Evangelist Johnson Igodo V. Godwin I. Owulo & Ors (1999)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

At the Oju Local Government Area of Benue State of Nigeria Chairmanship elections held on 5th of December 1998 and another election of 12th December 1998, the appellant and the 1st respondent were candidates. The Independent National Electoral Commission (INEC) at the conclusion of the elections declared the 1st respondent the winner.

Dissatisfied with the decision of INEC, the appellant filed a petition at the Local Government Council Election Tribunal holden in Makurdi. The petitioner/appellant in his petition complained:

(1) That the 1st respondent was not qualified to contest the election.

(2) That the 1st respondent was not validly elected by a majority of valid votes cast at the election.

(3) That the bye-election held at Ainu Council Ward on 12th December 1998 was unlawful as the election was voided by corrupt practices, offences and non-compliance with the provisions of the Decree.

Among others, the petition stated that the petitioner prayed the tribunal.

“That the said Godwin I. Owulo was not duly elected or returned and his election was void and that the said Evangelist Johnson Igodo ought to have been returned as duly elected.

The 1st respondent filed a reply. For the 2nd – 6th respondent, a joint reply was filed. The respondents thus joined issues with the petitioner on his petition.

The parties called evidence and cross-examined each other’s witnesses.

Trial concluded, the Election Tribunal dismissed the petition of the appellant and confirmed the declaration by the INEC of the 1st respondent Godwin I. Owulo as duly elected Chairman of Oju Local Government Council.

Dissatisfied with the decision of the Election Tribunal, the petitioner appealed to this court.

The grounds of his appeal are as follows:

1. The decision is against the weight of evidence.
2. The tribunal erred in law in holding that the election of 5th December 1998 in Ainu Council Ward of Oju Local Government Area was not conclusive in the circumstances of the case.
3. The trial tribunal erred in law when it held that the 2nd-5th respondents complied with Decree 36 of 1998 when it ordered a bye-election at Ainu Council Ward of Oju Local Government Area on the election rather than declaring and returning the appellant duly elected with the valid votes of 20,100 and required spread to the 15,348 valid votes of the 1st respondent.”
4. The tribunal misdirected itself on the facts when it held that the election of 5th December, 1998 in Oju Local Government Area was disturbed or substantially disturbed by an intervening cause.
5. The tribunal erred in law when it held that the second election ordered and conducted at in Ainu Council Ward on 12th December, 1998 was proper and lawful.
6. “The tribunal failed to adequately review and evaluate the evidence before it in coming to its decision dismissing the of appellant.”

The reliefs sought by the appellant are as follows:

“a. allowing the appeal;

b. setting aside the decision of the trial tribunal dated 1st February, 1999, and in its place to grant the appellant the relict’s claimed before the tribunal and

c. nullify the election of 12th December 1998 and return of the 1st respondent as the elected Chairman of Oju Local Government Council.

d. Declare and return the appellant as the elected Chairman of Oju Local Government Council by the conclusive election of 5th December, 1998 with the majority scores of 20, 100 lawful voles and the required spread to 1st respondent’s 15,348 lawful votes.”

Parties exchanged briefs of argument which each adopted and relied upon at the hearing of the appeal.

On the part of the appellant, he urged the court to allow the appeal in accordance with the terms set out in his notice of appeal. The respondents on the other hand, urged the court to dismiss the appeal.

In his brief of argument, appellant’s counsel who also filed a reply brief identified 5 issues for determination in the appeal as follows:

1. Whether the trial tribunal was right in holding that the Chairmanship election of 5th December, 1998 in Oju was conclusive in the circumstances of the case.
2. Whether a winner emerged at the Oju Chairmanship election of 5th December, 1998, after the cancellation of the results of the election from Ainu Council Ward.
3. Whether the Oju Local Government Chairmanship election of 5th December, 1998 was disturbed or substantially disturbed by any intervening cause.
4. Whether the 2nd -6th respondents complied with section 54 of Decree 36 and paragraph 11 of INEC guidelines, when, on the 5th December, 1998 it ordered a second election in Ainu Council Ward of Oju Local Government Council after the cancellation of the results from the same Ainu Council Ward consequent upon the established irregularities.
5. Whether the second election ordered for the 12th December, 1998 for Chairmanship seat in Oju LGA, if proper, ought to be confined to only Ainu Council Ward which is only one of the

eleven (11) Wards in Oju LGA.

The 1st respondent’s issues are set out as follows:

1. Whether the trial tribunal was right in holding that the Chairmanship election of the 5th December 1998 in Oju Local Government area was substantially disturbed by intervening cause and therefore inconclusive.
2. Whether after cancelling the election in Ainu Council Ward, the Independent National Electoral Commission had power under the Decree to order a fresh election in the said Ainu Council Ward only.
3. Who secured the majority votes.

The issues identified by the 2nd – 6th respondents were:

1. Whether the trial tribunal was right in holding that the Chairmanship election of 5th December 1998 in Oju was inconclusive in the circumstances of the case.
2. Whether the trial tribunal was right in holding that the fresh election of 12th December was justified and lawful.

After reviewing the grounds of appeal, the submissions of counsel for the parties and the issues as set out for the parties in their briefs of argument, I find the issues distillable into two major issues for determination in this appeal.

For all the parties have identified the same issue in their issue No 1 and appellant’s issue No. 3 is subsumed in that. Then, from the combination of appellant’s issue No 5, 1st respondent’s and 2nd – 6th respondent’s issue No 2 which are virtually the same, emerges a second issue.

All other issues raised by the appellant and the 1st respondent fall within the ambit of the foregoing and will be addressed along with them.

The two issues for determination in the appeal therefore are:

“1. Whether the Election Tribunal was right in holding that the Chairmanship election was substantially disturbed by an intervening cause and was therefore inconclusive.

This issue arises from grounds 1,2,4 and 6 of the grounds of appeal.

2. If the answer to issue No 1 is ‘yes’. was the trial tribunal right in upholding the order and conduct of fresh elections by the INEC only in Ainu Ward, rather than in the entire Oju Local Government Area. After the cancellation of the election.

This issue relates to grounds 3 and 5 of the grounds of appeal.

Evidence on record shows and the tribunal found that voting had taken place at Ainu Ward consisting of 30 polling units, before the results of the votes could be collated, certain events occurred, giving rise to the cancellation of the election on 5th December, 1998 in Ainu Ward by the Independent Electoral Commission (INEC).

In its judgment the tribunal stated thus:

“It is not in dispute that the election in Ainu Ward for the Chairmanship Election in Oju LGA held on 5th December, 1998 was cancelled…”

“Since the result of the said Ainu Ward was neither collated nor released it goes without saying that the election was not concluded ….

“From the evidence before us which we believe, there are 30 polling units in Ainu Council Ward with voters numbering are 110,000. See the evidence of RW 3, the electoral officer of Oju and RW 2 the ward returning officer,”

These findings of fact, this court has no reason to disturb. For it is the law that an appellate court should not interfere with findings of a lower court, unless found to be perverse or that the court below raised wrong interferences upon accepted facts of applied wrong principles to such facts. See Chinwendu v. Mbamali (1980) 3 – 4 SC-31, Ibodo v. Enarofia (1980) 5 SC 42. There is nothing to prompt this court to disturb the above findings.

As to whether the election was concluded, it is my humble view that this can be determined by observing whether all the acts and things required to be done under the procedure for elections set out in Decree 36 and Schedule 4 of Decree 36 of 1998, have been gone through in accordance with the provisions of the Decree.

Part VIII of the Decree, in sections 46 -57 and Schedule 4 to the Decree set out all the acts and things and the procedures required to be done or performed and the manner of doing them to perfect the conduct of an election.”

These show that an election (on the appointed date), commences with accreditation, proceeds with voting at polling units, counting of votes at polling units, completion of the appropriate INEC prescribed form, collation of results at various designated collation centres, and declaration of results.

The system has to be gone through as required by Decree No 36. Thus, without the collation of all results of the polling units and the wards which made up a Local Council Area, and the declaration of result, an election may not be regarded as completed or concluded. This is so in the present matter. For when trouble started, collation could not proceed at Ainu Ward and its result could not be collated with that of the other 10 wards. If so collated a result could have been declared. The position in this matter falls within section 92(2) of Decree 36 of 1998 which provides as follows:

92(2) “Where an election has started on the appointed date and is before conclusion, substantially disturbed by any intervening cause, the Commission shall appoint a new date for a fresh election.”

There can be no doubt from the unrebutted evidence of RW 2 and 3 on the records and the findings of fact by the trial tribunal, that there were incidents during which tension was created by the political parties of the appellant and 1st respondent and their supporters. That it was fuelled by the uncompromising attitude of the appellant’s agent, Ode Ibo Igangan at the collation centre. That these events occurred before the conclusion of the Chairmanship election. Every available evidence indeed shows that the appellant considered the events which took place serious enough and that his agent and party were all out and intent on securing the cancellation which took place consequently.

How can the appellant now justly raise issues challenging the cancellation?

In my humble view, from the foregoing, the Election Tribunal was correct In holding that the election not having been concluded there being no result declared by INEC when trouble commenced, the INEC was entitled under section 92(2) of Decree 36 to cancel and to order fresh election. It must be pointed out before concluding that there is some distortion of the lower tribunal’s decision when learned counsel for the appellant submitted at page 7 of his written brief that “it was erroneous of the tribunal to hold that the role of PW 2 in protecting the interest of its party when he requested for the cancellation of the result .. ” was an intervening cause which substantially disturbed the election for section 92(2) of Decree 36 ” to be applicable.” It is clear to me that he was quite incorrectly stating the findings of the lower tribunal. This is clear from the facts set out earlier. The intervening cause identified from the evidence on record and the judgment of the Election Tribunal is the threat to peace from tension generated from the parties at the collation centre, preventing the INEC returning officer from doing his duty.

This stopped the collation of results on 5/12/98.

That submission goes to no issue therefore. In the premises, the answer to issue No. 1 is therefore in the affirmative.

Issue No.2: This issue as earlier set out raises the question, what order should the lower tribunal have made in the light of the provisions of section 92(2) of Decree 36, 1998, following the cancellation of the election. (It is to be noted that apart from the appellant and the 1st respondent, there were two other candidates from other parties contesting this election.)

For the appellant, it was submitted that “where section 92(2) of Decree 36 of 1998 becomes relevant, it has to do with the entire election in question to be cancelled and not just part of it, as was the case here. In the instant case, only the result from Ainu Ward was cancelled and not the election … assuming without conceeding that the 6th respondent acted under section 92(2)… he is not covered because he only cancelled part of the result and not the entire election.”

Section 92(2) of Decree 36 of 1998 provides as follows:

“Where an election has started on the appointed date but is, before conclusion, substantially disturbed by any intervening cause, the election may be cancelled, and the Commission shall appoint a new date for a fresh election.”

At page 15 of appellant’s brief counsel also stated:

“Where the 6th respondent is permitted to conduct a second election for the purpose of determining the winner of the election, the second election is required to cover the entire constituency involved and not a segment …

In the case in hand, the entire Oju Local Government Area, not just Ainu Council ward …. ”

For the respondents. it was their case in respect of issue No 2 that the 6th respondent duly exercised its powers under section 92(2) of Decree 36 1998 to cancel the election and appoint a new date for a fresh election if the election is substantially disturbed.

They further submitted that the 6th respondent has powers to order election in a polling unit or council ward and not the entire constituency (See page 7 of 1st respondent’s brief of argument).

The 2nd – 6th respondent’s brief also shows that they too are in agreement that it was necessary to conduct another election for the Ainu ward to enable the electorate elect a candidate of their choice – See page 9 of their counsel’s brief of argument.

The application of the word “election” in section 92(2) is the bone of contention as the above submissions show. And, the issue is whether it refers to the whole process of election, constituting accreditation, voting, collating, recording on all relevant INEC forms under the Decree and declaration of result.

Or, on the other hand does “election” refer to merely voting – as in units or wards, as the case may be’?

It seems to me that applying the ordinary meaning of the word “election” the meaning referring to the whole process is preferable. Voting in polling units or wards cannot amount to “election”.

In the case of Chibok v. Bello (1993) 1 NWLR (Pt. 267) 109. the Court of Appeal was called upon to determine whether the power to order a bye-election under section 43(2) of Decree 18 of 1992 relates to the entire constituency or part or unit thereof and whether the Election Tribunal could order a bye election for two polling stations.

The court, per Oguntade JCA, held that, ‘the tribunal could not order a bye-election for the two polling stations where irregularities were found. Rather what it should have done was to order for the election for the whole constituency.”

I should think that in the present matter, the word “election” in section 92(2) of Decree 36, 1998 would have the same meaning and application as in section 43(3) of the 1992, Decree, adopting the interpretation which I proffered above.

This is how the law seems to stand presently and I would adopt that meaning. It is in the light of the foregoing I would uphold the submission of the learned appellant’s counsel. The order which the Election Tribunal ought to have made” was to the effect that having cancelled the inconclusive election, fresh elections be had for chairmanship in the whole Oju Local Government Council Area which is the constituency for the local council Chairmanship election, and not just Ainu Ward. The decision of INEC should not have been upheld.

In the final analysis, this appeal succeeds in part. Although the trial tribunal was right in holding that the Chairmanship election of 5th December 1998 in Oju LGA was not concluded and thus inconclusive in the circumstances of the case, the order which it should have made was one for fresh elections in the whole 11 wards, whose total result was not collated and declared due to the intervening event. In the premises, it so ordered.

It is hereby ordered that the Independent National Election Commission (INEC) do proceed forthwith to conduct fresh elections for the position of Council Chairman in all the wards of the council.

There shall be no order as to costs.

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Other Citations: (1999)LCN/0508(CA)

Jacob Omman V. Darlington Ekpe (1999)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A.

By a Writ of Summons dated 15th June, 1992 the Plaintiff claims against the Defendant is for:

‘The sum of N121,805.00 (One Hundred and Twenty One Thousand, Eight Hundred and Five Naira) being money paid by the Plaintiff to the Defendant on or about 18th January, 1987, as deposit on account of immediate supply/delivery to the Plaintiff by the Defendant, 13 bales of Nigerian Wax texture of Clothes manufactured by Wichestex and sold to the Plaintiff at the rate of N10,000.00 (Ten Thousand Naira only) per bale, which bales of cloth the Defendant failed to supply to the Plaintiff despite repeated demands.

2. N263,000.00 (Two Hundred and Sixty Three Thousand Naira) being special damages for losts of profits occasioned by failure of the Defendant to execute the said contract or refund the said Sum of N121,805.00 One Hundred and Twenty One Thousand, Eight Hundred and Five Naira).

Particulars of Loss of Profits

From 18th January, 1987 to 15th June, 1992 (1,974 days) or (263 weeks) Minimum profit generated on investment of N 121,805 on bales of Nigerian Wax texture of cloth as aforesaid since 18th January, 1987 to date -N1,000 Per Week

263 weeks – N263,000,00

3. Interest on the sum of N121,805.00 (One Hundred and Twenty One Thousand, Eight Hundred and Five Naira) at the low commercial rate of 18% per annum from 18th January, 1987 to the date of Judgment and thereafter at same rate till the date full and final payment by the Defendant.
4. N100,000.00 (One Hundred Thousand Naira) being general damages for breach of contract as aforesaid.”

Pleadings were ordered filed and delivered. On the 13/1/93 the date the case was adjourned for hearing the defendant and his counsel were absent and from the records no reasons were given for their absence and the trial commenced. The Plaintiff witnesses testified and thereafter counsel for the Plaintiff appellant addressed the court and judgment was reserved on the same date. On 18th February, 1993 a new counsel who had now supplanted the former counsel for the defence informed the court that he was taking over the case of the defence and, he moved his motion to present the defendant/respondents case notwithstanding that “judgment had been reserved.” The court in a subsequent adjourned date granted his prayers stating thus:

“It is ordered that the case to be re-opened to the extent that the defendant shall present his defence. I refuse to recall Plaintiffs’ witnesses for cross-examination.”

The Defendant opened his case with testimony of four witnesses. Thereafter both counsel addressed the court at different dates. The main case of the Plaintiff appellant is that he had a contract with the Respondent to supply him with wax materials at the rate of N10,000.00 per bale. He paid him the sum of N121,805.00 for 15 bales of cloth but the Respondent failed to supply the materials or refund the money. The Defendant informed the court that by 1987 he had not known the appellant as he first met him in 1988. He denied telling the appellant that he was a distributor of wax material, or that he collected a sum of N121,805 from the Plaintiff for 15 bales of wax materials. He further emphatically denied being investigated by the Police for holding the appellant’s money. He however admitted receiving a sum of N20,000.00 from the appellant with which he paid his creditor who had seized his Range Rover vehicle. He equally denied being charged with stealing or obtaining money under false pretences pointing out that the appellant employed these gimmicks for his own pursuit. He stated that any transaction or reference to money was the one affecting the issue concerning the seizure of the Range Rover and nothing more. In his judgment the learned trial Judge held as follows after considering the facts of the case as presented to him.

“Having carefully considered the evidence and learned Counsel’s submission and having closely watched the demeanour of each witness during his testimony, I have been given the impression that the side of the matter narrated to the Court by the Defendant and his witnesses sound more credible than the simple story of an agreement to supply clothing materials for which the Defendant collected N121,805 and failed to supply same or to return the money. I believe the defence evidence which links the seizure of the Defendant’s vehicle by Inspector Nwachukwu and the Plaintiff with the Defendant’s report against Nwachukwu who was queried by Police authorities. I also believe that the Defendant was directed, detained and forced to sign the original copy of Exhibit 1 which was given to the police and not to the plaintiff. The evidence of the Defendant and DWs. 3 and 4 are alone on these matters of seizure of the Defendant’s vehicle and the making of Exhibit 1 under forced circumstances. Learned Counsel for the plaintiff was not able to shake DWs 3 and 4 in their strong evidence.”

He thereupon dismissed the claim.

Being dissatisfied with the judgment of the court below the plaintiff filed notice of appeal. There are four grounds of appeal from which he formulated 2 issues for determination and they are as follows:

“(a) Whether the lower court properly appraised and evaluated all the evidence proffered in this suit having regard to the quality of evidence led by both parties.

(b) Whether the lower court was right when it failed to enter judgment in favour of the appellant for the liquidated sum claimed by the appellant in the court below which sum would include the sum of N20,000.00 admitted by the Respondent plus an appropriate award of damages under the reliefs claimed by the appellant.”

The Respondent on the other hand framed 7 issues for determination. The counsel for the Respondent may not have learnt that issues are just the matter to be determined and they are smaller in number having been distilled from the grounds of appeal.

The real issue is whether apart from the sum of N20,000 the Respondent has acknowledged owing the Appellant in respect of a loan, he was in breach of contract for accepting a sum of N100,000.00 to supply bales of Wax which he failed to deliver.

I noted that brevity is the main feature of the evidence of the appellant and his 2 witnesses in the court below. The appellant’s counsel in his brief submitted that the court below failed to make a proper appraisal of the case when all the witnesses for the appellant testified that the Respondent was owing the appellant a sum of N121,000.00 as a result of money had and received for wax cloth which was not delivered. These evidences of the 3 witnesses were not challenged as the court refused to give the Defendant/Respondent opportunity of cross examining them.

A court should ordinarily give clear consideration to any testimony before it, its reasonableness in view of the surrounding circumstance the inherent probabilities the existence or lack of corroboration, accuracy and the truthfulness of the witnesses and all attendant and relevant facts accompanying admission of evidence. I would however sound a note of warning. Although it is the general rule that uncontradicted and undisputed testimony is testimony from which reasonable minds can draw but one conclusion and may not be disregarded by the court but must be accepted as true and control the decision arrived hereafter, it is the law and I so hold that a court is not under all circumstances required to accept as true testimony of a witness even though it is not contradicted as where it is unlawfully and corruptly false, unreasonable, improbable or inconsistent with other evidence in which case it may be given such weight as may be deemed proper or be wholly disregarded. Therefore evidence which is not contradicted by positive testimony and is not inherently improbable or unreasonable cannot be arbitrarily or capriciously discredited, disregarded, despised, rejected, even though in the particular case the witness is a party or an interested witness and unless such evidence is shown to be untrustworthy, it is taken as conclusive and binding on the court or at least it is entitled to and should ordinarily be accorded substantial weight. In the case of Isaac Omaregee v. D.P. Lawani (1980) 3 – 4 S.C. 108 at 117) Idigbe JSC said:

“Again this court has in many of its decisions observed that where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it. See Odulaja v. Haddad (1973) 11 S.C. p. 357, Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 S.C. 79 at 81 – 82.”

In the present case the Respondents were not allowed or afforded any opportunity to challenge the testimonies of the appellant witnesses after they were re-admitted into the matter. Instead they were allowed to tell their own story and it is this story that the court believed. In his judgment he commented thus as to his evaluation and appraisal of the evidence without going into specifics.

“Although, the testimonies of the three witnesses for the Plaintiff were not subjected to scrutiny and opposition under cross-examination, I am obliged to weigh against the copious evidence of the four witnesses for the defence in an imaginary scale and weigh them together to see where the balance of credibility lies.”

He obviously placed much relevance on the evidence of DW2 who though an employee of the Respondent impressed him a lot. As to when the appellant got to know the Respondent he said:

“I am satisfied that the Defendant was introduced to the plaintiff sometime in 1988 as told by DW2 Jacob Onuh. If the Defendant was introduced to the Plaintiff in 1988, he could not have entered into an agreement to sell clothing materials to him in 1997.”

I observed that much of the evidence was concentrated on the fate of the Range Rover after the denial of indebtedness to the appellant.

It is the law that when the court which had seen and observed witnesses testify and drawn a wrong conclusion which is regarded as perverse the Court of Appeal will overturn it. See Fashanu v. Adekoya (1974) 6 S.C. 83 where Coker J.S.C. said:

“The appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a Tribunal of Trial and a Court of Appeal would only interfere with performance of that exercise if the trial Court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusion from accepted or proved facts which these facts do not support or indeed has approached the determination of these facts in a manner which these facts cannot and do not in themselves support.”

Now Nwanedo the learned counsel for the Respondent derided Exh. 1 which he submitted was made in the Police form and the contents was made 4 full years before the action, under duress as it was made while the Respondent was in Police Custody. It is most unfortunate that our citizens now use the army and Police personnel to collect debts from fellow business associates whether the debt is real or imaginary. Any document signed in the presence of the Police and relating to a civil claim shall be viewed with suspect particularly if the persons against whom it will affect was in custody or under some detention or handicap that he cannot freely enter into a contract with enforcement officers breathing down his neck. Any document that seeks to establish the existence of a contractual relationship which takes place under the very watchful eyes of the Police to whom a purely civil matter is brought to its attention to enforce or put a fear of God into the other side will certainly not be enforced as there is no consensus and is voidable. Exhibit 1 does not therefore avail the appellant.

In his further submission the appellant prayed that the sum of N20,000.00 odd admitted be paid to him. But this sentimental submission overlooks the fact that he made no such a claim. His claim is for N121,000.00 arising out of a contract that went awry, never fulfilled, not for lending the Respondent a sum of N20,000.00. It is what a party claims that he gets.

When a party initiates a proceeding he must satisfy himself that he has a good and reasonable chance of offering sufficient and cogent evidence to convince the court of the merit and worthiness of the case. It is like a commander who set out for a war and who must reason and calculate within himself that given the man and armour he has would he over run the enemy. If the answer is in the negative, it will be idle exercise to talk of invasion which in all probability he and his army will be overwhelmed.

This is a case as in all civil cases where the appellant must succeed on the preponderance of evidence. The Respondent raised fundamental issues in his pleading which I am of the view the appellant ought to have filed a Reply. Failure to do that was part of death knell on the case of the appellant.

In the final result the appeal fails and is dismissed. The Judgment of the High Court is affirmed. There will be costs to the Respondent assessed at N4,000.00.

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Other Citations: (1999)LCN/0507(CA)

Mr Frank Muobike V. Mr Thomas Nwigwe (1999)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A.

This is an appeal against the judgment of Ugwu, CJ. of Enugu State High Court, handed out on 18th March, 1998. Judgment was entered in favour of the Respondent and against the Appellant in the total sum claimed to wit:- N870,000 with N1,000 as costs including out of pocket expenses as well as 5% per annum interest on the judgment debt from 18/3/98 until the whole sum is liquidated.

For a proper and adequate consideration of the issues seriously at stake and canvassed in this appeal, the relevant and material facts must be assembled with some measure of considerable detail. Such facts are subsumed as follows “The Respondent herein filed his writ of summons under the undefended list on 12-1-98 claiming the sum of N870,000. He deposed to an affidavit in support of his claim. He averred that he had a series of business and other transactions with the Appellant. One of the transactions involved the sum of about N450.000 which the Appellant owed the Respondent and one Mr. Nwagba. This transaction is different from the subject matter of this suit according to the Respondent. On 30-8-96, the Appellant asked for an advance of the sum of N280,000 repayable within a month thereof. The Appellant was advanced the stated sum and he issued a Union Bank post-dated cheque, photocopy of which is Exhibit ‘A’ to the Respondent. Again, on 15-6-96, at the request of the Appellant, the Respondent was given another loan of N590,000. He issued another Union Bank post-dated cheque of N590.000. He issued another Union Bank post-dated cheque to the Respondent. Exhibit ‘B’ is a photocopy of the said cheque. The total sum contained in Exhibits ‘A’ and ‘B’ is N870,000. On 31-12-97, the Respondent’s counsel wrote a letter of demand Exhibit ‘C’ to the appellant. The letter was sent to the Appellant through NIPOST EMS speed post. Exhibit ‘D’ is the receipt issued thereof. The letter was not returned to Afam Akputa Esq, of counsel. The Appellant did not reply the letter from counsel. The Respondent finally averred that the Appellant had no defence whatsoever to his claim.

The Appellant at the trial court, filed the requisite notice of intention to defend the suit, dated 19-2-98, pursuant to order 24, Rule 9(2) of Anambra State High Court (Civil Procedure) Rules 1988 applicable to Enugu State as well as under the inherent jurisdiction of the trial court. He deposed to two separate affidavits to buttress his notice of intention to defend the suit.

In his first affidavit deposed to on 19-2-98, the Appellant averred that sometime in 1995, he took a loan of N200,000 from the Respondent for a short-term of two weeks. He issued the Plaintiff/Respondent a Progress Bank Enugu cheque, dated 20-10-95 for the sum of N280,000 to accommodate the principal and the interest of N80,000 thereon. The principal sum was obtained from one Chief S.M. Okeke at Awka. Before the end of 1995, he paid a total sum of N160,000 to the Respondent while presentation of cheque was suspended. By early 1996, he paid N100,000 cash. He did not collect any receipt for the stated cash payments. In his word, he never suspected any mischief. He said in March 1996, Chief S.M. Okeke mounted pressure on him under the pretext that the Respondent had not repaid any part of the loan to him. As a result of intimidation and pressure coupled with promise to douse the anger of Chief S.M. Okeke, he issued the plaintiff a Union Bank cheque for the sum of N590,000 postdated 15-7-96 making a total of N870,000 in cheques. About the same time, he replaced the Progress Bank cheque with Union Bank cheque because the Progress Bank had become distressed.

The appellant further averred that the amount borrowed was N200,000. Interest on the principal sum accounts for N670,000. About 9-9-96, he paid N50,000 in a Union Bank Draft to the respondent. It is Exhibit ‘A’ to his affidavit. He averred that despite his payments which amounted to N310,000, he was in October 1996 arrested and put behind the bars on the petition of Chief S.M. Okeke to police. The timely intervention of J.H.C. Okolo, Esq, SAN, saved him from prolonged incarceration. At the instance of J.H.C. Okolo, Esq, SAN, an arbitration meeting was held in Igwe Akputa’s office where it was resolved that he should pay N450,000 by March, 1997. Those in attendance, according to the appellant, were (1) Igwe Akputa, (2) J.H.C Okolo, Esq, (SAN) (3) Chief S.M. Okeke, (4) Chief Law Udechukwu, (5) Thomas Nwigwe (respondent) (6) Engr. Frank Muobike (a) (appellant). Pursuant to the arbitration, he paid N300,000 through J.H.C Okolo. Esq, (SAN) notwithstanding other payments earlier made to the respondent. The respondent, by a letter dated 26-10-97, clearly but subtly acknowledged that some payments had been made. Copy of the letter is Exhibit ‘B’. He denied owing the respondent the total amount claimed having paid the sum of N610,000 to him. He contended that he had triable issues including the issue of illegality.

In his further affidavit, the appellant further stressed the issue of illegality. He averred that he travelled with the respondent to Awka the country home of Chief S.M. Okeke along with Mr. Nwagba for the loan. He stated that he had no transaction involving N450,000 or any other transaction at all with either the plaintiff or with Mr. Nwagba or with both of them jointly. He attached a copy of Chief S.M. Okeke’s petition to police as Exhibit ‘A’. The same was made available to the appellant by the respondent under a covering letter- Exhibit ‘B’. He, as well, attached copies of receipts for payments made through the chambers of J.H.C Okolo, Esq, (SAN). Appellant stated that it dawned on him that he had unknowingly played into the hands of an organised syndicate of extortionists with the respondent as a front. He attached Exhibits “E’ and ‘F’ which he said have to do with payment of the sum of N300,000 through J.H.C Okolo, Esq. (SAN) to the respondent.

It can be gleaned from page 31 of the transcript record of appeal that on 18-3-98, the suit was heard. The parties were present and duly represented by counsel. None of the counsel uttered a word. The trial CJ then entered his judgment as follows:-

“I have gone through the affidavit of the defendant dated 19-2-98 particularly paragraphs 3 and 7 and it to quite clearly (sic) that these paragraphs are no defence to the action but they instead admitted the claim of the plaintiff of N870,000.00. Accordingly, the defendant has no defence to this action.

Judgment is therefore entered in favour of the plaintiff as follows:-

1. The defendant is to pay to the plaintiff the sum of N870,000.00 which are the value of two cheques dated 30/6/96 and 15/7/96 respectively which the defendant issued to the plaintiff but were dishonoured.
2. The defendant is to pay the plaintiff the sum of N1,000 as costs including out of pocket expenses.
3. The defendant is also to pay 5% interest on the judgment debt from today and not 15/7/96 until the whole judgment is liquidated.”

The appellant felt dissatisfied and filed his notice cum grounds of appeal against the judgment on 19-3-98 being next day to the judgment of the trial CJ. The appellant had axe to grind with the whole decision. The attendant four grounds of appeal read as follows with their particulars:-

“i. Error in Law

The trial court erred in law in refusing the appellant to defend the action when the materials placed before the trial court disclosed triable issues.

Particulars of Error in Law

(a) The proceeding before the trial court (the subject matter of the ruling/judgment now being challenged on appeal) arose from suit placed on the undefended list. The defendant/appellant filed and served a notice of intention to defend together with the supporting affidavit setting out grounds of defence which raised triable issues. A further affidavit was also filed and served to strengthen the defendant’s case.

(b) The plaintiff/respondent filed no counter-affidavit to controvert or challenge any of the averments in the defendant/appellant’s affidavit and further affidavit.

(c) It is a common ground that there was a loan transaction between the appellant and the respondent but the amount of the loan is in issue. While the appellant averred that the amount of the loan was N200,000 only, the excess of N670,000 being interest on the said loan, the respondent averred that the total amount of the loan he granted to the defendant was N870,000 citing the cheques issued by the appellant.

(d) Besides the appellant averred that he had repaid the loan including part of the interest element.

(e) The trial court erred in law by not accepting the uncontroverted depositions or the appellant in exercising his discretion whether or not to let the appellant in to defend the suit.

(ii) Error in Law

The trial court erred in law in entering judgment for the plaintiff/respondent when there was enough supportive evidence that the appellant had made some payments to the plaintiff/respondent.

(a) Copy of the draft with which payment of N50,000.00 was effected was annexed as Exhibit. (b) Copies of receipts from the Chambers of J.H.C. Okolo, SAN, for the payment made through the chambers were exhibited.

(c) Copy of letter from the plaintiff/respondent to appellant acknowledging some payment and asking for the balance was exhibited.

(iii) Error in Law

The learned trial court erred in law by entering judgment in favour of the plaintiff/respondent against the defendant/appellant, then on the facts relied on in the affidavit and further affidavit, a clear case of the illegality striking at the root of the transaction was disclosed.

Particulars of Error

(a) Paragraph 8 of the affidavit in conjunction with the depositions in the further affidavit in support of the application to defend show that the principal sum loaned to the defendant/appellant was N200,000.00 only.

(b) The sum of N570,000.00 claimed and on which the judgment of the court is based represents continued additions of interest on the said principal sum from the date of the transaction to the filing of the suit.

(c) The plaintiff/respondent is not and has never been held Money Lender Certificate (sic) as will enable him to charge interest on the loan.

(d) There is fundamental illegality disclosed on the parties’ transaction.

(iv) Omnibus

The decision of the trial court is against the weight of evidence”

It is pertinent to state here that the relief sought from this court by the Appellant is to allow the appeal, set aside the decision of the lower court, place the matter on the general cause list and remit same to another judge of the High Court of Enugu State for a formal hearing and proper determination of the suit.

As usual, briefs of argument were exchanged by the parties. It is desirable to set out the issues formulated in each brief. The three issues formulated on behalf of the appellant for determination are as follows:-

“1. Whether the learned trial Judge was not in error in holding that the defendant has no defence to the action.

2. Whether the learned trial Judge was not in error to have entered judgment for the plaintiff as claimed in the writ of summons and the claim attached thereto.
3. Whether the entire decision of the court below was not against the weight of evidence disclosed by the uncontradicted and unchallenged affidavit and further-affidavit in support of the appellant’s notice of intention to defend the suit.

Two issues were formulated for determination on behalf of the respondent in his own brief. They read as follows:-

“1. Did the appellant’s affidavit and further affidavit in support of his notice of intention to defend disclose any triable issue in this case?

2. Is there any illegality in the transaction between the parties the subject matter of the suit?”

On 29-9-99, when the appeal fell due for hearing, Mr. J.H.C. Okolo, SAN, who appeared for the appellant adopted the appellant’s brief dated 14-7-98 and filed on 15-7-98. The Senior Counsel, in further expatiation, observed that materials were placed before the trial CJ who brushed them aside and said there was no defence to the suit. He contended that such a stance was wrong in law. He observed that there is the issue as to the exact sum owed by the appellant. He opined that there is the issue of illegality which was not investigated. He maintained that the subsequent mediation and new sum of N450,000 created new legal relationship between the parties constraining the respondent to the said sum rather than N870,000 in judgment. He referred to the case of Festus Obayuwana v. Oscar Ede (1998) 1 NWLR (Pt.535) 670.

Afam Akputa, Esq, of counsel for the respondent, adopted the respondent’s amended brief dated and filed on 1-7-99. He referred to page 21 of the record of appeal as well as paragraph 7 of the further affidavit. He observed that there are intra contradictions in the defence put up by the appellant.

The above observations and submissions by each counsel on behalf of his client only represent the tip of the iceberg when joined with ruthless arguments contained in the parties’ respective briefs of argument.

Obi Onukwili, Esq, former counsel for the appellant, submitted on the appellant’s issue No. 1 that the learned trial CJ was wrong when he held that appellant’s notice of intention to defend the suit did not disclose any defence. He contended that enough materials to emphasize triable issues were clearly placed before him by the uncontradicted and unchallenged affidavit and further affidavit setting out the ground of defence. He observed that even if, in paragraphs 3 and 7 of the affidavit in support of the notice of intention to defend, the appellant admitted issuing the said cheques, the circumstances leading thereto were fully explained.

Learned counsel submitted that the court of appeal will interfere with findings of fact of the trial court where such is not properly made or not based on evidence before the court. He referred to Nwokedi v. Orakposim (1992) 4 NWLR (Pt.233) 120; Gbadamosi Adegoke v. Chief Nathaniel Adibi (1992) 5NWLR (Pt.242) 410.

Learned counsel further submitted that when findings of fact are not supported by evidence, such findings are perverse and will be set aside. He referred to Union Bank of Nigeria Ltd. v. Ifeatu Augustine Okoye (1996) 3 NWLR (Pt.435) 135. Learned counsel submitted that there has been a wrongful exercise of discretion through misconception of facts as the trial CJ omitted to take into account matters that are relevant. The exercise of discretion was based on wrong or inadequate materials. He referred further to Shittu v. Osibanjo & anor. (1988) 7 SCNJ 37 at 44: (1988) 3 NWLR (Pt.83) 483: Irewole L.G. v. Oyeyemi (1993) 1 NWLR (Pt.270) 462: (1993) 1 SCNJ 127 at 137: Wayne (West Africa) Limited v. Ekwunife (1989) 12 SCNJ 99 at 128: (1989) 5 NWLR (Pt. 122) 422

On issue No.2, learned counsel submitted that it was wrong for the trial CJ to have entered summary judgment without calling for oral evidence in the face of appellant’s uncontroverted depositions in his affidavit and further affidavit. He submitted that uncontroverted evidence should be deemed as admitted. He referred to Lewis Peat v. Akhimien (1976) 7 S.C. 157 at 164: Ajomale v. Yaduat (1991) 5 SCNJ 170: (1991) 5 NWLR (Pt.191) 266 and Egbunta v. Egbuna (1989) 2 NWLR (Pt. 106) 773.

Learned counsel further submitted that the learned trial CJ was in a very serious error when he entered judgment for the respondent as claimed inspite of the assemblage of enough supportive evidence before him to wit:- photocopy of N50,000 bank draft with which payment was effected to the respondent; photocopies of receipts from the chambers of J.H.C. Okolo, Esq, SAN, for payments made through that chambers sequel to arbitration as well as photo-copy of an acknowledgement letter from the respondent urging the appellant to expedite action with the payment of the balance.

Learned counsel submitted that the judgment entered by the learned trial CJ was rather hasty as he did not consider allegation of fundamental illegality in the transaction between the parties. He opined that whether pleaded or not, the court would not close its eyes against illegally once properly established as it is the duty of the court to refuse to enforce such transaction. He referred to Sodipo v. Lemminkainem OY & anr (1986) 1 S.C. 197 at 212 and 214: (1986) 1 NWLR (Pt.15) 220.

Learned counsel further submitted that discretion must be exercised according to common sense and according to justice. He referred to Odusote v. Odusote (1971) 1 All NLR 219, He urged the court to interfere and set the trial court’s judgment aside as one given without sufficient circumspection. He referred to Enekebe v. Enekebe (1964) 1 All NLR 102 at p. 106; Demuren v. Asuni (1967) All NLR 329: Solanke v. Ajibola (1968) 1 All NLR 46: Mobil Oil (Nig.) Ltd. v. Federal Board of Internal Revenue (1977) 3 S.C. 97 at p. 141; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 at pages 148-149.

On issue No. 3, learned counsel submitted that the decision of the trial CJ was against the weight of evidence placed before him and such occasioned a miscarriage of justice. He finally urged us to allow the appeal.

Afam Akputa, Esq., learned counsel for the respondent, on issue 1 in his client’s brief, at the on-set observed that there is authentic documentary evidence in support of respondent’s affidavit. He said such tilted the balance in favour of respondent’s affidavit. He referred to Nwosu v. I.S.E.S.A. (1990) 2 NWLR (Pt. 135) 688 at 718: Magnusson v. Koiki (1991) 4 NWLR (Pt.183) 119.

The learned counsel observed that appellant’s affidavit and further affidavit contain intra-contradictions. He urged that the entire defence of the appellant should not be believed on account of the contradictions. He referred to Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7)393; N.E.C. v. Wodi (1989) 2 NWLR (Pt.104) 444.

Learned counsel submitted that the allegation of the appellant that he was threatened, blackmailed and intimidated into drawing the two Union Bank cheque -Exhibits ‘A’ and ‘B’ to respondent’s affidavit in support of the claim cannot stand since the transaction between the parties is contractual. It is his submission that interpretation of contracts excludes moral questions unless they are part of it. He referred to Wejin v. Ashaka Cement Co. Ltd. (1991) 8 NWLR (Pt.211) 615. On point relating to illegality, learned counsel opined that the conduct of the appellant estopped him from raising such a defence. He referred to Agidigbi v. Agidigbi (1992) 2 NWLR (Pt.221) 98.

On bank draft payment of the sum of N50,000 by the appellant, learned counsel contended that the value might have not been paid to the respondent and that the appellant has to show in fact that the respondent received the draft’s value for the real transaction.

On issue No.2 formulated on behalf of the respondent, learned counsel contended that the debt has no interest element as the appellant did not state interest rate. The debt herein is certain according to learned counsel. He submitted that the transaction is not tainted with any illegality. He finally submitted that the appellant, by conduct, waived any illegality. He referred to Odua Investment Ltd. v. Talabi (1995) 2 LRCN 2107 at 2183 and 2184. Learned counsel finally urged that the appeal be dismissed.

At this juncture, I should note it that the appellant complied with the provisions of Order 24 Rule 9(2) of the High Court (Civil Procedure) Rules, 1988. He filed notice in writing that he intended to defend the action five clear days to the return date. There is no furore about this point.

The law is now settled that judgment can only be entered if there is no notice filed within the prescribed period with an affidavit clearly depicting triable issue or issues that will warrant transferring the suit to the general cause list for further investigation. Refer to Diamond Bank Nigeria Ltd. v. GSM Agro Allied Ind. Ltd. (1999) 8 NWLR (Pt.616) 558 at p. 565; Chief BC Agueze v. Pan African Bank Ltd. (1992) 4 NWLR (Pt.233) 76 at p. 87; Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt.123) 523 at p. 532; Olubusola Stores v. Standard Bank (Nig.) Ltd. (1975) 4 S.C. 51; Bendel Construction Co. Ltd. v. Anglocan Development Co. (Nig.) Ltd. (1972) 3 S.C. 37.

So, it is now beyond debate that for an action to be transferred to the general cause list from the undefended list, there must be a defence on the merit. It must not be a half-hearted defence. Refer to Franchal Nig. Ltd. v. Nigeria Arab Bank (1995) 8 NWLR (Pt.412) 176 at p. 188.

Shorn of all irrelevances, the real issue upon which this appeal will stand or fall, in my considered view, is whether or not the appellant’s affidavit and further affidavit in support of his notice to defend, disclose triable issue or issues to warrant the case being transferred to the general cause list for further investigation, in other words, the above may be reframed as whether or not the appellant has shown a real defence to the action; not an imagined or feigned one.

The pertinent question which cries for an answer at this stage is-what is a triable issue in relation to an action filed in the undefended list? I strongly feel that a triable issue is an uncontroverted and uncontradicted material allegation contained in the affidavit in support of notice of intention to defend an action filed in the undefended list. Such material allegation requires further investigation by the court to unearth the veracity or otherwise of the same. Such must portray a strong defence which cannot and should not just be given a wave of the back-hand. The facts deposed to by the appellant in his affidavit and Further affidavit in support of his notice of intention to defend the suit at the trial court remain uncontroverted and uncontradicted, Such affidavit evidence must be, prima facie, taken as admitted. See Ajomale v. Yaduat (supra) at p.170; Egbuna v. Egbuna (supra) 773.

The first triable issue which the appellant tried to show in his affidavit and further affidavit in support relates to the exact sum owed by the appellant to the respondent. He said he paid the sum of N260,000 cash which were not backed by receipts. He paid the sum of N50,000 by bank draft to the respondent. He asserted that he paid the sum of N300.000 through the chambers of J.H.C. Okolo, Esq., SAN, to the respondent with attendant receipt. Bank draft and receipt were attached to the affidavit and further affidavit of the appellant. The trial CJ did not consider both in his judgment. On page 27, lines 7-9 of respondent’s lengthy brief, learned counsel for the respondent stated as follows on the draft – “Do you know, my Lords, that a bank draft may be drawn up in my favour but may be lost or destroyed while in transit to me and it never got to me,” I was tempted to say I don’t know. The submission sounds ludicrous. In any event, there was no counter affidavit to show that the bank draft got lost or was not cashed. No doubt, it is a triable issue that requires further investigation. So also, payment made through the chambers of J.H.C. Okolo, Esq, SAN, to the respondent needs further consideration at the appropriate time.

In Exhibit ‘B’ attached to the affidavit in support of his notice, it is clear that the respondent asked for the balance of the outstanding money from the appellant. This document was not considered by the trial CJ. In a local environment where ‘business transaction’ is the order of the day, it is imperative to explore the meaning and the usual purport of the common word usually invoked in business circles to wit-balance, Black’s Law Dictionary, Fifth Edition at page 130 defines the word ‘balance’ as-

“An equality between the sums total of the two sides of an account, or the excess on either side. The difference between the sum of debit entries minus the sum of credit entries in an account. If positive, the difference is called a debit balance; if negative, a credit balance. Often used in the sense of residue or remainder and, in a general sense, may be defined as what remains or is left over.”

By asking for the balance from the appellant, a triable issue arises as regards what remains to be paid to the respondent. The respondent says there are some other transactions he had with the appellant who denied same and stated that he had unknowingly played into the hands of an organised syndicate of extortionists with the respondent as a front. He said he had only one transaction with the respondent.

Another issue which was clearly presented before the trial CJ relates to issue of arbitration which pegged the amount to be paid at N450,000 as at March, 1997. Those in attendance were stated to be 1. H.R.H. Igwe Akputa 2. J.H.C. Okolo, Esq. (SAN) 3. Chief S.M. Okeke 4. Chief Law Udechukwu 5. Thomas Nwigwe (respondent) and 6. Engr Frank Muobike (appellant). Appellant said pursuant to the arbitration, he paid the sum of N300,000 through the chambers of the said Senior Advocate to the respondent. The appellant said the initial loan of N200,000 was taken from Chief S.M. Okeke at Awka. The said Chief reported appellant to the police. Appelalnt was incarcerated as a result. The Chief was part of the arbitration. The role of the trio of Chief S.M. Okeke, the respondent and one Nwagba should be unearthed at the appropriate lime. For the meantime, I think a triable issue has been made out as regards arbitration.

The other vital issue made out by the appellant in his affidavit and further affidavit in support of notice relates to illegality. He said the initial loan, was N200,000. The sum of N670,000 represents interest elements. Neither Chief S.M. Okeke nor the respondent is a licenced money lender according to the appellant. The respondent, on his part, says the whole sum of N870,000 is loan with no interest at all. For now, no one is saying that there is outright illegality. But one can comfortably say that the appellant made out a prima facie case of illegality which requires further investigation. A transaction which is on its face shown to be tainted with illegality ought to be further investigated properly. No doubt, it is a triable issue.

I must confess that the brief of argument filed on behalf of the respondent was not helpful as it complicated the matter. Briefs are principally designed to assist the court in arriving at the justice of the matter. A brief must be pungent and to the point. It should not be unnecessarily lengthy. Submissions must be laced with relevant authorities – statutory cum procedural and case law. Counsel must avoid winding and ludicrous submissions having the semblance of those associated with the Law School Moot trials. Submissions by counsel must not take the place of evidence. Under the guise of submissions, counsel should not attempt to call black white or vice-versa. Submissions must not be geared at propping the indefensible.

The appellant’s counsel strongly urged us to reverse the exercise of discretion by the trial CJ. To succeed in reversing the exercise of discretion by a lower court, the appellant must show that in exercising its discretion, the lower court took irrelevant matters into consideration or omitted to take relevant matters into consideration. See Abeki v. Amboro (1961) All NLR 368 at p. 370. Where exercise of discretion is perverse, such can be reversed. See University of Lagos v. Aigoro (supra) at pages 148-149. Discretion must be exercised not only judicially but judiciously as well. See Saffiddine v. C.O.P. (1965) 1 All NLR 54 at p.58; Ugboma v. Olise (1971) 1 All NLR 8. Where relevant points are brushed aside or it is in the interest of justice, this court can interfere. See Enekebe v. Enekebe (1964) 1 All NLR 102 at 106: Denmuren v.Asuni (1967) 1 All NLR 94 at p.101: Solanke v. Ajibola (1968) 1 All NLR 46 at p. 152; Mobil Oil v. F.B.I.R. (supra) at p. 141. Discretion must be exercised according to justice and in consonance with common sense. See Odusote v. Odusote (supra) 219.With due deference to the learned trial CJ, it is clear beyond peradventure that he brushed aside relevant materials placed before him. He failed to take into consideration relevant matters. The discretion, as exercised by the trial court is no doubt, perverse. The discretion was not properly exercised judicially and judiciously. Appellant’s counsel maintained that he did not act with sufficient circumspection. I do not go as far as that and so I am not at one with him on that point.

I only need to further make the point that the rules of procedure relating to actions in the undefended list are designed for easy dispensation of justice in liquidated money demands where there is palpably no defence disclosed to the action. It is not designed for a short-cut to cover up fraud or illegality. It is also not meant for hasty judgments. ‘Much haste, less speed’ should he avoided in all cases.

All said and done, it is clear that the appellant had triable issues. He disclosed a defence to the action. He showed a bonafide defence. See Franchal Nigeria Ltd. v. Nigeria Arab Bank (1995) 8 NWLR (Pt.412) 176 at p. 188. it will be an eye wash to find otherwise.

The appellant’s relief is that the appeal be allowed, suit transferred to the general cause list and remitted to another Judge of Enugu High Court for determination. I think the purport of remitting a case of this nature to another judge in the same jurisdiction for hearing and determination is to make it possible for a clear mind to try the suit afresh and to put the parties on a level ground devoid of any misgiving.

I come to the conclusion that this appeal is meritorious. And I hereby allow the same. The judgment of the trial CJ handed out on 18-3-98 is hereby set aside. The suit is accordingly transferred to the general cause list and remitted to another Judge of Enugu High Court for a dispassionate appraisal of all issues and final determination. The respondent shall pay N2,000 costs to the appellant.

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Other Citations: (1999)LCN/0506(CA)

Gideon Nwaeze & Anor V. Ethelbert Nnana Eze & Ors (1999)

LawGlobal-Hub Lead Judgment Report

IGE, J.C.A. 

This is an appeal before this court against the judgment of the Local Government Council Election Tribunal of Imo State sitting at Owerri dated 8th February, 1999. Two petitions were before the tribunal numbered LGEP/IM/1/98 and LGEP/IM/47/98.

The parties in LGEP/IM/1/98 were as follows:-

Ethelbert Nnana Eze PETITIONER

V.

1. Dr. Gideon Nwaeze
2. Independent National Electoral Commission
3. Ephraim Onuzulike (Oguta Local Government Area Returning Officer)
4. Ndu Okonkwo (Mgbala/Uba Ward) Returning Officer) RESPONDENTS
5. Patrick Nwabueze (Supervisor Mgbala/Uba Ward)

The parties in LGEP/IM/47/98 were as follows:-

Barrister Francis U. Unyimadu PETITIONER

v.

1. Bro. Gideon Nwaeze
2. E. Onuzulike (Returning Officer Oguta Local Government Area)
3. Samuel Odunukwe

(Electoral Officer, Oguta Local Government Area) RESPONDENTS

4. Independent National Electoral Commission (INEC)

In the petition No. LGEP/IM/98 Ethelbert Nnana Eze stood election for the office of Chairman of Oguta Local Government Council on the platform of the People’s Democratic Party along with others namely Gideon Nwaeze of the APP, Francis Unyimadu of the UPP, Engr. Azuogu of MDJ and R.S. Okeke of the AD.

At the end of the elections, INEC the 2nd respondent declared 1st respondent, Dr. Gideon Nwaeze of the APP as the winner on 6/12/98 and returned him as Chairman-elect of Oguta Local Government.

The petitioner was dissatisfied with this result hence he filed an election petition before the Local Government Tribunal of Imo State.

In the petition No. LGEP/IM/47/98 Unyimadu stood election for the office of Chairman of Oguta Local Government on the platform of the United Peoples Party, UPP along with 3 others namely: Nnana Eze of the PDP, R.S.M. Okereke of the AD and D. Azogu of MDJ.

At the end of the elections, INEC, the 4th respondent declared the 1st respondent Dr. Gideon Nwaeze of the APP as the winner on 6/12/98 and returned him as Chairman-elect of Oguta Local Government.

The petitioner was dissatisfied with this result hence he filed an election petition before the Local Government Tribunal of Imo State.

At the trial/hearing of the two petitions, the petitioner in LGEP/IM/47/98 applied to the Election Petition Tribunal for a consolidation of the two petitions. The tribunal granted the application and made an order consolidating the two petitions together for trial on 13/1/99.

The trial began on 21/1/99 with the petitioner in LGEP/IM/1/98 calling 4 witnesses and tendering one document.

The petitioner in the second petition LGEP/IM/47/98 opened his own case on 26/1/99 by adopting PW1 in the earlier case as his witness and calling 5 other witnesses.

At the close of both petitioners’ case, the appellant who was 1st respondent in the tribunal called 8 witnesses and tendered several documents on behalf of INEC and other respondents. Counsel called 4 witnesses and the case closed on 3/2/99. After ordering for written addresses from counsel the tribunal adjourned the case for judgment on 8/2/99. Before that date, counsel for the 1st respondent i.e. 1st appellant in this appeal filed a motion asking that the two petitions be struck out on the grounds that they were brought contrary to the provisions of section 82 of Decree No. 36 of 1998 and also that the tribunal lacked jurisdiction to hear the said petitions.

After hearing arguments on both sides, the tribunal dismissed the application and proceeded with the hearing of the petitions.

At the end of the day, the tribunal delivered its judgment on 8/2/99 as recorded on pages 163-181 of the records.

The tribunal gave one judgment but made different and separate pronouncements in respect of each of the petitions. This is evident on pages 180 and 181 of the judgment. The petitioners are dissatisfied with the judgment of the tribunal hence they have appealed to the Constitutional Court, i.e. Court of Appeal by filing their notices of appeal and grounds of appeal as stated in the records.

Before the appeal was to be heard, the 1st petitioner brought a motion to amend his notice and grounds of appeal already filed. He later withdrew the application and same was accordingly struck out by this court.

The counsel for the 1st respondent Ethelbert Nnana Eze filed a notice of a preliminary objection under Order 3 rule 15 of the Court of Appeal Rules on the ground that the appeal is incompetent and that the brief of argument and the appeal are based on incompetent amended notice and grounds of appeal.

In his submission, counsel stated that the two petitions were consolidated in the tribunal for purposes of trial, and judgment was entered for the two petitions. He submitted that the appellant needed to file 2 separate notices of appeal for the 2 petitions involved at the trial of consolidation of the 2 cases. He referred the court to the brief filed by the appellant’s counsel as referring to quite a different appeal from the one filed under his notice of appeal on page 184 of the records. He also referred to the motion earlier withdrawn by counsel for the appellant and connected it with the contents of the appellant’s brief. In other words, the appellant envisaged he would be granted his application for amendment hence he had already reflected the amendment in his brief of argument.

In his response, Chief Ikeazor the learned S.A.N. for the appellant stated that the judgment of the tribunal dealt with two petitions and gave only one judgment. He submitted that normally two notices of appeal should have been filed but election petitions being sui genleris, such technicalities are overlooked. He referred to the case of Orubu v. N.E.C. (1988) 5 NWLR (Pt. 94) 323 al 347 and also Schedule 5 of the Decree No. 36. He further referred to Order 7 rule 3 of the Court of Appeal Rules with regard to prosecution of appeal in spite of non-compliance with the rules.

He then asked the court to refuse the preliminary objection. The learned S.A.N. later circulated a provision in the Schedule 5 to Decree No. 36 of 1998 which permitted consolidation of two or more election petitions. This is set out in paragraph 47 of Schedule 5.

Counsel stated that the effect presented by paragraph 47 of Schedule 5 to the Decree is in consonance with section 86(1) of the Decree which talks of “an appeal – since the effect of paragraph 47 has reduced many election petitions consolidated and heard together as “one petition”.

I agree with the submission of the learned S.A.N. that paragraph 47 of Schedule 5 provides for consolidation of two or more petitions to be heard together if they relate to the same election or return. The tribunal complied with this provision at the trial of the petitions. They reiterated this in their judgment at page 168 of the records.

Now let us look at what and what is involved in consolidation of actions.

Consolidation of actions has been described as and it is a process whereby two or more actions pending in the same court are by order of court joined and tried together at the same time. The actions though separate and distinct are tried simultaneously in the same proceeding. See the case of Nasr v. Complete Home Enterprises (Nigeria) Ltd. (1977) 5 SC. 1.

Furthermore, although consolidated actions are tried and determined in the same proceeding, each remains a separate and distinct action and has its own judgment given separately at the end of the common trial – See also Nasr v. Complete Home Enterprises (Nigeria) Ltd. (supra).

In the present case, the tribunal rightly consolidated the two petitions LGEP/IM/1/98 and LGEP/IM/47/98 and heard them together. The learned S.A.N. submitted that the effect of paragraph 47 of Schedule 5 means that only one judgment should be given. I do not buy that submission at all in view of what the law says with regard to the nature of consolidated actions. The Supreme Court has made it very clear in the case of Toriola v. Williams (1982) 7 SC 27 and also in Attah v. Nnacho (1965) NMLR 28 that where suits are consolidated, each of them retains separate and individual existence. Accordingly, at the end of the proceedings, judgment should be given in respect of each suit. The court cannot and should not determine one suit and ignore the other.

It is my view that these same conditions apply in the case of consolidated election petitions regardless of their being sui generis.

Now let us examine carefully the judgment of the tribunal whether or not it has complied with the law that each petition was given its Own judgment.

After a dispassionate consideration of the evidence in support of the two petitions on both sides the tribunal ruled separately in its judgment concerning LGEP/IM/1/98. I quote the relevant portion thus:-

“We have carefully perused the reply of the 1st respondent and are convinced that nowhere was the fact of the petitioner’s non-qualification pleaded in the evidence of RW1 and RW3 on the issue,it therefore goes to no issue. In view of the foregoing findings we find and declare the chairmanship election held on 5/12/98 for Oguta Local Government in which results from Oru Ward consisting of 20 booths were not returned and announced as inconclusive. We note further that both sides in this matter are to a certain extent agreed that the election for Oru Ward was cancelled. We confirm that and order that the Independent National Electoral Commission (INEC) should appoint a new date to complete the said election by conducting a fresh election in Oru Ward alone between the original contestants to determine who emerges as the Chairman of Oguta Local Government Council. Petition No. LGEP/IM/1/98 is therefore allowed.”

Then the judgment went on to consider petition LGEP/IM/47/98 thus I quote:

“As we have stated earlier petition No. LGEP/IM/47/98 was consolidated and heard together with No. IM/1/98. In paragraphs 6(a)(1),7, 8(1)-(c), 9, 12, 13, 14 and 15 of petition No. 47 one Barrister Unyimadu hereinafter referred to as petitioner in petition No.47 stated the facts in support of his petition whilst the 1st respondent filed a 22 paragraph reply. The 2nd-4th respondents did not file any replies. The effect is that the facts contained in the petition No. 47 are taken as established. However, the reply filed by the 1st respondent has a little problem. We note that paragraphs 2, 3, 4 and 7 thereof had earlier been struck out for the reasons earlier given. Issues were however joined on the petitioner’s paragraphs 6(a)-(1), 7, 8(a)-(c), 9, 12-15 with 1st respondent’s paragraphs 6, 8-22 …

“This lapse gave rise to massive introduction of unauthorised ballot papers into the ballot boxes and multiple voting master minded by the 1st respondent’s agents. There is evidence in the form of testimonies from both sides showing that Form E.C 8A was not provided and that 4th respondent directed presiding officers to record results on plain sheets. We find that fact as established. We have carefully examined the testimonies of all the witnesses that have testified before us but are unable to find support for the statements contained in sub-paragraphs (a)(b) and (c) of paragraph 8, as well as paragraphs 9 and 10 and 11 of petition No. 47. There is however, evidence which we believe to be supportive of paragraph 13 of the petition. See testimony of R.W. 9 who testified as PW6 in petition No. 47 and to that end we make the same order as in petition No.1. The INEC is hereby ordered to make arrangement for fresh election in Oru Ward between the original contestants so as to determine who emerges as the Chairman, Oguta Local Government Council.”

Although one judgment was given by the tribunal yet one is left in no doubt that each petition was given its own judgment by the Election Tribunal which consolidated the two petitions.

It is pertinent to add here that consolidation of actions is purposely made to save costs and time. By consolidation too, multiplicity of actions is also avoided, see the case of Obiekweife v. Unlimma (1957) SCNLR 331 and Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5.

Having settled the question of whether or not two separate petitions have been adjudicated upon and separate pronouncements have been made in respect or each of them, we shall now look into the notice of appeal filed by the appellants in this appeal. The appellant filed only 1 notice of appeal – see p. 184 of the records of appeal. A notice of appeal is the foundation of an appeal. It is the constitutional signal of dissatisfaction against the judgment complained of. Where a notice of appeal is fundamentally defective there is no foundation for the appeal and therefore, there is no appeal before the court. The appeal collapses for lack of necessary foundation. See the cases of Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350. N.B.N.W. v. N.E. T. (1986) 3 NWLR (Pt. 31) 667 and Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267.

In the instant case, the notice of appeal as filed by the appellant on p. 184 of the records refers to Dr. Gideon Nwaeze as appellant against 7 respondents – namely Ethelbert Nnana Eze, Independent National Electoral Commission, Ephraim Onuzulike (Oguta L.G. Returning Officer), Idu Okonkwo (Mgbala/Uba Ward), Patrick Nwabueze (Supervisor Mgbala/Uba Ward), Barrister Francis U. Unyimadu and Samuel Odurukwe (Electoral Officer Oguta L.G.A.).

In his notice also the appellant is complaining of “the whole decision”.

The names exhibited in the notice are not all the names of the parties involved in the 2 petitions heard by the tribunal. The persons directly affected by the appeal are also not all named in the notice. Looking carefully at the orders made by the tribunal in respect of each petition all the parties before it are directly affected by the decisions. These parties include those affected or aggrieved or likely to be aggrieved by the proceedings before the tribunal. See the case of Jadesimi v. Okotie-Eboh; In re Lessey (1989) 4 NWLR (Pt. 113) 113 at 125.

Moreover, the appellant is supposed to file 2 separate notices one for each decision on each petition.

All of the above also applied to the notice of appeal filed on pages 198-205 by M.N. Amamasi, Director of Civil Litigation – Counsel to 2nd-5th respondents.

Order 3 r 2(1) of the Court of Appeal Rules 1981 as amended clearly sets out what a notice of appeal shall contain.

Order 3 rule 2(1) provides that notice of appeal which is to be filed in the Registry of the court below shall set forth:

“(i) The grounds of appeal

(ii) shall state whether the whole or part only of the decision is complained of, and

(iii) the names and addresses of all parties directly affected by the appeal”

I am afraid the appellants in this case have failed to comply with the fundamental requirements of the law by filing incompetent and defective notice of appeal hence this Constitutional Court cannot determine the appeals as they are presently filed.

In view of the foregoing, I uphold the preliminary objection of the 1st respondent that the appeal is incompetent. The two appeals are hereby dismissed with N2,000.00 costs to the respondent against each set of appellants. The judgment delivered by the election tribunal on 8/2/99 is hereby confirmed.

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Other Citations: (1999)LCN/0505(CA)

Nigerian Advertising Services Limited & Anor V. United Bank for Africa Plc & Anor (1999)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A

In the court below the plaintiffs, (hereinafter referred to as the Appellants) took out a writ of summons against the first defendant (hereinafter called the 1st Respondent) and claimed against it the following reliefs:

1. a declaration that the purported sale of the plaintiffs’ property known and described as 52, Norman William Street, S. W. Ikoyi, Lagos is null and void and of no effect whatsoever.
2. a declaration that the purported sale of the plaintiffs’ said property by the defendant is not in accordance with the provisions of the law.
3. an order setting aside the purported sale of the said property by the defendant on the ground that the sale was fraudulent and/or made in bad faith.
4. a declaration that an offer of N1.3 Million had been made to the plaintiffs for their property by another person and this was communicated to the defendant and its solicitor Mr. Obembe before their purported sale of the same property for a lesser amount of N1.2 Million.
5. a declaration that the purported sale is also null and void because it was contrary to the terms of the Mortgage Agreement between the plaintiffs and the defendant.
6. a declaration that the defendants’ action of selling the plaintiffs’ property to unknown person in public, the plaintiffs who are very well known have thereby been subjected to embarrassment, ridicule and contempt and the plaintiffs claim N5 Million damages for libel/slander published to the buyer of the property and others and the purported sale be set aside.
7. an injunction restraining the defendant, its servants or agents from interfering with the said property until the determination of this suit.

Pleading were ordered, filed and exchanged between the parties. Suffice it to say that the 1st Respondent had counter-claimed for possession and mesne profits.

Briefly, the facts of this case as could be gleaned from the pleadings are that on or about 28/8/72 the property styled as No.52, Norman Williams Street, S.W. Ikoyi was employed by its owner Chief Anyibuofu Megafu, the 2nd plaintiff/appellant, to secure facility granted by the 1st defendant/respondent (United Bank for Africa PLC) to the 1st appellant (Nigerian Advertising Services Limited). When the 1st appellant failed to repay the loan despite repeated demands, the first defendant/respondent sold the mortgaged property in what it termed, the exercise of its power as a mortgagee. Aggrieved by the sale, the plaintiffs/appellants took out a writ of summons claiming the reliefs set out supra. As I have said above, the 1st defendant/respondent also counter-claimed seeking reliefs stated above. Both sides led evidence in proof of the averments in their respective pleadings. After taking the addresses of counsel on both sides, the lower court, in a reserved judgment, on 16th December, 1992, dismissed the appellants’ claims in their entirety and granted the 1st Respondent’s counter-claim for possession but refused that for mesne profit. In concluding its judgment, the lower court said and I quote:

“The plaintiff’s claims failed in their entirety and are hereby dismissed. Judgment is hereby entered for the defendant against the 2nd plaintiff as follows:

The 2nd plaintiff Chief Anyibuofu Megafu shall give up possession of the property situate at No.52, Norman Williams Street, S/W Ikoyi, Lagos on or before the 31st day of December, 1992.”

Dissatisfied with the said judgment the appellants filed a notice of appeal which contains three original grounds of appeal. Distilled from the said grounds of appeal and set out in their brief of argument are three issues for determination and they are in the following terms:

1. whether the learned trial judge was right in holding that upon the preponderance of evidence, the mortgaged property was sold on 28th April, 1989.
2. whether any purported sale of the mortgaged property after the presentation by the mortgagor of a bank draft for the full redemption of the mortgage was not malafide, fraudulent and invalid and
3. whether the learned trial judge was right in holding that the respondent had no duty to extend the time within which the appellants could re-deem the mortgage.

It is necessary to say that while this appeal was still pending before this court, Mrs. Bridget Okwesa who held herself out as the party Interested sought and obtained the order of this court on 18th October, 1993 to be joined as the 2nd Respondent. Her interest lies in the fact that she claimed to have bought the mortgaged property.

The appellants filed a joint brief of argument while each of the 1st and 2nd respondents filed separate reply brief. Discerned from the 1st respondent’s briefs are 6 issues which are set out hereunder:

1. whether on the plaintiffs/appellants writ of summons, pleadings and evidence it is open to them to dispute or deny the fact of the sale of the mortgaged property having taken place on 28th April, 1989 or at all events, before 11th May, 1989 (the date the bank draft for N1.3 Million was presented to the defendant/respondent).
2. whether the holding by the learned trial judge that the sale took place on 28th April, 1989 is at variance with defendant/respondent’s pleading and evidence.
3. whether in all the circumstances, taken into account particularly the combined import of the writ of summons, the pleadings and evidence, the learned trial judge erred in holding that, on the balance of probability, the sale of the mortgaged property took place on 28th April, 1989.
4. whether the Bank draft for N1.3 Million was not the proceed of the sale of the mortgaged property by the 2nd plaintiff/appellant to a person whose offer to buy the said property the 2nd plaintiff/appellant communicated to the defendant/respondent on 21st April, 1989.
5. whether it is open to the plaintiffs/appellants to raise on appeal the question of a sale of the mortgaged property having taken place after 11th April, 1989 and the validity of such sale when the issue was not raised, at all in the plaintiffs/appellants’ pleadings and evidence given at the trial and when the question was not addressed by counsel on both side nor a determination made on it by the learned trial judge. (The question of fraud raised in the Appellants’ brief being dependent on issue 5 stands or falls with it).
6. whether the defendant/respondent is under a legal duty to accede to the plaintiffs/appellants’ request for further four weeks extension of time to repay the debt after the “final” notice by the defendant/respondent dated 3rd April, 1989.

The 2nd Respondent the party interested also raised three issues for determination in her brief and they are as follows:

1. whether the learned trial judge was not correct in inferring the existence of a lawful sale to the 2nd Respondent of the mortgaged property on 28th April, 1989 or in any event before 11th May, 1989.
2. whether the assignment by the 1st Respondent to the 2nd Respondent of the mortgaged property pursuant to the exercise of its power of sale under the mortgage is vitiated or otherwise affected by the alleged or any default on the part of the 1st Respondent in the exercise of its said power of sale.
3. whether the learned trial judge was not correct in inferring the existence of a lawful sale to the 2nd respondent of the mortgaged property on 28th April, 1989 or in any event before 11th May, 1989.

All the issues formulated in the different briefs are interwoven. They point to a common goal. They pose the fundamental question; whether the mortgagee’s power of sale ever arose and if it arose, whether it was exercised bona fide for the purpose of realizing the debt owned it by the mortgagor without it being in collusion with purchaser. The answers to the afore-mentioned questions constitute the bottom line of the resolution of this appeal.

When the appeal came before us on 14/4/99 Mr. Uwechia learned counsel for the appellants referred to and adopted the brief of argument of the appellants. By way of emphasis, he submitted that from the entire evidence adduced before the lower court there was no justification for the finding that the sale of the mortgaged property took place and while placing reliance on the decision in A.C.B. v. Nbisike (1995) 8 NWLR (Pt.416) 725, he urged that the appeal be allowed, the judgment of court below be set aside and judgment entered in favour of the plaintiffs per their writ of summons. Mrs. Chukura learned counsel for the 1st Respondent referred to and adopted the brief of her client and urged that the appeal be dismissed.

Mr. Ajumogobia, of counsel for the 2nd Respondent referred to and adopted the brief of his client urging that the appeal be dismissed. Although there is a Respondent’s Notice of Intention to contend that the decision of the court below be affirmed on grounds other than those relied upon by the court below. Mr. Ajumogobia did not allude to it. He would seem to have abandoned it.

As I have observed earlier all the issues raised for determination are interwoven. Issue 1, 2, and 3 raised by the 1st Respondent are saying the same thing in so many words: indeed they are similar to issue 1 set up by the appellants and issues 1 and 3 put forward in the 2nd Respondent’s briefs.

The main plank of the appellant argument in their brief is that there was no evidence that the mortgaged property was sold on 28th April, 1989 and therefore the court below was wrong to have so held. Indeed that fact was not pleaded by the 1st Respondent they contended. On the other hand, the briefs of arguments of the 1st and 2nd Respondents are replete with arguments that the property was sold on 28th April, 1989 in the lawful exercise of the power of sale that resided in the mortgage.

In the judgment of the lower court while reviewing the evidence led by the 2nd plaintiff/appellant (Chief Anyibuofu Megafa) the trial judge credited him as testifying thus:

“The 2nd plaintiff testified further that he gave them a cheque for N1.3 Million to redeem the mortgage. He testified further that on 3rd April, 1989, they wrote him a letter giving him final notice to redeem the property. He produced the letter dated 3rd April, 1989 admitted as Exhibit p2. He testified that when he received Ex.p2. He wrote them asking for four weeks extension to enable him redeem the property…He testified that on 11th May, 1989 he took the cheque for N1.3 Million to Mr. Obembe but he did not accept the cheque. He testified that Obembe told him that he had already accepted a cheque for N1.2 Million for the purported sale of his property, He testified that the purported sale of the property was on 28th April, 1989.”

The law is settled that evidence which is at variance with the pleadings goes to no issue and should not be received by the trial judge; it should be disregarded by the court. See Enang & Ors. v. Audu (1981) 11 – 12 S. C. 25. But in paragraph 9, 11 and 13 of the statement of claim, the appellants who were the plaintiffs in the court below aver thus:

Para 9

“The plaintiffs aver that bank draft No. 017466 dated 11/5/89 for N1.3 Million drawn on Nigeria Merchant Bank Limited Broad Street, Branch in favour of the defendant was presented to the defendant on 11/5/89 for the liquidation of the mortgage debt, but was rejected by the defendant on the ground of the property having been sold on 28th April, 1989, thereby denying the plaintiffs opportunity to redeem their property.”

Para 11

“The plaintiffs shall contend at the trial that the defendant was actually aware at all material time prior to the purported sale of the property on the 28/4/89 that they had asked for an enlargement of time of four weeks within which to retire the mortgage debt and redeem their property.”

Para 12

“The plaintiffs aver that the defendant having been fully aware of a better offer of N1.3. Million net and having also been notified of their intention to retire the mortgage debt within four weeks from 17/4/89 in accordance with the plaintiff’s letter of that date, the defendant had acted fraudulently and on bad faith by proceeding to effect sale of the property on 28/4/89 for N1.2 Million that is, before the expiration of the four weeks.”

It is evidence that on the face of the pleadings before the court below the fact that the mortgaged property was sold on 28/4/89 was pleaded. The averment was even contained in the plaintiffs’ pleadings. Again, the evidence in proof of the averment of sale of the property came from the 2nd plaintiff. That plea is no doubt adverse to the plaintiffs’ case. The law is sacrosanct that statement or admission, which is oral or written, made by a party which is adverse to his case is admissible in law. See Igyuse v. Ocholi & Anor (1997) 2 NWLR (Pt.487) 352. Even, if none of the plaintiffs nor their witnesses led evidence to substantiate the averment, the defendant whether he had made that averment in his statement of defence or not will be at liberty in law to lead evidence to establish an averment in the plaintiff’s pleadings which supports his case. As observed supra, in law, evidence led on fact not pleaded goes to no issue and accordingly is inadmissible. And where it has been mistakenly admitted it should be expunged. This is the legal position whether the evidence was elicited in Chief or under cross-examination. However, in some decided cases the Supreme Court has held that despite the rule that a party shall not be allowed to lead evidence outside his pleadings, a plaintiff will be entitled to lead evidence on points raised in the defendant’s pleadings. See (1) Emegokwue & Ors. v. Okadigbo & Ors. (1973) 4 S.C. 113 and (2) Bamigboye v. Olarewaju (1991) 4 NWLR (Pt.184) 132. It seems to me consistent with the principle of fair hearing or fair trial that a defendant in similar circumstance should be permitted by law to lead evidence on issues contained in the pleadings of the plaintiff.The result is that on this issue, I am of the clear view that the court below was right in holding that the property was sold on 28th April, 1989.

From the pleadings and evidence led, the parties are adidem that the appellants (plaintiffs) in the court below had defaulted in the payment of the loan. The appellants also admitted that the 1st Respondent addressed a letter to them calling for the payment of the loan and interest. For purpose of clarity, I wish to restate here that the 1st respondent in this appeal was the mortgagee. A mortgagee’s power of sale becomes exerciseable if it has arisen and once it has so arisen the title of a subsequent purchaser will not be affected by its improper or irregular exercise and the sale will be regarded as valid. See Majekodunmi & Ors. v. Co-op Bank Ltd. (1997) 10 NWLR (Pt.524) 198. But, in exercising the power of sale a mortgagee is under duty to take reasonable care to obtain the true value of the property, see Temco Eng. & Co. Ltd. v. S.B.N. Ltd. (1995) 5 NWLR (Pt.397) 607. However, a mortgagee will not be restrained on the exercise of his power of sale merely because the mortgagor objects to the manner in which the sale is being arranged or because the mortgagor has commenced a redemption action in court, but he (mortgagee) will be restrained if the mortgagor pays the amount claimed by the mortgagee into court; that was the decision of the Supreme Court in Nigerian Housing Development Society Ltd. & Anor v. Yaya Mumuni (1977) 2 S.C. 57. No money was paid into the court by the mortgagor. Rather all the mortgagor did was to make a spirited effort by presenting a cheque dated 11/5/98 for N1.3 Million after the property had been sold on 28/4/89. Although, the appellants tried to show that they asked for an extension of time within which to pay the loan. There is no evidence that such request met with the 1st respondent’s favour. In fact such a concession could not have been granted because as at the time it was made, the property had been sold to a third-party – the 2nd respondent. That was a spirited attempt to redeem. The right to redeem, as was said by the Supreme Court in Ejikeme v. Okonkwo (1994) 8 NWLR (Pt.362) 266, is so inseparable an incident of mortgage that it cannot be taken away by an express agreement of the parties that the mortgage is not to be redeemable or that the right is to be confined to a particular time or to a particular description of persons. Continuing with the said judgment OGUNDARE JSC who delivered the leading judgment, said at page 278 and I quote:

“The right continues unless and until the mortgagor’s title is extinguished or his interest is destroyed by the sale either under the process of court or of a person in the mortgage incident to the security.” There is the over-whelming evidence that the property had been sold on 28/4/89, It therefore follows that the mortgagor’s title in the said property has since become extinguished. I have said somewhere in this judgment that on the evidence before the court, the property had been sold to the 2nd Respondent. The plaintiff’s alleged fraud in the exercise of the power of sale. But there is no scintilla of evidence to prove that crime. It has now been established and it finds support in decided cases, that once the mortgagee exercises his right of sale bona fide for the purpose of realizing his debt, as in the instant case, and without collusion with the ultimate purchaser (again as in the instant matter), the court will not interfere even if the sale is disadvantageous unless the price is so low as in itself to be evidence of fraud see Okonkwo v. C.C.B. (Nig) Plc (1997) 6 NWLR (Pt.507) 48. I have said above, in line with the decisions in Haruna v. S.B.N. Ltd (1995) 2 NWLR (Pt.377) 326 and the Majekodunmi supra that the title of a purchase of property from a mortgagee who exercised this power of sale cannot be impeached. It follows therefore that the remedy of a mortgagor who holds himself out as having been damnified by the improper or irregular exercise of a mortgagee’s power of sale is in damages, against the person who exercised it. See Okonkwo and Majekodunmi cases supra. There was no evidence that the property was sold at rock-bottom price. Indeed, no valuer was called to give evidence of the true value of the property. For the umpteen time, I like to observe that from the evidence adduced in the court below, the mortgagee did not exercise the power to sale until it arose. The net result of all I have been saying is that the title of the 2nd Respondent – the purchaser remains unimpeachable for all times.

As observed earlier, all the issues raised by the parties in their briefs of arguments are interwoven. They all focus on whether the power of the mortgagee to exercise its right of sale ever arose; whether there was a sale of the mortgaged property and if the sale was regular or proper. From what has been said above, the answers to these posers cannot, but be in the affirmative. All these issues are therefore resolved in favour of the 1st and 2nd respondents respectively.

In the final analysis, from all that has been said above, the only conclusion I can reach and which I now reach is that this appeal is unmeritorious. It is dismissed in its entirety and the judgment of the court below is hereby affirmed. I assess the cost of this appeal in favour of the respondents at N3,000.00.

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Other Citations: (1999)LCN/0504(CA)

Union Bank of Nigeria Plc V. Chief James J.a. Akinrinmade (1999)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

The facts of the case are that the Respondent is a Customer of the 1st Appellant allegedly operating a Personal Account No. 3161255768. On the 30/10/91 the 2nd Appellant on the instruction of the 1st Appellant advertised the Respondent’s personal building situate at No. 8, Offa Road, G.R.A., Ilorin for sale by auction by virtue of mortgage deeds dated 23/9/77 and 25/8/82 which the Respondent allegedly executed in respect of his indebtedness to the 1st Appellant.

The Respondent however contends that the 1st Appellant cannot sell his mortgaged property since he is not indebted to the 1st Appellant on account of his personal account No. 3161255768 which was not in debit as shown in Exhibit 5.

The 1st Appellant on the other hand contends that the Respondent at all times material to the case maintained two different personal accounts with numbers 3162290192 and 3162290206 under which he had enjoyed banking facilities from the 1st Appellant but that the Respondent later transferred these accounts to Rinso Ranch Ltd. through a Deed of Rectification dated 4/2/79 – Exhibit C. The 1st Appellant further maintained that the Respondent and Rinso Ranch Nig. Ltd. at various times obtained overdraft and loan facilities to the benefit of the Company and that the Respondent personally guaranteed the banking facilities obtained by the Company. The deed of guarantee is Exhibit 7. The name Rinso Ranch Ltd & Rinso Ranch Nig. Ltd. is used interchangeably in the Exhibits. It is my view that it refers to the same company.

However, due to the default of Rinso Ranch Nig. Ltd and the Respondent to liquidate the debt of Rinso Ranch Ltd. to the 1st Appellant, the 1st Appellant sought to exercise her right of sale under the Deed of Mortgage but the Respondent instituted this suit at the High Court claiming as follows:-

“(1) A declaration that the Defendants cannot as advertised in the Herald Newspaper of 30/1/91 auction the Plaintiffs building situate at No. 8, Offa Road, G.R.A., Ilorin by virtue of purported mortgage deeds dated 23/9/77 and 25/8/82 respectively or by any other means howsoever.

(2) A declaration that having not complied with Section 22 of the Land Use Act 1978 the Defendants are not entitled to auction the Plaintiff’s said building on 29/11/91 as advertised in the Herald Newspaper of 30/10/91 or at any other time.

(3) A declaration that the notice to auction the said Plaintiff’s building is null and void and of no effect.

(4) An injunction restraining the Defendants from auctioning the said Plaintiff’s building situate at No.8, Offa Road, G.R.A., Ilorin.

During the pendency of the action al the High Court, the 1st Appellant presented an application for leave to join Rinso Ranch Ltd. as a party to the action which application was opposed and eventually refused by the Court.

The 1st Appellant, however, counter claimed against the Respondent as follows:-

“Whereof the first Defendant/Counter-claimant claims against the Plaintiff as follows:-

(a) The first Defendant/Counter-claimant claims against the Plaintiff as mortgagor and guarantor of the Company’s debt to the first Defendant the sum of N856.378.35 (Eight Hundred and Fifty-Six Thousand, Three Hundred and Seventy Eight Naira, Thirty-Five Kobo) outstanding against the Company as at 1/11/91 arising out of an overdraft/loan facilities plus interest granted to the Plaintiff and/or the Company (as the case may be) by the first Defendant at the request of the Plaintiff and/or the Company and which was secured with the Plaintiffs said property and an agreement of personal guarantee executed by the Plaintiff in favour of the first Defendant and interest thereon at the prevailing Union Bank of Nigeria Plc prime lending rate until judgment is entered and thereafter 10% per annum until judgment debt is fully liquidated.”

At the conclusion of trial the learned trial Chief Judge Hon. Justice, T. A. Oyeyipo entered judgment for the Respondent and dismissed the counter claim of the 1st Appellant. Dissatisfied with the judgment delivered on 3rd July, 1997 the Appellants have appealed to the Court on seven grounds out of which learned counsel for the Appellants. Alhaji Moh’ d Syrajludeen O. Adegboye, formulated three issues for determination viz:-

“1. Whether the Respondent has succeeded in proving his case on the balance of probabilities (Grounds of appeal numbers 1, 2 and 3).

2. Whether the 1st Appellant was entitled to exercise its right to auction the mortgaged properties as per Exhibits 3 and 4 (Grounds of appeal number 4).
3. Whether the Honourable Chief Judge was not wrong in dismissing the Counter claim of the 1st Appellant even after finding as a fact that Rinso Ranch Nig. Ltd. is indebted to the 1st Appellant (Ground of appeal numbers 5, 6 and 7).”

The Appellant’s Brief of argument in which the issues for determination are formulated was filed on 28/10/98. The brief was adopted by learned counsel for the Appellant during the hearing of the appeal on 30/9/99.

The Respondent through Counsel Chief S. F. OJeyemi filed his brief of arguments on 3/6/99 in which he adopted the issues formulated by learned counsel for the Appellants in the Appellant’s Brief of Arguments.

On issue No. 1, learned counsel for the Appellants submitted that the Respondent failed to establish his claim by pleaded facts and admissible evidence on a preponderance of evidence. That Exhibits 3 and 4 entitle the 1st appellant to exercise its power to auction the said property covered by Exhibit 2.

That it is not in dispute that the respondent got overdraft and loan facilities in the course of his operation of accounts No. 3161255768 between 1977 and 1982.

That the facilities were secured by Exhibits 3 and 4. That by Exhibit 6, the Deed of Rectification the Respondent transferred his personal accounts, assets and liabilities to Rinso Ranch Ltd. That the Respondent also executed Exhibit 7, the Deed of guarantee wherein he stood as guarantor to the company for its overdraft and loan facilities from the 1st appellant.

That the Respondent admitted under cross examination that he is the Managing Director of Rinso Ranch Nigeria Ltd. and that the said Company obtained loan facilities from 1st appellant to the tune of N330,060.00. He agreed that the said Company has not paid back its outstanding debt to the 1st Appellant.

That the Respondent also agreed that he executed Exhibits 6 and 7 but said that the Exhibits are not binding on him. He further stated that Exhibits 6 and 7 were made on the condition that agricultural loan would be granted to Rinso Ranch Nig. Ltd. which was never done.

Learned Counsel for the Appellants then submitted that the fact that Exhibits 6 and 7 were made under certain conditions was not covered by the pleading in paragraph 16 of the Reply to the Statement of Defence and Counter-Claim. He then submitted that the evidence on the non fulfillment of the future event goes to no issue.

Learned Counsel further submitted that the learned trial Chief Judge’s conclusion that Exhibit 6 is conditional on the happening of a future event which did not happen etc is based exclusively on extrinsic evidence contrary to Section 32 of the Evidence Act. Learned Counsel then cited and relied on the Supreme Court decision in the case of Layade v. Panalpina (1996) 7 SCNJ 1 at 14-15, (1996) 6 NWLR (Pt.456) 544 and Union Bank of Nig. Plc. v. Albert Ozigi (1994) 4 SCNJ 42 at 55; (1993) 3 NWLR (Pt. 333) 385

That Exhibits 6 and 7 speak for themselves and that the trial court is bound by them. That it is not the duty of the Court to rewrite the agreement between the parties.

Turning to the issue whether the appellants specifically denied the averments in paragraph 10(a) of the statement of claim, learned counsel for the Appellants submitted that the Appellants have sufficiently denied the said paragraph in paragraphs 1, 2 (a-t) both inclusive, 4, 5, 6, 7 and 8 of the Amended Statement of Defence and counter claim.

That the appellants have pointedly averred that the Respondent owes the 1st Appellant either as a Customer, mortgagor and guarantor of the debt of Rinso Ranch Nig. Ltd. He then referred to the Supreme Court decision in the case of Omorhirhi & Ors. v. Enatevwere (1988) 3 SCNJ 168 at 181 -182; (1988) 1 NWLR (Pt. 73) 746; Mandilias & Kamberis Ltd. v. Lamidi Apena (1969) NMLR 199. Attah & Ors. v. Nnacho & Ors. (1965) NMLR 28.

Finally Learned Counsel submitted that the Respondent failed to discharge the burden of proof cast on him by Sections 136 and 137 of the Evidence Act and that this case lacks cogency and should be dismissed. He then urged us to allow the appeal on this issue.

On his part, Learned Counsel for the Respondent Chief S. F. Odeyemi submitted that the Respondent proved his case in compliance with Sections 135, 136 and 137 of the Evidence Act on the balance of probabilities. That the respondent tendered Exhibits 1, 1A, 2, 3, 4, 5, 6, 7 and 8 during his examination in chief.

That the Respondent proved that the Appellants are not entitled to auction his personal building because he is not indebted to the 1st Appellant in respect of his personal account NO. 3161255768 – Exhibit 5.

That Exhibits 3 and 4 are the mortgage deeds by which the Respondent pledged his building in case of default in the payment of overdraft.

That by clause 6 in both Exhibits 3 and 4 the appellants can only sell when there is indebtedness which has been demanded and the Respondent defaulted in paying same. He then relied on UBN Ltd v. Ozigi (1994) 3 SCNJ 42 at 55, (1993) 3 NWLR (Pt.333) 385 and submitted that parties are bound by the agreement between them.

That the fact that the Respondent is not indebted by virtue of Exhibit 5 has not been controverted by the Appellants.

On paragraph 10(a) of the Amended Statement of Claim, learned Counsel urged the Court to condemn and reject the Appellant’s general traverse which they claimed to be a rebuttal to the Respondent’s case.

That the Appellants admitted the Respondent’s pleading and evidence that he is not indebted to the 1st Appellant and that by paragraph 3 of the amended statement of defence the Appellants state thus:

“The Defendants deny paragraphs 7 – 14 of the Statement of Claim and put the Plaintiff to strictest proof thereof.”

That a general traverse cannot apply in the face of paragraph 10(a)(i and ii). He urged us to hold that the Respondent has proved on the balance of probability that he is not personally indebted to the 1st Appellant and as such the appellants are not entitled to auction his building,

As regards the deed of rectification, Exhibit 6 dated 4/1/79; Exhibit 7, Guarantee dated 8/8/79 and Account Nos. 31622902006 (Exh. 12) and 3162290192 (Exh. 13) Learned Counsel urged the Court to hold that the Respondent never operated account Nos. 31622902006 and 3162290192 which he later allegedly transferred to Rinso Ranch Nig. Ltd. That the Respondent having denied operating those accounts the burden shifted to the Appellants to prove that he maintained those accounts and later transferred them to Rinso Ranch Nig. Ltd.

That the Appellants failed to do so. That the Appellants did not tender any document to show that the Respondent operated those accounts before transferring them to Rinso Ranch Nig. Ltd.

He further submitted that Exhibits 6 and 7 are in respect of the personal accounts of the Respondent only and that Exhibit 6 and 7 were later abandoned for non-realisation of their purpose.

That Exhibit 3 – Mortgage Deed dated 23/9/77 is headed “LEGAL MORTGAGE TO SECURE MORTGAGOR’S OWN ACCOUNT’ and that as at that date the only personal account of the Respondent is No. 3161255768. Learned Counsel then concluded that when the Respondent signed the Deed of Rectification, Exhibi 16, it was his personal account No. 3161255786 which was meant to be used for the account of Rinso Ranch Nig. Ltd and that since the Respondent is not owing on that account as well as Rinso Ranch Nig. Ltd., the Respondent’s property cannot be auctioned.

That Exhibit 3 was cancelled by being submerged in Exhibit 4. That Rinso Ranch Nig. Ltd. is not mentioned in Exhibit 4. That since Exhibits 6 and 7 hang on Exhibit 3 which was abandoned or cancelled the appellants are not entitled to auction Respondent’s building by virtue of Exhibits 3, 6 and 7.

That the decision of the Lower Court is not based on extrinsic evidence as submitted by his learned friend. He then urged us to dismiss issue No. 1.

I have carefully gone through the record of Proceedings and Judgment of the Lower Court and submissions of Learned Counsel for both parties to this appeal contained in their Briefs of Arguments, and must confess that this is a very interesting case.

It is my considered view that a resolution of issue No. 1 is dependent on the resolution of the issue as to whether or not the Respondent operated account No. 32 61255768 only as contended by the Respondent and found by the Learned Chief Judge or operated in addition account Nos. 3162290192 and 3162290206 as contended by the appellants. If the Respondent operated account No. 3161255768 only then exhibits 6 and 7 can be said to relate only to that account as canvassed by the respondent and accepted by the learned trial Chief Judge. It will also follow that since account No. 3161255768 as evidenced in exhibit 5 is not in debt the 1st appellant’s power of sale under the mortgage between the parties cannot be invoked at this stage – See Clause 6 of Exhibits 3 and 4 – Deed of Mortgage.

To resolve issue No. 1 it is necessary to take a close look at the evidence before the Court.

Both parties are agreed that the Respondent operated account No. 3161255768 Exhibit 5 and that he obtained certain credit facilities as a result of which he executed exhibit 3 and 4 – Deed of mortgage. However, while the appellants contend that the Respondent apart from account No. 3161255768 also operated personal account No. 3162290206 and 3162290192 under which he had enjoyed banking facilities from the Appellant. That the Respondent later transferred these accounts to Rinso Ranch Nig. Ltd. through a deed of rectification dated 4/1/79 See exh. 6. The Appellants also stated that the Respondent and Rinso Ranch Nig. Ltd., at various times, obtained overdraft and loan facilities to the benefit of the Company and that the Respondent personally guaranteed the banking Facilities obtained by the Company as evidence in exh. 7. On the other hand the Respondent denied all the allegations maintaining that he operates only one personal account with the 1st Appellant as stated earlier in this judgment.

On its part the learned Chief Judge had these to say at pages 90- 93 of the record, inter alia:

” …. I believe the plaintiff on the first issue that he was not personally indebted to the 1st Defendant. The Plaintiff’s account is confirmed to some extent by averments contained in his Amended Statement of Claim the reply and the evidence adduced in support thereof.

As rightly submitted by the cumulative effect of both paragraph 10(a) of the Plaintiff’s Statement of Claim clause 6 of the mortgage Deed of Exhibit 3 and the clause 6 of the mortgage deed exhibit 4 is that the power of sale shall only be exercised if and only if the Plaintiff is indebted to the 1st Defendant and such debt is not settled a month after notice to settle such debt is given.

The Plaintiffs averment in paragraph 10(a) of the Statement of Claim is very germane to the resolution of the issue now under consideration ….

This germane averment … has not been denied in the Defendant’s Statement of Defence and Counter Claim …. The general traverse of the defendants does not safe (sic) such a situation …. In the light of the foregoing I have no hesitation in coming to the conclusion that the Plaintiff is not personally indebted to the 1st Defendant.

The next matter for consideration in respect of the first issue is whether the 1st defendant is entitled to auction the building of the Plaintiff by virtue of the mortgage deeds exhibits 3 and 4…. I am of the clear view that clause 6 in such exhibit 3 and Exhibit 4 is clear and unambiguous, consequently therefore having found that the plaintiff is not personally indebted to the 1st Defendant, I have no hesitation in coming to the conclusion that the defendants have no justification to auction the plaintiff’s property.”

However, a very close look at Exhibit 5 – account No. 3161255768 – reveals that it is not the personal account of the Respondent as contended by him and found by the Learned Trial Judge in his judgment under consideration. The stubborn fact in exhibit 5 is that it is a joint account of Mr. J.J.A. & Mrs. M.T. Akinrinmade, Koko 1 Cattle Ranch c/o No.3, Offa Road, Ilorin, Kwara State.

This being the case the foundation on which the resolution of the issue before the trial court was based is faulty. In other words that finding is not supported by evidence and in law we say that it is perverse.

I am not unmindful of the position of the law on attitude of an Appellate Court to findings of fact by the trial Court. I agree with the law that an appellate court should not interfere with the findings of fact by a trial court once the findings are based on the evidence upon the pleading of the parties. The appellate court can however interfere where the trial court failed to inter alia make findings or arrived at inconsistent findings on a crucial issue raised by the parties – the recent Supreme Court decision in the case of Uzoechi v. Onyenwe (1999) 1 NWLR (Pt. 587) 339; Jov. V. Dom (1999) 9 NWLR (Pt. 620) 538; Menaghor v. Bazuaye (1999) 9 NWLR (Pt. 620) 552.

In the present case it is clear from Exhibit 5 that the findings of fact by the trial judge are inconsistent with the said exhibit 5. It is trite law that exhibit 5 speaks for itself. That apart, the fact that exhibit 5 is a joint account gives credence to the averment by the 1st appellant that the respondent operated two personal accounts Nos. 316229012 and 3162290206 and that the Deed of Rectification exhibit 6 relates to these accounts. This is consistent with the fact that exhibits 12 and 13 are in the name of Rinso Ranch Ltd. It is my considered view that exhibit 6 relates to exhibits 12 and 13 as contended by the appellants since it has been established that it does not relate to exhibit 5 as found by the trial judge.

It follows also the heading “Legal Mortgage To Secure Mortgagor’s Own Account” as as contained in exhibits 3 and 4 did not relate to Exhibit 5 as the learned counsel for the respondent would want us believe and hold particularly since exhibit 5 is not the “Mortgagor’s own personal account”. It is therefore wrong to regard Exhibit 5 as being the personal account of the Respondent involved in the transaction between the parties as held by the learned trial Chief judge. If follows therefore that the Deed of Rectification Exhibit 6, does not relate to exhibit 5 as the Respondent would want us hold or as found by the learned trial Chief Judge in view of the fact of this case.

The fact that exhibit 5 cannot be the personal account of the respondent involved in this action is reinforced by the fact that exhibit 5 does not only say that it is not. It is equally not in the name of Rinso v. Ranch Nig. Ltd., following exhibit 6. This would have been the case if exhibit 6 relates to exhibit 5.

However the ready explanation of the respondent seemed to be that since exhibit 6 was based on a condition that never happened that is why exhibit 6 is still in the name of the original owners. The argument is not tenable having regards to the facts of the case as proved by documentary evidence. It has been found as a fact that exhibit 5 cannot be the personal account talked about in exhibit 6. That apart, the contents of exhibits 6 and 7 do not admit of the inference that there are based on a future event which never materialised as contended by the respondent and accepted by the trial court. As pointed out in this judgment the error of the learned trial Chief Judge arises from the assumption that exhibit 5 is the personal account of the respondent. It is trite that a document speaks for itself. An examination of exhibits 6 and 7 does not reveal that they are contigent on any happening of a future event. The Supreme Court has held in Layade v. Panalpina (1996) 6 NWLR (Pt. 456) 544 at 558; (1996) 7 SCNJ 1 at 14-15 per Adio. J.S.C., as follows and I quote;

”The general rule is that where parties have embodied the terms of their agreement or contract in a written document, as it was done in this case, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument.. .. So, where the parties enter into a contract, they are bound by the terms of that contract and it is unfair to read into such a contract the terms on which there was no agreement. See Abdullahi Baba v. Nigerian Civil Aviation Centre, Zaria & Anor. (1991) 15 NWLR (Pt. 192) 388″.

See also the Supreme Court decisions in Olaoye v. Balogun (1990) 5 NWLR (Pt. 148) 24 and Union Bank of Nig. Plc. v. Ozigi (1994) 3 NWLR (Pt. 333) 385.

At page 93 of the Record of Proceedings the learned Trial Chief Judge held as follows and I quote:

“Exhibit 6 seems to me to be conditional on the happening of a future event. Since that event did not take place Exhibit 6 becomes vacated and aborted. It is now too late in the day for the 1st Defendant to fall back on it…..

With regard to the issue of guarantee, exhibit 7 was dated 8/8/78. The question that must be asked and answered is this – When was the load being guaranteed by the plaintiff given to Rinso Ranch Ltd. The evidence before me and which I accept is that neither the 1st Defendant nor the plaintiff acted on Exhibit 7″.

It is on record that the respondent admitted executing exhibits 6 and 7 though he states that exhibits 6 and 7 are not binding on him in that it was made on condition that agricultural loan would be granted to Rinso Ranch Ltd. However, the exhibits under consideration do not say so neither can those facts be inferred. From the authority of Layade v. Panalpina supra and section 132 of the Evidence Act a court of law is not permitted to rely on extrinsic evidence in coming to a conclusion as the learned trial Judge did in the case under consideration. It is trite that no content of any documentary evidence can be contradicted, altered, added to or varied by oral evidence – also the Supreme Court case of Union Bank Plc. v. Ozigi (1994) 3 NWLR (Pt. 333) 385.

Turning now to the sub-issue as to whether or not the appellants specifically denied the averments in paragraph 10(a) of the statement of claim; the learned trial Chief judge has held that the said averments needed no further proof as they were denied admitted since the appellants allegedly did not specifically deny them.

paragraph 10(a) of the Statement of Claim avers that:

’10. The plaintiff will contend at the trial that the defendants cannot auction the said plaintiff’s building by virtue of the purported mortgage deeds dated 23/9/77 and 23/8/82 respectively or by any other means howsoever.

Particulars

(a) The Plaintiff is not owing the 1st defendant in respect of which the 1st defendant can exercise right of sale under any mortgage deed.”

In paragraph 3 of the Amended Statement of defence and counter claim the appellants pleaded as follows:

“3. The defendants deny paragraphs 7-14 of the statement of claim and put the plaintiff to the strictest proof thereof.”

However, when you look at other paragraphs of the Amended Statement of defence and counter claim it becomes very clear that the said paragraph 10(a) of statement of Claim has been sufficiently denied.

In paragraph 2 of the said Amended Statement of Defence and Counter-Claim the defendants pleaded thus:

“2. Further to paragraphs 4 and 5 of the Statement of Claim the first defendant avers as follows:

(a) The Plaintiff was initially maintaining two accounts with Nos. 3162290192 and 3162290206 with first defendant in his personal name and has been enjoying overdraft and loan facilities from the first defendant since sometime in 1977 on these accounts. The plaintiff pledged his properties in issue to secure the said facilities granted him by the first defendant on the aforementioned accounts. The deed of mortgage dated 23/9/77 is pleaded.

(b) That the plaintiff later incorporated Rinso Ranch Nigeria Limited (hereinafter called the Company) and the said accounts Nos. 3162290 192 and 3162290206 were transferred to the Company. A deed of Rectification was executed by the plaintiff to this effect. The deed of Rectification dated 4/2/79 is pleaded.

(c) That the overdraft and loan facilities were increased and/or reviewed at various times by the 1st defendant at the request of the plaintiff and/or the company (as the case may be) and the plaintiff and the company took benefit of the facilities so granted.

(d) The first defendant pleads the deed of mortgage (over the same properties)dated 25/8/82 executed by the plaintiff in favour of the first defendant when the facilities was increased to N50.000.00 first defendant’s letter of September, 1983 to the Company increasing the overdraft and loan facilities to a total of N330,000.00 ….

…

(e) …

(f) The Plaintiff also personally guaranteed the debt of the company to the first defendant. The said guarantee is pleaded …

(4) In reply to paragraph 7 and 8 of the Statement of Claim the first defendant avers that the comprehensive statement of account of the company reflects the indebtedness of the company to the first defendant to the tune of N856,378.35 … as at 11/11/91 inclusive of interest rates and which debt the plaintiffs guaranteed, and pledge his property in issue to secure …

(5) In reply to paragraph 9 of the Statement of Claim the defendants deny that the liability of the plaintiff to the first defendant is discharged, since the company is still indebted to the first defendant as stated in paragraph 4 above.

(6) The defendants aver that the deeds of mortgage executed by the plaintiff in favour of the first defendant are valid and subsisting.

(7) The defendants further aver that several notices of demand and notice of intention to auction the mortgage property were sent to the company as debtor and the plaintiff as mortgagor and guarantor of the debt but the company and the plaintiff have refused to settle the indebtedness of the company to the first defendant. First defendant’s letters to the plaintiff and/or the company are pleaded.

(8) The defendants aver that the first defendant can take steps to realize the mortgage property since the company as debtor and the plaintiff as mortgagor and guarantor have defaulted in liquidating the company’s said debt to the first defendant….”

It is important to note that the first defendant went on to counter claim against the plaintiff on the transaction giving rise to the action.

In the opening paragraph of the Amended Statement of Defence and Counter-Claim, the defendant stated that:

“SAVE AND EXCEPT where the defendants expressly admit an allegation of fact in the statement of claim the defendants deny each and every allegation of fact contained in the Statement of Claim as if same were fully set out and separately denied.”

I agree with counsel for appellants that all the above paragraphs of the Amended Statement of Defence and Counter Claim pointedly aver that the Respondent is owing the 1st appellant either as a customer, mortgagor and guarantor of the debt of Rinso Ranch Ltd.

It is still the law that where a defendant fails to deny specifically an allegation of fact in the Statement of Claim and a denial cannot be reasonably inferred from the defendant’s pleadings that fact will be taken as admitted and therefore regarded as established at the hearing without further proof. This is the basis of the learned trial judge’s holding in this case under the issue now being considered – see Samson Ajibade v. Mayowa (1978) 9 & 10 S. C. 1 and Odume v. Nnachi (1964) 1 All NLR 329. However that is not the case in the present appeal. Here the defendant’s pleading clearly deny the plaintiff’s case, particularly paragraph 10(a) of the Statement of Claim.

In the case of Anah v. Nnacho (1965) NMLR 28 at 31 the Supreme Court in considering a general traverse stated thus:

“Now it seems clear that the cumulative effect of these two paragraphs is that the appellants joined issue with respondents in respect of all the lands described in the pink area of Exhibit 2. By common practice a general traverse in the form of paragraph 15 of the statement of defence has always been accepted and when employed it puts the opponent to proof of the facts stated or alleged.”

It is now trite that it is the duty of the plaintiff in a civil case to prove his case on the balance of probabilities – see Daodu v. N.N.P.C (1998) 1 SCNJ 95 at 106, (1998) 2 NWLR (Pt. 538) 355

The burden of proof rests squarely on the plaintiff who asserts – Sections 136 and 137 of the Evidence Act, 1990. It is my view that the plaintiff has not discharged that duty in the case under consideration. His case lacks cogency.

It is therefore my view that issue No. 1 be answered in the negative, the Respondent having failed to prove his case on the balance of probabilities as required by law.

The second issue is whether the 1st appellant was entitled to exercise its right to auction the mortgaged property as per exhibits 3 and 4.

Learned counsel for the appellants while arguing this issue submitted that it is agreed by all parties that Rinso Ranch Ltd. is indebted to the 1st appellant. That this fact is pleaded by the appellants but not denied by the Respondent. That the Respondent agreed under cross examination that Rinso Ranch Ltd. is indebted to the 1st appellant and that the debt has not been paid. He also agreed that he is the Managing Director of Rinso Ranch Ltd. That this admission in conjunction with exhibits 6, 7, 9, 12 and 13 sufficiently show the existence of such indebtedness. That exhibits 10 and 11 are letters of demand served on the Respondent and his company in their capacities as debtor and Mortgagor and guarantor respectively. That under the terms of Exhibits 3 & 4 the 1st appellant is empowered to sell the mortgaged property where there is wilful delimit to settle the debt. That it was the duty of the Respondent as guarantor to save the situation but he failed resulting in the mortgaged property being open for auction.

That the 1st appellant as an unpaid mortgagee was justified in advertising the mortgaged property covered by exhibits 2 for sale through exhibits 1 and 1A. That the particulars of the alleged contravention of section 27 of the Land Use Act and the basis upon which the notice to auction the Respondent’s said property should be declared null and void are not pleaded. That the court should discountenance such allegations in the absence of the required particulars and evidence in proof of same. He urged the court to invoke the principles stated by the Supreme Court in the case of Chief B. Ugochukwu v. CCB. Nig. Ltd. (1996) 6 NWLR (Pt. 456) 524 (1996) 4 NCLC 661 at 683 that it is rather fraudulent and unconscionable for a Mortgagor to turn round a few years after executing the Mortgage Deed (and when as a result of his default the Mortgagee sought to exercise its right under the Mortgage Deed) to assert that the Mortgage Deed is null and void for non-compliance with the Land Use Act and to dismiss the respondent’s claim and allow the appeal.

In his reply learned counsel for the respondent submitted that the 1st appellant is not entitled to exercise any right to auction respondent’s mortgaged properties under exhibits 3 and 4.

That the success of this issue depends on whether or not the respondent transferred his personal account No. 3161255768 to Rinso Ranch Ltd. and whether exhibits 6 and 7 have not been abandoned by the parties.

That the property advertised for sale was mortgaged on the respondent’s account No. 3151255768 which is not indebted.

That even if rectification (Exhibit 6) and Guarantee (Exhibit 7) are proved the 1st appellant can still not auction respondent’s property because

(i) No debt is proved against Rinso Ranch Ltd.

(ii) Respondent as Managing Director alleged breach of agreement which was not denied.

(iii) No demand for repayment proved to be served on Rinso Ranch Ltd.

That exhibit 9 is not evidence of receipt of loan. The figures in exhibit 9 contradict the figures in exhibits 11 and 12; that is the statement of account.

Learned counsel agreed that the respondent testified that Rinso Ranch Ltd was owing 1st appellant and that the lower court did say so. He however submitted that the 1st appellant failed to place before the court the agreement between 1st appellant and Rinso Ranch Ltd. as to mode of recovery of loan when there is default in repayment.

That it is on record that 1st appellant has not proved that they made any demand on Rinso Ranch Ltd. so they cannot succeed referring to Ishola v. SGB (1997) 2 SCNJ 1 at 5. (1997)Â Â NWLR (Pt. 488) 405.

Learned counsel then submitted that the case of Ugochukwu v. A.CB. (Nig.) Ltd. supra is not applicable to this case and should be considered overruled. That in Onamade v. A.C.B. Ltd. (1997) 1 SCNJ 65at 68.(1997) 1 NWLR (Pt. 480) 123 the Justices unanimously held that sections 22 and 26 of the Land Use Act must be complied with. He then urged us to dismiss issue No. 2.

It has already been resolved, during the consideration of issue No. 1 that account No. 3161255768 is not the personal account of the respondent but a joint account with his dear wife.

Now, recital No.2 to the Deed of Rectification, Exhibit 6 states as follows; Italics mine for emphasis:-

“2) Mr. James Jinadu Akintola Akinrimade referred to in the compromise as mortgagor was keeping account with the bank in his own name for the purpose of his business and whereas the business has been changed to a limited liability company namely: Rinse Ranch Nigeria Ltd. and registered under the Companies Decree 1968.”

Again, the third recital states as follows:-

“3) The accounts name is now changed”.

From the totality of the above, it is clear and I hereby hold that recital Nos 2 and 3 cannot be referring to exhibit 5 – account No. 31612255768 because:

(i) It is not the personal account of the respondent spoken of.

(ii) Exhibit 5 is a joint account from the face of which it is clear it is not used for the personal business of the respondent as stated in Exhibit. 6.

(iii) Exhibit 5 deals mainly with salary.

(iv) Most importantly Exhibit 5 is not in the name of Rinso Ranch Ltd. since the name of the personal account referred to in exhibit 6 has been changed.

It is still in the name of the joint owners and operators whereas exhibits 12 and 13 are in the names of Rinso Ranch Ltd. It is therefore very clear that exhibit 5 is not the personal account talked about in exhibit 6. It is my considered view that exhibits 12 and 13 are more likely to be the truth and I so hold.

From the totality of the evidence on record, it is clear that the parties have not abandoned exhibits 6 and 7 since it has not been shown that the liabilities created therein have been duly discharged by the respondent. Rather there is the evidence which the trial court accepts that Rinso Ranch Ltd. is still indebted to the 1st appellant arising from the transactions between the parties.

Exhibits 9, 10 and 11 confirm that Rinso Ranch Ltd. is indebted to 1st appellant and that demands were made both on that company and Respondent as guarantor:-

It must be remembered that the respondent does not dispute executing exhibits 6 and 7. These exhibits are therefore binding on him and having admitted that the company in which he is the Managing Director and on whose behalf he executed exhibits 6 and 7 is still indebted to 1st appellant it is my considered view that the 1st appellant can and has the legal authority to exercise the power of sale contained in exhibits 3 and 4 following the default of the respondent to discharge his obligations to the 1st appellant.

There is the sub-issue as to whether or not the Mortgage Deeds are contrary to section 22 of the Land Use Act and thereby null and void. This matter was pleaded in paragraph II of the statement of claim – see page 3 of the record of proceedings. In paragraph 6 of the Amended Statement of Defence and Counter Claim the 1st appellant pleaded thus:

“The defendants aver that the deeds of mortgage executed by the plaintiff in favour of the first defendant are valid and subsisting.”

In his testimony before the trial court the respondent said nothing about the validity of the deed of mortgage.

In his judgment the learned trial Chief Judge stated thus:

“As alternative submission, Chief Odeyemi relying on the case of Savannah Bank (Nigeria) Ltd. v. A. O. Ajilo (1989) 1 NWLR (Pt. 97) 305 at 310 seeks to take umbrage under sections 22 and 26 of the Land Use Act. In view of the decision I reached in this matter, there is no need for any academic peregrination to over flog the issue. Suffice it to say that it seems to me morally despicable for a person who has benefited from agreement to turn round and say that the agreement is null and void………”

That being the position taken by the learned Chief Judge I find it difficult to see the basis of the complaint of learned counsel for the appellant in this sub-issue. In fact he has agreed with the learned Chief Judge so what is his complaint? I don’t see any. It therefore does not matter whether the respondent gave particulars of alleged contravention of section 22 or not. In any event learned counsel for the appellants has not referred us to any legal authority for his proposition that such particulars must be given after specifically pleading the section of the Act alleged to have been infringed.

Having regards to the matters considered under issue No.2 it is my considered view that the issue be resolved in the positive which is accordingly done.

On issue No.3 to wit:

Whether the Honourable Chief Judge was not wrong in dismissing the counter claim of the 1st appellant even after finding as a fact that Rinso Ranch Ltd., is indebted to the 1st appellant. Learned counsel for the appellants referred to the Amended Statement of Defence and Counter Claim and submitted that the Counter Claim is predicated on the failure of Rinso Ranch Ltd to pay back the banking facilities granted to Rinso Ranch Ltd., and guaranteed by the Respondent and which as at 1/11/91 stood at a sum of N856,378.35.

That exhibits 6 and 7 are not ambiguous and should be given their natural and ordinary interpretations.

He then stated the facts as being that the respondent operated two personal accounts with the 1st appellant with numbers 3162290192 as well as 3162290206 since 1977. That the respondent got loan facilities from the 1st appellant in 1977 which were secured with the execution of two Deeds of legal mortgage over plaintiffs property situated at Offa Road, G.R.A. Ilorin. That by exhibit 6 the respondent transferred the aforesaid two accounts and liabilities thereon to Rinso Ranch Ltd. incorporated by the respondent and of which he is the Managing Director. That consequent upon exhibit 6 the respondent also executed a personal guarantee, Exhibit 7 in favour of the 1st appellant in respect of the debt of Rinso Ranch Ltd. That both the Respondent and Rinso Ranch Ltd have defaulted in liquidating the debt to the 1st appellant as shown in the state of Rinso Ranch Ltd accounts in Exhibits 12 and 13. That the respondent agrees that Rinso Ranoo Ltd. is indebted to the 1st appellant and that it is yet to repay the loan. Also that the lower court also held that Rinso Ranch is indebted to the 1st appellant.

Learned counsel then submitted that the evidence of DW1 and DW2 are unchallenged and that all exhibits tendered by the appellants have not been discredited.

That exhibits 6 and 7 could not have been made in contemplation of future event which never came to pass. Learned counsel then submitted that having found as a fact that Rinso Ranch Ltd. is indebted to the 1st appellant, it would not be fair, just and equitable to dismiss the Counter-claim of the 1st appellant particularly as the guarantor of the loan is a party before the court.

Learned counsel then urged the court to allow the appeal and grant the Counter claim.

In his reaction learned counsel for the respondent submitted that the appellants did not prove specific sum of money against the Respondent. That since the Respondent denied ever opening account Nos. 3162290206 and 3162290192, let alone transferring it to Rinso Ranch Ltd., the 1st appellant has the burden to prove that Rinso Ranch Ltd. opened an account with her in respect of which the company’ is owing. That the 1st appellant has failed to prove this.

That the respondent’s statement on page 90 of the record that Rinso Ranch Ltd. is owing in connection with contractual arrangement different from the present cause of action. That this aspect is yet to come to court for adjudication. That the court was right in dismissing the Counter Claim because it was not proved.

That Rinso Ranch Ltd. is not a party before the court. That the court should affirm the dismissal of the Counter Claim.

I agree with the appellants that the learned trial judge held that Rinso Ranch Ltd. is indebted to the 1st appellant. At page 89 of the record the learned trial judge held thus:

“From the evidence adduced before me and which evidence I accept, I have no hesitation in finding as a fact that Rinso Ranch Ltd. is at all material times indebted to the 1st Defendant/Counter Claimant.”

Again at page 93 he held as follows:

“As regards the second issue of whether vel non the plaintiff is answerable to the 1st Defendant on account of Rinso Ranch Ltd’s indebtedness I have no iota of doubt in my mind from the tenor of evidence that Rinso Ranch (Nig.) Ltd is indebted to the 1st Defendant. It is also not in dispute that the plaintiff is the Managing Director of Rinso Ranch Nig. Ltd., a company incorporated by him.”

Since it has been established beyond doubt as found by the trial court that Rinso Ranch Nig. Ltd. or Rinso Ranch Ltd. is indebted to the 1st appellant and since by virtue of exhibits 6 and 7 the respondent transferred his personal account to the said Rinso Ranch Ltd and guaranteed its liability to the 1st appellant arising from that account – see Exhibit 7 and since by exhibits 12 and 13 Rinso Ranch Ltd is indebted to the 1st appellant on account of the transferred account so guaranteed and in view of the fact that the 1st appellant has demanded repayment which the respondent and Rinso Ranch Ltd have failed to effect, the respondent is liable on the counter claim of the 1st appellant as he undertook in Exhibit 7.

In conclusion, this appeal is allowed. The judgment of the learned trial Chief Judge delivered in suit No. KWS/217/91 on 317/97 entering judgment to the respondent and dismissing the Counter-claim of the 1st appellant is hereby set aside.

In its place there shall be judgment for the 1st appellant in the following terms:

(a) The Respondent as Mortgagor and guarantor of the debt of Rinso Ranch Ltd. to the 1st appellant standing as at 1/11/91 at N856.378.35 is hereby adjudged liable to pay same to the 1st appellant together with 6% interest thereon per annum from 3rd July, 1997 being the date of judgment of the lower court until the judgment debt is fully paid up.

(b) It is hereby declared that the 1st appellant is entitled to exercise her rights under the deeds of mortgage and rectification executed by the plaintiff in her favour since the company and Respondent have defaulted to settle the company’s debt to the 1st appellant.

(c) There shall be cost in favour of the 1st appellant at N5,000.00 against the Respondent.

Appeal allowed.

---

Other Citations: (1999)LCN/0503(CA)

Apostle Jeremiah Totor V. Philip Aweh & Anor (1999)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A.

The appellant as plaintiff in Suit No. W/82/92 claimed against the respondents as defendants the following relief as per paragraph 15 of his amended statement of claim:-

“The Plaintiff claims against the Defendants jointly and severally the sum of N1,000,000.00 for damages suffered when the defendants, on or about the 12th January, 1992 falsely and maliciously caused the arrest and a false imprisonment by the Nigeria Police of the Plaintiff at Arigbegha town within the jurisdiction of this Honorable Court on the false and malicious charge that the plaintiff with other persons signed for and claimed N2.8 Million belonging to Opuama Community. The State Intelligence and Investigation Bureau thoroughly investigated the information while the plaintiffs with other persons were locked up in the police cell for eight days, and found the information totally false and untrue.”

Pleadings were ordered, filed and exchanged. Thereafter, both parties amended their pleadings. The case then proceeded to trial. After reviewing the evidence adduced by both parties, the learned trial Judge, in a reserved judgment dismissed the plaintiff’s claim in its entirety. The plaintiff was dissatisfied with the decision of the court below and consequently appealed to this court on three grounds of appeal. The grounds of appeal with their particulars read:-

“(i) Error in Law

The learned trial Judge erred in law and consequently arrived at a wrong decision when he held that:

‘The failure of plaintiff to put in evidence the original or copy of the Report itself greatly weakens plaintiff’s case.’

Particulars of Error

(a) The writing of the said report or petition to the police by the defendants was not in dispute.

(b) There was evidence that the defendants reported a case of stealing of N2.8 Million belonging to Opuama community against the plaintiff and his community.

(c) Exhibit ‘A’, a letter written by the Police to the Party Manager, Western Geophysical (Ltd.) was as a result of the said report/petition by the defendants to the police.

(d) P.W. 2 – Police Inspector stated that 2nd defendant reported a case of stealing N2.8 Million by means of a petition dated December 3, 1991.

(e) 2nd defendant under cross examination testified that he reported to the police at Asaba that Arigbegba community of which plaintiff is leader had signed Damage Assessment Vouchers meant for Opuama community. He went further to state that they (defendants) reported that plaintiff and five others stole N2.8 Million, and that the report made to the police was a written one.

(ii) The learned trial Judge misdirected himself in law and on the facts and thereby came to a wrong conclusion when he held as follows:

‘Be that as it may, the instant case is not that of false imprisonment’, when the writ of summons and statement of claim clearly showed that the pith and mith of the Appellant’s case was a claim for false imprisonment.

(iii) The learned trial Judge misdirected himself in law and on the facts of the case when he held as follows:

‘From the totality of evidence before me, I find and hold that the defendants honestly believed Arigbegha community claimed and received money which in their honest belief, belonged to Opuama community.

Particulars

(a) 2nd defendant testified that he & two others were sent to the Western Geophysical Limited Operational base where they were shown the operational map/chart where Arigbegha village was separated from Opuama community and identified as having been assessed as such:

(b) There was evidence that the company’s representative told Opuama community that Arigbegha village of the Appellant had signed the Damage Assessment Vouchers in respect of Arigbegha village but not for the entire Opuama community. This piece of information was at the defendants’ disposal before the said report to the police.

(iv) The learned trial Judge erred in law when he held that there is no falsity, malice or wickedness of the defendants’ petition or report to the police.

Particulars

(a) There was evidence that the defendants’ community were told by the company that the plaintiff’s village was paid compensation in respect of their village only.

(b) 2nd P.W. under cross examination testified that the petition alleged that the money stolen belonged to Opuama community in Warri North Local Government Area and from his (2nd P.W.) findings there was no sufficient evidence to warrant the suspects (Appellant) being charged to court”.

The facts of this case are simple and straight forward. The appellant who was the plaintiff in the lower court claims that he hails from Arigbegha community in Warri North Local Government Area of Delta State while the defendants are from Opuama community in the same Local Government Area of Warri. In his amended statement of claim at pages 16- 19 of the records, the plaintiff stated that on or about January 12th, 1992, a police Inspector by name U. Akong from the State Investigation and Intelligence Bureau (S.I.I.B.) Police Headquarters, Asaba in company of a constable came to Arigbegha Community to arrest plaintiff and five others and that it was 1st and 2nd defendants who pointed out plaintiff to the police. Plaintiff was later informed by the police that the defendants had written a petition to the police alleging that the plaintiff and five others had gone to Western Geophysical (Nig.) Limited, a company prospecting for oil and seismic operations to sign and collect the sum of N2.8 Million belonging to Opuama Community. Consequently, plaintiff and five others were taken to Sapele Police Station and detained from 12th – 13th of January, 1992 and later taken to Police Headquarters and detained until January 19th, 1992. After the police’s thorough investigation, the respondents’ report was found to be incorrect, thereafter appellant and others were released from police detention. Consequently, the appellant commenced this action claiming N1,000,000.00 for damages suffered.

Both parties filed their respective briefs of argument. Based on the grounds of appeal filed, the appellant formulated the following issues for determination in this appeal:”

1. Was the learned trial Judge right in holding that the failure of plaintiff to put in evidence the original or certified copy of the report to the police greatly weakens plaintiff’s case when same had been expressly admitted by the defendants both in their pleadings and evidence in court?
2. Was the learned trial Judge right in holding that the plaintiff’s case is not that of false imprisonment when it was shown that the pith and mith of plaintiff’s case was a claim for false imprisonment caused by the false and malicious report by the defendants?
3. Whether on the totality of the evidence led, the learned trial Judge was right in holding that there is no falsity, malice or wickedness in the defendants’ petition/report to the police?”

For their part, the respondents raised three issues for determination. They read as follows:-

“1. Whether the lower court was right in holding that failure of the appellant to tender the original petition to the police weakens the appellant’s case.

2. Whether the court was right in holding that there is no absence of reasonable and probable cause for the allegation made to the police by the respondents having regard to the plethora of evidence to that effect from the record of proceedings.
3. Whether merely pointing to the police as the suspect amounts to setting the law in motion”.

On issue No.1 it was submitted for the appellant that there was abundant evidence that the respondents reported a case of stealing of N2.8 Million belonging to Opuama Community against the plaintiff. It was also submitted for the appellant that P.W. 2 a Police Inspector attached to the State Investigation Intelligence Bureau, Police State Headquarters Asaba, gave evidence to the fact that the 1st defendant reported a case of stealing N2.8 Million against the plaintiff through a petition dated 7/10/91 and P.W. 2 was detailed to effect the arrest of the plaintiff and five others.

It was contended that the report/petition that N2.8 Million was stolen by the plaintiff was not in dispute. It was argued therefore that the holding of the learned trial Judge that the failure to put in evidence the report greatly weakened the plaintiff’s case led to his arrival at a wrong decision.

Issue No.1 in the respondent’s brief is one and the same thing with issue No.1 in the appellant’s brief. It was submitted for the respondents that in a claim for false and malicious report, it is fundamental that the nature of the report itself must be established and unless there was proof of the report, a court of law could not speculate on the nature.

It seems to me that the main issue in this appeal is whether a mere report of stealing made by means of a petition against the appellant and others and which report was based on reasonable and probable cause as borne by the records, and for which appellant and others were interrogated by police officers constituted false imprisonment.

It seems to me also that Exhibits ‘A’ and ‘B’ are very germane and crucial to this case. As borne by the records, I am amazed that Exhibit ‘A’ was commonly referred to as the Report made by the respondents against the appellant. This to my mind is a misconception. Exhibit ‘A’ is, in fact, a letter written by the police to the Party Manager of Western’ Geophysical Ltd. It is dated 22nd January, 1992. For ease of reference I reproduce hereunder the said letter:

“The Asst. Commissioner of Police

State Invest. & Intelligence Bureau

Asaba.

Delta State.

22nd January, 1992.

AR.3000/x/DTS/Vol.1/173

The Party Manager,

Western Geophysical (Ltd.).

Seismic Party 396,

Warri – North L.G.A.,

Warri,

Delta State.

Investigation Activities

Inspr. U. Akong and Team

Re – Case of Alleged Stealing

N2.8M Compensation Meant for

Damaged Crops within the Opuama Community

This Bureau is investigating a case of stealing N2.8m reported by Chief Philip E. Aweh ‘M’ on behalf of the Opuama Community in Warri North Local Government Area against one Esi Pita Totor and five others of Arigbegha Community within the same Local Government Area.

The above named officers are in your office on investigation and it will be highly appreciated if you could furnish them with facts, figures, documents or other assistance they may require in the course of investigation.

Your co-operation is highly solicited. please.

(Signed)

(Amos Lawore) ACP.,

Asst. Commissioner of Police,

S.I.I.B.,

ASABA.”

It is doubtless clear from the above letter that Exhibit ‘N is not the actual Report made by the respondents to the police. It is strange that the appellant did not tender the original or certified copy of the said Report through the police witness who testified at the lower court in this case.

Exhibit ‘B’ is the reply to Exhibit ‘A’ by Western Geophysical Limited. It is dated 23/1/92, and signed by Madu Esinaulo, Party Manager who is P.W. 1 in this case. Again for ease of reference I reproduce the said letter (Exhibit ‘B’):

“Western Geophysical.

Western Atlas International

23/01/92

The Asst. Commissioner of Police,

State Invest. &. Intelligence Bureau,

Police Headquarters,

Asaba.

Sir,

Ref: Ar: 3000/x/DTS/Vol.1117)

By this letter the company maintains that it does not know of any theft involving Arigbagha Community and Opuama Community all in the Warri North Local Government Area, In the case of disputed claims between the two communities, the company after assessment of damages in the area identified the area as such and awaits the resolution of the matter by the communities. Only after that can payment be made to the rightful owner.

Thanks.

(Sgd.)

Madu/Esinaulo

Party Manager

P-396”.

Western Geophysical Ltd. in Exhibit ‘B’ maintains that it did not know of any theft involving Arigbegha Community and Opuama Community. Exhibit ‘B’ by its content does not expressly state that there is no case of stealing of Opuama Community’s N2.8 million by the appellant. It must be mentioned that the act of indicating to the police a person whom one suspects of having committed an offence, is not itself sufficient to make one liable for false imprisonment, or false arrest should the police decide on their own initiative, to arrest that person. See Gbajor v. Ogunburegui (1961) All NLR. 583.

As borne by the record it was the police who arrested the appellant and released him/her. Again from the totality of the evidence adduced before the trial court as borne by the record the alleged report in the instant case was based on reasonable and probable cause. See Co-operative and Commerce Bank Ltd. v. Godwin Odogwu (1990) 3 NWLR (Pt.140) 646 at 648 (S.C.).

In Oteri v. Okorodudu & Anor. (1970) All NLR (Reprint) 199, it was held that the test must be that of a reasonable person acting without passion. He who asserts must prove. There was no evidence adduced by the appellant at the trial of this case in the lower court that the appellant suffered from torture at the hand of the police. Mere allegation of torture by the police is not just sufficient, it must be proved.

The learned trial Judge was therefore not in error when he said in part of his judgment at page 80 of the record that:-

“In the circumstances and facts of this case, the original or certified copy of the Report would have been a Pandora’s box. It would have been most revealing. It could have enabled the court to ascertain the nature of the complaint or report with particular reference to the alleged offence of stealing of N2.8 Million. The failure of plaintiff to put in evidence the original or certified copy of the Report itself greatly weakens plaintiff’s case”.

It is manifest from the record of proceedings of the lower court that Exhibit ‘A’ was not the report the respondent made to the police. As the original report was not tendered by the appellant or the police it is not possible for one to say with any degree of certainty, the enormity or gravity of the report made by the respondents against the appellant to the police,

The next issue for consideration is issue No. 2 in the appellant’s brief. It is whether or not the learned trial Judge was right in holding that plaintiff’s case is not that of false imprisonment. It was submitted for the appellant that both the evidence adduced at the trial and the statement of claim it was shown clearly that the appellant’s case was a claim for false imprisonment caused by the false and malicious report by the respondents. It was therefore argued that the learned trial Judge erred when at page 81 lines 21 – 22 of the record stated infer alia:

“In the instant case, there was no intervention search warrant. Be that as it may, the instant case is not that of false imprisonment.”

For the respondent it was submitted that the court in its judgment referred to the evidence of P.W.3 when he was recalled. P.W.3 testified that he signed D.A.V. (Damage Assessment Voucher) for the compensation due to Arigbegha Community. Reference was made to page 46 lines 8 – 9 of the records. P.W. 3 was one of the appellant’s witnesses and his evidence is in line with the evidence of D.W.2 and D.W.3. It was contended that whatever amount was collected by the appellant was honestly believed by the respondents to belong to Opuama Community as there was no independent Arigbegha Community land or camp since it is part of Opuama Community. It was submitted that the complaint of Opuama Community was not only reasonable and probable but was in fact true.

I am of the strong view that complaint of the appellant against the statement of the learned trial Judge at page 81 lines 21 – 22 of the record quoted supra is a finding of fact by the learned trial Judge. The finding is supported by the totality of the evidence placed before him and this court cannot therefore interfere. Although in paragraph 15 of the amended statement of claim the appellant claimed for false imprisonment but he did not establish before the trial court by any iota of evidence that by their action the respondents brought about his supposed false imprisonment. From the totality of the evidence before the trial court as borne by the record the learned trial Judge was not in error when he held that:

“In the instant case, there was no intervention search warrant. Be that as it may, the instant case is not that of false imprisonment.

In the case of Mandilas & Karaberis v. Apena (1969) All NLR 382 at 385; which was also a case of false imprisonment; not false arrest and detention as the case in hand. The Supreme Court held in that case that to succeed, plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against the plaintiff.

Assuming that the appellant’s case in this appeal was that of false imprisonment, he was unable to demonstrate by evidence that it was the respondents who were actively instrumental in setting the law in motion against him. That being so, the appellant’s case must fail on proof. See John Lewis & Co. Ltd. v. Times (1952) A.C. 676.

The last issue for my consideration in this appeal is issue No.3. It was submitted for the appellant that the respondents were not justified in making the report they made to the police. It was contended that the facts known to the respondents at the time of making the complaint did not constitute reasonable and probable cause.

For the respondents, it was stated that they consistently maintained in their defence that the money signed for by the appellant in respect of the operation of the company under reference on Arigbegha land or camp belongs to Opuama community. Reference was made to the evidence of D.W.1, D.W.2 and D.W.3. It was submitted that the learned trial Judge in his judgment held that the respondents had a duty to point out the suspect to the police. It was argued that there was no evidence of pressure on the police by the respondents to arrest the appellant. It is the contention of the respondents that the discretion of the police to arrest the appellant cannot be visited on the respondents.

It seems to me that the power possessed by the police to arrest without warrant, whether at common law for suspicion of felony, or under statutes for suspicion of various misdemeanours is subject to the requirement that the police shall before arrest satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. The test to be applied, with the onus of proof on a defendant seeking to justify his conduct, must be that of a reasonable person acting without passion and prejudice. The matter must be looked at objectively, and in the light of the facts known to the defendant at the time, not on subsequent facts that may come to light. See Oteri v. Okorodudu (supra). At page 82 lines 16 to 20 the learned trial Judge had this to say in part of his judgment:-

“Thus, where a person makes a report to the police concerning an alleged offence, honestly believing the same to be true, the act of identifying the suspected person at the instance of the police without more, cannot ground liability on the basis that by that act alone, the defendant set in motion the law against the plaintiff.”

I have no doubt in my mind that the above statement of the learned trial Judge is the correct position in law. The statement cannot therefore be faulted.

At page 83 lines 14 to 25 the learned trial Judge concluded his judgment thus:-

“As regards the detention of plaintiff in police cell at Sapele and Asaba respectively, I find from the totality of evidence before me that the said act was an independent act of the police in the course of their official duty. 1st and 2nd defendants were not responsible for plaintiffs detention. Indeed, 1st defendant did not accompany the police and plaintiff from Arigbegha to Sapele and Asaba respectively. He was not therefore present when plaintiff was detained in police cell. If the defendants’ petition or report lowered plaintiffs image in the eyes of reasonable members of the public including Arigbegha or Opuama Communities, and if it exposed him to public ridicule and odium, as plaintiff claims, it could be a case of libel. This is not the plaintiff’s case here”.

The above findings of fact by the learned trial Judge cannot also be faulted as it is supported by the totality of the evidence adduced before him and this court cannot therefore interfere.

In the light of the foregoing, this appeal must fail and I accordingly dismiss it. The judgment of the lower court in Suit No. W/82/92 is affirmed. The respondents are entitled to costs assessed at N2,000.00.

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Other Citations: (1999)LCN/0502(CA)

Mr Osazee Ojo V. Mrs Jacob Esohe & Ors (1999)

LawGlobal-Hub Lead Judgment Report

TABAI, J.C.A.

In the election into the Edo State House of Assembly, held on the 9th of January 1999, both the petitioner/appellant, Mr. Osazee Ojo, and the 1st respondent, Mrs. Esohe Jacob contested for the seat in the Egor Local Government Constituency. At the close of the election the result announced by the 2nd and 3rd respondents was that while the appellant of the All peoples Party (APP) scored 10,694 votes, the 1st respondent of the Peoples Democratic Party (PDP) scored 10,709 votes. The 1st respondent was therefore declared and returned as the duly elected representative for the Egor Local Government Constituency of Edo State having secured a majority of lawful votes. Exhibit ”A” dated the same 9th January, 1999 was the evidence of such election and return.

On the 22nd January 1999, the petitioner/appellant presented an 8 paragraph petition to the Governorship and Legislative Houses Elections Tribunal. In paragraphs 6 and 7 thereof the appellant asserted that the 1st respondent’s declaration and return was wrong and that the result declared contained arithmetic or mathematical errors. In paragraph 7 in particular, he gave a table containing the scores of each candidate in each of the ten wards that make up the constituency and asserted, in conclusion, that he scored 10,668 votes as against the 1st respondent’s score of 10,668 votes and prayed, therefore, that he be declared and returned as duly elected having won a majority of lawful votes. With reference to the scores in ward 09 it was his assertion that while he scored 1,281 votes the 1st respondent scored 1,521 Votes.

In her reply of 8 paragraphs, the 1st respondent denied any arithmetic or mathematical errors in the results in Exhibit “A” which she asserted, therefore contained the valid and lawful votes of 10,709 for her and 10,694 for the appellant. With respect to ward 09 she asserted that she scored 1,562 votes and not 1,521 alleged in paragraph 7 of the petition. The 2nd and 3rd respondents also filed a five paragraph reply in which they denied the allegations contained in paragraphs 6, 7 and 8 of the petition.

At the trial the petitioner/appellant and one other witness testified in support of the petition. In the course of the proceedings the petitioner sought to tender through the PW1, 18 units results of Ward 09 but the tribunal sustained the 1st respondent’s objection to their admissibility on the ground that they were not pleaded. At the end of the trial the tribunal dismissed the petition.

Against that decision the appellant has now appealed to this court, the grounds of appeal without their particulars being:

(i) Tribunal erred in law in dismissing the petitioner/appellant’s petition when it was clear on the record that the petitioner/appellant scored majority of lawful votes case at the said election; and (ii) The tribunal erred in law in refusing to admitted results in Ward 9 as exhibit.

In his brief of argument the appellant formulated the following two issues for determination.

(a) Whether the petitioner/appellant scored majority of lawful votes cast at the election and ought to be declared elected and/or returned.

(b) Whether the tribunal was right in rejecting the result of Ward 9 of the said constituency.

The 1st respondent formulated only one issue for determination and that is whether or not the appellant’s petition was rightly dismissed by the Election Tribunal.

In his argument, the appellant contended that the only issue is whether the 1st respondent scored 1,521 votes or 1,562 votes in Ward 9 and submitted that since it was the appellant that adduced evidence in support of his assertion which was not rebutted, the figure 1,521 ought to have been accepted by the tribunal. He relied on Nwabuoku v. Ottih (1961) ANLR 57; (1961) 2 SCNLR 232. He also relied on the evidence of the PW1 to the effect that it was the ward’s returning officer, one Mr. Osaigbovo Monday that inflated the results for Ward 9 to favour PDP with extra 41 votes which affected the result in favour of the 1st respondent. He argued that the PW1 corroborated the evidence of the petitioner and submitted that their evidence about the scores of the parties ought to have been accepted. It was the contention of the appellant that the tribunal was wrong to have rejected the results from the units in Ward 9 since the overall results of the said units make up the result for the ward. He submitted that a pleader must plead only material facts and not evidence and that documents in support of a pleaded fact need not be pleaded. In support of this argument he cited Odunsi v. Bamgbala (1995)27 LRCN 187 at 218; (1995) 1 NWLR (Pt.374) 641. It was the contention of the appellant that had the documents been admitted the petitioner/appellant would have scored 1,281 votes and the 1st respondent 1,523 votes in Ward 9 bringing the total scores to 10,688 votes for the appellant and 10,670 for the 1st respondent. He concluded by contending that with the rejection of the documents no substantial justice had been done and re-emphasised the warning by the Supreme Court against the perpetuation of injustice in Samson Awoyala v. Joshua Ogunbiyi (1985) 10 S.C. 35 at 76. he urged that the appeal be allowed.

In the 1st respondent’s brief of argument, it was contended that in view of the averments in paragraph 7(a) of the petition the issue whether or not the petitioner/appellant scored a majority of lawful votes cast at the election and ought therefore to be declared or returned did not arise for the determination of the Election Tribunal because it was not a ground for the petition. According to her whether or not a person was elected by a majority of valid votes cast at the election is a specific ground for election petition under Section 134(1) (c) of Decree No.3 of 1999. According to the 1st respondent the only reference to a majority of lawful votes was contained in the prayer in paragraph 8 of the petition and since it was not specifically pleaded that the appellant had a majority of lawful votes the issue did not arise for the determination of the Election Tribunal and by extension does not arise for determination in this court.

The 1st respondent referred to the evidence of alteration or inflation of results in units 1 and 9 of Ward 9 and contended that since there was no pleading of these facts the evidence in respect thereof goes to no issue and ought to be expunged from the record.

It was the contention of the 1st respondent also that the issue of whether or not the tribunal was right in rejecting the result of Ward 9 of the constituency does not arise for the determination of this court since no Ward 9 result was tendered before the Tribunal and none rejected by the tribunal. She referred to the pleadings in paragraph 7 of the petition as to the scores in Ward 9 and pointed out that instead of tendering the said Ward 9 result, he sought to tender the results of the 18 units that make up the ward. She argued that the facts pleaded therein do not justify the admission of 18 result sheets.

According to the 1st respondent the real issue for determination is whether having regard to the allegations of alteration or inflation of result the petition was rightly dismissed. It was her contention that since the allegations involve the imputation of crime, such allegations must be proved beyond reasonable doubt and relied on Amonahinni v. Onemayin & Others (1991) 1 LRECN 64. The 1st respondent pointed out that the 2nd respondent was the returning officer for the House of Assembly Election for the Egor Local Government Constituency and could not therefore have been involved in ward or polling units results. It was argued therefore that the proper officer who ought to have been joined is the Ward 9 returning officer and that the non-joinder of the said officer is fatal to petition by virtue of the provisions of Paragraph 48 (1) of Schedule 6 of the Decree No.3 of 1999. It was the contention of the 1st respondent that Exhibit “A” does not show any arithmetic or mathematical errors and that there is no other document to contradict the result contained therein. She argued that since the appellant failed to make out his case against any person let alone the 1st respondent, the respondents were not obliged to lead evidence in defence. Election petitions, it was argued, are special proceedings completely divorced and separated from ordinary civil proceedings and relied on Aondokaa v. n. Gyegweh (1989) 1 NEPLR 39. In conclusion it was urged that the decision of the tribunal be affirmed.

This appeal revolves round the all pervading principles of pleadings. There are, in my view, two issues for determination in the appeal. The first is whether in the light of the pleadings the Election Tribunal was right in rejecting the admissibility of the result of the 18 units of Ward 9 in the election for the House of Assembly seat in the Egor Local Government Constituency. The second is if the answer to the first question is in the affirmative, whether the evidence in support of the petition was sufficient to sustain it.

With regard to the first question the relevant pleading is in paragraph 7 of the petition which states:-

“Your petitioner relies on the following grounds:-

(a) That the declaration of the result of Election (House of Assembly Election) contains arithmetic or mathematical errors in the figures ascribed to the petitioner and 1st respondent in the said election are wrong in all material particular.”

Under particulars (i) is produced a table containing the scores of each of the candidates in each of the 10 wards. And under particulars (ii) it is pleaded thus:

‘The petitioner scored 10,688 votes cast at the said election while the 1st respondent actually scored 10,688 votes cast at the said election.”

This pleading, as it stands, merely alleges arithmetic or mathematical errors in the figures contained in the Declaration of Result of Election (House of Assembly Election) which is Exhibit “A” without specifying any unit of units of which ward or wards of the constituency in which the alleged errors occurred, It is common knowledge that a ward of a Constituency is made up of many polling units and in the absence of specific indication in the petition or the particular unit or units of a particular ward or wards in which the alleged arithmetic or mathematical errors occurred, I do not think there is sufficient pleading to justify the admission either of all the units in the 10 wards or the Constituency or all the units of Ward 9.

It was the contention of the appellant that in view of the assertion in paragraph 7 of the 1st respondent’s reply to the effect that her scores for Ward 9 were 1,562 and not 1,521 stated in the petition, the 1st respondent’s scores in ward 9 was in issue and for which therefore the results of the 18 units of Ward 9 were admissible. With respect, apart from the figure 1,521 under PDP in the table in paragraph 7 of the petition, neither the result of ward 9 nor the results of the 18 units that make up the said ward were specifically pleaded. The evidence in support of the petition shows that the mathematical errors complained of were allegedly contained in units 1 and 9 of ward 9 and not in all the 18 units of the said ward. The evidence also shows that the said errors were discovered even before the petition was presented. Therefore, the said results of units 1 and 9 which, according to the petitioner, would make all the difference in the overall result was, no doubt, the most material fact to sustain the petition and under the general rules of pleadings it was only fair to the 1st respondent and even the tribunal that the results of these two units of Ward 9 were specifically pleaded. In the circumstances of this case, without specific pleadings of the results of units 1 and 9 of Ward 9, the petitioner not only failed to clarify with precision the issues or questions in dispute for trial, but also failed to give proper notice to the 1st respondent or the case she was to meet. In Atolagbe v. Shorun; (1985) 1 NWLR (Pt.2) 360 (1985) 4 S.C.(Pt.1) 250 at 265 the Supreme Court per Coker J.S.C. stated of the functions of pleadings thus:-

“The primary function of pleadings is to define and delimit with clarify and precision the real matters in controversial between the parties upon which they can prepare and present their respective cases and upon which the court will be called on to adjudicate between them,”

On the general functions or pleadings see also Civil Procedure in Nigeria by F. Nwadialo pages 249-257 and Bullen & Leake and Jacob’s Precedents of Pleadings 12th Edition pages 7-8.

In the light of the foregoing considerations, it is my view that there were no pleadings sufficient to justify the admission of the results of the 18 units of ward 9. I hold therefore that the tribunal was right in rejecting the documents relating thereto.

I now come to the last question of whether there is sufficient evidence to sustain the petition. At the trial oral evidence was adduced with regard to scores in units 1 and 9 of ward 09 without objection. In its judgment the tribunal relying on the provisions of paragraph 5(1)(d) of Schedule 6 of Stale Government, (Basic Constitutional and Transitional Provisions) Decree No. 3 of 1991 and the Supreme Court decision in Okafor v. Okitiakpe (1973) 2 S.C. 49 expunged that evidence on the ground of lack of or insufficiency of pleadings. I do not fancy any strong reason to disturb that decision of the tribunal. Also at the trial in addition to the evidence of arithmetic or mathematical errors alleged in the petition there was evidence of alteration or inflation of results. The PW1 even testified to the effect that the Wards Returning Officer Mr. Osaigbovo Monday inflated the results for Ward 9 in favour of the PDP. These allegations of electoral offences were equally not pleaded, evidence in that respect ought to have been rejected and is hereby expunged.

Finally the 1st respondent’s election and return is contained in Exhibit “A” tendered through the PW1. He said it was issued in his presence. And the petitioner said that it was prepared in the presence of his agent who also signed the result. Exhibit “A” therefore remains a strong evidence and i do not think that the mere oral evidence that the petitioner scored 10,688 votes as against the 1st respondent’s score of 10,668 or 10,670, without more, is enough to displace it.

In conclusion, I hold that the petition was rightly dismissed by the tribunal. This appeal therefore fails and is accordingly dismissed with costs assessed at N2,000.00 in favour of the 1st respondent.

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Other Citations: (1999)LCN/0501(CA)

Otunba a.o. Soyode & Ors V. Mr. Abel Dada & Ors (1999)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A. 

The present applicants were not parties in the suit at the lower court out of which this interlocutory appeal arose. They have now brought this application asking to be joined as interested parties in the proceedings.

In paragraphs 4 – 12 of the affidavit in support of the application, it was deposed thus:

“4. That following series of meetings and deliberations between the applicants on the one hand and the plaintiffs and the defendant on the other, it became imperative for the applicants to seek to be joined in this matter as the proceedings instituted in the matter some five years ago had so far produced no head or tail and had led nowhere as far as the applicants are concerned who are keen and desperate to be paid what the Federal Military Government had paid as compensation for the acquired land which belonged to them under Yoruba Native Law and Custom.

5. That the 4th to the 10th applicants are the Traditional Rulers and Community Elders of the people owning parcels of land in the acquired site and having interest in the proceeds of the compensation and of the litigation.
6. That they were actually chosen and selected to join in and monitor the proceedings on behalf of others.
7. That the 1st to the 3rd applicants are the professional agents engaged by the applicants to represent them in demanding compensation from the Government in respect of the acquisition.
8. That on the 4th of February, 1998, an application to join was filed by the applicants by way of a motion listed for hearing on the 23rd day of March, 1998 at the Lagos High Court No. 8 sitting in Lagos.
9. That on getting to the court that day, however, we were informed that the case filed had been recalled by the learned Chief Judge of Lagos State presumably, for some administrative action. 10. That we were extremely surprised and absolutely flabbergasted.
10. That however, the matter was eventually relisted before the same court on 19/10/98.
11. That the motion was further adjourned to the 12/11/98, 30/11/98, 7/12/98, 25/2/99 and 4/3/99 when we were informed finally that the matter had to be adjourned sine die on the ground that this Honourable Court had ruled on 18/4/94 that further proceedings pending in the matter in the court below be stayed until the determination of appeal in respect thereof”

The second respondent filed a counter-affidavit. Paragraphs 7, 8, 11 and 12 of the counter-affidavit read thus:-

“7. That none of the present applicants has any land with the acquired land and properties.

8. That we neither appoint the applicants as our agents nor our community leaders to assist us.
9. That there is nothing for them to do as the money had been paid into court since 1993.
10. That depositions in paragraphs 4, 6, 7 of the affidavit in support are not correct.
11. That the applicants have no interest in the land and they did not file any survey plans acclaims with the Ministry of Defence at all since 1975 when the land was occupied and acquired by the Nigerian Army and before the compensation was paid in 1993.
12. That these applicants are professional speculators and gamblers.”

We took arguments for and against the application on 20/10/99. Whilst Mr. Akinboro for the applicants urged us to grant the application Mr Tunji Ayanlaja, SAN, for the appellant, with whose argument Chief Adedeji Adekoya for the respondents associated himself, submitted that the appellants had not disclosed the interest which would enable this court join them in the proceedings. Chief Adekoya relied on Green v. Green (1987) 3 NWLR (Pt. 61) 480 at 483.

Order 1 Rule 20(1) of the rules of this court provides:-

“(1) In relation to an appeal the Court shall, have all the powers and duties as to amendment and otherwise of the High Court including without prejudice to the generality of the foregoing words, in civil matters the powers of the High Court in civil matters to refer any question or issue of fact arising on the appeal for trial before, or inquiring and report by, an official or special referee.

In relation to a reference made to an official or special referee, anything which can be required or authorised to be done by, to, or before the High Court shall be done by, to, or before the Court.” The above Rule of this Court under which the applicants expressed to have brought their application only grants to this court the powers and duties of a High Court in relation to amendment in appropriate cases. Is this an occasion to join the applicants as parties’? I think not. On 24/3/94, Aka J. at the Lagos High Court made an Order that the compensation due to some claimants which was paid into the Chambers of Obafemi Awolowo & Co., Legal Practitioner for transmission to the claimants be paid into court. The Chambers of Obafemi Awolowo & Co. were dissatisfied with the order of Aka J. They then brought an appeal before this court.

Now, the applicants claim two capacities which they believe entitled them to be joined as parties-in-this appeal:

(1) That the 4th to 10th applicants are Traditional Rulers and Community Elders of the people who own the land and who are entitled to some of the compensation.

(2) That 1st to 3rd applicants are professional agents engaged by the claimants to represent them in demanding compensation.

In the appeal before us, we can only decide whether or not the Order of Aka, J. was properly or correctly made. It has not been disclosed to us the principle of law which confers on traditional rulers and community elders the right to be made parties in suits in which neither they as individuals nor their community as a group have a direct interest. That indeed would be a novel proposition which must lead to chaos if it were permissible for traditional rulers and community elders as such to be made parties in suits and proceedings in which the interests of their community are not involved. The claimants pursue their claims for themselves as individuals and not for their community. There is therefore, no reason whatsoever, to bring in traditional rulers and elders to watch over them.

Further, since the direct claimants are themselves parties to the suit and the appeal, there is nothing that makes it necessary to join the agents to the claimants as parties.

Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 provides:

“243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –

(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;

(b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”

The applicants have not deposed that they intend to exercise any right of appeal in respect of the decision appealed against and have not sought any leave to do so from this court.

As to joinder generally, the Supreme Court in Green v. Green (1987) 3 NWLR (Pt.61) 480 at 498 followed the guide suggested in The Result (1958) 1 All ER 839 at 841 – 842 as to the factors to be borne in mind: The Supreme Court said that a court should ask itself the following questions:-

“1. Is the cause or matter liable to be defeated by the non-joinder”

2. Is it possible for the court to adjudicate on the cause of action set up by the plaintiff unless the third party … is added as a defendant”
3. Is the third party a person who ought to have been joined as a defendant?
4. Is the third party a person whose presence before the court as defendant will be necessary in order to enable the court effectually and completely to adjudicate on and settle all the questions involved in the cause or matter.”

See also Amon v. Raphael Tuck & Sons Ltd. (1956) 1 Q.B. 375; Peenok Investments Ltd v. Hotel Presidential Ltd. (1983) 4 NCLR 122; Uku ors. v. Okumagba & ors. (1974) 3 SC 35.

When the above test is applied to the facts of this case, it is manifest that the applicants cannot be necessary parties to this appeal or the suit before the lower court. The application fails and is dismissed.

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Other Citations: (1999)LCN/0500(CA)

Christian Nwosu V. Titus Mbadugha (1999)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A.

The case in this appeal originated in the Ozubulu Customary Court. The respondent in this court who was the plaintiff in the Customary Court sued the defendant/appellant claiming as follows:

“1. Declaration of title to and ownership of a piece and parcel of land situate along Nnewi Ozubulu Road on the Both sides of the Road few poles to Afor Ilo-Nza market.

2. Injunction and court Relief to Order the Defendant from further entry and use of and Encroachment on the said land bonafide property of the plaintiff fore fathers whom the plaintiff is their rightful heir.”

The plaintiff/respondent’s claim was dismissed in the Customary Court. He appealed to the High Court which allowed the appeal and set aside the judgment of the Customary Court. Dissatisfied with the judgment of the High Court the defendant/appellant has appealed to this court. He filed 7 grounds of appeal. He has also filed his brief of argument in which he formulated 5 issues as follows:

“1. Whether the plaintiff in an action for declaration of title to land originated and tried in a Customary Court will succeed without other evidence, on the grounds that the Defendant did not cross-claim or counter-claim?

2. Is it correct to hold that evidence of long possession of land in dispute by the plaintiff negatives the evidence of pledge under Ozubulu Native Law and Custom?
3. Whether on the facts of this case it is correct to conclude and hold that the Customary Court Judges based their decision on what they found during the inspection, and that the findings were not given in evidence by the parties?
4. Should the learned Judge in the Court below disturb findings of facts and pronouncements on the custom which facts were not shown to be perverse or which custom were not held to be repugnant to natural justice, equity and good conscience?
5. Whether the Court below exercised its jurisdiction to conduct the case at all during annual vacation without the consent of the parties and indeed whether the principles of fair hearing were applied in refusing to grant the Respondent/Appellant adjournment to complete his case.”

Arguing his issue No. 1 learned counsel for the appellant submits that neither the failure of a defendant to bring a counter-claim in the Customary Court nor the award of “sole ownership” to him shall entitle the High Court to allow the appeal and set aside the judgment of the Customary Court Learned Counsel castigated the High Court for saying:

“In my view if the defendants knew that the land was pledged to the plaintiff’s family, they should have counter claimed and the matter placed properly before the court for determination. In so far as they did not do this I agree with the learned Senior Advocate that the Court below was wrong in their award to the Defendants.”

He urged this court to adopt the principle laid down in Oko v. Ntukidem (1993) 2 NWLR (Pt.274) 124; (1993) 2 SCNJ 33 at 45 in interpreting the judgment of the High Court. Reference was made by counsel to other cases which deal with the attitude of the High Courts towards the judgments of the Customary Courts. He refers to Mate Nono v. Tsutsu 10 WACA 89; Amadasun v. Ohenso (1966) 2 All NLR 155; Kunsu v. Udom (1990) 1 NWLR (Pt. 127) 421. All the authorities referred to deal with the fact that substantial justice is what should be looked for at the proceedings and judgments of Native or Customary Courts without regard to technicality. Learned Counsel submits that “counter claim is a common law concept and in Nigerian situation, it is a rule of procedure. It is a form that an action may take. It is not the substance or the action’” Let me dispose of this issue in the appeal. The learned trial Judge of the High Court after stating that “in his view, if the defendants knew that the land was pledged to the plaintiff’s family… “as quoted above in this judgment went on to say that “The Court is not a ‘Father Christmas’ and cannot dish out to a party what the party has not asked for. The ground therefore succeeds”. The learned Judge was dealing with the award of “sole ownership” of the land in dispute to the defendant/appellant who has not claimed anything in the Customary Court. There is a galore of authorities that a court should not award to a party what the party had not claimed. The reasoning of the Judge may not be the best when he said that “if the defendant knew that the land was pledged to the plaintiff’s family they should have counter-claimed.” The conclusion he came to however was a correct conclusion in law. It is not correct to say that the High Court placed undue reliance on technicality. The issue No. 1 of the appellant therefore fails.

On issue No. 2, learned counsel for the appellant argues that long possession by a pledgee or his successors in title does not give title of the land belonging to the pledgor to the pledgee. This assertion is a correct proposition of the law. The onus is however on the party who alleges a pledge to prove it against another person who is in possession of the land and who denies that he or his predecessors in title came into possession as a result of a pledge. Learned counsel submits that the lower court i.e. the High Court came to its wrong conclusion as regards the pledge because the defendant/appellant did not know when, the pledge was effected. He however contends that the evidence of the defendant/appellant was to the effect that the pledge took place during the life time of his own ancestors Ezike Nzewi. The said Ezike Nzewi from whom the defendant claims title pledged the land to Ezeokwesi, the plaintiff/appellant’s ancestor. Counsel submits that that answers the question as to when the pledge took place. He concedes that P.W.1 and 2 gave evidence of long possession of the land by the family of the plaintiff/respondent but that the P.W. 2 acknowledges that a pledged land can be redeemed at any time. The witness however maintained that the land was not on pledge. It is submitted by counsel that one has to compare the evidence of P.W. 2 with that of the defendant/appellant and his witnesses who said that it was to the grandfather of the plaintiff/appellant (Ezeokwesi) that the grandfather of the defendant/respondent (Ezike Nzewi) pledged the land. Counsel complained that the plaintiff/appellant or P.W. 2 did not trace possession beyond Ezeokwesi. In the light of this, counsel submits, the contention of the plaintiff/respondent’s counsel in the High Court that P.W.1 and P.W. 2 gave clear evidence of ownership cannot stand. Learned counsel concedes that the plaintiff/respondent was in possession and that the possession by his family was long but that there was no proof of ownership by the plaintiff/respondent. Mere possession, counsel submits, cannot defeat the defendant’s title. He refers to Adesanya v. Otuewu (1993) 1 NWLR (Pt.271) 414; (1993) 1 SCNJ 77 at 95; Ekretsu v. Oyebebere (1992) 9 NWLR (Pt.266) 438; (1993) 11/12 SCNJ 189 at 205; Nwololo v. Ukegbu (1997) 4 NWLR (Pt. 500) 4:16 at 448 – 449. He asserts that in the instant case, the defendant/appellant has better title by proving a pledge to the family of plaintiff/respondent. Counsel refers to a number of cases viz Akyirefie v. Breman-Esiam (1951) 13 WACA 331; Amoo v. Adigun (1957) 2 WNLR 55; Ikeanyi v. Adighogu (1957) 2 ENLR 39; Onobruchere & Anor. v. Esegine & Anor (1986) 1 NWLR (Pt. 19) 799; Nwagwu & Anor. v. Okonkwo & Ors. (1987) 3 NWLR (Pt. 60) 314.

Learned counsel submits that the principle of laches does not apply to Customary tenancy and refers to Gbadamosi v. Alhaji Bello (1985) 1 NWLR (Pt. 2) 211. He also maintains that the issues considered by the High Court in arriving at its decision that there was no pledge did not relate to the decision of the trial Customary Court. The High Court therefore went astray, and was making a case for the plaintiff/respondent, counsel contends. He refers to Odubeko v. Fowler (1991) 7 NWLR (Pt.308) 637; (1993) 9 SCNJ (Pt. 11) 184 at 196. He submits that the issue of the defendant/appellant having money but not redeeming the land or having got the land from another family did not got to trial and was not considered by the trial Court. The High Court was therefore precluded from raising the issues on appeal. See Inna v. Nta (1961) All NLR 576. If however the High Court felt that such issues must be raised to form part of the appeal, then opportunity would have been given for argument to both parties. See Kufi v. Balogun (1978) 1 SC 53. The plaintiff/respondent having failed to prove his title to the land, his case must fail, counsel concludes. See Hawa Gankon v. UCI (1993) 6 SCNJ 263 at 278; (1993) 6 NWLR (Pt.297) 55. On the contrary, a pledge was proved. The judgment of the High Court that pledge was not proved was a conclusion reached without the correct facts.

Arguing his issue No.3, appellant’s counsel submits that it is not correct to say that the trial court based its decision on what it saw during the visit to locus in quo but which facts were not given in evidence. He refers to Seismograph Services Ltd. v. Onokposa (1972) NSCC 231. After reviewing the process which the trial Customary Court went through, learned counsel submits that it was wrong as concluded by the High Court that the trial Customary Court based its decision on what it found during the inspection but which facts were not given in evidence. The court, counsel says, does not cease to be a court when it goes on inspection. Oral admissions made by a party during inspection shall be taken as if made in court room and could be taken into account. Counsel submits that the facts of the Seismograph case are clearly distinguishable from the facts of this case. He refers to Section 76(a)(ii) of the Evidence Act. The legal position about a visit to Locus in quo has been the subject of judicial decisions. Counsel refers to and relies on Badoo v. Ampung 12 WACA 439; Nwizuk v. Eneyok 14 WACA 354: Adeponle v. Ajalabe (1965) All NLR 215, Kunsu v. Udom (1990) 1 NWLR (Pt. 127) 421; Briggs v. Briggs (1992) 3 SCNJ 75; (1992) 3 NWLR (Pt.228) 128 and Enigwe v. Akaigwe (1992) 2 SCNJ 316 (Pt. 2); (1992) 3 NWLR (Pt.225) 505. Counsel finally submits that the conclusion of the High Court that the procedure adopted during the visit of the locus in quo was improper is wrong and not borne out by the record of proceedings of the trial court. Learned counsel submits that there are however other issues which go to the merits of the case other than a visit to the locus in quo.

On issue No.4 the appellant repeats the substantial issue in this appeal viz whether there was a pledge of the land in dispute or not learned counsel submits that pledge is a question of fact and therefore a finding on pledge is a finding of fact. As the High Court sat as a court of appeal, counsel contends, it had nothing to do with such finding unless it was shown that such finding was perverse. He refers to Mate Nono v. Tsutsu (supra); Akyin v. Egymah 3 WACA 65; Opera v. Sampson 3 WACA 169.

The respondent in his brief formulated 4 issues for determination viz:

“1. Did the appellant receive a fair hearing in the court below?

2. Was the court below right in holding on the printed record that the defendant did not prove that the land in dispute was ever pledged to the plaintiff’s forebear?
3. Was the court below wrong in holding that it was not competent for the customary court to order the redemption of the land in dispute since the said relief was not asked for by the defendant?
4. Was the court below right in holding that the inspection of the land in dispute was not conducted as required by law?” Although the appellant mentioned fair hearing as the 5th issue in his brief. He would seem however to have abandoned it in his argument in the brief. He argued four issues in his brief and filed no salvo on his 5th issue on fair hearing. He would be taken to have abandoned his contention on fair hearing. Where an issue is formulated but not argued or projected, and not a word is said in support of it, the issue is taken to have been abandoned. Assuming that the appellant did not abandon the issue, I find nothing in the record which offends the principle of fair hearing. I am of the view that the issue is formulated without any seriousness.

On issue No.2 of the respondent learned Senior counsel for the respondent submits thm both statute law and Customary Law recognise that a person in possession of land for many decades as found by the Customary Court is presumed to be the owner of the land until the contrary is proved. He refers to Ezendu v. Obiagwu (1986) 2 NWLR (Pt.21) 208; (1986) 3 SC 1 at 30 – 31.

The respondent’s third issue challenges the award of title “sole ownership” of the land in dispute to the appellant who did not claim title to the land in dispute. Equally too, the order of the Customary Court on the respondent to accept a redemption money of N4 in respect of the said land when there was no claim for any such order was challenged. The respondent contends that the Customary Court had no right to make the order it made since there was no claim to that effect by the appellant.

The 4th issue of the respondent relates to the visit of locus in quo by the Customary Court. Learned Senior Counsel argues that trials in our civil courts are not inquisitorial including trials in the Customary Courts. There were no doubts to clear for which the Customary Court substituted the evidence it heard in the court with what it saw in the locus.

At the hearing of this appeal it was brought to the notice of the court how the appellant’s counsel has consistently absented himself from the court occasioning several adjournments which have delayed the disposal of the appeal filed since 1993. When the appeal was called, counsel for the appellant was again absent. Since the parties had filed their briefs we took the appeal as having been argued pursuant to Order 5 Rule 9(e) of the Court of Appeal Rules.

I shall deal with issue Nos. 1, 2 and 4 of the appellant together with issues 2 and 3 of the respondent. The issue of pledge or no pledge is the substantial issue in this case, and indeed, in this appeal. As was very rightly put by learned counsel for the appellant “The question on which this appeal rotates substantially is whether there was a pledge or not.” The question of pledge or no pledge is, as students of physics will put it, the fulcrum on which this appeal turns. Other issues raised by the appellant or respondent are largely peripheral for, if indeed there is a pledge of land by the family of the defendant/appellant to the family of the plaintiff/respondent, the plaintiff/respondent cannot get the declaration he has claimed or the injunction. If on the other hand there is no proof of a pledge, the claim will succeed, and the plaintiff/respondent will get the declaration and injunction claimed. I have made the above proposition because the defendant/appellant admits that the plaintiff/respondent is in possession of the land in dispute and has been so for some decades. It has been said that ‘possession is nine-tenths of ownership.’ Accordingly, plaintiff/respondent who is conceded by the defendant/appellant to be in possession for so long a time can fold his hands and say to the defendant/appellant. If you know that you are the owner of the land, prove it.’ Thus, in Ezeudu & Ors v. Obiagwu (supra) the Supreme Court per Oputa JSC stated the law as follows:

“By admitting that the respondent’s ancestors were, and that the respondent is still, in possession of the land in dispute or even part of it but as pledgees the onus of proof that those in admitted possession were not the owners of the land in dispute shifted to the defendants/appellants by the operation of section 145 of the Evidence Law Cap. 49 of the Laws of Eastern Nigeria 1963 in force in Imo State. The trial court should have called upon the defendants to begin. not the plaintiffs who should not have been called upon to establish what the law presumes in their favour.”

See also Section 45 of the Evidence Act.

The onus therefore is on the defendant/appellant who alleges a pledge of the land to prove it.

Proof of a pledge is a question of fact to be given in evidence. Being a question of fact, an appellate court cannot disturb a judgment based on a finding of such fact unless such a finding is perverse. Such a finding is perverse if it is not supported by evidence led in the case.

In this case on appeal at no time did the appellant suggest to the plaintiff/respondent when he (plaintiff/respondent) was giving evidence that the land was on pledge to the plaintiff/respondent. It should be appreciated that there are no pleadings in the customary court. Accordingly, a plaintiff would not know the defendant’s defence when he (the plaintiff) is giving evidence. It is for the defendant to challenge the plaintiff’s case by putting his defence to the plaintiff while the plaintiff testified. This was not done. The plaintiff testified and stepped out of the witness box without knowing anything about the alleged pledge. If the plaintiffs five witnesses, it was only to the P.W. 3 that the defendant mentioned a pledge. Even at that the suggestion was that it was the self same P.W. 3 who advised the defendant (appellant) about the alleged pledge. Part of the evidence o under the cross-examination of P.W. 3 at page 10 of the record lines 2 – 9 ran thus: “Defendant to witness: Do you remember that you were the one who called me to advise me to go and reclaim this land?

Ans. by witness 3: It is a lie.

Defendant questioned to witness 3: Are you aware that a land pledged to somebody can be reclaimed at anytime?

Ans. Yes – it could be reclaimed but the land in dispute was not pledged.”

From the above evidence it would seem that the defendant did not seem to know about the pledge until advised by P.W. 3 to reclaim the land. P.W. 3 however described the suggestion as “a lie.” Thus, throughout the plaintiff’s case, no issue or serious issue was made of this alleged pledge to the plaintiff/respondent. The issue of pledge was seriously raised only during the defence and equally seriously challenged under cross-examination. The Customary Court gave judgment for the defendant on the above facts. It did not dismiss the plaintiff’s claim. It awarded title of the land to the defendant/appellant. It did not stop there. It ordered the respondent to accept N4 as the redemption money for the land. None of these awards was claimed by the appellant. There was no counter-claim. Considering the totality of the judgment and the award made thereon, it is my view that the finding of the Customary Court on the facts was perverse, and the awards made thereon wrong in law. The High Court was therefore right in setting aside the judgment whether, with the awards made thereon. The High Court was right in saying that the court is not “a Father Christmas,” for how can a court proceed to award to a defendant who has claimed no title to the land, the title to the land in dispute and also order the plaintiff to accept a redemption money. Such a judgment not predicated on a fair assessment or evaluation of all the evidence in court is perverse. The judgment shows that the Customary Court swallowed the case of the defendant without regard to the plaintiffs case.

On the 3rd issue of the appellant and the 4th issue of the respondent both of which deal with the visit to the locus in quo, it is my view that the purpose of locus in quo is to enable the court to see (with its eyes) whether what it had heard (with its ear) was true or false. As it was well put in Nwizuk v. Eneyok (supra), the purpose of visiting the locus was for the court “to substitute the eye for the ear.” It could be very helpful as the truth begins to come out while lies begin to crumble. There are however procedures which must be followed. The substitution of the eye for the ear must be in respect of evidence which the ear has heard in the court room. A visit to the locus must not be an occasion for fresh evidence. If fresh evidence is recorded during the visit, the other party must be allowed full scale cross-examination on it. A court visiting the locus in quo must therefore be careful not to take fresh evidence and acting on it without giving the other side an opportunity of rebuttal either by way of cross-examination or of adducing fresh contrary evidence. The court must be careful not to fall into any of the pitfalls associated with visiting the locus in quo.

In the case under consideration in this appeal, it would seem that the Customary Court made use of facts obtained during the inspection of the land without giving the plaintiff/respondent the opportunity of cross-examining on them or of adducing a contrary evidence if he so desires. The facts obtained were favourable to the defendant appellant and unfavourable to the plaintiff/respondent. The Customary Court stated in its judgment in part as follows:

“At the close of evidence of both the plaintiff and the defendants, the land in dispute was inspected by the Court members on 30/9/86. The Court found that a stretch of land covering the area of the defendants compound and the portions he sold to Akajiuba and Daniel Nworah crossed to Nnewi/Ozubulu main road and that the defendant’s land also situate on the opposite side of Nworah’s premises and that he sold portions of it (right hand side) of Nnewi/Ozubulu Road to Rapheal Ibe and David Igboanugo. The land in dispute is just presumably part of the same stretch of land originating from the defendant’s compound and crossing the Nnewi/Ozubulu main road. The plaintiff did not think that it was right.”

I do not think that the ends of justice were met in not giving the plaintiff/respondent, the opportunity to cross-examine or adduce evidence against the conclusion of the Customary Court in respect of its findings and conclusions as regards the inspection of the land in dispute. This issue is, again resolved against the appellant.

In the final analysis, this appeal fails and is hereby dismissed. The respondent shall have the costs of this appeal fixed at N2000.

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Other Citations: (1999)LCN/0499(CA)