Oba Amos Babatunde & Anor. Vs Mr. Simon Olatunji & Anor (2000)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

The main question that arises for determination in this appeal is: Whether a person against whom a judgment is given or an order made can disobey and ignore it on the ground that it is null and void. This is informed by the fact that in the appellants view, the decision in the earlier case in Suit No. Z/11/67 by the High Court of Kwara State was given without jurisdiction contrary to the provisions of Section 161 (3) of the 1963 Constitution. The proceedings in that suit were admitted in evidence as Exhibit 1 in the present case. It was argued that the said proceedings were null and void and should have been treated as non-existent.

Section 161(3) of the 1963 Constitution reads:

“161(3) Notwithstanding anything in any other provision of this Constitution (including in particular sections 32 and 53 of this Constitution) but without prejudice to the proviso to subsection 1 of section 22 and subsection 4 of section 27 of this Constitution, no chieftaincy question shall be entertained by any court of law in Nigeria, and a certificate which is executed by an authority authorised in that behalf by a law coming into force in a territory on or after the date of the commencement of this Constitution (including a law passed before that date) and which states-

(a) that a particular person is or was, by reference to that territory or a part of it, a chief of a specified grade at a specified time or during a specified period; or

(b) that the provisions of a law in force in that territory relating to the removal or exclusion of chiefs or former chiefs from areas within the territory have been complied with in the case of a particular person, shall be conclusive evidence as to the matters set out in that statement.”

Exhibit 1 tendered at the trial as I have already indicated is a certified true copy of the Writ of Summons, Statement of Claim, Statement or Defence, the trial proceedings and the judgment or the High Court of Justice, llorin in Suit No.Z/11/1967 between Olukotun Adeniyi and Anor v. Amos Babatunde Alaran & Anor’. On the face of it, the subject matter in that case was a chieftaincy dispute. In that case, when in 1967 Adewoye Aromokeye from Ile Oba Ibuoye became the Odofin, the predecessors-in-title of the 2nd appellant herein took the 1st appellant Oba Amos Babatunde and the late Odofin Adewoye to Court. That suit was dismissed. There was no appeal there from.

The facts of the present case are simple. In 1989, after the demise of Odofin Gabriel Adewoye from The Oba Ibuoye Ruling House, the respondents selected and presented one Chief Ajitoni Ibuoye to the 1st appellant to be appointed and installed as the Odofin of Arandun. The 1st appellant refused and rather accepted and approved the nomination of the 2nd appellant, who was subsequently installed as Odofin of Arandun on 8th June, 1989. In consequence of this, the respondents brought an action in the Kwara State High Court at Omu-Aran.

At the trial court, the respondents-as-plaintiffs sought the following reliefs in paragraph 16 of their Statement of Claim:-

“Declarations:-

1. That under the native law and custom of Arandun the families of the 2nd Defendant are not entitled to ascend the stool of Odofin of Arandun.
2. That the appointment, installation and recognition of the 2nd Defendant as Odofin of Arandun is irregular, null and void.

3.That Chief Ajitoni Ibuoye being the rightful nominee of the Ile-Oba Ibuoye Ruling Family is the rightful person to become the Odofin of Arandun immediately after Gabriel Adewoye (deceased).

4. Orders:

(i) Setting aside the purported nomination, appointment and installation of Ayinla Aransiola, 2nd defendant, as Odofin of Arandun.

(ii)Perpetual injunction restraining the defendants, their servants, privies or any person howsoever deriving authority, permission or order from any of them, from recognising or continuing to recognise, deal with, address regard the 2nd defendant as the Odofin of Arandun.

(iii)Perpetual injunction restraining the 2nd defendant from continuing henceforth from calling, introducing, parading, addressing or presenting himself either to defendants or any person(s) howsoever and at any occasion or place as Odofin of Arandun.

(iv)Directing the defendants to appoint and install Chief Ajitoni Ibuoye as Odofin of Arandun within 30 days from the date of judgment.”

The plaintiffs called 3 witnesses and tendered Exhibit 1. The defendants called 5 witnesses and tendered 8 Exhibits. The learned trial Judge after an evaluation and consideration of the evidence: oral and documentary, entered judgment for the plaintiffs.

The defendants’ appeal to the Court of Appeal was dismissed. They have further appealed to this court. As I have already indicated the question to be resolved is whether a person against, or in respect of, whom an order is made or a judgment is given by a court of competent jurisdiction can disobey and ignore it on the ground that it was null and void. In the context of this case, it was submitted for the appellants that a judgment or order given or made without jurisdiction is a nullity; that lack of jurisdiction in the court deprives the judgment or order of any valid existence and or effect whether by estoppel or otherwise. For this submission, learned counsel relied on the case of J.C. Ltd. v. Ezenwa (1996) 4 NWLR (Pt.443) 391 at 414 – 415. It follows from that submission that the action in Suit no. Z/II/67 (Exhibit 1) did not lie when it was instituted because by virtue of Section 161(3) of the Constitution of the Federation 1963 the pleadings, the entire proceedings and judgment in that suit (No.Z/11/67) are non existent and should not have been received in evidence. This is so because the provisions of Section 161(3) aforesaid, oust the jurisdiction of any court of law in Nigeria in matters relating to chieftaincy question. Since Suit No. Z/11/67 (Exhibit 1) involved the determination of a chieftaincy question no court of law in this country had the jurisdiction to hear and determine such question. That being so, it was contended, there could be no judgment (Exhibit 1) in a case that by constitutional law could not be heard. Learned counsel for the appellants relied on the case of Governor of Oyo State v. Afolayan (1995) S NWLR (Pt. 413) 292 at 321 and 329.

For his part, learned counsel for the respondents submitted that unless and until Exhibit 1 is set aside by a competent court, it remains valid and binding and cannot therefore be ignored. He relied on the case of Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 371 – 372.

In order to appreciate the submissions of counsel on the issue under consideration, it is necessary to reproduce the salient paragraphs of the Statement of Claim and the Statement of Defence. The respondents as plaintiffs in paragraphs 9 – 13 of their amended Statement of Claim pleaded thus:

9. The Plaintiff state that after the demise of Odofin Arandun. Odofin Awofaran from Ile Oba lbuoye family, one Ajiboye Oyebanji from the family of the 2nd defendant in 1967 was wrongly nominated by Ilufemiloye family to ascend the throne, the 1st defendant who was the Alaran of Arandun on the throne at the time failed, refused and rejected the nomination, rather he in good conscience accepted the nomination and appointmenl of Odofin Gabriel Adewoye. He accordingly installed him and continued to recognize and accorded Odofin Adewoye respect until he died.

10.The Plaintiffs aver that the said Ajiboye Oyebanji and one Olukotun Adeniyi being dissatisfied with the appointment of Gabriel Adewoye filed a suit to challenge the appointment vide Suit No. Z/11/67. Olukotun Adeniyi, Ajiboye Oyebanji v. Amos Babatunde Alaran & Gabriel Adewoye Odofin.

11.The Plaintiffs aver that the suit was dismissed; the plaintiffs plead and will tender at the hearing, the certified true copy of Writ of Summons, the Statement of Claim, the Statement of Defence, the proceedings at trial and judgment of the Court.

12.The Plaintiffs aver that Alaran, Amos Babatunde being the custodian of the people’s custom and tradition in the Statement of Defence filed in the suit stated the position of Odofin Chieftaincy correctly.

13.The Plaintiff will give evidence of families entitled to become Odofin Arandun. the history and names of previous holders of the office and their relationship with the Plaintiff.

14.The Plaintiffs avert that on the demise of Odofin Gabriel Adewoye, the family or the Ruling House properly and validly entitled indeed nominated Chief Ajitomi Ibuoye to ascend the vacant stool but the 1st defendant in violation of the custom and tradition of Arandun; in contradiction of his avowed position in Suit No. Z/11/67 stated above, nominated and installed the 2nd defendant as the Odofin of Arandun.

On the oher hand; the appellants as defendants joined issue on the paragraphs of the amended Statement of Claim reproduced in paragraphs 12 and is of their Statement of Defence. They pleaded thus:

“12. Further to paragraphs 9, 10, 11 and 12 of the Statement of Claim, the defendant aver as follows:-

(i) That the 1st defendant never gave evidence to support any pleading in Suit No. Z/11/67 mentioned in paragraph 10 of the Statement of Claim:

(ii) That none of the defendants in the said case also gave any evidence and that no body asserted in evidence in the said case that the 2nd defendant’s family is not entitled to ascend the stool of Odofin.

18. The defendants shall contend at the trial of this case that Suit No. Z/11/67 vests no right or interest on the plaintiffs family to the exclusion of the 2nd defendant’s family or any of the four ruling houses to ascend to or monopolise the Stool of Odofin of Arandun and neither was any evidence led nor any pronouncement made to justify the stand they now take in this case.”

The learned trial Judge in the course of his judgment observed at page 170 to 171 thus:

“The next point for consideration on the issue of the native law and custom of Arandun regarding the Odofin chieftaincy title is the effect of exhibit 1 which is the record of proceedings and judgment in the case between 2nd defendant’s relatives on one hand, and the 1st defendant with the late Odofin Gabriel Adewoye on the other hand. In Exhibit 1 page 2 the plaintiffs therein claimed that there are 4 Odofin chieftaincy families at Arandun and that it was the turn of Oba Ilufemiloye family which has unanimously made its choice of the 2nd plaintiff therein and presented same to the 1st defendant (now the 2nd defendant herein) for approval.

The 2 defendants therein averred at page 4 that there are only 2 Odofin chieftaincy families in Arandun rotating the title and they are:-

(1) The house of Odun and

(2) The house of Odofin Alaran

They went further that Ile Oba Ilufemiloye is not an Odofin house. In its judgment which was not appealed against the court at page 14 dismissed the plaintiffs’ action.

That specifically is a decision on the issue of the right of Ile Oba llufemiloye to ascend the Odofin stool. It is a valid subsisting and extant judgment by a competent court which has decided against the right of the unanimous choice of Ile Oba IIufemiloye to ascend the Odofin stool. The 2nd defendant said that he was then aware of the litigation by his relatives.”

The learned trial Judge continued at page 172 as follows:

“Can the 1st and 2nd defendants resile from the position taken in exhibit 1? I think not, in exhibit 1 the 1st plaintiff who was the Olukotun and in that capacity chief of Ile Oba IIufemiloye and the 2nd plaintiff who was the unanimous choice of the family for Odofin stool were in the circumstance fighting the battle of the entire family. This is clearly borne out by their pleadings. The battle line was drawn between Ile Oba Ilufemiloye and the Alaran of Arandun from Ile Odun and the then Odofin from Ile Oba Ibuoye. The issue centered on the right or otherwise, of Odosare to fill Odofin stool. The decision is unequivocal that it had no such right.”

The court below affirmed the decision of the court of trial. It agreed that the contents of exhibit 1 bind the appellants and that they could not resile from it.

I think the option open to a person against whom an order was made or a judgment given is plain. He should apply to the court to discharge the order or appeal against the judgment that it might be set aside as the case may be. This is good sense, for as long as the order or judgment existed, it must not be disobeyed. A judgment of a court of competent jurisdiction remains valid and binding, even where the person affected by it believes that it is void, until it is set aside by a court of competent jurisdiction. In Chuk v. Cremer (1846) 1 Coop. temp. Cott. 342; 47 E. R. 884 Lord Cottenham, L. C. said:

“A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it… It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.”

This view was re-echoed by Romer, L.J. in Hadkinson V. Hadkinson (1952) 2 All E.R. 567 where he said:

“It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

In a nutshell, the judgment of a court of competent jurisdiction subsists unless and until it is set aside even where the person affected by it believes it to be void or irregular. The procedure for selling it aside is simple. The party affected must appeal against the judgment.

The position clearly therefore is this. That a person, who knows of a judgment, whether null or valid given against him, by a court of competent jurisdiction cannot be permitted to disobey it. His unqualified obligation is to obey it unless and until that judgment has been set aside. See Rossek v. A. C. B. Ltd. (1993) 8 NWLR (Pt.312) 382; Hadkinson v. Hadkinson (1952) 2 All E.R. 567. It is settled practice that there is a presumption of correctness in favour of a court’s judgment. Unless and until that presumption is rebutted and the judgment is set aside, it subsists and must be obeyed. It cannot for any reason under our law be ignored. In Oba Aladegbemi v. Oba Fasanmade (1988) 3 NWLR (Pt.81) 129 Eso JSC held thus:

“… for a court of competent jurisdiction, not necessarily of unlimited jurisdiction (and I will come to this anon) has jurisdiction to decide a matter rightly or wrongly. If that court never had jurisdiction in the matter, then its decision is, without jurisdiction, void, but then should a court of law not even decide the point? That is, the court without jurisdiction decided without jurisdiction? Should the decision just be ignored? Surely it would not make for peace and finality which a decision of a court seeks to attain. It would at least be against public policy for persons, without the backing of the court, to pronounce a court decision a nullity, act in breach of the decision whereas others may set out to obey it. In my respectful view it is not only desirable but necessary to have such decisions set aside first by another court before any act is built upon it despite the colourful diction of the law Lord in U.A.C. v. Macfoy (supra). ”

The appellants have argued that it was not necessary to have the decision in Suit No. Z/11/67 set aside on appeal. In the light of the law on this point which I have highlighted above, this argument is fallacious; it is badly flawed. The decision is valid and subsisting. And it is presumed correct. Until that presumption is rebutted on appeal and the decision is set aside, the person affected by it must obey it.

In the light of the foregoing, this appeal must fail. Accordingly I dismiss it and affirm the decision of the court below. The respondents are entitled to costs which I assess at N10,000.00.

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SC 148/1995

Alhaja Rafatu Ayorinde & Ors V. Alhaja Airat Oni & Anor (2000)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C.

The appellants as plaintiffs at the Lagos High court instituted this action in a representative capacity (as representing themselves and other descendants of late Gbadamosi Fagbuyi Ayorinde otherwise known as Ayande) against the defendants. They claimed as follows:

“(i) A declaration that the Plaintiffs are the owners of the property situate, lying and known as No.67, Docemo Street, Lagos being an Estate of inheritance from their ancestor, Late Gbadamosi Fagbuyi Ayorinde otherwise known as Ayande.

(ii)A declaration that the Plaintiffs are the persons entitled to Certificate of Occupancy in respect of the said land.

(iii) Possession of the property.

(iv)Order of perpetual injunction restraining the defendants whether by themselves their servants and/or Agents from further act of trespass on the land.”

On 3/1/90 the learned trial Judge, Adeyinka, J. entered judgment in favour of the plaintiffs. On defendants’ appeal, the Court of Appeal unanimously reversed the judgment of the trial court and found for the defendants. Dissatisfied with the lower court’s judgment, the appellants have now appealed to this Court by Notice of Appeal dated 22/6/94. From the judgment of the lower court, appellants’ learned counsel, L. B. Lawal-Akapo, Esq. identified five issues for determination, namely:

“(1) Whether or not an action will fail because of NON JOINDER of a Party.

(2)What is the legal effect of a person who had knowledge (whether actual or constructive) or the pendency of a suit the result of which may likely affect his interest and did not apply to be joined as a Party.

(3)Whether judgment can be entered against a person sued in one capacity in a different (sic) capacity other than the capacity in which he was originally sued.

(4)Whether or not the judgment of a Court could stand where the Court did not consider the case or argument put (sic) forward by one Party and make a definite finding one way or the other.

(5)Whether or not a Court can discredit and reject the submission of a party on a major point of appeal and proceed to enter judgment in favour of the same party on the ground that the appeal was not focused or premised on the discredited and rejected submission.”

Respondents’ learned counsel, Messrs Onafowokan & Onafowokan postulated two issues for determination. viz,

(a)whether having regard to the nature and the manner in which the relief sought by the Plaintiffs in the trial court and the findings of the trial court that the Defendants are not the children and grand children of Yisa Giwa neither are they the descendants of Yisa Giwa, the Appellate Court was right in holding that the action was not properly constituted.

(b)whether having regard to the Writ of Summons and the Statement of Claim filed in this suit and the Plaintiffs’ contention throughout the trial that the action was against the children of Yisa Giwa coupled with the findings of the trial court that the Defendants were not the children of Yisa Giwa against whom the Plaintiffs was seeking reliefs, the Appellate court was right in striking the case out for non-joinder of the children and grandchildren of Yisa Giwa.”

At the oral hearing, Mr. Lawal-Akapo, learned appellants’ counsel submitted that non-joinder of a party cannot defeat an action and calls in aid the Supreme Court decision in Onayemi v. Okunbi (1965) All NLR (Reprint) 378. For the respondents. Mrs. Onafowokan emphasised that the question is, was the action properly constituted before the trial court To this question, the Court of Appeal answered in the negative because the defendants/respondents were sued in a representative capacity as children of one Yisa Giwa but it turned out that the defendants/ respondents before the court were the children of one Musa Giwa and the trial court decided to give judgment in their personal capacity. The Court of Appeal held that the trial court was wrong to so hold. She finally submitted that since the plaintiffs/appellants had neither joined nor sued the right parties, the action was bound to fail and to buttress this proposition she called in aid the authorities of Ekpere & ors v. Aforije (1972) 1 All NLR (Pt.1) 220 and Onwunalu v. Osademe(1971) NSCC Vol. 7 13. Some basic facts in relation to the case leading to this appeal may be recapitulated graphically. The parcel of land which comprises the subject-matter of this appeal is situate, lying and otherwise known as No.67 Docemo Street, Lagos. It is common ground that the late Gbadamosi Fagbuyi Ayorinde, otherwise known as Ayande. was the owner of the parcel of land by venue of a Crown Grant dated 7th June. 1971. registered at No.467 page 467, Vol.6 in the lands Registry, Lagos. All the appellants are the descendants of late Gbadamosi Fagbuyi Ayorinde who died intestate and in possession of the property. Yisa Giwa (mistakenly referred to as Musa Giwa. both in the writ and the statement of claim) and his children also lived on the property in the life time of Ayorinde and after his death, with the permission of the appellants and without payment of rent. The children and/or descendants of Yisa Giwa, by an arrangement with the respondents decided to redevelop the property without reference to the appellants who in turn challenged this move by institution of this action. For better understanding of the issue which formed the central theme of the appeal before this Court. I intend to reproduce the relevant excerpt of the judgment of the trial Judge which runs as follows:

“I also refer to my finding that the plaintiffs are entitled to a declaration of title to the land in dispute. It follows that the children of Yisa Giwa became customary tenants to the plaintiffs. Ayorinde did not give the property to Yisa Giwa as blood relation but as a friend. It follows that if Sala Giwa the junior sister to Yisa Giwa shared possession of the property with Yisa Giwa as per the evidence of the 1st defendants witness, Sala Giwa had no interest in the property. The 1st and 2nd defendants being grandchildren of Sala Giwa have no interest in the property in dispute and therefore have no tenancy relationship with the plaintiff. (sic) The children and grandchildren of Yisa Giwa who had customary tenancy relationship with the plaintiffs as their overlord did not join the defendants to defend this action. The 1st and 2nd defendants demolished the original property at No.67 Docemo Street and erected a new building thereon. The 1st defendant witness a child of Yisa Giwa testified that she and her brothers and the children of Sala Giwa rebuilt the property. The 1st defendant witness and the other children of Yisa Giwa ought to have join (sic) as co-defendants to resist the plaintiff’s claim and not to leave the two defendants whom they have allegedly authorised to rebuild the property.

It was wrong of the plaintiffs to sue the two defendants as children and grandchildren of Musa Giwa. Evidence before the Court showed that what the plaintiffs called Musa Giwa was Yisa Giwa. But the two defendants are not children and grandchildren of Yisa Giwa whom the plaintiffs knew had customary tenancy with their late father and grandfather Ayorinde but of Sala Giwa.”

Further down in his judgment, his Lordship said as follows:-

“I held that the plaintiffs are entitled to the relief of possession of the property against the two defendants but not as children and grandchildren of Musa Giwa. The capacity of the defendants is hereby amended accordingly”.

Finally, in the penultimate paragraph to the end of the judgment, this is what his Lordship said:

“I refer to the Afolabi v. Adekunle case, supra and hold that judgment will be given to the plaintiffs in their representative capacity. The defendants (sic) pleading and the evidence showed that the name of the 2nd defendant was FASIU BANIRE and not WASIU BANIRE and I so amend.”

The summary of the excerpts reproduced above may be stared as follows:

(a) There is a finding that Yisa Giwa was a customary tenant of Ayorinde and not tenant at will as asserted by the respondents;

(b) Respondents (as defendants) were not the children and grand children of Yisa Giwa against whom the plaintiffs/appellants alleged they had customary tenancy with their father and grand father;

(c)The court also made a finding that the respondents were not the children and grandchildren of Yisa Giwa but the children and grand children of Sala Giwa;

(d) Evidence before the court showed that the person the plaintiffs called Musa Giwa was Yisa Giwa;

(e) The court found the respondents were not the children and grand children of Yisa Giwa and accordingly it entered judgment against them, and suo motu amended their representative capacity to be in their personal capacity, and

(f) The court also, suo motu, amended the name of 2nd defendant to be Fasiu Banire.

It is necessary to have a close look at the two sets of issues submitted to the Court for the determination of this appeal and see which is more appropriate in the circumstances of this appeal. The crux of this appeal, as it appears to me, neatly raises the question whether the action from which this appeal is predicated was competent in terms of being properly constituted. Clearly, if the action as formulated by the appellants qua plaintiffs was properly constituted, them most of the issues postulated by the appellants may become live issues, whereas, if, on the other hand, the appellants’ action was defectively constituted, then the several issues postulated by them may not avail them in any way whatsoever. It is against this background and in the circumstances of this appeal that I feel obliged to prefer the issues postulated by the respondents. They make for tidier analysis of the real controversy raised in this appeal.

I shall now consider the primary or main issues postulated by the parties that would be sufficient to determine this appeal. For the appellants, I am of the view that issues Nos. 1 and 2 are sufficient in this regard while the only two issues formulated by the respondents, taken together, would be apt to dispose of the controversy in this appeal. I shall now examine the submissions by the two learned counsel against the background of what I have said starting with the appellants’ counsel.

Appellants’ learned counsel Lawal-Akapo, Esq submits that non-joinder of a necessary party will not defeat the action or render the judgment of the court a nullity. Consequently, according to counsel, failure to join the children of Yisa Giwa (also called Musa Giwa) ought not to have led the lower court to the conclusion that the action was not properly constituted as to entitle the court to strike out the claim; counsel calls in aid the decision in Leonard Okoye & Ors v. Nigerian Construction & Furniture Co. Ltd. & Ors (1991) 6 NWLR (Pt.199) 501 at 512. Continuing, learned counsel on his Issue No.2 and as an extension of the submission in his Issue No.1, further submits that where a person who has a vested interest or right on a matter and has knowledge of the pendency of a suit in respect thereof, and which may likely affect his interest, he must of necessity apply to be joined in the proceedings, and where he fails to do so he would be bound by the outcome of the suit. Counsel referred to the testimony of 1st DW that the children of Yisa (Musa) Giwa were aware of the pendency of the suit in relation to the land in dispute and failed to apply to be joined. The consequence of their indifference is that they are bound by the result of the suit and relied on the authorities of Green v. Green (1987) 3 NWLR (Pt.61) 480; (1987) NSCC Vol.18 P. 1115; Ekpoke v. Usilo (1978) NSCC 413 at 414 and Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 13 NSCC 477 at 478.

Responding to the above submissions, Mrs. Onafowokan, learned respondents’ counsel points out that from the outset of the trial of this case, the appellants as plaintiffs made it clear, both from their pleadings and evidence, that one Yisa Giwa was the customary tenant of their late father and that they were seeking their various reliefs, in particular, an order for injunction, against the children and grand children of Yisa Giwa. She also observed that one of the findings of the trial court was that the respondents were not the children and grand children of Yisa Giwa but those of one Sala Giwa. She then submits that customary tenancy of Yisa Giwa should first be determined before an order of injunction can be made. She further submits that since the learned trial Judge found that the 1st and 2nd defendants being grand children of Sala Giwa have no tenancy relationship with the plaintiffs because the tenancy relationship was between their (plaintiffs’) father and Yisa Giwa, it follows that the persons whose customary tenancy had to be determined were not made a party to the suit. The granting of an order of injunction, in effect, means the determination of the tenancy of the children and .grand children of Yisa Giwa without making them a party to the suit and thereby denied them the opportunity of being heard. She further submits that to do so is against the principle of audi alterem partem. In other words, she submits that since the plaintiffs did not join the persons against whom they were seeking relief, the action was not properly constituted and ought to have been struck out, relying on the same authorities of Okoye v. Nigerian Construction & Furniture Co. Ltd. (supra) and Ekpere & ors v. Aforije (1972) I All NLR (Pt.1) 220.

Having closely examined the submissions of learned counsel for the parties, the pleadings and evidence led at the trial, as well as the decision of the lower court reproduced his Lordship’s observation in this regard, I wish, if only by way of emphasis, to reproduce it again in this judgment. Said he:

“It was wrong of the plaintiffs to sue the two defendants as children and grand children of Musa Giwa, Evidence before the court showed what the plaintiffs called Musa Giwa was Yisa Giwa. But the two defendants are not children and grand children of Yisa Giwa.”

For all intents and purposes, it follows that the two defendants on record, having been found not to be children and grand children of Yisa Giwa, ought, in all honesty, to have been struck out, leaving the position of defendant or defendants wholly void. If there is no competent defendant on record, before the case went to trial and throughout the trial, certainly the action in respect thereof would be struck out on the ground that it is improperly constituted. Any thing to the contrary will be absurd and unacceptable.

The circumstances of the case in hand may be likened to those in the case of Ekpere & ors v. Aforije & ors (1972) I All NLR(Pt.1 )220 which learned counsel for the respondents cited and relied on. Here, the plaintiffs sought a declaration as representatives of the Mosogan Community of Jesse Clan which in effect meant that the Jesse Clan had no interest in the land in dispute the said Jesse Clan not having been made a defendant in the action through appropriate representation. Delivering the judgment of the Supreme Court, Lewis, JSC at p.228:

“Now as to Chief Williams’ first point, as we have already indicated, in our view it was absolutely clear both on the claim as formulated in the writ and in the Statement of Claim that the plaintiffs were seeking to obtain declarations that the Jesse Clan as such, had no interest in the land in dispute as it was Mosogan Village Community land and had no right accordingly to deal with the land on behalf of the Jesse Clan through its representatives when they made the lease (Exhibit JU1) and that the lease should therefore be declared null and void. That being so we do not understand why the plaintiffs saw fit when bringing the action, not to make the Jesse Clan through appropriate representation a defendant to the action.”

By this, the Supreme Court upheld the contention of Chief Williams that the action was entirely wrongly constituted as the relief sought was against the Jesse Clan yet the Jesse Clan as such was never made a party to the action.’ In the result, the court ordered that the action be struck out with costs.

Learned counsel for the appellants had, inter alia, submitted that where a necessary party to an action, for one reason or the other, was not joined, the non joinder will not render the judgment a nullity. This is a correct statement of the law. In my opinion, failure to join a necessary party in an action is a procedural irregularity which does not affect the competence or jurisdiction of the court to entertain the matter before it. But where the irregularity leads to injustice or unfairness to the opposing party, it may lead to setting aside the judgment on appeal. It is pertinent to emphasise the fact that failure to join the descendants of Yisa Giwa in the action leading to this appeal did not render the judgment a nullity on the ground of lack of jurisdiction.

For completeness, it is relevant to note that counsel for both parties cited and called in aid the relatively recent decision of this Court in Okoye v. Nigerian Construction and Furniture Company Ltd. (supra) as it relates to the various options open to an appellate court where it reaches the conclusion that an action is improperly constituted because those who would have been parties were not made and the case proceeded to trial. In the leading judgment, Akpata, J.S.C. identified these options, depending on the facts of each case, as

“1. To remit the case for re-trial and for those who ought to have been joined to be joined;

2. To strike out the action if a re-trial would necessitate extensive and/or complicated amendments to the writ and statement of claim to reflect the joinder;
3. To join for purposes of the appeal the person who ought to have been joined in the trial court; and
4. To hold that the person complaining that he ought to have been joined was not such a necessary party and that the non-joinder would not defeat the cause or matter.”

The circumstances of the case under appeal were rather curious, as earlier observed, in that the learned trial Judge found as a fact that the defendants/respondents were falsely sued as children and grand children of Yisa Giwa and castigated the appellants that they were wrong to have sued the defendants as children and grand children of Yisa Giwa. I am clearly of opinion that in the circumstances of this case two alternatives are open to this Court, namely, either to remit the action for retrial after the proper defendants i.e. true descendants of Yisa Giwa would have been ascertained and then joined as party or to strike out the action on the ground that it was improperly constituted. I would adopt the latter approach as the former may be fraught with further procedural difficulties of embarking on series of amendments of the writ and statement of claim.

In the result, I am clearly of the same view with the Court of Appeal that the crucial issue in this appeal was the fact that the action was improperly constituted. Consequently, the proper order to make in the circumstances, for reasons earlier stated, was an order striking out the case. I so hold. Accordingly, I dismiss this appeal as lacking in merit. I assess and award N10,000.00 costs in favour of the respondents.

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SC.240/1994

L.O. Dike & Ors Vs Dr Osita Aduba & Anor (2000)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

Two actions were pending in different courts between the same parties. One was earlier filed by the respondents as suit No. MO/660/92 in the Magistrates’ Court. Onitsha. The other was filed by the appellants as suit No. 0/390/92 in the High Court, Onitsha. Although both were in respect of the same subject matter, namely, the tenancy of a flat and out-houses at No. 42 Mba Road, Inland Town, Onitsha, the suit in the High Court raised more issues than that in the Magistrates’ Court which merely sought possession and mense profits on the ground that the yearly tenancy had been duly determined. But the High Court case seems to suggest that the appellants had ceased to be mere tenants in view of some collateral contractual considerations and an alleged tortuous act of the respondents of some magnitude in connection with the property. The claim was for a number of reliefs, including special and general damages of N900,000.00 and an order for the High Court Judge (Ononiba, J.) to transfer the suit in the Magistrates’ Court to his court.

The respondents had filed and argued a motion unsuccessfully in the High Court to have suit No. 0/390/92 struck out on the grounds that it was an abuse of court process. In the meantime, the appellants applied to the administrative Judge of the High Court Onitsha to transfer the suit in the Magistrates’ Court to the High Court presided over by Ononiba, J. which would enable Ononiba, J. to consolidate the two suits for hearing and determination. That order of transfer was made on 13 January, 1993 by Nwazota, J. On appeal, the Court of appeal set aside the transfer order on 24 February, 1994 and directed that suit No. MO/660/92 be sent back to the Magistrates’ Court to be determined there. On further appeal to this court, two issues have been raised for determination as follows:

“1. Whether the Court of Appeal was right in setting aside the order made by Nwazota, J. wherein he transferred suit No. MO/660/92 from Onitsha Magistrates (sic) Court to Onitsha High Court to be consolidated with suit No. 0/390/92 and in sending suit No. MO/660/92 back to the Magistrate (sic) Court Onitsha for hearing?

2. Whether the mere fact that a claim for an order of transfer was erroneously included in the writ of summons in Suit No. 0/390/92 pending before Ononiba, J. who. in any event, had no jurisdiction to entertain the claim, was sufficient to preclude Nwazota, J. acting as the Administrative Judge in the Onitsha Judicial Division from exercising his undoubted Jurisdiction under Order 19, rule 5(1) of

the Anambra State High Court Rules, 1988 to make the transfer order in this case?”

There is no argument that the order of transfer of the suit in question from the Magistrates’ Court to the High Court was made under Order 19, rule 5 (1) of the Anambra State High Court Rules, 1988. There is also no question that the judge who made the transfer was the Judge in charge of administrative duties. The said Order 19, rule 5 (1) provides inter alia,:

“5(1) An application for the transfer of any cause or matter from a Magistrate’s (sic) Court … to the High Court, may be made to the Chief Judge or to the Judge of the High Court designated by the Chief Judge as the Judge in charge of administrative duties … in writing, using Form 20, if by a party to the suit, or Form 21. if by a magistrate. addressed to the Chief Registrar or to the Registrar of the court, as the case may be.”

It is important to state the procedure that follows such an application. It is contained in rule 5(2) which provides that:

“The Chief Registrar shall place the application before the Chief Judge. and shall transmit the order (granting or rejecting the application), sealed with the seal of the court to the Magistrate’s (sic) Court concerned and to the new court if the application be granted, for the information of the parties to the suit. The Registrar of the High Court. where the application was made to the High Court Judge, shall take similar action as the Chief Registrar.”

It will be seen from Form 20 or Form 21 that the application is a simple one addressed to the Chief Registrar or the Registrar of the High Court as the case may be. Secondly, the parties are not expected to appear before the Chief Judge or the Judge in charge of administrative duties. Thirdly, it is through the Chief Registrar or the Registrar of the High Court that the parties and the respective courts are informed of the fate of the application. It seems clear that the consideration or the application does not require any argument by the parties before the Chief Judge or the Judge in charge of administrative duties. The function is not much more than what may be involved in assigning or reassigning a case to a court by either of these functionaries. It is therefore a simple administrative arrangement. That much is clear from the rules reproduced above. It is unnecessary for proceedings to be held to consider an application brought under rule 5. I think Nwazota. J. embarked on a procedure not provided for when he sat to hear and consider the application under the rule in open court.

Order 19. rule 8 which is in contrast with (he foregoing rule 5 provides as follows:

“8. An application for the transfer of any cause or matter from the High Court to a Magistrate’s (sic) Court shall be made in the open court and be disposed off in open court by the presiding Judge of that court, and the decision shall have effect as an interlocutory decision of the court in the proceedings.” (Italics supplied).

The implication of rule 8 is that an application made under it is open to argument by the parties and consequently calls for a decision of the High Court in its judicial function. That is quite different from what an administrative Judge or the Chief Judge is faced with under rule 5.

The application granted under rule 5 in (his case as already said was by Nwazota, J. The lower court said as regards his position as follows:

“It is common ground that Nwazota, J. was and is still the administrative judge for Onitsha Judicial Division. The application that suit No. MO/660/92 be transferred to Onitsha High Court in order to be consolidated with suit No. 0/390/92 presided over by Ononiba,1. was procedurally competent.”

But it went on later to hold that the discretion to transfer a case under Order 19, rule 5 should be exercised judiciously and judicially. The ground upon which this appears to have been founded by that court was that Nwazota, J. “failed to take into account a material and relevant fact to wit, that the making of the order sought would have far-reaching effect of deciding the fate of a specific relief that fell for resolution or determination in the suit that was pending before Ononiba, J.” That relief was one of the five reliefs sought in suit No. 0/390/92 pending at the Onitsha High Court before Ononiba, J. as follows:

“An order of Court transferring suit No. MO/660/92 from the Magistrates Court Onitsha to the High Court for a just determination of the issues raised in this suit.”

I am of the view that in the circumstances of this case. the inclusion of that relief in the suit before Ononiba. J. was not capable of standing in the way of the administrative Judge in considering the application before him. The authority to transfer a case in the manner sought is not conferred on a Judge who is neither the Chief Judge nor a Judge charged with administrative duties. Ononiba,J. was not known to be either. It follows, in my view that the mere inclusion of such a relief in the suit before Ononiba. J. was not a relevant consideration for Nwazota, J. in the circumstances of his granting or refusing the application to transfer. It was a routine administrative matter unsuited for the importation of the concept of judicious and judicial exercise of discretion as it was not a judicial or quasi-judicial function properly so-called. Consequently, a decision arrived thereat is not one that is appealable to the Court of Appeal.

Under section 277(1) of the 1979 Constitution then applicable, the term “decision” by definition means in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation. In Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130 at 189, Karibi-Whyte JSC observed that a decision within the meaning of section 277(1) of the 1979 Constitution envisages any determination on an issue joined by or litigated by the parties before the court. This of course does not exclude ex parte interim decisions that may be made by the High Court under the relevant Rules of Court or the Fundamental Procedure Rules that may be appealable by virtue of section 220(1)(g)(ii) or (v) of the 1979 Constitution. The said observation of Karibi-Whyte JSC is particularly attractive when related to the comparison between rule 5 and rule 8 of order 19 of the Anambra State High Court Rules, 1988. That comparison reveals a distinction between the applications taken administratively and those taken as court proceedings. It is then it is appreciated that the decisions taken in the latter circumstance qualify as decisions of a High Court from which an appeal may lie under section 220( I) of the 1979 Constitution, whereas those taken administratively do not.

The appellants have argued that the lower court was wrong to have set aside Nwazota, J.’s order of transfer. But they went further at great length to try to justify Nwazota, J.’s order on the ground that it was made in his discretion which he was said to have exercised judicially and judiciously. On the other hand the respondents’ contention is that the discretion was not so exercised. I have already shown that it is inappropriate to use the term ‘judicially and judiciously’ in reference to the exercise of powers under order 19, rule 5. It is enough if the administrative judge or Chief Judge is satisfied that the Judge to whom he intends to make the transfer is in a position to and can conveniently take the case. When he is so satisfied and makes the transfer then it can be said he has done what he ought to. It will be undesirable. for instance, to transfer a case to a Judge who has an interest in the case or where there is evidence of a likelihood of bias.

I have no doubt in my mind that the lower court was not entitled to set aside the order in question. If it had properly considered the relevant rules 5 and 8 of order 19, it would. without going into the merit of the arguments proffered before it, have found that the order of transfer made by Nwazota, J. in the course of his administrative duties was not appealable. The appeal would simply have been struck out I therefore allow this appeal and set aside the order of the lower court with costs of N 10,000.00 t0 the appellants.

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SC.108/1994

African Insurance Development Corporation V Nigeria Lng Limited (2000)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C.

The main question on this appeal is whether a person who is bound under a performance bond by which he undertook to pay to the employer damages in default of performance of a contract by the contractor, is entitled to a stay of proceedings in an action against him by the employer upon the default of performance by the contractor, on the strength of an arbitration clause in the agreement between the employer and the contractor, notwithstanding that on the face of that agreement he has not been named a party thereto.

Sometime in October, 1990, Nigeria LNG Limited, “the plaintiff” entered into a contract with one Fedision Nigeria Limited, “the contractor”, for the drilling of a water well at Bonny Island, Rivers State. Clause 19.2 of the contract contained an arbitration clause in the following terms.

“Any dispute whether in contract or at law, arising out of or in connection with the contract or the work performed there under shall be finally and exclusively settled by arbitration in Lagos, Nigeria, under the Nigeria Arbitration and Reconciliation Decree of 1988 by three arbitrators appointed in accordance with the Decree.”

By a performance bond dated 21st December, 1990, the contractor and African Development Insurance Company Limited, “the defendant”, severally and jointly bound themselves to pay the plaintiff the sum of N538,122.00. The condition of the bond is in the following terms.

“Now the condition of the above written Bond is such that if the Contractor shall duly perform and observe all the terms, provisions, conditions and stipulations of the said contract on the contractor’s part to be performed and observed according to the true purport intent and meaning thereof or if on default by the Contractor the Surety shall satisfy and discharge the damages sustained by the Employer thereby up to the amount of the above written bond, then this obligation shall be null and void but otherwise shall be and remain in full force and effect, PROVIDED always and it is hereby declared that no alteration in terms of the said Contract made by agreement between the Employer and the Contractor or in the extent or nature of the works to be constructed completed and maintained there under and no allowance of time by the Employer or the Engineer under the said Contract nor forbearance or forgiveness in or in respect of any matter or thing concerning the said Contract on the part of the Employer or the said Engineer shall in any way release the Surety from any liability under the above written bond.”

By writ of summons dated 11th March, 1992, the plaintiff sued the defendant in the High Court of Lagos State on the bond. By its statement of claim it averred inter alia, that the contractor “did not duly perform, execute or complete the said contract within 91 days, and as a result the contract was terminated on April 2, 1991.” It also pleaded the terms of the bond, albeit in paraphrase. By a motion on notice dated 8tb May, 1992, the defendant applied to the High Court for a stay of the proceedings pending a reference to arbitration on the grounds that the subject matter of the action was governed by the arbitration clause.

Silva, J., before whom the matter came, granted the defendant’s application. He was of the opinion that the performance bond arose in connection with the contract between the plaintiff and the contractor and that “without this contract, there would not have been a performance bond or vice versa”. Being of that view, he concluded that “although an arbitration clause is not included in the performance bond. I think it ought to be read into it since it was brought into being by the existence of the main contract between the plaintiff and Fedision Nigeria Limited.”

On the plaintiffs appeal to the Court of Appeal, Uwaifo J.CA, (as he then was) came to the conclusion.

(1) that since the contractor was not a party to the suit before him the learned judge had no power to direct that the dispute should be referred to arbitration;

(2) that “dispute” in the arbitration clause meant dispute between the plaintiff and the contractor; and,

(3) that the defendant not being a party to the contract between the plaintiff and the contractor, the defendant could not rely on the arbitration clause in a contract to which it was not a party.

In addition to these grounds Uwaifo, J.CA, (as he then was);went on to proffer the opinion that even if the defendant could “possibly have a way of going to arbitration, it would have turned out to be a wholly undesirable waste of time. The final result would not be other than a dispute as to the effect of the performance bond; in other words the interpretation of the document.”

Kalgo J.C.A (as he then was) and Pats-Acholonu, J.C.A agreed with these views. By a unanimous decision the Court of Appeal allowed the plaintiffs appeal and set aside the decision of the High Court.

This appeal by the defendant is from the decision of the Court of Appeal.

Counsel on behalf of the defendant argued two issues as follows:

“(1) Whether the appellant is a party to the contract in consequence of which he can take the benefit of the arbitration clause contained therein.

(2) Whether the arbitration clause is in the Scott v. Avery form.”

The substance of the argument advanced by counsel on behalf of the defendant is that the present case falls within one of the exceptions to the principle of privity of contract, whereby a person not a party to a contract cannot sue on it. It was argued that the factor, which constituted this case an exception is that the defendant was in the position of guarantor whose liability is dependent on the default of another. As I understand defendant’s argument, by reason of that fact the defendant would be regarded as a party to the contract even though it had not been named as a party to the contract. For this argument, reliance was placed on the opinion of the learned authors, Mustill and Boyd, in their book Commercial Arbitration, 2nd Edition, where the learned authors discussed at pages 137-140, the question of arbitration and third parties. As rightly noted by the authors on p.137.

“Most arbitrations take place between persons who have from the onset been parties to the arbitration agreement, and to the substantive contract underlying that agreement. It occasionally happens, however, that the claim is made by or against someone who was not originally named as a party. In such circumstances, the question whether the claim can be and must be the subject of arbitration may give rise to considerable difficulty.”

The situation, which may be relevant to the present case, is that in which the defendant has incurred liabilities which are secondary to the primary liabilities contained in the contract. In regard to such situation, learned counsel for the defendant. drawing largely from the opinion of Mustill and Boyd, submitted that the two conditions, one only of which needs be satisfied before a third party not named as a party in the primary contract can be considered a party entitled to take benefit of the arbitration clause, are: (1) that he has guaranteed the liability of the party to the primary contract and the terms of the guarantee must be expressed to be contingent upon the ascertainment of the liability under the primary contract; and, (2) that the arbitration clause must be in the Scott v. Avery form thus making an award against the principal debtor a condition precedent to proceeding against the guarantor. Learned counsel for the defendant argued that the defendant’s case fell within the two conditions.

For his part, learned counsel for the plaintiff argued that the bond is an ‘on demand bond’ and that the arbitration clause is not in the Scott v. Avery form. These contentions have been made to appear to be of determinative importance to the main issue on this appeal. Hence, some time will be spent in considering the nature of the performance bond in this case and the form of the arbitration clause. Performance bonds are bonds made to secure the performance of a principal contract. Such bonds may be classified according to the obligation undertaken by the obligee. In some cases it is, in reality, a conditional guarantee, while in others, it may be what is described as an ‘on demand bond’ or, as it is sometimes called a first demand bond’. If the performance bond is an ‘on demand bond’, as argued by the plaintiff, the defendant’s liability would follow merely on a demand for payment made in good Faith without a need to prove the validity of the claim. Uwaifo, J.C.A. proceeded on the footing that the bond was a guarantee. The plaintiff has not asked in the proper way, by a respondent’s notice or notice of cross-appeal, that that view should be rejected. However, the parties have addressed the question of the nature of the bond on this appeal. It is but proper that, in deference to their industry in this regard some attention be paid to that aspect of the matter. The description of a performance bond in Andrews & Millet, Law of Guarantees, 1st edn. page 403, as “essentially unconditional undertakings to pay a specified amount to a named beneficiary, usually on demand, and sometimes on the presentation of certain specified documents.”, is misleading if it obscures the fact that it is not the tag put on the bond that determines the obligation incurred thereby, but, rather, the contents of the bond. The proper approach when there is dispute as to whether the obligation incurred on a bond is to pay on demand or whether the obligation incurred is that of a suretyship is to revert to the contents of the bond. In the case of Trafalgar House Construction (Regions) Ltd v. General Surety and Guarantee Co. Ltd (1995) 3 All ER 737 where the bond was substantially in similar form as the bond in this case, the House of Lords held that the bond amounted to a guarantee. Lord Jauncey at p.741 said in that case:

“In the first place the bond itself contains indications that it was intended to be a guarantee. The appellants are described as ‘The surety’. There is a provision to the effect that no alterations in the terms of the sub-contract should release the surety from liability. In the absence of such provision a surety will normally be released from his obligation by any subsequent material alteration to the contractual provisions agreed between the contractor and the sub-contractor.”

Similar considerations apply to the bond in this case. In an ‘on demand bond’ the creditor is entitled to be paid merely on making a demand for the amount of the bond. A performance bond may in its terms be an on demand bond but not every performance bond is an ‘on demand bond’. In this case the performance bond is not an ‘on demand bond’ but a guarantee. I now turn to the main question in this case, which is: whether the defendant, who is neither a party to the arbitration agreement nor a derivative party, is entitled to a stay of proceedings in an action brought on the guarantee.

Section 5(1) of the Arbitration and Conciliation Decree, 1988 provides that-

“If any party to an arbitration agreement commences any action in any court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement, may at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay proceedings.”

It is evident from the provisions of section 5(1), that the applicant for a stay of proceedings must be a ‘party to the arbitration agreement’ and that the subject matter of the action must be “with respect to any matter which is the subject of an arbitration agreement.” Although the Court of Appeal held that the defendant had not satisfied either of these conditions, which must co-exist, the defendant had concentrated on the former only and has not asked us to pronounce that the court below was in error in regard to the latter. The result is that even if the defendant had been right in the contention that the defendant was a party to the arbitration agreement. The decision of the court below that it was not a proper applicant by reason of the subject of the arbitration agreement, would still have remained intact. Where in the proceedings, the right claimed by a party to seek relief must be based on satisfaction of several conditions which must co-exist, it is futile to claim a right to such relief by establishing satisfaction of only one of such conditions. Although the defendant is neither a party to the arbitration agreement nor a derivative party, it was argued by counsel on its behalf that it became a party by reason of its liability as guarantor which was contingent on the default of the contractor. For this submission, heavy reliance was placed on the opinion expressed in Mustill & Boyd, Commercial Arbitration, 2nd edn, particularly at page 139, where the learned authors in considering arbitration and third parties adverted to the situation where, as in this case, the defendant not named as a party to the arbitration agreement “has incurred liabilities which are secondary to the primary liabilities contained in the contract.” The learned authors expressed the opinion thus:

“…. where the guarantee and the arbitration clause are in the ordinary form, the liability of the guarantor arises simultaneously with that of the principal debtor, the creditor need not arbitrate against the principal debtor, but may proceed against the guarantor. …. ”

“If on the other hand, the arbitration clause is in the Scott v Avery form, the claimant must obtain an award against the principal before proceeding against the guarantor; for the obtaining of an award against the principal is a condition precedent to the liability of the principal debtor, and the guarantor does not become liable until the principal debtor is liable.”

In my opinion, nothing in these passages should lead to any proposition that a guarantor would become a party to the arbitration agreement so as to enable him to apply for a stay of proceedings in an action against him on the contract of guarantee. Factors, which may apply to the right to apply for a stay of proceedings, should not be confused with factors which pertain more to defence. Where the arbitration clause is of that type of a Scott v. Avery form which ties the liability of the contractor to an award and makes it incumbent on the contractor to pay only such sum as the arbitrator shall award, the cause of action against the guarantor may not accrue until the liability of the contractor is found by an award. That may well be a defence in an action against the guarantor or a ground for terminating an action prematurely brought. in limine, but it is not a ground for seeking a stay of proceedings pursuant to section 5(1) of the Decree. In Halsbury’s Laws of England 4th edn, Vol 2 at para 544 the law was put thus:

“…a provision in an arbitration agreement. known as a ‘Scott v. Avery’ clause, whereby the making of the award is to be considered a condition precedent to any right of action in respect of any of the matters agreed to be referred, is valid. It follows that the existence of such a clause, quite apart from any right to stay proceedings constitutes a defence to any proceedings brought before the publication of the award.”

The two forms in which a Scott v. Avery clause may take are described in Mustill & Boyd. Commercial Arbitration (supra) thus at p.161:

“(1) An express or implied term of the contract that no action shall be brought until an arbitration has been conducted and an award made

(2) A provision that the only obligation of the defendant shall be to pay such sum as the arbitrator shall award.”

The arbitration clause in this case, earlier set out, is not in the latter of the two forms described above. However, it has been argued that as a matter of construction it must be held to be in the former of the two forms. The phrase ‘exclusively settled by arbitration’, it is argued, raises an implied term that no action shall be brought until an arbitration has been conducted. To my mind, there is considerable force in that argument. The term of the arbitration clause that:

“Any dispute…shall be finally and exclusively settled by arbitration ….” rules out any other means of settling such disputes. However, although, as between the employer and the contractor, any dispute to which the arbitration clause related must be settled by arbitration, the right of the employer to sue the guarantor who has guaranteed due performance of the contract is not affected. The principle is now well established that the right of action against a guarantor arises on a default by the principal debtor and not on a finding of liability against such debtor.- The law is well stated in Andrews & Millet, Law of Guarantees, 1st edn. at pages 162-163 thus:

“The fact that the obligations of the guarantor arise only when the principal has defaulted in his obligations to the creditor does not mean that the creditor has to demand payment from the principal or from the surety, or give notice to the surety, before the creditor can proceed against the surety. Nor does he have to commence proceedings against the principal, whether criminal or civil, unless there is an express term in the contract requiring him to do so.” it follows from the principles of law stated above that, regardless of the agreement of the plaintiff and the contractor, embodied in the arbitration agreement, in terms that, as between them, any dispute concerning the principal contract shall be resolved exclusively by arbitration, the right of action against the defendant is neither impaired nor delayed by such agreement. Nothing in the arbitration agreement between the plaintiff and the contractor can be interpreted as making the defendant a party to that agreement. The Court of Appeal was fully justified in the view they held that the defendant was not entitled to the order for stay of proceedings it sought. Accordingly, this appeal should be, and is hereby, dismissed with N10,000 costs to the respondent in this appeal which has hitherto, been referred to as the plaintiff for convenience. It is directed that the action which was commenced in the High Court as long ago as 1992 and to which the defendant’s application for stay of proceedings related now be given accelerated hearing.

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SC.174/98

Chief Sampson Okon Ito & Anor Vs Chief Okon Udo Ekpe & Anor (2000)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

This appeal is against the judgment of the court below, wherein that court upheld the appeal of the plaintiffs/respondents in respect of the judgment of the trial court which was delivered in favour of the defendants/appellants. At the trial court the respondents claimed against the appellants for the following principal relief:-

“A declaration that they, the plaintiffs, are the radical/titular owners in possession of all that piece or parcel of land known as and called Esuk Ikotetuong (sometimes otherwise fictitiously and popularly nicknamed Esuk Ifiayong mostly by strangers to the area) and being a piece and/or portion of Idu land generally situate in Uyo Division of the Cross River State of Nigeria which Esuk Ikot Etuong aforesaid is as set out, described and/or otherwise delineated in the plan No. LSH 751 by E. Ekpenyong Esqr F.N.I.S. and licensed surveyor and dated 2nd November, 1969 being verged pink (which is the same as the one in Ita Plan No. LSH 1048/LD by the same surveyor and dated 20th June, 1977) and which came into issue in the Suit No. HU/2/69 (CI/69) between the real parties in the instant cast: but in the reverse order.

And as ancillary reliefs, the respondents claimed the sum of N10,000.00 as general damages for trespass and the further sum of N10,000.00 as special damages in respect of various acts of the appellants on the disputed land. Also claimed was an order of perpetual injunction restraining the appellants by themselves and/or their privies, agents, and/or servants from any further interference whatsoever/in any shape, form and/or manner with the respondents’ exclusive occupation, possession, use and/or enjoyment of Esuk Ikot Etuong

Following the order for pleadings the parties filed and exchanged their pleadings. The respondents with the leave of the trial court filed and served an amended statement of claim. In the statement of claim as amended, the respondents pleaded copiously several decisions of the courts between the parties before the instant suit. Among the decisions pleaded are: – (1) the decision by the High Court in Suit No. HU/2/69 (formerly No. C/1/69); (2) Decision on appeal there from by the Court of Appeal; and (3) Decision on further appeal to the Supreme Court. The respondents also pleaded four deeds of leases (Indentures), three of which were made with various companies between 1938 and 1939.

It is also pleaded that the deeds were executed with the approval of the appropriate authority. One of them was stated to have been executed with the Government of Nigeria in 1940. All the deeds pleaded were in respect of transaction affecting the disputed land. The respondents, also to further support their claim, pleaded traditional history to show how they became seised of the land. Similarly the appellants pleaded their traditional history, acts of possession and ownership to challenge the claim of the respondents to the disputed land.

The learned trial judge after hearing the evidence and addresses of learned counsel, dismissed the respondents’ claim. They, therefore appealed to the court below, and their appeal succeeded. It is against the judgment and orders of the court below that the appellants have now appealed to this court.

In the brief of argument filed on their behalf, five issues were postulated for the determination of the appeal. These are:-

“(1) Whether the Court of Appeal was right in holding that the respondents proved in the lower Court the identity of the land in dispute per se or vis-a-vis the subject matter of HUI2/69.

(2) Whether the Court of Appeal adopted the correct approach in its consideration of the appeal.

(3) Whether the Court of Appeal can properly raise the doctrine of issue estoppel on behalf of the appellants in the Court of Appeal when the said appellant did not raise the same either in the High Court or in the Court of Appeal.

(4) Whether the learned trial judge’s judgment should not stand in view of the totality of the evidence available at the trial.

(5) Whether the Court of Appeal was right in its finding that the defendants/ appellants were trespassers, thereby awarding damages and granting an injunction against them”,

For the respondents their learned counsel, AU. Ekpong, Esq, framed in the respondent’s brief the following issues for consideration in this appeal:-

“(i) Whether the various exhibits admitted in the case were properly admitted to support acts of possession, thus acts of ownership of the plaintiffs/respondents and if so, whether the judgment of the trial court should stand.

(ii)Whether the issue of identity of and boundaries of the land in dispute and acts of possession having been resolved in suit No.HU/2/69, the present plaintiffs/ respondents should have to take the trouble to prove them all over again in this suit No. HU/12/77.

(iii) Whether issue estoppel was raised or at all or by any necessary implication by the plaintiffs/respondents or their counsel and whether or not, an appellate court could take on a point of law on the face of the record even though not made a ground of appeal.”

It is evident from a careful reading of the two sets of issues identified by learned counsel in the respective briefs of the parties that they are similar in terms of their formulation of the issues at stake in this appeal. This appeal would, however, be considered in accordance with the issues identified in the appellant’s brief.

The argument in support of this appeal began in the appellants’ brief with the consideration of issues 1&3. In respect of these issues, learned Senior Counsel observed, and quite properly, that the respondents’ case rested on their traditional evidence and the documents tendered and admitted at the trial. These are certified court proceedings in Suit No. HU/2/69 between Bruno O. Etim & 2 Ors (for themselves and people of Ifiayong v. Chief Okon Udo Ekpe & Ors (for themselves and people’ of Idu village). This case contained several other proceedings which are as follows:-

(a) Suit No. 10/33 (WACA)

(b) Suit No. C/21/36 (High Court)

(c) Suit No. 105/56 (Native Court)

(d) Suit No. 23/55/56 (Native Court)

(e) Suit No. 11/98/29 (Native Court)

These documents learned Senior Counsel conceded formed the basis of the plea of estoppel per rem judicatam by the respondents to defeat the claim of the appellants to the disputed land. It is however, the submission of the learned Senior Advocate that the appellants both by their plan of the land in dispute exhibit24, and their evidence at the trial disputed the claim of the respondents that the land in dispute in Suit HU/2/69 is the same as the land in dispute in the instant case. It is the contention of the appellants that the learned trial judge was right to have preferred the evidence of the appellants to that of the respondents. It is also the submission of learned Senior Advocate for the appellants that as the respondents failed to establish their plea of estoppel per rem judicatam, they were rightly held to have failed to discharge the onus of proof as plaintiffs. In support of his submissions, reference was made to the following cases. Aro v. Fabolude (1983) I SCNLR 58; Bala v. Bankole (1986) 3 NWLR (Pt. 27) 141 and Iyaji v. Eyigebe (1987) 3 NWLR (PI. 61) 523. It is also the submission of Chief Tunji Fadayiro, SAN that the learned trial judge specifically found that the respondents failed to establish that the issues decided in the previous cases are the same as in the present suit. And that in any event, the identity of the disputed land was not also established by the respondents. In effect the contention made for the appellants is that the respondents having failed to determine the extent of their land, have failed to prove with certainty the area of land in respect of which they are claiming declaration and injunction. Chief Tunji Fadayiro, therefore subjected to very severe criticism the reversal of the finding of the High Court Judge by the Court of Appeal per Uwaifo JCA,(as he then was), who in the course of his judgment, said:-

“…the so called overlapping in two places referred to by the trial judge as the Western and Southern and also in ‘the South Eastern Side occurred either as a matter of derailed accuracy by the plaintiffs or an attempt to create distinction without a difference by the defendants or vice-versa (Italics). It may be a matter bordering purely on the perspective from which the respective surveyors saw the description of the land in dispute (page 202 line 40 to 204 line 7 (Italics mine).”

Chief Tunji Fadayiro, in respect of the above quoted passage from the judgment of Uwaifo J.C.A, (as he then was), then invited this court to regard that what was said in that passage as merely speculative. It is the submission of learned counsel that there is no evidence on record or in the submission of counsel either in the brief or in oral argument to justify that view of the evidence as pronounced by Uwaifo, J.C.A. (as he then was). He further argued that as it is not the function of the court to speculate on what might have been the case of a party to an action; that the judgment of the court below ought to be set aside. In support of his submissions, he made reference to the following cases: – Adebanjo v. Brown (1990) 3 NWLR (Pt. 141) 661 at 673; Bomo Holding Co. Ltd. v. 80goco (1971) I All NLR. 324; Owe v. Oshinbajo (1965) I All NLR 72.

While learned counsel, Chief Tunji Fadayiro, readily conceded that it is the correct position of the law that where one issue has been conclusively proved in one case, further proof is no longer necessary in subsequent cases, yet it does appear in his submission that the court below should not have applied this principle in the instant appeal. In the view of learned Senior Counsel, the Court of Appeal was wrong to have held that Exhibit 20 having been admitted in evidence, the respondents have thereby discharged the onus on them to prove the boundaries of and the identity of the land in dispute in this case. It is therefore his submissions that though Exhibit 20 was admitted in evidence, the respondents still have the onus of proving that the land in dispute in Exhibit 20 is the same as the land in the case on appeal.

I now turn to issues 2 and 4 where the complaint of the appellants is that in reversing the judgment of the trial court, the court below raised an issue that was neither raised by the parties in general nor the respondents specifically either at the High Court or at the Court of Appeal. The issue allegedly so raised is in connection with the application by the Court below the doctrine of “Issue estoppel” in the consideration of the questions raised in the appeal. The contention made for the appellants is that what was raised at the hearing of the appeal vide the brief of the appellants in the Court below by their then learned counsel. Chief E.E. Anwan was the issue of Estoppel per rem judicatam” and not “Issue Estoppel”. It is therefore the submission of the learned Senior Advocate for the appellants that the Court below was wrong to have decided the appeal against the present appellants upon an issue raised by the Court suo motu and without hearing learned counsel for the parties upon the issue so raised. The following cases were referred to in support of that submission: – Adeosun v. Babalola (1972) 5 SC 292; Chief Registrar v. Vamos (1976) 1 SC 33 at pp 40-41: Kate Enterprises Ltd v. Daewoo Ltd (1985)2 NWLR (PI.5) 116 Shadipe v. L (1985) 2 NSCC 1102 at 1126-1127.

Having reviewed as above the submission made on behalf of the appellants in respect of issues 1, 2&3, I think I should now set down the reply of the respondents to the several contentions made for the appellants.

In the brief filed on behalf of the respondents by their learned counsel A.U Ekong Esq, the thrust of the submission made for the respondents is that the appeal be dismissed. To that end, learned counsel took the view that the main plank of the appellants’ argument is that the respondents did not prove the identity of the land in dispute, its boundaries and the traditional history to support their claim. This is mainly because the contention of the appellants is that the land involved in suit HU/2/69 is not the same as that in suit HU/12/77 and which has led to the instant appeal. However, the learned counsel for the respondents in the respondents’ brief has however, argued that the contention of the appellants was made in error. He then submitted that the respondents have by their pleadings averred that the land in dispute was the subject of a previous litigation between the parties in suit No. HU/2/69. It is further submitted for the respondents that the appellants in paragraph 2 of their statement of defence admitted the relationship between the parties as pleaded in paragraph 1(a) (i). 1(a) (ii), 1(a) (iii) 1(a)(iv). 1(b)(i), 1(b)(ii), 1(b) (iii), and 1(b) (iv) of the respondents’ amended statement of claim.

I have earlier in this judgment referred to the contention made for the appellants that the court below was wrong to have held that the respondents established the identity of the land in dispute. But linked with this contention is the other contention of the appellants that in the resolution of whether the identity of the disputed land was established by the respondents, the court below was wrong to have applied the principle of “Issue Estoppel” to determine the appeal in favour of respondents. This is because, as it is the contention of the appellants that neither of the parties pleaded it, nor was it raised by learned counsel who appeared for the parties m the hearing of the appeal before the Court below. The learned counsel for the appellants however later agreed while addressing this court that at the address stage in the trial court, learned counsel for the respondents did raise the plea of res judicata as part of their case.

The question raised above must lead inexorably to the consideration of what is the meaning and effect of not only the plea of res judicata but also “Issue Estoppel”, and the principles governing their application in our jurisprudence. To begin with, I think it ought to be noted that the doctrine is not only rooted in our jurisdiction, but it has also achieved and become part of the public policy of the courts. It therefore follows that all courts of record are obliged to apply its principles when applicable to the cases under their consideration. The reason for the position of the court in this regard was eloquently enunciated by Aniagolu J.S.C, in Aro v. Fabolude (1983) 1SCNLR58, (1983) 14 NSCC 43 where at page 45. His Lordship said :-

“… Public policy demands that there should be an end to litigation once a Court of competent jurisdiction has settled by a final decision, the matters in contention between the parties. Not only must the Court not encourage prolongation of a dispute, it must also discourage proliferation of litigation. And so the maxim interest reipublica ut sit finis litium has for long been accepted as one of the established principles of our law. Of equal importance in our law -that no man ought to be twice vexed, if it is proved to the Court that it is for one and the same cause. Expressed in the terse Latin maxim: nemo debet bis vexari, si constat curiae quod sit pro una et cadem causa, the principle runs through the entire gamut of our legal approach, whether it be in civil or criminal matters. It therefore

forms the foundation of the plea of res judicata in civil cases.”

His Lordship then further observed at page 46, thus:-

“In civil cases before this principle is applied the res (the subject matter) in connection must be the same, the issue and the parties the same, in the new case as in the earlier proceedings where any of the three matters is missing in the new case a pleas of res judicata will ordinarily fail see Odua v. Nwanze (1934)2 WACA 98 at 100-102”.

It is however interesting to note that where the estoppel per rem judicatam pleaded is classified as estoppel by record inter parties, it has been held that there are two types of that kind of estoppel. The first is called “cause of action estoppel and the second “issue estoppel” see Fadiora v. Gbadebo (1978) 3 SC 219, 228-229 where Idigbe JSC, distinguished the two types of estoppel by record inter parties, thus:

“Now, there are two kinds of estoppel by record inter parties or per rem judicatam as it is generally known. The first is usually referred to as ’cause or action estoppel and it occurs when: the cause of action is merged in the judgment. That is, Transitin rem judicata. See King v. Hoare (1844) 13 M&W 495 a1504. Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their “privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from re-litigating the same cause of action. There is however, a second kind of estoppel inter parties and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue come incidentally in question in any subsequence proceedings between the same parties (or their privies): in these circumstances, ‘issue estoppel’ arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which haying been once distinctly put in issue, has with certainty and solemnity been determined against him. See Outram v. Morewood (1803) 3 East 346. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law.

However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per rem judicata must apply, that, (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier preceding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies)”. It is pertinent to observe that the above quoted dictum that proceeded from the mouth of Idigbe J.S.C, was quoted with approval by Ogundare J.S.C in the course of his judgment in Ogbogu v. Ndiribe (1992) 6 NWLR (Pt 245) 40 at 61-62.

In this appeal, as I have already stated the contention made for the appellants is that the Court below, per the judgment of Uwaifo, JCA ( as he ,then was) unilaterally decided the appeal before the Court on the view that issue estoppel applied to the facts pleaded and upon which evidence was led at the trial. Before answering this question, I think it is pertinent to quote in extenso the relevant portion of his judgment in the Court below on the point. At pages 205-207, his Lordship said, thus”-

”In suit No. HU/2/69 in which the present defendants were the plaintiffs, the survey plan filed and tendered by them was No. EPS/97 (LD) dated 12th March, 1969 and drawn by Mr Okon E. Eyo, Licensed Surveyor and Architect: See paragraph 8 of the amended statement of claim at page 44 of exhibit 19. It was admitted in that case as exhibit 1; See page 51 of exhibit 19. The said plan is exhibit 16 in the present case. The survey plan filed and tendered by the present plaintiffs as defendants in that case was No. ISH 751/LD dated 22nd November, 1969 and drawn by Mr. E. Ekpenyong. F.N.I.S.,Licensed

Surveyor: See paragraph 3(b) of the statement of defence at pages 1920 of exhibit 19. It was admitted in that case as exhibit 2; see page 55 of exhibit 19. The said plan is exhibit 20 in the present case. It is important to state these facts in view of what will follow later. Exhibit 20 is the same as exhibit 23 which the present plaintiffs filed and tendered in this case, because the learned judge did not give exhibit 20 its proper recognition be freely cavilled at exhibit 23. The land actually put in dispute as per 20 is the same as the land in dispute as per exhibit 23. That therefore draws the necessary correlation between the decision in suit No. HU/2/69 and the present case, suit No. HU/12/77.

In suit No.HU/2/69 (exh. 19) at page 224, the learned judge (L.E. Ita, J) said;-

“The defendants … in their defence have superimposed their plan on plaintiffs’ plan and have marked out in green the southern portion of exhibit “2” which they say is their land called Ifieyong Beach or Esuk Ikot Etuong. It is upon this southern portion and not the whole piece of land edged yellow in plaintiffs’ plan that defendants join issue with plaintiffs. For the purpose of clarity the defendants claim the land verged with a green border and lying south of defendants’ plan exhibit “2”. A remarkable feature about these two plans exhibits” 1″ and “2” I may mention here in passing that both plans are drawn to the same scale i.e. 400 feel equal one inch.’

“It should be noted that even though Esuk Ikot Etoung sometimes otherwise was also called Ifiayong, each of the plaintiffs have also asserted and claimed ownership of it. This fact will be shown later to have been lost on the trial court in the present suit in his observation following a visit to the locus in quo. At a later stage of his judgment, Ita. J., said in suit No. HU/2/69 at page 126:

“When one considers defendants’ acts of ownership upon the of land in dispute admitted by the plaintiffs themselves then one can hardly see the wood for the trees (sic) I shall proceed to enumerate their acts of ownership of the defendants which I consider to be relevant.

Almost every features (sic) on plaintiffs’ plan exhibit” 1″ which shows acts signifying exercise or rights of ownership are done by the defendants. By their plan the plaintiffs have conceded this fact in favour of Idu people. There is no evidence that the plaintiffs have ever let out any portion of Ada Ita land, Abeit land or Obot Idim Ibet land to any stranger either for rent or tribute’

“The learned Judge then referred to the various exhibits tendered by the defendants in that case in support of court decisions in their favour against the plaintiffs in that case and leases granted by them, and went on at page 130 to say that:-

‘There is no evidence on Exhibit 1 that the plaintiffs have ever done any acts of signifying their ownership of the three pieces of land they claim, not to mention describing those acts as positive and numerous enough to warrant the inference mat any piece of land in south of exhibit, 1 is ,he property of the plaintiffs. On the contrary exhibit, 1 shows that every act of ownership to the south of plaintiffs’ plan its having been done by defendants’ people.

From all these acts of ownership I am convinced that the plaintiffs were aware of the fact that defendants (Idu people) were suing as owners of the land and were protecting their interest in Esuk Ikot Etuong land. Defendants had been suing to eject trespasser; who had wrongfully entered and/or occupied their land. Defendants had let out to government the Police Station and Post Office sites on their land. See Indentures of Leases Exhibits 11, 12. 13 and 14 and also let out portions of this land to foreign firms to the knowledge and acquiescence of plaintiffs…………….

The United Africa Company again acquired a site on the land claimed by the defendants’ people and built a rest house called Idu rest house. See surveyor’s reference in exhibit 2. It will be obvious that much of the land claimed by the defendants’ people which includes the three pieces of land claimed by the plaintiffs had been the subject of Court actions by Idu people to maintain their right of ownership of the land the Idus claim to belong to them.

I have also taken pains to pin a piece of paper on each site of the land in dispute to mark areas upon which Idu people have exercised acts of ownership’

“In the end, the judge concluded at page 137:-

‘In my opinion, the two defendants on record by their defence have given evidence to support their plea of long possession and numerous acts of ownership and have defeated the plaintiffs’ claim for title, I hereby give judgment for the defendants not in respect of all the lands claimed by the plaintiffs in exhibit “1” but in so far as the area verged red in exhibit “2” is concerned, the northern part of which is verged green. Accordingly, I dismiss the plaintiffs’ claim to the said area of land against the two defendants on record with costs’

“The true effect of the above was not to give judgment conferring title on the defendants in that suit over the area verged pink in exhibit 2 (although referred to as red in the judgment obviously owing to the colour used) but to show the delimitation in respect of the area covered which the defendants (now plaintiffs) did prove acts of possession and ownership. The further effect of what the trial judge did in that case was to make findings relating to who were in possession of the land in dispute. The findings were in favour of the defendants (now plaintiffs) and so long as they were not reversed on appeal, they now constitute issue estoppel”

Before that analysis of the judgment relied upon by the respondents to ground the plea of issue estoppel in favour of the respondents, the court below, had considered the view of the learned trial judge upon the evidence with regard to the disputed land in this appeal and the land which formed the subject of the previous litigation between the parties. The learned trial judge had after comparing the survey plans tendered and accepted at the trial for the parties took the view that while the survey plans, Exhibits 20 and 23 filed for the respondents are identical, they are however both different and distinct from survey plan No. RIM/8015LD of I0/6/78, admitted as Exhibit 24 for the appellants. The reasons given for coming to that conclusion are (1) that although the land verged pink in Exhibits 20 and 23 overlap the land verged yellow at the Western and Southern end, there is no such overlapping in Exhibit 24; (2) that such overlapping of the land verged pink and claimed by the respondents as in Exhibits 20and 23 is not identical with the land verged in appellant’s land in Exhibit 24; (3) that the legend in the survey plan, Exhibit 23, does not identify the land actually claimed by the respondents.

The court below, after a full appraisal of the reasons so given, then held that the learned trial judge was wrong to have concluded that the disputed land in Exhibits 20 and 23 is different and distinct from that identified in Exhibit 24. I have also examined the survey plans, and cannot help but agree with the conclusion of the court below that the three survey plans portray the same land.

In this appeal learned Senior Advocate for the appellants has also argued that the court below was wrong to have placed reliance on paragraph 6(1) of the respondents’ statement of claim, to justify the conclusion of the court as to what transpired in an earlier case between the same parties and the subject matter of the present suit. The basis of this argument being that as pleadings cannot be substituted for evidence, the court should not have placed any reliance on the averment made in the said paragraph 6(1) of the respondents’ pleadings. It is therefore necessary to refer to paragraph 6(1), and to the other averments made by the parties in their pleadings. Paragraph 6(1) of the respondents’ statement of claim reads:-

“A declaration that they, the plaintiffs, are the radical/titular owners in possession of all that piece or parcel of land known as and called Esuk Ikot Etuong (sometimes otherwise fictitionally and popularly nicknamed Esuk Ifayong mostly by strangers to the area) and being a piece and/or portion of Idu land generally situate in Uyo Division of the Cross River State of Nigeria which Esuk ltok Etuong aforesaid is as set out, described and/or otherwise delineated in the plan No.. LSH/75 I by E. Ekpenyong Esq F.N.I.S. and Licensed Surveyor and dated 22nd November, 1969 being therein verged pink (which is the same as the one in the Plan No. LSH I048/LD by the same Surveyor and dated 20th June, 1977) and which came into issue in the suit No. HU/2/69 (CI/69) between the same REAL PARTIES in the instant case but in the reverse order”,

It is manifest from a careful reading of the above averment made for the respondents that they rested their case against the appellants on two survey plans No. LSH 751 dated 22nd November 1969 and LSH. 1048/LD dated 20th June, 1977. These two survey plans were not only prepared by the same Surveyor, E. Ekpenyong Esq F.N.I.S., but were also made in respect of the same land, were featured in suit No. HU/2/69.

It would appear from a careful reading of pleadings of the appellants in their statement of defence at the trial, that they admitted that there was such a suit known as HU/2/69 between the parties though they pleaded that they had appealed against the judgment to the Court of Appeal, they did not acknowledge that they lost in that court, and that their further appeal to the Supreme Court was dismissed. The judgment of the Supreme Court was tendered by the respondents as Exhibit 22. They, however, denied that the 1st and 4th respondents in this appeal, and who were some of the defendants in that suit did not defend the action in a representative capacity. It was also pleaded for the appellants that as the land in dispute is not beach land as averred by the respondents in that suit, the appellants have appealed against the judgment in suit No. HU/2/69 to the Court of Appeal. In respect of the averment made in paragraph 6(1) of the respondents’ statement of claim, quoted above, the appellants in paragraph 10 of their statement of defence, pleaded thus: ”

In answer to paragraph 6(i) -(viii) of the Statement of Claim, the defendants say that the plaintiffs are not entitled to any of the reliefs sought and that the claim is speculative and should be dismissed with substantial cost”

It is evident, in my respectful view, that from the pleadings of the parties, issues were joined on whether the disputed land in the instant appeal was the same as that litigated in the suit No. HU/2/69. In this regard, I need to observe that parties are bound strictly by, and are not allowed to depart from their pleadings – See Ogiamen v. Ogiamiem (1967) NMLR 245; Ukaegbu v. Ugoji (1991) 6 NWLR (Pt.196) 127 at 156. Hence parties can then lead evidence in support of their pleadings N.I.P.C. Ltd. v. Thompson Organisation Ltd. (1969) NMLR 99. Evidence led which is not supported by the pleadings goes to no issue. Such evidence if inadvertently admitted will be expunged. It ought to be also noted that pleadings must contain facts and not law. Points of law can be raised in pleadings. A party relying on estoppel must specially plead it. See Owonyin v. Omotosho (1961) All NLR 304; (1961) 2 SCNR 57; Obanye v. Okwunwa & Ijoma 10 NLR 8. Flowing from the authority of case law decisions, it can be said that it is well settled and there is statutory provision enabling judgment regarded as a relevant fact in an action to be pleaded. See Section 54(1) of the Evidence Act which provides as follows:-

“54(1) – If a judgment is not pleaded by way of estoppel it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was, or might have been, decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue in any subsequent proceedings.’

It is obvious from the provision of section 54(1) quoted above that in any litigation where a previous judgment between the same parties or their privies constitutes a fact in issue as in the instant appeal, such judgment is a relevant fact which could be pleaded as (i) res judicata or (ii) a relevant fact.

Now, I have previously referred to the contention made for the appellants by their learned Senior Advocate that: – (i) the learned Justice of the Court of Appeal was wrong to have reversed the judgment of the trial court upon the principle that the doctrine of issue estoppel was available to the respondents, and (ii) that the learned trial judge was wrong to have held that the disputed land was not the same. With regard to the second of the reasons stated above, it is my respectful view that the Court below was right to have held that the disputed land in this appeal is the same as the land litigated between the parties in HU/2169. From a careful examination of all the survey

maps tendered Exhibits 20,23 and 24 by the parties at the trial, I find myself in agreement with the view of the Court below, that the distinction made between them by the learned trial judge amounted to a distinction without a difference.

It is evident from the argument presented in this regard by learned counsel, that what is crucial in this appeal is whether the Court below was right to have determined this appeal in favour of the respondents on the doctrine of issue estoppel. I have before now referred to some of the principles that should guide a court in determining when this principle would apply. And also what a court should do when the principle has been properly pleaded by a party.

For the determination of this question, which also fell for resolution in the Court below, reference ought to be made to some of the decisions of this court bearing on this matter. In that regard, I refer to Ezewani v. Onwordi (1986) 4NWLR (PI. 33) 27: (1986) 6 S.C. 42. The facts of this case that are relevant to this appeal are as follows:-

The case apparently began in 1962 when both parties sued themselves over the same land in suit No. B/44/62 and B/47/62 They were subsequently consolidated for trial. In two of these suits, the Ogwashi-Uku people as plaintiffs claimed declaration of title, damages for trespass and perpetual injunction over the same farmland which they called Odonkwo land. But at that time, the Ibusa people as defendants did not counter-claim for any declaration of title to the land in dispute. In both their pleadings and the evidence adduced at the trial of the 1962 cases, both parties relied heavily on their traditional histories. The trial judge therefore at the conclusion of the trial disbelieved the traditional history of the Ogwashi-Uku people. On the other hand, he believed the evidence led on the traditional history of the Ibusa people. In the result, the Ogwashi-Uku people lost their case both at the High Court; and on appeal to the Supreme Court. However, since the Ibusa people did not counter-claim for a declaration of title to the land in dispute, none was declared in their favour. Consequently in 1996, the Ibusa people as plaintiffs took out a fresh action against the Ogwashi-Uku people as defendants on the same land. In that action, the Ibusa people sought for declaration that the boundary between the parties is located as pleaded by them; and also for a declaration of title to the piece of disputed land. They also asked for damages for trespass and an order of injunction against the Ogwashi-Uku people in respect of the disputed land. In their amended statement of claim the plaintiffs pleaded the boundaries of their land and the acts of ownership excised thereon; but they did not specifically plead their traditional history therein. Rather, they pleaded the facts and findings of the proceedings and judgment of the 1962 cases. The Ogwashi-Uku people in their amended statement of defence pleaded traditional history and led evidence thereon. The learned trial judge, however, accepted the earlier findings by the High Court as constituting issue estoppel. On appeal to the Supreme Court, the argument of the appellants, (i.e. the Ogwashi-Uku people) was that as the respondents (lbusa people) did not expressly plead their traditional history again, evidence accepted thereon went to no issue. It was further argued for them that before issue estoppel can be relied on, it must be specifically pleaded The Supreme Court in no uncertain terms held that the findings made on traditional history in favour of Ibusa people by the High Court in the previous proceedings were available to them in the case subsequently commenced by the Ibusa people. Also, the Supreme Court held that it was unnecessary to plead issue estoppel expressly if the judgment in support of it had been pleaded and admitted in evidence. It is pertinent to quote the ipsi dixit of some of their Lordships of this Court on the positions they took:-

Nnamani J.S.C. at page 51 of his judgment said:-

“It seems to me … that the traditional history put up by the respondents in the 1962 cases and which was then accepted by the learned trial judge was properly used by the trial judge in this case. I think it was sufficient that the respondents relied on Exhibit F, the record of proceedings in those cases. I do not myself see the need for them to lead evidence to prove the traditional history again”.

On his part, Oputa J.S.C. said at page 52:-

“All that the 1962 cases decided was that having regard to the traditional histories of the parties and other evidence such as acts of possession etc. the land in dispute did not belong to the people of Ogwashi-Uku. It is important to emphasise this point quite early in this judgment because all I want to point out is the impact and extent of the law as it relates to Issue Estoppel. Although the 1962 cases did not resolve the issue of title in favour of Ibusa people (since they claimed no title) yet it resolved that issue against Ogwashi-Uku in any future dispute inter partes about the same piece or area of land”.

(Oputa J.S.C.’s emphasis).

Later at page 56 the learned justice said:-

“The 1962 cases were pleaded. It was the duty of the court of first instance to give effect to these judgments. If the trial court erred at all, it erred on the side of caution. It was not necessary after pleading the 1962 cases to go allover again receiving evidence on matters and issues (like the traditional histories of the-parties) which had been finally decided inter partes. -The Court of Appeal Benin Divisional was right in its mild censure of the trial court in receiving or rather allowing the parties to repeat the evidence of the traditional history decided inter partes in the 1962 case. The Asaba High Court and the Court of Appeal Benin Division were both right in treating the 1962 cases as entirely and effectively estopping the people of Ogwashi-Uku claiming the land, then in dispute, and a

greater part of which is (now) in dispute as theirs”. (Oputa JSC’s emphasis).

I now turn to the instant appeal. The facts in this appeal certainly by comparison with the facts disclosed in Ezeani v. Onwordi (supra). It would be recalled that in the instant appeal, there was a previous litigation between the parties in Suit No. HU/2/69 wherein the appellants were the plaintiffs and the respondents, the defendants. The appellants lost the action both in the High Court and the Supreme Court. The respondents as the defendants in that suit did not counter-claim for title, hence they commenced this action to obtain a declaration as owners of the land. In that action, to which I have adverted earlier in this judgment, they pleaded the judgment in suit HU/2/69 and the judgment of the Supreme Court in which their claims to the disputed land were upheld. Also pleaded were various documents to prove their right or possession to the disputed land, and also led evidence thereon.

However, having regard to the principles enunciated above, in Ezeani v. Onwordi (supra), the court below held that the findings in favour of the respondents (as defendants in suit No.HU/2/69) of acts of possession and ownership are what would determine the party that would succeed in this appeal. I must however consider the argument made for the appellants that issue estoppel was not specially pleaded by the respondents. This question as to whether it is sufficient to plead the facts and circumstances of a previous litigation to found issue estoppel was -considered by this Court in ; Idigbe JSC, observed inter alia, thus :-

“It is my view that the Court of Appeal was right in rMago Chinwendu v. Mbamali (1980) 3-4 SC 31ejecting this contention of the appellants. Undoubtedly the old rule was that estoppel by record and deed must be pleaded where, as here, there was opportunity to do so; under the modem practice it is not however, necessary to plead estoppel in any particular form so long as the matter constituting the estoppel are in such a manner (as has been done in the pleadings of the respondents in these proceedings) to show that the party pleading relies upon it as a defence or an answer”.

In the instant appeal, there can be no doubt from even a mere perusal of the pleadings of the respondents in their amended statement of claim that the respondents pleaded very copiously the materials they would require to rest their case on issue estoppel. It was therefore proper for the Court below to have considered the several documents so tendered and admitted during the trial to determine whether issue estoppel was established by the respondents. And where it was found established as in the instant appeal, it became the duty of the Court below to determine the appeal on that basis. It must be remembered, as I have tried to show above that it is a cardinal principle of public policy that the court should not encourage the relitigation of an issue that has been decided by a competent court between the same parties in respect of the same matter, or cause or an issue in the course of a previous proceedings. The learned trial judge rather than dealing with this matter upon the well settled principles of law revealed by the pleadings and the evidence before him that “issue estoppel” may well apply to the case, proceeded to hear and determine the matter without adverting to the issue raised as aforesaid. The Court of Appeal was therefore justified to have reversed the decision of the trial court, and to also arrive at its decision on the evidence and on the applicable law. See Tonazzi v. Brunetti (1953) 14 WACA 403; Lion Building v .M M Shadipe(1976) 12 SC 135 162; Chief Frank Ebba v. Chief Warri Ogodo (1984) I SCNLR 372, (1984) 4 SC 84, 90. As the main issue in this appeal is whether “issue estoppel” applied as found by the Court below, and as I have upheld the Court below in that regard, I do not consider it necessary to consider the other issues raised in this appeal. In the result, this appeal is dismissed by me. The respondents are entitled to their costs and they are hereby awarded the sum of N 10,000.00 only.

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SC. 6/1993

Prince Ngene Vs Chike Igbo & Anor. (2000)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

By a writ of Summons issued in November, 1977, Chinyelugo Sylvester Omenagu Igbo sued Prince Ngene, now Appellant before us, claiming declaration of title to a piece or parcel of land known as and called “Onuagu” in Ogui Urban Area of Enugu, N5,000.00 general damages for trespass and an Injunction. Pleadings having been filed and exchanged and by leave of Court amended, the case proceeded to trial before P.K.Nwokedi J.(as he then was) at the conclusion of which the learned trial Judge found for the plaintiff Chinyelugo S.O. Igbo in trespass and Injunction but dismissed his claim for title. He awarded to the plaintiff N2,680.00 special and general damages for trespass committed by the defendant on the said land and an injunction restraining the defendant. his servants etc. from committing further acts of trespass on the said land which is delineated on the Plan No. 1513/77 tiled along with the Statement of Claim.

The defendant was dissatisfied with the said judgment and appealed to the Court of Appeal. The plaintiff was also dissatisfied with the dismissal of his claim for title; he too cross-appealed against that part of the decision of the trial High Court. Both appeals came before the Court of Appeal Enugu Division and after hearing learned counsel for the parties, that Court dismissed the defendant’s appeal and allowed the plaintiffs cross-appeal. The Court of Appeal awarded title to the land in dispute to the plaintiff in addition to damages for trespass and injunction earlier awarded to him by the trial High Court. With leave of this Court, the defendant has now further appealed to us upon three original and three additional grounds of appeal. Learned counsel for the parties, pursuant to the rules of this Court, filed and exchanged their respective briefs of argument. While the appeal was pending in this Court the plaintiff Chinyelugo S.O Igbo died and on the applications of both the defendant/appellant on the one hand and Chike Igbo and Dr. Onyechi Igbo on the other hand, both Chike Igbo and Dr. Onyechi Igbo were substituted for the deceased plaintiff/respondent.

The facts are simple enough. For the plaintiff, the land in dispute known as and called “Onuagu” is situate in Ogui renewal layout Enugu. The land was said to belong originally to one Ugwu Mba who together with his two sons Nnamani Ugwu Mba and Ngwu Ugwu Mba granted the same in 1951 to one D.O.C. Nwankwo for farming purposes. In 1961, the said land was conveyed to Nwankwo by Ugwu Mba-Nnamani Ugwu Mba had died by then. The Deed of Conveyance was registered. Nwankwo remained in possession until August 1977 when he, by deed of assignment, transferred his interest in the land to the plaintiff Chiyelugo S. O. Igbo who immediately went into possession. It must be stated at this stage that Nwankwo had been in possession of the land prior to the transfer of his interest to the plaintiff and indeed in 1976 Nwankwo sought and obtained the approval of the Enugu Planning Authority to develop the land. Following the purchase of the land by the plaintiff, he caused building materials, blocks and sand, to be deposited on the land with a view to building thereon. He was however, disturbed on the land by the defendant in October 1977 who without the permission of the plaintiff came on the land and commenced building thereon. The action of the defendant resulted in the plaintiff taking this action.

The defendant denied the ownership of Ugwu Mba of the land in dispute and claimed that the land belonged to Umunamalum family to which Nnamani Ugwu Mba and Ugwu Mba belonged. It is part of defendant’s case that Umunamalum, family in a High Court suit challenged the grant made to the plaintiff; he claimed title to the land in dispute. The defendant claimed that the land was granted to him by the family and admitted he was building on the land.

As stated earlier in this judgment the learned trial judge dismissed plaintiff’s claim to title on the ground that the document made in favour of Nwakwo in 1951 by Ugwu Mba and his sons which document was inadmissible to the Deed of Conveyance made in 1961 to Nwankwo was inadmissible and consequently the 1961 Deed of Conveyance conveyed no title. The learned trial judge however found that the Umunamalum family was an invention of the defendant and that such family did not exist nor own the land in dispute. On the issue of trespass and Injunction, the learned trial judge found that the Plaintiff in this case was in possession of the land in dispute before the defendant arrived and chased plaintiff’s workers away from the land. He also found that the plaintiff deposited blocks and sand on the land and that the defendant had built on the land. He found that the defendant had no title to the land.

The Court below affirmed the findings of fact made by the learned trial judge on the issue of possession to the land but held that the learned judge was wrong on the issues of title to the land. I shall say more of this later in this judgment.

The parties placed before this Court four questions though differently worded. The questions as placed by the defendant/appellant read:-

“I. Whether the irregular procedure adopted by the trial judge and as condemned by the Court of Appeal did not amount to a denial of the parties right to fair hearing under section 33 of the Constitution and whether such a violation does not vitiate the whole proceedings.

2. Whether the trial Court and the Court of Appeal ought to have ordered that Umunnamalum family be given a hearing before making such a serious and far-reaching declaration against them.
3. Whether the Court of Appeal was right in holding that mere production of an instrument of grant without more is absolute proof that the land in dispute was conveyed to the Respondent and whether the Respondent pleaded and proved native law and custom governing grant.
4. Having upheld the decision of the trial judge that Umunnamalum family is non-existent is the Court of Appeal entitled to hold too that the Respondent had established a prima facie case as regards the family from whom he bought the land”.

The plaintiff is his Brief objected to Issue (1) on the ground that it is not predicated on any ground of appeal. I think learned counsel for the plaintiff is right. I have examined the six grounds of appeal and I can find none to support Question (1) raised in the Appellant’s Brief. In respect of Questions (2) and (4) to which objection is taken in Respondent’s Brief and in oral argument of learned counsel for the Defendant/Respondent, I think there are grounds of appeal to support those questions. I strike out Question (1) as not being competent.

As to the remaining questions put before this Court, I am of the view that they fall under two broad issues – (1) whether the Court below was right in awarding title to the land in dispute to the plaintiff and (2) whether the Court below was right in affirming the decision of the trial High Court on the issue of trespass and injunction. It is on these two broad issues that I intend to determine this appeal. The issue of Umunnamalum family which is also raised in his appeal does not seriously affect the conclusion I will reach in this appeal. Whatever was said by the two Courts below on the existence or otherwise of this family would not be binding on the family (if it exists at all as the family was not a party to these proceeding. The defendant did not plead the root of title of his family to the land in dispute. As such the finding that the defendant did not prove title to the land in dispute would still not be affected. Consequently I do not consider it necessary to say more on the existence or otherwise of Umunnamalum family.

(1) Title: On the issue of title the trial High Court observed as follows:

“The Plaintiff predicates his title to the land in dispute on his deed of assignment of lease dated 10th August, 1977 and registered as no. 41 at page 41 in volume 958 of the Lands Registry. Enugu 4. This assignment was granted to him by the PW2. The necessary point to resolve is whether the PW2 had any interest legal or equitable to assign. The title of PW2 is stated to be founded on Exh.2. According to the PW2, he acquired his title by two stages. In 1951, he obtained a farming grant of the said land from the original owner. ‘one Ugwu Mba who together with his two sons Nnamani Ugwu Mba and Ngwu Ugwu Mba granted the same under native law and custom to one D.O.C. Nwankwo for farming in June, 1951’ see paragraph 4 of the statement of claim. The said customary grant was stated to have been later reduced into writing. The document in question is attached to Exh.2 .. There are many things unacceptable as regards the said (sic) dated 9th June, 1951, attached to Exh.2. First, it is not an agreement between Ugwu Mba, the alleged original owner of the land and the PW2. Rather it is an agreement between the son of the said original owner, Nnamani Ugwu Mba and the PW2. Though the document seems thumb printed by the said Ugwu Mba and his second son Ngwu Ugwu Mba, the capacity in which they were executing the agreement was not given. Since they are not stated to be parties to the agreement, one can only surmise that they were witnesses. There is no mention in the said document of any customary grant of which the document was the evidence thereof. The document was not witnessing anything. It was an outright sale of the land included to be conveyed by the said document subject to the payment of a rent charge. The piece of land in question was stated to have been ‘sold’ and subject to the yearly rent reserved the land was to belong to the P.W.2 indefinitely. The instrument was therefore, a registrable instrument under the Land Instruments Registration Law, then applicable in 1951. If the instrument had showed a pre-existing title to the land in dispute as in the present allegation, found in Customary grant, it would have needed no registration. See Paul v. Laba (1937) All E.R. 737. Furthermore, the document was far from a farming grant. In consequence of the above objections,the document was inadmissible in evidence as proof of title. The position is not altered by the fact that it was attached to Exh.2 for it was ab initio inadmissible in evidence.

As regards Exh. 2 itself, certain valid objections can still be raised. This document was pleaded in paragraph 5 of the amended statement of claim. Both paragraphs 5 and 6 of the amended statement of defence traversed the said paragraph 5 of the amended statement of claim and averred that the document was a forgery.

The plaintiff was put to the strictest proof of the said document The evidence or the execution of the document by the alleged Ngwu Ugwu Mba was, to say the last, unsatisfactory. PW2 admitted that Ngwu Ugwu Mba was an illiterate and could neither read nor write. This was further confirmed by Exh. 6 tendered by the plaintiff in evidence. Exh. 2 showed that Ngwu Ugwu Mba signed the document. Pressed under cross-examination to explain how the alleged illiterate signed the document, the PW2 was quite forthcoming in stating that he did not know who inserted or signed the said name and that someone he could not remember may have done it for them. This is a clear admission that Ngwu Ugwu Mba did not execute Exh.2. There is what appears to have been an ink smudge where Ngwu Ugwu Mba was supposed to have thumb printed Exh.2 An argument arose as to whether it was a thumbprint or not. I had therefore, to call for the original document from the land Registry. It was examined in the open court by the court and both counsel for the parties. I was satisfied that there was no thumbprint at the spot or anywhere in the said document. What appeared in the certified photocopy (Exh. 2) as an ink smudge or thumb impression was a smudge made by the gum or adhesive used in affixing the legal seal Furthermore, the circumstances of the execution of Exh.2 as related by PW2 lend support to doubts as to the genuineness of the said document. The two sons of the lessor were present yet none even signed as a witness. The same party witnessed for the grantor and the grantee. There was, a jurat to the agreement which was cancelled, yet it was admitted that Ngwu Ugwu Mba was an illiterate.

and concluded.

“The said document besides other irregularities, could not have conveyed or ratified any previous agreement as it purported to do. It cannot bind Ngwu Mba since he did not execute same even if he was the owner of the land in dispute. If Nnamani Ugwu Mba was the head or the family and was alive until the civil war, why did he not convey the land to the PW2 As a matter of fact, this renders the conveyance void ab initio. It is my view that the Exh.2 did not convey the land therein stated by the PW2. It did not also convey any interest in the land to the PW2. Assuming that there was a previous grant by customary law which the 1951 agreement was evidencing, the said customary law together with its incident should have been specifically pleaded and evidence led to establish same. These have not been done in the present case.

Since Exh A is based on Exh.2, and derives its sustenance from it, this necessarily implies that Exh. 4 conveyed no title to the land in dispute to the plaintiff. This court cannot therefore, grant the plaintiff the declaration sought for in the first arm of his claim”.

The Court of Appeal, on the other hand in the lead judgment of Uwaifo, J,C.A (as he then was) commenting on the learned trial Judge’s observation remarked:

“As regards the plaintiffs case, the learned Judge was of the view that the conveyance (Exh, 2) which the plaintiffs vendor, Dickson Okorie Chukwuemeka Nwankwo, who testified as PW2, relied on was not executed by Ngwu Ugwu Mba stated therein as the owner. This is because Ngwu Ugwu Mba was said to be an illiterate but his name was written on the conveyance and it was not clear who did. The learned judge then, at the close of final addresses of counsel, called for the Land Registry copy of the conveyance and said he found that it was not thumb-impressed. He came to the conclusion that the conveyance was void. I have my strong reservation if the learned judge was right on that point No issue was specifically joined by the parties that Ngwu Ugwu Mba did not sign or thumb-impress the conveyance. What the defendant pleaded in regard to the conveyance was:

(I) That Ugwu Mba belonged to Umunnamalum family of which one Lawrence Mba was the head. As has been shown already the learned judge found that such family never existed.

(2) That Ngwu Mba, was incapable of conveying family land, This of course would also be destroyed by the finding of the learned judge as the family referred to is the non-existent Umunnamalum family,

(3) That Ngwu Mba did not know what he was doing being an illiterate. I cannot see the sense in this.

An illiterate is not necessarily foolish nor is he to be regarded as insane. In any event, since the defendant is not a member of Ngwu Ugwu Mba family nor did he derive title from that same family, he cannot be heard to challenge the act of Ngwu Ugwu Mba in relation to the Conveyance. He cannot rely on the alleged fact that the conveyance was not signed or executed by Ngwu Ugwu Mba and argue that it is void. He is a stranger to the deed. This is implicit in the principle that a stranger to a deed cannot seek to have it set aside of avoided: See Foko v. Foko(1968) NMLR 441; Eric Ordor R. v. Nwosu (1974)1 All NLR (Pt,2) 478. A fortiori, a court cannot undertake to do it for such a stranger”.

UWAIFO, J.C.A. then referred to paragraphs 4, 5 and 6 of the amended Statement of Claim and paragraph 4 of the Amended Statement of Defence and remarked:

“Therefore, the basis upon which the defendant could challenge the capacity in which Ugwu Mba, Nnamani Ugwu Mba and Ngwu Ugwu Mba acted (in their own family) at any stage in relation to the land in dispute no longer existed”,

The learned Justice went on to consider other pleas raised by the defendant and the evidence on the issue of title and concluded as follows:

“With this evidence, and having regard to the true trend of the case whereby the learned Judge himself found that the so-called vendors of the defendant never existed, that plaintiff must be seen to have established a prima facie case as regards:

(1) The family from whom he brought the land. (2) The prominent role played by Ngwu Ugwu Mba, (3) The connection of Ngwu Ugwu Mba with the said family. (4) The root of title of the said family not having been disputed even by the defendant who merely tired to assert that those who took part in the transaction were not duly authorised. In land matters, as in other civil matters, proof is on the balance of probabilities: See Kaiyaoja v. Egunla (1974)12 S.C. 55 at 61. It is the law that once plaintiff in a civil matters shows a prima facie case, the balance of probabilities will be in his favour unless the defendant’s case tilts that balance. This is implicit in the case of Aromire v. Awoyemi (1972)2 S.C 1 at 10-11 and section 135, 136 and 138 of the Evidence Act as to burden of proof in civil cases”.

The learned Justice then considered the effect of the documents of title relied upon by the plaintiff and finally came to the conclusion that title ought to be declared in the plaintiff. The other justices of the Court below who sat on the appeal agreed with the observations and conclusion or Uwaifo J.C.A.

While I do not necessarily disagree with most of the observations made by Uwaifo J.C.A. in his lead judgment it is with his conclusion that plaintiff proved his title to the land in dispute that I, with respect find myself unable to go along with him. It is pleaded in paragraph (4) of the amended statement acclaim that the land in dispute originally belonged to one Ugwu Mba ….” but Mba’s root or title was never pleaded. Could it now be said that in the circumstance, plaintiff had discharged the onus on him’ I think the law is settled on this point. A long line of cases beginning with Kodilinye v. Mbanefo Odu (1935)2 WACA. 336 has laid it down that in a claim for declaration of title the onus is on the plaintiff to prove his case. He must rely on the strength of his own case and not on the weakness of the defence. Jules v. Ajani (1980) 5/7 S.C 96 – except of course where the weakness of the defendant’s case tends to strengthen plaintiffs case – Nwagbogu v. Ibeziako (1972) vol. 2 (Pt.1) ECSLR 335, 338 SC or where the defendant’s case supports his case – Akinola v. Oluwo (1962) 1 SCNLR 352 (1962) 1 All NLR 224; (1962) (Pt.1) ANLR 225/ all of which is not the case here.

What is this onus on the plaintiff in this case The plaintiff here must prove not only that Ugwu Mba who was claimed to be the original owner transferred title to Nwankwo who, in turn, transferred the same to him but must also establish how Ugwu Mba came about the ownership of the land moreso, when the defendant did not concede original ownership of the land to Ugwu Mba. See Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7) 393. The root of title of Ugwu Mba was not pleaded in this case nor was any evidence led on it. I think this is fatal to plaintiff’s claim to title and his claim to title ought to have been dismissed. See Eboha v. Anakwenze (1967) FNLR 279.

The grant of declaration is at the discretion for a Court. The Court below must not only satisfy itself of plaintiff’s root of title from Ugwu Mba but must also satisfy itself us to the proof or Ugwu Mba’s title, that is Mba’s original ownership must be established. That not having been done in this case, his claim to title was rightly dismissed by the learned trial judge though for different reason.

(2). Trespass and Injunction: There are concurring findings or fact of the two courts below to the effect that plaintiff was in prior possession of the land in dispute and that the defendant came thereon to disturb that possessory right. There is overwhelming evidence on the record to support those findings. Although plaintiff failed in his claim for title, that failure does not necessary mean that his claim in trespass must fail because trespass is a violation of possessory right and does not involve title to land.- Aromire v. Awoyemi (1972) 2 SC 1: Omoni v. Biriyal (1976) 6 SC. 49. Plaintiff’s possession in this case is good title against the whole world except the true owner of the land. See Akano v. Okunade (1978) 3 SC. 129. The defendant admitted going on the land and building thereon. I think that two courts below were right in finding against him in trespass and injunction. The defendant in this appeal has not satisfied me that the verdict is perverse. I too affirm it.

In conclusion I allow this appeal as regards the claim for title. I set aside the judgment of the court below granting to the plaintiff title to the land in dispute. I dismiss the appeal as regards the claim in trespass and injunction. I affirm the judgment of the Court below on this. The defendant is entitled to half the costs of this appeal which I assess at N5,000.00.

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SC.153/1992

Deacon J.k. Oshatoba & Anor V. Chief Johnson Olujitan & Anor (2000)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Kaduna Division which had on the 20th day of April. 1992 allowed the appeal of the plaintiffs from the decision of the appellate division of the High Court of Justice, Kwara State, holden at Okene.

The plaintiffs for themselves and as representing the people of Iffe had at the Divisional Area Court, Kabba instituted an action against the defendants for themselves and on behalf of the people of Ekinrin, claiming ownership of the piece or parcel of land situate between the Osun river and the other lands of the plaintiffs. The suit was subsequently transferred to the Upper Area Court, Lokoja by the Inspector of Area Courts, acting under powers conferred on him by virtue of the provisions of section 48(2) of the Kwara State Area Courts Law, 1967.

At the subsequent trial, both parties testified on their own behalf and called witnesses.

It is not in dispute that the plaintiffs and the defendants, the Iffe and Ekinrin people, respectively, are two different communities in the Ijumu Local Government Area of the then Kwara State. The defendants are the representatives of the Ekinrin Community whilst the plaintiffs prosecuted this action for and on behalf of the Iffe Community. Both communities laid claim to ownership of the land in dispute. Each side claimed that the land in dispute was founded by its ancestors and led copious evidence in this regard. The plaintiffs, in particular, claimed that they are the landlords of the defendants and that the defendants had encroached and trespassed on the other lands of the plaintiffs not granted to the said defendants. This piece of evidence was denied by the defendants. At the close of evidence, the trial Upper Area Court inspected the locus in quo and made copious notes in respect thereof. Thereafter, it proceeded to evaluate all the evidence adduced before the court and preferred the testimony of the plaintiffs to that of the defendants, Said the Upper Area Court-

“We are satisfied with the case of the plaintiffs that they gave lands to both Ekinrin and Egbeda and that Ekinrin, because they have been long where they now stand are trespassing where they Were not given. This should not be allowed without the express permission of their landlords. We therefore find for the plaintiffs and hand down the following order.

Order:

We order that Ekinrin community should desist from parading themselves as the owners of the land from Ogbokoewe down to Osoun to Oyi and Obaru river Onopa down to the old sand heap which they said is the old boundary between Ekinrin and Ikoyi. We also order that they should recognize Ogu and Oye families of Iffe as their landlords. We finally order that Ekinrin should confine herself to the area given them by their landlords.”

Dissatisfied with the said judgment, the defendants lodged an appeal against the same to the appellate division of the High Court of Justice, Kwara State, holden at Okene. That court, in a unanimous judgment, allowed the appeal, set aside the decision and orders of the trial court and concluded as follows-

“For this and other reasons canvassed in this judgment, we think that the investigation of the claims of the parties by the trial court including the ascertainment of the rights of other prospective interested persons who are likely to be affected by the outcome of this case was perfunctory as it ignored some material aspects of the adjudication of the matter in dispute. Consequently this appeal is bound to succeed and it is allowed. We set aside the judgment of the Upper Area Court in suit No. UAC/CVL/30/84 given on 10/6/85 in the dispute between the parties before us…..

We feel that the proper order to make in the peculiar circumstances of this case is one of a non-suit and we order accordingly.”

Aggrieved by this decision of the appellate High Court, both parties lodged appeals’ to the Court of Appeal, Kaduna division, which court, in a unanimous decision, allowed the appeal of the plaintiffs in lull and that of the defendants in part. It accordingly set aside the decision and orders of the appellate High Court and restored the judgment of the trial Upper Area Court. The defendants were dissatisfied with this decision of the Court of Appeal hence the present appeal to this court. I shall hereinafter refer to the plaintiffs and the defendants in this judgment as the respondents and appellants respectively. Three grounds of appeal were filed by the appellants against this decision of the court below. It is unnecessary to reproduce them in this judgment. It suffices to state that the appellants, pursuant to the rules of this court filed their brief of argument in which three issues were identified for the determination of this court. These are as follows –

“(i) Whether the Upper Area Court has jurisdiction to adjudicate on an inter-tribal boundary dispute.

(ii) Whether the lower court was right in dismissing the appellants’ cross-appeal at all and without considering grounds 1 and 3 of same.

(iii) Considering the totality of the evidence adduced before the trial Upper Area Court and the proceeding” before the appellate High Court, whether the lower court was right by reversing the judgment of the High Court and restoring that of the trial upper Area Court.”

The respondent, for their part, did not identify any issues in this appeal for the resolution or the court. They will therefore he taken to have adopted the same issues formulated on behalf of the appellants in the appeal. See Ajibade v. Pedro (1992) 5 NWLR. (Pt.241) 257 at 267.

At the oral hearing of the appeal before us on the 23rd day of November, 1999. learned counsel for the appellants O. Mudiaga Odje Esq. adopted the appellants” brief of argument and proffered oral arguments in further elucidation of the submissions therein contained. Both the respondents and learned counsel. J. O. Ijaodola Esq. who settled their brief of argument were absent in court although served with hearing notice in respect of the appeal Accordingly, the court proceeded with the hearing of the appeal pursuant to the provisions of Order 2 Rule 11 (1) and Order 6 Rule 8(6) of the Rules of this court.

The main contention of learned counsel for the appellants in respect of issue 1 is that the trial Upper Area Court had no jurisdiction to entertain the suit as it related to an inter-tribal boundary dispute. Questioned by the court as to whether he could raise before this court, without leave, an issue the appellants had abandoned in the court below, learned counsel frankly conceded that the could not with regard to issue 2, learned counsel contended that the court below was in error to have dismissed the appellants’ cross-appeal without considering grounds 1 and 3 of their grounds of appeal. On issue 3, it was his submission that considering the totality of the evidence before the court and the surrounding circumstances of the case, the respondents’ case ought to have been dismissed outright as against the order of non-suit therein entered by the Appellate High Court. He urged the court to allow the appeal and dismiss the respondents’ claims.

Learned counsel for the respondents. J. O. Ijaodola Esq. in his brief of argument, had submitted that the trial Upper Area Court had ample jurisdiction to entertain the suit since the case was clearly a claim in respect of title to an identifiable piece or parcel of land and not an inter-tribal boundary dispute. It was argued in respect of issue 2 that the court below adequately considered all the issues formulated before it in the appeal and had no need to deal with any grounds of appeal. Learned counsel finally contended with regard to issue 3 that the trial Upper Area Court having properly considered and accepted the respondents’ version or their claim to ownership of the land in dispute and rejected the appellants’ claim” thereto, the Court of Appeal was right to have set aside the decision of the appellate High Court and to restore the decision of the trial Upper Area Court.

The crucial question for consideration under issue is whether or not the appellants can now raise the issue of want of jurisdiction on the part of the trial Upper Area Court to entertain the respondents’ action as contended by the appellants.

Without doubt, where a case is heard and judgment is delivered by a court without jurisdiction, the proceedings will be a nullity. See Timitimi v. Chief Amabebe 14 WACA 374 at 377; Mustapha v. Governor of Gongola State (1988) 1 NWLR (Pt.68) 39.

Equally, true is the fact that the issue of jurisdiction may be raised at any stage of a proceeding up to the final determination of an appeal even by the highest court of the land. A trial court and, indeed, an appellate court may raise it suo motu at any stage of a proceeding, but must invite the parties to address it on the issue before it takes its decision thereupon. See Osadebay v. Attorney-General, Bendel State (1991) 1 NWLR (Pt.169) 525, P.E. Ltd v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt.244) 657, Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410 at 420, Okesuji v. Lawal (1991) 1 NWLR (Pt.170) 661 etc. Having so stated; it is now necessary to determine whether or not the appellants in the present proceeding can properly raise the issue of jurisdiction before this court.

It ought to be noted at this state that following the award of the to the land in dispute to the respondents by the trial Upper Area Court, the appellants, as they were entitled to do, lodged an appeal against this judgment to the appellate division of the High Court of Justice, Kwara State. Ground 1 of their additional grounds of appeal was framed as follows:-

“The entire proceedings before the Upper Area Court, Lokoja are a nullity in that the said Court has no Jurisdiction to entertain an inter-tribal boundary dispute.”

The issue was accordingly argued by both parties before the Appellate High Court which in a considered decision ruled against the appellants. It held that the respondents’ action was one for title to land simpliciter and not an inter-tribal boundary dispute and that the trial Upper Area Court therefore had ample jurisdiction to entertain the action. The Appellate High Court concluded thus –

“It has been held that the test of whether a dispute over land is one of inter-tribal boundaries or one over title to land is whether the plaintiffs claim is over part of all the area of the land in dispute. Where it is over all the area, there is nothing to be disputed about the boundaries of the panics and the dispute is simply one relating to title to land …. We agree with learned counsel for the respondents … that this case is one of land dispute. This point is borne out by the way the plaintiffs/respondents formulated their claims. Therefore, this ground of appeal fails.”

Although the appellants generally cross-appealed to the Court of Appeal against the entire judgment at the appellate High Court, no complaint whatsoever was raised by them on the decision of the said Appellate High Court to the effect that the trial Upper Area Court had jurisdiction to entertain the action. The five grounds of appeal, without their particulars, filed by the appellants as cross-appellants before the court of Appeal were as follows –

“1. The learned Justices of the High Court erred and misdirected themselves in law by non-suiting the appellants/respondents (the respondents before them) instead of dismissing their claim after allowing the cross-appellants’ additional ground of appeal No.3 which attacked the evidence of Professor Obayemi.

2. The learned Justices erred and misdirected themselves in law by non-suiting the appellants (respondents before them) when such an order was not available before or exercisable by the trial Upper Area Court.
3. In the alternative to ground 2 supra, the learned Justices erred and misdirected themselves in law by non-suiting the appellants (respondents before them) instead of dismissing their case when they (appellants) had failed in toto to prove their case before the trial court.
4. In further alternative to grounds 2 and 3 supra, the learned Justices of the lower court misdirected themselves in law by non-suiting the appellants (respondents before them and plaintiffs before the trial court) when counsel for the parties were not called upon to address them (learned Justices) on the issue.
5. The learned Justices of the lower court erred in law and in fact by holding that the “investigation” before the trial court was inconclusive and therefore ordering a retrial in view of what they called “third party’s interest.”

Two issues were raised by the appellants in their cross-appellants’ brief of argument before the Court of Appeal as arising in both the respondents’ main appeal and their cross-appellants’ appeal for determination. These were set out as follows-

“1. Whether the lower court was right in holding that the trial or the investigation before the trial Upper Area Court was inconclusive.

2. Having regard to the circumstances 0f this case, the relevant laws and/or the rules of court, whether the lower court was right in non-suiting the plaintiffs instead of dismissing their case.”

It is thus clear both from the above stated grounds of appeal and the issues raised therefrom that before the Court of Appeal, the appellants did not raise or pursue the issue or the jurisdiction of the trial upper Area Court to entertain the respondents’ action. That issue having not been pursued by the appellants before the Court of Appeal, it seems to me plain that that court, unless being an issue of jurisdiction, it was prepared to raise it suo motu, had no business whatsoever to deal with it. See Florence Olusanja v. Olufemi Olusanya (1983) 1 SCNLR 134, Ochonma v. Unosi (1965) N.M.L.R. 321 at 323. This is because it is a fundamental principle of the determination of disputes between parties that judgment must be confined to the issues raised by the parties and it is not competent for the court to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties. See Adeniji and others v. Adeniji and others (1972) 1 All N.L.R. (Pt.1) 298; Nigerian Housing Development Society Ltd. v. Yaya Mumuni (1977) 2 SC 57; Commissioner for Works. Benue State & anor. v. Devcon Development Consultants Ltd. and another (1988) 3 N.W.L.R. (Pt. 83) 407. But as I have already observed the appellants were dissatisfied with the whole decision of Court of Appeal and lodged an appeal against the same to this court.

Three grounds of appeal were filed in this court by the appellants against the said decision of the Court of Appeal. These, without their particulars, are as follows –

“1. The court below erred in law and thereby came to a wrong decision when it held as follows:-

“The investigation or the trial before the Upper Area Court was conducted in accordance with the rules and procedure applicable in that court. Both parties presented their case, called witnesses, tendered documents and the court visited the locus in quo. The evidence was appraised and the trial court reached its decision on the facts placed before it. The minor discrepancies between the claims put forward by the parties have been cured by the provisions of Order 11 Rule 2(3) of the Area Court (Civil Procedure) Rules, 1971 for Kwara State, the apparent dissonance between the evidence of 1st and 2nd appellants notwithstanding.”

2. The lower court erred in law in allowing the respondents’ appeal inspite of the fact that the respondents did not prove their case based on the preponderance of evidence.
3. The judgment of the lower court is against the weight of evidence.”

The three issues formulated by the said appellants as arising in this appeal for the determination of the court have already been reproduced earlier on in this judgment. I need stress that issue I poses the question whether the trial Upper Area Court had jurisdiction to adjudicate on the respondents’ action which the appellants claimed was an inter-tribal boundary dispute and which issue they did not raise in the court below and was therefore neither argued nor considered by that court.

There can be no doubt that the question of jurisdiction, being radically fundamental, can be raised at any stage of a proceeding and even for the first time in a court of last resort, such as the Supreme Court. See Management Enterprises Ltd. and another v. Jonathan Otusanya (1987) 2 N.W.L.R. (Pt. 55) 179. Such an issue must, however, be properly raised before the court may rightly entertain the point. This is because an appellate court will not generally allow a fresh point to be taken before it if such a point was not pronounced upon by the court below. See London Chartered Bank of Australia v. White (1987) 4 A. C. 413, Kabaka’s Government and another v. Attorney-General of Uganda and anor (1965) 3 W.L.R. 512 or (1966) A. C. 1. In the same vein, an appellant will not generally be allowed to raise on appeal a question which was not raised, tried or considered by the court below although where the question involves a substantial point of law, substantive or procedural, and it is plain that no further evidence needs be adduced which would affect the decision, the court will allow the question to be raised and the points taken to prevent an obvious miscarriage of justice. See Attorney-General of Oyo State v. Fairlakes Hotels Ltd (1988) 5 N.W.L.R. (Pt. 92) 1 at 29; (1989) 5 NWLR (Pt.121) 255. John Bankole and others v. Mojidi Pelu and others (1991) 8 N.W.L.R. (Pt. 211) 523. There are of course exceptions and/or qualifications to this broad proposition of law. With these exceptions and qualifications, this judgment is not concerned. It suffices to state, firstly, that an appellate court can only hear and decide on issues raised on the grounds of appeal filed before it and an issue not covered by any ground of appeal is incompetent and will be struck out. See Management Enterprises Ltd. & anor v. Jonathan Otusanya (supra): Attorney-General, Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 N.W.L.R. (Pt.66) 547. Adelaja v. Fanoiki and another (1990) 2 N.W.L.R.(Pt.131) 137 at 148.

In the present case, it is evident that the issue of jurisdiction now sought to be argued by the appellants was neither raised nor covered by any of the three grounds of appeal filed before this court. In the second place, the same issue of jurisdiction not having been raised by the appellants in the court below, it is plain that it cannot now be canvassed in this court without leave, I think that learned counsel for the appellants was quite right when he conceded that the issue of jurisdiction could not now be raised before this court in this appeal without leave. This leave was neither sought nor obtained by the appellants.

It is trite law that failure to obtain the leave of court, where necessary, to file a particular ground of appeal upon which an issue is raised for the resolution of the court renders both such grounds of appeal and the issue so formulated therefrom incompetent. See Ajibade v. Pedro (1992) 5. N.WL.R. (Pt. 241) 257 at 262. Arowolo v. Adimula (1991) 8 N.WL.R. (Pt. 212) 753. Metal Construction etc. v. Migliore (1990) 1 N.WL.R. (Pt. 126) 299. In the present appeal, the issue of jurisdiction sought to be argued is neither covered by any of the three grounds of appeal filed in these proceedings nor was the leave of court obtained to raise it. In my view, therefore, the issue is incompetent and must be struck out.

I find it necessary, however, to point out that even if the leave of this court was obtained by the appellants to raise the question of the jurisdiction of the trial Upper Area Court to entertain this action. I would have had no difficulty in resolving the issue against them. In this regard the point must be made that the form of an action in a Native Tribunal must nut be stressed where the issue involved is clear. It is the substance of such a claim that is the determinant factor.

Proceedings in such courts have to he carefully scrutinized to ascertain the subject matter of the case and the issues raised therein. In this regard, it is permissible to study the claim, the findings and even the evidence given in such a case to ascertain what the real issues were. See Richard Ezeanya and others v. Gabriel Okeke and others (1995) 4 N.W.L.R. (Pt.388) 142, Chukwunta c. Chukwa 14 WA.C.A. 341. Nwosu v. Udeaja (1990) 1 N.W.L.R (Pt. 125) 188. R. v. Lt. Governor, Eastern Region, Ex-parte Chiagbana 2 F.S.C. 46, Kwamin Akyin v. Essie Egymah 3 W.A.C.A 65.

A close study of the proceedings before the trial Upper Area Court does clearly disclose that what was in issue before that court is a straight forward claim of title to or ownership of a particular piece or parcel of land, the identity of which was well described in the evidence of the parties. The claim, as formulated by the respondents, clearly Indicated the “cause of action” to be “Land Dispute”. As earlier mentioned, each of the two parties claimed title to the said land by virtue of their original ownership and possession thereof. More specifically, the respondents claimed that they are the landlords of the appellants, that the appellants had no land of their own in the area. That the appellants begged the respondents’ ancestors for land on which to settle and were obliged and that the said appellants subsequently started to encroach and trespass on the respondents other lands not granted to them hence the present action.

The foregoing case of the respondents was fully considered and accepted by the trial Upper Area Court. On the other hand, the appellants claim as the original owners of the land in dispute from time immemorial was equally fully considered and rejected by the trial court. It seems to me clear that both in form and in substance, the dispute between the parties was simply that of ownership of the piece or parcel of land in dispute. It cannot, therefore, be seriously contended that the trial Upper Area Court had no jurisdiction to entertain the respondents’ claim of ownership to the land in dispute nor, equally, can it be argued that the claim before the trial Upper Area Court was an inter-tribal boundary dispute as submitted on behalf of the appellants. In my view, the trial Upper Area Court had ample jurisdiction to entertain the respondents’ action. But for all the reasons that

I have given above, it is clear to me that issue I as raised by the appellants is incompetent and the same is hereby struck out.

There is next issue 2 which questions whether the court below was right in dismissing the appellants’ cross-appeal without considering grounds 1 and 3 of their grounds or appeal.

I think I ought to stress in the first place that it is the issues distilled from all appellant’s grounds of appeal that may be argued in the Court of Appeal or the Supreme Court and not the grounds of appeal. See Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (1987) 1 N.W.L.R. (Pt. 49) 284 at 304, Adelaja v. Fanoiki (1990) 2 N.W.L.R. (Pt. 131) 137 at 148, Allie v. Uzorka (1993) 8 N.W.L.R. (Pt.309) 1 at 17. Jimoh Odubeko v. Victor Fowler and another (1993) 7 N.W.L.R. (Pt. 308) 637 at 653.

In the second place, it is beyond argument that issue 2 of the appellants’ brief of argument in the court below was distilled directly from grounds 1 and 3 of their grounds of appeal before that court. For ease of reference, that issue is couched thus:

“Having regard to the circumstances of this case, the relevant laws and/or the rules of court, whether the lower court (meaning the Appellate High Court) was right in non-suiting the plaintiffs instead of dismissing their case” (Words in brackets supplied for clarity).

It is pertinent to observe that the appellants’ foregoing issue 2 practically raises the same question as formulated by the court below under issue 2 which it framed as follows-

“Whether, if the High Court was right in interfering with such a finding, the High Court was correct in non-suiting the appellants’ case instead of dismissing the same, or whether the decision of the trial court should be confirmed”.

A close study of the judgment of the Court of Appeal does clearly disclose that the above issue was abundantly considered by that court at the end of which it arrived at the conclusion that the order of non-suit made by the appellate High Court was misconceived. It was its finding that the respondents, having proved their ownership of the land in dispute by admissible evidence before the Upper Area Court and its findings were not faulted in any way, the plain duty of the appellate High Court was to enter judgment for the respondents in favour of their claim. The Court of Appeal after an exhaustive consideration of the issue had this to say, namely –

“The judgment of the High Court was simply based upon what they termed the inconclusiveness of the trial before, the Upper Area Court, and with respect. I have shown above that they were wrong. But it is their assumption of the inconclusiveness of the trial that led the Justices to non-suiting the Appellants…..In the appeal before us, both the appellants and the respondents are also one in that the judges of the High Court on appeal are wrong to have non-suited the claim, but while the appellants contend that the judgment or the trial court should be affirmed. The respondents contend that the claims or the appellants be dismissed,”

The court below then queried –

“But based upon the grounds of the appeal, the arguments of counsel and record or proceedings, what would be the proper order to make under the circumstances or the case”

It proffered an answer thus –

“I have held that the appellants have succeeded in their two grounds of appeal. The question now to be considered is whether the appellants have proved their claims on the balance of probabilities as adjudged by the trial court or whether the appellants have failed to prove their case on the evidence adduced by them. This now, is only concerned with the grounds of the cross appeal dealing with the proof of the case.

The trial court found for the appellants. The court particularly accepted the evidence of PW5 and based its judgment on his evidence amongst other evidence. It made findings of fact that the land in dispute was owned by the appellants, that the appellants settled the respondents on part of the land and that the respondents apparently not being satisfied with the area given them are now encroaching and trespassing on other lands given to third party.

The Appellate High Court did not directly deal with the issue. It did not decide that the findings of the trial court were perverse nor supported by the evidence adduced at the trial…..Clearly, there was evidence which the trial court accepted before deciding the case in favour of the appellants. The respondents have not convinced me that the decision of the High Court was based on its finding that the trial court’s judgment was perverse. Indeed, apart from some remarks made against the 5 PW, the High Court did not reject the other evidence led for the appellants.”

It then concluded –

“In my view, the High Court ought to have confirmed the decision of the trial court and 1 so decree.

In the result the appeal of the appellants/cross-respondents succeeds and the cross-appeal also partially succeeds. I accordingly set aside the decision of the High Court delivered on the 20th day of March, 1986 non-suiting the appellants/cross respondents. In its stead, I restore the judgment of the trial Upper Area Court delivered on 10/6/85. The appellants/cross-respondents are entitled to their costs in the court below which I assess at N450.00 costs and I make no order as to costs in this court.”

It is clear to me that the court adequately considered issue 2 raised by the appellants before it arrived at the conclusion, rightly in my view, that the appropriate order was that of judgment for the respondents. Issue 2 is therefore resolved against the appellants.

Issue 3 is closely connected with issue 2. The main question here is whether on the totality of the evidence adduced before the Upper Area Court, the court below was right in reversing the decision of the Appellate High Court and restoring that of the Upper Area Court. As I have already observed, both parties laid claim to ownership of the land in dispute and tendered evidence in support thereof. The respondents in particular claimed that they are the landlords of the appellants and that the said appellants had exceeded the area of land they were given and trespassed on other lands of the respondents not granted to them hence this action. The respondents’ evidence was accepted as established by the trial Upper Area Court, and that of the appellants was rejected as unreliable. These findings of fact of the trial Upper Area Court were not established to be perverse or otherwise faulty. It is trite law that an appellate court will not ordinarily interfere with the findings of fact of a trial court except in circumstances such as where the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses or where it has drawn wrong conclusions from accepted credible evidence or has taken an erroneous view of the evidence adduced before it or its findings of fact are perverse and do not flow from the evidence accepted by it. See Okpiri v. Jonah (1961) All N.L.R. 102 at 104 – 105, Woluchem v. Gudi (1981) 5 S.C. 291, Odofin v. Ayoola (1984) 11 S. C. 72 etc. No such circumstances has been established in the present proceedings and I fully endorse the reversal of the judgment of the appellate High Court by the Court of Appeal and the restoration of the decision of the Upper Area Court in the suit. Issue 3 is accordingly resolved against the appellants.

In the final result, this appeal fails and it is hereby dismissed with costs to the respondents against the appellants which I assess and fix at N10,000.00.

---

SC.33/1994

Ifeanyi Chukwu (Osondu) Co. Ltd. Vs Soleh Boneh (Nig.) Ltd (2000)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

The main question arising for determination in this appeal is a question of law framed by the parties, as follows:

“Whether the Court of Appeal was right in holding that failure (by the appellant) to join the respondent’s driver as a defendant in the present proceedings was fatal to the appellant’s case.”(words in brackets mine)

Following an accident that occurred at Abudu in Bendel State (now Edo State) on 29th May, 1981. the plaintiff (who is appellant in this appeal) sued the defendant (now respondent) claiming N64,521 damages it suffered as a result. The accident involved the two vehicles of the parties. The plaintiff’s vehicle Reg. No. IM1673G driven by its driver was a passenger coach; that of the defendant, Reg. No. OY 9065 AD was a trailer and was driven by one Mosudi Akanbi said to be the defendant’s driver. The action was instituted against Mosudi Akanbi and the defendant. Following difficulties encountered in getting Mosudi Akanbi to be served with the Writ of Summons. The action was withdrawn against him and his name was struck off the proceedings.

Pleadings were filed and exchanged and, by leave of court, amended. By paragraph 15 of its amended statement of defence, the defendant pleaded thus:

Further, or in the alternative to paragraphs 5 to 8 and 10 to 15 herein above, defendant will at or before the trial contend on a point of law that even if all the averments in the Amended Statement of claim are admitted (which is denied) the Amended Statement of Claim is bad in law in that it discloses no cause of action against the defendant.

Particulars

(i) The Writ of Summons originating this action was taken out against Mosudi Akanbi (Driver of defendant’s vehicle) as 1st defendant and the present defendant as 2nd defendant.

(ii) On the 24th February, 1984 the plaintiff discontinued the action as against the said 1st defendant:

(iii) The 2nd defendant’s (now the sole defendant on record) liability is vicarious, by operation of law and cannot be established when plaintiff has discontinued the action against the 1st defendant who is primarily liable;

(iv) The original Writ of Summons is inconsistent with the Amended Statement of claim,”

The case proceeded to trial at the end of which the learned trial Judge, in a reserved judgment, found:

1. “that I agree entirely with Mr. Okonjo that Mosudi Akande (sic) is a necessary party whose non-joinder is fatal to the plaintiffs case …. I hold that Mosudi Akande not being a party in this case I cannot pronounce any verdict against him for which the defendant company can be held vicariously liable. On this ground the plaintiffs action cannot succeed,”
2. that even if Mosudi Akanbi, the driver of the trailer were a party to this action the plaintiff would still have lost as it failed to prove any negligence against him;
3. that there is no nexus between the plaintiff’s vehicle Reg. No. IM 1673G and Exhibits B, C, D, E, F, 0 & H (tendered in support of the claim for damages). The said exhibits are not unequivocally referable to IM 1673G
4. “that the plaintiff, in the instant case. having tendered evidence of negligence on the part of the driver of OY9065AD cannot rely on the doctrine of res ipsa loquitur to sustain his claims.

He dismissed plaintiffs claims.

The plaintiff appealed to the Court of Appeal (Benin Division) upon two original and three additional grounds of appeal. The plaintiff in its written brief of argument in that court set out three issues for the court to consider, to wit:

(1) Whether failure to join the respondent’s driver as a defendant in this action against his master where it is alleged that the master is vicariously liable is fatal to the appellant’s case.

(2) Whether having regard to the evidence adduced by both parties the learned trial judge was right to dismiss the appellant’s claim.

(3) Whether an appellate court seised of the matter is competent to evaluate the whole evidence and award damages claimed in the lower court.”

The Court of Appeal. in the lead judgment of Ogebe, JCA with which the other Justices agreed, addressed itself only to issue (1) above and adjudged:

“From all these authorities which I respectfully follow, it is clear that in an action for negligence as in the present case if the principal actor (the offending driver) is not joined as a party and his liability established there can be no question of finding the master liable vicariously. In other words, once the driver is not joined in the action the action is incompetent ab initio and a trial court should not waste its time going into the merits of the case. (Italics are mine)

Akpabio. JCA in his concurring judgment. wrote:

“I think that it must be repealed for emphasis that regardless of how gross the negligence of a driver might be, the liability of his master, which is vicarious, cannot arise unless and until the servant (the principal tort-feasor) who had driven the vehicle has been established in the court. The same goes for any insurance company who may have underwritten the liability. In the instant case, since the driver was never made a party to the suit, the liability of his master can never arise.” (Italics is mine)

The appeal was dismissed without any pronouncements being made on the other issues canvassed. The plaintiff has further appealed to this court on the only issue set out at the beginning of this judgment. Both in the appellant’s brief and in oral arguments of plaintiff’s learned counsel. it is submitted that it is unnecessary to sue a servant in negligence before making the master liable. It is contended that a master can be found liable in negligence with or without joining the servant. It is learned counsel’s submission that all that is required is that for the plaintiff to succeed against the master he must establish the liability of the servant for the tort complained of. And this he can do with or without joining the servant in an action against the master, so submits learned counsel. It is further contended that both the defendant and its driver are joint tort-feasors and being joint tort-feasors the plaintiff was at liberty to sue either or both. The following cases are cited in support:Lennards Carrying Co. Ltd. v. Asiatic petroleum Co. Ltd. (1914-15) All ER 280 at 283; James v. Midmotors (1978) 11-12 SC 31 at p. 39; Benson v. Otubor (1975) NSCC (Vol. 9) p. 49 at pp. 51 & 54. It is submitted that Consortium Steel Plant Aladja v. Mrs. Angelika Akindejoye & Ors. – CA/B/128/87 of 3rd Nov. 1989 (unreported) relied on by the court below was wrongly decided and that Rose v. Plenty ( 1976) 1 All E.R. also relied on by the court below is not apposite.

For the defendant, both in its brief and in oral arguments of its learned counsel. It is contended that in the light of paragraphs 5, 6 and 7 of the amended statement of defence, the presence of the driver of the defendant’s vehicle became necessary. It is submitted that as a master is only liable vicariously for the tort of his servant where the liability of the servant has been established it follows that in the present case the liability of Mosudi Akanbi can only be established and determined when he is a party to the action. Learned counsel for the defendant supports the judgment of the Court below. He cites in support Rose v. Plenty (supra) and Management Enterprises Ltd. v. Otusanra (1987) 2 NWLR (Pt.55) 179 and distinguishes Benson v. Otubor (supra).

The general principle of law which has its roots in the earliest years of the common law is that a master is liable for any wrong even if it is a criminal offence or a tortious act ‘committed by his servant while acting in the course of his employment. Tubervill v. Stamp (1697) I Ld. Raym. 264; Dyer v. Munday (1895) 1QB 742. This is what is known as the doctrine of vicarious liability which is based on the principle of law enunciated by Sir John Holt CJ in Hern v. Nichols (c. 1700), 1 Salk 289; “one of the earliest cases on the subject wherein the learned Chief Justice pronounced.

“Seeing somebody must be a loser by this deceit. it is more reason that he, that employs and puts & trust and confidence in the deceiver, should be a loser than a stranger.”

The doctrine means that one person takes the place of another so far as liability for the tort is concerned – see: Launchbury v. Morgans (1971) 2 QB 245, 253. It is the relationship of master and servant that of itself gives rise to this liability and not the old fiction that the master had impliedly commanded his servant to do what he did. A lot has been written over the centuries, both judicial and academic on the basis for the doctrine of vicarious liability – see for example, Kilboy v. South-Eastern Fire Area Joint Committee, (1952) SC, 280, 285. (per Lord Cooper); Staveley Iron & Chemical Co. Ltd. v. Jones (1956) AC 627, 643: Morgans v. Launchbury (1973) AC 127, at 135, 140: Maitland in P & M Vol. (ii) at 533. Going by the judgments from Sir John Holt CJ in Hem v. Nichols (supra) to Lord Denning in Nettleship v. Weston (1971) 2 QB 691,700, it would appear that the doctrine is based on public policy or. as Lord Pearce put it in I.C.I. Ltd. v. Shatwell (1965) AC 656, 685 on “social convenience and rough justice” Viscount Dilhorne and Lord Pearson in Launchbury v. Morgans (supra) rationalised at p. 140 that, the phrase qui facit per alium, facit per se correctly expresses the principle on which vicarious liability is based. But see Stanveley Iron & Chemical Co. Ltd. v. Jones (supra) per Lord Reid as to the qualified use of the Latin maxim. On the authorities as a whole, the master is liable, though guilty of no fault himself. The liability of the master is dependent on the plaintiff being able to establish the servant’s liability for the tort and also that the servant was not only the master’s servant but that he also acted in the course of his employment. The learned authors of Clerk & Lindsel on Tom 14th edition. paragraph 237 at page 238 state the law thus:”Liability of master for torts of servant. Where the relationship of master and servant -exists, the master is liable for the torts of the servant so long only as they are committed in the course of the servant’s employment. The nature of the tort is immaterial and the master is liable even where liability depends upon a specific state of mind and his own state of mind is innocent.”See also I.C.I. Ltd. v. Shatwell (supra) where Lord Pearce stated the law succinctly thus:

“Unless the servant is liable, the master is not liable for his acts; subject to this, that the master cannot take advantage of an immunity from suit conferred on the servant (Broom v. Morgan).

It is not necessary for the purpose of this judgment to dwell into the question whether a wrongful act is done in the course of the servant’s employment For it is not disputed by the defendant in these proceedings that Mosudi Akanbi acted in the course of his employment when he was involved in the accident his vehicle had with the plaintiffs vehicle. In summary, to succeed against a master the plaintiff must

1. establish the liability of the wrongdoer, and prove
2. that the wrongdoer is a servant of the master and
3. that the wrongdoer acted in the course of his employment with the master.

See Young v. Edward Box & Co. Ltd. (1951) TLR 789; 793 where Denning L. J., said:

“In every case where it is sought to make a master liable for the conduct of his servant the first question is to see whether the servant was liable. If the answer is Yes, the second question is to see whether the employer must shoulder the servant’s liability.”The next point I need make is that the master is answerable for every wrong of the servant as is committed in the course of his employment – See: James v. Midmotors (supra), Houldsworth v. City of Glasgow Bank (1874 – 1880) All ER (reprint) 333; (1880) 5 App Cas. 317. Following from the above discourse I now come to the nature of the liability of the master vis-a-vis his servant. The law regards both master and servant as joint tort-feasors – see: Jones v. Manchester v. Corporation (1952) 2 QB 852 at p. 870 where Denning L. J. (as he then was) held:

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

Finnermore J. in Semtex Ltd. v. Gladstone (1954) 1 WLR 947 at 949 expressed some reservation about this reasoning. See also Treacy v. Robinson & Soil (1937) 1R 255, 266. Being joint tort-feasors, the person injured is at liberty to sue anyone of them separately or may sue both jointly, their liability being joint and several. That their liability is joint and several is borne out by the case of Broom v. Morgan (1953) 1 QB 597 where the defendant, the licensee of a public-house employed both the plaintiff and her husband. The plaintiff was injured as a result of her husband’s negligence committed in the course of his employment. She sued the employer, the licensee of the public-house. The Court of Appeal (England) held that she was entitled to hold the defendant vicariously responsible for her injury, even though she could not have sued her husband as the law then stood. That the person injured may sue any or both of the tort-feasors is also borne out by section 14 of the Torts Law, Cap 164, Vol. VI Laws of Bendel State, 1976 applicable in the case on hand.

Both the trial court and the court below were of the view that as Mosudi Akanbi was not joined as a defendant in this case, the action as constituted was incompetent. They relied on some authorities the most important of which I shall now proceed to consider. It is Management Enterprises Ltd. & Anor. v. Otusanya (supra) (1987) 4 SC 367; (1987)2 NWLR(Pt.55) 179. In this case, there was a ghastly motor accident on the Benin-Ijebu-Ode road involving two vehicles traveling in opposite directions. One of the drivers, Dangana Musa died in the accident. The respondent in the appeal to this court was a fare-paying passenger in one of the two vehicles. He was injured as a result of the accident and sued both the owners and the drivers of the two vehicles. In his pleadings he blamed the two drivers for the accident which he attributed to the failure of both drivers to give way, to steer clear or stop for each A other; failure to exercise reasonable prudence in the circumstances; excessive speeding, plying the road with vehicles in unsafe and dangerous conditions and permitting their vehicles to get out of control. He also pleaded res ipsa loquitur. He pleaded in the alternative damages for breach by the defendants of section 3(1) of the Motor vehicles (Third Party Insurance) Act Cap 126 Laws of the Federation of Nigeria. Plaintiff in the course of proceedings withdrew the action against the owner and driver of the commercial vehicle in which he was traveling as passenger (that is, 3rd & 4th defendants) and the action proceeded against the 1st and 2nd defendants (the owner and driver of the trailer vehicle), The 2nd defendant was the driver that died in the accident. Plaintiff did not, after withdrawing against 3rd and 4th defendants, amend his pleadings. The 1st and 2nd defendants in their statement of defence blamed the accident on the 4th defendant, the driver of the commercial

vehicle and denied liability under section 3( I) of Cap, 126 and further pleaded, in respect of that claim, that it was statute-barred.

Oputa JSC who read the lead judgment of this court put the issues arising in the case as being (1) whose negligence caused the accident and (2) was there any breach by 1st and 2nd defendants of the statutory duly imposed by section 3(1) of Cap. 126

The trial court found that no admissible evidence was led in support of the alleged negligence against the two drivers and dismissed plaintiff’s claim. On appeal to the Court of Appeal, the latter court allowed the appeal and entered judgment for the plaintiff. On further appeal to this court by the defendants, the incompetence of the action was raised for the first time. It is important to set out the particulars of error complained of: They are

“(a) The second defendant was not a juristic person because he was not alive when the plaintiff/respondent instituted his action in 1972 under Suit HCJ/29/72 and no legal personal representative was appointed by the court,

(b) The vicarious liability of the first defendant depended on the established liability of the second defendant,

(c) The service of the Writ of Summons in Suit HCJ/29/72 on the dead second defendant through the first defendant who was not appointed the legal personal representative of the second defendant, is void and all the proceedings of the trial court and those of the Court of Appeal are automatically void”.

In the course of his consideration of the issue Oputa JSC observed at pp, 387 – 388 or the second report:

“The plaintiff’s claim in the trial Court was for damages for negligence. The negligence alleged was that of the 2nd defendant, Dangana Musa. The 1st defendant/company is the owner of the trailer No. 9801 driven by Dangana Musa on the 22nd April 1969 – the day of the accident, The liability of the 1st defendant is not direct but consequential and vicarious. It rests on the successful action against the 2nd defendant. (Italics is mine)

The learned trial judge in this case on hand relied on the underlined portion of this passage in coming to his decision.

On the validity of service of the writ against the 2nd defendant on the 1st defendant Oputa JSC held that the service was invalid and concluded at p. 395.

“I hold that the Ijebu-Ode High Court lacked the necessary competence to carry on this case against the 2nd defendant. If then the trial court could not validly deliver any judgment against the 2nd defendant, and since the liability or otherwise of the 1st defendant depended wholly on a verdict against the 2nd defendant then the Court of Appeal was wrong in its judgment against the 1st defendant/appellant. My answer to question No 1 for determination is that the action against the 2nd defendant was a nullity not because he was dead when the Writ was issued, but because there was no application by the plaintiff for an order under order 15 rule 6A/4 R.S.C. (England) for the court to appoint someone else to carry on the action. The action was also and thereby a nullity because there was no proper service of the Writ against the 2nd defendant through his such representative appointed by order of Court.” (Italics is mine)

It is the italicized part of the passage above that the court below, per Ogebe. JCA. relied on in arriving at its own conclusion which is being attacked in this appeal. I shall come back to this case later in this judgment.

The plaintiff has drawn our attention to James v. Mid motors (supra) where this court considered the law of the liability of a principal for the act of his servant or agent Aniagolu JSC who read the judgment of the court observed at page 51 of the report:

“The general law has been stated that a corporation aggregate is liable to be sued for any tort provided that:

(1) it is a tort in respect of which an action will be brought against a private individual;

(2) the person by whom the tort is actually committed is acting within the scope of his authority and in the course of his employment as agent of the corporation; and

(3) the act complained of is not one which the corporation would not in any circumstances, be authorized by its constitution to commit unless perhaps the corporation has expressly authorized the act. (See Volume 9, Halbury’s Laws of England, 4th edition paragraph 1374).

Among the acts for which a corporation can be held liable in tort is fraud. Not being a human person the corporation or company of necessity, acts through human beings who are its agents or servants and the corporation or company, like every master. is liable for the fraud committed by its servant or agent in the course of its service,”

It is interesting to observe that although the case was fought on the basis of the vicarious liability of a master for the tort (in the case, the tort of fraud) of his servant or agent, the servant or agent was never made a party to the case, This notwithstanding. this court entered judgment against the master and in favour of the plaintiff. There are numerous other cases in the law reports both in this country and in other common law jurisdictions, where only the master was sued, Coming now to the case on hand, the two courts below held that the non-joinder in the action before them of Mosudi Akanbi, the defendant’s driver was fatal to the plaintiffs action. Order 7 rule 10 of the High Court (Civil Procedure) Rules, Cap 65, Laws of Bendel State of Nigeria, 1976 (applicable at all times relevant to this case) provided:

“10(1)No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties. and the parties may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

( 2). The court or a judge may, at any stage of the proceedings. Either upon or without the application of either party, and on such terms as to the court or a judge may seem just order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names or any parties, whether plaintiffs or defendants who ought to have been joined or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions. ”

The effect of this rule has been determined by this court in such cases as Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 11-12 SC 1; Uku v. Okumagba (1974) 1 All NLR (pt.1) 475; Okoye v. Nigerian Cons. & Furniture Co. Ltd. (1991) 6 NWLR (Pt.302) 692; Laibru Ltd. v. Building & Civil Engineering Contractors (1962) 2 SCNLR 118; Ekpere v. Aforije (1972) 1 All NLR (Pt.1) 220, (1972) ANLR 224. And that is that no cause or matter shall be defeated by reason of the non-joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. Failure to join as a party a person who ought to have been joined will not render the proceedings a nullity on ground of jurisdiction or competence of the court. It is only where a person is a necessary party in the sense that that person is likely to be affected by the result of the action that his joinder becomes essential. For the court ought to have before it such parties as would enable it to “effectually and completely adjudicate upon and settle all the questions” in the suit – see: Uku v. Okwuagba (supra): Peenok Investment Ltd. v. Hotel Presidential Ltd. (supra):Performing Rights Society Ltd. v. London Theatre of Varieties Ltd. (1924) AC 1 at p. 14 where Viscount Cave said:

“Further, under Order XVI, r. 11 (as it then was), no action can now be defeated by reason of the misjoinder or non-joinder of any party; but this does not mean that judgment can be obtained in the absence of a necessary party to the action, and the rule is satisfied by allowing parties to be added at any stage of a case.”

See also: Kunstler v. Kunstler (1969) 2 All ER 673. Can it be said that Mosudi Akanbi is a necessary party who is likely to be affected by the result of the action against the defendant I rather think not. Nor do I think that his presence is necessary in order to enable the court “effectually and completely adjudicate upon and settle all the questions” in the action, I think the plaintiff could prove its case against the defendant without joining Mosudi Akanbi. It was for him to produce sufficient evidence to establish the liability of Mosudi Akanbi for the accident. it would be for the defendant to rebut the evidence for the plaintiff thereby defeating its claim. If anything, it was the defendant who would need the presence of Mosudi Akanbi and ought to have moved the trial court to join him or call him as a witness. I cannot see how plaintiff’s case could be defeated by the failure of the defendant to do so. Looking at the question on hand from another angle, the master and his servant are joint tort-feasors. The learned authors of Salmond on the Law of Tons, 17th edition, paragraph 167 at page 442 define who are joint tort-feasors in these words:

“Persons are to be deemed joint tort-feasors within the meaning of this rule whenever they are responsible for the same tort – that is to say, whenever the law for any reason imputes the commission of the same wrongful act to two or more persons at once. This happens in at least three classes of cases – namely, agency, vicarious liability, and common action. i.e. where a tort is committed in the course of a common action,a joint act done in pursuance of a concerted purpose …. …..

In order to be joint tort-feasors there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage. The injuria as well as the damnum must be the same.”

See also The Koursk (1924) p. 140, 156, 159. A master is always treated as a joint tort-feasor with the servant for whom he is vicariously liable – Jones v. Manchester Corporation (supra); Dougherty v. Chandler ( 1946) S.R. (N.S.W.) 370, 375 where Jordan CJ. stated:

“If a number of persons jointly participate in the commission of a tort, each is responsible, jointly with each and all of the others, and also severally, for the whole amount of the damage caused by the tort, irrespective of the extent of his participation.”

Being joint tort-feasors, therefore, a plaintiff is at liberty to chose his victim; he may decide to sue either of the master and servant separately or both of them jointly – See: Salmond on The Law of Torts at page 443. Where he sues one of them separately and succeeds, this is not a bar to an action against the other who would if sued, have been liable as a joint tort-feasor in respect of the same damage. The question that may arise is as to contribution between the joint tort-feasors. And this question is taken care of by (in the present proceedings) sections 14 & 15 of the Torts Law, Cap. 164 Laws of Bendel State of Nigeria, J 976 which provide:

“14. Where damage is suffered by any person as a result or a tort (whether a crime or not)-

(a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would if sued, have been liable as a joint tort-feasor in respect of the same damage;

(b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered or for the benefit of the estate or of the wife, husband, parent or child of that person. against tort-feasors liable in respect of the damage (whether as joint tort-feasors or otherwise) the sums recoverable under the judgment given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action;

c. any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.

15. In any proceeding for contribution under this Part the amount of the contributions recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.”

I now return to Management Enterprises v. Otusanya (supra) where Oputa JSC is reported to have said:

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

It is this passage that the two courts below relied on in holding that the plaintiff’s failure to join the defendant’s driver in the present proceeding was fatal to his case. With profound respect to their Lordships of the two courts below, I think they misconceived the true purport or meaning of the expressions – “successful action”, “any judgment against the 2nd defendant”, “a verdict against the 2nd defendant” used by the learned Justice of the Supreme Court in the passage. From the welter of authorities on the point- statutory, judicial and academic some of which I have cited in this judgment – it is a finding of liability against the servant that results in the master’s liability. In other words, in an action against the master the plaintiff to succeed must produce sufficient evidence from which the court makes a finding of fact to the effect that the servant is liable for the tort complained of. That is, the plaintiff must establish the liability of the servant in order to succeed against the master in an action.

I believe that when Oputa JSC used those expressions in the passage in his judgment he meant findings of fact of liability against the servant (the purported 2nd defendant in the case) must be made before there could be a successful action against the master (the 1st defendant in the case). To suggest otherwise,would mean that this court, per Oputa JSC, was laying it down that in every case of vicarious liability, the servant must first be successfully sued before the action against the master or that both must be jointly sued and a verdict entered against the servant before the master could be held accountable for his servant’s tort. Such would not only be absurd and lead to injustice but would also run against the grain of all authorities – both Nigerian and foreign – on the point. A person who has suffered damage as a result of the tort of the servant of a master would not be able to recover simply because the servant is dead or has absconded and disappeared into thin air. Such a situation would undoubtedly encourage a master to keep his servant out of the reach of the injured person. I do not think this court meant to create such a state of injustice by its judgment in Management Enterprises v. Otusanya, nor or alter the existing state of the law. It is interesting to note that the trial court in that case found that the liability of the 2nd defendant (the deceased driver) for the accident was not established.

The conclusion I reach is that Management Enterprises v. Otusanya is no authority for the finding of law made by the two courts below. And as that finding is inconsistent with the existing law, I find no hesitation in concluding that it is wrong. Equally so, I must hold, and do hold, that the case Consortium Steel Plant Aladja v. Mrs. Angelika Akindejoye – CA/B/128/87 decided by the court of Appeal on 3rd Nov. 1987 was wrongly decided. I therefore, resolve the question put before us in plaintiff’s favour and set aside the decisions of the two courts below on it. This conclusion, however, is not the end of this appeal. The learned trial judge went into the merits or the case and after proper evaluation of the evidence before him found as a fact that negligence was not proved against Mosudi Akanbi. Nor were the damages claimed proved either. In the result he dismissed the suit on its merits. There was an appeal against this part as well, of the judgment of the trial court to the Court of Appeal but the latter court made no pronouncements on that part of the appeal to it. The plaintiff did not appeal to this court complaining against the refusal or failure of the court below to give a verdict on its complaints against the trial court’s findings of fact on the merits of the case. But the defendant is seeking in this appeal an order remitting the case to the Court of Appeal for the appeal to be considered on its merits.

Before I proceed further I like to comment briefly on the course taken by the Court of Appeal in this case. Ogebe JCA in his lead judgment said:

“The answer to the first issue is a capital Yes. Since this issue disposes of this appeal, I shall not engage in an academic exercise in discussing the other issues.”

This approach to the issues placed before the court is, to say the least. unfortunate. The course taken, while permissible with the final Court of Appeal is not always the proper course for an intermediate court to take. Unless in the clearest of cases, an intermediate court should endeavour to resolve all issues put before it. There are decided cases of this court which enjoin a trial court even where it has dismissed an action to consider and pronounce on the quantum of damages to be awarded in the event of the plaintiff finally succeeding. In Odunayo v. The State (1972) 8-9 SC 290 at 296. Sowemimo JSC (as he then was) delivering the judgment of this court observed:

“Although Mrs. Solanke’s argument before the appeal court, was on a different aspect from that raised by Mr. Adedeji, the learned counsel who defended the appellant at the Ado-Ekiti High Court, nothing was said in the judgment of the Appeal Court about the points she had raised. The result of this was that, on a further appeal before us, learned counsel had to address us on the decision of the High Court as ‘confirmed by the Western State Court of Appeal.’ In a capital offence, there is the right of a further appeal from the decision of the Western State Court of Appeal to this court. Such appeal should in normal circumstances be directed against the decision of the Western State Court of Appeal. As no reasons were given why they rejected the new points raised before them by Mrs. Solanke, this court had to embark upon a consideration of the evidence and judgment of the court of trial on the basis that the judgment of that court had been adopted by the Appeal Court. There must be, and there are a number of cases where it is most desirable, especially in the case of an intermediate court of appeal, that the final Court of Appeal, which is the Supreme Court of Nigeria, should have the benefit of the opinion of that court on points raised before it, should it come up for further consideration by this court. We did not have that benefit in this case and so we have had to have recourse to the evidence and judgment at the High Court.”

Considering that this simple case of negligence commenced in March 1983, I think justice will be met if this Court rather than send the case back to the Court below for the resolution of Issues (2) & (3) placed before it, exercise its powers under section 22 of the Supreme Court Act Cap. 424, Laws of the Federation of Nigeria, 1990 and rehear the case on the printed record. After going through the evidence led at the trial and the arguments proffered in the briefs of the parties in the Court below I am satisfied that the findings of fact made by the learned trial judge on merits of the case are adequately supported by the credible evidence before him. I have no reason to fault those findings. And in the light of those findings of fact I am of the view that plaintiffs case was rightly dismissed.

Although the issue canvassed in this appeal is resolved in plaintiffs favour, this is of little comfort to the plaintiff. Having regard to the conclusion I have just reached this appeal must be and is hereby dismissed by me.

I make no order as to costs.

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SC.74/1994

Khalil & Dibbo Transport Ltd Vs S.t. Odumade & Ors (2000)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

In this suit filed in the High Court of Lagos State on 26 December, 1985 the plaintiff, now respondent, sought three reliefs, namely:

“1. A declaration that the plaintiffis entitled to a certificate of occupancy in respect of the building and land comprised in the Deed of Conveyance dated 20th June 1940 and registered as No.30 at page 30 in Volume 557 of the Lands Registry in the office at Lagos by virtue of their Deed of Lease dated 9th day of March 1955 and registered as No.17 at page 17 in volume 2 of the Lands Registry in the office at Lagos then known as 99 Agege Motor Road, Idioro, Mushin, Lagos State but now re-numbered 19 Agege Motor Road, Idioro, Mushin, Lagos State.

2. An injunction to restrain the defendants their servants or agents from remaining on or continuing in occupation of the said building and land.
3. N1,200 damages for trespass and forcible entry by the defendants on the building and land situate, lying and being at 19 Agege Motor Road, Idioro, Lagos State and comprised in the above-mentioned Deed of Lease dated 9th March, 1955.”

The statement of claim shows that, apart from the averment as to how title was acquired in respect of the land in dispute from Candido Da Rocha in March, 1955, the respondent has been in physical possession of the land since 1955. In exercising its right to be on the land, it erected office building and staff quarters on part of the land over the years. As pleaded, the respondent has since 1955 been paying rents regularly to its lessor, (now Mrs. L. E. Turton nee Da Rocha), as well as tenement rates and other taxes to the Mushin Local Government in respect of the land.

It further averred that sometime in 1978, the 1st defendant entered upon the land unlawfully and erected a hut and ramshackle building on part of it. He was then duly warned through a letter by the respondent’s solicitors, but did not desist from his acts of trespass. The respondent arranged to erect a wall fence round the land to protect it from encroachment. The contractors employed to do this job were prevented by the 1st and 2nd defendants in December, 1978. The respondent also concluded arrangement with their building contractors to demolish its buildings on part of the land in order to further develop the land. Sometime in September, 1985 as the contractors were carrying out this assignment, the 2nd defendant prevented them from continuing, with threat to their lives and property.

The 2nd and the 3rd defendants filed a joint statement of defence. They claimed in their statement of defence that the 2nd defendant was the lawful Attorney of the Tinubu family, owners of a vast area of land of which the land in dispute formed part; that the Tinubu family got the land from the Oloto chieftaincy family by a grant made in 1834 to Madam Iyalode Tinubu; that out of the said land the 1st defendant was given land where he built hotels, the 2nd defendant was given land where he has his family house and that the 3rd defendant was given land where it erected a church building.

The 1st defendant in his statement of defence claimed that he bought a piece of land, part of the land in dispute from the family of Madam Iyalode Tinubu in 1963 upon which he built a house and let to tenants.

At the close of pleadings, the issues joined were: (1) who as between the respondent and the defendants had better title to the land; (2) if neither proved title, who was earlier in possession of the land. The respondent led evidence through its Branch Manager, Mr. Amos Odejimi (p.w.2), its Transport Supervisor, Mr. Lamidi Sunmonu (p.w.3), an employee who lived in one of the staff quarters on the land, Mr. Jasper (p.w.4) and a day watchman, to the effect that they have been serving the respondent on the land in dispute. Mr. Amos Odejimi said he joined the respondent in 1957 in Ibadan and was transferred to Lagos in 1963 where he became Branch Manager in 1965. Mr. Lamidi Sunmonu (p.w.3) was employed in 1966 and lived in the staff quarters from 1968 to 1974. Mr. Ivy Jasper (p.w.4) said he lived in the staff quarters from 1960 to 1980. All three witnesses testified that apart from the respondent’s buildings on the land, part of the land was being used for parking the respondent’s commercial vehicles. The conveyance (Exhibit 4) relied on by the respondent was tendered through one of its Managers, Mr. Micheal Ordia (p.w.6) while the survey plan of the land was prepared by and tendered through Mr. Marcellin Augustine Seweje (p.w.7), a licensed surveyor.

The defendants led evidence through six witnesses. The first witness, Momodu Akinwumi Abati who claimed to be the head of Tinubu family testified as to how Madam Tinubu got land from Oloto family. A blacksmith, Yisau Olaniyi Olabanji(d.w .2), said he built his workshop on part of the land, 1st defendant being his landlord. Three other witnesses, Madam Oyetola Kalejaiye (d.w.3) the 2nd defendant, Chief Otunba Samuel Taiwo Odumade (d.w.4) and Emmanuel Ade Oluyi (d.w.6) the Pastor in charge of the Church on the land in dispute, claimed to have bought land from the Tinubu family. The 2nd defendant who testified as d.w.5 said he was the lawful Attorney of his family, the Tinubu family and testified that his family sold land to the 1st and 3rd defendants.

The learned trial Judge in his judgment given on 24 June, 1988 appeared to have considered only the issue of title of the respondent. He said: “The judgment is decided by me on a narrow compass. In consideration of the pleadings, the evidence and the addresses an issue emerged upon which the case has turned.” He came to the conclusion that there was no evidence as to how Candido Da Rocha, the respondent’s lessor, acquired his title to the land. On that basis he was not minded to dismiss the suit but thought that if an order of non-suit was possible under the Lagos State High Court (Civil Procedure) Rules 1972 then applicable he might have called on counsel to address him on the propriety of making that order. He then struck out the case.

Both parties appealed against that decision to the Court of Appeal. The defendants/appellants, of whom the present appellant was one, argued in that court that the respondent having failed to prove title, the proper order would be that of a dismissal of the suit. On the other hand, the respondent (who was the cross-appellant) contended that even if title failed, it was still entitled on the evidence to damages for trespass and an order of injunction. The lower court dismissed both the appeal and cross-appeal and affirmed the judgment of the trial court striking out the suit.

The present appellant further appealed to this court and in his brief of argument set down the following issues for determination:

“1. Whether the High Court of Lagos State has the power to strike out a suit that was concluded at the trial.

2. Whether the Court of Appeal ought to have upheld the decision of the High Court to strike out the respondent’s claim when the same court agreed that the power to non-suit was taken out of the High Court Civil Procedure Rules 1972 and nothing was substituted for it.
3. Was the Court of Appeal not contradicting itself to have held that the power to non-suit taken out of the High Court Procedure Rules 1972 was inherent and have (sic) been there for ages.
4. Whether the proper order to make in the circumstances where the Court of Appeal agreed that the respondent failed to prove any of its claims was to uphold the decision of the High Court to strike out the claim or dismiss it.”

After hearing the appeal this court later invited both counsel to address it on issues we considered would lead to the justice of the appeal. The issues are:

1. Whether the trial court’s judgment, affirmed by the Court of Appeal, adverted to all the evidence before it in arriving at its decision striking out the suit on the ground that the then Rules of the Lagos High Court had no provision for a verdict of non-suit.
2. If the question (1) above is answered in the negative, whether this is a case to be remitted to the High Court of Lagos, before another Judge other than the one that tried the matter, for a retrial.

Both counsel accordingly filed further briefs of argument and appeared on 27 June, 2000 before us to proffer oral argument along the lines of these two issues. It must be said that it is unusual to strike out a civil case which has been heard to conclusion by a trial court. Such a case should be decided upon the evidence available and the applicable law. The known exception to this is where the court later found that it has no jurisdiction to hear and determine the case after it had been concluded. The only order that can then be made is one striking out the case: see Okoye v. Nigerian Cons. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Esuku v. Leko (1994) 4 NWLR (Pt.340) 625; Gombe v. P. W. (Nig.) Ltd. (1995) 6 NWLR (Pt.402) 402; or where the plaintiff lacks locus standi: see Oloriode v. Oyebi (1984) NSCC (vol. 15) 286; (1984) 1 SCNLR 390 In the present case, the striking out of the suit after the parties had concluded their evidence was not the proper order. The two courts below were in error in this regard.

The respondent’s counsel has argued before us that the trial court had an inherent power under section 6(6a) of the 1979 Constitution to non-suit or strike out actions even where the Rules of Court failed to provide for such power. I do not think the issue of non-suit is as simple as that. Although section 6(6a) of the Constitution provides that the judicial powers vested in the courts shall extend to all inherent powers and sanctions of a court of law, it has not been decided that a court may make an order of non-suit even when the Rules of that court appear to have dispensed with that power. Power that is conferred on a court by statute or by Rules of Court cannot be called inherent power. When therefore that power is taken away, it ceases to be power that can be exercised and so there can be nothing inherent about it to make it exercisable. It has been observed that inherent power, though omnibus, does not extend the jurisdiction of a court of record: see Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt.102) 122 at 197.

The High Court Civil Procedure Rules 1972 of Lagos State omitted the Order under which the High Court could exercise its power to order a non-suit. It was believed to be an oversight. It has now been restored under Order 37 High Court of Lagos State (Civil Procedure) Rules 1994. But once it was omitted, it would seem that the High Court could not make that order because by virtue of the general jurisdiction conferred on the High Court of Lagos in 1962, it could only, in addition to any other jurisdiction conferred by the Constitution of Nigeria or by the Law of the High Court or any other enactment, possess and exercise “all the jurisdiction, powers and authorities which are vested in or capable of being exercised by the High Court of Justice in England.” It has been said that since the introduction of the 1883 Rules of the Supreme Court, the High Court of England retains no power to enter a non-suit: see the Supreme Court Practice 1999 Vol.1, page 399 – 340. Ord. 21/5/1; Fox v. Star Newspaper Co. (1900) A.C. 19. It would therefore appear that if the High Court of England no longer has jurisdiction to order non-suit, the High Court, Lagos cannot exercise that power under its general jurisdiction. It can only do so if its own Rules of Court provide for it. I think the power of non-suit would appear to be power specifically conferred on a court.

However, in the present case the issues framed by this court upon which counsel further addressed us have necessitated our having to examine the evidence on record in the High Court closely to be able to pronounce on those issues. The learned trial Judge did not consider the evidence led by both parties as to who is in possession of the land having held that the respondent did not lead satisfactory evidence of title. He did not also examine the title claimed by the 1st defendant to see whether it is better than that of the respondent so as to decide who is entitled to possession: see Aromire v. Awoyemi (1972) 2 SC 1; Amakor v. Obiefuna (1974) 1 All NLR 119 at 126. In the absence of a valid title the respondent may still succeed in maintaining an action for trespass because the law is that even if a plaintiff is a trespasser, he can maintain an action against a later trespasser for damages and injunction: see Nwosu v. Otunola (1974) 1 All NLR 533 at 534; Amakor v. Obiefuna (supra) at 120. That is why a plaintiff who fails to prove title will not necessarily fail in his action for trespass. If he establishes by evidence acts of possession, his claim for damages for trespass and an order of injunction may be granted: see Oluwi v. Eniola (1967) NMLR 339 at 340; Olaloye v. Balogun (1990) 5 NWLR (Pt.148) 24 at 39-40; Ajero v. Ugorji (1999) 10 NWLR (Pt.621) 1 at 11, 17. The learned trial Judge decided the present case without making findings on the respective evidence of the parties that they were in possession of the land in dispute; nor did he examine the title put forward by the appellant. It was an error to fail to do that, and this was likely to lead to a miscarriage of justice. It was also clearly wrong, as already said, to make an order striking out the suit in the circumstances when the case had been concluded.

When a trial court fails in its appraisal of evidence and the appellate court is in as good a position as the trial court to reappraise such evidence and make appropriate findings thereon from the printed record and/or documents put in evidence, it will do so instead of ordering a retrial: see Fashanu v Adekoya (1974) 6 SC 83 at 1; Nneji v. Chukwu (1996) 10 NWLR (Pt.478) 265 at 278. But when the evidence is such that the impression of the trial court of the witnesses as to their credibility is bound to play a decisive role, the appellate court which, naturally, had no advantage of making such impression cannot embark on the reappraisal of the evidence. It will order a retrial, unless the case can be brought to an end by the appellate court on other crucial grounds: see Ugwu v. Ogbuzuru (1974) 10 SC 191 at 192; Olatunji v. Adisa (1995) 2 NWLR (Pt.376) 167 at 180-181; Oro v. Falade (1995) 5 NWLR (Pt.396) 385 at 412; Ayisa v. Akanji (1995) 7 NWLR (Pt.406) 129 at 147; Abusomwan v. Aiwerioba (1996) 4 NWLR (pt.441) 130 at 141.

I think this appeal has merit and I allow it. I set aside the judgments of the two courts below. I hold that the proper order to make in the appeal in the circumstances is one for a retrial. I accordingly order that the case be remitted to the Lagos state High Court to be heard by another Judge. Since the learned trial Judge’s failure to consider all the relevant evidence before him and make findings thereon led to this avoidable miscarriage of justice necessitating a retrial, I consider that either party should bear its costs. I therefore make no order for costs.

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SC.48/1992

Musa Nagogo Ibrahim Vs Mohammed Sarki Aliyu (2000)

LAWGLOBAL HUB Lead Judgment Report

U.A. KALGO, J.S.C. 

This is a chieftaincy dispute in respect of the stool of the Oriye Rindre of Wamba in the Wamba Local Government Area of Nassarawa State. In February 1991, when the action was filed in the Plateau State High Court, Wamba was under Akwanga Local Government Area of Plateau State,

The last incumbent of the traditional office of Oriye Rindre Alhaji Sulaimanu Muhammadu Kore, who has since died, was installed as a 2nd class chief on the 23rd of April, 1983. After his death, the then Plateau State Government promulgated a law titled “The Appointment And Deposition of Chiefs (Appointment of Oriye Rindre) Order 1990″ which laid down the procedure to be followed in the selection or election of a new Oriye Rindre in the event of any vacancy. In Pursuance of the said law, an election was conducted on the 12th of February 1991, to fill the vacancy created by the death of Alhaji Sulaimanu Muhammadu Kore. In that election, the only candidates were the appellant and the respondent. At the election, the appellant polled 7 votes and the respondent polled only 3 votes and so the former was declared the winner and the new Oriye Rindre. Following the election, the appointment of the appellant as the Oriye Rindre was approved by the Plateau State Council of Chiefs and the Military Governor of Plateau State, on the 18th of April. 1991. The respondent was dissatisfied with the said election and immediately commenced proceedings in the Plateau State High Court challenging the same. In the action, the Plateau State Council of Chiefs and the Military Governor of Plateau State were the 2nd and 3rd respondents respectively.

By paragraph 19 of the statement of claim the respondent, as plaintiff, sought for the following reliefs:

”(a) A declaration that the 2nd and 3rd defendants by themselves, agents or servants violated orders 3,4 and 6 (1) of the (Appointment and the Deposition of Chiefs) the appointment of the Oriye Rindre Order 1990.

(b) A declaration that the first defendant not being a member of any of the three ruling houses of Wamba listed in Order 3 aforementioned is not qualified to contest for the office of the Oriye Rindre.

(c) A declaration that:

i) the votes of Ibrahim Umaru, Mohammed Lamu and Mallam Sambo Bichi and

ii) the votes of the other selectors who voted for first defendant are null and void for being in violation of orders 3, 4 and 6 of the Oriye Rindre order of 1990 respectively, and the native law and custom of the Rindre people.

(d) An order setting aside the selection and approval of the first defendant as Oriye Rindre.

(e) A declaration that the plaintiff being the only lawful candidate is the winner of the said selection in accordance with the Oriye Rindre order of 1990.

(f) A perpetual injunction restraining first defendant from parading or holding himself out as the Oriye Rindre and from performing any rites or duties attached to the office.

(g) A perpetual injunction restraining the second and third defendants their agents, servants, or privies from installing, recognising or dealing with the first defendant as the Oriye Rindre of Wamba

In the amended statement of Defence, the appellant, as 1st defendant, filed a counter-claim in which he also sought for the following reliefs:

1. Whereof the 1st Defendant hereby prays the court for the following reliefs in view of the averments in the Statement of Defence of the 1st Defendant.

a) A DECLARATION that the Plaintiff’s participations as a candidate for selection to the traditional stool of the Oriye Rindre which took place on the 12/2/91 was null and void as he is a member of the Mawu Lube family which is not one of the Ruling Houses of Wamba and which has no relationship with any of them whatsoever.

b) PERPETUAL INJUNCTION restraining the plaintiff, his ascendants how high soever and his descendants how low soever from parading themselves or their agents as members of Mawu Misa Ruling House and participating as candidates for selection to the office of the Oriye Rindre of Wamba.

c) A DECLARATION that the 3 votes cast for the Plaintiff on 12/2/91 in the selection of the Oriye Rindre were null and void having been cast for an incompetent candidate by Rindre Native Law and Custom.

d) A DECLARATION that the, 1st Defendant being the only candidate put forward by any of the three Ruling Houses and the only competent candidate that was nominated for the stool of the Oriye Rindre on 12/2/91, was selected as the Oriye Rindre with no opposition.

2. A DECLARATION that the 1st Defendant being a candidate put forward by the Mawu Misa Ruling Houses of Wamba and the competent candidate that was validly nominated for the stool of the Oriye Rindre in the selection that took place on 12/2/91 was duly selected with no opposition, and that his selection was in conformity with Order 7 (4) of the Plateau State Legal Notice No. 2 of 1990 – Appointment and Deposition of Chiefs (Appointment of Oriye Rindre) order 1990″.

After filing and exchanging all the necessary pleadings and completing all the preliminaries, the actual trial commenced on the 25th of September 1991 before Azaki J. of blessed memory. The respondent called 5 witnesses and gave evidence himself. The appellant did not give evidence in his defence but called 6 witnesses in support. Thereafter counsel for the parties addressed the trial court at length and the case was adjourned for judgment. On the 23rd of June, 1993, the learned trial judge, in a considered judgment, made the following findings and conclusions.

“The totality of the evidence before me is such that the plaintiff did not prove his case against the defendants. He is not entitled to any of the above reliefs. I hereby dismiss the action;

The 1st defendant filed a counterclaimed (sic) against the plaintiff. It was not seriously pursued by way of evidence, In the course of submission it was abandoned. It is hereby struck out”.

This means that the respondent’s action was totally dismissed and the appellant’s counter- claim was struck out. The respondent was not happy with this and he appealed to the Court of Appeal which allowed his appeal and ordered as follows:

“1. It is declared that the election conducted on 12th February, 1991 to fill the vacant stool of Oriye Rindre is null and void.

2. The purported election and approval of the 1st defendant/respondent as the Oriye Rindre is null and void and of no effect.
3. Parties are to bear their costs”.

The appellant was dissatisfied with this and he appealed to this court. In this court, parties filed and exchanged their respective briefs.

The appellant in his brief, identified 3 issues for the determination of this court and they are:

“1. Whether the Court of Appeal was right to have refrained from substituting their own views on a material set of facts after having rejected the findings of the trial judge on same.

2. Whether the Court of Appeal was right in refusing to consider some issues raised by the parties before them.
3. Whether on a preponderance of evidence, the Court of Appeal was right to have set aside the judgment of the trial court”.

The respondent in his brief formulated only 2 issues for determination thus:-

“a. Having considered and determined the respondent’s (Appellant at the lower court) appeal based only on one issue, was the Court of Appeal right in refusing to embark on the resolution of the other issues for determination.

b. Having held that “the finding by the learned trial judge that the Respondent has not proved that the disputed three king-makers were not the recognised king-makers cannot stand”, was the Court of Appeal right in setting aside the judgment of the learned trial judge on that ground”.

I have considered the grounds of appeal contained in the amended notice of appeal filed by the appellant and come to the conclusion that the 3 issues raised by him for the determination of this court in the appeal are apt and proper in the circumstances. I shall therefore adopt them for the purpose of this appeal.

Before I go into the issues, I wish to state clearly that the question of fair hearing or the eligibility of either of the parties to the appeal to contest the stool of Oriye Rindre has not been raised in this appeal. I therefore say nothing about these in the determination of this appeal.

It appears to me that this appeal will substantially be determined on facts. Accordingly I will take issues 1 and 3 together. These issues would appear to have stemmed from grounds of appeal (b) and (c) in the amended notice of appeal, which read:-

b) The court of appeal erred in law when it failed to substitute its own findings of fact by way of re-evaluation of evidence after rejecting the findings of the learned trial judge on a set of material facts and the said failure led to a miscarriage of justice.

PARTICULARS

i) Their Lordships of the Court of Appeal came to a conclusion (at pages 244-246 of the records) that the learned trial judge made wrong evaluation of the testimony of P.W. 4. on the disputed participation of three king makers and consequently rejected the said evaluation.

ii) Their Lordships failed to substitute therefor what are their own views of the probative value of the said testimony.

c) The decision of the Court of Appeal in its totality is against the weight of evidence”.

The whole scenario on these grounds revolved around the evidence of P.W.4, and DW.s l, 3 and 4 and how the learned trial judge treated them as viewed by the Court of Appeal. The Court of Appeal found that the learned trial judge accepted the evidence of P.W.4 to the effect that DW3 (Ibrahim Umaru) and DW4 (Muhammadu Lamu) whose photographs appeared in Exhibit 4 were not the recognised king-makers for their respective families. It also found that the learned trial judge had earlier accepted the evidence of DW1, DW3 and DW4 that they were the recognised king-makers. This, the Court of Appeal said, was irreconciliable and, on the authority of Omolohon v. O.P (1961) ALL NLR (pt.4) 594, must be disregarded.

I will now consider whether the Court of Appeal was right in coming to this conclusion.

P.W.4 Alhaji Muhammadu Ibrahim is the senior brother of the late immediate past Oriye Rindre, Chief of Wamba Alhaji Muhammadu Sulaiman Kore. He assisted in performing the functions of the late Oriye Rindre when he was sick up to the time he died. P.W.4 testified that in February 1983, when the post of the Chief of Wamba was upgraded to 2nd Class Chief, he was asked to collect the photographs of all king-makers of that Chieftaincy for use in the installation ceremony. He said he collected the photographs and wrote their respective names on the photographs but, he added, not all the persons he collected their photographs are king-makers by tradition. In respect of D.W 3 and D.W 4, he said (page 75 of the record):-

“Ibrahim Umaru belong to the family of Mai-ungo. He is not the head of that family. Muhamadu Lamu is from Man saje family. He is not the head of the family. The heads of the families at the material time were Mai -ungo, the village head of Ungo and Ayuba. Both of the heads were already dead. May be they had representatives but at the material time their positions were vacant. I did not consult with their families while collecting the pictures for the programme”.

From the above quoted excerpt of this witness’s evidence, especially the area underlined, it is very clear that at the time P.W.4 collected the photographs of DW 3 and DW 4, the actual king-makers from their respective families were dead. This, according to him was in February 1983, and according to Exhibit 4, the installation took place on 23rd of April, 1983. P.W.4 testified that at that material time, DW 3 and DW 4 were not king-makers as the actual king-makers were then dead and they were not appointed to replace them by the members of their respective families. The evidence of DW1 was to the effect that he was the head of Mawu Mesa family, held the position of adviser to the Oriye Rindre and is the senior brother of the appellant. This evidence stood unchallenged and uncontradicted. DW3 testified that he had succeeded his uncle Ayuba Magaji as the Mawu Sagaye for 28 years and since then had been the head of their family. He did not say categorically that he is a king-maker but said that by virtue of his position as Mawu Sagye he was allowed to participate in the present election exercise. His evidence was not challenged. DW 4, also testified that he was a mere ward head of Angwan Sabo, in Wamba and that he was not the head of Mawu Ngo family, who is king-maker. But, as the holder of the title of Moyi which he inherited from his father, and the father was a king-maker, he automatically is a king-maker. That was why he was allowed to participate in the present exercise. The evidence was also not contradicted.

The learned trial judge reviewed the evidence of both DWs 1, 3 and 4, as can be seen on page 152 of the record, and accepted their evidence. There is in my view no apparent contradiction between the evidence of PW 4 and that of DWs 1, 3 and 4. What the P.W. 4 was saying as in the above quoted passage of his evidence was that as at the material time of the installation arrangements when he collected the pictures of DWs 3 and 4, they were not king-makers. And DWs 1, 3 and 4 did not categorically say that they were king-makers but that they were allowed to participate in the election exercise because of the traditional positions they held at that time. That was why the learned trial judge in reviewing the evidence of P.W. 4 on page 152 of the record said:-

“Although PW 4 testified that he erroneously provided captions for the photographs of DW 3 and DW 4 as king-makers at page 14 and 16 of Exhibit 4 he did not testify that at the time of this selection exercise they had not been so appointed.” (Underlining mine)

What the learned judge was saying here was that although P.W. 4 testified that he wrongly caused the photographs of DW 3 and DW 4 to be put in Exhibit 4 as king-makers at the material time of the installation (in February 1983) he did not testify that as at the time of the present exercise (12th February 1991) DWs 3 and 4 had not been appointed king-makers. It is significant to observe that 7 years have elapsed between the time Exhibit 4 was made, and the time of the present election, when anything could have happened. The learned trial judge therefore accepted the evidence of P.W. 4 that he was wrong in taking the photographs of DW 3 and DW 4 as king-makers as at February 1983 for the installation of Oriye Rindre as 2nd class Chief. P.W. 4 made no mention of the position of DWs 3 and 4 at the time of present election between the parties in February 1991. Therefore having accepted the evidence of DWs 1, 3 and 4 that they were allowed to participate in the present election as king-makers having regard to their traditional status, there was no evidence to prove that they were not such king-makers. That was why the learned trial judge concluded on page 154 of the record that:-

“In my view the plaintiff failed to prove that they were not the proper king makers for the exercise”.

This is supported by the evidence as explained earlier and I am clearly of the view that the Court of Appeal, with respect, did not fully appreciate the meaning of the evidence and the findings of the learned trial judge in respect of the testimony of P.W.4 as against those of DWs 1, 3 and 4, when it held on page 270 of the record thus:-

“It is evidence (sic) that the evidence of P.W.4 to the effect that Ibrahim Umaru (DW.4) and Mohammadu Lamu (D.W.3) were not the recognised king-makers which the learned trial judge accepted is irreconcilable in conflict with the evidence of DW 1, DW 3, and DW 4 in support that they were recognised kingmakers which the learned trial judge similarly accepted”.

It is my respectful view, that the evidence is reconcilable as discussed above and there is no conflict or contradiction which will bring into play the application of the case of Omolohon v C.O.P (supra) relied upon by the Court of Appeal.

There was evidence that 2 allegedly qualified kingmakers (Umaru Bici and Adamu Lanze) were refused entry to the election hall during the election exercise. The third person in this category was one Ibrahim Isa who was only mentioned in the pleadings but not mentioned at all in the evidence. And what is more, none of these 3 persons gave evidence at the trial.

But despite this anomaly, the Court of Appeal in its judgment on page 272 of the record held that:-

“If the three persons the appellant claimed to be the rightful king-makers had voted in place of the 3 king-makers whose participation in the election was questioned the fortunes of the parties, that is the appellant and the 1st respondent would have been adversely or favourably affected depending on the side to which their votes were cast”.

I agree that this observation may be correct in the circumstances. But the Court of Appeal went on to say:

“As the pattern of their votes cannot be determined if they had been allowed to vote, I agree with Mr. James that the election is null and void. On this score alone this appeal succeeds “.

The Court of Appeal did not quote any legal authority for making this point or finding, nor did it refer to any provision of the relevant law or regulation concerning the election itself. Since the failure of the 3 king-makers to vote could not determine the pattern of voting at the election, what made the election exercise null and void ? I disagree with the Court of Appeal on this and I think that court was wrong in so holding.

The learned counsel for the appellant submitted in his brief that having regard to the findings of fact made by the learned trial judge on the evidence before him which were not erroneous or perverse, indicating that there was substantial compliance with Exhibit 6, the Court of Appeal was wrong to have set aside the decision of the trial court.

Exhibit 6 is the Appointment and Deposition of Chief (Appointment of Oriye Rindre) Order, 1990, published in the Plateau State of Nigeria Gazette No. 9. Vol. 15 of 21st June, 1990. The Order sets out in detail, the procedure to be followed in the election or selection and appointment of the Oriye Rindre of Wamba. Paragraph 3 sets out the 3 ruling houses from which the candidates must come and paragraph 4 sets out the offices of the traditional selectors constituting the electoral college for the selection or election. There are 11 selectors. The order also provides in paragraphs 5, 6, and 7 respectively for the appointment of a presiding officer for the election, the meeting of the selectors as electoral college for the election exercise and the nomination of candidates thereof. Paragraph 8 provides for the manner in which the election is to be conducted and the announcement of the result.

From the evidence presented at the trial, and accepted by the learned trial judge all went well at the election except that 3 kingmakers DWs 1, 3, and 4 who actually voted at the election were challenged as not being king-makers, or qualified to vote. The learned trial judge found that the 3 king-makers were not successfully challenged and I agreed with him as explained earlier in this judgment. I also do not agree with the Court of Appeal that the mere participation of these 3 disputed king-makers simpliciter would invalidate the whole election. See Na-Gambo v. N.E.C. (1993) 1 NWLR (pt. 267)94. And the failure of the 3 qualified king-makers to vote, for any reason, could also not invalidate the election because the stipulated quorum at the election was sustained.

There was evidence that out of the 11 king-makers stipulated in Paragraph 3 of Exhibit 6, 10 king-makers including the disputed ones were present at the elections. There was undisputed and unchallenged evidence that at the end of the voting, the result was that 7 persons voted for the appellant and 3 for the respondent. According to paragraph 6 (3) of Exhibit 6, the stipulated quorum at the election was 7. This in effect means that even if the 3 disputed king-makers were ignored or disregarded there was the required quorum of 7 selectors at the election. Again even if the votes of the 3 king-makers were disregarded out of the 7 votes cast for the appellant, he would still end up with 4 valid votes as Against only 3 of the respondent. And paragraph 8 (1) of Exhibit 6, provides inter alia that:-

“…..all traditional selectors present at the meeting shall be entitled to vote and the candidate who receives the largest number of votes shall be deemed to be selected the Oriye Rindre ………” (underlining mine)

The words “selectors present” in this paragraph emphasise the requirement of the quorum which in this case is 7 and the “largest number of votes” means valid majority votes. In this case, the appellant with 4 valid votes has majority over the respondent with only 3 valid votes. Therefore the appellant was in my judgment, properly and validly selected the Oriye Rindre of Wamba and I so find. I also find that the election was conducted in substantial compliance with the provisions of Exhibit 6. See Kaugama v. N.E.C (1993) 3 NWLR (pt. 284) 681.

It is my respectful view that in an election such as in this case where the applicable law provides for a quorum of an electoral college, and the quorum was obtained when the votes were cast, such election cannot be invalidated merely because the absent members of the electoral college did not vote at the election.

I have said earlier in this judgment that this appeal will be determined on issues of fact only and having done so already, it appears to have disposed of all the substantial issues in the appeal. I do not think that any useful purpose will be served in considering issue 2 in the circumstances.

Accordingly, this appeal succeeds and it is allowed. The decision and orders of the Court of Appeal in this case are hereby set aside and the decision of the trial court restored. I award N10,000.00 costs to the appellant.

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SC 107/1996