E. E. Ebenezer V N.t. Bell (1963)

LawGlobal-Hub Lead Judgment Report

TAYLOR, F.J 

The present appellant brought an action in the Magistrate’s Court, Lagos, against the present respondent claiming the sum of £100 as general and special damages for the trespass alleged to have been committed by the latter in the former’s room in the house situate at 12 Odunlami Street, Lagos. The defendant counter­claimed for the sum of £142-10s-0d made up as follows:­

“£100 general damages, and £42-10s-0d being “loss of rent at the rate of £2-10s-0d a month.”

The relevant facts in the case are as follows:­

The defendant is a tenant of the premises at 12 Odunlami Street, Lagos, and The African Bethel Church, Lagos, are his Landlords. Two rooms in the said premises were let by the defendant to one Abel Essien. Abel Essien left Nigeria for the United Kingdom in September, 1956, but before his departure, his brother Offiong Essien, D.W. 2, had been living with him in the said rooms. After his departure, Offiong Essien occupied the two rooms until the 19th January, 1958, when he vacated them. Before then however, and around the 25th January, 1957, the plaintiff had come to share the rooms with him, for according to her evidence she was paying a half share of the rent. This is, however, denied by Offiong Essien.

The defendant went on leave to Sierra-Leone in December, 1957, and returned in December, 1958. He asked the plaintiff to quit and on her refusal, he instructed his solicitors to take legal steps. The plaintiff alleges that on three separate occasions to wit:- the 10th January, 1959, 16th February, 1959, and 19th February, 1959, the defendant committed certain acts of trespass in her apartments. It is also part of the plaintiffs case that she had been posting her rent to the defendant after Offiong Essien had vacated the premises, but that with the exception of the sum of £27-10s-Od accepted by the defendant as per Exhibit “A”, all the other postal orders sent by her were returned by the defendant.

The main issue before the trial Magistrate was whether the plaintiff was or was not a tenant of the defendant. This was resolved in the plaintiffs favour and judgment for the sum of £25 as general damages for the trespass was entered in her favour with costs.

Against this judgment the defendant appealed to the High Court which reversed the judgment of the trial Magistrate by dismissing the plaintiff’s claim and entering judgment on the counter-claim for the sum of £100 (£62­l 0s-0d in respect of the occupation of the premises by the plaintiff and £37­10s-0d as general damages) with costs.

The plaintiff has appealed against that judgment to this Court and has filed three grounds of appeal with his Notice of Appeal. The plaintiff will from henceforth be referred to as the appellant and the defendant as the respondent.

Learned Counsel for the appellant argued only the first two of his grounds of appeal, and was content to submit in respect of the third that if he succeeded on the first two grounds the counter-claim must be dismissed (the third ground dealt with counter-claim). His arguments on the first two grounds may be put shortly in the form of the following two submissions:­

(1) That by virtue of the letter exhibit “A”, in which the respondent accepted the sum of £27-10s-0d from the appellant for user and occupation of the premises, the latter became a tenant of the former, more so in view of the fact that this sum is calculated on the basis of the monthly rental of £2-10s-0d.

(2) That the appellant entered the premises as a lodger, but became a sub-tenant as soon as she began paying rent to Offiong Essien. In dealing with these two points Mr Okuribido for the respondent urged that in exhibit “A” the respondent made it clear that though he was accept­ing the sum of £27-10s-0d for user and occupation, he was still treating the appellant as a trespasser. He further urged that the term “any person oc­cupying premises” in S.2(1) of the Recovery of Premises Ordinance Cap. 193 must be read as meaning “Any person lawfully occupying premises”. On the second point Mr. Okuribido conceded that there was no finding one way or the other as to whether Offiong Essien received rent from the appellant or not, but went on to submit that on the evidence before the trial Magistrate there should have been a finding that the appellant was not a tenant of Offiong Essien. Dealing with the first point, I think it is important to set out the letter exhibit “A” in order to see the conditions attached by the respondent to the receipt of the £27-10s-0d from the appellant. It reads thus:­

“Dear Madam,

2 ROOMS AT 12 ODUNLAMI STREET, LAGOS

I have been instructed by Mr. N.T. Bell to acknowledge receipt of your postal orders for a total sum of £27-10s-0d. This money is accepted as due to my client for use and occupation by you of his rooms during his absence in Freetown without his knowledge and/or permission or authority.

TAKE NOTICE that if you fail to vacate the rooms before noon on Saturday the 10th January, 1959, you will be treated like the trespasser that you are, and a reasonable amount of force will be used to get you and your junks out of the rooms without further warning.

Yours truly,”

This letter was written by learned Counsel acting for the landlord and it is clear from the terms of the letter that the appellant has always been regarded by the landlord as a trespasser. It is to be noted that later the appellant endeavoured to send further sums after this date to the respondent, and the letters containing the postal orders were returned, Exhibit “B” is an example of this. The vital point for decision is quo animo the money was received. The respondent has shown by this letter that he received the sum of £27-10s-0d as some form of compensation for the user of the rooms by a person he labels a trespasser, and in addition, gives the trespasser notice to vacate the rooms. If the appellant did not accept the terms of the receipt of rent, it was up to her to say so or claim the return of the money sent by her. She did neither of these but continued to remit further sums of money to the respondent. The learned Author of Woodfall’s Law of Landlord and Tenant Volume 1, 25th edition, says at Page 41, in the case where a tenancy did exist, but had come to an end, that­

“After that date it should be accepted, not as rent, but as consideration for the licence or as mesne profits, as the case may be, without any serious danger that a Court would infer an intention to grant a new tenancy.”

There was, in my view, no intention to create a tenancy and this contention must, therefore fail.

On the second point, it is true that there is evidence led by the appellant to the effect that she paid rent to Offiong Essien as it is true that Offiong Essien denied the receipt of rent. In the Judgment of the trial Magistrate, and particularly from the six findings of fact made by him, there can be no doubt that he did not accept the appellant’s evidence that she paid part of the rent to Offiong Essien. His third to fifth findings are as follows:­

(c) Plaintiff claims her right of occupation through O. Essien with whose consent she started to occupy the rooms;

(d) O. Essien and Plaintiff occupied the rooms together for practically one year;

(e) Plaintiff is no trespasser but if she could be described as such she had acquired the right to possession as already explained above.

Further there is no evidence on record that the appellant had obtained exclusive possession of either of the two rooms from Offiong Essien during the time she shared the rooms with him.

In the subsequent appeal from the Judgment of the trial Magistrate to the High Court by the present respondent, the present appellant did not put in an appearance either personally or through Counsel, and no endeavour was made to support the judgment of the trial Magistrate on the ground that

(1) there was payment of rent by appellant to Offiong Essien, and

(2) that this by itself made the appellant a sub-tenant of Offiong Essien.

I have therefore come to the conclusion that for these reasons, this ground of appeal must also fail. I would dismiss the appeal with costs assessed at 25 guineas to the respondent.

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Other Citation: (1963) LCN/1082(SC)

Mandilas And Keraberis Ltd Vs Chief Yesufu D. Otokiti (1963)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN. F.J

The plaintiffs have appealed, and the defendant has cross-appealed, from the judgement in the Benin Suit No. 27 of 1957 given on 8th November, 1960. The parties entered into a contract on the 5th November, 1953, in relation to the defendant’s concessions in the Forest Reserve, with a view to his giving the plaintiffs all the logs he extracted.

There is in evidence an agreement in writing-Exhibit A, put in by consent at the trial-which recites that the company advanced a loan of £I ,800 in timber vehicles, to enable the defendant to exploit his timber concessions, fell timber and supply on sale all the timber to the company; the next recital mentions the concessions, which cover about 150 square miles, and the terms of agreement follow in regard to the timber to be supplied to the plaintiffs at their beach and the prices to be paid; and the defendant was to repay the loan of £ 1,800 in logs within six months.

The final clause is that the agreement was to endure for five years, but could be terminated on twelve months notice, which, however, if given by the defendant, would not take effect until his account was completely balanced.

In addition to giving the defendant two lorries on credit, the company gave him money for his forest permit and made also other cash advances to him; they supplied him with petrol, tyres, and tubes, and they repaired his lorries on credit. He supplied logs, but not in sufficient quantity, and his debit mounted, so the plaintiffs decided when the six months or so were over, that they would give him no more credit. He had some logs felled and lying in the forest, but was unable to spend the money for taking them to the waterside.

The plaintiffs considered whether it was worth their taking the logs to the waterside themselves, but it seems decided against it. Moreover, the lorries needed over hauling, and the defendant took one to the Benin garage in November, 1954, and the other in February, 1955. He wanted them repaired on credit, but that was refused. He had no money to have them repaired elsewhere, and left his lorries in the garage- which was an open air garage.

The plaintiffs wished him to take them away. Eventually, near November, 1956, he wished to remove them; there is a letter from the company to him, dated 13th November, 1956, in which he is told that he had always been and still was at liberty to remove them. When his agent went to do so, the lorries could not be found. There was conversation between the parties.

He claimed £ I ,200 as value and a vast amount as damages. The plaintiffs wrote in January, 1957 that they were willing to pay what they thought was the value- £700-but no more. Early in April, 1957, the plaintiffs sued for £3,238-17s-7d “being debt owed by the defendant”.

The Statement of Claim avers that the plaintiffs sold two lorries on credit, and supplied petrol, etc., and made cash advances against logs; also that they repaired the lorries on credit. Two accounts were annexed to it. The Defence denies the accounts and goes on to allege an oral agreement between the parties as having been entered into on the 5th November, 1953, the terms of which are similar to those set out in the written agreement of that date-Exhibit A-with, however, these additions:- “The plaintiff shall advance all monies necessary for the manufacture of the logs either in cash or in kind including:-

(i) the value of 2 Austin ex-army type lorries B 1505 and B 1506 at £900 each and the cost of repairs to these lorries.

(ii) the official fee payable as royalty for licence to fell timber and manufacture logs in a Forest Reserve.

(iii) the cost of labour and material necessary for felling and evacuation of logs from the Forest Areas BC, BC 15/2 and BC3/ 1 respectively to the plaintiff’s beach at Sapele.

(iv) the plaintiff shall make these money advances aforesaid throughout the 5 years period as and when necessary and requested so to do. (v) the defendant shall pay for these money advances by the supply of logs and shall supply logs to the value of not less than £3000 in each of the first six months commencing on the 5th day of November, 1953 in liquidation of the value of the two Austin lorries B 1505 and B 1506. and thereafter the said lorries shall become his bona fide property.”

The defence goes on to admit taking the lorries as a credit of £ 1,800, and two cash advances amounting to £450, alleging it was pursuant to that oral contract; a number of pages of narrative follow, and then comes a counter-claim partly about the lorries and partly about the logs left in the bush, and about a few items of credit due to the defendant. The plaintiffs’ reply is a denial of the oral agreement alleged with sundry other denials.

Before the trial the defendant amended his counter-claim, to add claims, both for general and special damages, for breach of contract. Neither party referred to the written agreement, Exhibit A, but on the day of trial it was put in by consent, together with some other documents, before the hearing began. Giving evidence in chief, the defendant said that after signing Exhibit A he took it home and had it read to him; he discovered it did not contain all that had been agreed, and told one Mr Karaberis about it, but supplied logs in accordance with the agreement in Exhibit A.

The judgment begins with the pleadings, then deals with the 3 plaintiffs’ claim and the evidence, which it says is not in accordance with their pleading-they did not plead Exhibit A-and on the authority of Adenuga v. Lagos Town Council, 13 W.A.C.A. 125, decides that the plaintiffs’ “present” claim must fail and it is dismissed. The judgment then goes on to the defendant’s case and refers to the recitals in Exhibit A; it says that upon consideration of all the evidence- “there was an agreement between the parties for the plaintiffs to advance the defendant with loans in cash and in kind to exploit both concessions in the interest of both parties for a period of 5 years certain” ………………… It recites clause 7 on the duration, and goes on to say- “their promise to make these advances in cash or in kind to the defendant is mutual and collateral and interdependent on the defendant’s promise to supply them with logs throughout the five-year period. The defendant must succeed on this portion of his counter-claim”. That is the portion claiming damages for breach of contract by reason of the plaintiffs refusing further credits. It is a curious situation: the plaintiffs’ claim is dismissed because the did not plead Exhibit A; the defendant’s counter-claim is bolstered up with portions of Exhibit A which he did not plead and a collateral contract for cash advances based on his promise to supply them with logs for five years.

The judgment overlooks the fact that Exhibit A recites they agreed to give him £ 1 ,800 in lorries in regard to his supplying them with logs. It was obvious from the evidence that Exhibit A was the contract between the parties: after having it read to him, the defendant did not press for a fresh document to embody what was missing but supplied logs in accordance with it, and he let Exhibit A go in by consent. When a contract is reduced to writing, the writing gives the terms agreed upon.

The defendant set up an oral agreement and repudiated Exhibit A: he realised that if he accepted it as part of the contract, he would be faced with the difficulty of proving a separate oral agreement on the basis that he and the plaintiffs did not intend Exhibit A to be- “a complete and final statement of the whole of the transaction”¬as it is put in section 131 (1) (b) of the Evidence Act. Admittedly the plaintiffs made other advances and gave other credits, besides the £ 1 ,800; they doubtless thought it was in their interest to do so; and had the defendant been more diligent and efficient in supplying logs, all would have been well The plaintiffs cannot be saddled with an obligation to go on making advances regardless of the state of the defendant’s account.

They had made it clear in exhibit A that they expected the £ 1 ,800 to be repaid within six months. If they gave other credits and advances outside the contract, it was within their discretion to stop whenever they thought that the situation was becoming unhealthy. That it was in the course of 1954; they did not sue until April, 1957. The damages for breach of contract awarded to the defendant must be set aside. He complains that the judgement denies him anything for the lorries; it says-

“there is no evidence of the contract of bailment as they were not ad idem as to the terms of repairs … they took as much care of the vehicles as they took of their own. They are not liable in detinue and the defendant’s claim in respect of the vehicles and damages for their loss must fail.”

The plaintiffs argue that they are not liable to pay anything unless it is proved that they used the lorries, They are reminded that they offered to pay £700 as the value of the lorries-which they would not have offered if they did not feel liable for the failure to hand back the lorries.

In my judgement they were liable, for lorries are big, solid things, and the plaintiffs did not explain how, with ordinary care, the sort of care they give to their own lorries, those of the defendant could have disappeared from their garage without their knowledge, and must be taken to have detained them; but the defendant has not shown that they were worth more.

The argument that one lorry had been used for 12 and the other or 15 months, before they were taken to the garage at Benin, overlooks the fact that the lorries had been used to run partly inside the forest. It was the defendant’s duty to remove his lorries, shortly after he had taken them to the garage, when he was old that they would not be repaired on credi

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Other Citation: (1963) LCN/1084(SC)

Abraham Oguneye Jobi v. Peter Adewumi Oshilaja (1963)

LawGlobal-Hub Lead Judgment Report

BRETT, F.J.

The appellant in this case brought an action in the High Court of Lagos, claiming a declaration of title to a piece of land at Ibidun Street, Surulere, damages for trespass and an injunction to restrain further acts of trespass.

The respondent disputed the appellant’s title and the issues finally narrowed themselves down to a very simple point, each party claiming to derive title from the family of Salamotu F. Amore.

The plaintiff relied on a conveyance dated the 26th May, 1956, and purporting to be executed by Chief Tijani Babalola and Jibrill Akintola Onisemo as vendors, with Anthony Olu Lawanson as attesting witness, which was put in evidence as Exhibit A.

The defendant pleaded that this conveyance was never executed by the vendors named therein, and relied on a conveyance dated the 16th October, 1956, and executed by Tijani Babalola, Sariatu Onisemo and Layide Onisemo as vendors, the fIrst-named in the presence of E. G. Ladere, and the other two, who are Apparently illiterate, in the presence of a magistrate in compliance with section 8( 1) of the Land Registration Act; this conveyance was produced in evidence as Exhibit M. On the pleadings the onus was clearly on the plaintiff to prove that his conveyance was duly executed.

When the case came up for hearing on the 13th May, 1960, counsel for the defendant drew attention to the plea concerning the plaintiff’s conveyance and stated that a report had been made to the police three years previously and that nothing had been heard of it. Counsel for the plaintiff said that he also wished the police to investigate the matter, and the judge adjourned the case, with an order that a copy of the proceedings and the original of the disputed conveyance should be submitted to the Inspector-General of Police, who was directed to investigate the matter and report to the court what action he took or proposed to take. A letter was in due course received from the Commissioner of Police and a copy of it was ordered to be served on counsel for each party.

The hearing proper started on the 11th October, 1960. The only witness for the plaintiff was the plaintiff himself, who testified that he had negotiated for the purchase of the land with Olu Lawanson and Jubrilla Ayantola Onisemo, who may not be the same person as Jibrill Akintola Onisemo. He did not say that he was present when his conveyance, Exhibit A, was executed by Chief Tijani Babalola, or that Chief Tijani Babalola had acknowledged to him that he had executed it.

For the defence, Chief Tijani Babalola himself gave evidence, denying that he had executed Exhibit A. He agreed that the signature of his late brother, Jibrill Akintola Onisemo, on Exhibit A looked genuine, and that the signature in his own name looked like his genuine signature on the other conveyance, Exhibit M, but he remained unshaken in his story that the signature was not made by him. Neither side called Lawanson, who had signed as attesting witness to Exhibit A.

After the case for the defence had been closed, counsel for the plaintiff applied for permission to call a police witness to rebut the evidence given by the defendant, but this application was refused, and it is not now suggested that the judge exercised his discretion wrongly in refusing it.

In giving judgment for the defendant, the judge held that the plaintiff had failed to prove that his conveyance, Exhibit A, had been executed by Chief Tijani Babalola, whose signature it is agreed was necessary for a valid conveyance. The report received from the police had not been put in evidence by either party, and one of the grounds of appeal complains that although the judge stated in one part of his judgment that his judgment was unaffected by the production or non-production of the report he made various quotations from it, and referred to it in his closing words as supporting the view which he had formed.

The report appears from the quotations made from it to have been equivocal to have expressed the opinion at one place that the signature was not a forgery, and at another that the signature was obtained by some form of deceit-a matter on which it was not the function of the police to express an opinion for the information of the court. At all events, I think, with respect, that since neither party elected to call the police officer who had examined the document, so as to obtain expert evidence from him, it would have been more correct if the judge had omitted all reference to the police report in his judgment.

I do not, however, consider that this is a ground on which his judgment could be reversed, or that on the relevant material which he took into consideration he could have come to any other conclusion than that expressed in his judgment.

The essence of the complaint made on behalf of the appellant is that in spite of the lack of any positive evidence tending to rebut Chief Tijani Babalola’s denial that he signed Exhibit A, and of the omission to call the attesting witness, Lawanson, or a handwriting expert,it was the duty of the judge to compare the signatures on the two conveyances and form his own opinion as to the genuineness of the signature on Exhibit A, and in support of this submission reliance is placed on sections 99, 100 and 107 of the Evidence Act, and on the decisions in Cresswell v. Jackson 2 F. and F. 24, 175 E.R. 942, and Cobbett v. Kilminster 4 F. and F. 490, 176 E.R. 659. In Cobbett v. Kilminster it seems clear that there was positive evidence that the disputed signature was that of the party to whom it was attributed, and the case is distinguishable on that ground.

In Cresswell v. Jackson a person called as an attesting witness to a codicil was asked if the whole of the codicil was not written by him, and, on his denying this but admitting that he had written other writings which were shown to him, the codicil and the admitted writings were allowed to be shown to the jury for the purpose of comparison of the handwriting, and it does not appear from the report that any further evidence on the point was produced.

This case was decided in 1860, since when advances in scientific knowledge have made the detection of forgeries in handwriting a much more exact process. The evidence of handwriting experts has now ceased to be regarded with the suspicion engendered by the failure of justice in Adolph Beck’s case, and the modem view, in criminal cases at least, is that a jury should not be left unassisted to decide questions of disputed handwriting on their own: see R. v. Tilley [1961] 1 W.L.R. 1309. In R. v. Wilcox, FSC 208/1961, [1961] All N.L.R 631, this Court distinguished between examining a document to supplement evidence which had been given as to the authorship of certain entries and doing so to draw conclusions on a matter as to which no evidence had been given. Cf. R. v. Appeal (1951) 13 W.A.C.A. 143.

In the present case I do not think it is necessary to decide what limits the law sets to the judge’s power of examining a document and forming his own conclusion as to the handwriting. On the one hand the judge had before him the clear denial of Chief Tijani Babalola; on the other hand he had the omission of the plaintiff to call either Lawanson or a handwriting expert from the police.

I see no reason why he should have thought it necessary or even proper to rely on his own examination of the documents in order to form a layman’s opinion on a matter as to which Lawanson could have spoken directly and an expert could have given an opinion based on his specialised knowledge. In my view the judge came to a correct decision on the evidence before him, and I would dismiss the appeal with costs assessed at 22 guineas.

It was submitted on behalf of the respondent that Exhibit M, though executed after Exhibit A, was registered before it and therefore took priority over it in accordance with section 16 of the Land Registration Act, even if Exhibit A was a genuine document. There may well be substance in this submission, but I find it unnecessary to decide whether there is or not, since I prefer to rest my decision on the grounds already stated.

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F.S.C.472/1961

Federal Board of Inland Revenue v. S. O. Adenubi (1963)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.F.

The appellants have appealed against the judgment of the Chief Justice, High Court, Lagos, in an Income Tax matter arising out of assessment made upon the respondent for the year of assessment 1959-60.

The respondent, who was dissatisfied with the assessment made upon him, appealed to the Appeal Commissioners who allowed his appeal. The present appellants (Federal Board of Inland Revenue) in turn appealed to the High Court, Lagos, against the decision. The appeal was dismissed, and this is an appeal against that judgment.

The facts are not in dispute. The respondent (Adenubi) is by profession a schoolmaster; he owns property and he also trades in iles. He was assessed in respect of his profession, for his rentals and also for his income in the ile trade. There was also assessment in respect of his wife’s income from trading as well as those from her rentals.

The point which led to the present dispute is in respect of the respondent’s income from his ile trade. The decision of the Appeal Commissioners complained against is as follows:-
“We therefore order that the audited accounts for the year to 31st March, 1959, submitted to the respondent and marked Exhibit 5 be accepted and adjusted loss arising there from computed and if necessary application be made by the appellant (Mr Adenubi), the adjusted loss so computed be set against appellant’s other income for 1958-59 basis year, that is 1959-60 year of assessment.”

In other words, it would appear that in 1958-59 the respondent sustained a loss in his ile trade. He has therefore urged that the amount of this loss be taken into account in the assessment for 1959-60, and a deduction allowed in respect of it.

Section 18 (1) of the Income Tax Act, which it would appear both sides rely upon, provides that the income of a person for each year of assessment from each source of his income is the full amount of the income of the year immediately preceding the year of assessment from each such source. Whilst the present respondent maintained that a loss sustained under a particular source of income in the year immediately preceding the year of assessment should be deducted, the appellants maintained that for the purpose of ascertainment of total income, no deduction is allowable in law. In support of this view the appellants sought the aid of proviso (ii) to Section 20 (2) (b) of the Income Tax Act. Section 20 (2) (b) reads:-

“There shall be deducted:-

(b) the amount of a loss which the Board is satisfied has been incurred by him in any such trade, business, profession or vocation during any year preceding the year of assessment which has not been allowed against his assessable income of a preceding year: Provided that-”
and proviso (ii) reads:-
“a deduction under this paragraph for any year of assessment shall not exceed the amount, if any, of the assessable income, included in the total income for that year of assessment, from the trade, business, profession or vocation in which the loss was incurred and shall be made as far as possible from such amount of such assessable income of the first year of assessment after that in which the loss was incurred, and, so far as it cannot be so made, then from such amount of such assessable income of the next year of assessment, and so on :”

It appears to me that the proviso to subsection 20 (2) (b) was not considered at all by the learned Chief Justice in his judgment. If he had done so, he might have arrived at a different conclusion in his judgment. He applied paragraph (a) of section 20 (2) interpreting “a loss incurred by him (the taxpayer) during the year of assessment” as “the loss incurred during the year preceding the year of assessment in cases in which section 18 (1) applies” contrary to the language of paragraph (a).

It seems to me that the case is governed, not by subsection (a), but by subsection (b), and the correct application of paragraph (b) of the subsection is that in the year of assessment, a deduction for loss in trade or business in the preceding year shall not exceed the amount of the assessable income in respect of the trade or business in which the loss had been incurred. Thus, if the amount of assessable income of the trade included in the gross income is NIL, no deduction will be made, and the amount of loss will be carried forward until profits are shown in the particular trade or business.

The respondent in the present appeal therefore in the year 1959- BOARD OF INLAND REVENUE v. ADENUBI

The decision of the Appeal Commissioners as well as the judgement of the learned Judge of appeal are, in my view, clearly wrong and are hereby set aside. The appeal is allowed accordingly.

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F.S.C.442/1961

Mandillas and Karaberis Ltd. v. Chief Yesufu D. Otokiti (1963)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J.

The plaintiffs have appealed, and the defendant has cross-appealed, from the judgement in the Benin Suit No. 27 of 1957 given on 8th November, 1960.
The parties entered into a contract on the 5th November, 1953, in relation to the defendant’s concessions in the Forest Reserve, with a view to his giving the plaintiffs all the logs he extracted.

There is in evidence an agreement in writing Exhibit A, put in by consent at the trialwhich recites that the company advanced a loan of #31,800 in timber vehicles, to enable the defendant to exploit his timber concessions, fell timber and supply on sale all the timber to the company; the next recital mentions the concessions, which cover about 150 square miles, and the terms of agreement follow in regard to the timber to be supplied to the plaintiffs at their beach and the prices to be paid; and the defendant was to repay the loan of #31,800 in logs within six months. The final clause is that the agreement was to endure for five years, but could be terminated on twelve months notice, which, however, if given by the defendant, would not take effect until his account was completely balanced.

In addition to giving the defendant two Lorries on credit, the company gave him money for his forest permit and made also other cash advances to him; they supplied him with petrol, tyres, and tubes, and they repaired his lorries on credit. He supplied logs, but not in sufficient quantity, and his debit mounted, so the plaintiffs decided when the six months or so were over, that they would give him no more credit. He had some logs felled and lying in the forest, but was unable to spend the money for taking them to the waterside.

The plaintiffs considered whether it was worth their taking the logs to the waterside themselves, but it seems decided against it. Moreover, the Lorries needed over hauling, and the defendant took one to the Benin garage in November, 1954, and the other in February, 1955. He wanted them repaired on credit, but that was refused. He had no money to have them repaired elsewhere, and left his Lorries in the garage which was an open air garage.

The plaintiffs wished him to take them away. Eventually, near November, 1956, he wished to remove them; there is a letter from the company to him, dated 13th November, 1956, in which he is told that he had always been and still was at liberty to remove them. When his agent went to do so, the Lorries could not be found. There was conversation between the parties. He claimed #31,200 as value and a vast amount as damages. The plaintiffs wrote in January, 1957 that they were willing to pay what they thought was the value #3700 but no more. Early in April, 1957, the plaintiffs sued for #33,238’17.7d “being debt owed by the defendant” .

The Statement of Claim avers that the plaintiffs sold two Lorries on credit, and supplied petrol, etc., and made cash advances against logs; also that they repaired the Lorries on credit. Two accounts were annexed to it.

The Defence denies the accounts and goes on to allege an oral agreement between the parties as having been entered into on the 5th November, 1953, the terms of which are similar to those set out in the written agreement of that date-Exhibit A-with, however, these additions:
“The plaintiff shall advance all monies necessary for the manufacture of the logs either in cash or in kind including:
(i) The value of 2 Austin ex army type Lorries B 1505 and B 1506 at #3900 each and the cost of repairs to these lorries.
(ii) The official fee payable as royalty for licence to fell timber and
manufacture logs in a Forest Reserve.
(iii) The cost of  labour and material necessary for felling and evacuation of logs from the Forest Areas BC, BC15/2 and BC3/1 respectively to the plaintiff’s beach at Sapele.
(iv) The plaintiff shall make these money advances aforesaid throughout the 5 years period as and when necessary and requested so to do.
(v) The defendant shall pay for these money advances by the supply of logs and shall supply logs to the value of not less than ‘a3300 in each of the first six months commencing on the 5th day of November, 1953 in liquidation of the value of the two Austin lorries B 1505 and B 1506. and thereafter the said lorries shall become his bona fide property.”

The defence goes on to admit taking the lorries as a credit of #3 1,800, and two cash advances amounting to #3450, alleging it was pursuant to that oral contract; a number of pages of narrative follow, and then comes a counter claim partly about the lorries and partly about the logs left in the bush, and about a few items of credit due to the defendant.
The plaintiffs’ reply is a denial of the oral agreement alleged with sundry other denials.

Before the trial the defendant amended his counter-claim, to add claims, both for general and special damages, for breach of contract.
Neither party referred to the written agreement, Exhibit A, but on the day of trial it was put in by consent, together with some other documents, before the hearing began.
Giving evidence in chief, the defendant said that after signing Exhibit A he took it home and had it read to him; he discovered it did not contain all that had been agreed, and told one Mr Karaberis about it, but supplied logs in accordance with the agreement in Exhibit A.

The judgment begins with the pleadings, then deals with the 3 plaintiffs’ claim and the evidence, which it says is not in accordance with their pleading:- they did not plead Exhibit A-and on the authority of Adenuga v. Lagos Town Council, 13 W.A.C.A. 125, decides that the plaintiffs’ “present” claim must fail and it is dismissed.

The judgment then goes on to the defendant’s case and refers to the recitals in Exhibit A; it says that upon consideration of all the evidence:-
“There was an agreement between the parties for the plaintiffs to advance the defendant with loans in cash and in kind to exploit both concessions in the interest of both parties for a period of 5 years certain”
It recites clause 7 on the duration, and goes on to say:-
“Their promise to make these advances in cash or in kind to the defendant is mutual and collateral and interdependent on the defendant’s promise to supply them with logs throughout the five-year period. The defendant must succeed on this portion of his counter-claim”.

That is the portion claiming damages for breach of contract by reason of the Plaintiffs refusing further credits.
It is a curious situation: the plaintiffs claim is dismissed because the did not plead Exhibit A; the defendants counter claim is bolstered up with portions of Exhibit A which he did not plead and a collateral contract for cash advances based on his promise to supply them with logs for five years. The judgment overlooks the fact that Exhibit A recites they agreed to give him #3 1,800 in Lorries in regard to his supplying them with logs.

It was obvious from the evidence that Exhibit A was the contract between the parties: after having it read to him, the defendant did not press for a fresh document to embody what was missing but supplied logs in accordance with it, and he let Exhibit A go in by consent. When a contract is reduced to writing, the writing gives the terms agreed upon. The defendant set up an oral agreement and repudiated

Exhibit A: he realised that if he accepted it as part of the contract, he would be faced with the difficulty of proving a separate oral agreement on the basis that he and the plaintiffs did not intend Exhibit A to be:- “a complete and final statement of the whole of the transaction” as it is put in section 131 (1) (b) of the Evidence Act.
Admittedly the plaintiffs made other advances and gave other credits, besides the #3 1,800; they doubtless thought it was in their interest to do so; and had the defendant been more diligent and efficient in supplying logs, all would have been well.

The plaintiffs cannot be saddled with an obligation to go on making advances regardless of the state of the defendants account. They had made it clear in exhibit A that they expected the #3 1,800 to be repaid within six months. If they gave other credits and advances outside the contract, it was within their discretion to stop whenever they thought that the situation was becoming unhealthy.

That it was in the course of 1954; they did not sue until April, 1957. The damages for breach of contract awarded to the defendant must be set aside
He complaints that the judgement denies him anything for the Lorries; it says:-
“There is no evidence of the contract of bailment as they were not ad idem as to the terms of repairs . . . they took as much care of the vehicles as they took of their own. They are not liable in detinue and the defendant’s claim in respect of the vehicles and damages for their loss must fail.”

The plaintiffs argue that they are not liable to pay anything unless it is proved that they used the Lorries. They are reminded that they offered to pay #3700 as the value of the Lorries which they would not have offered if they did not feel liable for the failure to hand back the Lorries. In my judgement they were liable, for lorries are big, solid things, and the plaintiffs did not explain how, with ordinary care, the sort of care they give to their own lorries, those of the defendant could have disappeared from their garage without their knowledge, and must be taken to have detained them; but the defendant has not shown that they were worth more.

The argument that one lorry had been used for 12 and the other for 15 months, before they were taken to the garage at Benin, overlooks the fact that the lorries had been used to run partly inside the forest. It was the defendant’s duty to remove his lorries, shortly after he had taken them to the garage, when he was told that they would not be repaired on credit. They were there, in an open-air garage for well nigh on two years; they would have needed more expense to put in repair in November, 1956, than they had needed when taken in.

The defendant had no money; if he had taken his lorries out in November, 1956, he would have been obliged to sell them. He could not have run them for profit, so he is not entitled to damages or loss of profit as from November 1956.

So far as the logs in the bush are concerned, the judgement says, rightly in my view, that the defendant had a duty to deliver logs at the waterside-which disposes of his claim.

To revert now to the plaintiffs’ claim and complaints

Adenuga v. Lagos Town Council related to the demolition of a building. The Council in their pleading relied on a particular notice one of two-they had given the plaintiff; in the appeal they wished to rely on the other, which explains why the court of appeal said that:

“The respondents were bound by their pleadings and could not set up an entirely different case at the trial in court or on this appeal.”

Here the plaintiffs pleaded that they had given goods on credit and made cash advances against logs, and that they had given the defendant credit for the logs supplied; also that they had repaired his lorries; and they supplied statements of account. That pleading is not inconsistent with their having done what they did partly under exhibit A. They should have mentioned it; however, they tried to repair their omission by putting it in before the hearing began; and it went in by consent, which made it evidence for both sides and saved either side from being penalised at the other’s request, because of the omission to plead the written agreement, The plaintiffs were entitled to have their claim considered.
Although before commenting on the counterclaim the judgment dismisses the claim, it appears that the dismissal was not definitive: for towards the end the judgment says:
“I will order that a reputable accountant, to be agreed by the parties, do go into the account and determine the sum due between the parties in respect of the transaction between them as it is impossible for this Court
to determine any precise figure from the very doubtful Statement of Accounts and such book of original entries as were tendered in these proceedings. ”

That was not done. Learned Counsel for the plaintiffs, at the hearing of the appeal, referred to two pages of his closing address in the court below, as noted by the trial Judge, in which he referred specifically to exhibits and amounts showing the debits and credits and an ultimate balance in the plaintiffs’91 in favour of #32,637 14.11 d. They were not considered in the judgment. Counsel for the defendant before us merely said that the defence denied the account, but did not challenge or comment on any item in those exhibits. In these circumstances there is no occasion to have an accountant appointed. The plaintiffs are entitled to have judgment for that amount less the #3700 allowed against them for the lorries.

As regards costs, it seems fair to make no order. The following order is proposed:
The judgment of the 8th November, 1960, in the Benin Suit No. 27 of 1957 of the High Court of the Western Region, is set aside and replaced by a judgment awarding the plaintiffs two thousand six hundred and thirty seven pounds fourteen shillings and eleven pence and the defendant seven hundred pounds on his counterclaim, without any order as to costs of appeal or in the court below, with the net result that the defendant is ordered to pay the plaintiffs one thousand nine hundred and thirty seven pounds fourteen and eleven pence (#1,937’14.11 d).

TAYLOR, F.J.:- I agree with the Judgment that has just been out by my brother Bairamian, F.J., and only wish to comment on the pleadings in the Court of Trial. I have always been and I still am an adherent of the principle that if pleadings are to be of any value at all, as long as they remain unamended, parties must throughout their case be held bound by them. In the present case on appeal it is clear that the plaintiffs’ /appellants’ case a great extent bound up with a written agreement entered into between the parties and marked exhibit “A” in these proceedings for their Manager is recorded as saying in examination-in-chief

” I remember an Agreement in writing between my firm and the defendant. I have seen the Agreement exhibit “A”.
The record then continues as follows:

“Idigbe:-The plaintiffs have denied this Agreement.”
“Okorodudu:-We have never denied the existence of an Agreement
in writing.”

“Witness continuing:Exhibit “A” is the Agreement on which the Firm and the defendant conducted their dealings.”
In spite of the obvious importance of this Agreement and the requirement in the Rules of Court that it should be pleaded, neither the plaintiffs nor the defendant referred to it in their pleadings.

The defendant in fact relied both in his SID and in the counter-claim on an alleged oral Agreement of the same date as exhibit “A”. The plaintiffs/appellants filed a reply to the defendant’s counter-claim, and while denying the existence of any oral agreement, again remain silent as to the existence of exhibit “A”. At no stage of the proceedings was an amendment sought or made. The Learned Trial Judge in his Judgment held in so far as the plaintiffs’ case was concerned that:
“Plaintiffs did not plead the Agreement. They must stand or fall by their pleading. ”

With this statement of the law I am in complete agreement, but where, on this point, I beg to differ from the Learned Trial Judge in the Court below is, where in spite of the ‘defendants’ own failure also to plead or rely on exhibit “A” in the defence or counterclaim, he goes on to say that:
“As regards the defendant’s counterclaim, after hearing his evidence
and that of P.W.2 Anstatius Mandilas and considering exhibit” A”, and all the other exhibits I am satisfied that there was an agreement between the parties” .    …    ……..

It is difficult to see how the agreement which the plaintiffs and defendant did not rely on in their pleadings could not avail the plaintiffs, but could be used by the defendant to support the defence and counterclaim.

Either the Agreement should be rejected, or, having been tendered by consent of both Counsels at the beginning of the case, it should avail both parties. In my view, considering all the circumstances of this case the latter procedure should have been followed.

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F.S.C.342/1961

E. T. Adewoyin and Ors v. Jones Adeyeye (1963)

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BAIRAMIAN, F.J.

The plaintiffs complain against the judgment of the 30th November, 1961, which dismissed their Suit (Ibadan No. 257/58). In their appeal they repeat their claim for a declaration of title to the land in plan CK 160/59 (on which it is shown edged red), abandon mesne profits and confine the old claim for an injunction against the defendant entering the land to one against his gathering “ishakole” from the tenants.

The defendant, they said, belongs to the plaintiffs family and may go on the land like any other member of the family; their complaint is that he is claiming the land to be his own and keeping all the” ishakole” to himself, instead of sharing it with the family. It amounts to #32,000 or more a year.

The defendant admitted in evidence that:-

“If tenants are put on family land members of the family should share the “ishakole”; but the land in dispute is mine.

The issue is whether the land belongs to the family.
Briefly put, the plaintiffs’ case is that the land originally belonged to the Otutu family, of which their family is a branch; owing to one of the Otutu family, namely Shoko Ademakinwa, monopolizing some of the family land, the Otutu family held a meeting in 1933, at which family land was allotted to various branches; and the land between Omifunfun and Idiako was one of two portions allotted to all the children of Ademiluyi, the head of the Ademakin/ Ademiluyi family (who are the plaintiffs by representation), and that allotment included the children of Ademiluyi’s younger brothers, Adebowale and Adeyeye, the defendant’s father. It is mentioned in the petition which the family, including the defendant, sent to the Native Authority oflfe in 1950. The plaintiffs go on to allege in their pleading that in or about 1947 Adeyemo Eletiko, with the defendant, began putting tenants on the land with the family’s consent on the understanding that when the tenants began giving “ishakole”, all the members of the family would share. When the tenants began paying, the defendant at first promised to share, but did not, and finally said the land was exclusively his; and he has been keeping all the “ishakole” which the tenants pay.

The defendant’s case is, briefly, that he owns the land; it did not originally belong to the Otutus. At one time the Otutus alleged that certain areas of land in Ife district belonged to them because the family had hunting rights, but (says the Defence) later court decisions stated that hunting rights in a forest did not confer ownership. The defendant admits there was a meeting in 1933, but it was over a dispute between Soko Ademakinwa and C. A. Layade over a farm at Osi Soko. The land now in dispute was then unknown virgin forest and was not mentioned. The defendant denies the plaintiffs’ allegation of his putting tenants on the land in 1947 on the family’s behalf and promising to share the “ishakole”; he alleges that since 1938 he has been farming and putting tenants on the land in his plan in his own right, and that before 1938 all the land in his plan was virgin bush.

I pause to note that his plan (L & L/A 3563) shows the land in dispute and some adjoining land besides, to which the plaintiffs lay no claim. To revert to the Defence: paragraph 18 states:-
” Believing that the Otutu family who had hunting rights over the land also had title to the said land the defendant started to cultivate the said area of land and put tenants in various parts of the land.”

Boundary disputes led to his suing one Sanni Odera in the Ife Lands Court in 1949: the plaintiffs allege that the suit was decided in favour of the family, and the defendant points out that on appeal it was held that hunting rights did not confer title but were to be distinguished from farming rights. The Defence goes on to allege that:-
“20. Thereafter the defendant approached the Oni of Ife Sir Adesoji Aderemi for a grant and confirmation of title of his holding of the land delineated in plan No. L & L/A 3563. The Oni of lfe as the custodian of unoccupied virgin forest land in Ife has the right to allocate or grant the land. The confirmation was accordingly made.”
Paragraph 23 states that it was on that authority of the Oni that the defendant and his tenants cultivated the land from pure virgin forest and built up villages. Before the grant, he had exercised openly all acts of ownership: the plaintiffs had never exercised any. When there were disputes over boundaries with neighbouring owners, the Oni sent his messengers to settle them.
It is plain that until the second pronouncement in the Lands Court on hunting and farming rights being different, everyone believed that the land was Otutu family land. When the defendant sued Odera, he says he did so on behalf of the Otutu family. Having regard to the fact that he signed the petition of 1950, which represents the land as having been allotted to the plaintiffs’ family,
which is the defendant’s also, I am inclined to think that he sued on behalf of the plaintiffs’ branch. Paragraph 18 of the Defence makes it plain that he cultivated and put tenants in the belief that the land was Otutu family land. In cross-examination he said that:-

“According to Otutu family history our ancestors had title to the farmland in dispute and we so contended in the petition but when the petition was turned down and all litigation proved abortive I decided to approach the Oni to obtain title to the land.”
He did so unknown to his family, in 1952, and obtained a grant of some 3,000 acres for himself alone.
It is not proposed to say more on the judgment under appeal than this-that it is affected by the second decision of the Lands Court in the Odera suit. Both parties at the hearing of the appeal agreed that (for reasons into which there is no need to enter here) the proceedings in that court were a nullity; it was on that basis that arguments were advanced at the hearing.

The plaintiffs’ case is simple: it is:-

A-This is, or was, rather, Otutu family land which in 1933 was allotted to the plaintiff’s branch of that family, and the defendant belongs to that branch;

B- The defendant put tenants on family land, so the “ishakole” they pay belongs to the plaintiffs’ family;

C- The defendant cannot avail himself either of the decision of the Land Court or of the grant from the Oni which he obtained thereafter.

That decision was admittedly a nullity. The grant was a nullity, too. James Itiaran, a witness for the defendant stated (at the end of his cross-examination) that:-

“The Oni grants only virgin forest and not cultivated farmland.”
The Oni, too, as a witness for the defendant, admitted that:-

“As the Oni I have no right to grant farmland which had been under cultivation because such land would have been granted by me or by my predecessors. ”

The Oni’s evidence is that before the boundary disputes between the defendant and neighbouring owners, at a time when he was assured that the land was virgin forest, he made a grant, without any defined limits, of the land to the defendant; that later, when boundary disputes arose, he sent messengers to settle the boundaries; and after the Odera case he confirmed his grant to the defendant. That is putting the defendant’s case higher than he himself puts it. The defendant admitted that it was after losing the Odera case that he sent someone to the Oni to give him a grant of the farmland in 1952.
In passing it is useful to note that the Oni, as father of his people, is approached sometimes to settle boundary disputes; it does not mean that he had granted the land in dispute or on either side.

I must now refer to a passage in the Oni’s evidence in chief, where he said this:-

“When once the Oni grants virgin forest to a person, such farmland belongs to the grantee and his descendants. The method of granting farmland to people is that if the applicant is from a hunting family the Oni grants to such a person permission to go and farm within the area where his family had hunting rights; in the case of applicants from other families, I would send for the head-hunter in the area and inform him of the request of the applicant and later send Emeses (messengers) to go with them to the virgin forest and cut sufficient forest for the applicant for farming purposes. ”

The distinction is invalid as in either case the grantee becomes sole owner; and as the rights of the family will be affected by being deprived of an area over which it has a right to hunt, natural justice requires that the family should be consulted. The grant which the Oni made-it was in I 952-sinned against that rule insofar as it included virgin bush, and insofar as it was cultivated land it sinned against the rule which is acknowledged by the Oni that he has no right to grant farmland under cultivation.

The defendant had been cultivating as far back as 1938. Part of his evidence in cross-examination is:
“The Oni granted me the farmland in dispute in 1952. The farmland was partly cultivated in 1952 and partly virgin forest.”
About 1938 he had a dispute with the brother of Comfort Adesola because he encroached on the latter’s land; about 1951 he had a dispute with James Odunlate, who said the defendant’s tenants encroached on his land; and who, by the way, said that the land on which the defendant was farming then was called Otutu family. There was also the dispute with Odera, which led to the Suit of 1949. Those disputes mean clearing or cultivation at the boundaries. How much of the land was virgin bush in 1952, and how much cultivated land, there is no means of knowing.

The plans in evidence, which were mad & in 1959, show that there is some light bush here and there, and some thick bush near the boundary; doubtless also in 1952 there was some virgin bush, but nothing hangs from that. Moreover, it was not the defendant’s case in the court below that the Oni granted him virgin bush in 1952: there he relied on the Land Court’s decision that people with hunting rights in bush had no right to farm it, and he wanted to relate back, to the days before he began cultivating what he believed was family land, the grant made to him in 1952.

Likewise on appeal the argument for him does not seek to differentiate between cultivated land and land that was bush in 1952: the argument is that as at the time when cultivation began, many years before 1952, the land did not belong to the family but was bush, and as the Oni (who was installed in 1930 as such) did not make any grant of the bush, the family could not acquire any rights by surreptitious cultivation of land in which they had only hunting rights, and it was competent to the Oni to make a grant to the defendant in 1952.
That argument depends on the judgment of the Land Court in substance, which is null and void. The fact remains that in 1952 the Oni made a grant of land under cultivation-that there were some bush parts does not matter upon the defendant’s case: in fact his aim in approaching the Oni for a grant was to acquire title to the area under cultivation in the light of the Odera judgment. The grant was contrary to native law and custom and ineffectual to confer title for the reasons above stated (before the mention of the plans, in dealing with the Oni’s evidence on grants)

With the Odera judgment and the grant of 1952 out of the way, the plaintiffs’ claim that the land is family land is plain, and cannot be gainsaid by the defendant, who, until the Odera judgment, shared the family belief in the tradition that the land belonged to the family, and it was in that belief that he cultivated it and put tenants on the land: Defence paragraph 18. He objects, however, that if the land belongs to the Otutu family, the plaintiffs are not suing on behalf of the Otutu family, but as representing a branch, namely the Ademakin/Ademiluyi family branch.

That objection does not come with good grace from a member of the family who disavows the family rights he had championed in the suit against Odera, nor is it available to him in view of his having signed the petition of 1950 believing that its contents were correct. According to paragraph 3 (a) of the annex to that petition, the land in dispute was allotted to Ademiluyi and his brothers, and the evidence for the plaintiffs is to that effect. It seems to me, therefore, that the plaintiffs, as between themselves and the defendant, can maintain their claim against him. The court is not concerned in this case with any persons whom the defendant did not, because of the case he was putting up, ask to be joined: its only concern and duty is to adjudicate between the parties before it; and in my judgment the plaintiffs are entitled to succeed to the extent of the claims they have urged in their appeal.

In regard to costs, I have to observe that about half the material in the record was superfluous, and to regret that the solicitors of the appellants did not attend when the registrar of the court below was to settle the record, to advise him on what was relevant to the appeal. Appellants and their solicitors should realise that it is their duty to confine the record to what is relevant; and the registrar should look at the grounds of appeal for guidance in that regard. There was no point in including all the material relating to the appointment of a receiver.

The following order is proposed:
“The appeal of the plaintiffs from the judgment of the High Court of the Western Region in the Ibadan Suit No. 257 of 1958 dated the 30th November, 1961 is allowed and that judgment is hereby set aside and replaced by a judgment declaring that the land at Omifunfun Onigbodogi shown in plan CK 160/59 (Exhibit C) edged red is the property of Ademakin/ Ademiluyi Family of Ife, and an injunction shall issue restraining the defendant, his servants and or agents, from collecting “ishakole” from the tenants on the land and taking the profits of the land, but the same shall be shared in the said Family, with liberty to apply to the court below in regard to the “ishakole”collected by the receiver and by the defendant, and with costs assessed at three hundred guineas in the court below and at seventy-five guineas as costs of appeal.”

ADEMOLA, C.J.F.: I agree with every word of the judgment which has just been read by my learned brother. I only wish to comment on two points in the evidence. In the first place the Oni of lfe, under cross-examination, said as follows: “At the time the defendant approached me I knew the area was a forest”. This cannot possibly be the true state of the area because it was clear that in 1952 (when the defendant said he approached the Oni for the land) the area was not a forest. It is possible, however, that the Oni was misled.

The other point relates to the distinction which the Oni drew between an applicant for virgin forest land over which a family has hunting rights who is a member of that family, and an applicant who is not. The Oni’ s evidence is that in the latter case he consults the head hunter of the family, but in the former case he does not. lf his evidence means that his practice is in accord with native law and custom, then I am bound to say that it is not acceptable. For one thing, it is contrary to common sense and natural justice, for another I should require very strict proof of the implied suggestion that such was the distinction in native law and custom.

The Oni was the last witness for the defence, so his suggestion could not be tested by questions to other witnesses. For the time being it must not be regarded as anything more than a mere suggestion on his part, designed as it was no doubt to justify his granting to a single individual member of a large family, without consulting the family or its head, a vast area of three thousand acres of land over which, at the least, the family had hunting rights insofar as it was virgin forest- which, by the way, it was not at the time of the grant except as to an undetermined portion.

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F.S.C.167/1972

Emmanuel Ibeziako v. Commissioner of Police (1963)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.F. 

This appeal raises a question of very great importance for Northern Nigeria where the Criminal Procedure Code is in force. The appellant was convicted by the Magistrate of the Jos Magisterial District on a charge of offering or giving gratification to a public servant contrary to section 118 of the Penal Code. He appealed to the High Court and failed. This appeal to this Court is a second appeal and the ground of appeal, as amended, reads::-
“The procedure adopted in the Court below (the Magistrate’s Court) for the trial of the appellant contravened the provisions of section 21 (4) of the Constitution of the Federation because the presumption of innocence provided for under that subsection was violated”.
Sub-section 21 (4) referred to provides that:-

“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty:
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts:”

That provision enshrines a principle which has always been observed in our courts, and which is succinctly enunciated in Woolmington v. The Director of Public Prosecutions, 1935, A.C. 462 at p. 481, where Lord Sankey, L.c. said as follows::-

“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.”
The exceptions to which Lord Sankey was alluding were certain principles at Common Law, such as insanity, in which the burden of proof lies on the accused persons. There are also a few statutes that create some presumptions, which an accused person has the duty to rebut. These were referred to in the case of R. v. Carr-Briant [1943] 1 K.B. 607 where the standard of proof required of an accused person, or proof upon the preponderance of evidence was discussed.

During the argument before us, a number of cases were referred to on the meaning of the word “charged” in the sub-section. It was said it may mean “charged by the Police” in accordance with Police practice, or “charged in Court” in the nature of formal accusation. It seems unnecessary to discuss these cases for, whether or not the sub-section can mean “charged by the police”, there is no doubt that it is right to understand it in the present case meaning “Charged in Court”, having regard to the con; it is in court that an accused person is proved guilty, and it is there he would have, if the law so provided in regard to the offence charged, “the burden of proving particular facts.” It is common ground that the appellant was not “charged” at the beginning of the proceedings in the Magistrate’s Court. The nature of his present complaint will be better appreciated if the proceedings there are summarised.
The appellant appeared as the 2nd accused person, with a co-accused, and both had counsel. The First Information Report (which, as required by section 118 of the Criminal Procedure Code, is sent by the Police to the court) was explained to them, and they were cautioned; they close to say nothing. The note is “For P.I.”. They were remanded on bail, and it was on a later day that the note reads “for trial”. Crown Counsel appeared for the prosecution, and addressed the court on the evidence to be adduced. The accused had their counsel. Five witnesses were called, examined and cross-examined, over several days. Then the Magistrate framed two charges – one against each of the accused – which he read and explained to them, and each pleaded not guilty; copies of the charge were handed to counsel on either side.
The form of the charge, in respect of the appellant, is-
“I Jeffrey Richard Jones, Acting Chief Magistrate, Jos, charge you Emmanuel Ibeziako that you. . . and thereby committed an offence under section 118 of the Penal Code Law, 1959.” The case was adjourned for some days. At first counsel for the defence said they wished to recall one witness, but at the resumed hearing he said they did not so wish. The prosecution called three more witnesses; the defence said they were not calling any evidence, and counsel addressed the court. Judgment was given on a later day convicting the two accused; they appealed, one of their grounds being similar to the one advanced by the appellant in his further appeal from the High Court, where the Magistrate was upheld. Before us, Rotimi Williams argued for the appellant and Mr Ian Lewis, Attorney-General of the Northern Region, argued for the respondent.
There was no suggestion that any section of the Criminal Procedure Code had been contravened. It will be convenient to start with the provisions of the relevant sections of the Criminal Procedure Code.
The First Information Report was sent to the court under section 118 of the Procedure Code, with which we are not at present concerned. Section 158 and section 159 of the Code provide as follows:-”
158.
(1) When the magistrate decides not to convict the accused under section 157 or when an accused person states that he intends to show cause why he should not be convicted the magistrate shall proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution.

(2) The magistrate shall ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution and shall summon to give evidence before him such of them as he thinks necessary.

(3) The accused shall be at liberty to cross-examine the witnesses for the prosecution and, if he does so, the prosecutor may re-examine them.

“159. (1) If upon taking all the evidence referred to in section 158 and making such examination of the accused as the magistrate thinks necessary for the purpose of enabling him to explain any circumstances appearing in the evidence the magistrate finds that no case against the accused has been made out which if not rebutted would warrant his conviction the magistrate shall discharge him.

(2) The magistrate may discharge the accused at any previous stage of the case; if for reasons to be recorded by him he considers the charge to be groundless.

(3) A discharge under this section shall not be a bar to further proceedings against the accused in respect of the same matter.

They are to be read with sections 144 and 145 of the Code which are as follows::-

“144. When the accused persons appears before a court taking cognizance of an offence, the court may require the police officer, if any, in charge of the investigation, or any police officer acting on his behalf, to state a summary of the case and, if the court shall think fit, to produce the case diary for its inspection; and upon the application of any such police officer or of its own motion, the court may give such directions as to the matters to be proved and how they are to be proved, and what documents or other exhibits are to be produced as the court may think fit.” (Amended by .N.R. No. 20 of 1960).

“145. When a court has exercised its powers under section 144 it shall inforn the accused person that he is not required to say anything at that stage, but that if he wishes to inform the court of the substance of his defence he can do so in order that the court may give him such advice as it may think fit.” (Amended by N.R. No. 20 of 1960).

The learned Magistrate clearly did not act under sections 144, 145 or 159; heard some evidence-in fact most of the prosecution evidence-and formulated the charge before hearing some more prosecution witnesses and calling upon the accused person for his defence.
We refrain in this matter from expressing an opinion about sections 144, 145 and 159 as they were not acted upon, but in this connection, it is necessary to observe that section 235 of the Code gives the court power, if it thinks it necessary, to put questions to the accused without previously warning him. The section provides-

“235. (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the court may at any stage of an inquiry or trial, without previously warning the accused, put such questions to him as the court considers necessary and in such case shall for the purpose aforesaid question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.

(2) The accused shall not render himself liable to punishment by refusing to answer such questions or by giving false answers to them; but the court may draw such inference from such refusal or answers as it thinks just.

(3) The answers given by the accused may be taken into consideration in the inquiry or trial.
(4) The sole purpose of such examination shall be to discover the line of defence and to make clear to the accused the particular points in the case for the prosecution which he has to meet in his defence and there shall be nothing in the nature of a general cross-examination for the purpose of establishing the guilt of the accused.
(5) No oath shall be administered to the accused for the purposes of an examination under this section.”

It is, however, with sections 160 (1) and 161 (1) of the Code we are mostly concerned. They read-
“160. (1) If when the evidence referred to in section 158 and the examination referred to in section 159 have been taken and made or at any previous stage of the case the magistrate is of opinion that there is ground for presuming that the accused has committed an offence try able under this chapter, which such magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame a charge under his hand declaring with what offence the accused is charged and shall then proceed as hereinafter provided.”
“161. (1) If the magistrate is of opinion that the offence is one which having regard to section 160 he should try himself, the charge shall then be read and explained to the accused and he shall be asked whether he is guilty or has any defence to make.”
The question raised before us by Chief Rotimi Williams is, at what stage should the Magistrate charge the accused. According to section 160 of the Code, he argued, the Magistrate may continue to take evidence against an accused person until such time as he thinks a case has been made out against him; at the stage he makes up his mind about the accused he charges him. The submission is that the presumption of innocence must be present when an
accused person is charged and begins to stand his trial; but the procedure of taking prosecution evidence to a point at which, in the words of section 160 (1),
“The Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence”, whereupon the Magistrate shall frame a charge for the offence”.
whereupon the Magistrate shall frame a charge for the offence, means that, when the charge is framed the presumption of innocence is already gone, and that this violates the provisions of the fundamental right entrenched in section 20(4) of the Constitution of the Federation (supra).

Counsel further complained that it was unheard of in Nigeria for a Magistrate to draft a charge and that it was wrong in the instant case for the magistrate to have drafted the charge, as he had known all about the case from the witnesses who gave evidence for the prosecution. We find ourselves unable to agree with this view. We do not think; it is a sound objection to a procedure, that the Legislature of a Region has shown preference for a particular system of procedure, provided it is clear that such procedure or law does not administer, observe or enforce the observance of, any principle of law which is repugnant to natural justice, equity and good conscience. A procedure is not contrary to natural justice merely because it is foreign to English Law-See Scapetta v Lowenfeld 27 L.T.R. 509; Kano Native Authority v. Obiola 4F.S.C. 226; Bukar of Kaligari v. Bornu Native Authority 20 N .L.R. 159. In the last case, Bairamian, J. (as he then was), said::-

“It must be presumed that the court followed the right procedure It differs from the English procedure; but that is not enough for attacking it. ”

The procedure adopted in the present case as laid down in section 160 of the Procedure Code is not dissimilar with the “no case” decisions in English law, and these principles are laid down as a Practice Note by Parker, L.c.J., which is reported in [1962] 1 ALL E.R. 448. It is as follows ::-

“Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, this court has had on many occasions to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following considerations.

A submission that there is no case to answer may properly be made and upheld
(a) when there has been no evidence to prove an essential element in the alleged offence;

(b) When the evidence adduced by the prosecution has been so discredited as result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.”

Were satisfied that at the time the Magistrate drafted the charge he was not weighing the evidence before him; this he did after hearing the whole case. Up to that stage all the learned Magistrate was doing was making an enquiry, and this was so until the charge was framed by him. The procedure followed by the Magistrate is not unlike that provided by section 332 of the Criminal Procedure Ordinance (which was in force in the Northern Region before it was replaced there by the new Criminal Procedure Code, and is still in force in Lagos and other Regions). Under section 332 of the Criminal Procedure Ordinance, a Magistrate holding a preliminary enquiry may, in the course of it, turn it into a summary trial, subject of course to certain conditions, whereupon he may, under section 304 (2), “cause the charge to be reduced into writing, if this has not been already done,” and go through the procedure for a summary trial. That does not mean that the Magistrate has made up his mind to convict; it only means that he thinks it is a case suitable for summary trial and Which need not be committed to the High Court. The evidence heard up to that point shows that there is a prima facie case: but it may well be that further cross-examination of witnesses originally called, or of those, if any, called after the summary trial begins, or the evidence for the accused, may raise a reasonable doubt, in which case he will be acquitted.

We have given anxious consideration to the objection to the Magistrate being required to frame the charge in the Northern Region; we feel that this means no more than that the Magistrate is formulating what seems to him to be the appropriate charge for the offence which prima facie appears to have been committed, and it does not mean that the Magistrate has made up his mind that the accused person is guilty. During our research we have had occasion to refer to the power provided in the Criminal Procedure Ordinance for the trial court to alter or amend the charge before it which, when exercised, sometimes has the effect of re drafting the whole charge or information. The idea in the Northern Region is that the charge should be framed by the Magistrate instead of being left in the hands of lay prosecutors to frame.
The learned Attorney General, Northern Region, informed us that, on the Indian authorities, the Magistrate should frame the charge as early in the preliminary proceedings as possible. With that we agree; it is best that the charge be framed as soon as some evidence for the prosecution shows, directly, or circumstantially or inferentially, that there is a prima facie case of the commission of an offence.

We are not, in this appeal, deciding on the constitutionality of section 159 of the Criminal Procedure Code or of other provisions which were not acted under by the learned Magistrate; we may one day be called upon to do so when those provisions will receive our due consideration. It is enough in this appeal to say that the learned Magistrate did not act under such provisions.

The submission that the Magistrate, under the procedure he followed in this case, must have presumed the accused guilty when he framed the charge, in our view, is ill founded and we are satisfied that the provisions of section 21 (4) of the Constitution have not been infringed.

The appeal will therefore be dismissed.

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F.S.C.329/1962

Elijah Okezie Vs The Queen (1963)

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ADEMOLA, C.J.F. 

The appellant was in the High Court of the Eastern Region at Aba charged on an information containing two counts, namely obtaining goods by false pretences contra section 419 Criminal Code and stealing by agent contra section 390 (8) (b) of the Criminal Code. He was convicted on the charge of (first count), and the learned Judge did not proceed second count in respect of which he discharged him without an acquittal. This is an appeal against the conviction on the first count, which reads as follows-

“Statement of Offence-First Count
Obtaining goods by false pretences contra section 419 of the Criminal Code.

Particulars of Offence
Elijah Okezie, on the 27th day of February 1961, at Aba, in the province of Umuahia, with intent to defraud, obtained from Israel Nwabeke the sum of #315 by falsely pretending that you were in a position to secure employment for him as a teacher in the Eastern Ngwa Council, and that the said #315 was being demanded by the Eastern Ngwa County Council as a security against any loss or damage to the said Council’s property.”
Five grounds of appeal were filed, and in addition leave was sought and granted to argue two additional grounds. Only the two additional grounds of appeal and one original ground were, however, argued. They read as follows:
“(1) (additional). The learned trial Judge erred in law in convicting the appellant in respect of count 1 when the false representation contained in the particulars of the said count were not proved by the prosecution.
(2) (additional). The judgment of the learned trial Judge convicting the accused appellant is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
(3) (original). The learned trial Judge erred in law to have convicted the appellant on the first count under section 419 of the Criminal Code as there was material conflict between the indictment as laid and the evidence given.”
The first and third grounds were argued together.
It is, however, convenient to deal first with the second ground argued. Counsel, at the instance of the Court, sought leave to delete the words “weight of evidence” in that ground of appeal. In the light of Aladesuru v. The Queen, [1956] A.C. 49, it was pointed out that the words “weight of evidence” are not applicable in criminal appeals. This Court would like to stress the point that a criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case. In a civil appeal the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal it is that the verdict is unreasonable or cannot be supported having regard to the evidence: see the Federal Supreme Court Act, 1960, section 26 (1), and the Federal Supreme Court Rules, 1961, Order VII, Rule 2. It is clear that unless there is some evidence to support it, the verdict in a criminal case cannot stand. The other test is whether a reasonable tribunal or jury, if they appreciated the evidence rightly and applied the law appropriate to the case, could have returned the verdict. This is the light in which a criminal appeal on the facts should be argued and approached.

Arguing this ground of appeal, Counsel submitted that the finding cannot be supported by the evidence because one Mordi from whom the complainant borrowed a sum of #315 to satisfy the demand for #330 was not called by the Crown to give evidence; also that the third witness for the Crown, Ochieze A jaegbu, was punished by the learned Judge for perjuring himself. This is what the learned trial Judge said about this witness

“As regards the third prosecution witness, my impression about him is that he knew the truth but did not want to help the Court. He was therefore lying when he told the Court that it was the first prosecution witness who told him what to say. Even his demeanour in the Court showed that he was determined to mislead the Court.”

We are unable to accept the suggestion that the fact that Ochieze is a liar should affect the result of the case; his being a liar does not affect the credibility of the complainant and his wife. At best Ochieze should be disregarded. With regard to Mordi, we are of the opinion that the Crown was not bound to call him. If he lent money to the complainant that fact would certainly not have helped to prove that the complainant gave the money to appellant, or why he did. The other arguments on the evidence need not be gone into; it is sufficient to say that no case was made out that the verdict was unreasonable or could not be support having regard to the evidence. This ground of appeal must therefore fail.

We now come to grounds 1 and 3, which are substantially the same and were argued together. It was submitted by Counsel that the pretences alleged by the prosecution in the first count are two, namely (1) to get the complainant employment as a teacher, and (2) that the sum of #330 was demanded by the Eastern Ngwa County Council as a deposit against damage to the Council’s property, but that the learned Judge made no finding on first false pretence. It was submitted that for the reason that of the two false pretences alleged in the first count, a finding was made on one and not on the other, the appellant should have been discharged.

The relevant part of the judgment complained against is as follows:-
“I have to say that I am satisfied from the evidence before me that the accused obtained the sum of #315 from the first prosecution witness by falsely pretending he was receiving it as a deposit for the Council; that the Council never asked for such a deposit and that the accused had converted the money to his own use. I am also satisfied that the Council did not ask the accused to make the demand for security and also that the accused was not speaking the truth when he told the first prosecution witness that if he deposited the sum of #330 he would see him employed because the accused is not in a position to influence the District Officer or the Provincial Education Officer to give approval for the first prosecution witness to be employed since the first prosecution witness could not be so employed without their approval. I have therefore no difficulty in finding the accused guilty of the charge preferred against him in the first count.”

The question is, does the finding of the learned Judge amount to this: that both the false pretences alleged operated to induce the witness to give the money (#315), or does it mean that it was the false pretence that that money (#330) was demanded by the Council which operated on the mind of the witness, although the pretence about securing employment as a teacher was also made

The Court accepts the submission made by Counsel for the appellant that the finding of the learned Judge is that it was the false pretence that #330 was demanded by the Ngwa Council which induced the witness to give the money, and the appeal will be considered on that basis.

Now, as the count alleges two false pretences, but the finding covers one only, can the conviction stand For the appellant it is argued that the two false pretences are so intertwined in the count that they stand or fall together; whilst the argument for the Crown is that the two false pretences are independent and the finding of one sustains the conviction.
Mr. Kayode, for the appellant, relies on R. v. Wickham, 10 Ad. and El. 34, referred to at page 743, in para. 1972 of Archbold, (34th Ed.). That was a case where the prisoner pretended to another that he was a captain in the East India Company’s service and that a promissory note which he produced was for a valuable security, by means of which false pretences, he fraudulently obtained money from that other; whereas the prisoner was not a captain and the promissory note he gave was not a valuable security; it was held that as it did not appear but that the note was prisoner’s own promissory note, or that he knew it was worthless the falsification was not sufficient; and, as the two pretences were to be taken together, that the conviction was bad.

We have given consideration to that case and are of the view that it is not on all fours with the present one. R. v. Wickham was a case where the two pretences alleged were to be taken together but one was not proved to have been a false pretence. In the case before us, the two pretences alleged were distinct and divisible; the Judge’s finding is in effect that both were proved to have been false, but one of them was the particular pretence which operated on the mind of the witness; so it was competent to the Judge to convict the appellant on the count, as appears clearly from R. v. Lince, 12 Cox 451.

The charge against Lince was that he falsely pretended to one J.H. that he then lived at and was then the landlord of a certain beerhouse, by means of which false pretences he obtained from J.H a quantity of potatoes with intent to defraud.

According to the evidence of J. H., Lince told him that he was the nephew of a man then in the prosecutor’s employ-which was true- and also that he lived at the beerhouse-which was false-though he did not say he was the landlord of that house; and that when he sent the potatoes to Lince his mind was influenced by the belief that Lince was his servant’s nephew, and also by the statement that he lived at the beerhouse. The prisoner did not say he was the landlord of the beerhouse, but still J.H. believed him to be occupier of that house. After conviction, the Chairman of the Sessions reserved two points, which were considered by a bench of five, and which sufficiently appear from the judgment of Bovill, C J. It is a very important judgment, and is quoted here in full:-

“There were two points contended for by the prisoners counsel at the trial, and reserved for the consideration of this court. The first point was, whether the charge could be sustained, the indictment stating the false pretence to be, that “the prisoner then lived at and was then the landlord of a certain beerhouse,” when the prisoner had never stated that he was the landlord of the beerhouse, but only that he lived there. It is clearly sufficient to sustain an indictment to prove part only of the false pretences charged; and the question here is whether the false pretence charged, vis., that the prisoner “then lived at and was the landlord of a certain beerhouse,” is a statement of two facts which are false.

It seems to me that it is, and that they may be divided; and that if it is proved to be false as to one, the other need not be proved. The second point reserved was, whether a charge of obtaining goods by false pretences can be sustained when the prosecutor admits that another circumstance influenced his mind in parting with his goods, as well as the alleged false pretence.

It has been long settled that it is immaterial that the prosecutor was influenced by other circumstances than the false pretence charged. If that were not so, an indictment of false pretences could scarcely ever be maintained, as a tradesman is generally more or less influenced by the profit he expects to make upon the transaction.

The case of Reg. v. Hewgill (Dears. 315) is an authority in support of this view. I therefore think this conviction ought to be affirmed.”
That makes it plain that the conviction under appeal was valid and sound, and that grounds (1) and (3) must also fail.
The appeal is therefore dismissed.

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Other Citation: (1963) LCN/1085(SC)

Abimbola George And Ors V. Dominion Flour Mills Ltd (1963)

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BAIRAMIAN, E.J.

The defendants have appealed from the judgment of Onyeama, J. in the Lagos Suit No. 338 of 1958 on a number of grounds, but their learned counsel, Chief H. O. Davies, confined his arguments to the following two:-

(1) The learned trial judge erred in law in refusing the defendants leave to amend their pleadings so as to allege illegality when the illegality complained of became apparent from the evidence before the court.

(2) (Numbered 3 in the notice of appeal as amended). The learned trial Judge erred in law in failing to take notice and give consideration to the question of illegality which appeared from the evidence brought before the court.

The grounds indicate that the Defence did not allege facts, or raise a plea of illegality, but Chief Davies relies on a number of cases, from which it will be enough to quote a passage from [1900] 2 Q.B., 214, at p. 220 where Kennedy, J., quoted from previous judgments, as follows:
“Ex turpi causa non oritur actio. This old and well known legal maxim is founded in good sense and expresses a clear and well recognised legal principle, which is not confined to indictable offences.

No Court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality, the court ought not to assist him.”

That came from the judgment of Lindley, L.J. in Scott v. Brown, Doering, McNab & Co., [1892] 2 Q.B. 724. It is followed by this passage from Lord [Mansfield’s judgment in Holman v. Johnson, (1775) Cowp. 341 (98 Eng. R., 1120):
“If from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.”

In Gedge, etc., the marine policy sued upon was illegal in view of the express provision in the Marine Insurance Act, 1745, section 1, that an assurance like that sort of policy “shall be null and void to all intents and purposes”; so, it made no difference that the defendants did not plead illegality.

They did, however, plead that the persons on whose behalf the plaintiffs effected the policy had no insurable interest in the ship, and the policy gave itself away as a wagering contract by one of its terms, that in the event of loss:-
“It is hereby agreed that this policy shall be deemed a full and sufficient proof of interest.”

Lindley, L.J. is described by Viscount Haldane, L.C. in the House of Lords’ case cited by Mr Adewale, the learned counsel for the plaintiffs -North Western Salt Co. Ltd. v. Electrolytic Alkali Co. Ltd., (1914) A.C., 461, at p. 473, as “one of the most cautious and accurate judges of our time”, and it should be noted that in the passage from the judgment of Lindley, L.J quoted in Gedge etc., there are these “ifs”:-
“If the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality if the evidence adduced by the plaintiff proves the illegality.”

Those conditions may not be present in a given case. No doubt if the contract on which the plaintiff sues is ex facie illegal, the courts will decline to enforce it whether the illegality is pleaded or not: for the courts administer the law of the land, and will not help a plaintiff who breaks it.

Where, however, the contract is not ex facie illegal and the question of illegality depends upon the surrounding circumstances the above House of Lords case shows that, in the words of the head note to it, “as a general rule, the court will not entertain the question unless it is raised by the pleadings”. Those in the case in hand will now be summarised.

The plaintiffs are exporters of flour from Canada, and the defendant’s importers in Lagos. The plaintiffs had Eastwood and Sharples Ltd. as their agents. There were transactions between 1956 and 1958, and the plaintiffs sued for the balance due to them on flour sold to the defendants, with accounts annexed to the statement of claim.

The flour market deteriorated in 1957 in Nigeria; the defendants had a large quantity of flour in store which began deteriorating, and the plaintiffs’ agent advised the defendants to sell in time. The Defence is that they sold accordingly and suffered loss, which the plaintiffs should re-imburse; the defendants denied owing the amount claimed and made a counter claim, which the plaintiffs denied. The issues were simple on which the parties went to trial. The Defence did not allege any facts which raised a case of illegality, and did not plead illegality.

Nevertheless some questions were asked in the cross-examination of the plaintiffs’ witness which were directed to show illegality; he answered as follows:
“I received no licences directly; we paid for no licences but I believe Abimbola George and Sons paid for some licences from small importers; we did not buy the licences but we made allowances to Abimbola George at his request for licences he had bought; we were anxious to get as much flour into Nigeria as possible; I produce some of the order forms signed by the defendant; admitted and marked Exhibit 10: (five forms) in none of Exhibit 10 was the defendant’s licence quoted; the defendant was not our agent; we do not know any of the people whose licences are quoted on Exhibit 10; they must have been the defendants’ distributors”……….

The witness had explained in chief that for the sake of exchange control flour could not be imported from Canada, a dollar area, except under licence, but too many licences were issued, and the market became glutted; the defendant had a large stock of flour; but neither the plaintiffs nor their agents had agreed to bear the defendants’ loss.

That evidence in chief was doubtless meant to negative the counterclaim for loss: the questions in cross-examination were rather designed to show that the plaintiffs’ agents took orders from the defendants on licences in the names of other persons, which was not relevant to any issue on the pleadings. The aim of eliciting facts of illegality became plain when the witness for the defendants gave evidence, as these portions show:

“we ordered in quantities of two tons and five tons; Eastwood and Sharples told us they could not ship on such small indents………… when we got the licences we took them to the office of the import agents, in this case, Eastwood and Sharples; we used to take our licences to them but as our quota was small they used to require us to go round and collect licences from other- flour dealers so as to make up a worth-while shipment they said they would pay us 2s-6d commission on every bag on each licence we got; we collected several licences; when we handed the licences over to Eastwood and Sharples they would make out an order sheet which they would require us to sign ……..the owner of a licence is entitled to order the quota on his licence.”

The crucial part follows; the notes read:-
“Question. In spite of this fact Eastwood and Sharples and you are advancing and buying licences from the holders

Answer: Yes.”

Whereupon the learned judge observed:-

“Court: In so far as this question and answer raise the question of illegality they will be disregarded.”
That was, of course, because there was no issue of illegality to make the evidence relevant. The notes go on.:-

“Davies: Under Order 33 I apply to amend the Statement of defence so as to plead illegality, agency and plaintiff shipping when told to stop.
MacFarlan: The Court would deal with illegality if it is apparent; not for defence to wait and hear the evidence and then to decide what their defence is going to be.    .

Court: I refuse leave to amend at this stage. If there was a genuine issue of illegality, I do not doubt it would have been taken at the outset when pleadings were settled. To plead agency now would completely alter the Statement of Defence which admits paragraphs 1, 2, 3, 4 and 8 of the Statement of Claim. This admission negatives any question of agency and the plaintiff has prosecuted his case on that basis.”
Counsel for the plaintiffs apparently thought it was prudent to ask some questions in cross-examination; the answers were:-

“When the flour is received each person whose licence had been used would come to my store, sell his quota and hand me the c.i.f. price with handling and transport charges; he takes whatever profit is made; when the market fell these traders failed to turn up to clear their quota. ”

The above excerpts were referred to as bearing on the grounds of appeal. The learned judge wrote this in his judgment:
“I intimated that I would not consider the evidence as illegality had not been specifically pleaded. An application was then made to amend the statement of defence so that illegality might be made an issue in the case. I refused the application because I considered it would unduly delay the trial and that to allow it at this stage would unfairly prejudice the plaintiffs who had concluded their case. I considered also that if there had been any bona fides in the defence of illegality, the facts on which it was founded would certainly have been pleaded in the statement of defence at the outset.”

The first ground of appeal complains of the refusal to amend, and relies on Order 33 of the local rules, together with Ambrosini v. Allen 8 N.L.R. 24 and Shomade v. Ogunbiyi, 3 W.A.C.A., 48, as examples of cases in which Order 33 was used. The decision in Ambrosini was reversed in the Privy Council: 9 N.L.R. 8; in Shomade one of the judges of appeal disagreed on the propriety of amendment. It is all a question of using the discretionary power to give leave to amend in the light of the paramount consideration that the aim should be to have a fair trial.

The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard; but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met; which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. ‘The plaintiff will, and indeed must, confine his evidence to those issues: but the cardinal point is the avoidance of surprise. That is why the defendant is expected to raise in his Defence any facts and pleas which make, according to the case he intends to present at the trial, the claim void or unenforceable. Illegality is such a plea, and the facts which make up the plea should be alleged in the Defence together with a plea of illegality. A contract may be illegal either by the common law or under a statute; in the latter case it is highly desirable to cite the statutory provision. That will give the plaintiff notice of the case to be met, and he will prepare himself with all the evidence and arguments that may bear on illegality. Then both sides will be able to present their evidence and arguments of law in full, and the trial court will have all the circumstances and be able to adjudicate on the issue of illegality.
That is made clear in the judgment of Lord Moulton in the House of Lords case at p. 476, where his Lordship said this:-
“The plaintiffs have received no notice that the point will be raised, and are presumably not prepared with the necessary evidence. Even if they are in a position to call the evidence they are not at liberty to do so, because they are only entitled to call evidence on the issues raised by the pleadings. The facts before the Court at the end of the case are therefore only a casual selection from the surrounding circumstances, and the Court has no longer the right to treat them as properly and fully representing those surrounding circumstances so as to Justify its pronouncing on their true effect upon the contract.”

In the present case there was no plea or allegation of facts of illegality, or reference to the statutory provision which made the transactions or any of them illegal. The request for leave to amend the Defence was made after the plaintiff’s case was closed. If leave to amend were given, the maxim of audi alteram partem would not have been observed; so the learned trial judge had no choice but to refuse leave to amend. In North Western Salt Co. Ltd. etc. (the House of Lords case cited (supra) the trial judge, Scutton, J., refused leave to amend in the course of the plaintiffs’ case on the ground that it would be unfair to them to allow such an amendment to be made when the trial had already commenced, and the reasonableness of his refusal was never questioned.

There is a passage in the judgment of Lord Sumner in that case which is in point in this appeal: it is this:
“Much of the oral evidence was strictly immaterial since, though obtained in cross-examination, it went to no issue. It may, therefore, be disregarded.”
Onyeama, J., having rightly refused leave to add the plea of illegality to the Defence, was right in disregarding all evidence bearing on illegality, whether in the cross-examination of the plaintiffs’ witness or in the evidence for the defence: for any such evidence had no bearing on the issues for adjudication.

The defendants are, however, entitled to rely on the passage from the judgment of Lindley, L.J., and show that the evidence adduced by the plaintiffs to prove their case proves illegality. They argue that the plaintiffs transgressed Clause 4 of the Order in Council No. 50 of 1950 made under the Customs Ordinance and published at p. 399 of the 1950 Supplement of the Laws of Nigeria. The defendants are entitled to refer the court to legislation; but as they did not cite the statutory provision in the court below, they should have cited it in their grounds of appeal.

That Clause 4 will be quoted to the extent that may be relevant here; it provides:-
“(1) no goods may be imported into Nigeria except under the authority of a licence granted by the appropriate authority and subject to such terms and conditions as may be contained therein.
(2) A licence shall be either:-
(a) (irrelevant)
(b) a specific licence granted to an importer authorising him to import from a territory or territories specified in the licence goods of a description and quantity so specified; or
(c) a special licence granted to an importer authorising him to import specific goods in special circumstances. “(etc. (irrelevant).)

Chief Davies has argued that licences were not transferable: there was, he said, a condition to that effect in the licences which were issued. The particular licences involved in this case were not produced in evidence in the court below, and it is not known whether there was any such condition attached to them. Be it added, however, that as the aim of producing them would have been to prove illegality, which was not an issue on the pleadings, the trial judge would have been entitled to disregard them.

I do not propose to discuss the defendants’ submission that the evidence in the notes on which they rely- proves illegality. Not that I assent to it: but, I have in mind what Lindley, L.J. said: “if the illegality is duly brought to the notice of the court”. Confining myself to that condition, I have no doubt that illegality was not duly brought to the notice of the court in this case, and am of opinion that the House of Lords case is conclusive in favour of the plaintiffs.

In this case, the defendants have relied solely on evidence which the learned trial judge rightly disregarded. There is no suggestion that the evidence which the plaintiffs adduced to prove their claim or to negative the counterclaim proved illegality on their part; in my judgment the grounds of appeal must fail, and I would dismiss the appeal.

The following order is proposed:
“The appeal of the defendants from the judgment given on August 12th, 1960 in Suit No. 338 of 1958 of the High Court of Lagos is hereby dismissed with thirty-three guineas costs to the plaintiffs.”

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F.S.C.31/1962