erred in his assessment and rejection of the appellant’s plea of alibi and this error occasioned a miscarriage of justice see Akpan Ikono & Anor. v. The State (1973) 1 All NLR (Pt. 1) 598 at (1973) 5 SC 231.

It is further submitted, that there were material contradictions in the evidence of the prosecution witnesses on the date of the offence. P.W.2 did not even know the year of the offence and unlike P.W.1, did not see the commission of the offence. P.W.1 and P.W.2 testified on 6th April, 1992. From the evidence of P.W.1, ‘that the offence took place 5 years ago’, it could not have taken place on 21st day of March, 1989 as alleged or at all, because from 21st March, 1989 to 6th April, 1992, when P.W.1 and P.W.2 testified, it was only 3 years and 15 days. The date of the offence was not established and the learned trial Judge was in error, when he held, that the D.W.1 (appellant) himself under cross-examination confirmed that the incident took place on 21st March; 1989.

It is therefore submitted, that where the date of the offence is not proven with certainty, the issue of P. W.1 fixing the appellant at the scene of crime did not even arise, so also the purported confirmation by the appellant. It is submitted, that while the trial Judge said, he disbelieved the appellant was outside the scene of crime and held that the incident occurred in the early morning of 21st march, 1989, before 2.00 p.m. when P.W.1 came complaining at D.W.1’s compound, the time of the offence was not proven by any of the prosecution witnesses. None of the prosecution witnesses gave evidence as to the precise time of the incident so as to test their credibility against that of D.W.1 and D.W.2.

Again, it is submitted that P.W.2 knew of the offence because P.W.1 was shouting the name of the appellant. This evidence is circumstantial and to ground a conviction, it must be unequivocal, positive and point irresistibly to the guilt of the appellant see Lori v. The State (1980) 8-11 SC 81 at p. 86 cited in support.

In reply to issue No. 1, it is submitted in Respondent’s brief, that, there are two eye witnesses P.W.I and P.W.2 who saw the appellant set ablaze and burnt down the two thatched houses of P.W.1 on 21st March, 1989 at Mbagena Shitile. That P.W.1 and P.W.2 could not remember the exact date of the offence does not in anyway discredit the case for the prosecution as the date is not part of the essential ingredient of the offence of mischief by fire contrary to Section 337 of the Criminal Code required to be proved by the prosecution.

It is submitted, that the appellant himself was defending an offence alleged to have been committed on 21/3/89 and under cross-examination, admitted, that the incident took place on 21st March, 1989. (See p.12 lines 8-12 and p.14 lines 3-14). The appellant was not misled in his defence and his conviction on the credible evidence led by the prosecution had not occasioned a miscarriage of justice.

The appellant having been fixed at the scene of crime on the date of the incident which the trial Judge believed, his plea of alibi has been physically demolished and destroyed, more so when he has not supplied the particulars to his alibi (See The State v. Ezekiel Adekunle) (1989) 5 NWLR (Pt. 123) 505 (1989) 12 SCNJ 184 at 190 para 40; Patrick Njovens & Ors v. The State (1973) 1 NMLR 331 (1973) 1 All NLR (Pt. 1) 441 in support.

The prosecution has therefore, proved its case beyond reasonable doubt as required by Section 137(1) of the Evidence Act and this must be so, since the appellant in Exhibit ‘A’ – his extra-judicial statement to the police, merely stated, that he was in his father’s compound on the date of the incident i.e. on 21/3/89 and gave names of D.W.2 and two others without particulars, whereas in his oral testimony in court, the appellant testified, that himself, D.W.2 Ashika Aba and Nongon Tule went out to cut ~grass and admitted in cross-examination, that portions of his oral testimony in court was not in Exht A. It is submitted, that where the accused’s previous statement to the police is inconsistent with his oral testimony in court the oral evidence in court should be treated as unreliable and his previous statement not evidence upon which the court can act. See Francis Asanya v. The State (1991) 3 NWLR (Pt. 180) 422 (1991) 4 SCNJ 1 at pp. 15-16 and paras 5 – 10.

It is finally submitted in respondent’s brief, that the issue in this case, turned on credibility of witnesses both for the prosecution and the defence. The learned trial judge alone had the singular opportunity of watching the demeanour of all the witnesses in this case. It has not been shown that the learned trial Judge was perverse in his conclusion and to that extent, the Court of Appeal will hesitate to overtull1 the former’s decision on the point. See Sunday Udoji v. The State (1984) 12 S.C. 139 at p.176; Afolayan v. Ogunrinde (1986) 3 NWLR (Pt.26) 29 at pp. 34 – 35; Okafor v. The State (1991) SCNJ 103 page 25 – 30; Okafor v. State (1990) 1 NWLR (Pt.128) 614. The respondent urged the court to affirm the judgment of the court below.

I have very carefully read through and summarized the arguments of learned counsel both for the appellant and the respondent in their briefs. A summary of the points argued in the appellant’s brief border on the following:-

(i) The onus of proof upon the prosecution to prove its case beyond reasonable doubt generally as a matter of fundamental principle of law ha, not been discharged.

(ii) Where the only defence raised as a defence to an offence is one of alibi, the evidential burden placed on the accused is to adduce evidence in support of his alibi. No burden is cast upon the accused to prove his innocence, to discredit or contradict the prosecution’s evidence.

(iii) The need to investigate the alibi raised by the appellant where he has supplied sufficient particulars and the consequences in default of investigation. The alibi was not investigated and is therefore fatal to the charge.

(iv) Finally, the consequences of misapprehension of the evidential burden on the appellant who raised an alibi as a defence on which misapprehension the learned trial Judge misdirects himself or the jury in coming to a conclusion in his verdict is a miscarriage of justice.

Against these firm grounds contended by the appellant in this case, are the following contention of the respondent, namely:-

(a) That there are two eye witnesses P.W.1 and P.W.2 who saw the appellant set ablaze and burnt down the two thatched dwelling houses of P.W.1 at Mbagena Kpav Shitile on 21/3/89.

(b) The appellant having been fixed at the scene of the crime on the date of the incident, which the learned trial judge believed, his plea of alibi has been physically demolished and destroyed, more so when the appellant did not supply the particulars of his alibi.

(c) The learned trial Judge who had the singular opportunity of watching the demeanour of witnesses and hearing their evidence was thereby right in disbelieving the appellant’s alibi and holding, that the prosecution has proved its case beyond reasonable doubt, more so, when the appellant’s extra-judicial statement to the police was inconsistent with his oral testimony in court.

There are a plethora of decided cases on alibi, perhaps more than on any single issue of law, and because, no facts of any case are exactly the same as that of every other case. I have made the above summaries in this case which are fairly exhaustive, based on the facts of this case and the arguments raised on both sides. I therefore propose to treat the special facts of this case along the foregoing summaries. I note of course, that this Division of the Court of Appeal has no single copy of any Supreme Court of Nigeria Judgments at all in our Library and those cited in this case by learned counsel were not supplied to us. I do not therefore propose to deal with the only cases cited in this appeal.

It is a cardinal principle of Criminal Law in all cases, that the burden of proving that a person has been guilty of a crime or wrongful act, subject to certain exceptions is on the prosecution. The principle that the onus of proving a criminal case beyond reasonable doubt, means, that the primary onus of establishing the guilt of the accused is always on the prosecution except in very special limited circumstances like cases of insanity where the law presumes an accused sane and casts on him the onus of proving the contrary. Where the prosecution has made out o a prima facie case, which if unanswered will lead to the conviction of the accused, the accused has a duty of adducing such evidence as would make the court find any issue in his favour.

In this case, P.W.1 and P.W.2 testified, that the accused/appellant set ablaze and burnt down two thatched dwelling houses of P.W.1 at Mbagena Kpav Shitile on 21st March. 1989. P.W.1 and P.W.2 are blood relations. The appellant from the word go, pleaded alibi, saying that he and D.W.2 were together in appellant’s father’s compound throughout on 21/3/89. The appellant supplied the necessary particulars of where and with whom he was at all material times. In addition, the appellant alleged, that. P.W.1 levelled the allegation against him because of a long standing dispute between them. Both P.W.1 and P.W.2 also testified to the same effect. Again D.W.1 and D.W.2 like P.W.1 and P.W.2 are also blood relations. P.W.3 – the I.P.O. did not at all investigate the said alibi.

The learned trial Judge after considering the whole evidence disbelieved the alibi set up by the appellant and held as follows that:-

“The defence offered is simply not there. It is lacking in substance and has not discredited the evidence of the prosecution”.

It is submitted by the appellant, with which I am in agreement, that the onus on the accused who pleaded alibi in this case is the evidential burden. The learned trial Judge therefore, misapprehended this onus which affected his credibility of the defence witnesses and therefore occasioned a miscarriage of justice.

There is no onus on an accused who set up alibi as a defence to prove his innocence, to discredit or contradict the evidence of the prosecution. The burden of proof of the guilt of the appellant, despite the plea of alibi, remains fixed on the prosecution to prove his guilt beyond reasonable doubt.

The only burden or onus on the appellant on a plea of alibi is merely to put forward evidence accordingly; the onus is not on him to prove such a defence but on the prosecution to disprove it. See Sekeri Abudu v. The State (1985) 1 NWLR (Pt. 1) 55 at p.56.

It is settled law, that an accused whose defence is an alibi has the onus to adduce evidence on the alibi, which when considered with the case for the prosecution, creates a reasonable doubt in the mind of the Judge so as to entitle him to an acquittal. The burden on an accused to adduce evidence in support of his alibi is far less than that in civil cases. However, the mere assertion by an accused that he was elsewhere does not discharge that burden unless the prosecution during investigations found it to be true or there is doubt whether or not it is true. See Chewmoh v. The State (1986) 2 NWLR (Pt. 22) at 332.

The Supreme Court in the case of Patrick Njovens v. The State (1973) 5 S.C. 17 at p.65 stated the rule clearly where Karibi-Whyte (J.S.C.) said:-

“There is nothing extra-ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person, and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduce sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished.”

In my view, the learned trial Judge adopted a wrong approach to the appellant’s defence of alibi. He misapprehended the onus, which is merely an evidential burden less than that in a civil matter placed on the appellant and thereby misdirected himself in law. A person who puts forward an alibi as an answer to a charge does not assume any burden of proving that answer, and it is a misdirection to refer to any burden as resting on the prisoner and in the instant case, the burden of discrediting or contradicting the prosecution’s evidence. See Kono v. The State (1973) 5 SC 231 at 256; R. v. Anthony Nugh Jonson (1962) 46 CR APPR 45.

In addition, it is my view, in this case, that the learned trial Judge did not infact, consider fully all the evidence before him before arriving on his misapprehension and consequent misdirection of himself on the onus on the appellant. All the witnesses in this case testified that both P.W.1 and the appellant had a long standing dispute. This is not in doubt. P.W.1 and P.W.2 like the appellant and D.W.2 are respectively blood relations. It is therefore my view, that both P.W.2 and D.W.2 are tainted witnesses. A tainted witness is a witness who though not an accomplice, is a witness who may have a purpose of his or her own to serve.

In the case of Mbenu v. The State (1988) 3 NWLR (Pt. 84) 615 at pp. 626 – 627, the Supreme Court per Nnamani J.S.C. (of blessed memory), said:-

“This court has always held, that the evidence of such a witness should be treated with considerable caution and should be examined with a tooth comb. Indeed trial courts have been advised to be very wary in convicting on the evidence of such witnesses without some corroboration: See The State v. Dominic Okola & Ors. (1974) 2 S.C. 73 at 82; Jimoh Ishola v. The State (1978) 9-10 S.C. 81; Pratter (1960) 66 Car 83 at 186; Frederick Valentine Russel (1968) 44 Car 147 at 150”.

Although, the requirement, that a trial Judge should in such circumstances warn himself as one would in the case of accomplices, is one dictated by prudence not by law. In the instant case, the learned trial Judge did not at all give any consideration to the proven and accepted existing animosity between P.W.1 and the appellant, though the appellant had persisted in the said long standing animosity even in his allocutus before his conviction. The learned trial Judge ought to have considered and made a finding of fact, that there is an existing grudge between P.W.1, P.W.2 and D.W.1 and D.W.2 on which the learned trial Judge would have been very cautious and slow in accepting in its entirety as he did, the evidence of the prosecution and disbelieving the appellant.

I am therefore of the firm view, that this is certainly, a case in which the doubt should have been resolved in favour of the appellant: See Okonji v. The State (1987) 1 NWLR (Pt. 52) at 659.

I am therefore of the further view, that the learned trial Judge has not assessed the evidence adduced before him. In a charge under Section 337 of the Penal Code, the prosecution must prove the following essential ingredients of the offence viz:-

(i) That the accused committed mischief (s.326).

(ii) That the mischief was committed by fire or explosive substance.

(iii) That it destroyed/damaged a building and

(iv) That the building was originally used either as a place of worship or a human dwelling house or a place for the custody of property.

The date of the offence is not an ingredient of the offence which must be proved by the prosecution in accordance with the Penal Code. It is therefore submitted by the respondent, that the date is not an essential element of the charge. Notwithstanding this proposition, it is my view, that where the only defence to a charge of mischief by fire under Section 337 of the Penal Code is one of alibi, not only the time but also the date, the offence was committed, both become, vital elements of the charge. This is so, given the three dimensions of human existence and movement, except one be a magician, no one can be in more than one place at a time and date at the same time. But there is nothing mystical or esoteric about a plea of alibi except that one is elsewhere from the scene of crime at the time of the offence.

In the instant case, it is obvious, that both P.W.1 and P.W.2 did neither remember the date of the offence nor testified as to the time of its commission, yet, the learned trial Judge found that the offence was committed in the early morning of 21st March, 1989 before 2.00 p.m .. There is no such evidence on record by the prosecution witnesses. This amounts to a mere speculation and scrounging for evidence to convict the appellant. Where the findings of a trial Judge are not borne out by the evidence before the trial court, a Court of Appeal can properly interfere with such findings: See Seismograph Ltd. v. Ogbeni (1976) 4 S.C 85; Ebba v. Ogodo (1984) 1 SCNLR 372 4 S.C. 84. It is therefore my view, that once, the appellant had denied committing the offence and has in addition, successfully set up a defence of alibi which was not investigated it cannot be said by the trial Judge, that the appellant admitted the date of the offence by defending the offence allegedly committed by him. Such a finding of fact is perverse. I am also satisfied, that the evidence of P.W.1 and P.W.2 as to the date and time of the offence on record are materially in conflict. Where this is so as in the instant case, it does not lie with the trial Judge to pick and choose between the conflicting evidence of the prosecution. It is not the duty of the learned trial Judge of his own volition but that of the prosecution witnesses to proffer an explanation for the conflict and give the defence the opportunity of testing by cross-examination the validity of the proferred explanation. Whereas in the instant case, the conflict is not explained by the prosecution, the benefit of the doubt even a lingering doubt must be exercised in favour of the appellant see Christopher Onibogu & Anor, v. The State 9 S.C. 1 – 24,

Looking at the principle facts of this case and on a proper consideration and assessment of all the evidence adduced against all the surrounding circumstances, they cannot in my view induce belief and it was wrong for the learned trial Judge in such circumstances to say, that he “disbelieved” the appellant and ‘satisfied’ that the prosecution has proved its case beyond reasonable doubt and thereby convicted the appellant.

There is neither magic nor sanctity in the words “I believe or disbelieve” or “I am satisfied”. They should represent the court’s reaction towards proven facts, possibilities and probabilities based on facts accurately assessed and established. I am aware, that a Court of Appeal must in the absence of compelling evidence indicating erroneous appraisal of facts and erroneous conclusions, show the utmost restraint, resist and reject any temptation to interfere with well considered findings made by a learned trial Judge in the court of first instance who had the singular opportunity of not only hearing the evidence but of watching their demeanour: See The State v. Collins Ojo Aibangbee & 1 Or. (1988) 3 NWLR (Pt.84) 548 at p. 550 para F; Sobakin v. The State (1981) 5 S.C. 75 at 78; Okafor v. Idigo (1984) 6 S.C. 1, (1984) 1 SCNLR 481.

I also note, that there is no law or rule of practice specifying, that a man may not be convicted on the evidence of a single credible witness where no corroboration is required see Anthony Idigo v. The State (1975) 1 All NLR 70 at 75; C.O.P. v. D. Kwashie (1953) 14 WACA 319; Alonge v. Inspector-General of Police (1959) 4 F.S.C. 203 at 204; (1959) SCNLR 516.

An appellate court has a duty to examine the grounds upon which the conclusions or inferences of the trial court were based, and if convinced as I am in the instant case, that the inferences and conclusions reached were erroneous, the appellate court would be justified in rejecting these inferences and conclusions.

In the instant case for example, how can a learned trial Judge who did not understand the limited evidential burden on an appellant who put forward a plea of alibi, come to a right other than an erroneous conclusion on the issue? Such a misapprehension leading inevitably to an erroneous misdirection and conclusion will only occasion a miscarriage of justice. The picture presented ultimately is an inconsistent judgment with the facts and the law. A judgment convicting a man of the offence charged, must be seen to be a product of prudent and logical thinking, based upon admissible evidence, in which the facts leading to his conviction are clearly found, and the legal deductions therefrom carefully and rightly made. It cannot be allowed to stand if founded upon a misapprehension, misdirection and/or error in law. It is so in all cases and more so in criminal cases. See Nwosu v. The State (1986) 4 NWLR (Pt. 35) 348 at p. 350, I find no conflict in the testimony of the appellant in court and his statement to the police. The evidence of P.W.2 is not circumstantial.

Based on the foregoing, I resolved issue No. 1 in favour of the appellant. Grounds 1, 2 and 4 of the grounds of appeal on which issue No.1 is raised hereby succeed. I reject the argument of the respondent on issue No, 1 aforesaid.

On issue No, 2, whether the sentence was excessive in the circumstances which is covered by ground 3 of the grounds of appeal, it is submitted in appellant’s brief that the sentence of 5 years imprisonment and N500 (Five hundred Naira) fine, failing in payment of the said fine to serve additional 6 months in prison is manifestly excessive in the circumstances where, the learned trial Judge in sentencing the appellant:-

(i) attributed the appellant’s motive for the arson as a result of running long standing land dispute between P.W.1 and the appellant.

(ii) the learned trial Judge believed P.W.2, that the appellant had previous convictions for trespass over the same land elicited in cross-examination of P.W.2 contrary to sections 224 and 225 of the Evidence Act, and

(iii) despite the fact that the state counsel Mr. Abah said in court before sentence as follows:-

“We have no record of previous convictions.”

It is submitted, that the failure to prove previous conviction against the appellant, the passionate plea made by the appellant in allocutus, the finding of animosity between P.W.1 and the appellant by the learned trial Judge and the appellant’s persistence that the charge was levelled against him because of the long standing land dispute, were cumulatively mitigating circumstances against the excessive sentence imposed on the appellant by the learned trial Judge. In support of the above submissions, the following cases are cited in Appellant’s brief:- R v. Wanner (1908) 1 Car Appr 227. Thomas Dowling v. I.G.P. (1961) 1 ANLR 782; AGP v. Kasumu & Ors. (1957) WRNLR 103; Queen v. Okon Eyo & Ors.(1962) 1 ANLR 516 at 517.

In reply to issue No.2, it is submitted in the respondent’s brief, that the learned trial Judge was mild with the appellant in the sentence passed on him. The offence of mischief by fire under Section 337 of the Penal Code carries life imprisonment and a fine which is in the exclusive jurisdiction of the learned trial Judge to sentence him. See the case of Tsaku v. The State (1986) 1 NWLR (Pt.17) 516 at 521. It is submitted, that the charge against the appellant having been proved beyond reasonable doubt, the learned trial Judge rightly convicted and sentenced the appellant on record.

On my consideration of issue No.2, it is settled law, that a trial Judge has a discretion in matters of sentence. But the discretion or power must be exercised judicially on the basis of the materials before him. It is desirable that exercising his discretion over sentence, a trial Judge should state in his judgment the factors that influenced his decision. See Namo Tsaku & Ors. v. The State (1986) 1 NWLR (Pt. 17) 516 at 521.

In the instant case, the factors that influenced the learned trial Judge’s decision in passing the sentence appealed against are:-

(i) The moving plea of the appellant

(ii) The appellant’s insistence that the allegation is still false and was actuated by the existing land dispute.

(iii) Resort to violence to settle disputes which is no longer the best in civilized societies and the proclivity has to be arrested.

(iv) The violent barbarism of letting loose fire on opponents properties is treated severely, under the code.

(v) That the area is witnessing an upsurge of mischief by fire for whatever the motive.

(vi) The duty of the court to restore sanity and protect lives and property.

The Appellate Court will not interfere with a sentence imposed by a trial court, unless it is manifestly excessive in the circumstances or wrong in principle. See Thomas E. Dowling v. I.G.P. (1961) 1 ANLR 782.

In the instant case, the maximum sentence prescribed under Section 337 of the Penal Code for the offence of mischief by fire is life imprisonment or any less term and shall in addition be liable to a fine. In the instant case, the sentence passed by the trial Judge is 5 years imprisonment and N500 (Five Hundred Naira) fine and in default of payment of the fine to 6 months imprisonment in addition. This sounds like a double punishment, but it is in accordance with the provisions of the Penal Code. There is no doubt, that such an offence when proven calls for a severe punishment albeit as a deterrent.

In this case, I have already on issue No. 1 held, that the learned trial Judge was wrong in convicting the appellant. Consequently, he would be and was indeed in error in sentencing the appellant in the first instance. It is no longer necessary to consider whether the sentence was excessive, but since it is a ground of appeal. I deem it necessary to consider it.

An appellate court has jurisdiction to set aside or reduce a sentence if it finds in the record substantial evidence of mitigating circumstances in favour of the accused. Where a trial court imposed a sentence in excess of the maximum sentence provided by the law for the offence charged, an appellate court will set aside the sentence and impose in its place, a sentence within the powers of the trial court to impose.

In the instant case, if the conviction of the appellant were valid, the sentence passed by the learned trial Judge would not have been excessive. It would however be wrong ab initio since the principle of law on which the learned trial Judge convicted the appellant to begin with is wrong. I also resolve issue number 2 against the respondent on the ground that the principle upon which the sentence was passed is wrong. To that extent ground 3 of the grounds of appeal also succeeds.

On these grounds, the conviction and sentence of the appellant are hereby quashed and set aside. In their place, there will be entered, a verdict of acquittal and discharge. But this is not the end of the matter.

I have read through the record of proceedings in this case and searched in vain the arraignment and plea of the appellant. It is therefore a fact, that the charge was not read over to the accused person and not explained to him in a language he understands. No plea was taken. This point is not taken in this appeal, but it is very fundamental and an infraction of the Constitution that it cannot be ignored.

Section 187(1) and (2) of the Criminal Procedure Code applicable to the Northern States of Nigeria provide as follows:-

“187(1) When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in court and explained to him and he shall be asked whether he is guilty or not guilty of the offence charged.

(2) If the accused pleads guilty the plea shall be recorded and he may in the discretion of the court be convicted thereupon unless the offence charged is punishable with death when the presiding Judge shall enter a plea of not guilty on behalf of the accused”.

In the instant case, there was no arraignment at all and the appellant did not plead to the charge. There is nothing in the record of proceedings to the contrary. The punishment for the offence charged in the instance case is not punishable with death. Subsection (2) of Section 197 of the Criminal Procedure Code does not therefore, apply in the instant case. Section 187(1) applies.

It is good practice for trial courts to specifically record that, “the charge was read and fully explained to the accused person and he understood same to the satisfaction of the court before recording his plea thereto”. Failure to record a plea will be fatal to the proceedings; Ibid. So will a recorded plea of “Not guilty”, if the accused was entitled to an interpreter but none appears on the record: Umaru Dan Umaru v. The State (1978) NNLR (FCA).

It is therefore, the law, that for there to be a valid and proper arraignment of an accused person, the following conditions as contained in Part XXIV. Section 215 of the Criminal Procedure Act and Section 33(6) (a) of the 1979 Constitution must be satisfied:

(i) The accused shall be placed before the court unfettered unless the court shall see cause to otherwise order;

(ii) The charge or information shall be read over and explained to him in a language he understands to the satisfaction or the court by the Registrar or otherwise officer of the court; and

(iii) The accused shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise as provided in Section 100 of the Criminal Procedure Law) See Sunday Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721 at p.723 paras D-E.

Failure to comply with any of the conditions laid down in (i), (ii) and (iii) above in Kajubo v. The State (supra) will render the whole trial a nullity: See Eyorokoromo v. The State (1979) 6-9 S.C. 3; Josiah v. The State (1985) 1 NWLR (Pt. 1) 1251 S.C. 406 at 146. (1985) 1 NWLR 125

An arraignment consists of charging the accused and reading over and explaining to him in the language he understands to the satisfaction of the court, followed with a plea see Oyediran v. The Republic (1967) NMLR 122.

Section187(1) of the Criminal Procedure Code is mandatory not directory and so is Section 215 of the Criminal Procedure Act. The mandatory nature of these sections is further confirmed by Section 33(6)(a) of the 1979 Constitution which provides that:-

“Every person who is charged with a criminal offence shall be called to be informed promptly in the language he understands and the detail of the nature of the offence”.

In the instant case, the conditions laid down in Section 187(1) of the Criminal Procedure Code as well as Section 215 of the Criminal Procedure Act and Section 33(6)(a) of the 1979 Constitution are not formality but specifically mandatorily set out to guarantee a fair trial of an accused person. The trial Judge has a bounden duty to ensure the compliance with the said provisions by showing that in his record. See Josiah v. The State (supra).

For non-compliance with S. 187(1) of the Criminal Procedure Code, applicable to Northern States of Nigeria and Section 33(6)(a) of the 1979 Constitution, this trial and the whole proceedings are a nullity. The mandatory provisions that the information or charge should

(i) be read over and explained to the accused

(ii) in the language he understands and

(iii) to the satisfaction of the court, are to ensure that the accused person understands and appreciates what is being alleged against him to which he is required to make a plea.

The rationale is, that the language of the court in which the charge is also drafted is English. English is not the mother tongue of Nigerians, the majority of whom are illiterate in English and even those of them who are literate may not easily follow and comprehend the language of the court. For these reasons, our Criminal Procedure Jurisprudence and Section 33(6)(a) of the 1979 Constitution considered it necessary, that there must be a valid and proper arraignment else the whole trial and proceedings as in the instant case are a nullity.

The inevitable question which arises when a trial is declared a nullity is-

How can an appellant, who in the contemplation of the law, had not even been tried, be on appeal acquitted and discharged (in the instant case) from the serious offence of mischief by fire under S.337 of the Penal Code against him involving a sentence of life imprisonment and a fine in addition”?

Any court discharging such an appellant would naturally add – “Would to God you were innocent”. And as stated why Bringman L.C.B. in Liburn’s case (1660) 5. How St. 1205. “The word innocent hath a double acceptance, innocent in respect of malice and innocent in respect of the fact”

From both “acceptance”, the present appellant cannot at this stage, even though his purported trial has been declared null and void, be sent back for retrial in view on my earlier decision on the issues for determination on the grounds of appeal both in fact and in law, that the case against the appellant has not been proved beyond reasonable doubt.

Having set aside the conviction and sentence of the trial court on those grounds, I hereby add, “thanks to God, that the appellant is innocent and that I had already found him innocent of the charge”, else he would have been sent back for retrial.” I therefore, hereby allow the appeal and on the foregoing, declare the whole trial a nullity. I hereby further order, that the appellant be released from prison forthwith. He is accordingly discharged and acquitted and should not be sent back for trial on the same charge.

Appeal allowed.

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Other Citations: (1994)LCN/0203(CA)