Akibu Hassan Vs The State (2001)

LAWGLOBAL HUB Lead Judgment Report

KASTINA-ALU, J.S.C. 

At the Ibadan High Court the appellant was, along with Wahabi Adisa and Saka Adekunle, charged with the murder of one Abiodun Iyiola contrary to section 319(1) of the Criminal Code Cap. 30 Volume II, Laws of Oyo State, 1978.

On the second count, appellant, along with Wahabi Adisa, Saka Adekunle and Rasaki Layiwola, was charged with assault occasioning harm. The case was heard by Adekola, J. (as he then was) who on 27/1/92 in a reserved judgment found only the appellant guilty of murder on count 1 and sentenced him to death accordingly. On the second count Adekola, J. also found only the appellant guilty of lesser offence of ordinary assault contrary to and punishable under section 351 of the Criminal Code. The three other accused persons were acquitted and discharged on both counts.

The appellant’s appeal to the Court of Appeal, Ibadan Division, was dismissed. This appeal is from the judgment of the Court of Appeal.

Against that judgment, the appellant has canvassed in the main that he never took part in the murder of the deceased. He also denied ever making Exhibits I and II which the two courts below held to be confessional statements. The questions stated for determination in the appellant’s brief of argument appear to bear on these issues. They are:

1. Whether in view of the nature and quality of evidence adduced by the prosecution, the Court of Appeal did not err in affirming that the trial Judge rightly convicted and sentenced the appellant to death for murder.
2. Whether the learned trial Judge rightly found that exhibits I and II were actually made by the appellant. If the answer is Yes, whether the exhibits could rightly and properly be used to corroborate the evidence of PW1, Exhibits A, B, and C.
3. Whether the appellant’s identity was properly established without doubts.
4. Whether the lower court was right to have affirmed the appellant’s conviction for a lesser offence of ordinary assault.

The respondent formulated three issues for determination which read as follows:

1. Is the Court of Appeal (lower court) in error by believing the contents of Exhibits I and II thereby affirming the conviction and sentence of the appellant by the trial court.
2. Whether the identity of the appellant was in doubt.
3. Whether the Court of Appeal was right to have affirmed the appellant’s conviction for lesser offence of ordinary assault.

Briefly, the facts of the case as related by the respondent through P.W.1 Kunmi Iyiola the elder brother of the deceased Abiodun Iyiola, who gave an eye witness account of the incident were that on the 26th day of August, 1990 both the deceased who was an apprentice motor (trailer) driver, and himself left their house at Ogbere Babanla at about 4.30 a.m. in order that the deceased might meet his master at Oremeji by 5 a.m. As they got to a place called and known as Okikiade, seven men accosted them and asked where they were going to at that time of the day. When PW1 and the deceased tried to answer, the men ordered them to prostrate. They obeyed and in that condition PW1’s hands were tied with ropes. Thereafter, PW1 and the deceased were attacked with machetes and cutlasses.

The deceased tried to escape but due to the severe injury he suffered from the machete cuts, he fell down and became unconscious. Thereafter the seven men ordered PW 1 to take them to his house. When they nearly got to his house, the men ran away. It was then that PW1 was able to report the incident at the Agugu Police Station.

A police sergeant was detailed to accompany PW1 to the scene of the incident. Abiodun Iyiola was then taken to a hospital at Aremo for treatment. He died later in the hospital at about 10.15 a.m. on the same day i.e. 26/8/90.

According to PW the four accused persons arraigned at the trial court were among the seven men that accosted the deceased and himself. The body of the deceased was later taken to the State Hospital, Adeoyo where Dr. M. A. Aboderin performed the post mortem examination on the body. However, before the commencement of the trial, Dr. Aboderin died and the post-mortem report was tendered and admitted in evidence by Dr. T. I. Ipadeola as Exhibit “K”.

The appellant made one (1) extrajudicial statement to the Police. The Yoruba and English versions of the statement were tendered and admitted at the trial as Exhibits I and II respectively. In Exhibit I the appellant narrated how he and the other accused persons pursued the deceased, macheted him until he fell down. Exhibit I was thus treated as a confessional statement.

In his defence at the trial, the appellant vehemently denied making Exhibit I thus retracting the confessional statement. In his evidence on oath he gave an account totally different from the contents of the extra-judicial statement. In his evidence-in-chief the appellant raised for the first time the defence of alibi when he claimed that he was in Ondo province at all times material to the commission of the offence.

The learned trial Judge after a careful and thorough evaluation of the evidence before him, believed the evidence of the prosecution and found that the evidence of PW1 was corroborated by Exhibit I made by the appellant and exhibits A, B and C made by PW1 as to the role played by the 3rd accused/appellant in the death of the deceased. The defence of alibi raised by the appellant was rejected by the trial Judge and consequently the appellant was found guilty of murder and was sentenced to death. He was also found guilty of the lesser offence of ordinary assault on the second count.

The learned trial Judge in the course of his judgment said:

“The evidence against the 3rd accused can be found in his statement, Exhibit I, and the evidence given by him in defence of the charge and the statement and evidence given by the 1st PW and other prosecution witnesses.

It will be recalled that the name of the 3rd accused was mentioned by 1st P.W. in his first statement by Exhibit A which was made on 26/8/90 when the incident was still fresh in his memory. He stated further in Exhibit A that 3rd accused was one of the people beating him and the deceased on the day of incident.

There is no doubt in my mind that the identity of the 3rd accused was not in doubt to the 1st PW because he was able to identify 3rd accused vividly when Akibu and Alfa Akbu were following 1st PW to know his house before both of them later ran away when they saw people gathered round the spot where the deceased was lying down.

Again in the 2nd statement made by 1st P.W. on 29/8/90, he mentioned Kamoru as one of the seven people who were beating him and the deceased on the day of incident. So also was 3rd accused’s name mentioned in Exhibit C and by the 1st PW on 29/8/90.

1st PW was consistent in the mentioning of the 3rd accused’s name as one of the seven persons who participated in the beating of the deceased who later died as a result of injuries sustained in the hands of their assailants. I accept the evidence of the 1st PW that 3rd accused participated in the commission of the crime on the day of incident. It is pertinent at this stage to refer to the statement made by the 3rd accused to the police immediately after his arrest. It is no doubt a confessional statement by the 3rd accused voluntarily without any inducement or threat of any kind from the police. And I have no doubt in accepting it as voluntarily made by 3rd accused.

A statement made to the police during the investigation of a case may amount to admission where an accused confessed the commission of a crime, where there is no eyewitness of the killing, he can be convicted on his own confession, once the confession is positive, direct and properly proved. See the case of Achabua v. The State (1976) 12 SC 63 and the case of Ironsi v. The State (1969) 1 NMLR 204.

It is my finding that the confessional statement made by the 3rd accused is corroborative of the evidence and the statements exhibits A, Band C made by the 1st PW as to the role played by the 3rd accused to the commission of the offence of murder.”

The Court below affirmed the conviction of the appellant. In a meticulous manner the court below per Adamu, JCA said:

“The main thrust of the submissions under the two issues is against the admission by the learned trial Judge of the extrajudicial statement made by the appellant to the police and its treatment by the said Judge as a confessional statement upon which inter alia, he based his conviction of the appellant for the offence of murder. The argument of the appellant is that he did not make that statement to the police at all.

This is different from saying that the appellant had made the statement involuntarily or was compelled or induced to do it under threat or duress. In the later case, it can be said that the statement though made was not voluntary and does not qualify as a voluntary confession under S.27(1) of the Evidence Act Cap. 112, Laws of the Federation of Nigeria, 1990. In such a case there is a need for a trial within trial to determine the voluntariness of such a statement or confession – See Obue v. State (1976) 2 SC 141 at 152; R. v. Eguabor (1962) 1 All NLR 287; Queen v. igwe (1962) 5 FSC 55. On the other hand where the extra-judicial statement in the nature of a confession is subsequently denied or retracted by an accused person (as is usually and mostly the case) in his evidence before the court, a different consideration will arise and there is no necessity for a trial within trial. A confession or a confessional statement has been defined in a number of cases by both the Supreme Court and this court as “an admission made by an accused stating or suggesting that he committed the crime which is the object of the charge preferred against him. It is an acknowledgement of the crime of the accused – See Ikemson v. State (1989) 3 NWLR (Pt.110) 455 at 476; Gira v. State (1996) 4 NWLR (Pt.443) 375 at 387; Liya v. State (1998) 2 NWLR (Pt.538) 397 at 408; Buje v. State (1991) 4 NWLR (pt. 185) 287 at 297; and Egbeyom v. State (2000) 4 NWLR (Pt. 654) 559 at 580.

It is trite that by virtue of section 27(1) of the Evidence Act (supra) a confessional statement made as defined above alone can solely be the basis of conviction. However, it is very usual for an accused person to retract, deny or resile during his trial in the court from the extra-judicial statement he had earlier made to the police immediately after the event giving rise to the charge or arraignment against him. In such cases, the law casts a duty on both the accused person who made the subsequent denial to impeach his earlier statement and on the trial Judge who is to test the veracity or otherwise of such statement by testing it or comparing it with other facts and circumstances outside the statement or in order to see whether they support, confirm or correspond with the said statement which will then be regarded as correct. In other words the statement will be subjected to scrutiny by the court in order to test its truthfulness or otherwise in line with other available evidence and circumstances of the case – See Salawu v. State (1971) NMLR 249; Akinfe v. State (1988) 3 NWLR (Pt.85) 729 at 746 – 747; R. v. Itule (1961) 2 SCNLR 183, (1961) All NLR 462; R. v. Sykes (1913) 8 CAR 233 and Onwumere v. State (1991) 4 NWLR (Pt.186) 428 at 440. On the part of an accused person who wants to resile from or retract his earlier confessional statement which he made extra-judiciously to the police, such a statement is not rendered inadmissible by the mere denial or retraction by the said accused person unless he leads sufficient evidence to rebut the accusation by the prosecution and it is thus his duty to explain to the court (as part of his defence) the reason(s) for the inconsistency between his earlier confessional statement to the police and the evidence he has given in his oral testimony before the court – See R. v. Itule (supra); Onwumere v. State (supra); Egboghonome v. State (1993) 7 NWLR (Pt.306) 383; Bature v. State (1994) 1 NWLR (Pt.320) 267; Akinfe v. State (supra) at p 746 of the report) and Salawu v.State (supra) and Osakwe v. A. -G., Bendel State (1991) 1 NWLR (Pt.167) 315 at 327. Such an accused person who wishes to impeach his earlier extra-judicial statement has an onerous duty to establish that his earlier confessional statement cannot be true or correct by showing any of the following four events or instances:-

(a) that he was not correctly recorded; or

(b) that he, in fact did not make the statement; or

(c) that he was unsettled in mind at the time he made the statement; or

(d) that he was induced to make the statement – See Onwumere v. State (supra at p. 440 of the report.).

By applying the above principles of law on the extra-judicial statement of the appellant in the present case to the police (as per Exhibit I and II), I have confirmed from the record that the learned trial Judge has discharged his duty under the law before admitting the said statement by applying the test recommended to ascertain its truth and by finding a corroborative evidence outside the confessional statement when he stated in his judgment as follows:-

‘It is my finding that the confessional statement made by the 3rd accused is corroborative of the evidence and the statements in Exhibits A, B and C made by the 1st PW as to the role played by the 3rd accused as (sic) the commission of the offence of murder.’ See page 62 lines 19-22 of the record.

Thus the learned trial Judge was right in admitting the confessional statement of the appellant made to the police in Exhibit I and II. He did so in compliance with the principle in the cited authorities and he did not therefore commit any error. On the other hand, the appellant in his denial of or retraction from the making of the confessional statement did not discharge his own duty (as imposed by the law) by taking any of the above listed steps to impeach or rebut the confessional statement in Exhibits I & II. He only stated that the Exhibit was not his statement and when cross-examined he said, that he ‘did not make any statement to the police on 1/9/90’ (see page 40 lines 20 23 of the record).

In order to impeach the said statement he, the appellant, should have adduced evidence to show that the thumbprint on the statement which he admitted to have made to the police was not in fact his own right thumb impression. As he failed to show that the statement in Exhibit II shown to him was not the one made by him because it did not bear his thumbprint, his mere denial or retraction will not render the statement inadmissible as per the principle in the above authorities. Also since the learned trial Judge after applying the recommended test as to the truthfulness of the statement and found it to be corroborative of other evidence in the case, he was right in admitting it and in relying on it along with other pieces of evidence in convicting the appellant. ‘”

As I have already shown, the prosecution relied on the confessional statement made by the appellant. The appellant denied the statement Exhibit I in evidence and claimed that he knew nothing about the offence. In fact for the first time he claimed that he was elsewhere at the time of the commission of the offence. That is to say that the appellant raised a defence of alibi for the first time in his evidence.

It is true that an accused can be convicted on his confession alone when the conditions for this are present. These are fully laid down in several cases including R. v. Sykes (1913) 8 Cr. App. P.233 at 236-237; Yesufu v. The State (1976) 6 SC 167. Even where the accused has retracted the statement; See R. v. ltule (1961) 2 SCNLR 183, (1961) All NLR 462; Salawu v. The State (1971) NMLR 249; Godwin lkpasa v. A.-G., Bendel State (1981) 9 SC 7; Akinfe v. The State (1988) 3 NWLR (Pt.85) 729 SC.

A confession is, by virtue of section 27(1) of the Evidence Act an admission made at any time by a person charged with a crime stating or suggesting that he committed that crime. It follows that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence with which he is charged, the statement becomes confessional. An accused can therefore be convicted on his confession alone regardless of the fact that he resiled therefrom or retracted it altogether at the trial. It is however, desirable that the contents therein should be tested by facts outside the statement. It must be stated that the retraction notwithstanding a confessional statement must be considered along with other evidence by the trial Judge who at the end would decide whether or not the appellant did make the statement alleged by the Police. In Godwin Ikpasa v.A.-G., Bendel State (supra) the learned Judge did just that and came to the conclusion that the appellant made the statement. In John Bamgboye v. A.-G., Western Nigeria (1966) NMLR 266, the voluntary admission made to the Police by the appellant was different from his evidence in court. This court held that the trial Judge, after considering the defence, rightly rejected the evidence of the appellant in court and also rightly accepted the voluntary admission to convict him of murder. In R. v. Itule (supra) the appellant retracted his confessional statement as a result of which the learned trial Judge did not consider it. The appellant was convicted of murder on other available evidence. The statement contained assertion of provocation. Since the trial Judge failed to consider the statement he consequently failed to consider the defence of provocation. This court, the Federal Supreme Court, as it then was, held that that failure to consider the confessional statement which had been retracted amounted to a substantial miscarriage of justice. The appeal was allowed and a conviction of manslaughter was substituted.

In the present case, PW1 was the star witness for the prosecution. He was not only at the scene of the incident, he was also a victim, albeit survivor of the brutal and unprovoked attack by the appellant and his co-horts directed at himself and his younger brother, the deceased. He gave direct evidence of what happened on that fateful morning. In his evidence-in-chief he testified that:

“The four accused persons were among the seven that stopped us on that day.”

PW 1 disclosed that:

“The seven persons started to matchet my junior brother with cutlasses. After having cut my brother with cutlasses until (sic) became helpless.”

Under cross-examination this witness stated as follows:

“I mentioned the 1st and 3rd (sic) in my first statement that day (sic) participated in the commission of the crime I told the police in my first statement that the 1st and 3rd accused persons matcheted my brother.”

In the course of his judgment the learned Judge observed thus:

“It will be recalled that the name of the 3rd accused person was mentioned by 1st PW in his first statement by Exhibit A which was made on 26/8/90 when the incident was still fresh in his memory. He stated further in Exhibit A that 3rd accused was one of the people beating him and the deceased on the day of the incident.”

The learned Judge thereafter made a specific finding of fact on the involvement of the appellant. He held thus:

“1st PW was consistent in the mentioning of the 3rd accused’s name as one of the seven persons who participated in the beating of the deceased who later died as a result of the injuries sustained in the hands of their assailants. I accept the evidence of the 1st PW that the 3rd accused participated in the commission of the crime on the day of the incident.”

The Court of Appeal after a careful evaluation accepted this finding.

It held as follows:

“PW 1 being an eye witness gave a credible evidence on what took place at the scene of the incident. He implicated the appellant.”

More importantly the case against the appellant was his admission of the commission of the offence. Exhibits I and II are the Yoruba version and the English version respectively of the extrajudicial statement made by the appellant to the Police. At the trial the appellant denied ever making the statement. Nonetheless the learned Judge rightly admitted it. The retraction notwithstanding, the statement was bound to be considered along with the other available evidence by the trial Judge who at the end would decide whether or not the appellant did make the statement as alleged by the Police. See Ikpasa v. A-G., Bendel State (supra). The trial Judge did just that. He meticulously considered Exhibits I and II along with Exhibits A, Band C made by PW1 and came to the conclusion that the appellant did make the statement and that it was a confessional statement voluntarily made. He held thus:

“It is my finding that the confessional statement made by the 3rd accused is corroborative of the evidence and the statements Exhibits A, B, and C made by 1st PW as to the role played by 3rd accused as to the commission of the offence of murder.”

The Court of Appeal affirmed this finding. It held:

“Also since the learned trial Judge after applying the recommended test as to the truthfulness of the statement and found it to be corroborative of other evidence in the case, he was right in admitting it and relying on it along with other pieces of evidence in convicting the appellant.”

I completely agree. As I have earlier on stated an accused can be convicted on his confession alone when the conditions for this are met. These are fully laid down in several cases including R. v. Sykes (supra); Yesuju v. The State (supra). Even where the accused has retracted the statement; See R. v. Itule (supra); Akinfe v. The State (supra).

In the result this appeal fails and I dismiss it. I affirm the conviction and sentence of the appellant.

---

SC.281/2000

Professor V.O.S. Olunloyo V. Adedapo Adeniran (2001)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

In a contested suit between the plaintiff and the defendant herein before the Lagos High Court, the plaintiff on 6th February 1998 had judgment entered for him against the defendant thus:

“Judgment is therefore hereby entered for the plaintiff against the defendant in terms of the writ of summons and the statement of claim; that is to say:

(1) For forfeiture of the tenancy of the said premises and the tenancy of the defendant in respect of the said premises, No.34/36, St. Finbarr’s College Road, Akoka, Yaba is hereby forfeited.

(2) For possession of the demised premises, and it is hereby ordered that the defendant shall give up possession of the said premises No.34/36 St. Finbarr’s College Road, Akoka, Yaba and deliver up the same to the plaintiff on OR before the 31st day of March, 1998.

(3) For mesne profits, and it is hereby ordered that the defendant shall pay mesne profits or damages for use and occupation in respect of the said premises, No.34/36 St. Finbarr’s College Road, Akoka, at the rate of (N500,000) five hundred thousand Naira per annum from 1st January 1996 until possession of the said premises is given up.

(4) The defendant shall pay interest on all the sums of money due and payable as mesne profit OR

damages for use and occupation in respect of the said premises at the rate of 6% per cent per annum from 1st of January, 1976 until possession is given up.”

Dissatisfied with the judgment, the defendant filed his notice of appeal to the Court of Appeal, Lagos Division. This was followed up by an application to the trial High Court for unconditional stay of execution of the judgment above. On the 23rd April, 1998, the High Court delivered its considered ruling in which it granted the defendant a conditional stay of execution on the following terms:-

“(1) That the execution of the judgment dated 6th of February, 1998 be and is hereby stayed on the following conditions:-

(a) That the defendant/applicant pays the mesne profits or damages as contained in the judgment, namely, a sum of N500,000 per annum from 1st of January, 1996 to 31st of December, 1998 making a total sum of (N1.5m) one million, five hundred thousand Naira, within 21 days from today; 2nd of April, 1998.

(b) If the appeal is not finalised by 31st December, 1998, the defendant/applicant shall continue to pay a sum of (N500,000) five hundred thousand naira per annum with effect from 1st January 1999 until the appeal is finally disposed of.”

Once more the defendant was not satisfied with the above ruling. He filed a similar application before the Court of Appeal holden in Lagos. The Court of Appeal in its ruling dated the 21st June 1999, unanimously dismissed the application with N2,000.00 costs in favour of the plaintiff.

Aggrieved by the decision of the Court of Appeal the defendant has now appealed to this court.

The parties filed and exchanged briefs of argument as provided by the rules of court. At the hearing of the appeal these briefs were adopted by learned counsel on both sides who also made additional oral submissions.

Mr. Adeniran learned counsel for the defendant has formulated three main issues in his brief as arising for determination while Mr. Morris for the plaintiff also in his brief submitted only one issue for determination.

This being an interlocutory appeal in which case I am not permitted to make any observation which might appear to pre-judge the main issue in the substantive suit, I would prefer the plaintiff’s single issue which is direct and positive to the defendant’s three which border on the main appeal yet to be decided by the Court of Appeal. [see Egbe v. Onogun (1972) 1 All NLR (Pt. 1) 95; Mortune v. Gambo (1979) 3-4 SC 54]

Now the issue reads thus:-

“Whether or not the Court of Appeal applied the correct principles in its ruling by upholding the ruling of the trial court in the exercise of its undoubted judicial discretion in granting the defendant a conditional stay of execution of its judgment instead of an unconditional stay as sought by the defendant/appellant.”

The defendant’s main complaint is that the Court of Appeal did not properly consider the affidavit evidence before it reached its decision to dismiss the application and consequently he has not had a fair trial. He said by granting him unconditional stay of execution as sought and thereby remaining physically on the property, would be of great advantage to the plaintiff since the property will thereby be protected. He said the plaintiff will suffer no prejudice if unconditional stay of execution is granted. A number of cases were cited in support including Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254; Ojikutu v. Odeh (1954) 14 WACA 640; Doherty & Anor. v. Doherty (1964) NMLR 144. We were urged to allow the appeal.

The plaintiff on the other hand submitted that the defendant had failed to show by his affidavit evidence special or exceptional circumstances why the plaintiff should be deprived the fruits of his judgment in his favour.

That the defendant in this appeal had also failed to show that the Court of Appeal erred in law and or on the facts in its determination of the application before it. He said the defendant neither showed in his affidavit before the Court of Appeal that the plaintiff would be unable to refund the mesne profit of N500,000 per annum nor his own (defendant’s) inability to pay as ordered by the High Court and confirmed by the Court of Appeal. That the Court of Appeal correctly applied the proper principles to the application and rightly dismissed the plaintiff’s application. We were referred to the following cases amongst others:-

Guinea Insurance v. Monarch Holdings (1963) 3 NWLR (Pt.227) 365. R.E.A.N v. Aswani iles Ltd. (1992) 3 NWLR (Pt.227) 1. Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129.

The court was asked to dismiss the appeal as lacking in merit.

Now, it is settled that a stay of execution will only be granted if and only if, the court is satisfied that there are special or exceptional circumstances to warrant doing so, because the principle of law is that a judgment of a court of law is presumed to be correct and rightly made until the contrary is proved or established. Courts will not therefore make the practice of depriving a successful litigant of the fruits of his success (See for example Martins v. Nicannar Foods Co. Ltd. (1988) 2 NWLR (Pt.74) 75; Shodeinde v. Registered Trustees of the Ahmadiya Movement in Islam (1980) 1-2 SC 163; Vaswani Trading Co. Ltd. v. Savalakh & Ors. (1972) 12 SC 77. A discretion to grant or refuse a stay must therefore take into account the competing rights of the parties see Okafor & Ors v. Nnaife (supra). And where there is a pending appeal as is the situation herein, the special circumstances which have received judicial approval are when execution would:-

(a) destroy the subject matter of the proceedings;

(b) foist upon the court a situation of complete helplessness; or

(c) render nugatory any order or orders of the appeal court;

(d) paralyse in one way or the other, the exercise by the litigant of his constitutional right of appeal; or

(e) provide a situation in which even if the appellant succeeds in his appeal, there could be no return to the status quo.

See generally Vaswani Trading Co. v. Savalakh & Co. (supra) Deduwa v. Okorodudu (1974) 6 SC 21; Kigo (Nigeria) Ltd v. Holman Bros. (Nig.) Ltd. (1980) 5-7 SC 60; Nwabueze v. Nwosu (1988) 4 NWLR (Pt.88) 257.

A litigant applying for a stay of execution must thus show special or exceptional circumstances pleading eloquently the balance of justice weighing in his favour, even though what constitutes special or exceptional circumstance may vary from case to case. See Okafor v. Nnaife (supra).

I have carefully read the record of proceedings in this appeal.

First of all it is instructive to note what the learned trial Judge who first heard the motion for stay had to say thus:-

“However, the judgment creditor does not oppose the application being granted on condition that the judgment/debtor pays the judgment debt and subsequent rents in advance. The judgment is in respect of money and possession. The applicant does not say in the affidavit in support that if the money is paid, the respondent would not be able to refund it, if the applicant should win on appeal.

It is the law that in considering an application for stay of execution, the court must take into consideration the competing rights of the parties to justice. See Okafor v. Nnaife (supra); U.S.N. v. Odusole Bookstore Ltd. (1994) 3 NWLR (pt.331) 129 at 150.

In the circumstances of this case, where the learned counsel for the defendant/applicant sti11believes that the case must last for 22 years. I think the only order that can lead to justice in this case is that of a conditional stay.”

The Court of Appeal in its lead judgment which was read by Aderemi, J.C.A. (and concurred in by the other Justices) also observed as follows:-

“Let me begin by saying that a judgment delivered by a court of competent jurisdiction remains valid until it is set aside. It must also be borne in mind that, generally, the law does not permit a successful litigant to be deprived of the fruits of his litigation and locking up funds to which prima facie, he is entitled. It therefore follows that to obtain a stay of execution of judgment against a successful party an applicant must show special circumstances or substantial reasons to warrant the deprivation of that party of the fruits of his judgment. See Balogun v. Balogun (1969) 1 All NLR 349 The court below in the exercise of its judicial discretion upon being faced with an application for unconditional stay of execution granted a conditional stay of execution in the terms stated above. It is these conditions that the applicant wants removed. What are the reasons adduced by the applicant that will justify the variation of the order of the court below Although the application is supported by a 60 – paragraph affidavit virtually all the paragraphs contain materials which are better employed for the argument of the appeal proper. Only paragraphs 57 and 58 contain materials which, with some strain, can be made use of in this type of application.

I have read these two paragraphs over and again they do not persuade me to upturn the ruling of the court below. As I have said this type of application calls for a great deal of exercise of judicial discretion. I have looked again at the ruling of the court below and I am satisfied that the exercise of its judicial discretion was founded upon the facts and circumstances presented before it. The conclusion it reached in the ruling was governed by law and equity. There is no basis for up turning the ruling.”

I have also read over and over again the ruling of the Court of Appeal. And guided by the principles recited above I am clearly of the view that the court was right in its observations and conclusions. It is to me doubtless that both the trial High Court and the Court of Appeal properly applied the correct principles of law in the exercise of their undoubted judicial discretion in granting a conditional stay of execution in this case. The applicant who wanted a variation of the conditional stay granted to him by the trial court, did not find it worthwhile to suggest any other term or condition. He did not also give reasons why he cannot meet the conditions prescribed as he completely failed or refused to file any affidavit of means.

I find no merit in the appeal. It is therefore hereby dismissed with N 10,000.00 costs against the defendant/appellant in favour of the plaintiff/respondent.

---

SC.89/1999

Sparkling Breweries Limited & Ors. V. Union Bank Of Nigeria Limited (2001)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C. 

The appellants were, at all times relevant to this case, customers of the respondent bank. All the appellants belong to a group known as Olori Group of Companies. Following the cancellation by the respondent of purported letters of credit issued by it at the request of the appellants, the latter sued, claiming as per paragraph 27 of their amended statement of claim-

“27. WHEREFORE all the plaintiffs claim against the defendant as follows:-

(i) an order of injunction restraining the defendant and all their agents whomsoever from taking any steps to sell any of the plaintiffs’ properties mortgaged to it since the defendant is in fact indebted to the plaintiffs.

(ii) the sum of N656,919,000.00 only being special and general damages against the defendant for breach of contract arising from the unlawful cancellation of irrevocable letters of credit issued by the defendants, and so issued for valuable consideration given by the plaintiffs to the use of the defendant, and for the specific purposes and benefits of the plaintiffs’ business.

(iii) pursuant to paragraph 26 the sum of N554,732,565.00 for the 1st plaintiff and NI03,723,000.00 for the 2nd plaintiff.

(iv) pursuant to paragraph 25, the sum of N6,000,000.00 being the value of 12,000,000 crates for the 1st plaintiff and N9,000,000.00 being the value of 18,000,000 (sic) for the 2nd plaintiff.

OR IN THE ALTERNATIVE TO (ii), (iii) &(iv) ABOVE

(v) the said sum of NI6,315,365,565.00 being special and general damages for unlawful interference with the business of the plaintiffs.

(vi) interest on the said sum of NI6,315,365,565 only from 1st day of April, 1989, until payment.

(vii) further and or other reliefs.

IN THE FURTHER ALTERNATIVE TO (v), (vi) & (vii) ABOVE:

(viii) the sum of N42,325,000.00 being special and general damages for unlawful interference with the business of the 3rd plaintiff.

(ix) the sum of N42,325,000.00 being special and general damages for unlawful interference with the business of 4th plaintiff.

(x) the sum of N42,325,000.00 being special and general damages for unlawful interference with the business of the 5th plaintiff.

(xi) the sum of N42,325,000.00 being special and general damages for unlawful interference with the business of the 6th plaintiff.

In their amended statement of claim, they had pleaded, inter alia:

“5. In addition to the foregoing, the 1st and 2nd plaintiffs aver that they also bring this action in their capacity as those persons for whose benefit and advantage the contractual arrangements with the defendant more specifically pleaded in paragraphs 7, 8, 12, 13 and 14 of this statement of claim were entered into, and to whom the rights acquired under the said contracts have accordingly been transferred.

6. All the plaintiffs further state that all the transactions that have given rise to the reliefs sought by them in paragraph 27 of this statement of claim, to which by this action they claim to be entitled, arise from diverse contracts between their respective selves (as ‘the buyer’ or ‘the importer’ of goods and materials) of the one part, and the defendant (as the issuing bank’ of documentary credits) of the other part, by virtue of which the defendant, in consideration of the payment to them by the plaintiff of the local value of the various documentary credits, and the further payment by the plaintiffs to the defendant of commissions, and other bank charges as remuneration for its services, agreed to issue and establish irrevocable letters of credit in favour of certain third party – Sellers/Suppliers of goods and materials and to finance their importation into Nigeria by, and upon the application of, the plaintiffs for the purposes of their aforesaid business. The plaintiffs state that the relevant and precise particulars of each of the said ‘documentary credit’ contracts between their respective selves and the defendant are as appear by the date contained in ‘Particulars of Letters of Credits Contracts’ shown in paragraph 14 of this statement of claim.
7. About the month of March, 1986, by an agreement made between the plaintiffs and the defendant at the defendant’s head office/principal place of business at No. 40, Marina, Lagos, the parties entered into a ‘further contract’ under the terms of which the defendant as the ‘issuing bank’ of documentary credits agreed to open letters of credit for the importation of brewery raw materials for the specific purpose (known to the defendant) of enabling the 1st and 2nd plaintiffs to produce beer and soft drinks in sufficient quantities.
8. In order to achieve the objective of the said ‘further contract’ referred to in paragraph 7 above, and upon the specific and express written directions of the defendant,(as contained in those exchanges of correspondence particularised below), the parties further agreed that all Federal Government of Nigeria ‘Import Licences’ held in the name of, and available for use by any and all of the plaintiffs and other members of the OLORI GROUP OF COMPANIES should be utilized for the importation of brewery raw materials for the benefit of the 1st and 2nd plaintiffs. In the alternative it was understood that the 3rd to 6th plaintiffs shall import the brewery raw materials for sale to the 1st and 2nd plaintiffs at a profit of 15% of the production value. (Particulars are omitted)
9. At the material time, each of the 3rd-6th plaintiffs inclusive possessed all due and necessary governmental authority for the importation into Nigeria of various goods, being holders of those Federal Republic of Nigeria Import Licenses of which precise description details are given in the particulars of import licenses shown immediately below.

All the original import licences are with the defendant and it is hereby given notice to produce them. (Particulars are omitted) xxx

12. In consideration for, and as condition-precedent to issuing and establishment of the said ‘documentary credits,’ the defendant demanded and did receive from the respective plaintiffs the Nigerian currency value of the various credits to be established, and did further cause the respective plaintiffs to make ‘advance import duty payments’ in respect of all the goods sought to be imported under the various ‘contract for sale of goods referred to in paragraph 10 of this amended statement of claim, the said payments being in the respective equivalent amount shown in the ‘particulars of payments to the issuing bank’ (i.e. the defendant) shown immediately below.

All the original receipts of payments are with the defendant and it is hereby given notice to produce them in court. (Particulars are omitted)

13. By various ‘applications to purchase foreign currency’ (as in ‘Form M’) pleaded in the “Particulars of Applications to Purchase Foreign Currency’ shown immediately bellow, the respective plaintiff (as ‘the applicant’) applied to the defendant ( as ‘the issuing bank’) for foreign exchange allocation for payment for the importation of those goods to which the ‘contract of sale of goods’ pleaded in paragraph 10 refer, and their said applications were all granted and approved by the defendant on or about the 11th day of August, 1986.

All the original applications are with the defendant and it is hereby given notice to produce them in court (Particulars are omitted)

14. In pursuance of all those matters pleaded in paragraphs 6 -13 above, and upon the fulfillment by the respective plaintiffs of all the contractual obligations reserved as to their our part particularly referred to in paragraphs 6 and 12 above, the defendant – (as ‘the issuing bank’), did issue and establish ‘irrevocable letters of credit’ for the account of the respective plaintiffs (as ‘accreditors’) in the respective amounts, and in favour of those sellers/suppliers of goods and materials (as beneficiaries’) as shown in the particulars of letters of credit contracts immediately below.

All the original letters of credit are in the custody of the defendant and it is given notice to produce the original at the trial. (Particulars are omitted)

15. Subsequent to the issue and establishment of the said ‘letters of credit’, but before them could be utilized by the respective plaintiffs and the respective beneficiaries in whose favour they were issued, the defendant unilaterally repudiated the terms of the contract pleaded in paragraphs 6,7,8,12 and 13 of this amended statement of claim by canceling/procuring the cancellation of each and everyone of the letters of credit particularized above, in spite of the fact that ‘irrevocable letters of credit’ are in law incapable of cancellation or modification by issuing bank (including the defendant) and in spite of the plaintiffs’ written protests and warnings as to the loss and damage that would be occasioned to them in consequence of the defendant’s said act in breach of contract, and the defendant’s written assurances and undertakings to rectify the position. (Particulars are omitted)

xxx

23. In addition/in the alternative to the reliefs claimed by these plaintiffs in paragraph 27 below, the plaintiffs repeat the material averments of facts set out in paragraphs 7-22 above, and will contend at the trial of this action that the defendant has (their said act of cancellation of the letters of credit) interfered with (or prevented or hindered) the plaintiffs in the execution of all the contracts herein-before pleaded, and further, that the said interference was deliberate and furthermore, that the said interference was direct, and that the said unlawful interference with the plaintiffs in the due performance of all the said contracts has occasioned loss and damage to them, in consequence of which they claim to be entitled to the reliefs sought in paragraph 27 of this amended statement of claim.”

It would appear from the amended statement of claim that the main complaint of the appellants was that the respondent, after issuing letters of credit in favour of the former’s trade creditors, wrongfully cancelled same, thereby causing injury to the appellants which occasioned to them damage. They claimed as stated earlier above.

The respondent denied appellants’ claims and joined issues with them on their pleadings. In its further amended statement of defence, it averred, inter alia:

“5. The defendant avers that at the request of the 1st and 2nd plaintiffs, it made available to the two plaintiffs, (1st and 2nd) credit facilities which were fully utilised. The defendant shall rely on all material documents evidencing this averment at the trial of this action.

6. Further to paragraphs 4 and 5 above, the defendant further states that it granted loans and other facilities in the sum of N6.5 million (as regards the 1st plaintiff) and N1.2 million (as regards the 2nd plaintiff) respectively. The defendant shall found on all material documents evidencing this averment at the trial of this action.

xxx

9. As a result of the loans, advances and other credit facilities made available to the 1st and 2nd plaintiffs (which they fully drew and utilised) the said 1st and 2nd plaintiffs are substantially indebted to the defendant well in excess of N27 million (the current figures of which shall be made available at the trial of this action). The said indebtedness is subject of litigation as counter-claim in Suit No. W/259/89- Prince Morrisson Olori & 2 Ors. v. Union Bank of Nigeria Plc. & Anor. The co-plaintiffs in Suit No. W/259/89 are the 1st and 2nd plaintiffs herein.

xxx

11. The defendant denies paragraph 5 of the amended statement of claim and avers that it was neither aware of nor was it a party to any agreement or arrangement as stated in paragraphs 6, 7, 8, 12, 13 and 14 of the amended statement of claim.
12. With further reference to paragraphs 5 and 9 of the amended statement of claim, the defendant denies having reached any agreement, contract or further contract with the plaintiffs either individually or collectively whereby it was agreed that import licences issued in the name of one would be utilised by or for the benefit of any other company other than the company in whose name the import license was issued.
13. The defendant will at the trial rely on the express provision in the import licences which prohibit the making of such an arrangement.
14. The defendant denies paragraph 7 of the amended statement of claim and avers that there was no contract between it and the 1st and 2nd plaintiffs as alleged. The defendant denies paragraphs 9, 10 and 11 of the amended statement of claim and puts the plaintiffs to the strictest proof of the existence of the alleged import licences and contracts of sale and the conditions relating to such contracts of sale.
15. With reference to paragraphs 12 to 24 of the amended statement of claim, the defendant avers that there were negotiations between it and some of the plaintiff companies for the opening of letters of credit.
16. That consequent upon these negotiation and exchange of letters between it and some of the plaintiff companies, it (the defendant) by its letter of 25/7/86 addressed to the 1st plaintiff, agreed to register 1st plaintiff’s Form M with a view to the opening of a letter of credit if the following conditions are met:
17. Irrevocable undertaking to resume full operation of accounts in our books when production resumes with all sales proceeds paid direct to our branch.
18. Up-dating of repayment of liability in the name of Olori Motors & Co. Ltd. at our Mission Road branch.
19. Clearing of overdraft created as a result of loan repayment on Sparkling Breweries Ltd. and Olo Cold Drinks Nig. Ltd. accounts.
20. That inspection of properties mortgaged and those held on simple deposit is undertaken.
21. Payment of 30% import levy/tariff without increasing the current account overdraft.
22. 150% cash margin up-front to be held on a separate cash margin account.
23. Payment of import duty without increasing the current account overdraft.
24. A corresponding reduction to the loan (i.e N300,000.00 if the documentary credit is going to be for N300,000.00 exactly) separately and in addition to the normal monthly N130,000.00 repayment.
25. The defendant avers that none of the conditions listed above was complied with. The defendant denies the payment allegedly made by the plaintiffs on paragraph 12 of the amended statement of claim and also denies paragraph 13 in respect of the making of application to purchase foreign currency.
26. In the alternative to paragraph 17 hereof, the defendant avers if such payments were in fact made (which is denied), the payments made were in settlement of the indebtedness of the plaintiffs to the bank and/or were made subject to the fulfillment of the other conditions stipulated in defendant’s letter of 25/7/86.
27. The defendant denies the issuance of irrevocable letters of credit to the plaintiffs as alleged in paragraph 14 of the amended statement of claim and in the alternative, the defendant avers that if any letter of credit was issued (which is denied), it was issued subject to the conditions stipulated in paragraph 16 herein being met which conditions were never met.”

In summary, the appellants’ case is that sometime in March 1986, the 3rd – 6th appellants applied to the respondent for irrevocable letters of credit for the importation of hops and other raw materials for the use of the 1st and 2nd appellants. As a result of this, the respondent set out certain conditions (see exhibit 2) for the appellants to meet before the letters of credit were established – The appellants substantially complied with Exhibit 2 except conditions 2, 3 and 8 which they by Exhibit 3 asked the respondent to waive. The appellants stated that they entered into a further contract whereby the import licences of the 3rd – 6th appellants were to be utilised for the benefit of the 1st and 2nd appellants for the production of beer and soft drinks. According to the appellants, the profit accruing from this arrangement would be shared 15% to the holders of the import licences and the rest to defray the outstanding loan of the 1st and 2nd appellants, The appellants contended that the respondent eventually waived the remaining conditions, registered their Form M and processed the letters of credit which it later cancelled without any reference to them. The appellants tendered Exhibits 10, 10(a) and 10(b) as copies of the established letters of credit which the Chairman/Managing Director of the appellants took with him when he travelled overseas and he used in inducing their trade creditors as to payment to them and thus enabled him to secure from the creditors some quantities of hops. It is appellants’ further case that when they learnt of the cancellation of the letters of credit, they made several appeals to the respondent to reconsider the position and warned it of the attendant damages the cancellation would cost them. When the respondent would not yield, they instituted the action leading to this appeal.

The respondent, on the other hand, contended that the appellants failed to comply with all the conditions set out in Exhibit 2. The respondent further contended that if the facts were as claimed by the appellants, the right to sue did not lie in them but in their trade creditors. It finally contended that Exhibits 10, 10(a) and 10(b), that is the alleged letters of credit, were mere forms as they did not contain such details as the name of the corresponding bank that would transform the forms into valid letters of credit. It is the respondent’s case that the contract was not concluded.

The action proceeded to trial at the conclusion of which, the learned trial Judge, in a reserved judgment, found for the appellants and adjudged –

“On the whole plaintiffs’ claim as contained in their final endorsed statement of claim succeed and are hereby allowed with costofN2,000.00 to the plaintiffs.”

The learned Judge made the following findings of facts:

1. That the respondent waived conditions 2, 3 and 8 contained in Exhibit 2
2. That the letters of credit were established by the respondent.
3. That the appellants could maintain the action
4. That there was no transfer of import licences from the 3rd – 6th appellants to the 1st and 2nd appellants.
5. That the respondent was a party to the tripartite agreement between it on the one hand, 3rd – 6th appellants on the second part and 1st and 2nd appellants on the third part whereby the 3rd – 6th appellants as holders of import licences would use the same to import raw materials to be sold to the 1st and 2nd appellants to produce beer and soft drinks; the 1st and 2nd appellants were to pay to each of the 3rd- 6th appellants 15% of the total production value as profit to the latter and the balance was to be used to defray any indebtedness to the respondent.
6. That the respondent was in breach of contract.

On damages, the learned Judge made the following specific awards:

(i) N 17,104,700.00 loss of profit to 1st appellant.

(ii) N20,200,000.00 loss of profit to 2nd appellant.

iii) N32,355,000.00 to each of 3rd – 6th appellants.

(iv) The sum claimed for reactivating of the beer and soft drinks factories was allowed.

(v) N2.5 billion to 1st and 2nd appellants each to repurchase their crates.

The respondent appealed to the Court of Appeal against the judgment of the trial court both as to liability and damages. That court allowed the appeal, set aside the judgment of the trial court and dismissed appellants’ claims. The appellants’ cross-appeal on quantum of damages was dismissed. The Court of Appeal found that the findings made by the trial court were perverse and unhesitatingly set them aside. The court found the respondent not liable for breach of contract or for unlawful interference with appellants’ business.

On damages, the Court of Appeal found that the evidence was not sufficient or credible to support the awards made by the trial court and set aside these awards.

The appellants being aggrieved by the decision of the Court of Appeal have, with leave of that court, appealed to this court upon 9 grounds of appeal. In their written brief of argument filed pursuant to the rules of this court, they, however, formulated only two issues as calling for determination in this appeal, that is to say:

“(a) whether the Court of Appeal was right in reversing the finding of the lower court that the defendant/respondent unlawfully interfered with the business of the 3rd to 6th plaintiffs appellants and

(b) whether the award of damages made in favour of the 3rd to 6th plaintiffs appellants is sustainable in law”

All grounds of appeal not covered by these two issues are deemed abandoned and are hereby struck out. For the avoidance of doubt, these grounds are (i), (ii), (iii) (vii) and (ix). The respondent, in its own written brief adopted the two issues raised by the appellants. I shall now proceed to consider these two issues. Before doing so, however, I need to observe that these two issues relate only to the case of the 3rd-6th appellants. It follows, therefore, that the 1st and 2nd appellants are no longer pursuing the appeal. The appeal, as it relates to them is hereby dismissed.

At the oral hearing of the appeal before us, learned counsel for the parties adopted and relied on their respective briefs and offered no further submissions. This appeal, therefore, rests on the submissions in the written briefs.

ISSUE (a):

It is submitted in the appellants’ brief that the court below was in error in holding that a finding that there was no breach of contract equally absolved the respondent bank of liability for unlawful interference with the appellants’ business for the reason that the tort of unlawful interference with business can be established independently of contract or breach thereof. It is argued that in the case on hand the respondent instead of sticking to its guns not to open the letters of credit asked the appellants to resubmit their original documents. The respondent retained the import licences until they expired and could no longer be used. It is submitted that even as the court below held that the respondent was not in breach of contract when it failed to open the letters of credit, its conduct in frustrating the appellants from utilising the import licences through the opening of the letters of credit by other banks is tortious and amounted to unlawful interference with the appellants’ business. It is argued that respondent’s purpose in detaining the import licences could only be to injure the business of the appellants. The case of J. T. Stratford & Son Ltd. v. Lindley & Anor (1965) AC 269 and Clerk & Lindsel on Torts 16th edition at page 850 are relied upon in support of these submissions. It is further submitted that as there was no ground of appeal specifically challenging the finding of the trial court on the issue, the court below was wrong to have reversed the finding. It is urged that the finding ought to stand. Otuedon v. Olughor (1997) 9 NWLR (pt.521) 355; Ogunbiyi v. Ishola (1996) 6 NWLR (pt.452) 12 and Ijale v. Leventis & Co Ltd. (1959) SCNLR 255 are relied on.

This court is urged to hold that the claim for unlawful interference with business was made out.

For the respondent, it is submitted that by the pleading, evidence and address of learned counsel for the appellants at the trial, the alternative claim for unlawful interference with the business of the appellants was based on there being a breach of contract on the part of the respondent and as the court below had held that there was no breach of contract, the alternative claim collapsed and was rightly dismissed by the court below.

I have carefully considered the arguments advanced by both sides. It would appear that the appellants have changed their case in this court. Their case for damages for the ton of unlawful interference with their business is pleaded in paragraph 23 of their amended statement of claim, which for ease of reference I quote here again.

Paragraph 23 reads:

“23. In addition in the alternative to the reliefs claimed by these plaintiffs in paragraph 27 below. the plaintiffs repeat the material averments of facts set out in paragraphs 7 -22 above, and will contend at the trial of this action that the defendant has (their said act of cancellation of the letters of credit) interfered with (or prevented or hindered) the plaintiffs in the execution of all the contracts herein before pleaded. and further, that the said interference was deliberate and further more, that the said interference was direct, and that the said unlawful interference with the plaintiffs in the due performance of all the said contracts has occasioned loss and damage to them, in consequence of which they claim to be entitled to the reliefs sought in paragraph 27 of this amended statement of claim.” (Italics mine)

It is clear that this alternative claim of the appellants was predicated on the alleged breach of contract by the respondent for unlawfully cancelling the letters of credit established for the appellants. It was not their case that the retention of their import licences by the respondent was responsible for the collapse of their business. PW2, Prince Dr. Morrison Olori, the Chairman/Managing Director of the six appellants and their star witness, testified thus:

“The plaintiffs sued the defendant with whom they opened letters of credit and it cancelled the same which is law (sic) it (not) was allowed to do. The cancellation of the letters of credit made the whole business of the plaintiffs to collapse. The import licence expired before I was informed that the letters of credit had been cancelled and so, I could not utilise them. Before then, I had travelled to Europe and carried some of the import licence to show to the manufacturer who exported some to me which I used for a short period of time.” (Italics is mine for emphasis)

I may pause here to observe that the witness could not have been speaking the truth when he deposed that the ‘import license expired before I was informed that the letters of credit had been cancelled.”

This is so because in his letters of 17th September 1986 and 17th October 1986 (Exhibits 12 and 15 respectively) he was pleading with the respondent to reconsider its decision ‘to cancel’ the said purported letters of credit. In Exhibit 27 dated 26 September 1986 and written in reply to the letter of 17 September (Exhibit 12) the respondent wrote to the witness that ‘the matter has been reconsidered but the bank’s view has not changed.”

Later in his evidence the witness said:

“The plaintiffs have sued the defendant to court because it cancelled the letters of credit.”

Testifying further on the damages suffered by the 3rd-6th appellants, Chief Olori said:

“The 3rd – 6th plaintiffs suffered damages because the workers of these companies sued for their salaries and allowances as they were forced to close down as a result of the cancellation of the letters of credit and the plaintiffs paid N10 million to settle the staff of each of the 3rd – 6th plaintiffs. These plaintiffs also suffered the loss of profit of 15% of total production after sales, of the raw material imported on behalf of each of the 3rd -6th plaintiffs.

It is not his evidence that the business of the 3rd – 6th appellants collapsed as a result of the wrongful retention by the respondent of appellants’ import licenses that subsequently expired. In his final address at the trial, Mr. Nweze learned counsel for the appellants, as plaintiffs, submitted as hereunder:

“The plaintiffs also claimed for unlawful interference with their business. Counsel for the plaintiffs submitted that this claim was contingent on the defendant’s breach of contract and it was a claim in tort. Counsel then referred to the case J.T. Stratford & Son Ltd. v. Lindley (1965) AC 269 and Clerk & Lindsel on Torts 16th Edition page 850. Counsel contended that as a result of the interference the following facts had emerged namely that letters of credit were issued by the defendant but the seller was not notified; that at a point in time, the defendant withheld all the documents of the plaintiffs without which the plaintiff could not open letters of credit with another bank as stated by DW 1, the defendant kept the plaintiffs in suspense believing thinking that they would notify the seller and the plaintiffs continued to warn the defendant of the damage that it would cause and these warnings were unheeded until the import licenses expired. Counsel maintained that the above amounted to unlawful interference with plaintiffs’ business as they were calculated to injure them.’

In effect, learned counsel based the claim for the tort of unlawful interference with business on the alleged breach of contract. The learned trial Judge, in his judgment, said this of the claim for unlawful interference with business:

“Counsel for the plaintiffs also submitted that plaintiffs’ business was unlawfully, interfered with and gave reasons which have been enumerated supra.

The court is of the view that the plaintiff has also established this in view of the fact that there was no rebuttable evidence by the defendant.”

Again, it cannot be said that this verdict was based on unlawful retention of import licences, a fact that was not pleaded. In the light of all I have said above, appellants cannot now in this court base their claim in tort on the retention by the respondent of the import licences and their eventual expiration. That claim was based on the alleged breach of contract occasioned by the respondent cancelling the purported letters of credit. In my respectful view, Ayoola, JCA (as he then was) was on a terra firma when in his judgment he observed:

“Although the Judge purported to find the claim for unlawful interference established, it is clear that the alternative claim was predicated on there being a contract and a breach of that contract.”

I can see no merit in the appellants’ complaint against the learned Justice’s view. The tort, of unlawful interference with the business of another consists in one person using unlawful means with the aim and effect of causing damage to another. To constitute the tort the means used must be unlawful otherwise the tort is not established. As viscount Redcliffe put it in J T. Stratford & Soil Ltd. v. Lindley (supra) at pages 328 – 329 of the report:

“The case comes before us as one in which the defendants have inflicted injury on the plaintiffs in the conduct of their business and have resorted to unlawful means to bring this about. It cannot be denied that to induce breaches of contract is to employ unlawful means. If the defendants were within the protection of section 3 of the Trade Disputes Act their interference with their members’ contracts of employment would not in itself be wrongful or unlawful, but even so, the procuring of the breaches of the hiring contracts would be against them; and where, as here, there does not appear to be even a trade dispute in contemplation of which the defendants can be said to have acted, they have two sets of tortious or unlawful acts which the plaintiffs can pray in aid against them.”

In the case on hand, the Court of Appeal having held that there was no breach of contract (and this was the unlawful means relied on to ground the tort) it must necessarily follow that the alternative claim in the tort of unlawful interference with business must fail. This, in my respectful view, was the point being made by Ayoola JCA In his judgment.

Ayoola JCA’s further observation to the effect that-

‘The defendant has appealed against the “whole decision” which must include the Judge’s view on the alternative claim. It is evident that if there was no breach of contract and if the condition precedent to the performance by the defendant of any obligation has not been fulfilled, there would be no unlawful interference with business as the two claims were based on the same facts. The whole tenor of the appeal had been to challenge the basis of the whole decision. In the result, the consequence of allowing the appeal is to set aside the whole decision and substitute therefore an order dismissing the action in its entirety.”

has also come under attack for the reason that there was not before the Court of Appeal any ground of appeal challenging the finding of the trial court on respondent’s liability for the tort of unlawful interference with appellants business. It is urged on us to restore the trial court’s finding on liability for the said tort. The respondent (as appellant in the court below) in its amended notice of appeal filed 11 grounds of appeal the last of which read:

“Judgment is against the weight of evidence.”

In the appellant’s brief before the court below 4 issues were formulated as calling for determination, issues 3 and 4 of which read:

“3. Was the trial Judge right in law in holding that the defendant is liable to the six plaintiffs for breach in canceling the irrevocable letters of credit it issued in favour of the 3rd to 6th plaintiffs

If the answer to issue No.3 is in the affirmative, was the trial court right in making the various awards of damages it made in favour of the six plaintiffs”

It would appear to me that in the circumstances of this case Ayoola JCA was in order to observe, as he did, in the passage of his judgment under attack. This court, in NTA v. Anigbo (1972) 5 SC 156 decided that the omnibus ground of appeal postulates that “there was no evidence which, if accepted, would support the finding of the learned trial Judge or the inference which he had made.” See also Ali v. The State (1988) 1 NWLR (Pt.68) 1. That undoubtedly is the case here. There was no scintilla of evidence to support the trial court’s finding of liability on the alternative claim of the appellants.

I think this finding can be challenged on the omnibus ground of appeal. Ideally, though, it would have been more prudent if the appellants in the court below had raised a specific ground of appeal challenging the finding of liability on the alternative claim. The case of Otuedon v. Olughor (supra) relied on by the appellants is just not apposite to the present case. In that case, the two courts below had found that the defendants were bound by a documentary evidence tendered at the trial. That finding that they were bound by the evidence tendered was not appealed against on appeal to this court. There, I held that the defendants could not be heard to argue against that finding.”

In Ogunbiyi v.Ishola (supra), Onu JSC observed at page 23 of the report:

“Be it noted that where a party has not appealed against a finding of the trial court or the Court of Appeal, he cannot be heard to question that finding on appeal. See Ijale v.Leventis & Co. Ltd. (1959) SCNLR 255; (1959) 4 FSC 108, the essence of an appeal being, to have an opportunity to have one’s suit re-examined before a higher or independent panel with a view to convincing such a panel in its favour.”

I agree with this statement of law. In the circumstances of this case, however, where there was no evidence to support a finding made by the trial court, I think that finding can be challenged under the omnibus ground of appeal that the decision is against the weight of evidence.

In view of all that I have been saying, I answer question (a) in the affirmative. As the alternative claim was predicated on there being a breach of contract and that premises having been found not to be the case by the court below, the verdict of the trial court on that claim was rightly reversed by the court below.

Issue (b):

In view of the conclusion reached on issue (a), no useful purpose will be served by discussing this issue. The respondent was found not liable for breach of contract and for unlawful interference with appellants’ business. It is not necessary any longer to consider the issue of damages. Suffice it to say that the court below was right in its decision setting aside the award of damages made by the trial court. I affirm that decision.

In conclusion, I find no merit in this appeal which I dismiss with N10,000.00 costs to the respondent.

---

SC.113/1996

Ozo John Nwadiogbu & Ors V. Philip Nnadozie & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

This appeal is from a judgment of Uyanna J. (as he then was) sitting at Awka in the Awka Judicial Division of the High Court of Anambra State. In that court, the plaintiff claimed against the defendants jointly and severally the following reliefs:

“1. N60,000.00 special and general damages for trespass; and the plaintiff shall rely on receipts dated 5/1/78, 11/11/78 and 20/2/79 and document dated 2/1/78 in proof thereof.

2. Perpetual injunction to restrain the defendants, their servants or agents from further acts of trespass on the said land.

Particulars of Special Damage Cost of building ….. N20,000.00”

At the trial the plaintiff gave evidence as P.W. 3 and called three witnesses. Briefly the case for the plaintiff is that sometime in 1944 when he came home on leave as a soldier during the second world war he bought the land in question in accordance with the customary law of Enugwu-Ukwu from Umugagwo family of Oji village. He subsequently built a small house on the land. Thereafter he returned to his base as a soldier. On his discharge from the Army in 1947, he returned home. Later that year he went back to those who sold the land to him and demanded a receipt or some evidence in writing of the sale of the land to him. A memorandum of the sale of the land was then made out. The plaintiff at the trial, said he lost the original during the civil war. However that court admitted a photocopy of the memorandum as Exhibit “B”. He also tendered certain receipts in connection with the building allegedly demolished by the defendants. Also tendered in evidence were Exhibits “E” and “E1” being the photograph with negative of the said building before it was demolished. The demolition of the plaintiff’s house was the cause of action.

For the defendants, their case is that the land in dispute is the communal property of the Enugwu-Ukwu Community Development Union formerly known as Enugwu-Ukwu Progressive Union. It was their case that the land in question formed part of Ajo Ofia land of Oji Village, Enugwu’97Ukwu and it extends to the present compound of St. Anthony’s Parish Enugwu-Ukwu. They claim that in 1930, part of the land in dispute was granted to Mr. Brigid the District Officer by the Oji Community for the building of the Umunri Native Court House. In 1932, at Mr. Brigid’91s request the land was further extended. When the court was phased out in 1945 Mr. Brigid’91s successor sold the buildings and land which formed part of the land in dispute to one Richard Chinwuba Okafor of Enugwu’97Ukwu for the sum of ‘a360 and who in turn sold the land and buildings to the Enugwu-Ukwu Progressive Union for the sum of ‘a360. It is their case that on a part of the land so sold stands the Enugwu-Ukwu Post Office. This was further extended in 1962 for the construction of the Town Hall. The defendants denied that they trespassed on the land in dispute as alleged by the plaintiff.

In a reserved judgment, the trial court held that the plaintiff failed to establish his claim to the land in dispute. He also held that the plaintiff did not establish that the demolished house stood on the land sold to him by the Umugagwo family of Oji village, Enugwu-Ukwu.

The plaintiff’s appeal to the Court of Appeal was allowed. The plaintiff was awarded the sum of N50,000.00 in special damages, and the sum of N50,000.00 in general damages. The defendants, their servants, agents and/or privies were restrained from entering or carrying out any further acts of trespass on the land in question.

This appeal against the judgment of the Court of Appeal is by the appellants who were granted leave by this court on 20th October, 1997 to appeal as persons having interest in the matter.

The appellants formulated two issues for determination in this appeal. These are:

1. Whether, on the facts and circumstances of this case, the learned Justices of the Court of Appeal were right when they held that the plaintiff/appellant/respondent was entitled to the reliefs sought and awarded judgment to him in respect thereof.
2. Whether the learned Justices of the Court of Appeal rightly interfered with the findings of fact made by the learned trial Judge

For his part the plaintiff/respondent raised two issues which read as follows:

1. Whether the Court of Appeal was right in holding as it did that the land in dispute was properly identified by plaintiff/respondent in proof of his case in the High Court.
2. Whether the Court of Appeal was right in disagreeing with the conclusion the learned trial Judge finally came to in his judgment based on his evaluation and findings of fact.

I shall consider first, the appellants issue No. 1. The plaintiff’s claim is for trespass and injunction. It was argued for the appellants, that in a claim for trespass and injunction title is put in issue. The onus is on the plaintiff to plead and prove his title and/or exclusive possession of the land in question. Learned Counsel for the appellants relied on the following cases: Ekennia v. Nkpakara & Ors. (1997) 5 NWLR (Pt.504) 152; Okorie v. Udom (1960) SCNLR 326; Mrs. S.A. Kareem & Ors. v. David Ogunde & Another (1972)1 All NLR 75; Ojo v.Adejobi (1978) 3 SC 65; Talabi v. Adeseye (1973) NMLR 8.

It was pointed out that the plaintiff in paragraphs 8 and 9 of his further amended statement of claim pleaded that he purchased the land in dispute from Umugagwo family, Oji Village, Enugwu-Ukwu The defendants (2nd and 3rd respondents), it was said, vehemently denied the said averments in paragraphs 9 and 10 of their amended statement of defence and demanded strictest proof of same from the plaintiff.

It was submitted that the root of title pleaded by the plaintiff is defective in that he did not plead and prove the origin of the title of his vendors – that is Umugagwo family. It was submitted that this failure was fatal to the plaintiff’s claim with the result that the case of the plaintiff should have been dismissed summarily without calling upon the defendants to enter a defence as no prima facie case had been made out against them. Reliance was placed on the case of Aromire v. Awoyemi (1972) 7 NSCC 112, (1972) 1 All NLR (Pt. 101) (1972) 2 SC 1. The appellants further pointed out that this issue was raised both in the trial court and in the court below.

For the plaintiff/respondent it was submitted that the trial court effectively dealt with the issue of proof of the origin of the title of his vendors. The trial court held that there was no challenge to the title of Umugagwo family and therefore the contention that the plaintiff did not plead and prove the root of title of Umugagwo family is without legal basis.

It was pointed out that there was no appeal to the Court of Appeal against the finding that there was no challenge to the title of the Umugagwo family.

The law is now settled that in a claim for trespass to land and injunction, as in the instant case, title is put in issue. See Ekennia v. Nkpakara & Ors. (supra); Kponuglo v. Kodadja (1933) 2 WACA 24; Ajani v. Ladepo (1986) 3 NWLR (Pt. 28) 276. The onus in such a case is on the plaintiff to prove ownership and/or exclusive possession. He can do this in any of the five ways or methods of proving or establishing ownership of land as laid down by this court in Idundun v. Okumagba (1976) 9-10 SC 227. See also Onwugbufor v. Okoye & Ors. (1996) 1 NWLR (Pt. 424) 252 at 279-280.

The case of the plaintiff is that he purchased the land in dispute, from the Umugagwo family, Oji Village, Enugwu-Ukwu. In paragraphs 8 and 9 of his pleadings, the plaintiff averred how and when he purchased the land and his acts of ownership thereon. Paragraphs 8 and 9 read as follows:

“8. The plaintiff had been in undisturbed possession of the land since he bought it in 1944, at ‘a310 and customary incidents and as owner in possession he had exercised various acts of ownership over the same including building thereon, planting economic trees therein and reaping same without any let or hindrance.

9. The plaintiff purchased the said parcel or piece of land in 1944 in accordance with the customary law of Enugwu Ukwu from Umugagwo Family Oji village and this sale was later evidenced by a Memorandum in 1947. A photocopy of the said memorandum will be founded upon at the trial.”

The defendants on the other hand vehemently denied the plaintiff’s said averments in paragraphs 9 and 10 of their amended statement of defence which read as follows:

“9. The defendants deny paragraph 8 of the statement of claim and will at the trial put the plaintiff to the strictest proof thereof. Further that between 1964/65, some Oji people engineered by disgruntled Enugwu-Ukwu people, including the plaintiff trespassed on the land in dispute but was quickly rebuffed. Further the plaintiff and his group did not trespass on the land in dispute or raise any objection to the community project contemplated on the land in dispute till 1974.

10. The defendants deny paragraph 9 of the statement of claim and will at the trial put the plaintiff to the strictest proof thereof. Further the defendants aver that any memorandum of agreement produced at the trial by the plaintiff will be a forgery and an act done without authority:

(a) In that the said vendors have no authority to alienate land already vested in the Town Union;

(b) the contents of the said memorandum are hardly decipherable;

(c) that a photocopy of the same is not admissible by reason of the inter-lineations, cancellations etc:

(d) made for the purposes of the present action. In further answer to paragraph 9 of the statement of claim, the defendants aver that in 1974 when the foundation of the Town Hall on the land in dispute was laid by Osita Agwuna, Igwe of Enugwu-Ukwu, the plaintiff raised an objection, to the siting of the said Town Hall. The defendants will at the trial put the plaintiff to the strictest proof of the said memorandum in terms of its execution, and compliance with the requirements of the Lands Instruments Registration Law.”

Earlier in paragraphs 6 and 7 of the amended statement of defence, the defendants averred thus:

“6. As early as 1930, and in consonance with villages granting out lands to Divisional Officers or the Town’s Union for development project, Oji village in 1930 granted to Divisional Officer a Mr. A. W. Briggits, Divisional Officer in- charge Awka part of the land in dispute and particularly the present site of Nkwo (Enugwu-Ukwa) motor park where the said Divisional Officer erected thatched houses that housed the Umunri Native Court. Further the defendants aver that on or about 1932 in its expansion programme, the said Divisional Officer requested for more land and was granted by Oji village (as represented by its elders) other parts of the land in dispute, wherein more permanent buildings were erected. The said part of the land in dispute was the site of Umunri Native Court, quarters for court clerks etc where the latter notably Nnatuanya Nwabueze (deceased) cultivated lands surrounding lands granted to the said Divisional Officer. Nkwo Motor Park reverted to Oji village which now is the property of Enugwu Ukwu community,”

“7. Around 1945, when the native court members were phased out some of whom included Nwankwo Okwunka (deceased) from Awovu, Okeke Okoye deceased (from Akiyi) Nwaokonkwo Ezeuno (dead) from Enuagu, Ajegbu Mgbaka from Urunnebo and others, and its place a new court popularly known as Okachamma, represented by Isaac Okolo (deceased), then Paul Okeke Mba (deceased) then William Okafor (deceased) with the court now sitting at Abagana. Further on the cessation of court sessions in Enugwu Ukwu, Mr. Briggits’91 successor, sold the buildings standing on part of the land in dispute and the land to late Richard Chinwuba Okafor for ‘a360, Further that the latter in turn sold the land and the buildings thereon to Enugwu Ukwu Progressive Union for ‘a360 under the then Chairmanship of Fredenek Nkenke and G. C. Nwaafia as Secretary. Part of the land given to the Enugwu’97Ukwu Progressive Union stands the present Enugwu Post Office built by communal effort between 1962/63.”

The question to be resolved is whether the plaintiff should have pleaded the origin of title of his vendors i.e. Umugagwo family. It can be seen clearly on the defendants’ pleadings that there was no admission by them that the said land originally belonged to Umugagwo family, Enugwu-Ukwu. In other words, an issue has been raised as to the title of Umugagwo family. Two situations may arise. Where there has been an admission of the title of the grantor or vendor, as the case may be, it will suffice if the plaintiff pleads the document of grant or sale and produces them at the trial. Where however title is denied, then the onus is on the plaintiff to plead and prove the origin of the title of his grantor/vendor. In the present case, the title of the plaintiff’s vendor was denied. Thus, an issue had been raised as to the title of the Umugagwo family the plaintiff’s vendor. In these circumstances the origin of the Umugagwo family’s title has to be pleaded and proved by evidence. This, the plaintiff failed to do. In my judgment, this failure is fatal to the plaintiff’s claim. In Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745 at page 781-783 this court held as follows:-

“But it would be wrong to assume, as the learned trial Judge obviously did in this case that all that a person who resorts to a grant as a method of proving his title to land needs do is to produce the documents of grant and rest his case. Rather, whereas depending upon the issues that emerged on the pleadings, it may suffice where the title of the grantor has been admitted, a different situation arises in a case like this where an issue has been raised as to the title of the grantor. In such a case the origin of the grantor’s title has to be averred on the pleadings and proved by evidence. This is fatal to the plaintiff’s case.” (Italics mine).

The learned Judge was clearly in grave error when he held that:

” …. since there was no challenge to the title of PW1’s family and there could have been now the contention that the plaintiff did not plead and prove the root of title of P. W. 1’s family is without legal basis.”

I have already shown that the defendants denied paragraphs 8 and 9 of the plaintiff’s statement of claim wherein he averred that he purchased the land from Umugagwo family. The defendants also pleaded their root of title in paragraphs 6 and 7 of their statement of defence. They were therefore two parallel roots of title pleaded by the parties. An issue was therefore joined. Issues are said to be joined on the pleadings when an avermnent in opponent’s pleading has been denied or traversed. See Akaose & Ors. v. Nwosu & Ors. (1997) 1 NWLR (Pt. 482) 478; Lewis & Peat (N.R.I.) Ltd. v. Akhimien (1976) 7 SC 757. The learned Judge was in error when he held that this issue did not arise for determination.

The court below did not fare better in this regard. It made passing remarks in its judgment acknowledging the fact that the plaintiff’s title was rooted in purchase. It should have found from the pleadings and evidence before it that the plaintiff did not establish his claim to the land as required by law.

I now turn to the evidence of PW 1 Ugochukwu Okafor, a member of Umugagwo family that allegedly sold the land to the plaintiff. In his evidence under cross-examination this witness testified thus:

“It was not on the land sold to the plaintiff that Enugwu-Ukwu patriotic Union demolished a structure put on it. Our land is large; we sold portion of it to the plaintiff ….(Italics mine).

This piece of evidence is crucial to the claim of the plaintiff especially when it came from a member of the vendor family. It must not be forgotten that the cause of action in this case was the demolition of the plaintiff’s building. In paragraph 5 of the statement of claim the plaintiff averred thus:

“5. On or about the 31st day of March 1979, on Nkwo market day the defendants acting in concert unlawfully broke and entered a piece of land situate at Oji Village which is in possession of the plaintiff and damaged a house under construction verged yellow in plaintiff’s Plan No. MEC/175179 and also bulldozed many economic trees planted by the plaintiff. The said Plan No. MEC/175179 is filed with this statement of claim. The said land in dispute is clearly delineated and verged pink in the said plan.”

The evidence of PW 1 was to prove the alleged acts of trespass pleaded in paragraph 5 of the statement of claim reproduced above. This witness, as I have already shown, testified that:

“It was not on the land sold to the plaintiff that Enugwu-Ukwu Patriotic Union demolished a structure put on it….”

This witness knew what he was talking about. He is a member of the Umugagwo family that allegedly sold the land to the plaintiff. The proper order at that stage should have been one of dismissal of the plaintiff’s claim. In this regard, the trial court was justified when it held:

“It is strange but true that the PW 1 said that it was not on the land that his family sold to the plaintiff that the demolished building stood. Clearly this knocks bottom off the plaintiff’s case as regards his claim to the demolished structure he put on the land. The evidence of PW 1 is quite crucial on this point. … PW 1’s evidence is final on the point as to where the demolished structure stood. If this is so, then the plaintiff cannot succeed in his claim for damages for house demolished by the defendants.”

As I earlier indicated, the proper order after the evidence of PW 1 should have been one of dismissal of the plaintiffs’ claim. In a claim of this nature the onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defence will not help him, and proper judgment is for the defendant: see Mogaji v. Odofin (1978) 4 SC 91; Akunyili v. Ejidike (1996) 5 NWLR (Pt. 449) 381; Kodilinye v. Odu (1935) 2 WACA 336; Eboade v. Atomesin (1997) 5 NWLR (Pt. 506) 490. The plaintiff herein has clearly not discharged the onus placed on him. His claim must therefore fail.

ISSUE NO.2

In view of the conclusion I have reached on issue No.1 a consideration of the second issue becomes unnecessary. Suffice it to say that the findings of the learned trial Judge were amply supported by the evidence before him. The position of the law is this, that an appellate court should not interfere with the findings of the trial court unless the findings are not supported by the pleadings and/or evidence are perverse. See Olorunfemi v. Asho (1999) 1 NWLR (Pt. 585) 1; Lengbe v.Imale (1959) WRN 325; (1959) SCNLR 640. The court below was clearly in error when it disturbed the findings of fact by the trial Judge which were borne out by the evidence on record.

In the result this appeal succeeds. I allow it and set aside the judgment of the Court of Appeal, Enugu Division, dated 11th day of December, 1995. I award N10,000.00 costs to the appellants against the plaintiff/respondent.

---

SC.30/1997

Isong Akpan Udo Ebre & Ors V. The State (2001)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C.

The three appellants were arraigned on a one count charge for murder at the High Court of Justice, Akwa Ibom State presided over by Eka, J. At the close of evidence and addresses by counsel on both sides, the learned trial Judge, in a considered judgment, respectively convicted the appellants for murder and sentenced them to death, while he discharged and acquitted the 4th accused.

The appellants’ appeals to the Court of Appeal, Calabar Division were unanimously dismissed while the sentences of death passed on them were confirmed.

Still dissatisfied, the appellants have appealed to this court.

The facts of this case lie within a narrow compass and would be recapitulated hereunder. Sometime on 3rd April, 1990, at the Ekoi Ikot Nyoho village, two children aged between 8 and 9 years respectively, testified herein as PW 1 and PW3 that while playing in their compound with other children, saw the 1st appellant in the company of seven other persons, pushing a wheel barrow containing a fresh headless human being towards the direction of the forest.

The headless body had its dress on and intact. PW1 and PW3 ran inside their house and alerted their mother, PW2 who in turn ran out. On getting close to the said eight men, she saw the headless body in the wheelbarrow and recognised it as that of her brother, Ndarake Matthew Ndueso, now deceased. She fainted but was able to run to the bush where she lay unconscious till the next morning. She testified that she saw eight persons, including the 4th accused pushing the wheelbarrow on that fateful day, 3/4/90.

All the appellants and the other accused persons in their evidence flatly denied the charge. It was common ground that there was no eye witness to the murder who testified at the trial, consequently the convictions of the appellants were predicated solely on the evidence of PW1, PW2, PW3, including the testimonies of the two investigating Police Officers, who respectively testified as PW4 and PW5.

The three appellants respectively filed their briefs of argument in which they identified issues for determination. The 1st appellant’s (Isong Akpan Udo Ebre), two issues run thus:

“(a) Whether the appellant was properly connected with the commission of the offence of murder as to be found guilty and sentenced to death.

(b) Whether the circumstantial evidence before the trial court was of the quality of cogency and reliability required by law to ground a conviction for an offence of murder.”

On behalf of the 2nd appellant, three issues identified by his learned counsel run as follows:

“(i) Whether it was safe to have confirmed the sentence passed on the appellants on the same identification and other evidence which discharged and acquitted the 4th accused at the trial.

(ii) Whether the defence of the appellant (alibi) was properly considered.

(iii) Whether the case against the appellants was proved beyond reasonable doubt on circumstantial evidence.”

Finally, 3rd appellant’s learned counsel, formulated two issues, running as follows:

“(1) Whether the evidence, circumstantial or otherwise relied upon by the lower court was devoid of doubts as to be allowed to stand.

(2) What was the effect of Exhibit 6 which was expunged by the lower court”

For the prosecution, the learned Senior State counsel submits five issues for determination, which in his view, are comprehensive and sufficient to encompass the above three sets of issues for determination:

“(1) Whether the failure to mention the name of the 1st appellant by the PW2 to the Police at the earliest opportunity was fatal to the case of the prosecution in the face of other proven evidence.

(2) Whether the identification evidence which acquitted the 4th accused was the same with the evidence against the appellants.

(3) Whether the defence of alibi was properly raised by the appellants.

(4) Whether the circumstantial evidence against the appellants was strong and compelling to amount to proof beyond reasonable doubt.

(5) Whether Exhibit ‘c’ expunged by the Court of Appeal in any way weakened the case against the 3rd appellant.”

On close examination of all the issues for determination postulated by the parties and as they relate to each appellant’s appeal, on the one hand, and that of the prosecution, I think that the prosecution’s issues for determination are undoubtedly more comprehensive and sufficiently encompass the respective three sets of issues submitted by the appellants. I therefore prefer them for the purposes of considering the appeal, to the extent of the specific issues raised by each of the appellants.

Issue No.1

“Whether the failure to mention the name of the 1st appellant by the PW2 to the Police at the earliest opportunity was fatal to the case of the prosecution in the face of other proven evidence.”

This issue was one of the complaints of 1st appellant. It may be recalled that when PW2 made her extra-judicial statement to the Police, Exhibit 1, the name of 1st appellant was not included as one of the people she saw pushing the wheelbarrow containing the headless human body whereas when she testified in court she mentioned the name of 1st appellant and also vehemently insisted that she mentioned 1st appellant’s name in her statement, Exhibit 1 but was surprised that it was omitted in the said exhibit. The trial court also observed this discrepancy and dealt with it dispassionately, in my respectful view, during his evaluation of evidence. Strangely, while reviewing the evidence on appeal, Ekpe, JCA erroneously, in his leading judgment, stated that PW2 in her thumb-printed extra-judicial statement had mentioned all the names of the persons that she saw on the road at the time of the incident and this included Effiong Udo Ebre, the 1st accused, herein 1st appellant.

Chief Kola Babalola, learned counsel for the 1st appellant, submits that where an eye-witness, such as PW2, omits to mention at the earliest opportunity the names of persons she saw committing an offence, a trial court must be careful and wary in accepting her evidence given later which implicates the person charged, unless a satisfactory explanation is given; reliance is placed on Commissioner of Police v. Alao & Anor. (1959) WRNLR 55. In counsel’s final address on this issue, he urges that this issue be resolved in favour of the appellant because the appellant was not properly identified with the commission of the offence of murder. The learned Senior State counsel, C.J. Udoh, Esq., submits that despite the omission complained about, its effect is not fatal because PW1st and PW3 also testified that they recognized 1st appellant pushing the wheelbarrow containing the headless body of the deceased. The testimony of the PW3 also showed that the 1st appellant was at the scene where they saw the headless body in the wheelbarrow. Concluding, counsel submits that the authorities relied upon by the 1st appellant do not apply in the instant case.

I have given counsel’s submissions very close consideration. There is no doubt that the lower court was palpably in serious error when it took the view that PW2 mentioned 1st appellant in her extra-judicial statement. The time she was making the statement, indeed, was the earliest opportunity for her to recollect those things she saw, because at that stage all the facts of the incident, within her knowledge, were still fresh in her mind. PW2 was unable to offer any explanation for that omission though she insisted that she mentioned the name of the 1st appellant in her thumb-impressed recorded statement to the Police but surprisingly, this was not recorded by the Investigating Police Officer. The truth of the matter was neither here nor there. Undoubtedly, that piece of evidence was vital in order to implicate the 1st appellant with the commission of the offence charged. In the absence of any explanation forthcoming from the prosecution, the learned trial Judge declined, and rightly in my view, to speculate on this matter. Consequently, his Lordship discountenanced PW2’s evidence of identification of the 1st appellant. By this approach, the principle laid down in the earlier cases cited to the court and relied upon by learned 1st appellant’s Counsel in this regard, especially Abudu v. The State (1985) 1 NWLR (Pt.1) 55, a decision of this court, was strictly placed in focus and adhered to.

In any event, the identification of 1st appellant was also amply established by the evidence of PW 1 and PW3. Thus, dealing with 1st appellant’s identification, the learned trial Judge observed as follows:

“Notwithstanding this, it is still open to the court to determine from the record, if there is other evidence linking the 1st accused with the crime charged. Like PW 1, PW3 a boy of about 8 years, gave sworn evidence and was emphatic as to what he saw and those he knew. Even in cross-examination he was indefatigable in his stand despite the legal dart thrown by three seasoned defence counsel. He maintained that he saw 8 people pushing a headless body in a wheelbarrow. He recognised 5 of them whose names he gave among whom were the 4 accused persons. He also identified each of these accused persons by pointing at them and calling names.”

I am satisfied that in the absence of the discountenanced evidence of PW2 on the identification of 1st appellant as shown above, the testimonies of PW1 and PW3 provide sufficient evidence establishing the presence of the 1st appellant at the locus in quo and further establish 1st appellant’s participation in the commission of the offence charged. Accordingly, the authorities of Commissioner of Police v Alao (supra) cannot avail the 1st appellant. Furthermore, it has not been urged on us that this excusable slip or error by the lower court (but not the trial court) was of such gravity and magnitude that it has occasioned or was such as would occasion a miscarriage of justice that would lead to a reversal of the judgment of the lower court; vide Olubode v Salami (1985) 2 NWLR (Pt.7) 282.

In the circumstances, this issue must be resolved against the 1st appellant.

Issues Nos. 2 & 3

It is common ground that in each of the three appellants’ briefs their learned counsel have strongly submitted that the same benefit of doubt accorded to the 1st accused should have been given to the three appellants since the evidence against the three appellants was the same as that against the 4th accused. Each also contends that the three appellants were jointly charged and tried, and that since the evidence against the 4th accused was closely interwoven with and inseparable from that against the 4th accused then, since the court acquitted the 4th accused, the appellants ought also to be discharged and acquitted. The appellants relied on the Supreme Court decision of Abudu v. State (supra).

The learned Senior State counsel for the respondent has urged us to discountenance the appellants’ submissions in this regard because the case of the 4th accused was manifestly different and distinct from the case of the three appellants. First, not only did the 4th accused timeously raise his defence of alibi, he went further to furnish adequate and detailed particulars surrounding the said alibi. Second, the two investigating Police Officers, PW4 and PW5, failed to investigate the information furnished by the 4th accused. Counsel further submits that in the circumstances it cannot be said that the evidence surrounding the case against the 4th accused was inextricably interwoven and inseparable from those of appellants that the benefit of his discharge, should, of necessity, be extended to the appellants.

To avoid unnecessary repetition, I propose to consider Issues Nos. 2 and 3 together. First let us examine the defence of alibi raised by the 1st and 2nd appellants. The defence of alibi is popular and commonplace today in many criminal prosecutions. In essence, alibi, as a defence, simply put, seeks to establish that at all times material to the commission of the offence, the accused person was no where near the locus in quo and ordinarily, therefore, he could not be expected to be involved in the physical execution of the criminal offence alleged. Generally, the accused person raises the defence of alibi. However, where evidence placed before the court clearly demonstrates that the accused person seeks to rely on alibi, that defence cannot be denied to the accused person. Full consideration should be accorded to whatever plausible defence is relied upon by the defence as if it had been expressly pleaded or raised by the accused person. This is so because the court is obliged to give due consideration to a defence either raised by the accused person or arising casually or by the tenor of the evidence placed before the court once that evidence raises a reasonable doubt in the prosecution’s case.

Where the prosecution fails to investigate the defence or the court fails to examine or consider such defence and it is demonstrable that the failure would lead to a miscarriage of justice, then any order of conviction arising in the circumstance, would, on appeal, be quashed and substituted with an order of discharge and acquittal.

We must hasten to state quite clearly that the defence of alibi is not readily conceded with levity to the accused person seeing that when properly established it has the far-reaching finality of exculpating the accused person from complete criminal responsibility. To take advantage of this defence, the accused person must give a detailed particularisation of his whereabouts on the crucial day of the offence which will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any, transpired at the said time and place(s). Obviously, such comprehensive information furnished by the accused person must, unquestionably, be capable of investigation by the Police should they wish to do so. A fair-minded tribunal would have no other option than to exercise its discretion of doubt in favour of the accused person. Furthermore, such defence must be timeously brought to the attention of the Police by the accused person, preferably in his extra-judicial statement to afford the Police an ample time to carry out its investigation. For the accused person to raise the defence while testifying at his trial is to deliberately deny the prosecution its right and duty to investigate the defence. Such a ploy cannot avail the accused. See Gachi v. The State (1965) N.M.L.R. 333.

Conversely, where the defence of alibi consists of vague accounts which are simply placed before the court as mere make-believe of plea of that defence, and which are completely devoid of material facts worthy of investigation, the Police in the circumstance would least be expected to embark on a wild goose chase, all in the name of investigation. In such a situation, the court would have nothing before it to consider by way of alibi. For example, where the accused person in his extra-judicial statement stated that either that “he was not in town on that day” or that “he traveled to a neighbouring town or village – Awka”, and nothing more, no reasonable person would think that a serious plea of alibi has been made out. In other words, a general defence of alibi without sufficient facts to warrant an investigation is clearly porous and vague and cannot avail an accused person.

The 2nd appellant in his extra-judicial statement put across a defence of alibi and claimed that he went to Akampa on the day and further said that he could not remember the day of the killing, having accompanied his sister to Akampa for farming purpose. Furthermore, he said that he did not know about the death of the deceased. Be it noted that, for unknown reasons, this extra-judicial statement was not tendered in evidence. Of course, the legal consequence of failure to tender this statement in evidence is that the content of that document is no evidence and merits no further consideration in this judgment. Testifying on his behalf at his trial, after a complete denial of participating in the commission of the offence, the 2nd appellant deposed tersely:

“I was not in my village on 3/4/90 and I did not take part in the crime”

The above excerpt of 2nd appellant’s evidence was undoubtedly erected as a defence of alibi. It is very porous, and evasive. If in fact 2nd appellant was not in his village on the date of the incident it behoved him to state in clear terms where he was thereby establishing good basis for investigation by the Police, if they so wish. But on the contrary, the need for any meaningful investigation of the alibi was foreclosed by the 2nd appellant’s freak. It is the law that there is no duty on the accused to prove or establish his alibi once he has furnished particulars of his whereabouts lucidly to the Police; see Okasi v. The State (1989) 1 NWLR (Pt. 100) 642, (1989) 1 SCNJ 29 at 41 and Yanor v. The State (1965) 1 All NLR 193. In fact, once the accused has reasonably and sufficiently furnished information of his whereabouts on the date of the offence alleged, the burden shifts on the prosecution to disprove the defence of alibi sought to be raised by the accused.

As I had said earlier, the 2nd appellant’s defence of alibi was feebly canvassed. I am satisfied that having regard to what I have said about the short-comings of the circumstances of this case, the defence of alibi cannot avail the 2nd appellant.

The learned Senior State counsel ex cautela abundantia had submitted in his brief that the defence of alibi could not and ought not avail the 3rd appellant who said that he was at Calabar on the fateful day of the offence charged. It is worth noting that the 3rd appellant never canvassed this issue in his brief. That defence though raised by him at the lower court was not however pursued herein. It was, therefore, in my view, unnecessary and in fact did not deserve any further comment from the respondent. Indeed, since the 3rd appellant did not raise that issue, respondent’s reaction in respect of his alibi was baseless and must be discountenanced.

From the above, it is quite clear that although 4th accused was tried together with the three appellants, nevertheless the evidence of alibi that led to the discharge and acquittal of 4th accused was distinctly peculiar to the 4th accused’s case and could not, by any stretch of imagination, be said to be closely interwoven and inseparable from those of the three appellants. For example, the content of 4th accused’s narration of his whereabouts on that fateful day has no correspondence whatsoever with those of any of the three appellants. Perhaps, what is fair to be stated categorically is that the four persons were tried together, but the evidence led in respect of the defence of each of the appellants was unquestionably different from that led with regard to the 4th accused. With such divergence between the case of the 4th accused and those of the three appellants, it is erroneous and misconceived for the appellants to have relied on the Supreme Court decision in Abudu v. State (supra) because the facts and circumstances of that case are incomparable with those of the instant case. Accordingly, this authority cannot avail the appellants.

Therefore, without any equivocation, my firm conclusion with regard to issues Nos. 2 and 3 is that they are each separately resolved against 2nd and 3rd appellants.

Issue No.4

The question raised under this issue is whether the circumstantial evidence relied on by the trial and the appellate courts respectively was sufficiently cogent to support the convictions of the appellants in the sense that the prosecution could be said to have proved their case beyond reasonable doubt.

For the 1st appellant, it was submitted by his learned counsel that there was no cogent and compelling circumstantial evidence to lead to the irresistible conclusion that 1st appellant was either the murderer or one of the murderers of the deceased. It is counsel’s submission that the evidence of PW2 which was found unsatisfactory and led to the discharge and acquittal of 4th accused, and accordingly, the evidence of the very same witness ought not to be relied upon for founding any circumstantial evidence to ground appellant’s conviction.

For the 2nd appellant, it was simply submitted that the case against him had not been proved beyond reasonable doubt on circumstantial evidence, because there remained many loopholes and gaps in the prosecution’s case.

Finally, on behalf of the third appellant, his learned counsel similarly submitted that since the evidence of PW1, PW2 and PW3 were at variance with regard to the number of the accused persons that they saw conveying the headless person in a wheelbarrow on the day of the incident, their divergent evidence ought not to be relied on as satisfactory circumstantial evidence in holding that the prosecution have discharged their heavy burden of proof against the appellant. Counsel further submitted that PW1, PW2 and PW3 generally contradicted themselves in their evidence and were therefore not credible witnesses whose evidence could be relied on as basis for the conviction of the appellant, more so as it is predicated on circumstantial evidence.

In his reply on behalf of the respondent, the learned Senior State counsel submitted that the prosecution tendered a high quality circumstantial evidence to sustain the conviction of the appellants. Barring the evidence of PW2 which was under heavy fire that led to the discharge and acquittal of the 4th accused, nevertheless, part of the evidence of that witness was accepted by the learned trial Judge particularly with regard to the scene where the wheelbarrow was being pushed by the appellants. He submitted that the fact that the learned trial Judge disbelieved part of that witness’s evidence did not render the whole of his evidence unacceptable; reliance was placed on the authority of Ekanem v. The King (1950) 13 WACA 108. Counsel further contended that even if the evidence of PW2 was rejected completely there remained the evidence of PW1 and PW3 which was enough to secure the convictions of the appellants. Finally, counsel submitted that on the whole the prosecution witnesses produced sufficient circumstantial evidence that was strong and irresistible to prove the guilt of the appellants beyond reasonable doubt. He urged that we should so hold.

It is common ground in this serious trial for murder that there was no direct eye-witness account of the heinous act but the learned trial judge reached his verdict relying on circumstantial evidence. It was a curious case where the prosecution pressed for conviction for murder of the three appellants of the headless deceased victim. No doubt, an accused person can be convicted for murder where every thing points to the accused as the murderer but so long as the evidence in support of the conviction is not only cogent, complete and unequivocal but compellingly lead to the conclusion that the accused and no one else is the murderer. Thus in R. v Onufiejczyk (1955) 1 Q.B. 388; 39 Cr. App. R 1, it was held that the fact of death is provable by circumstantial evidence even though neither the body or any trace of the body has been found. Circumstantial evidence is nothing more than evidence of surrounding circumstances which by their very nature are capable of establishing a proposition, such as the criminality of an accused person with the highest exactitude. One hastens to add, as cautioned by Lord Normand, delivering the Address of the Judicial Committee of the Privy Council (which also included Lords Oaksey and Tucker) in the appeal of Teper v. R (1952) AC 480 from the Supreme Court of British Guiana:

“Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another …. It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

See also Igho v. The State (1978) NSCC 166, (1978) 3 SC 87.

I find the above excerpt from Teper v. R most helpful for it warns the court of the danger inherent in acting on what one often regards as circumstantial evidence in securing a conviction. Such convictions are invariably set aside when properly tested on appeal. A classic example is Stephen Ukorah v. The State (1977) 4 SC 167. Appellant was convicted of murder predicated on what the trial court tagged circumstantial evidence. The evidence placed before the court of trial was that the appellant beat up the deceased with his fists on the night preceding the deceased’s death. That witness also testified that he ran away from the scene for his own safety while the appellant was beating the deceased and only returned the next morning to that same place to observe that the deceased’s body had a deep cut.

Neither was evidence tendered about the manner the deceased sustained that injury nor was there any medical evidence establishing the cause of death. On appeal to the Supreme Court, the appellant’s conviction was set aside, the court having first stated as follows:

“What has to be established is the link between the appellant (or his actions) with the death of the deceased, and in the absence of clear unequivocal evidence:

(1) that the deceased died directly from the assault by the appellant on him, or

(2) that the appellant was armed with any sharp instrument during the assault on the deceased, it becomes necessary to have a medical evidence on the cause of death so as to eliminate the problem raised by the existence of a long deep cut on the body of the deceased. And until that problem is eliminated we are of the firm view that it must be very unsafe to convict for murder as charged on the circumstantial evidence available.

The Supreme Court, per Idigbe, J.S.C., in rejecting to act on the circumstantial evidence which had favour at the trial court, reasoned thus:

“From the foregoing facts it is, we think, pretty clear that the circumstances surrounding the death of the deceased given in evidence when accepted (as, indeed they were by the trial court) do not make such a “complete and unbroken chain of evidence” as would justify a jury (or a trial court) in coming to the irresistible conclusion that the prisoner at the bar (in this case) the appellant and no one else was the murderer.”

A similar approach was applied by this court to set aside the conviction of the appellant in Valentine Adie v. The State (1980) 1-2 SC 116 at 122.

It is clear from the above cases considered herein that it is the surrounding circumstances that decide whether the circumstantial evidence sought to be relied on is consistent or not with the guilt of the accused, ensuring always that there are no other co-existing circumstances which would weaken or undermine such inference. The fact that there was no positive testimony of eye-witnesses should not be raised to cast aspersion on the quality of circumstantial evidence once such evidence is cogent and unequivocal, and leads one to infer and establish either the accused’s innocence or any missing ingredients of the offence with which the accused is charged.

In the case on hand, the three star witnesses, namely, PW1, PW2 and PW3 did not testify to eye-witness account of the beheading of the deceased. Nevertheless, they gave lucid accounts of the persons they saw which included all the accused persons and others not prosecuted. They further described the accused persons’ involvement in pushing the wheelbarrow containing the headless body of the deceased towards an unknown destination. Obviously, the incriminating testimonies of these witnesses called for some explanation from the appellants with regard to how they came in possession of the headless body of the deceased, far beyond their mere denials of killing the deceased and their miserable efforts to set up the defence of alibi, which were both rejected by the learned trial Judge. Strangely enough, no such explanation was forthcoming. I am clearly of opinion, that the only other reasonable and irresistible inference from the surrounding circumstances presented by the evidence which was accepted by the trial court, is that the appellants killed the deceased.

It remains to deal briefly with two points raised in counsel’s submissions: first the attack made by the appellants generally on the evidence of PW2. The serious dent on her testimony was her failure to name the 4th accused expressly as one of the persons she saw on the day of the incident pushing the wheelbarrow and yet, at the trial, when the events were no longer as green in her mind, she was able to name him. We should only refresh our minds and recall that the learned trial Judge partially rejected her evidence of identification of the 4th accused person. This, I think, was correct. This led to the 4th accused’s discharge and acquittal. It has been urged on behalf of the appellants that it was not open to the trial court to choose and pick with regard to the testimony of PW2, rather that it ought to have rejected PW2’s evidence in its entirety. I do not think that it was necessary for the trial Judge to go to that length. After all, it was only on one aspect of PW2’s testimony that the trial Judge, on evaluation, found some doubt to accept PW2’s testimony. It was therefore open to him to disbelieve that portion of the witness’ testimony without that fact prejudicing the rest of PW2’s evidence that was neither challenged nor called in doubt. In my view, it was open to the trial Judge to believe and act on the rest of the unaffected evidence. In any event, even if the entire evidence of PW2 was discountenanced, there remained sufficient evidence from PW1 and PW3, whose testimonies were not discredited and nothing has been urged on us to show that there has been a miscarriage of justice to warrant this court to allow the appeal. See Ekanem v. The King (1950) 13 WACA 108.

I am satisfied that the Court of Appeal, on the evidence before it, was perfectly entitled to reach the same conclusion as the trial court that the circumstantial evidence was sufficiently cogent and irresistible for confirming the convictions and sentences of death imposed on the appellants. I on my part have not the slightest hesitation in reaching the same conclusion that the circumstantial evidence as presented in the instant case is cogent, unequivocal and compellingly irresistible in proving the appellants’ guilt beyond reasonable doubt.

The second point is the submission made on behalf of the 2nd appellant that the prosecution’s case was badly weakened by ‘loopholes and gaps. I must confess that I am completely at sea with regard to this submission. I would have thought that the strength of such submission would command some force if the ‘loopholes and gaps’ sought to be relied upon are spelt out. That obviously would afford the court the opportunity to have a second hard look on that complaint. Clearly, to denigrate the quality of the prosecution’s case as being worthless in terms of being shrouded in ‘loopholes and gaps’, without more, is merely to beat about the bush. In my view, that line of submission remains merely attractive but inconsequential in so far as counsel fails to develop the complaint(s) in terms of specifics. In other words, there is no material placed before the court to enable it decide fairly on counsel’s submission. With respect, I see this submission as mere ranting that has not advanced appellant’s case one bit.

All in all, I resolve the fourth issue against the appellants.

Issue No.5

The fifth and last issue concerns only the third appellant. It is his contention that his conviction by the trial court was based on Exhibit 6 – an apparent confession – which the Court of Appeal expunged after observing as follows:

“It is correct therefore to assume that he, meaning the trial Judge had made up his mind to admit Exhibit 6 Willy-nilly irrespective of objection by counsel for the 3rd appellant.”

In the view of appellant’s counsel, all considerations leading to the conviction of appellant were based on Exhibit 6 (i.e. the confessional statement) while the 3rd appellant’s first extra-judicial statement, Exhibit 2, was mentioned only casually. An excerpt of the judgment of the trial Judge, according to Counsel, bears this out:

“It is my view therefore that the 1st accused like the 3rd accused was neck-deep in the planned killing of the deceased and I accept that they were among those not seen pushing his decapitated body in a wheelbarrow for burial in the forest away from Ikot Idim Esa shrine where, according to 3rd accused in his Exhibit 6 the head had been buried.”

Counsel submits that with Exhibit 6 expunged, there was no longer any credible evidence to fall back on which would sustain the conviction of the appellant by the trial court, and consequently the Court of Appeal was not in any position to affirm the conviction of the appellant.

Responding, the learned Senior State Counsel submitted that even with the exclusion of Exhibit 6 there remained Exhibits 2 and 2A which equally confirmed 3rd appellant’s participation in the killing of the deceased. Concluding, the learned Senior State Counsel submitted that when the evidence of PW1, PW2 and PW3 is also brought in support of Exhibits 2 and 2A, the evidence in support of appellant’s conviction would be overwhelming and conclusive.

Reading the record as closely as I have done, it is certainly clear that the evidence of the chief prosecution witnesses, i.e. PW 1, PW2 and PW3, did not spare the third appellant with regard to his criminality in the murder of the deceased. Exhibits 2 and 2A made his involvement overwhelming so that with or without the exclusion of Exhibit 6, the trial court was entitled to reach a decision convicting the third appellant as charged. The Court of Appeal, in turn, cannot be said to be wrong in confirming the appellant’s conviction in the face of such overwhelming evidence adduced by the prosecution. I, myself, I have not the least hesitation in holding that the evidence on which the third appellant was convicted and sentenced established his guilt to the hilt, with or without Exhibit 6.

Having resolved all the issues predicated on the grounds of appeal against the appellants severally, it follows that the appeals fail. Accordingly, the appeals are hereby dismissed for lacking in merit.

---

SC.59/2000

A. Ogunkunle & Ors V. Eternal Sacred Order Of The Cherubim And Seraphim & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

The plaintiffs (1st and 2nd respondents in this appeal) brought an action in the Federal High Court Lagos originally against the 1st to 11th defendants for themselves and on behalf of other persons falsely claiming to belong to the “Eternal Sacred Order of the Cherubim and Seraphim of No. 75, Ibadan Street, Ebute-Metta. Lagos, Lagos State Jointly and severally for:

“I. INJUNCTION restraining the defendants, their followers, agents, servants and any other of their associates from parading themselves as members, officers and/or agents of ETERNAL SACRED ORDER OF THE CHERUBIM AND SERAPHIM, and from using or answering to the name of ETERNAL SACRED ORDER OF THE CHERUBIM AND SERAPHIM.

2. INJUNCTION restraining the defendants jointly and severally whether by themselves or by their servants, licencees, followers, officers or any of their associates whomsoever from continuing to trespass on the property of the Eternal Sacred Order of the Cherubim and Seraphim situate at and known as No. 75 Ibadan Street, East Ebute-Metta, Lagos and at No. 75 Odunfa Street, East, also at Ebute-Metta aforesaid and any other properties belonging to the plaintiffs wherever situate upon which they are now trespassing, or from making use of any other properties belonging to the plaintiffs wherever situate upon which they are now trespassing, or making use of the said premises without the consent and authority of the plaintiffs.
3. SURRENDER and return to the plaintiffs of all monies, documents and properties of the plaintiffs in their possession or custody by virtue of their trespass on the plaintiffs’ property.”

Pleadings were exchanged with the 1st and 2nd respondents as plaintiffs, filing their statement of claim, the 1st-3rd. 5th-7th defendants (now 3rd to 6th respondents) filing their statement of defence on the one hand and the 4th. 8th-11th defendants (the appellants) filing their own statement of defence on the other with a counter- claim.

Subsequently the 12th-15th respondents joined in the suit as co-defendants by their own application whereby they obtained leave of the Federal High Court “to defend this action for themselves and on behalf of other persons who worship at the Eternal Sacred Order of Cherubim and Seraphim of No. 75 Ibadan Street (East) EbuteMetta, Lagos, Lagos State.”

As I have already indicated. the original set of defendants were split into two represented by separate counsel. But later they were represented by Mr. Kehinde Sofola. SAN, leading Chief B.A.Adeeko continued to represent those defendants, but the separate statements of defence which they had filed remained on record. Mr. Adejuyigbe appeared for the second set of defendants.

On the 1st August, 1990 the plaintiffs filed the terms of settlement. The record shows that on the 3rd August, 1990, Mr. Akesode, counsel for the plaintiffs/respondents reported to the court that the case had been amicably settled and terms of settlement signed by all the surviving defendants except four of them, three of whom are the present appellants. Both Chief Adeeko and Mr. Adejuyigbe respectively confirmed the report and agreed on behalf of their respective clients that consent judgment be entered as per the terms of statement filed. The learned trial Judge adjourned the matter to 25th October, 1990 to enable the appellants consider the matter.

On 24th of October, 1990 the appellants brought an application for an order to set aside the order made on the 4th of July, 1990 joining the second set of defendants. On the same say the plaintiffs/ respondents filed a notice of discontinuance against the present appellants. It would appear that Mr. Agbebi the fourth of the dissenting defendants had, by that time, died.

When the matter came on again on 25th October 1990, Chief Adeeko intimated the court that he was “going to make an application” to withdraw his appearance for the present appellants but that he would still have to make a formal application. Later, he was more direct in his intention to withdraw his appearance. Mr Fashanu then announced his appearance for the appellants. Both Mr. Awodein and Mr. Akesode objected to the appearance of Mr. Fashanu. The learned trial Judge then ruled that Mr. Fashanu had no “locus” at that stage of proceedings. He proceeded to hear counsel then on record as appearing for the parties on the notice of discontinuance as it affected the terms of settlement filed.

After hearing counsel for the parties, the Judge entered judgment against the “defendants as per the terms of settlement dated 24th day of July, 1990 and filed on the 1st August, 1990, except the 4th, 9th and 10th defendants.” He then excused Chief Adeeko from further appearing for the appellants. He thereafter proceeded to strike out the appellants’ motion of 24th October, 1990.

The appellants’ appeal to the Court of Appeal was dismissed.

They have further appealed to this court.

The plaintiffs/respondents and the defendants-respondents were also dissatisfied. They have filed a cross-appeal challenging the jurisdiction of the Court of Appeal to entertain the appeal.

In view of the nature of the cross-appeal I think it is desirable to consider it first. This is because if the cross-appeal succeeds, then the main appeal without more fails for want of jurisdiction in this court.

The cross-appellants have submitted the following issues for determination in this appeal:

“1. Whether the Court of Appeal had jurisdiction in the circumstance to entertain the defendant/appellants’ appeal.

2. Assuming without conceding that the Court of Appeal had jurisdiction to entertain the appeal:

(a) whether the learned Justices of Appeal were right in considering the effect and validity of

the notice of discontinuance, when there was no appeal on those points before the court.

(b) whether the learned Justices of appeal had the jurisdiction to consider and determine any issue

whatsoever relating to the notice of discontinuance when there was no appeal on the issue.”

For their part, the appellants-cross-respondents have adopted the two issues raised by the cross-appellants.

ISSUE NO.1

This issue questions the competence of the appellants to appeal from a consent judgment which had specifically excluded them from the effect of the judgment. It further questions the jurisdiction of the Court of Appeal to entertain the appellants’ appeal to that court.

For the cross-appellants it was pointed out that the lower court, suo motu, invited all the parties to address it on the question:

“whether the appellants are competent to appeal from the consent judgment which had specifically excluded them from the effect of the judgment.”

After the address of learned counsel for the parties, the court below in the course of its judgment answered the question in this way:

“At the end of the day the conclusions which reasonably follow in all the circumstances of the case are that the appellants effectively ceased to be parties to the action at the time the consent judgment was entered in the case; the consent judgment was not binding on them by reasons of the fact and also because they were specifically excluded from its operation. The position being thus, it is doubtful if the appellants were competent to bring this appeal”

Without making any consequential order on the above finding and pronouncement the lower court proceeded nonetheless to consider the appeal on its merits and subsequently dismissed the same. It was submitted that the lower court was obliged as a matter of law to conclude that it had no jurisdiction to entertain the appeal. The appeal being incompetent, should have been struck out.

For the appellants-cross-respondents it was submitted that the issue posed suo motu by the lower court as to the competence of the appellants to appeal against the trial court’s decision did not arise out of the ground of appeal filed before the lower court and so did not arise in the appeal at all as it was not raised by any of the parties to the appeal. It was argued that since the point was not raised by the respondents the lower court should not have dabbled into it. For this contention, learned counsel for the appellants-cross-respondents relied on the case of Popoola v. P.A.G.D. (1972) 11 SC 49 at 64. It was further argued that what the court below said i.e. “it is doubtful if the appellants were competent to bring this appeal” is not an unequivocal finding against them as to their competence to bring the appeal as it is ex-facie an expression of doubt and the appellants could not be expected to appeal against such a non-finding or none-decision.

Lastly it was submitted that whatever be the effect of the lower court’s view, having found that there was a breach of fair hearing, it was incumbent on the lower court to get on with the appeal notwithstanding any technical road blocks. For this submission the appellants- cross-respondents relied on the case of Nnajiofor v. Ukonu (1985) 2 NWLR (Pt.9) 686.

The question to be resolved in this appeal is: Who has the right of appeal from the decision of the High Court Section 220, 221 and 222(a) of the 1979 Constitution as amended deal with the issue of the right of appeal from judgments of the Federal High Court. Whereas sections 220 and 221 deal with the nature and type of decisions that are appealable as of right or with leave, section 222(a) deals with what categories of persons can actually exercise that right of appeal as guaranteed by sections 220 and 221.

The material portion of section 222(a) of the 1979 Constitution as amended provides as follows:

“222 Any right of appeal to the Federal Court of Appeal from the decisions of a High Court conferred by this Constitution-

(a) Shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with

the leave of the High Court or Federal Court of Appeal at the instance of any other person having

an interest in the matter…….. ” (Italics for emphasis)

One does not need a magnifying glass to see that the existence of a decision affecting a party is a condition precedent to the existence of a right of appeal and indeed the exercise of any such right of appeal by that party.

The right of appeal conferred by the Constitution is a right against the decision of a court adversely affecting a party. It therefore goes without any argument that for a person to claim any right of appeal as envisaged, that person must show that the decision of the court is against him or against his interest.

In the present case, the plaintiffs/cross-appellants filed a notice of discontinuance against the present appellants on 24th October 1990. The material part of that notice reads:

TAKE NOTICE that the plaintiffs in this suit hereby wholly discontinue this action against the 4th, 9th and 10th defendants.”

The following day 25th of October, 1990 the Judge “entered judgment against the defendants, as per the terms of settlement dated 24th day of July, 1990 and filed on the 1st August 1990, except the 4th, 9th and 10th defendants.”

Discontinuance of suits is provided for in Order 43 rule 1 of the Federal High court (Civil Procedure) Rules in the following terms:

“(1) If before the date fixed for hearing, the plaintiff desires to discontinue any suit against all or any of the defendants, or to withdraw any part of his claim, he shall give notice in writing of discontinuance or withdrawal to the registrar, and to every defendant as to whom he desires to discontinue or withdraw. After the receipt of such notice such defendant shall not be entitled to any further costs with respect to the matter so discontinued or withdrawn than those incurred up to the receipt of such notice, unless the Court otherwise orders, and such defendant may apply ex parte for an order against the plaintiff for the costs incurred before the receipt of such notice and of attending the court to obtain the order. Such discontinuance or withdrawal shall not be a defence to any subsequent suit.

(2) If in any other case the plaintiff desires to discontinue a suit or to withdraw any part of his claim, or if a defendant desires to discontinue his counter-claim, or withdraw any part thereof, such discontinuance or withdrawal may be allowed on such terms as to costs, and as to any subsequent suit and otherwise as to the court may seem just,”

A discontinuance, in my view, brings the action or that part of the action as is discontinued to an end against the defendants or such of them against whom the action has been discontinued without further intervention from the court.

The judgment of the trial court was against the defendants except the 4th, 9th and 10th defendants. It was a consent judgment which specifically excluded the present appellants. This is so because the action against them had been earlier discontinued. The consequence of a consent judgment is that it cannot and does not bind a person who is not a party to it either directly or by representation. What is more as at the time judgment was given, the appellants had ceased to be parties to the suit. The lower court was right when it held:

” …the appellants effectively ceased to be parties to the action at the time consent judgment was entered in the case; the consent judgment was not binding on them by reason of the fact and also because they were not parties thereto; and, they were specifically excluded from its operation.”

(Italics mine) .

The effect of this is simple. The appellants had no right of appeal to the Court of Appeal. At that stage the Court of Appeal should have struck out the appellants’ appeal to that court for want of jurisdiction.

In the result, the cross-appeal succeeds and I allow it. Accordingly, I strike out the appeal of the appellants to the Court of Appeal. The appeal of the appellants to this court is thereby rendered incompetent. It is also accordingly struck out. I award N10,000.00 costs to the cross-appellants against the appellants.

---

SC.192/1997

Samson Babatunde Olarewaju V. Afribank Nigeria Plc (2001)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

The plaintiff Samson Babatunde Olarewaju brought this action at the High Court of Justice Maiduguri presided over by Kolo, C.J. In the action he claimed the following reliefs:

(a) Determination that the defendant’s letter dated 11th March, 1993 addressed to the plaintiff titled ‘dismissal’ is incompetent, illegal, void and of no effect whatsoever.

(b) That the defendant be ordered to reinstate the plaintiff to his former post.

(c) That the defendant be ordered to pay all arrears of salaries and entitlement due to the purported dismissal.

(d) That he be promoted to bring him at par with his mates.

(e) An injunction restraining the defendant from dismissing the plaintiff without just cause.

(f) The cost of the suit.

(g) In the alternative to paragraph (b) payment of the sum of six hundred thousand Naira (N600,000.00)only as general damages to the plaintiff by the defendant for wrongful dismissal of the plaintiff from the service of the defendant on or about the 11th March, 1993

I would like to observe that after the plaintiff had closed his case and the defendant opened its own, the plaintiff amended his statement of claim on 15th December 1993 by adding paragraph “g” as appeared above. I would observe also that the plaintiff did not give or lead further evidence as regards sub-paragraph “G” after the amendment was granted.

At the end of the trial, the learned Chief Judge in a reserved judgment found in favour of the plaintiff. The learned C.J. concluded thus:

“It is my view, therefore, that the plaintiff’s employers made a serious mistake and took a calculated risk when they ventured to dismiss the plaintiff without first having the plaintiff arraigned for the serious offences of fraud and have his guilt established in a law court. Such dismissal in my view cannot stand the test of the time as it is a nullity. I also declare the dismissal of the plaintiff a nullity and consequently a judgment for the plaintiff with costs. I assessed the costs at N1,000.00 (One thousand Naira) in favour of the plaintiff against the defendant bank.”

The learned C.J. proceeded to make the following orders:-

“1. I order that the plaintiff be re-instated by the defendant bank forthwith.

2. I order that his salary be restored and the arrears of his salaries from the date of the dismissal to the date of this judgment be paid forthwith.
3. This judgment notwithstanding the defendant bank is free to revive the issue of criminal prosecution and urge the Police to prosecute all those suspected of the alleged fraud in respect of the said sum of 3 million Naira. ”

The defendant was dissatisfied with the said decision of the High Court. It appealed to the Court of Appeal. The Court of Appeal allowed the appeal and set aside the judgment and orders of the trial court. It declared:

“The appeal is meritorious and is hereby allowed. The summary dismissal of the respondent is valid and subsisting as it is justified. The respondent’s claim stands dismissed.”

Aggrieved by the decision of the Court of Appeal, the plaintiff has appealed to this court upon nine grounds of appeal. The plaintiff shall hereinafter be referred to as the “appellant” and the defendant shall be referred to as the “respondent”.

The appellant formulated six issues for determination in this appeal. These read:

“1. Whether the failure of the Court of Appeal to consider at all the submissions of the appellant’s counsel in the brief filed on behalf of the appellant before the court below did not lead to a breach of his right to a fair hearing and led to a miscarriage of justice.

2. Whether the dismissal of the appellant was done in accordance with the agreement between the parties and the rules of natural justice to have entitled the court below to disagree with the trial court that the dismissal of the appellant was not done in accordance with the law.
3. Whether the Court of Appeal was obliged to consider and decide on points that were not decided by the trial court that is whether the Court of Appeal could decide on purely academic and hypothetical issues that did not arise from the judgment of the trial court.
4. Whether the allegations of fraudulent practices, banking irregularities and other serious allegations made against the appellant by the respondent are such matter that can be dealt with domestically when the allegations either singly or taken together import commission of criminal offences cognisable under Nigerian penal laws and whether the respondent abandoned the allegations of fraudulent practices levied against the appellant.
5. Whether the Court of Appeal was right to have disallowed the order of reinstatement of the appellant once the trial court came to the conclusion that the dismissal was null, void and when there would be nothing to sustain the continued dismissal of the appellant.
6. Whether the court below could base its decision on the collective agreement made between a trade union and the respondent when the appellant was not a party thereto nor was it shown that the agreement was made for his benefit.

For its part, the respondent raised three issues for determination.

These read as follows:

A. Whether the several acts of appellant constituting operational banking malpractices, operational banking irregularities and dishonest practices are synonymous with “fraud” in its strict criminal sense.

B. In the alternative that the appellant committed “fraud” in its strict sense, whether the respondent was not at liberty to dismiss him in view of the contents of Exhibits “C”, “W” and “Y”.

C. Whether the collective agreement Exhibit “W” was binding on the parties.

I prefer the issues formulated by the respondent. They are not verbose and they go straight to the issue in controversy. I shall therefore consider this appeal on the basis of the respondent’s issues, which will be treated together.

The relevant facts are these. The appellant was an employee of the respondent. He was employed on 12th January, 1982. He rose to the rank of a Deputy Manager.

In November 1992 he was suspended from duty on some allegations of fraud, embezzlement of money and sundry allegations. Before suspension however the appellant was queried in writing. He answered the query. He subsequently appeared before the senior staff disciplinary committee of the respondent. The committee submitted its report to the Management of the respondent. By a letter dated 11th March, 1993 the appellant was dismissed. The appellant went to court and instituted this action against the respondent at the Maiduguri High Court, claiming the relief earlier on set out.

Issues A, B and C.

Issue A poses the question whether the several acts of the appellant constituting operational banking malpractices, operational banking irregularities and dishonest practices are synonymous with “fraud” in its strict criminal sense. It was argued for the appellant that the various allegations made against him in the pleadings of the respondent and evidence led by its witnesses, constitute offences under sections 308,310, 311, 314, 315, 323, 324, 325 and 362 of the Penal Code. It was said that the appellant could be prosecuted under any of these sections of the Penal Code law applicable to Borno State.

DW1, DW2, DW3, DW4, and DW5, it was pointed out, were unanimous in their testimonies that the acts for which the appellant was dismissed led to a loss of over 3 million Naira to the respondent. The respondent in its pleadings described the acts as “fraudulent.” To underscore the nature of the allegations, it complained to the Police which in turn arrested the appellant and others. The Police intimated that at the end of the investigation they would prosecute them.

It was the submission of the appellant that in this kind of setting, the respondent should have stayed all actions until after the completion of the criminal prosecution of the appellant. What the respondent did amounted to putting the cart before the horse.

It was also submitted that the dismissal of the appellant while criminal investigations were going on, on the allegations, was clearly ultra vires the respondent and therefore unconstitutional. For this submission counsel for the appellant relied on the cases of Garba v. F.C.S.C (1988) 1 NWLR (Pt.71) 449. It was argued that the commission of crime was not only in issue in this case. It was also the cornerstone of the defence of the respondent. It was the reason that led to the dismissal of the appellant.

For the respondent, it was conceded that the respondent as defendant at the High Court, pleaded among others “fraud” in its statement of defence. That notwithstanding, no evidence was led on fraud. It is trite law that facts pleaded in respect of which no evidence was led go to no issue. The case of Honika Sawmill Nig. Ltd. v. Hoff (1994) 2 NWLR (Pt.326) 252.

The respondent, however, had in addition pleaded operational banking malpractices and dishonest practices committed by the appellant. The respondent argued that it led evidence which conclusively proved the commission of operational malpractices and dishonest practices by the appellant. See the evidence of D.W1, D.W.2, D.W3, DW4 and DW5.

It was said that on the evidence before the court, it will be seen that the actions of the appellant while in the employment of the respondent could be referred to as operational banking malpractices, operational banking irregularities, operational banking deficiencies or dishonest banking practices. The fact that one call them fraudulent acts does not envisage “fraud” as conceived in criminal law. It was argued that the respondent did not allege commission of a particular criminal offence known to law by the appellant.

It is now settled law that where a person is accused of a criminal offence, he must first be tried in a court of law where the complaints against him will be examined in public and where he will get a fair hearing as set out in the Constitution. Where the dismissal of a servant is based on a criminal charge or allegation, such allegation must first be proved before the dismissal can stand. See Garba v. University of Maiduguri (1986) 1 NWLR CPt.18) 550; Olaniyan v. University of Lagos (1985) 2 NWLR CPt.9) 599.

In the instant case, Exhibit “D”, the letter of dismissal, did not contain any reasons for the dismissal of the appellant. Put simply, the letter did not make any allegations of a criminal nature against the appellant. The cases of Garba v. University of Maiduguri (supra) and Anakism v. U.B.N. Ltd. (1994) 1 NWLR CPt.322) 557 relied upon by the appellant and the trial court are not relevant to the circumstances of the present case. They are distinguishable from it. In Garba’s case a particular criminal offence known to law was committed while none was committed in the instant case. In Anakism’s case, there were no such written and express terms of employment as in the present case that gives the respondent a discretion to either dismiss before or after criminal prosecution.

On the evidence before the trial court, the appellant was clearly guilty of banking malpractices, irregularities and dishonest practices. But these do not constitute any offence known to law. And although the respondent pleaded “fraud” in its statement of defence, no evidence was led on “fraud”. The position of the law is clear. Facts pleaded in respect of which no evidence was led go to no Issue.

On the other hand “irregularity” and “malpractice” do not constitute offences known to our criminal law. These have been defined at pages 762 and 667 of the Chambers’ 20th century dictionary 1983 edition respectively as follows:

“irregularity” a rough place or bump on an even surface; an instance of action, behaviour, etc not conforming to rules or regulation.” And “malpractice” an evil or improper practice; professional misconduct; treatment falling short of reasonable skill or care; illegal attempt of a person in position of trust to benefit himself at others loss.”

In any event the appellant was not accused of irregularity or malpractice in his letter of dismissal. The letter did not state any reasons for his removal. In master and servant class of employment, the master is under no obligation to give reasons for terminating the appointment of his servant.

Generally employments fall into three categories, viz;

(a) master and servant;

(b) A servant holds an office at pleasure;

(c) employment that is governed by statute.

See Ridge v. Baldwin (1964) A.C. 40 per Lord Reid; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599. Both parties agree that the present case does not fall within the third class. It is not a case where the tenure of office of the servant is governed by statute. It is also common ground that the present case is one of master and servant.

The law regarding master and servant is not in doubt. Under this class of employment there cannot be specific performance of a contract of service. The master has the power to terminate the contract with his servant at any time and for any reason or for none. However, if the master does terminate the contract in a manner not warranted or provided by the contract, he must pay damages for breach of contract. So as Lord Reid said in Ridge v. Baldwin (Supra): “So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract.”

What this means is this. In this class of cases an officer’s appointment can lawfully be terminated without first telling him what is alleged against him and hearing his defence or explanation. Similarly an officer in this class can lawfully be dismissed without observing the principles of natural justice.

I shall now attempt to relate the facts of the present case to the contract governing the parties. The appellant as plaintiff pleaded in paragraphs 3, 4, 5, 6 and 7 of the amended statement of claim as follows:

“3. The plaintiff’s employment with the defendant is governed by the regulations and procedural agreement as well as the Main Collective Agreement between the Nigerian Employer’s Association of Banks, Insurance and Financial Institution, terms and conditions of service as incorporated in Part II (section 1) of the said collective agreement.

4. The plaintiff had since his confirmation of appointment been promoted, trained, transferred and/or served in various branches of the defendant, the Maiduguri branch inclusive as his last place of posting.
5. The defendant by its letter dated 17th November, 1992 suspended the plaintiff from duty and by a further letter dated 11th March, 1993 dismissed the plaintiff from its employment in flagrant departure from the provisions of the said collective agreement. Both letters of suspension and dismissal shall be relied upon at the trial of this suit.

The plaintiff states that although he was suspended from duty by the defendant pending final investigation of operational malpractices the outcome of the investigations were not communicated to him up to the time of filing this suit.

6. The plaintiff will contend at the trial of this Suit that his dismissal is void, incompetent and unconstitutional.”

In reply to the plaintiff’s averments, the defendant pleaded in paragraphs 2, 2B 2C, 2F, 2G, 2H, 3, 5 and 7 of the further amended statement of defence as follows:

2. The defendant admits the averment in paragraph 5 of the plaintiff’s statement of c1aim only to the extent that the employment relationship was governed by the terms and conditions contained in the ‘MAIN COLLECTIVE AGREEMENT’ between the Nigerian Employers Association of Banks, Insurance and Allied Institutions and Association of Senior Staff of Banks, Insurance and Financial Houses. This main collective agreement is hereby pleaded. The plaintiff is put to the strictest proof of other allegations contained in paragraph 5 of the statement of claim.

2A. That the defendant was formerly known and called International Bank for West Africa Limited (IBWA).

2B. The defendant avers that by an internal General Memorandum No. 157 dated 18th October, 1991 addressed to all Senior Staff and copied to all Board members, Management staff, Area Managers and Branch Manager of the defendant the Senior Assistant General Manager of the defendant (Mr. Charles Ugboko) communicated the new agreement reached on summary dismissal. The memo is hereby pleaded and shall be relied upon at the trial of this case.

2D. The defendant further avers that consequent upon the issuance of the query and the reply referred to in paragraph 2C above, the plaintiff was suspended from duty.

The defendant’s letters both dated 16th and 7th January, 1992 suspending the plaintiff from duty are hereby pleaded and shall be relied upon at the trial of this case. The plaintiff is hereby given notice to produce the original copy of the query letter at the trial of the case.

2E. The defendant further avers that the cash debt advices Nos. 2964 and 2685 dated 21/5/91 No. 4845 dated 29/7/91 No. 0271 dated 2/3/91 and No. 1276 dated 20/11/ 90 signed by the plaintiff which were over and above this cash authorised limit are hereby pleaded and shall be relied upon at the trial of this case.

2F. The defendant avers that the report of the senior staff disciplinary Committee dated 16th and 17th November, 1992 which investigated the Auno fraud is hereby pleaded and shall be relied upon at the trial of this case.

2G. The defendant avers that further to paragraph 2(D) above, the plaintiff was downgraded in rank after his suspension. The defendant’s letter downgrading the plaintiff dated 10th January, 1993 is hereby pleaded and shall be relied upon at the trial of this case. The plaintiff is hereby given notice to produce the original copy of the letter at the trial of this case.

2H. The defendant avers that on or about the 15th May, 1992 the Maidugri branch of the defendant communicated to all its staff by way of an internal mail the authorized cash limits for the branch as regards all staff of the branch and the Auno sub-branch. The said internal mail numbered 001 and dated 15th May, 1992 was signed by the then Branch Manager Y.I. Jahun and the plaintiff himself. The said mail will be relied upon at the hearing of this case. The plaintiff is hereby given notice to produce his original copy at the trial of this case.

3. The defendant denies the averment contained in paragraph 6 of the plaintiff’s statement of claim and states that the plaintiff was duly communicated with the decisions and outcome of the investigations and deliberations of the defendant’s disciplinary committee which directly indicted the plaintiff of perpetration of the fraud. All correspondences, letters and documents that exchanged between the parties are hereby pleaded, particularly;

(a) Letter ref. NIU 03/IIJ/JAO/299/92 dated 6th July, 1992 addressed to the plaintiff,

(b) Letter dated 14th July, 1992 addressed to the plaintiff

(c) Letter ref: NCA/03/AU/SC0333/92 dated 17th November, 1992 addressed to the plaintiff,

(d) Letter ref. CU/DES/OFO/IRSO/0529 dated 11th March, 1993 addressed to the plaintiff.

The defendant hereby gives the plaintiff notice to produce all original copies of the aforesaid letters written to him.

4. The defendant denies the averments contained in paragraphs 7, 8 and 9 of the statement of claim and puts the plaintiff to the strictest proof of the allegation contained therein.
5. The defendant states that the plaintiff was duly interviewed by the investigative panel set up to investigate the said fraudulent transactions and he was accorded an opportunity of defending himself and the outcome of the investigation was duly and effectively communicated to the plaintiff.
6. The defendant further states that it was consequent upon the findings of the senior staff disciplinary committee that the plaintiff’s employment was terminated.
7. The defendant states that all opportunities were given to the plaintiff to defend himself and he unsatisfactorily failed to offer reasonable explanations as regards the commission of the irregularities and fraud.

At the trial the defendant called evidence to justify the dismissal of the plaintiff. DW4 Simeon Chinedinma Okeraofor testified at p. 21 of the record thus:

The plaintiff was a staff of the bank. He was a senior staff up to 1993 when he was dismissed from the services. He was the Deputy Branch Manager.

There was operational mal-practices at our Auno sub-branch which is supervised by Maiduguri main branch. The bank lost a lot of money as a result of the mal-practices. Many informal advices were signed without being backed by the necessary instrument i.e. cheque. Transactions were carried out when the customers in question have no money in their accounts. By internal advices I mean debts and credits. It is a transaction between the sub-branch and the main branch. The plaintiff signed some debit advices which were above his limits. His limit is N15,000. The branch manager and his deputy supervise the Auno sub-branch. There were five advices that were signed in excess. Out of the five one was signed by the plaintiff alone while the remaining four were signed by the plaintiff and the supervisor at Auno. I know the plaintiff’s signature and anywhere I see his signature I can identify. I worked at Maiduguri for 10 years. I worked up to December 1990. The plaintiff was at the Maiduguri branch when I was working at Maiduguri. There are four advices out of the five I have been mentioning. One was missing. It is an advice for N145,000. It was dated 2nd March, 1992. It is the advice signed by the plaintiff alone. We searched for the original of the advice dated 2nd March 1992 but could not locate it. If I see a copy of the advice in question I can identify. This is the copy of the advice which is missing.

DW4 continued as follows:

“The limitation of N15,000 is in connection with issuance of cheque. On advice he has no limit. The cheques he authorised are in the bank. In the cheques he authorized he exceeded his limit. An advice can be accepted or rejected. Any document signed by the plaintiff is binding on the bank. For white copies of Exhibit YI- Y6 were sent to Lagos for computer system. The Maiduguri branch sent the whole ones for computer system.

The dismissal letter was signed by Mr. D.B.Sosu, Senior Principal Manager Personnel and by Charles Ugboko Deputy General Manager. Human Resources Manager, Charles Ugboko was a member of the committee which investigated the involvement of the plaintiff in the financial mal-practices. All the members of the committee are staff of the defendant. Each was invited to defend himself in the absence of the other. The plaintiff was not taken to court. In 1993 he was not taken to court. He was dismissed for signing customer’s cheques when there is no sufficient fund. The accounts are bad. I worked with the plaintiff before and I am familiar with his handwriting. A staff of the branch filled in the forms and he signed the forms. Some were terminated some were dismissed and some were confirmed. The kano branch had a manager. He is a junior staff and whatever action he is going to take must be approved by either the manager or his deputy. The Deputy Manager is answerable to the Manager. If the sub-branch wants to withdraw money from the main branch it would have to be through advice. This cannot be possible without the signature of the authorised officer. The authorised officers are the Manager and his deputy. The Manager of the sub-branch who raises the advice would sign one portion while the Manager of the main branch or in his absence his deputy would sign the other portion. When the main branch raises advice on Auno branch the Head of the particular department that raised the advice would sign and the Manager or his deputy would sign the other portion. Exhibit Y1, Y2, Y3 and Y5 emanated from Maiduguri main branch to Auno sub-branch. Exhibit Y4 originated from Auno to Maiduguri main branch. The advices honoured. Money was released. The one which bears only one signature is Exhibit Y4 which emanated from Auno to Maiduguri. The document was signed by the plaintiff and the amount involved is N226,200. It was supposed to have been signed by the Auno branch manager. He can sign up to that amount in the absence of the manager. The rest exhibits namely: Y1, Y2 and Y3 were signed by Haruna Yakubu and countersigned by the plaintiff. Exhibit Y2 was signed by one other officer and countersigned by the plaintiff. Hafuna Yakubu is an authorised signatory. The person who signed Exhibit Y2 is a signatory.

The advices as they are were in order. Exhibit Y4 is not in order. Drafts were issued to the customers. The customers who withdraw cash from the main branch were not having money in their accounts at Auno. A cheque drawn by Auno customer of sub-branch would first of all be approved by the sub-branch manager but before money is released it has to be signed by a manager as his deputy. The Manager has no limit on accounts that have money. On customers account money would only be withdrawn through issuance of cheques and approval of the same. Mallam Yahaya Jahun was the Manager. There are many advices involved. The total amount involved in that branch was about N3.2 million.

DW3 Baba Mohammed Rufai was the Branch Manager of the respondent bank. After giving evidence-in-chief this witness was recalled. He testified as follows:

“I testified for the defence on 1/3/94. I am a branch manager and being a branch manager I am the representative of the management. The Manager has no limit. He can sign any amount where there is money in the account. Where there is no money in the account the manager can only lend out up to N25,000.00. Where there is money in the account the Deputy Manager is limited to N45,000.00. Where there is no money it is only the Manager who can decide this. Deputy Manager has no power on this matter. The limitation changes from time to time. In May 1992 the Manager has no limit while his deputy is limited to N15,000. Where there is no money the Deputy Manger has no power. I do not know the limitation in 1990 but it could not be higher than that of 1992.

Auno branch is a sub-branch. It is not possible to register an inter branch advice without the same being supported by a cheques or teller. In the instant case the cheques which accompanied the advices in question were destroyed as they were signed by Abdul-Wahab while the advices were counter-signed by the plaintiff. He counter signed and he also disbursed the money.

It is clear to me from the evidence led by the respondent that the appellant committed banking malpractices, irregularities and dishonest banking practices. The question to be resolved however is whether the contract of service empowered the respondent to dismiss any servant who is guilty of malpractices, irregularities, and dishonest practices.

In this regard it is imperative to examine the provisions of Exhibit “Y” tendered at the trial by the appellant. I must point out here that the respondent equally tendered a copy as Exhibit “C”. The said Exhibit “Y” (or “C”) is an addendum to the senior staff main collective agreement tendered and marked as Exhibit “W” which is not exhaustive. Both Exhibits “Y” and “C” read as follows:

“International Bank for West Africa Ltd.

AFRIBANK

IBWA

General Memorandum

18th October, 1991

GENERAL MEMORANDUM NO-159

PERSONNEL NO.32

TO: ALL SENIOR STAFF

SUBJECT: SENIOR STAFF COLLECTIVE AGREEMENT.

This is to inform all Senior Staff that on the intervention of the industrial arbitration panel, an agreement has now been reached on the subject “summary dismissal” which previously was not agreed upon as evident on page 9 of the revised Senior Staff collective agreement. For easy reference, and based on the industrial arbitration panel award, we re-produced below what shall now come under the dispute part II (section 1) Article 4 (iv) of the main collective agreement between NEALI AND ASSBIFI.

This should now be regarded as part of the Senior Staff main collective agreement.

PART II (SECTION 1)

ARTICLE 4 (IV) SUMMARY DISMISSAL

a. An employee may be summarily dismissed for certain acts of gross misconduct. Such acts include proven case of:

i. Theft, fraud, dishonesty, defalcation and irregular practices in respect of cash, vouchers, records, returns on customer’s account and foreign exchange transactions;

ii. willful disobedience of a lawful order or serious negligence.

iii. drunkenness or taking drugs other than for medical reasons, rendering the employee unfit to carry out his or her duties.

iv. intentionally divulging confidential information in breach of any “declaration of secrecy.”

v. conviction for a criminal offence;

vi. prolonged and/or frequent absence from work without leave or reasonable cause;

vii. fighting and assault or engaging in disorderly behaviour during working hours on the office premises or within its immediate surroundings;

viii. deriving any benefit in the course of his official duties which places him in such a position that his personal interest and his duty to the employer or to any customer or the employer are in conflict;

ix. failure to report promptly any irregularity on the part of any other employee after having knowledge of such irregularity;

x. abusive or insulting language or behaviour to any client which is prejudicially to the business interests of the employer; and

xi. any other offences which may be agreed upon between the association and the Union from time to time.

b. Where an offence has been committed which merits summary dismissal but where the member company does not exercise its prerogative of dismissal “a first and last” or a “second and last” warning letter may be issued and the fact that the warning is a final one will be made clear in the letter.

c. Before either summary dismissal or warning letter is effected, the employee shall be given a written query and afforded the opportunity of defending himself in writing except where the employee has absconded.

AFRIBANK NIGERIA LIMITED CHARLES UGBOKO

SAGM (HUMAN RESOURCES MGT. T.R.G.)

CC: MANAGING DIRECTOR

EXECUTIVE DIRECTORS

DEPUTY GENERAL MANAGER

SNR. ASST. GEN. MANAGERS

ASS. GEN. MANAGER

SNR. PRINCIPAL MANAGERS

BRANCH MANAGERS.”

It will be observed from the contents of Exhibits “Y” and “C” that there are 11 categories of grounds pursuant to which any member of staff can be summarily dismissed by the respondent. The one relevant in the present case is category (i). It seems to me clear that the actions or conduct of the appellant could constitute

(i) fraud, or

(ii) dishonesty or

(iii) irregular practices in respect of cash, vouchers, records, returns on customer’s account and foreign exchange transactions.

We must bear in mind that the present case is one of master and servant with written and express terms of employment. Where therefore an employee has been found guilty by a disciplinary committee of any of the gross-misconducts highlighted above, the master has a choice either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily as in the instant case. In other words prosecution before a court of law, in the circumstances, is not a sine qua non for summary dismissal. This court in the case of Alhaji Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR (Pt. 457) 632; (1996) Delta State Law Report (Pt.1) 31 per Wali, J.S.C. held thus:

“It is not necessary, nor is it a requirement under section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality, I may go further to say that the provisions of 33 (supra) have no application to the facts of this case.”

As I have already indicated, the parties are bound by the agreement i.e. the collective agreement which were both pleaded and tendered in evidence as Exhibits “W”, “Y” and “C”. The issue to be

resolved is strictly whether the summary dismissal of the appellant is in keeping with the contract between them. Exhibit “D” is the letter of dismissal dated 11th March 1993. It reads:

“CU/DBS/OFO/IRSW /0529/93

11TH March, 1993

Mr. S.B. Olarewaju (3260 D)

Afribank Nigeria Plc,

Maiduguri Branch,

Maiduguri.

Dear Sir,

DISMISSAL

Please be informed that with immediate effect, your services with the Bank are no longer required. You are hereby DISMISSED.

You are requested to surrender all the Bank’s property in your possession including your identity card and unused cheque leaves to the Manager (Maiduguri branch). Also clear the balance in your account ’35’ before your final departure.

Your indebtedness to Afribank Nigeria Plc as at February, 1993 will be communicated to you.

Yours faithfully,

Afribank Nigeria Plc

(SGD) (SGD)

D.B. SOSU CHARLES UGBOKO

SENIOR PRINCIPAL MANAGER DEPUTY GENERAL MANAGER

(PERSONNEL) (HUMAN RESOURCES MANAGEMENT)

CC: CHIEF INSPECTOR

SAGM (NORTH WEST & ABUJA)

AREA MANAGER (NORTH WEST) KADUNA

MANAGER (MAIDUGURI BRANCH)

HEAD – PERSONNEL SERVICES

” MANPOWER PLANNING & DEVELOPMENT

” COMPUTER UNIT.”

No reason was given for the dismissal of the appellant. As I stated earlier on in the course of this judgment, the master can terminate the contract with his servant at any time and for any reason or for none. The letter of dismissal did not allege the commission of crimes known to our law against the appellant and for which he was dismissed. The court cannot go outside the letters of Exhibit “D”

But if the master terminates the contract with his servant in a manner not warranted by the contract, he must pay damages for breach of contract. The remedy is in damages. The court cannot compel an unwilling employer to re-instate a servant it has dismissed. The exception to the general rule is in cases where the employment is especially protected by statute. In such cases the employee who is unlawfully dismissed may be re-instated to his position. See Olaniyan v. University of Lagos (supra); Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40.

Finally, I must stress that the present case is not one governed by statute. It does not therefore fall within the class of cases such as Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40; Olaniyan v. University of Lagos supra. Further discussion here on contracts governed by statute will serve no useful purpose.

In the result, this appeal fails and is dismissed. I affirm the decision of the Court of Appeal given on 18th April 1996. The respondent is entitled to costs which I assess at N10,000.00.

---

SC.109/96

Olanrewaju V Afribank Plc (2001)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C. 

The plaintiff Samson Babatunde Olarewaju brought this action at the High Court of Justice Maiduguri presided over by Kolo, C.J. In the action he claimed the following reliefs:

(a) Determination that the defendant’s letter dated 11th March, 1993 addressed to the plaintiff titled ‘dismissal’ is incompetent, illegal, void and of no effect whatsoever.

(b) That the defendant be ordered to reinstate the plaintiff to his former post.

(c) That the defendant be ordered to pay all arrears of salaries and entitlement due to the purported dismissal.

(d) That he be promoted to bring him at par with his mates.

(e) An injunction restraining the defendant from dismissing the plaintiff without just cause.

(f) The cost of the suit.

(g) In the alternative to paragraph (b) payment of the sum of six hundred thousand Naira (N600,000.00)only as general damages to the plaintiff by the defendant for wrongful dismissal of the plaintiff from the service of the defendant on or about the 11th March, 1993

I would like to observe that after the plaintiff had closed his case and the defendant opened its own, the plaintiff amended his statement of claim on 15th December 1993 by adding paragraph “g” as appeared above. I would observe also that the plaintiff did not give or lead further evidence as regards sub-paragraph “G” after the amendment was granted.

At the end of the trial, the learned Chief Judge in a reserved judgment found in favour of the plaintiff. The learned C.J. concluded thus:

“It is my view, therefore, that the plaintiff’s employers made a serious mistake and took a calculated risk when they ventured to dismiss the plaintiff without first having the plaintiff arraigned for the serious offences of fraud and have his guilt established in a law court. Such dismissal in my view cannot stand the test of the time as it is a nullity. I also declare the dismissal of the plaintiff a nullity and consequently a judgment for the plaintiff with costs. I assessed the costs at N1,000.00 (One thousand Naira) in favour of the plaintiff against the defendant bank.”

The learned C.J. proceeded to make the following orders:-

“1. I order that the plaintiff be re-instated by the defendant bank forthwith.

2. I order that his salary be restored and the arrears of his salaries from the date of the dismissal to the date of this judgment be paid forthwith.
3. This judgment notwithstanding the defendant bank is free to revive the issue of criminal prosecution and urge the Police to prosecute all those suspected of the alleged fraud in respect of the said sum of 3 million Naira. ”

The defendant was dissatisfied with the said decision of the High Court. It appealed to the Court of Appeal. The Court of Appeal allowed the appeal and set aside the judgment and orders of the trial court. It declared:

“The appeal is meritorious and is hereby allowed. The summary dismissal of the respondent is valid and subsisting as it is justified. The respondent’s claim stands dismissed.”

Aggrieved by the decision of the Court of Appeal, the plaintiff has appealed to this court upon nine grounds of appeal. The plaintiff shall hereinafter be referred to as the “appellant” and the defendant shall be referred to as the “respondent”.

The appellant formulated six issues for determination in this appeal. These read:

“1. Whether the failure of the Court of Appeal to consider at all the submissions of the appellant’s counsel in the brief filed on behalf of the appellant before the court below did not lead to a breach of his right to a fair hearing and led to a miscarriage of justice.

2. Whether the dismissal of the appellant was done in accordance with the agreement between the parties and the rules of natural justice to have entitled the court below to disagree with the trial court that the dismissal of the appellant was not done in accordance with the law.
3. Whether the Court of Appeal was obliged to consider and decide on points that were not decided by the trial court that is whether the Court of Appeal could decide on purely academic and hypothetical issues that did not arise from the judgment of the trial court.
4. Whether the allegations of fraudulent practices, banking irregularities and other serious allegations made against the appellant by the respondent are such matter that can be dealt with domestically when the allegations either singly or taken together import commission of criminal offences cognisable under Nigerian penal laws and whether the respondent abandoned the allegations of fraudulent practices levied against the appellant.
5. Whether the Court of Appeal was right to have disallowed the order of reinstatement of the appellant once the trial court came to the conclusion that the dismissal was null, void and when there would be nothing to sustain the continued dismissal of the appellant.
6. Whether the court below could base its decision on the collective agreement made between a trade union and the respondent when the appellant was not a party thereto nor was it shown that the agreement was made for his benefit.

For its part, the respondent raised three issues for determination.

These read as follows:

A. Whether the several acts of appellant constituting operational banking malpractices, operational banking irregularities and dishonest practices are synonymous with “fraud” in its strict criminal sense.

B. In the alternative that the appellant committed “fraud” in its strict sense, whether the respondent was not at liberty to dismiss him in view of the contents of Exhibits “C”, “W” and “Y”.

C. Whether the collective agreement Exhibit “W” was binding on the parties.

I prefer the issues formulated by the respondent. They are not verbose and they go straight to the issue in controversy. I shall therefore consider this appeal on the basis of the respondent’s issues, which will be treated together.

The relevant facts are these. The appellant was an employee of the respondent. He was employed on 12th January, 1982. He rose to the rank of a Deputy Manager.

In November 1992 he was suspended from duty on some allegations of fraud, embezzlement of money and sundry allegations. Before suspension however the appellant was queried in writing. He answered the query. He subsequently appeared before the senior staff disciplinary committee of the respondent. The committee submitted its report to the Management of the respondent. By a letter dated 11th March, 1993 the appellant was dismissed. The appellant went to court and instituted this action against the respondent at the Maiduguri High Court, claiming the relief earlier on set out.

Issues A, B and C.

Issue A poses the question whether the several acts of the appellant constituting operational banking malpractices, operational banking irregularities and dishonest practices are synonymous with “fraud” in its strict criminal sense. It was argued for the appellant that the various allegations made against him in the pleadings of the respondent and evidence led by its witnesses, constitute offences under sections 308,310, 311, 314, 315, 323, 324, 325 and 362 of the Penal Code. It was said that the appellant could be prosecuted under any of these sections of the Penal Code law applicable to Borno State.

DW1, DW2, DW3, DW4, and DW5, it was pointed out, were unanimous in their testimonies that the acts for which the appellant was dismissed led to a loss of over 3 million Naira to the respondent. The respondent in its pleadings described the acts as “fraudulent.” To underscore the nature of the allegations, it complained to the Police which in turn arrested the appellant and others. The Police intimated that at the end of the investigation they would prosecute them.

It was the submission of the appellant that in this kind of setting, the respondent should have stayed all actions until after the completion of the criminal prosecution of the appellant. What the respondent did amounted to putting the cart before the horse.

It was also submitted that the dismissal of the appellant while criminal investigations were going on, on the allegations, was clearly ultra vires the respondent and therefore unconstitutional. For this submission counsel for the appellant relied on the cases of Garba v. F.C.S.C (1988) 1 NWLR (Pt.71) 449. It was argued that the commission of crime was not only in issue in this case. It was also the cornerstone of the defence of the respondent. It was the reason that led to the dismissal of the appellant.

For the respondent, it was conceded that the respondent as defendant at the High Court, pleaded among others “fraud” in its statement of defence. That notwithstanding, no evidence was led on fraud. It is trite law that facts pleaded in respect of which no evidence was led go to no issue. The case of Honika Sawmill Nig. Ltd. v. Hoff (1994) 2 NWLR (Pt.326) 252.

The respondent, however, had in addition pleaded operational banking malpractices and dishonest practices committed by the appellant. The respondent argued that it led evidence which conclusively proved the commission of operational malpractices and dishonest practices by the appellant. See the evidence of D.W1, D.W.2, D.W3, DW4 and DW5.

It was said that on the evidence before the court, it will be seen that the actions of the appellant while in the employment of the respondent could be referred to as operational banking malpractices, operational banking irregularities, operational banking deficiencies or dishonest banking practices. The fact that one call them fraudulent acts does not envisage “fraud” as conceived in criminal law. It was argued that the respondent did not allege commission of a particular criminal offence known to law by the appellant.

It is now settled law that where a person is accused of a criminal offence, he must first be tried in a court of law where the complaints against him will be examined in public and where he will get a fair hearing as set out in the Constitution. Where the dismissal of a servant is based on a criminal charge or allegation, such allegation must first be proved before the dismissal can stand. See Garba v. University of Maiduguri (1986) 1 NWLR CPt.18) 550; Olaniyan v. University of Lagos (1985) 2 NWLR CPt.9) 599.

In the instant case, Exhibit “D”, the letter of dismissal, did not contain any reasons for the dismissal of the appellant. Put simply, the letter did not make any allegations of a criminal nature against the appellant. The cases of Garba v. University of Maiduguri (supra) and Anakism v. U.B.N. Ltd. (1994) 1 NWLR CPt.322) 557 relied upon by the appellant and the trial court are not relevant to the circumstances of the present case. They are distinguishable from it. In Garba’s case a particular criminal offence known to law was committed while none was committed in the instant case. In Anakism’s case, there were no such written and express terms of employment as in the present case that gives the respondent a discretion to either dismiss before or after criminal prosecution.

On the evidence before the trial court, the appellant was clearly guilty of banking malpractices, irregularities and dishonest practices. But these do not constitute any offence known to law. And although the respondent pleaded “fraud” in its statement of defence, no evidence was led on “fraud”. The position of the law is clear. Facts pleaded in respect of which no evidence was led go to no Issue.

On the other hand “irregularity” and “malpractice” do not constitute offences known to our criminal law. These have been defined at pages 762 and 667 of the Chambers’ 20th century dictionary 1983 edition respectively as follows:

“irregularity” a rough place or bump on an even surface; an instance of action, behaviour, etc not conforming to rules or regulation.” And “malpractice” an evil or improper practice; professional misconduct; treatment falling short of reasonable skill or care; illegal attempt of a person in position of trust to benefit himself at others loss.”

In any event the appellant was not accused of irregularity or malpractice in his letter of dismissal. The letter did not state any reasons for his removal. In master and servant class of employment, the master is under no obligation to give reasons for terminating the appointment of his servant.

Generally employments fall into three categories, viz;

(a) master and servant;

(b) A servant holds an office at pleasure;

(c) employment that is governed by statute.

See Ridge v. Baldwin (1964) A.C. 40 per Lord Reid; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599. Both parties agree that the present case does not fall within the third class. It is not a case where the tenure of office of the servant is governed by statute. It is also common ground that the present case is one of master and servant.

The law regarding master and servant is not in doubt. Under this class of employment there cannot be specific performance of a contract of service. The master has the power to terminate the contract with his servant at any time and for any reason or for none. However, if the master does terminate the contract in a manner not warranted or provided by the contract, he must pay damages for breach of contract. So as Lord Reid said in Ridge v. Baldwin (Supra): “So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract.”

What this means is this. In this class of cases an officer’s appointment can lawfully be terminated without first telling him what is alleged against him and hearing his defence or explanation. Similarly an officer in this class can lawfully be dismissed without observing the principles of natural justice.

I shall now attempt to relate the facts of the present case to the contract governing the parties. The appellant as plaintiff pleaded in paragraphs 3, 4, 5, 6 and 7 of the amended statement of claim as follows:

“3. The plaintiff’s employment with the defendant is governed by the regulations and procedural agreement as well as the Main Collective Agreement between the Nigerian Employer’s Association of Banks, Insurance and Financial Institution, terms and conditions of service as incorporated in Part II (section 1) of the said collective agreement.

4. The plaintiff had since his confirmation of appointment been promoted, trained, transferred and/or served in various branches of the defendant, the Maiduguri branch inclusive as his last place of posting.
5. The defendant by its letter dated 17th November, 1992 suspended the plaintiff from duty and by a further letter dated 11th March, 1993 dismissed the plaintiff from its employment in flagrant departure from the provisions of the said collective agreement. Both letters of suspension and dismissal shall be relied upon at the trial of this suit.

The plaintiff states that although he was suspended from duty by the defendant pending final investigation of operational malpractices the outcome of the investigations were not communicated to him up to the time of filing this suit.

6. The plaintiff will contend at the trial of this Suit that his dismissal is void, incompetent and unconstitutional.”

In reply to the plaintiff’s averments, the defendant pleaded in paragraphs 2, 2B 2C, 2F, 2G, 2H, 3, 5 and 7 of the further amended statement of defence as follows:

2. The defendant admits the averment in paragraph 5 of the plaintiff’s statement of c1aim only to the extent that the employment relationship was governed by the terms and conditions contained in the ‘MAIN COLLECTIVE AGREEMENT’ between the Nigerian Employers Association of Banks, Insurance and Allied Institutions and Association of Senior Staff of Banks, Insurance and Financial Houses. This main collective agreement is hereby pleaded. The plaintiff is put to the strictest proof of other allegations contained in paragraph 5 of the statement of claim.

2A. That the defendant was formerly known and called International Bank for West Africa Limited (IBWA).

2B. The defendant avers that by an internal General Memorandum No. 157 dated 18th October, 1991 addressed to all Senior Staff and copied to all Board members, Management staff, Area Managers and Branch Manager of the defendant the Senior Assistant General Manager of the defendant (Mr. Charles Ugboko) communicated the new agreement reached on summary dismissal. The memo is hereby pleaded and shall be relied upon at the trial of this case.

2D. The defendant further avers that consequent upon the issuance of the query and the reply referred to in paragraph 2C above, the plaintiff was suspended from duty.

The defendant’s letters both dated 16th and 7th January, 1992 suspending the plaintiff from duty are hereby pleaded and shall be relied upon at the trial of this case. The plaintiff is hereby given notice to produce the original copy of the query letter at the trial of the case.

2E. The defendant further avers that the cash debt advices Nos. 2964 and 2685 dated 21/5/91 No. 4845 dated 29/7/91 No. 0271 dated 2/3/91 and No. 1276 dated 20/11/ 90 signed by the plaintiff which were over and above this cash authorised limit are hereby pleaded and shall be relied upon at the trial of this case.

2F. The defendant avers that the report of the senior staff disciplinary Committee dated 16th and 17th November, 1992 which investigated the Auno fraud is hereby pleaded and shall be relied upon at the trial of this case.

2G. The defendant avers that further to paragraph 2(D) above, the plaintiff was downgraded in rank after his suspension. The defendant’s letter downgrading the plaintiff dated 10th January, 1993 is hereby pleaded and shall be relied upon at the trial of this case. The plaintiff is hereby given notice to produce the original copy of the letter at the trial of this case.

2H. The defendant avers that on or about the 15th May, 1992 the Maidugri branch of the defendant communicated to all its staff by way of an internal mail the authorized cash limits for the branch as regards all staff of the branch and the Auno sub-branch. The said internal mail numbered 001 and dated 15th May, 1992 was signed by the then Branch Manager Y.I. Jahun and the plaintiff himself. The said mail will be relied upon at the hearing of this case. The plaintiff is hereby given notice to produce his original copy at the trial of this case.

3. The defendant denies the averment contained in paragraph 6 of the plaintiff’s statement of claim and states that the plaintiff was duly communicated with the decisions and outcome of the investigations and deliberations of the defendant’s disciplinary committee which directly indicted the plaintiff of perpetration of the fraud. All correspondences, letters and documents that exchanged between the parties are hereby pleaded, particularly;

(a) Letter ref. NIU 03/IIJ/JAO/299/92 dated 6th July, 1992 addressed to the plaintiff,

(b) Letter dated 14th July, 1992 addressed to the plaintiff

(c) Letter ref: NCA/03/AU/SC0333/92 dated 17th November, 1992 addressed to the plaintiff,

(d) Letter ref. CU/DES/OFO/IRSO/0529 dated 11th March, 1993 addressed to the plaintiff.

The defendant hereby gives the plaintiff notice to produce all original copies of the aforesaid letters written to him.

4. The defendant denies the averments contained in paragraphs 7, 8 and 9 of the statement of claim and puts the plaintiff to the strictest proof of the allegation contained therein.
5. The defendant states that the plaintiff was duly interviewed by the investigative panel set up to investigate the said fraudulent transactions and he was accorded an opportunity of defending himself and the outcome of the investigation was duly and effectively communicated to the plaintiff.
6. The defendant further states that it was consequent upon the findings of the senior staff disciplinary committee that the plaintiff’s employment was terminated.
7. The defendant states that all opportunities were given to the plaintiff to defend himself and he unsatisfactorily failed to offer reasonable explanations as regards the commission of the irregularities and fraud.

At the trial the defendant called evidence to justify the dismissal of the plaintiff. DW4 Simeon Chinedinma Okeraofor testified at p. 21 of the record thus:

The plaintiff was a staff of the bank. He was a senior staff up to 1993 when he was dismissed from the services. He was the Deputy Branch Manager.

There was operational mal-practices at our Auno sub-branch which is supervised by Maiduguri main branch. The bank lost a lot of money as a result of the mal-practices. Many informal advices were signed without being backed by the necessary instrument i.e. cheque. Transactions were carried out when the customers in question have no money in their accounts. By internal advices I mean debts and credits. It is a transaction between the sub-branch and the main branch. The plaintiff signed some debit advices which were above his limits. His limit is N15,000. The branch manager and his deputy supervise the Auno sub-branch. There were five advices that were signed in excess. Out of the five one was signed by the plaintiff alone while the remaining four were signed by the plaintiff and the supervisor at Auno. I know the plaintiff’s signature and anywhere I see his signature I can identify. I worked at Maiduguri for 10 years. I worked up to December 1990. The plaintiff was at the Maiduguri branch when I was working at Maiduguri. There are four advices out of the five I have been mentioning. One was missing. It is an advice for N145,000. It was dated 2nd March, 1992. It is the advice signed by the plaintiff alone. We searched for the original of the advice dated 2nd March 1992 but could not locate it. If I see a copy of the advice in question I can identify. This is the copy of the advice which is missing.

DW4 continued as follows:

“The limitation of N15,000 is in connection with issuance of cheque. On advice he has no limit. The cheques he authorised are in the bank. In the cheques he authorized he exceeded his limit. An advice can be accepted or rejected. Any document signed by the plaintiff is binding on the bank. For white copies of Exhibit YI- Y6 were sent to Lagos for computer system. The Maiduguri branch sent the whole ones for computer system.

The dismissal letter was signed by Mr. D.B.Sosu, Senior Principal Manager Personnel and by Charles Ugboko Deputy General Manager. Human Resources Manager, Charles Ugboko was a member of the committee which investigated the involvement of the plaintiff in the financial mal-practices. All the members of the committee are staff of the defendant. Each was invited to defend himself in the absence of the other. The plaintiff was not taken to court. In 1993 he was not taken to court. He was dismissed for signing customer’s cheques when there is no sufficient fund. The accounts are bad. I worked with the plaintiff before and I am familiar with his handwriting. A staff of the branch filled in the forms and he signed the forms. Some were terminated some were dismissed and some were confirmed. The kano branch had a manager. He is a junior staff and whatever action he is going to take must be approved by either the manager or his deputy. The Deputy Manager is answerable to the Manager. If the sub-branch wants to withdraw money from the main branch it would have to be through advice. This cannot be possible without the signature of the authorised officer. The authorised officers are the Manager and his deputy. The Manager of the sub-branch who raises the advice would sign one portion while the Manager of the main branch or in his absence his deputy would sign the other portion. When the main branch raises advice on Auno branch the Head of the particular department that raised the advice would sign and the Manager or his deputy would sign the other portion. Exhibit Y1, Y2, Y3 and Y5 emanated from Maiduguri main branch to Auno sub-branch. Exhibit Y4 originated from Auno to Maiduguri main branch. The advices honoured. Money was released. The one which bears only one signature is Exhibit Y4 which emanated from Auno to Maiduguri. The document was signed by the plaintiff and the amount involved is N226,200. It was supposed to have been signed by the Auno branch manager. He can sign up to that amount in the absence of the manager. The rest exhibits namely: Y1, Y2 and Y3 were signed by Haruna Yakubu and countersigned by the plaintiff. Exhibit Y2 was signed by one other officer and countersigned by the plaintiff. Hafuna Yakubu is an authorised signatory. The person who signed Exhibit Y2 is a signatory.

The advices as they are were in order. Exhibit Y4 is not in order. Drafts were issued to the customers. The customers who withdraw cash from the main branch were not having money in their accounts at Auno. A cheque drawn by Auno customer of sub-branch would first of all be approved by the sub-branch manager but before money is released it has to be signed by a manager as his deputy. The Manager has no limit on accounts that have money. On customers account money would only be withdrawn through issuance of cheques and approval of the same. Mallam Yahaya Jahun was the Manager. There are many advices involved. The total amount involved in that branch was about N3.2 million.

DW3 Baba Mohammed Rufai was the Branch Manager of the respondent bank. After giving evidence-in-chief this witness was recalled. He testified as follows:

“I testified for the defence on 1/3/94. I am a branch manager and being a branch manager I am the representative of the management. The Manager has no limit. He can sign any amount where there is money in the account. Where there is no money in the account the manager can only lend out up to N25,000.00. Where there is money in the account the Deputy Manager is limited to N45,000.00. Where there is no money it is only the Manager who can decide this. Deputy Manager has no power on this matter. The limitation changes from time to time. In May 1992 the Manager has no limit while his deputy is limited to N15,000. Where there is no money the Deputy Manger has no power. I do not know the limitation in 1990 but it could not be higher than that of 1992.

Auno branch is a sub-branch. It is not possible to register an inter branch advice without the same being supported by a cheques or teller. In the instant case the cheques which accompanied the advices in question were destroyed as they were signed by Abdul-Wahab while the advices were counter-signed by the plaintiff. He counter signed and he also disbursed the money.

It is clear to me from the evidence led by the respondent that the appellant committed banking malpractices, irregularities and dishonest banking practices. The question to be resolved however is whether the contract of service empowered the respondent to dismiss any servant who is guilty of malpractices, irregularities, and dishonest practices.

In this regard it is imperative to examine the provisions of Exhibit “Y” tendered at the trial by the appellant. I must point out here that the respondent equally tendered a copy as Exhibit “C”. The said Exhibit “Y” (or “C”) is an addendum to the senior staff main collective agreement tendered and marked as Exhibit “W” which is not exhaustive. Both Exhibits “Y” and “C” read as follows:

“International Bank for West Africa Ltd.

AFRIBANK

IBWA

General Memorandum

18th October, 1991

GENERAL MEMORANDUM NO-159

PERSONNEL NO.32

TO: ALL SENIOR STAFF

SUBJECT: SENIOR STAFF COLLECTIVE AGREEMENT.

This is to inform all Senior Staff that on the intervention of the industrial arbitration panel, an agreement has now been reached on the subject “summary dismissal” which previously was not agreed upon as evident on page 9 of the revised Senior Staff collective agreement. For easy reference, and based on the industrial arbitration panel award, we re-produced below what shall now come under the dispute part II (section 1) Article 4 (iv) of the main collective agreement between NEALI AND ASSBIFI.

This should now be regarded as part of the Senior Staff main collective agreement.

PART II (SECTION 1)

ARTICLE 4 (IV) SUMMARY DISMISSAL

a. An employee may be summarily dismissed for certain acts of gross misconduct. Such acts include proven case of:

i. Theft, fraud, dishonesty, defalcation and irregular practices in respect of cash, vouchers, records, returns on customer’s account and foreign exchange transactions;

ii. willful disobedience of a lawful order or serious negligence.

iii. drunkenness or taking drugs other than for medical reasons, rendering the employee unfit to carry out his or her duties.

iv. intentionally divulging confidential information in breach of any “declaration of secrecy.”

v. conviction for a criminal offence;

vi. prolonged and/or frequent absence from work without leave or reasonable cause;

vii. fighting and assault or engaging in disorderly behaviour during working hours on the office premises or within its immediate surroundings;

viii. deriving any benefit in the course of his official duties which places him in such a position that his personal interest and his duty to the employer or to any customer or the employer are in conflict;

ix. failure to report promptly any irregularity on the part of any other employee after having knowledge of such irregularity;

x. abusive or insulting language or behaviour to any client which is prejudicially to the business interests of the employer; and

xi. any other offences which may be agreed upon between the association and the Union from time to time.

b. Where an offence has been committed which merits summary dismissal but where the member company does not exercise its prerogative of dismissal “a first and last” or a “second and last” warning letter may be issued and the fact that the warning is a final one will be made clear in the letter.

c. Before either summary dismissal or warning letter is effected, the employee shall be given a written query and afforded the opportunity of defending himself in writing except where the employee has absconded.

AFRIBANK NIGERIA LIMITED CHARLES UGBOKO

SAGM (HUMAN RESOURCES MGT. T.R.G.)

CC: MANAGING DIRECTOR

EXECUTIVE DIRECTORS

DEPUTY GENERAL MANAGER

SNR. ASST. GEN. MANAGERS

ASS. GEN. MANAGER

SNR. PRINCIPAL MANAGERS

BRANCH MANAGERS.”

It will be observed from the contents of Exhibits “Y” and “C” that there are 11 categories of grounds pursuant to which any member of staff can be summarily dismissed by the respondent. The one relevant in the present case is category (i). It seems to me clear that the actions or conduct of the appellant could constitute

(i) fraud, or

(ii) dishonesty or

(iii) irregular practices in respect of cash, vouchers, records, returns on customer’s account and foreign exchange transactions.

We must bear in mind that the present case is one of master and servant with written and express terms of employment. Where therefore an employee has been found guilty by a disciplinary committee of any of the gross-misconducts highlighted above, the master has a choice either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily as in the instant case. In other words prosecution before a court of law, in the circumstances, is not a sine qua non for summary dismissal. This court in the case of Alhaji Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR (Pt. 457) 632; (1996) Delta State Law Report (Pt.1) 31 per Wali, J.S.C. held thus:

“It is not necessary, nor is it a requirement under section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality, I may go further to say that the provisions of 33 (supra) have no application to the facts of this case.”

As I have already indicated, the parties are bound by the agreement i.e. the collective agreement which were both pleaded and tendered in evidence as Exhibits “W”, “Y” and “C”. The issue to be

resolved is strictly whether the summary dismissal of the appellant is in keeping with the contract between them. Exhibit “D” is the letter of dismissal dated 11th March 1993. It reads:

“CU/DBS/OFO/IRSW /0529/93

11TH March, 1993

Mr. S.B. Olarewaju (3260 D)

Afribank Nigeria Plc,

Maiduguri Branch,

Maiduguri.

Dear Sir,

DISMISSAL

Please be informed that with immediate effect, your services with the Bank are no longer required. You are hereby DISMISSED.

You are requested to surrender all the Bank’s property in your possession including your identity card and unused cheque leaves to the Manager (Maiduguri branch). Also clear the balance in your account ’35’ before your final departure.

Your indebtedness to Afribank Nigeria Plc as at February, 1993 will be communicated to you.

Yours faithfully,

Afribank Nigeria Plc

(SGD) (SGD)

D.B. SOSU CHARLES UGBOKO

SENIOR PRINCIPAL MANAGER DEPUTY GENERAL MANAGER

(PERSONNEL) (HUMAN RESOURCES MANAGEMENT)

CC: CHIEF INSPECTOR

SAGM (NORTH WEST & ABUJA)

AREA MANAGER (NORTH WEST) KADUNA

MANAGER (MAIDUGURI BRANCH)

HEAD – PERSONNEL SERVICES

” MANPOWER PLANNING & DEVELOPMENT

” COMPUTER UNIT.”

No reason was given for the dismissal of the appellant. As I stated earlier on in the course of this judgment, the master can terminate the contract with his servant at any time and for any reason or for none. The letter of dismissal did not allege the commission of crimes known to our law against the appellant and for which he was dismissed. The court cannot go outside the letters of Exhibit “D”

But if the master terminates the contract with his servant in a manner not warranted by the contract, he must pay damages for breach of contract. The remedy is in damages. The court cannot compel an unwilling employer to re-instate a servant it has dismissed. The exception to the general rule is in cases where the employment is especially protected by statute. In such cases the employee who is unlawfully dismissed may be re-instated to his position. See Olaniyan v. University of Lagos (supra); Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40.

Finally, I must stress that the present case is not one governed by statute. It does not therefore fall within the class of cases such as Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40; Olaniyan v. University of Lagos supra. Further discussion here on contracts governed by statute will serve no useful purpose.

In the result, this appeal fails and is dismissed. I affirm the decision of the Court of Appeal given on 18th April 1996. The respondent is entitled to costs which I assess at N10,000.00.

---

SC. 109/96

Michael Alaba Onagoruwa V. Mrs. Aderoju Akinremi & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

The appellant as plaintiff instituted two separate suits LD/513/80 and LD/512/80 against 1st and 2nd respondents respectively at the High Court, Lagos. The two suits were consolidated. The 3rd respondent was thereafter joined as co-defendant. In both the writ of summons and statement of claim as amended, the claim finally read:

“1. A DECLARATION that the plaintiff is the owner of the parcel of land known as Plots 89, 91 and 93, Dacosta Layout, Onike, Iwaya, Lagos State which parcel of land is covered by Title No. 10246.

2. N5,000.00 special and general damages for trespass.
3. A PERPETUAL INJUNCTION restraining the defendants whether by themselves or by their servants, agents or privies or otherwise howsoever from further trespassing on the plaintiff’s land known as Plots 89, 91 and 93 Dacosta Layout, Onike, Iwaya, Lagos State and covered by Title No. 10246.”

The plaintiff’s claim to ownership of the said plots 89, 91 and 93 is based ultimately on Registration of Titles Law, 1935 (Cap.166) vol. 7, Laws of Lagos State of Nigeria, 1994. The Oloto chieftaincy family originally owned the land involved, as part of their larger parcel of land. By a deed of conveyance dated 24 February, 1964 registered as No.3 at page 3 volume 1222 of the Register of deeds kept at the Lagos State land Registry, Lawrence Gregorio Da Costa acquired a vast parcel of land from the said Oloto chieftaincy family. This was admitted as Exhibit A. The said Da Costa laid the land into various plots. The land is known as L.G. Da Costa Layout, Onike, Yaba. Thereafter he sold eight of the plots to Oyenuyi Arolabu Oyesanya (pleaded erroneously by the plaintiff in para. 4 of his statement of claim as Oyeniyi Afolabi Oyesanya) by a deed of conveyance which the said Oyesanya registered under Title No. 10246: see Exhibit B. The eight plots so registered are numbered 17,78,80, 85,87,89,91 and 93. By a deed of transfer dated 15th March, 1978, the said Oyeniyi Arolabu Oyesanya transferred the entire eight plots to Michael Alaba Onagoruwa (the plaintiff). The transfer was registered under the same Title No. 10246: see Exhibit C. The registration history of the land is noted in the Lagos Title No. MO10246 showing

(A) Property Register and

(B) Proprietorship Register.

This records among other information a short description of the land as plots 17,78,80,85,87,89,91 and 93 on L.G. Da Costa Layout in the Property Register and the transfer from Oyenuyi Arolabu Oyesanya to Michael Alaba Onagoruwa in the Proprietorship Register plan drawn on 20th April, 1972 showing the layout of the said plots in the name of Mr. Oye A. Oyesanya is attached: see Exhibit I. There is also what is referred to as a “Portion of Intelligence Sheet” intended, I believe, to show the relative position of some of the plots registered under title No. MO10246 and another title No.M09228: see Exhibit D. In respect of the said title No. M09228, the present 3rd respondent had in suit No. LD/1272/72 at the Lagos High Court claimed ownership and sought rectification of the Register. But the claim was dismissed on 9 May, 1985 and no appeal was taken: see Exhibit E. The appellant in the present case filed what he called composite plans (Exhibits G and G1). The two plans show the delineation of land claimed to belong to the 3rd respondent as represented in two different but apparently conflicting plans and its relationship with the appellant’s registered plots of land. It is observed that the said land is not shown to encroach on any of the appellant’s plots of land. the said composite plans have not been demonstrated to be of any use in proving any alleged trespass if that was the purpose, as I believe it might have been.

The appellant in his statement of claim pleaded how he came to be the owner of the plots of land under registered title. He led evidence and tendered the Exhibits already referred to, particularly Exhibits A, B, C, C1 and D. He said that plot 89 is No. 145 in the intelligence sheet (Exhibit D) while plots 91 and 93 are Nos. 146 and 147 respectively. He said further that the 1st and 2nd respondents broke into plots 89, 91 and 93. Specifically, he identified the 2nd respondent as occupying plot 89 (i.e. No. 145) While the 1st respondent is on Nos. 146 and 147. The 3rd respondent pleaded that the 1st and 2nd respondents are his tenants and claimed not to know of any layout called Da Costa Layout but that if there was such layout, his own land was not within that layout. In para. 8, he pleaded: “That with reference to paragraph 8 of the statement of claim, the third defendant says that he has never at anytime either personally or through any person or agents trespassed on the plaintiff’s land and will put the plaintiff to the strictest proof thereof.” I must say here that the 3rd respondent led no evidence.

The 1st and 2nd respondents pleaded that they are tenants of the 3rd respondent and have erected buildings on their respective pieces of land measuring about 40ft by 90ft. They also pleaded, as the 3rd respondent did, that they have no knowledge of Da Costa Layout and in any case they are not within such layout; and they repeated what the 3rd respondent pleaded in para. 8 of his statement of defence. The 1st and 2nd respondents testified, saying they were 3rd respondent’s tenants although there was nothing given or said in evidence to show that the 3rd respondent owns land within the area in question.

The 2nd respondent testified that the appellant took some people to the land on which she erected her building to demolish it. The police eventually intervened. The 1st and 2nd respondents called a licensed surveyor, Daniel Olaloye Ogunmekan, DW.3, who tendered what he called a composite plan (Exhibit L) in which he superimposed two survey plans, No. DL/C/661 showing land of 1st respondent and No. D02/LA/27 showing the 2nd respondent’s land, upon another survey plan showing land claimed to belong to the 3rd respondent. When cross-examined, he said a composite plan was usually prepared to show the land claimed by a plaintiff and that claimed by a defendant to ascertain any encroachment. In this particular case the two parcels of land claimed by the 1st and 2nd respondents are shown to lie within the land alleged to be for the 3rd respondent, and just as the so-called composite plans (Exhibits. G and G1) produced by the appellant show, there is nothing to indicate any encroachment between the land alleged to be 3rd respondent’s and the plots in question belonging to the appellant.

On 16th February, 1990, the learned trial Judge (Famakinwa, J.) who heard the case dismissed the claim. Before doing so, he made certain findings some of which were contrary to the evidence before him and some controversial. First, he said:

“From the pleadings and evidence advanced in the case, I am not satisfied that the plaintiff has established his title in respect of plots 89, 91 and 93 in L.G. Dacosta Layout. It is indeed important in this case to state that the plaintiff did not produce the said L.G. Dacosta Layout. Thus, one does not know where plots 89, 91 and 93 are today in the area. Thus, it is difficult to say that these plots is (sic) in Dacosta Layout.”

It seems to me the learned trial Judge is not familiar with the Registration of Titles Law applicable in Lagos State and did not examine the documentary evidence tendered and admitted in these proceedings. Second, the learned trial Judge said:

“…..there is no credible evidence before me that the plaintiff is in possession of plots 89, 91 and 93 which is (sic) the same as plots 145, 146 and 147 to enable him to maintain an action in trespass ….. I am unable to decree that the plaintiff is the owner of plots 89, 91 and 93 Da-Costa Layout in Onike Iwaya, Lagos State.”

The appellant’s appeal against that judgment to the Court of Appeal was dismissed on 26 November, 1996. The appellant has further appealed to this court and has raised the following three issues for the determination of the appeal:

“1. Whether the identity of the plots of land in respect of which the plaintiff claimed declaration of title, perpetual injunction and damages for trespass is ascertainable.

2. Whether the lower court was right in law in declining to decree that the plaintiff is the owner of plots 89, 91 and 93 of Dacosta Layout, Onike, Iwaya, Lagos State.
3. Whether the lower court was right in law in holding that the defendants did not trespass on the plaintiff’s land.”

I think it is convenient to resolve issues 1 and 2 together as both call for a resolution as to whether there is evidence as to who owns the said plots 89, 91 and 93 and as to their location and definition.

Issues 1 and 2

The argument by the appellant’s counsel here is that the two courts below did not take into account that they were dealing with land located in a Registration District under the Registration of Titles Law (Cap.166) Laws of Lagos State which guarantees title in a special way. As to the identity and location of the plots he submits that Exhibits A, B, C, and C1 demonstrate this sufficiently, and when this is combined with the title so guaranteed under the Registration of Titles Law, appellant succeeded in proving his entitlement to definite plots of land numbered 89, 91 and 93 in Dacosta Layout.

The respondent’s counsel contends that the issue of the Registration of titles Law was never canvassed nor was it pleaded that the land claimed by the appellant was located within a Registration District and submits therefore that the appellant cannot raise those matters now. The further submission is that the Land Use Decree having come into effect in March, 1978, any purported subsequent registration of title should be done with the consent of the Governor for it to be valid. Finally, on this point, he says that the appellant failed to identify and/or locate by evidence or any record the land he is claiming.

Let me briefly dispose of the respondent’s counsel’s argument on the Land Use Act and the reliance on the Registration of Titles Law by the appellant. It is true that any transfer of title derived even under the Registration of Titles Law must receive the consent of the Governor from the day the Land Use Act, 1978 came into force in order to make the transfer or alienation valid. That is what ss.22 and 26 of the Land Use Act stipulate. See Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 1 NWLR (Pt.97) 305; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (Pt.390) 379; International ile Industries Ltd. v. Aderemi (1999) 8 NWLR (Pt.614) 268. But the transfer of plots 89, 91 and 93 in question in this case to the appellant by Oyenuyi Arolabu Oyesanya was concluded before the Land Use Act came into force on 29 March, 1978. Exhibit C which is the transfer instrument shows that it took place on 15 March, 1978 while Exhibit C1 shows that the document was already in the Land Registry on 28 March, 1978. That disposes of the argument on the Land Use Act. As to the other argument on the Registration of Titles Law and the location of the land, there is no doubt that right from the inception of the action, the appellant made it clear that he relied on registered title. It is pertinent to refer to a couple of averments in his statement of claim as follows:

“1. The plaintiff is the registered title owner in fee simple of a large piece or parcel of land at Iwaya, Onike, Yaba District, Lagos.

2. The plaintiff’s land is covered by a land certificate No. MO10246 of the Land Registry, Lagos.
3. The said piece or parcel of land has been laid out into plots known as L.G. Da Costa Layout and the plaintiff is the registered owner of plots 17,78,80,85,87,89, 91 and 93 in the said layout.
4. The plaintiff has disposed of plots 17,78 and 80 to various people who have been validly registered without objections at the Land Registry, Lagos.” (Italics mine)

The respondents joined issue with the appellant on the above and denied knowledge of L.G. Da Costa Layout. The appellant gave evidence in support of the averments. It may well be true that neither counsel positively addressed the trial court on the import of registered title. But Exhibits B, C, and C1 were before him. They show unequivocally that they were documents of title registered by the Registrar of Titles and they were what the appellant relied on in support of his claim for declaration. The lower court also had the Exhibits before it and was seised of the pleadings by the parties and the evidence of the appellant that he registered the plots in question in Da Costa Layout under Registered Title OM 10246. That court, with the greatest respect, did not seem also to appreciate the effect of title registration. However, in fairness to the court, counsel did not at all draw its attention to the Registration of Titles Law. It seems Pats-Acholonu JCA who read the leading judgment equated the title in issue with the ordinary incident of title based upon a certificate of occupancy when he said: “It should be clarified once more that merely possessing certificate of occupancy does not by itself confer legitimacy of indefeasible title.” The lower court also thought (1) that the appellant’s title was such that had to be proved under native or common law system when Pats-Acholonu JCA cited the observation of this court in Madam I.Arase v. Peter U. Arase (1981) 5 SC 33, a case based on Bini native law and custom, where at page 35 it was said: “It ought to be borne in mind always that at common law where questions of title to land arise in litigation the court is concerned with the relative strengths of the titles proved by the claimants. If party A can prove a better title than party B, then party A is entitled to succeed”; and (2) that the land in question was not ascertainable when Musdapher JCA said: “It is now trite (7) and well settled, that a person who seeks declaration of title to land must be able to ascertain the land .. There must be proof of the identity of the land, so that there is no doubt as to the land marks and the area for which the declaration is sought.”

The Registration of Titles Law of Lagos State came into force on 4 April, 1935. Section 5 provides for compulsory first registration of every conveyance of a fee simple estate etc in a registration district. Section 6 provides for cases in which registration is permitted although subsection (2) provides that as from 9 February, 1979 no registration shall be in fee simple under the Law. The Registrar of Titles shall, in investigating a title with a view to first registration, accept and act on legal evidence or evidence ordinarily required by conveyancers, and if satisfied register accordingly: see s.9. Unless otherwise stipulated, a purchaser on the sale of registered land shall not require any evidence of title but shall depend on the evidence derived from the register as well as from a statutory declaration as to what do not constitute incumbrances: See s.31. Section 65 provides for the survey of registered land, and in particular subsection (2) provides that:

“Where the description of the land is, in the opinion of the registrar, sufficiently definite to enable the land to be located by survey at any time, or such land has been located to the satisfaction of the registrar on a general map provided by the Director of Surveys, the registrar may in his discretion register the land without a survey, but may at any time require the land to be surveyed, or himself cause it to be surveyed at the expense of the registered owner, when, in his opinion, a survey has become necessary to avoid confusion with other registered land or land sought to be registered.”

The advantage of registered title is that the purchaser can discover from the mere inspection of the register whether the vendor has power to sell the land and what the more important incumbrances are except in the case of what may be classified as overriding interest, as contained in s.52 of the Registration of Titles Law, which bind the proprietor of registered land even though he has no knowledge of them and no reference is made to them in the register. Otherwise, a registered owner of land is not affected by notice of any unregistered estate, interest or claim affecting the estate of any previous registered owner, nor is he concerned to inquire whether the terms of any caution or restriction existing before he was registered as owner of such land have been complied with see s.54. Short of rectification of the register carried out in pursuance of s.61, a registered owner’s title is indefeasible. It has been said that a register of title is an authoritative record, kept in a public office, of the rights to clearly defined units of land as vested for the time being in some particular person or body, and of the limitations, if any, to which these rights are subject. With certain exceptions known as ‘overriding interests’, all the material particulars affecting the title to the land are fully revealed merely by a perusal of the register which is maintained and warranted by the State. The register is at all times the final authority and the State accepts responsibility for the validity of transactions, which are effected by making an entry in the register: see Land Law and Registration, 1976 edn., by S. Rowton Simpson, page 16, para. 4.1. As observed by the Privy Council in Gibbs v. Messer (1891) A.C. 248 at 254, per Lord Watson delivering the judgment of the Board in regard to a similar law as to registration of title:

“The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author’s [i.e. vendor’s] title, and to satisfy themselves of its validity. That end is accomplished by providing that everyone who purchases in bona fide and for value, from a registered proprietor, and enters his deed of transfer or mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author’s title.”

In the present case, the appellant did not need any other evidence than Exhibits A, B, C, and C1 to establish his entitlement to the declaration he seeks as the first relief in this action. All he asks for is a declaration that he is the owner of the parcel of land known as plots 89, 91 and 93 in Da Costa Layout, Onike, Iwaya, Lagos State, covered by title No. MO 10246. Exhibits A and B show the root of title which Exhibits C and Cl show the registration of title derived from that root. The said plots 89, 91 and 93 are delineated in survey plan No. C087/72 drawn by a licensed surveyor, C. Olu Dawodu, wherein the dimension and area of each of the plots and the survey beacons demarcating each are clearly indicated as follows:

Plot Area Dimension Beacons

89 557.43 sq yds 999′ x 47.1′

X 100′ X 52.6′ DU 1430, DU 1431

XC 1053, XC 1168

91 636.88 sq yds 100′ x 62′

X 100.2′ 52.6′ DU 1431, DU 1431

XC 1054, XC 1053

93 501.42 sd yds 100.2′ x 59′

X 100′ X 49.3′ DU 1432, DU 1433,

XC 1055, XC 1054

I have given these details to illustrate that the facts as to the identity and location of the parcel of land were available but the two courts below did not make use of them. The lower court was therefore in error to hold, as the trial court did, that the identity of the plots in question was not established. The area of each of those plots can easily be depicted in an enlarged form from the said survey plan No. CO 87/72 by any surveyor in a survey plan. Each plot is not only ascertainable, it is certain in identity. I answer issue 1 in the affirmative and issue 2 in the negative.

Issue 3

The issue here is whether there is evidence that the respondents trespassed on the appellant’s land. The learned trial Judge held that the appellant was unable to show that the respondents have trespassed on plots 89, 91 and 93; and further that there was no credible evidence that the appellant was in possession of the said plots to enable him to maintain an action in trespass. He observed:

“It is important in the case to state that, plaintiff did not testify that the defendants did not only trespass on plots 89, 91 and 93 but they are also occupying these plots now. I would not claim to know the evidential value of Exhibit ‘D’ the Intelligence Sheet obtained from the Land Registry. However, during the course of my judgment this morning, I have studied this document carefully and I found that there appears to be plots 154, 146 and 147. It is clear in the case that the plaintiff who did not call any expert opinion like a licensed surveyor did not submit Exhibit ‘D’ to such expert. If he did and his story is true, of course, the activities of the defendants on these plots would have been shown on plan The question therefore is whether the defendants have their buildings inside 3rd defendant’s land or in Da Costa Layout Apart from the fact that the plaintiff gave evidence to the effect that the plots occupied are plots 145, 146 and 147 which are unrelated plots to this action, plaintiff did not call an expert opinion to state where the defendants had erected their structures.”

This is the crux of the reliefs sought for damages and injunction. Apart from the fact that the evidence shows that plots 89, 91 and 93 indicated in Exhibits B, C and C1 are the same as Nos. 145, 146 and 147 shown in Exhibit D (the Intelligence Sheet) in respect of which the learned trial Judge was in error, his observation is quite appropriate. The lower court also held that the appellant did not demonstrate the connection between the land alleged trespassed on and the said plots claimed by him in Da Costa Layout.

I do not think learned counsel for the appellant has any answer to whether he was able to prove that the respondents trespassed into any part of plots 89, 91 and 93. He continued in this court to present his case upon the faulty assumption with which he did so in the two courts below that the respondents have been shown to be trespassers on his plots. It is inexplicable the way the case in this regard was casually presented at the trial with the result that the said two reliefs sought for damages and injunction were not pursued with any purpose. I accept the argument of appellant’s counsel that once the appellant is shown to be the owner of those plots of land, contrary to the erroneous view of the lower court, he is in exclusive possession or has a right to such possession and that anyone who is on the land without his permission is a trespasser ab initio. However, the question that there has been trespass on the land is a conclusion that can only be reached upon the evidence available. That was how decision was reached in the case of Madubuonwu v. Nnalue (1992) 8 NWLR (Pt.260) 440 cited by him, and similar cases. No argument was proffered to identify the evidence in support of the trespass committed by the respondents. The truth is that there is no such evidence in proof.

The evidence which the appellant was half-heartedly led to give on the question of trespass can be pieced together from his evidence in- chief, when he said –

“In July, 1978, I noticed some persons carrying laterite on the plots of land belonging to me. I challenged the person in charge of the workers Mr. Rasaki Aliu……….Nothing happened until about 27/3/80 when I found people carrying blocks and sand to plots 89, 91 and 93. I challenged the workers The people I met on the land claim (sic) to be tenants of one Bola Ajibola I thereafter applied to the land registry for the Intelligence Sheet of the area in question. The defendants are trespassing on the plaintiff’s land. My Own land on the Intelligence Sheet are No. 145, which is plot 89 Dacosta Layout. The others are No. 146 and 147. Oluwo is occupying No. 145 while Akinremi is occupying No. 146 and 147.”

Later he was cross-examined, as follows –

“Q: You tendered Exhibits G and G1 in your evidence-in- chief.

A: I tendered Exhibits G and G1 as composite plans.

Q: You call them composite plans, what is a composite plan in your own words

A: A composite plan is a plan which shows relative position of lands in dispute by a professional surveyor. It shows Ajibola’s land which has been found not to exist and my own land which has been registered. The composite plan shows that Ajibola’s land does not come near my land – which consists of five plots which are in dispute.

Q: Show the court where the defendants encroached on your land.

A: The defendants encroach (sic) on my land on plot 89 …… The defendants are tenants to Ajibola who have (sic) 110 land in the area.”

The two respondents testified as to how one Bola Ajibola gave them land a, his tenants to build on. They were cross-examined at length and purposelessly upon irrelevant matters and in a most ineffective manner. The closest question put to the 1st respondent and the answer thereto were recorded thus:

“Q: Before you went on the land, the plaintiff told you not to build there.

A: I never saw him until I completed the house.”

The so-called composite plans admitted as Exhibits G and G1 simply indicate the land allegedly laid claim to by the said Bola Ajibola in relation to the plots of land of the appellant. They were not shown to have encroached one upon the other. The purpose of producing such ‘composite plans’ by the appellant in view of what was in contest is anybody’s amazing guess, the appellant himself having said that “The composite plan shows that Ajibola’s land does not come near my land”. So, apart from the weak ipse dixit of the appellant that the 1st respondent was occupying Nos. 146 and 147 (which are indeed plots 91 and 93) and that the 2nd respondent was occupying No. 145 (i.e. plot 89), there is nothing to actually demonstrate this by a proper survey plan showing encroachment particularly as the respondents throughout denied being on any part of the appellant’s land, There is no evidence of any threat by any of them to invade the appellant’s right to the said plots 89, 91 and 93 in L.G. DaCosta Layout, Onike, Iwaya, Lagos State. The appellant has been unable to prove any act of the respondents upon which an order of injunction and award of damages against them can be based. Had he succeeded in doing so, the respondents would have been adjudged trespassers since the appellant whose title to the land is not in doubt has accordingly established his right to possession by virtue of that title. It is trite law that it is a continuing tort of trespass for a person to remain in another’s land without that other’s authority or consent, so that barring defences properly raised and sustained which defeat the right of the owner of such land to complain of the continuing trespass, the land owner is always entitled to protection as appropriate: see Adepoju v. Oke (1999) 3 NWLR (Pt.594) 154 at 163-164.

This appeal partially succeeds and is allowed by me. I set aside the orders of the two courts below which entirely dismissed the appellant’s claim. In their place I give judgment for the appellant as plaintiff allowing his said claim to the extent by the order which I make as follows: A declaration that the plaintiff is the owner of the parcel of land known as Plots 89, 91 and 93, DaCosta Layout, Onike, Iwaya, Lagos State, which parcel of land is covered by Title No. MO. 10246, and that by virtue of the Land Use Act, 1978 and section 6(3) of the Registration of Titles Law (Cap. 166) Vol. 7, Laws of Lagos State, he is entitled to a certificate of occupancy in respect of the said parcel of land. The reliefs claiming for damages and injunction are dismissed. I award the sum of N10,000.00 as costs to the appellant against the respondents.

---

SC.191/1997

Sunday Jegede V.the State (2001)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

The appellant was charged with the offence of rape contrary to S.258 of Criminal Code Law of Bendel State. He was alleged to have raped the prosecutrix, a school girl of under thirteen years within the premises of University of Benin Staff School on 24th May, 1989. The prosecution further alleged that the prosecutrix thought the appellant was a teacher at the same staff school and that she at his behest volunteered to help to count the bad toilets at the school. It was while doing this that the appellant grappled her and raped her. The appellant, on his side maintained he never committed any offence; all that happened, according to him, was that the prosecutrix and her elder brother were his pupils at a private tuition school and that their father still owed him unpaid fees. At the time of the alleged offence the prosecutrix’s age was put at eleven years, being born in August, 1978. She denied being appellant’s pupil at any time in 1989, much less her father owing him any outstanding fees. The prosecutrix maintained she told her father what happened to her the same day when he came to pick her up but he did nothing on that day. The trial court convicted the appellant of the offence of rape and sentenced him to five years imprisonment. On appeal to Court of Appeal the conviction for rape was set aside and that of attempted rape was substituted. Thus the appeal to this court.

The appellant formulated four issues for determination in this appeal as follows:

“1. Whether given all circumstances of the case, the prosecution proved the offence of rape or attempted rape, more so when the evidence of the prosecutrix (PW2) relied heavily upon by both trial court and Court of Appeal was inadmissible as having been received contrary to section 155(1) and 183(1) of the Evidence Act.

2. Whether the court can properly convict the appellant on the evidence of PW3
3. Whether having regard to the finding of the lower court that the evidence of PW1 did not link the appellant with the offence of rape, whether it was still open to the Court of Appeal to use the same evidence to convict the appellant for attempted rape.
4. Whether the Court of Appeal was right in law and fact to hold that there was no need to corroborate the evidence of PW2 the victim of the alleged attempted rape”

It must be pointed out that the prosecutrix never raised any alarm or complained at the alleged scene of the crime, during or immediately after the alleged assault. She testified that later when her father came to pick her home she complained to him that the appellant had raped her. The witnesses from the school never noticed anything unusual when the prosecutrix and the appellant were moving from one section to another looking for prosecutrix’s brother. The prosecutrix’s father was not called at the trial to testify as important as his evidence would have been. The PW1, Dr. Suleman Abu, worked in the same hospital with prosecutrix parents. Her father was a medical consultant and her mother was a Chief Matron. It was several hours after the alleged sexual attack that the police were called in on 24th May, 1989. It was on 26th May, 1989 that PW1 medically examined the prosecutrix. The evidence of PW1, a pathologist was devoid of some essentials to prove rape. All he found was tender vagina with purplish blue mucosa. He opined that it might be due to traumatic inflammation and that a swab showed some evidence of styphycocus and yeast cells. He also believed the girl (i.e. prosecutrix) had “forceful penetration of the genital tract” and that by his experience the injuries could have been there for as far back as forty-eight to sixty hours to the time he examined her. He was never afforded the opportunity of examining the appellant immediately after the alleged rape. The questions left unanswered by PW1 are: what is the age of the prosecutrix” was her hymen torn during the alleged rape Was the prosecutrix a virgin The evidence of PW1 thus has not satisfied proof necessary to secure a conviction for rape. Whether the prosecutrix was a minor or an adult there must first be proof of penetration and that penetration of the vagina must be linked with the appellant. There was no evidence before trial court to satisfy these requirements. The Court of Appeal was perfectly right to hold there was no evidence of rape. Whether by dilateriness of the police and or of the father of the prosecutrix, the prosecutrix was not taken for medical examination not until 26th May, 1989, more than 48 hours after the alleged attack. The opinion of the pathologist has not been scientifically conclusive as to rape. As the written record of proceedings stands the evidence that the accused had any carnal knowledge of the prosecutrix is superficial and therefore inconclusive. The medical evidence has left many holes uncovered. The offence of rape is “the unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act, or in the case of a married woman, by personating her husband…….. ”

Thus rape is only committed in circumstances set out above with clear evidence of penetration and who was responsible for it. The whole case is based on the evidence of the prosecutrix and PW3, the headmistress of the school she was attending. PW3 relied entirely on hearsay and the prosecutrix herself never gave convincing evidence. The delay in sending her to PW1 for medical examination and the evidence of the doctor himself left a great gap in credibility.

The Court of Appeal set aside the conviction for rape because there was insufficient evidence to justify it. But it went ahead and convicted for the offence of attempted rape under S.359 of Criminal Code Law of Bendel State. Then what is the offence of attempt under our law If a person intends to commit an offence, and in the process of putting his intention into execution by means he has adopted to its fulfillment, and thereby manifests his intention by some overt act, but actually falls short of his intention to commit that offence intended either through an intervening act or involuntary obstruction is said to commit the attempt of the offence intended. (See S.6 of the Criminal Code). The end to which the accused arrived must have been substantially attained but for intervention which he never volunteered to meet or anticipated which prevented the commission of the full offence intended. (See Orija v. Police (1957) NRNLR 189; Police v. Fowowe (1957) WRNLR 188). There is no evidence to show conclusively that the appellant attempted to rape or even assaulted the prosecutrix. The substitution of the offence of attempted rape is therefore not justified.

The issue of whether the evidence of prosecutrix was admissible because of her age does not arise in this matter. Certainly evidence of PW3 is based entirely on hearsay and it is no corroboration of prosecutrix’s evidence. The appellant has not been linked with any rape or attempted rape. The net result is that this appeal has great merit and I allow it. I set aside the verdict of Court of Appeal on attempted rape. I enter a verdict of discharge and acquittal.

---

SC.133/2000