George C. Ashibuogwu Vs Attorney General Bendel State And Anor (1972) LLJR-SC

George C. Ashibuogwu Vs Attorney General Bendel State And Anor (1972)

LawGlobal-Hub Lead Judgment Report

K.ESO, JSC.

Before D. O. Ikomi, J., the following facts came to light. The Plaintiff, who is now the Appellant in this Court, as he was in the Court of Appeal, and who would hereinafter be referred to indiscriminately as the Appellant or the Plaintiff got a letter dated

1st November 1974 from the Ministry of Works and Transport, signed by one Mrs. J. N. Nsolo “for Permanent Secretary” saying-

“Ashibuogwu Design Associates,

Chartered Architects & Planning Consultants,

12, Kernel Street, Sun Love, P.O. Box 1025,

Lagos.

Dear Sir,

Proposed Headquarters Buildings for Niger Agencies International Limited

I am directed to inform you that you have been appointed Architectural Consultants for the design of the above headquarters buildings.

2. Could you please contact the Chairman/Managing Director of the Niger Agencies International Ltd. at Sapele Road for all the necessary briefing.

3. Your remuneration will be in accordance with N. I. A. Conditions of Engagement and Scale of Charges.”

(See Exhibit 2) The Plaintiff replied this letter on 11th November, 1974 (Exhibit3) wherein he said-

“Permanent Secretary, Ministry of Works & Transport, Building Division, Benin City. Attention:

Chief Architect

Dear Sir,

Proposed Headquarters Buildings for Niger Agencies International Ltd.

We thank you for your letter dated 1st November, 1974, which reached us on 9th November 1974. We have pleasure in accepting the commission for the de-sign of the above mentioned buildings and we have noted that our fees shall be in accordance with the N. I. A. conditions of Engagement and Scale of professional fees. Yours faithfully,

(SGD.????????? (GEORGE C. ASHIBUOGWU)”

On the same day, that is 11th November, he wrote to the Managing Director of Niger Agencies International Ltd. saying (Exhibit 4) –

“Dear Sir,

Proposed Headquarters Buildings

We have been commissioned by the Midwest State Government to design your proposed headquarters buildings to be sited in Benin City, and have been directed to approach you for all necessary briefing. The undersigned will be calling on you in Benin on Tuesday 19th November 1974 for further discussions and collection of your brief and the site plan. Our fees shall be in accordance with the Nigerian Institute of Architects Conditions of Engagement and Scale of Professional Fees.

(Sgd.?????? GEORGE C. ASHIBUOGWU)

The plaintiff pleaded all these facts in his Statement of Claim and as I intend to dwell on the pleadings later in this judgment I would refer to pertinent paragraphs thereof. Let us take a look at this stage at paragraphs 1 – 7 of the Statement of Claim –

‘‘AMENDED STATEMENT OF CLAIM

1. The Plaintiff is an Architect registered under the Laws of the Federal Republic of Nigeria with the Architects Registration Council of Nigeria, the Plaintiff carries on business in the firm names as ASHIBUOGWU DESIGN ASSOCIATES of No. 12 Kerael Street, Lagos, Lagos State.

2. The first Defendant, the Attorney-General of Bendel State is sued as representative for and on behalf of the Bendel State Ministry of Works and Transport who shall herein be referred to as the Defendant.

3. The Plaintiff performs his duties as an Architect strictly in accordance with the Nigeria Institute of Architects “Conditions of Engagement and Scale of Professional Fees” for the time being in force. At the trial of this action the Plaintiff shall tender a certified true copy of the said Conditions of Engagement and Scale of Fees in force at the time material to this action.

4. On or about the 1st day of November, 1974 the Bendel State Ministry of Works and Transport by a letter Ref. No. WB (H) Vol./1074 dated 1st November, 1974, appointed the Plaintiff in the Plaintiff’s firm name, Architectural Consultants for the design of the proposed Headquarters Buildings for Niger Agencies International Limited.

5. The letter aforesaid stated that the Plaintiff’s remuneration would be in accordance with Niger Institute of Architects (N. I. A.) Conditions of Engagement and Scale of Charge. The Plaintiff was also directed to contact the said Niger Agencies for necessary briefings, the said letter will be founded at the trial of this action.

6. By letter Ref. ADA.39/2/74, the Plaintiff accepted this appointment and/or offer wherein the Plaintiff also agreed that his fees would be in accordance with the Nigeria Institute of Architects (N.I.A.) Conditions of Engagement and Scale of Charge.

7. By a letter Ref. No. BDA/3/74 dated 11th November, 1974 the Plaintiff arranged a meeting with the Managing Director of Niger Agencies pursuant to the requirements as directed by the Ministry of Works and Transport letter of 1st November, 1974 (supra). The said letter or a copy thereof will be founded at the trial of this action.”

The meeting referred to in Exhibit 4 (copied above) was held; following which, the Niger Agencies (International) Nig. Ltd. hereinafter referred to as NAIL reacted by sending a copy of their memorandum on the proposed building. The memorandum is rather lengthy and I do not intend to reproduce it herein but pertinent portions thereof disclose the aim for the proposed building the necessity for it as a result of the geographical position of Benin, the existence therein of an Airport. The memorandum concluded-

“In aid of the spirit purpose and function of the Centre, it is hoped that all the economic ministries of the State Government will be relocated at the ITBC. We believed that a Centre as stated above will be a unique attraction to foreign governments and we feel certain that before long, their commercial attaches, trade missions and associations will seek to be allocated some space. We feel too that agencies of State Governments and such Federal organisations as the Nigerian Produce Marketing Company would benefit themselves and the Centre by maintaining some presence there. It is proposed to retain offices for practising lawyers, accountants, auditors, estate agents and variety of private companies engaged in world commerce.’’

The reaction of the Plaintiff to this is important and it is contained in Exhibit 6 which reads –

“Proposed Headquarters Building We acknowledge receipt of your letter dated 19th November, 1974, together with your memorandum on the proposed International Trade and Business Centre. With regard to the date for the next meeting in Benin City for further discussions on the project, it is regretted that we shall be unable to be represented at the meeting on the 16th December as we are already committed to another meeting in Lagos on that date. This fact was not known to our Arc. Ashibuogwu at the time he suggested the date at the meeting in Benin City. We are suggesting postponement of the meeting to the 20th December, 1974, or 27th December, 1974 whichever is more suitable to you. Please let us have your confirmation of either date in good time. We regret any inconveniences that change may cause you. We have studied your memorandum and we are forwarding with this letter our appraisal of the scheme and our suggested approach. This is to be discussed at the meeting to be held later this month. We further suggest that the following matters should be included in the agenda for the meeting.

1. Financial limits of the scheme.

2. Client’s representative with authority to deal with day-to-day decisions during the progress of the scheme.

3. Recommendation of Specialists whose services may have to be retained on the project.

4. Land acquisition if necessary.

5. Compliance with Statutory Regulations.

6. Appointment of consultants.

7. Draft to programme of operations to be agreed to and

8. General matters.

Yours faithfully,

ASHIBUOGWU DESIGN ASSOCIATES

(Sgd?????? GEORGE C. ASHIBUOGWU).

A meeting was held by the Plaintiff, the Secretary to the Military Government and NAIL and the letter which was written by the Plaintiff after the meeting states inter alia –

“We have also noted, following your provisional approval and acceptance of the scheme as designed at a later meeting in your office, that you want us to proceed with the final design of the other sections of the scheme while efforts are made to secure the services of a reputable firm of estate agents to conduct a marketability study of these sections, sell the accommodation provided and organise the financing of part or the whole of the scheme if possible. We are now consulting a number of local and foreign estate agents on this regard and we shall inform you of developments in due course. With regard to the form of agreement sent to you for your signature, you may seek the advice of the Ministry of Works and Transport on its adequacy. However, you will be required to enter into separate agreements with the other consultants on the scope of work, mode and time of payment of fees among other things. We suppose that the State Ministry of Works can furnish a specimen of agreement used on government projects. We take this opportunity to give notice of our intention to request more payment on account of part of our fees to enable us mobilize to meet the exigency of the first phase of the project -the ministry block.

Yours faithfully,

ASHIBUOGWU DESIGN ASSOCIATES

I have italicized portions of the above letter for their importance in –

1. Instructions as to finalising the design were to proceed from NAIL to the Plaintiff.

2. The Ministry of Works was expected by the Plaintiff to advise NAIL on the adequacy of the agreement to be signed between the Plaintiff and NAIL. [The agreement was certainly not to be signed by the Government].

3. NAIL and not government was expected to enter into separate agreements with other consultants on the scope of work, mode and time of payment of fees.

4. The Ministry of Works was expected to furnish a specimen of agreements used on government projects.

5. Request for funds for mobilisation was made to NAIL.

As I have said, this letter was written by the Plaintiff on 7th January 1975. On that same day, he wrote to the Ministry [attention of Mrs. Nsolo (by the way, Mrs. Nsolo was the Ministry’s Chief Architect) saying –

“Proposed Headquarters Buildings Complex for Niger Agencies (International) Nigeria Ltd. Since our last correspondence in November, 1974, we have had a number of meetings with our clients to clarify the scope of the project and to prepare the brief for the design programme. Recently, we were able to produce a preliminary sketch design of the scheme which was presented to the clients and discussed at a meeting with the Secretary to the Military Government on Saturday, 4th January, 1975. We are pleased to state that our scheme was provisionally approved and accepted by the clients and working drawings have been ordered on a section of the Project which was designed to make possible the execution of the whole project in three phases or in one if so desired.”

Without any doubt, the Plaintiff accepted NAIL as his clients. For so he said in the letter. The letter to Mrs. Nsolo continued –

“We are presuming that there is a standard form of agreement in your ministry which covers all the consultants’ fees including the Architects. If one exists, we would like to have a copy of it for study and possible adoption for this project. It is our view however, that each consultant should enter into a separate agreement with the client (obviously NAIL) to enable writing into the agreement (obviously with NAIL) details and scope of work to be performed by the consultant. We are of the opinion that there should be some arrangement for consultation with your ministry as professional advisers to our clients and this matter was mentioned at the meeting with the Secretary to the Military Government and our clients.”

So, what Plaintiff wanted from the Ministry, as of that date was consultation as professional advisers to his clients – NAIL. Let us read further. The letter said –

“In this regard, we are suggesting a meeting with you in Benin City to discuss and agree on channels of consultation, fields of co-operation and other procedural arrangements. We suggest any date from 20th to 25th January, 1975, and await your confirmation of one of the dates. Our clients (must be NAIL) indicated their desire to invite international tenders for the projects with contract-finance arrangement written into it. We are wondering if your ministry has any laid down procedure for this and if your could furnish us with the information for our guidance in drafting the prequalification notice due to go to press early in February, 1975.

Yours faithfully,

ASHIBUOGWU DESIGN ASSOCIATES”

(Again, emphasis mine) This letter was copied to NAIL. Another meeting was held on 22nd January and the following, from the minutes is of great importance –

“Matters Discussed included:

i. form of agreement between the clients and each of the consultants and mode of payment of professional fees to the consultants.

ii. Collaboration between the Ministry of Works and the Consultants.

iii. Comments by the Ministry of Works on the preliminary sketch design of the scheme presented by the Architects.”

Among the decisions taken was the following –

“Professional fee invoices are to be submitted to the Architect (that is the Plaintiff) for onward transmission to the client (that is NAIL and not Government) who (that is NAIL) will pay directly to the consultants.”

Now, let us take a look again at the pleadings –

“The Plaintiff avers that a meeting for briefing was indeed held, pursuant to which the Plaintiff was supplied with a memorandum, at the instruction of the Bendel State Ministry of Works and Transport for the proposed building and the Plaintiff was requested to proceed with the design of the said building in accordance with the requirements as contained in the said memorandum. The said memorandum dated 19/11/74 or a copy thereof will be tendered and re-lied upon at the trial of this action.”

“The Plaintiff shall found upon the Plaintiff’s letter Ref. No. 39/24/75 of 7th January, 1974 as well as the said Sketch Design, Report and cost estimates – or their copies thereto.”

I have already reproduced portions of this letter upon which the Plaintiff pleaded he would found his action. The Plaintiff claimed payment of the first interim fee not from Government but from NAIL. Exhibit 14 is clear on this. It reads –

“Proposed Headquarters Buildings, Benin City. We refer to the Wilson/Ashibuogwu discussions on 14th March 1975, at your office and wonder why we have not heard from you as agreed in connection with the International Trade and Business Centre project. Without prejudice to any decisions or changes being contemplated on the project, we request the payment of our first interim fee which became due on submission of our first sketch design last January 1975. We look forward to receiving you cheque for N322,679.00 by return mail.”

This was on 1st April 1975. Now, seven months later, Plaintiff not having been paid, directed his claim to the Government. He said –

“Permanent Secretary, Ministry of Works & Transport, Building Division, Benin City. Attention: Mrs. J. N. Nsolo – Chief Architect Dear Sir, Proposed Headquarters Building for Niger Agencies Limited Benin City first Interim Fee Account We forward herewith copies of correspondent between our firm and Niger Agencies Limited on the question of fees now due to us and other consultants engaged on the project. As we were commissioned by you for the project we are directing our demand for our fees to you. The total sum involved is as follows:

We shall be grateful for your cheque for the above sum.” It is upon these facts that the Plaintiff has founded his claim seeking –

(a) A declaration that the Plaintiff is entitled to be paid by the defendant Ministry the sum of N271,195.40K being professional fees due and payable to the Plaintiff from the Ministry for the services rendered by the Plaintiff at their request.

(b) An Order directing the Ministry to pay the Plaintiff the said sum of N 271,195.40K and interest at the rate of 5% per annum from the date of filing this action to date of judgment and thereafter at the rate of 6% per annum until payment.” The learned trial Judge, D. O. Ikomi J., having taken evidence, went painstakingly into all the facts.

He concluded-

“From the evidence before me, I am satisfied and I hold that Exhibit 2 did not make the Defendant a principal or agent in the transaction under consideration. From the evidence before me, it is abundantly clear that the Plaintiff dealt directly with NAIL. Both parties held meetings to the exclusion of the Defendant. Both parties wrote directly to each other several times to the exclusion of the Defendant. It is conceded that in some cases letters were written, or copied, to the Defendant who introduced the plaintiff to NAIL. As was rightly pointed out by learned counsel for the Defendant, in most of the Exhibits, the Plaintiff referred to NAIL as its client.”

“From all that I have said above it is clear and I am so satisfied and also agree with the submission of learned counsel for the Defendant which is to the effect that after Exhibit issued plaintiff started dealing with NAIL as its client and the Ministry of Works and Transport was completely cut off. The evidence in support of this submission is overwhelming. I accordingly hold and find as a fact that the plaintiff dealt directly with NAIL as its client throughout after Exhibit 2 had been issued. Having so held and having regard to the definition of principal and agent reproduced earlier in this judgment, it is manifestly clear that the defendant could not have been a principal or an agent.”

“Before concluding this judgment there is one striking aspect of this case which I must mention. It touches on the inconsistency of the Plaintiff in so far as the question of the payment for the project carried out is concerned. In Exhibit 17, dated 22nd May 1975 and written by the Plaintiff to the Chairman/Managing Director of NAIL he said inter alia as follows:-

“We do not see how, within the limits of our knowledgeability government should be held responsible for the size of the project and payment of our fees.”

All we are saying now is that our fees are now long overdue for payment for services rendered and we expect your cheque for the sum due rather urgently. The above extract speaks for itself and needs no elaboration. Surprisingly, six months later the Plaintiff shifted ground by writing to the Permanent Secretary Ministry of Works and Transport as follows:

“As we were commissioned by you for the project we are directing our demand for our fee to you. We shall be grateful for your cheque for the above sum.”

(See Exhibit 15) Clearly Exhibits 15 and 17 are inconsistent. The plaintiff cannot blow hot and cold. He cannot in one breath absolve Government from the payment of its fees holding NAIL responsible only 6 months later to in another breath turn round and hold Government liable for the same fees.” Finally the learned trial Judge said –

“From my assessment of the evidence before me, it will be wrong to say that the plaintiff did not know what he was doing. He clearly did, it was when he saw that NAIL was not forthcoming in respect of the payment of the fees that in desperation, he turned to Government, who clearly had nothing to do with the payment of the fees. The approach to Government for fees was an afterthought. It would have been a different matter if right from the start the plaintiff had demanded his fees from Government. From the evidence before me I find as a fact that the Defendant was neither a principal nor agent in so far as the project under consideration is concerned. I hold that the Defendant is no way liable to the Plaintiff for the fees due on the project under consideration. From the evidence before me I hold that NAIL, (the owner of the proposed project) was master of the situation at all times and there was no question of the Defendant being its agent. As earlier pointed out NAIL was dealing directly with the Plaintiff all along. Of course, the question of the Defendant being principal does not arise. I hold the view that, from the evidence before me, if anyone is liable at all it is NAIL that plaintiff has to look up to for payment of its fees and that was what it did rightly in my view, as per Exhibit 17.”

The plaintiff was dissatisfied with this judgment and he appealed to the Court of Appeal, Coram Omoigbrai Eboh, Ete and Ikwechegh, JJCA., with which Eboh and Ete JJCA. concurred, the court of Appeal held –

“The Brief of argument of appellant takes the line that the Exhibit 2 was all the contract – the offer part of it, and that having been accepted in the Exhibit 3, there was nothing else left to be done. This is an inaccurate view. The overview of the situation lies as I have shown in a dutiful examination of Exhibits 2,3,4,5,6,7,9,10,11 and 12. All the other correspondences only relate to the efforts to realise the payment that was sought by the appellant. It is not important in my opinion that an offer of N 50,000.00 was made to the appellant by a Commissioner on behalf of the Government. That fact cannot be rested upon to found the liability of the respondent under this contract of service. The correspondences, the meetings, and the decisions reached, and the whole circumstances of this event must be considered together in order to search out who are the true and real parties in the contract of service. It cannot be criticised, in my view, that the learned judge of trial had concluded that the respondent was neither the principal nor agent in this contractual relationship. I think the judge was correct. The appellant was not at any time in doubt or in error as to who his employer was, and that NAIL was that employer. If the NAIL be dead now, can he look to the Ministry of Works for payment? The appellant addressed letters to Mrs. Nsolo about this matter in the effort to get her ensure payment. See Exhibits 15 and 16, but these did not help matters. She could introduce the appellant to NAIL which employed him, but she cannot easily get the Ministry of Works to pay the debts left by NAIL.” The Plaintiff still dissatisfied with the judgment of the Court of Appeal has appealed to this Court. The grounds of appeal were based mainly on misdirection by the Court of Appeal as to the law of Agency and the liability of Principal – disclosed or undisclosed – and Agent in that law. Learned counsel for the Appellant filed a brief wherein he stated the matters for determination by this Court as follows –

MATTERS FOR DETERMINATION BY THE SUPREME COURT

1. Was Exhibit 2 a letter of appointment/offer or was it a mere letter of introduction?

2. Was it right for the Court of Appeal to have confirmed the decision of the trial judge that the defendant was neither principal nor agent in the transaction where the evidence before the court was that:

(a) Exhibit 2 was issued by the Respondent whose sole witness in his evidence testified that the Respondent acted as an agent in appointing the appellant.

(b) The Respondent in his brief had submitted that the respondent could be regarded as an agent of a disclosed principal

3. Was the Court of Appeal right in failing to examine the liability of the respondent who, in issuing Exhibit 2 did not expressly say that he was acting as an agent for NAIL so as to exclude his liability as principal?

4. Does the fact that the appellant thought at all times that NAIL was employer shift the liability of the respondent, who issued Exhibit 2 without express exclusion of liability on his part, and who at no time repudiated liability and even offered the appellant N50,000.00 in settlement of his claim?

5. Was the Court of Appeal right when it failed to consider at all the various errors of law committed by the trial judge as contained in grounds 2,3,4,5 and 6 of the additional grounds of appeal which were dealt with extensively in the appellant’s brief, particularly where the errors were directly responsible for the trial judge’s wrong conclusion”

Learned counsel referred to the letters, which I have already copied out in this judgement, and submitted that Mrs. Nsolo (who incidentally was Appellant’s class-mate) acted on behalf of the Permanent Secretary and, a fortiori, the Respondents were liable for her action. Counsel however dwelt mainly on Exhibits 2,3, and 4 and urged that the Respondents appointed the Appellant. Reference by the Appellant to NAIL as his client, counsel submitted, was just to indicate the beneficiary of the contract. The Appellant, learned counsel urged would not have executed the job but for Exhibit 2. Then learned counsel treated us to a dissertation on the elementary principle of “offer’, “acceptance” and “condition” in the law of contract,and concluded that the error of the Court of Appeal was on the emphasis placed by the Court on the role of Mrs. Nsolo. One may ask what this emphasis was. In the court of trial, the learned trial judge made no force about the relationship of Mrs. Nsolo and the Plaintiff. However, in the Court of Appeal, the Court said –

“The perspective will be helped when it is brought out that this situation arose from doings of all parties concerned in the year 1974. The times then were vastly different from today under this Military Regime. In 1974, it was very important consideration who was connected with whom, and in that perspective it was a very advantageous relationship that the appellant was a classmate of a Mrs. Nsolo, Chief Archetect in the Ministry of Works, Benin City, and who was in a position to know what job was available and ready to be given to contractors.Mrs. Nsolo is shown in this case to have been in a position where she could have influenced the award of the job to the appellant. At that time, approaches for favours used to be commonplace and most people were up to their necks in such practice. The appellant was challenged about such effort and he denied it at first until he was confronted with his letter, Exhibit 24; then he confessed that he had been to meet Mrs. Nsolo to inquire about jobs after which the said Mrs. Nsolo sent out Exhibit 2 to the appellant.”

But then the Court cautioned itself on this unnecessary incursion. The learned Justice said –

“I am not dwelling on the question of there being anything wrong with the appellant having met Mrs. Nsolo. What I am examining is the value of the Exhibit 2. Was it essentially to secure for the appellant the benefit of the job at NAIL which Mrs. Nsolo knew from her privileged position in the Ministry of Works was going at the time; or was it an offer of contract of service in itself? This question would provide the solution to the problem in this appeal.”

And it is true Exhibit 2 is great importance in this case for it provides the starting point for the whole episode. Viewed solely, eo ipso it would appear that the contract is between the Plaintiff and the Government for whom Mrs. Nsolo was acting in her position as Permanent Secretary. Indeed, if that were all, it would not matter whether Mrs. Nsolo was a classmate of the Plaintiff or even his sister. Except fraud or undue influence is alledged read into the contract or proved, relationship, blood or otherwise, would not affect the validity of a contract. All it would do is to provide a caution. And each caution indeed which the Court must examine, a principal, whether disclosed or otherwise is in position to plead all defences available to him, but in the case of fraud, where the Agent acts within the scope of his authority, actual or apparent, the act of fraud on the part of the agent binds the principal. The same goes for an act of undue influence, vis-à-vis the third party, brought to bear on the principal by the agent. The problem is one to be sorted out between the Principal and the Agent and not the third party. However, in this case, not one Exhibit must be examined but all the Exhibits, not a part of the evidence, but the totality of the evidence, to determine the liability vel non of the Respondents in this action. Was there ever a contract between the plaintiff and the Government? That must be the primary question. On the totality of the evidence, as borne out by all the correspondence, already copied out between the parties, which correspondence clearly disclose the position of the parties and, which position is clearly appreciated by the Plaintiff, was the contract herein not between the Plaintiff and NAIL? Was the Government a propos, the Ministry of Works, a propos Mrs. Nsolo, ever a party? Was it not just a mere “tout” for work. The Plaintiff himself used the word “client” for NAIL while urging on this client (NAIL) to “seek the advice of the Ministry of Works and Transport” on “the adequacy of the agreement to be signed by the plaintiff, the other consultants ant the clients”,(Ex. 8).

The plaintiff gave notice to NAIL on his intention to request some payment on account” from NAIL (Ex. 10). Certainly, the Government was not being requested to pay this advance on account. The Plaintiff’s notification to the Ministry of Works of progress of arrangement of work between him and his client NAIL was to the effect that Plaintiff’s scheme was “provisionally” approved and accepted by the client” that is NAIL (Ex 11). The Plaintiff further was of the opinion that there should be some arrangement for consultation with the Ministry of Works – as professional advisers to our clients,” that is NAIL (Ex. 11). Up to January 1975, minutes of discussions between the Plaintiff, other consultants and representative of the ministry of Works showed from of agreement between each consultants “the clients” (NAIL) collaborations between the Ministry of Works and the consultants and comments by the Ministry of Works on the preliminary sketch design presented (to NAIL) by the Plaintiff (Ex. 12). Indeed, one of the decisions arrived at that meeting was – “Professional fee invoices to be submitted to the architect (Plaintiff) [was] for onward transmission to the client [NAIL] who [NAIL] would pay directly to the consultant.” Then, as if to put matter of knowledge of the situation between the parties per adventure, the minutes went on-

“The Architects appreciated the Ministry’s observations and criticisms and promised to look into them in the production of the final design. The pressure by the clients [NAIL] to get something ready for the meeting with the Military Governor’s Office could not permit of including any more details in the design than was shown”

(Ex. 12). And rightly, following the clear situation portrayed above, the Plaintiff wrote to NAIL, for payment, wondering why he had not heard from his clients NAIL and requesting “the payment of our first interim fee which became due on submission of our first sketch design last January 1975″. (Ex. 14). It is clear to me then that upon the evidence before him, the learned trial Judge could rightly say, as he said, that the defendant could not have been a Principal or an Agent and that it would be wrong to conclude that the Plaintiff did not know what he was doing. The matter could not have been put better than the manner the Plaintiff/Appellant himself put it in Ex. 17.

He said:

“At our first meeting (note: the very first meeting) with the clients [NAIL] the question of financial limits was raised by us and we were informed that there is none. We do not see how within our limits of knowledgeability, government should be held responsible for the size of the project and payment of our fees”. (Extracts from Ex. 17. Emphasis mine). The Plaintiff is right. I do not see either, how Government, the Respondents in this appeal, should be held responsible for the payment of plaintiff’s fees. The learned trial Judge was no doubt right in his conclusion and also so was the Court of Appeal. This appeal has no merit whatsoever. I think it would be idle to discuss the law on Principal and Agent in this case. That situation does not arise in this case. This is a straight forward case of a contract between two parties at equal length- the Plaintiff and NAIL, with the Government as adviser, where necessary, introducing the parties to each other, but certainly not as principal, whether disclosed or undisclosed. The appeal is certainly without merit. The Appellant is looking for payment where it is not and can never be due. It is unfortunate that NAIL, the person responsible is legally dead. Whatever remedy the appellant would have, as a result thereof, cannot be against the respondents. I will therefore dismiss the appeal, affirm the judgments of the trial Court, Ikomi, J., of the High Court of Justice, Benin City, and that of the Court of Appeal. The appellant shall pay costs of N300.00 to respondents. S. kawu, JSC.: I have had the advantage of reading in draft the lead judgement of my learned brother, Eso., which has just been delivered. I am in complete agreement with his reasoning and conclusions. I am also of the firm view that on the totality of the evidence adduced, and taking into consideration the whole circumstances of the case, the learned trial Judge was right in his decision that there was no binding contractual agreement between the appellant and the respondent, and that the Court of Appeal which I will dismiss with N300.00 costs awarded to the respondents.

S.M.A.BELGORE, JSC.: I have had the privilege of reading the lead judgment written by my learned brother, Kayode Eso, JSC., with which I agree. I dismiss the appeal for the same reasons advanced by him and affirm the judgment of the Court of Appeal. I also award N300.00 against the appellant to the respondents.

A.G.O AGBAJE,JSC.: I have had the opportunity of reading in draft the lead judgment of my learned brother Kayode Eso, JSC. I entirely agree with him that this appeal does not deserve to succeed. I would like to support the decision in the lead judgment with a few words of my own. It appears to me that by Exhibit2 in these proceedings the Permanent secretary, Ministry of Works and Transport, wrote to inform the plaintiff that he has been appointed architectural consultants for the design of the proposed Head quarters buildings for Niger Agencies International Ltd. hereinafter referred to as NAIL. This was in November, 1974. The appointment is obviously at the instance of the government of Midwest State (now Bendel State). Exhibit 2 reads thus:-

“Our Ref. WB (H) 375/VOl. IV/1074

1st November, 1974

Ashibuogwu Design Associates,

Chartered Architects & Planning Consultants,

12, Kernel Street, Sun Love,

P.O. Box 1025, Lagos.

Dear Sir,

Proposed Headquarters Buildings for Niger Agencies International Limited

I am directed to inform you that you have been appointed Architectural Consultants for the design of the above headquarters buildings. 2. Could you please contact the Chairman/Managing Director of the Niger Agencies International Ltd. at Sapele Road for all the necessary briefing. 3. Your remuneration will be in accordance with N.I.A. Conditions of Engagement and Scale of Charges.

Sgd.???????? (J.N.Nsolo Mrs.) for Permanent Secretary, Ministry of Works & Transport.”

Although paragraph 2 of the letter directs the plaintiff to the Chairman/Managing Director of NAIL at Sapele Road for all necessary brief, paragraph 3 of the same letter settles the question of fees of the plaintiff for the job to be done by him in that it says that the remuneration of the plaintiff will be in accordance with N.I.A. Conditions of engagements and scale of charges. By Exhibit 3 dated 11th November, 1974, the plaintiff accepted the commission contained in Exhibit2 including the provision for the fees to be paid for it. And by Exhibit4 the plaintiff informed NAIL of its commission. I should reproduce Exhibit 4 in order to get a clear picture of the parties to the contract for the design of the headquarters buildings for Niger Agencies International Ltd., as at November, 1974.

“Exhibit 4 says:-

“Our Ref: ADA. 39/3/74

11th November, 1974.

Managing Director, Niger Agencies International Limited,

12B Sapele Road, Benin City.

Dear Sir,

Proposed Headquarters Buildings

We have been commissioned by the Midwest State Government to design your proposed headquarters buildings to be sited in Benin City, and have been directed to approach you for all necessary briefing. The undersigned will be calling on you in Benin on Tuesday, 19th November, 1974 for further discussions and collection of your brief and the site plan. Our fees shall be in accordance with the Nigerian Institute of Architects Conditions of Engagement and Scale of Professional Fees.

(Sgd. ??? GEORGE C. ASHIBUOGWU)”

I must pause here to find out if as at November, 1974 a contract for the design of the proposed Headquarters building for NAIL has been entered into and if so who were the parties to it. As I have shown above by Exhibit2, there was at least an offer by the Government of Mid-Western State (now Bendel State) to the plaintiff commissioning him to do the design with clear terms as to how he was to be paid. By Exhibit 3, the plaintiff accepted the commission. By Exhibit 4th, plaintiff only informed NAIL of the commission. Because of the offer and the acceptance which I have found in the matter of the commission for the design of NAIL Headquarters I am satisfied that there was a contract then for the design of NAIL Headquarters. And because the offer was evidently made by the Government of Mid-Western State (now Bendel State) to the Plaintiff who in turn accepted it, I am satisfied that the parties to the contract were the Government of Mid-Western State (now Bendel State) and the plaintiff, as at November, 1974. So at November, 1974, on the authority of Gardens v. Reading & Anor (1928) 2 KB 284 at 289, the Government of Mid-Western State (now Bendel State) would be prima facie liable to pay for the job done by the plaintiff pursuant to the contract. And if the parties to the contract for the design of NAIL headquarters were the same in 1981, at the time the plaintiff sued for his fees in respect of the work done pursuant to the contract, as they were in November, 1974, the Government of Mid-Western State now Bendel State would still be liable. If however, the parties to the contract have changed or can be said to have changed in the interim, the contract for the design of NAIL Headquarters would then be between the new parties to it and the obligation to pay for the work done will be on the new party to it. This is because of the concept to Novation of contract.

The meaning of Novation and its scope are stated as follows in Halsbury’s Laws of England 3rd Edition Volume 8 page 262 – 3: “460. Meaning of novation. Novation is, in effect, a form of assignment in which, by the consent of all parties, a new contract is substituted for an existing contract. Usually, but not necessarily

(c), a new person becomes party to the new contract, and some person who was party to old contract is discharged from further liability. The introduction of a new party prevents the new contract from being a mere accord without satisfaction

(p), and thus affords a defence to any action upon the old contract

(q). For novation to ensure, there must be not only the substitution of some other obligation for the original one, but also the intention or animus novandi

(r)…….. 461. Consent essential. Since novation is a new contract, it is essential that, the consent of all parties shall be obtained

(b), and in this necessity for consent lies the essential difference between novation and assignment

(c). Such consent may be inferred from conduct without express words…..

462. Valuable consideration necessary. In addition to the consent of all parties being obtained, it is necessary that the new contract should comply with all other requirements of an original contract.

There must, for example, be valuable consideration; self constitutes sufficient valuable consideration; but as a general rule the rescission of the former agreement of itself constitutes sufficient valuable consideration

(h) …… 463. Writing unnecessary. Since novation is a new contract, if follows that it need not be in writing as being a promise to answer for the debt of another, for the original debt no longer exists

(1). Similarly, where the original contract was in writing, and before breach thereof a new oral contract has been entered into in substitution for it, evidence of such new oral contract may be admitted, for, the old contract being annulled, the new contract does not vary it

(m), even though the new contract may adopt some of the provisions of the old one

(o)……………….. What I have to decide next is whether from the events or transactions subsequent to the contract between Government of Mid-Western state (now Bendel State) and the plaintiff can it be properly said that a new person has become party to the original contract and some party to the original was discharged from liability We have no express words to this effect. From the conduct of all parties concerned, I can infer, as I am entitled to do, that a new contract has been substituted for the old one subsisting as at November 1974, by the time the plaintiff took his action in 1981. I have come to this conclusion because of the following evidence in this case.

After NAIL has been informed by Exhibit 4 of the commission, the Government of Mid-Western State gave the plaintiff the chairman/Managing Director of NAIL and the plaintiff held a meeting to discuss the commission. NAIL then forwarded to the plaintiff their memorandum on the proposed building which is Exhibit 5A. Exhibit 6 is the plantiff’s reply to it.The following passages in Exhibit 6 are worthy of note in connection with the point I am now considering: “We have studied your memorandum and we are forwarding with this letter our appraisal of the scheme and our suggested approach. This is to be discussed at the meeting to be held later this month. We further suggest that the following matters should be included in the agenda for the meeting:

1. Financial limits of the scheme;

2. Client’s representative with authority to deal with day to day decisions during the progress of the scheme;

3. Recomendation of Specialists whose services may have to be retained on the projects;

4. Land acquisition if necessary;

5. Compliance with Statutory Regulations;

6. Appointment of consultants;

7. Draft programme of operations to be agreed to and 8. General Matters.”

Then there is Exhibit 8, a letter from the plaintiff to NAIL apparently after some meetings between the plaintiff the Secretary to the Military Government, Mid-Western State now Bendel State and NAIL. The portions of Exhibit 8 which are relevant to the point at issue are as follows:- “Our Ref: No. ADA. 39/24/75 7th January, 1975. The Chairman/Managing Director, Niger Agencies (International) Nigeria Ltd., P.O. Box 553, Benin City. Dear Sir, Proposed Headquarters Buildings Complex, Benin City For Niger Agencies (International) Nigeria Limited We refer to the meetings held with you and the Secretary to the Military Government on Saturday, 4th January, 1975, and forward herewith two sets of drawings of the sketch design of your proposed headquarters buildings complex to be known as “International Trade and Business Centre.”

please indicate your formal approval of the scheme by signing one set of the drawings and return to us. We have also noted, following your provisional approval and acceptance of the scheme as designed at a later meeting in your office, that you want us to proceed with the final design of the other sections of the scheme while efforts are made to secure the services of a reputable firm of estate agents to conduct a marketability study of these sections……………………………….. With regard to the form of agreement sent to you for your signature, you may seek the advice of the Ministry of Works and Transport on its adequacy………………………………………………

We take this opportunity to give notice of our intention to request some payment on account of part of our fees to enable us mobilize to meet the exigency of the first phase of the project.

Yours faithfully,

ASHIBUOGWU DESIGN ASSOCIATES

Sgd. ??? GEORGE C. ASHIBUGWU) CC.

Secretary to the Military Government, Benin City, Ministry of Works & Transport (Building Division) Benin City.”

Next is Exhibit 11 also of 7/1/75 written by the plaintiff to the Permanent Secretary, Ministry of Works & Transport. Part of Exhibit11 says:- “We are pleased to state that our scheme was provisionally approved and accepted by the clients and working drawings have been ordered on a section of the project which was designed to make possible the execution of the whole project in three phases or in one if so desired Although we have already sent to our clients Forms of Agreement between building owner and the Architect for their signature,We are presuming that there is a standard form of agreement in your ministry which covers all the consultants’ fees including the Architects. If one exists, we would like to have a copy of it for study and possible adoption for this project.

We are of the opinion that there should be some arrangement for consultation with your ministry as professional advisers to our clients and this matter was mentioned at the meeting with the Secretary to the Military Government and our clients. In this regard, we are suggesting a meeting with you in Benin City to discuss and agree on channels of consultations, fields of co-operation and other procedural arrangements. We suggest any date from 20th to 25th January,1975.

Our clients indicated their desire to invite international tenders for the project with contract-finance arrangement written into it. We are wondering if your ministry has any laid down procedure for this and if you could furnish us with the information for our guidance in drafting the prequalification notice due to go to press early in February, 1975.”

The meeting as held on 22/1/75, Exhibit 12 from the plaintiff to Permanent Secretary, Ministry of Works & Transport, Mid-Western State (now Bendel State) shows what were discussed and the decisions reached on them. Relevant to the issues I am now considering are the following decisions:-

“1. Consultants nominated by the architects were announced and their appointment approved.

2. Consultants are to enter into separate agreements with the client. The agreement will state the scope of work to be carried out by the consultants, the rate and mode of payment of professional fees.

3. Professional fee invoices are to be submitted to the architect for onward transmission to the client who will pay directly to the consultant.

4. Consultants are to send three copies of their respective forms of agreement to the Architect for inclusion of services to be rendered and passing on to the client.

5. The Ministry of Works will be kept informed of progress and developments in the project through consultants’ drawings and comments by the Ministry will be discussed.

8. The Ministry of Works will advise the clients on their obligations to the consultants and vice versa, and the need to ensure that these are observed for the smooth execution of the project.

9. The preliminary sketch design produced by the Architects was discussed and the comments of the Ministry of Works were heard.”

In Exhibit 11 and 12 NAIL was referred to by the plaintiff as his client in respect of the job relating to NAIL building headquarters. There is no doubt having regard to Exhibit 12, the Government of Mid-Western State now Bendel State acquiesced in this. A formal contract was to be signed by the plaintiff and NAIL, the Government of Mid-Western State now Bendel State, being only professional advisers. Then there is Exhibit 14 of 11th April, 1975 from the plaintiff to NAIL which is a demand from the latter by the former of the first interim fee of N322,679.00. And then there is Exhibit 17 of 22/5/75 from the plaintiff to NAIL.

It will be necessary to reproduce the whole of Exhibit 17 in order to appreciate its full implications.

“ADA. 391/7/75 2nd May, 1975.

The Chairman/Managing Director, Niger Agencies (International) Nig. Limited,

P.O. Box 553, 22 Benin City.

Dear Sir,

Proposed Headquarters Building Benin City Professional Fee

We refer to the Wilson/Ashibuogwu discussions on 17th May, 1975 at your office and at which some of your senior officials were present and would like to confirm the matters discussed at our observations, as itemised below:-

1. Delay to project Design: Mr. Wilson stated that he had submitted a draft memorandum to the Secretary to the Military Government for approval for a joint submission to the Governor and that we, the architects could not, in the circumstance, be instructed to proceed with the final design of the scheme until something is heard from the Government. Arch. Ashibuogwu appreciated the situation but thought that the clients were Niger Agencies and not Government as such and that the matter should have been clarified long before now, five months after the first and preliminary sketch design had been submitted to and accepted by the clients.

2. Payment of first interim fees Mr. Wilson said that although he recognised that whether the project was abandoned or not, the fee must be paid, he was also waiting for government to declare its involvement. He argued that the Niger Agencies had no hands in the appointment of the Architects and could thus not be acting alone in payment of fees now overdue.

3. Observation: We do not consider this contention by Mr. Wilson a valid argument. It is a fact that we were appointed Architects for the project by government which also stated the conditions of engagement and scale of professional fees, this apparently was as agreed between Niger Agencies and Government and the role of client still rested with the Niger Agencies on whose memorandum was based our brief guide report from which the sketch design was evolved.

Thus, the size of the project was set by the Niger Agencies (our previous correspondences on the scheme refer) and not government. At our first meeting with the clients, the question of financial limits was raised by us and we were informed that there is none. We do not see how, within our limits of knowledgeability, government should be held responsible for the size of the project and payment of our fees. All we are saying now is that our fees are now long overdue for payment for services rendered and we except your cheque for the sum due rather urgently. We are sending copies of this letter to the Ministry of Works and Transport and the Secretary to the Military Governor’s Office requesting payment. PAGE| 23 We believe that the three parties, viz Niger Agencies, Ministry of Works and Transport and Secretary to the Military Governor’s Office will be able to sort this matter out and pay us.

Yours faithfully,

ASHIBUOGWU DESIGN ASSOCIATES.

Sgd. ??? GEORGE C. ASHIBUOGWU.

CC. Secretary to the Military Government and Head of Service, Governor’s Office, Benin City.

It will appear that it was when the plaintiff failed to secure payment for his services from NAIL, that he turned to the Government of Mid-Western State now Bendel State for payment reliance then being placed by him on the old contract between them as evidenced by Exhibits 2 and 3. Following some meetings between the plaintiff and the representatives of Government of Mid-Western State now Bendel state on the matter the latter offered the former an ex-gratia payment of N50,000 which he rejected. It appears clear to me from the various Exhibits I have referred to in this judgment that subsequent to November, 1974, it can be legitimately inferred from the conduct of the three parties to the transactions which have given rise to the present action now before us on appeal that:-

(1) A new contract was substituted for the old contract between the plaintiff and the Government of Mid-western State, whereby the latter commissioned the former to design the proposed NAIL headquarters Buildings which com-mission was duly accepted.

(2) In the new contract NAIL and the plaintiff were parties to it, the Government of Mid-Western State now Bendel State a party to the old contract was discharged from further liability see Exhibit 17 in particular.

(3) The subject matter of the new contract was still the commission to the plain-tiff to design the proposed NAIL headquarters buildings but this time NAIL commissioned the work to be done by the plaintiff and the Government of Mid-western State now Bendel State was to act only as professional advisers.

(4) All the three parties to the transactions leading up to the new contract impliedly consented to the new contract.

Evidence of the work to be done by the plaintiff at the instance of NAIL and the acceptance of the commission by the plaintiff is provided by Exhibits 5,5A,6 and 8. The conclusion I reach therefore is that I do not agree to the view of the trial court which was endorsed by the lower court, the Court of Appeal to the following effect:-

“The defendant from the evidence before me did not order the Plaintiff to carry out the project. It merely introduced the plaintiff to NAIL and that was by way of assistance to the plaintiff, who was canvassing for jobs. The defendant more or less acted as the mouth piece of the plaintiff just for the purpose of securing the contract relating to the project under consideration.” However, I agree for the reasons I have given above with the trial court and the court below that the defendant, the respondent to this appeal is not liable on the claim against it by the plaintiff the appellant. In the result the appellant’s appeal is dismissed by me too with costs as assessed in the lead judgment of my learned brother, Kayode Eso, JSC.

P.NNAEMEKA-AGU, JSC.: This is a further appeal by the plaintiff against the dismissal of his claim of N271,195.40 plus interest at 5% as professional fees for services said to have been rendered by him to the Ministry of Works, Bendel State as an architect in designing the proposed building of Niger Agencies International Ltd. at Benin City in 1974 – 1975. The claim was originally against the Attorney-General, Bendel State and one Pius Ebhomielen as Liquidator of Niger Agencies International Limited (to be hereinafter referred to as N.A.I.L. or NAIL for short). But as the Liquidator could not be served he was struck out of the suit and the plaintiff (to be hereinafter called the appellant) proceeded against the Attorney-General, Bendel State of Nigeria (hereinafter called the respondent) alone. It ought to be mentioned that although at the time the original Statement of Claim was filed NAIL was still a party, nothing was alleged in the Statement of Claim against it. Also, that NAIL is a Limited Liability Company. The facts which led to the institution of the action are important. The appellant, as admitted in his evidence and found by the High Court, contacted the Chief Architect, Bendel State Ministry of Works, Mrs. Nsolo, an old classmate of his, for a job. As it appears, she found him one – the design of the proposed building of NAIL in Benin City. She therefore wrote to him a letter Exhibit 2, dated 1st November, 1974, which has been set out in the lead judgment of my brother, Eso, JSC. The appellant wrote a letter of acceptance, Exhibit 3, dated 11th November, 1974, addressed to the Permanent Secretary, Ministry of Works and Transport, Building Division, Benin City, but “For Attention: Chief Architect.” By another letter, Exhibit 4, of the same date, the appellant contacted the Managing Director, NAIL on the job, Exhibit 4 is also set our in the lead judgment. The appellant followed matters up with the Managing Director of NAIL and held a meeting in the latter’s office which was confirmed by another letter, Exhibit 5. There is nothing to show that the Ministry of Works was represented. Rather, from that stage on, several meetings were held between NA1L and the appellant and several correspondences exchanged between them without reference to the Ministry of Works or Mrs. Nsolo. NAIL gave to the appellant a copy of their memorandum, Exhibit 5A, dated the 7th of October, 1974, spelling out the concept of the project.

I may observe that Exhibit 5A made it clear that NAIL was a Limited Liability Company and that the project in question was its own. Appellant replied with a letter, Exhibit 6, dated the 3rd of December, 1974. In that letter, he acknowledged receipt of the memorandum and suggested a meeting for the 20th of December, 1974. He also suggested the following agenda for the meeting namely:-

1. Financial limits of the scheme.

2. Client’s representative with authority to deal with day to day decisions during the progress of the scheme.

3. Recommendation of specialists whose services may have to be retained on the project.

4. Land acquisition if necessary.

5. Compliance with Statutory Regulations.

6. Appointment of Consultants.

7. Draft programme of operations to be agreed to and

8. General matters. Significantly, no reference was made to the Ministry of Works or Mrs. Nsolo in these most vital matters.

That the appellant himself believed that the Ministry of Works and Mrs. Nsolo had no longer any important, if any role to play is confirmed by his own hand in Exhibit 8, where he wrote, inter alia, as follows:

“We have also noted, following your provisional approval and acceptance of the scheme as designed at a later meeting in your office, that you want us to proceed with the final design of the other sections of the scheme while efforts are made to secure the services of a reputable firm of estate agents to conduct a marketability study of these sections, sell the accommodation provided and organise the financing of part or the whole of the scheme if possible. We are now consulting a number of local and foreign estate agents in this regard and we shall inform you of developments in due course. With regard to the form of agreement sent to you for your signature, you may seek the advice of the Ministry of Works and Transport on its adequacy. However, you will be required to enter into separate agreements with the other consultants on the scope of work, mode and time of payment of fees among other things. We suppose that the State ministry of Works can furnish a specimen of agreement used on government projects. We take this opportunity to give notice of our intention to request some payment on account of part of our fees to enable us mobilize to meet the exigency of the first phase of the project – the Ministry block.” (Underlining mine)

I shall refer again to this letter which was copied to the Ministry of Works as well as the Secretary to the Military Government again later on. As a follow up of the last paragraph of Exhibit 8, the appellant wrote another letter, Exhibit 14, dated 1st April, 1975, to NAIL asking them to pay their first interim fee of N322,679.00 (which was later corrected to N271,195.00, the subject of this claim). Some five months later by Exhibit 15 dated 14th November, 1975, the appellant directed the same bill to the Permanent Secretary, Ministry of Works and Transport. “Attention: Mrs. J.N. Nsolo – Chief Architect.” The appellant appeared to have referred his unpaid bill to the Secretary to the Military Government and Head of Service also, as evidenced by Exhibit 18 and 20. He also made representations to the Hon. Commissioner for Works and Transport. See Exhibits 21 and 23. The Commissioner offered him N50,000.00 as “compensation” in what looked like an ex gratia offer: but this was rejected. Hence the appellant went to Court. In the High Court, the main defence of the respondents was that they merely introduced the appellant to NAIL who became his clients; that the appellant duly acknowledged this and the fact that NAIL became his clients, that there was no government decision to appoint the appellant as an architect; that there was no contract between the appellant and the respondent; that any offer which the respondent made to pay the appellant any sum was a magnanimous gesture as there was no binding contract. The learned trial Judge, after hearing and addressed of counsel dismissed the appellant’s claim on the grounds that there was no contract between the appellant and the respondent either as a principal or as agent of NAIL On appeal to the Court of Appeal, Benin Division, the appeal was dismissed. The appellant has further appealed to this Court. The issues for determination by this Court were formulated by the learned Counsel for the appellant thus:

“1. Was Exhibit 2 a letter of appointment/offer or was it a mere letter of introduction?

2. Was it right for the Court of Appeal to have confirmed the decision of the trial judge that the defendant was neither principal nor agent in the transaction where the evidence before the court was that-

(a) Exhibit 2 was issued by the respondent whose sole witness in his evidence testified that the respondent acted as an agent in appointing the appellant.

(b) the respondent in his brief had submitted that the respondent could be regarded as an agent of a disclosed principal?

3. Was the Court of Appeal right in failing to examine the liability of the respondent who, in issuing Exhibit 2 did not expressly say that he was acting as an agent for NAIL so as to exclude his liability as principal?

24. Does the fact that the appellant thought at all times that NAIL was his employer shift the liability of the respondent, who issued Exhibit 2 without express exclusion of liability on his part, and who at no time repudiated liability and even offered the appellant N50,000.00 in settlement of his claim?

5. Was the Court of appeal right when it failed to consider at all the various errors of law committed by the trial Judge as contained in grounds 2,3,4,5, and 6 of the additional grounds of appeal which were dealt with extensively in the appellant’s brief, particularly where the errors were directly responsible for the trial Judge’s wrong conclusion?”

Although the learned counsel for the respondent formulated the issues some what differently, she raised substantially the same questions. In court, counsel on either side adopted his/her Brief and addressed us in line with those Briefs. Taking the first and third issues together, the central questions is the interpretation to be given to Exhibit 2. I have already set it out above. The first question is what approach should be made in the interpretation of Exhibit 2? In my judgment, it is crucial that Exhibit 2 should be construed in the context in which it was written. For, I believe it to be well – settled that in the interpretation of statutes we ought to bear in mind the circumstances when the Act was passed and the mischief which then existed and use them as an aid to the construction of the words which Parliament has used. See on this Holme v. Guy (1877) 5 Ch. D. 596; River Wear commissioners v. Adamson (1877) 2 App. Cap. 743, per Lord Blackburn; Eastman Photographic Materials Co., Ltd. v. Comptroller-General of Patents (1898) AC 571. Besides, words, in a statute are to be construed in accordance with their intention. See Wandsworth Board of Works v. United Telephone Co (1884) 13 QBD 904. These principles of interpretations have for long time been applied to the interpretation of documents. In the instant case, it is, I believe, correct to read Exhibit 2 in the context of the circumstances in which it was written. It is therefore of material significance that the appellant went to the Ministry of Works and Transport, Benin City to look for a job; that at the material time one Mrs. Nsolo, an old classmate of his was the Chief Architect in the Ministry; that it was Mrs. Nsolo who wrote the letter in question; and that there is nothing to show that at the time the Government of Bendel State per se wanted to give out any job, or in particular the job in question.

In my judgment, the trial Judge and, indeed, the Court of Appeal, were right to have construed Exhibit 2 in these contexts. With these facts in view, it appears clear to me that when in the second paragraph of Exhibit 2 Mrs. Nsolo wrote to say: “Could you please contact the Chairman/Managing Director of the Niger Agencies International Limited at Sapele Road for all the necessary briefing.” the two courts below were right to have held that Exhibit 2 was merely a letter of introduction. Subsequent acts of the appellant himself confirmed that he understood the letter as a letter of introduction. For, without further reference to Mrs. Nsolo or the Ministry of Works and transport and knowing of course that NAIL was a limited liability company, a legal person, he went ahead and held meetings about the project with the Managing director of NAIL and reached a number of very vital decisions. Both of them agreed on the financial limit (or lack of it) of the scheme; agree on NAIL’S (client’s) representative for the execution of the scheme; and discussed and agreed on other fundamental issues listed in Exhibit 6, including the appointment of other consultants and professionals. It is not correct, as the third issue framed by the learned counsel for the appellant postulates that it was necessary for Mrs. Nsolo to expressly state further that she or the Ministry was acting as an agent of NAIL when the letter itself names NAIL as the party to whom the appellant must go for all the necessary briefing. It is convenient to consider the fourth issue next. It puts the question whether the fact the appellant thought at all times that NAIL was his employer shift the liability of the respondent who issued Exhibit 2 without exclusion of liability on his part and not only did not repudiate liability but also made an offer of N50,000.00. I have already expressed by opinion as to the true import of Exhibit 2. Before dealing with the main question, I should state that the context in which the Bendel State Commissioner for Works and Transport offered N50,000.00 did not carry with it any implication of admission of liability. The scanty material avail able on the point shows that after the appellant petitioned both the Military Governor and the Commissioner about the non- payment of his professional fees by NAIL, the Commissioner summoned him in his office and offered him N50,000.00, not as an admission that government itself was indebted to him but, as he put it, as a compensation. It was clearly stated under his hand by the appellant himself in Exhibit 21 that the Commissioner was directed by government to summon the meeting to negotiate what compensation should be paid to his firm for work done on the Niger Agencies Headquarters building project. Part of the memorandum of the discussions at the meeting which was prepared by the appellant himself runs thus:

”The Hon. Commissioner said that his government was in sympathy with the architects who had been involved in such an expensive project which government had no intention to continue with any longer. He said that he was offering N20,000.00 and another N 50,000.00 for the other consultants that submitted fee claims to cover out-of-pocket expenses incurred on the project.”

The memorandum later stated that later the Commissioner agreed to double the offer to the appellant to N50,000.00. The memorandum also makes it clear that the Commissioner stated he had no mandate to negotiate with the appellant outside the offer of compensation. However the appellant rejected the offer on professional grounds. The Court of Appeal after finding against the appellant and dismissing his appeal suggested (not decided) that this offer should be increased to N N100,000.00 as a good gesture by the government. Now the appellant wants to use this offer to support his case against the respondent. In my opinion this stance is misconcieved. The offer was made by the Commissioner not on grounds of admission of liability on the part of the respondents but, as the Court of Appeal rightly put it, as a good gesture. A government which receives a petition from its citizen about a loss being suffered by any of its citizens because of the act a limited liability company floated by the government to execute particular functions, but which company had now gone into liquidation, would be correct to offer some compensation to the citizen for his loss without necessarily admitting that the government itself is liable at law. A statement made in the course of a negotiation of the compensation or the offer of such a compensation would, in my view, be analogous to a statement made “without prejudice” during a negotiation.

The law has always taken the view that parties should speak freely in attempting a settlement of their disputes. That freedom of discussion will be seriously prejudiced if any offer or admission made in the process of the negotiation could be given in evidence and be used to support a party’s case in court afterwards, should the negotiation break down. Where such negotiations are made by written communication they are usually marked “without prejudice” and are inadmissible against the parties in that suit. But it is recognized that in some circumstances, it is not essential that the words “Without prejudice” should have been used: it may be implied that negotiations were conducted on this understanding. Hence in Mole v. Mole (1951) Probate 21, CA., oral communications to a conciliator by a party of a matrimonial dispute was treated as having been made without prejudice. See also Pool v. Pool (1951) Probate 470; also Henley v. Henley (1955) Probate 202. Although these two cases deal with privilege attaching to statements made during negotiations as between a husband and his wife during a dispute, the principle is rather broadly – based.

The learned authors of Phipson: On Evidence (11th Edu.) put it thus at P.307 in para. 679. “Offers of compromise made expressly or impliedly “without prejudice” cannot be given in evidence against a party as admissions; the law on grounds of public policy, protecting negotiation bonafide entered into for the settlement of disputes.” The privilege is, however, that of the parties. There can be no doubt that the Commissioner for Works and transport is part and parcel of the Bendel State Government whom the Attorney- General represents in the suit. In the instant case, I believe I am entitled to take notice of the position of a Commissioner in Government. He is the political head of his Ministry. He receives some of such petitions from members of the public from time to time. In this case, he not only received a petition from the appellant but had the one which the appellant sent to the Military Governor referred to him. His mandate was to negotiate compensation, not to investigate liability; the latter being an exercise by the Courts. To hold that evidence of such an offer which was clearly stated to have been made as a mere compensations is admissible as proof of admission of liability is to suggest that before a commissioner who receives a petition makes an offer of compensation in settlement he must first watt to know the opinion of the arm of government designed, the courts, designed for the investigation of the merits and demerits of every claim. That would be an untenable position and one which will work hardship on the public in general, who often petition their governments for redress, even if their claims might have failed in court for one reason or the redress, even if their claims might have failed in- court for one reason or the other. I believe that public policy dictates that such an offer should be privileged. In my judgment it would be wrong in the circumstances to treat whatever the Com-missioner offered as any proper basis for finding the respondent liable for the appellant’s claim in Court. I shall not do so. I now come to the conduct and attitude of the appellant as to who are the proper parties to the contact.

There can be no doubt that from the evidence before the Court, there is abundant evidence that soon after the appellant received Exhibit 2, he proceeded to deal with and treat NAIL as his clients. He held meetings with its Managing Director and without reference to the Ministry of Works and Transport reached agreement with them on all the vital decisions relating to the job. In several letters, some of which were copies to the Ministry he referred to NAIL as his “clients” and referred to the Ministry simply as advisers. PAGE| 30 Reference may be made to Exhibits 8, 11, 12, 14 and 17, among others. It is enough if I refer to extracts from one of these vital Exhibits. In part of Exhibit 17, he wrote to NAIL thus: “At our first meeting with the clients, the question of financial limits was raised by us and we were informed that there is none. We do not see how, within our limits of knowledgeability, government should be held responsible for the size of the project and payment of our fees. All we are saying now is that our fees are now long overdue for payment for services rendered and we expect your cheque for the sum due rather urgent.”

He followed this up by sending a bill, Exhibit 14, to NAIL for his first interim payment for settlement. It was only when he failed to get the money that he sent the same bill to the Ministry some five months later. From all these and more it is clear all along, that since his receipt of Exhibit 2, the appellant treated NAIL as his client and the Ministry as mere advisers. The question therefore is whether the law can now allow the appellant to shift from this position which had been accepted by the Ministry itself and now say that the Ministry was his client? I do not think so.

For it is provided in Section 150 of the Evidence Act, thus: “When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.” On the facts of this case, there can be no doubt that the appellant has, by his own written words and conduct, caused or permitted the respondent to believe that in the project of the building for Niger Agency International Limited, Benin city, the Agency itself was his employer and that the Ministry did accept that to be the true position and acted accordingly all through. The appellant cannot therefore be allowed to resile from this position to now say that the Ministry of Works and Transport and not the Agency was his client. See: Joe Iga Ors. v. Ezekiel Amakiri & Ors. (1976) 11 S.C.(Reprint) 1;(1976) 11 S.C. 1, at pp. 12 – 13. Being a provision of the Evidence Act, it is a rule of evidence: Morinatu Oduka & Ors. v. Kasunmu & Anor. (1968) NMLR 28. But even if it was a rule of pleading, the facts which raise the defence were duly pleaded; and due notice given that the defendants would rely on legal and equitable defences. The defence is well-founded. With respects, I believe that issue No. 2 is misconceived in so far as it fails to take into account the scope of the authority of the Ministry of Works as found, even if it is conceded, without agreeing, that it acted as an agent of NAIL for purposes of appointing the appellant as Architects for the project. As a matter of law the authority of any agent appointed for a particular purpose is spent the moment he executes that purpose for which he was appointed. In this case – if I can put it as high as that the Ministry of Works was an agent for recommending the appointment of the appellant as an architect and no more. There is nothing to show that the Ministry, as an agent of NAIL instructed him or assigned to him the works for which he now claims first interim payment. I am of the view that, as far as those works are concerned, the Ministry was neither the agent nor the principal (employer) of the appellant: The two lower courts were right to have said so.

The last issue is vague and scarcely deserved the dignity of a detailed consideration. Reference to Mr. Bishop Amadiobogha’s evidence as hearsay apparently lost sight of the fact that in all the courts, this case has been decided mainly on documentary, and not oral, evidence.

I should dismiss this issue and the grounds upon which it is based as lacking in substance.

On the whole, for all I said above and the fuller reason given in the lead judgment by my brother, Eso, JSC., this appeal fails and is dismissed with costs assessed at N 300.00 against the appellant.


Other Citation: (1972) LCN/1520(SC)

Nigerian Broadcasting Corp. V .tunji D. Bankole (1972) LLJR-SC

Nigerian Broadcasting Corp. V .tunji D. Bankole (1972)

LawGlobal-Hub Lead Judgment Report

C. O. MADARIKAN, J.S.C. 

The appellant was the defendant, and the respondent the plaintiff, in an action (Suit No. LD/8/68) in which the plaintiff’s writ was endorsed as follows:

“The Plaintiff’s claims against the defendants are as follows:

  1. A declaration that the purported dismissal of the plaintiff by the defendants as an Assistant Workshop Superintendent, being an employee of the Defendants which was finally made known to him (the plaintiff) on or about 7th November, 1967, is wrongful, illegal, unconstitutional and of no effect.
  2. The payment over of the sum of (pound)2,466: 15:0d to the plaintiff, being arrears of salaries and basic allowance due and payable to the plaintiff by the defendants from June, 1965 to October, 1967, inclusive.

PARTICULARS OF CLAIM

(a) Salaries from June, 1965, to October, 1967, at the rate of (Pound) 76 per month (29 months) (pound)2,036:=:=:

(b) Basic allowance from June 1965, to October, 1967, at the rate of(Pound) 14: 15:=: per month (29 months) (Pound)430:15:=:=:

TOTAL (Pound)466: 15:=:=:

OR IN THE ALTERNATIVE

  1. (Pound) 10,000 being general damages for the said wrongful dismissal of the plaintiff by the defendants.”

The plaintiff was engaged as a Mechanic Grade III by the defendant in 1956. He rose to the rank of an Assistant Workshop Superintendent in 1965 on a salary of 76 pounds per month. When the books of the defendant/ corporation were audited, it was suspected that thirty one motor tyres valued at 1 pounds,180.18.8d delivered to the corporation between the 25th of January, 1964, and the 13th of November, 1964, were not applied for the purpose for which they were bought; and, in consequence of this, the corporation addressed a letter (Exhibit A) dated the 28th of April, 1965, to the plaintiff demanding an explanation. The letter reads as follows:

“28th April, 1965

Mr. T.D. Bankole (S.N. 472),

N.B.C.

Lagos.

Thro’ C.E.

Dear Sir,

From a recent Audit Report, it was discovered that you signed for and received 31 motor tyres size 825 x 20 valued at (Pound)1,180.18. 8d between the 25th of January, 1964 and 13th of November, 1964. These tyres were said to have been bought and fitted onto N.B.C. vehicles. Please let me know the actual vehicles onto which the tyres were fitted. In your reply, please state the licence numbers of the vehicles as well as the make.

  1. It was also discovered that during the same period, no log book entries were made in respect of N.B.C. Thames Trador Lorry No. LE 3004, although previous to the 25th of January, the log book was properly kept in respect of this lorry in accordance with the instructions laid down by the Corporation.
  2. Please let me have your reply within 48 hours of your receipt of this letter, giving your explanation as required above and, giving your reasons why disciplinary action should not be taken against you for this excessive demand of motor tyres and for your failure to keep a properly entered up log book for the above mentioned vehicle.

Yours faithfully,

(sgd.) C.G.A. Okoh.

Ag. Director of Administration.

In response to the letter, the plaintiff offered an explanation which was not considered satisfactory by the corporation; and, for the reasons set out in another letter (Exhibit C) dated the 5th of May, 1965, he was interdicted from duty.

Exhibit C reads as follows

“5th May, 1965

“Mr. T.B.Bankole, S/No. 472,

Nigerian Broadcasting Corp.

Central Engineering Unit,

Lagos.

Thro’ C.E.

Dear Sir,

With reference to your letter dated 4th May, 1965, I am directed to inform you that your explanation has been placed before the Director – General. I regret to say that it has not been considered satisfactory, with reference, particularly, to the motor tyres. You acknowledged the receipt of the tyres but you have not shown that they were applied to the purpose for which they were purchased, nor have you given satisfactory explanation of their whereabout.

I am to say that in view of the above, the, Director-General has decided that you be interdicted from duty forthwith on half pay, under Staff Regulation 506, pending the disposal of this matter.

Yours faithfully,

(Sgd.) C.G.A. Okoh

Ag. Director of Administration.”

Whilst still on interdiction, the plaintiff heard a news flash on the radio on the 9th of June, 1965, that his appointment had been terminated. This put him on enquiries, and he subsequently found out that a Tribunal had investigated the complaint against him and recommended that he should be dismissed from the service of the corporation. One of his grievances was that he was not invited to present his case before the tribunal. On the 10th of June, 1965, the Corporation addressed a letter (Exhibit F) to the plaintiff terminating his appointment. Exhibit F reads as follows:

“10th June, 1965.

Mr. T.D. Bankole,

N.B.C.,

LAGOS.

Dear Sir,

I am directed to inform you that after considering your representations and the findings and recommendations of the Tribunal appointed to investigate the irregularities in purchase or other transactions carried out by certain officers of the Engineering Division of this Corporation, it has been decided that your continued employment by the corporation will be prejudicial to the corporation’s reputation and would reflect adversely on the honesty of its staff. I am, therefore, to convey to you with regret that your dismissal from the service has been approved by the Board of Governors with effect from the 8th of June, 1965.

Any property or money belonging to the Corporation which is on loan to you should be returned to the appropriate officer of the Corporation immediately, e.g. any outstanding debt in the form of money should be paid to the Chief Accountant, while any property should be handed over to the Head of Estates and. General Services. If you are in occupation of any official quarters this should be handed over to the Estate Manager or his duly authorised representative.

Yours faithfully,

(Sgd.) G.G.A. OKOH.”

In reply the plaintiff petitioned the corporation praying that

“his dismissal be set aside or at least suspended until he had been given a chance to put his case to the tribunal or to make a defence.”

The stand of the corporation was made clearer in another letter (Exhibit O) addressed to the plaintiff’s solicitor in which it was stated that:

“the Corporation already regards the case of the dismissal of your Client as closed and does not therefore intend to enter into any negotiation or further correspondence on the matter.”

The plaintiff then decided to seek redress in the court, and, on the 28th of November, 1967, he caused the notice (Exhibit P) to be sent to the Corporation under Section 61 (2) of the Nigerian Broadcasting Corporation Act. The notice is in the following terms:

“28th November, 67

The Director-General,

Nigerian Broadcasting Corporation,

Broadcasting House,

LAGOS

BY REGISTERED POST

Dear Sir,

LEGAL PROCEEDINGS:- NOTICE OF

INTENTION TO SUE

Section 61(2) of the Nigerian Broadcasting Corporation Act.

I am acting for and on the instructions of my clients, Mr. Tunji D. Bankole, of No. 54 Odo Street, Obalende, Lagos.

My client intends to commence an action against your corporation in the High Court of Lagos State, claiming as follows:-

(1) A declaration that the purported dismissal of the plaintiff, followed by series of Police investigations, petitions, and court action, and which was finally confirmed in a letter dated 7th November, 1967, by the Secretary to the Nigerian Broadcasting Corporation, is wrongful, illegal, unconstitutional and of no effect.

(2) Payment over of the sum of (pound)2,466,15s.0d. to the plaintiff, being arrears of salaries and basic allowance due and payable to the plaintiff by the defendants from June 1965 up to October, 1967 inclusive.

PARTICULARS OF CLAIM

(a)Salaries from June 1965 to October, 1967 at the rate of (pound)76 per month

(29 months) (Pound) 2.036:=:

(b)Basic allowance from June, 1965 to October, 1967 at the rate of

(pound)14.15/ per month (29 months) (pound)430:15:

TOTAL (Pound) 2,466:15:=

OR IN THE ALTERNATIVE:

(3) (pound)10,000 being general damages for the said wrongful dismissal of the plaintiff by the defendants.

Yours faithfully,

(Sgd.) O. Ade. Okenla

CHIEF A. ADE OKENLA

Solicitor for Mr. T.D. Bankole”

He subsequently took out a writ against the defendant. That was the substance of the plaintiff’s case.

The Director-General of the Corporation gave evidence for the defence. He testified that the plaintiff was invited by letter to the sitting of the tribunal which considered the complaint lodged against him by the corporation; that the letter was not delivered to him as it was not possible to locate him; that the tribunal carried out its duties in the absence of the plaintiff; that under regulation 503(a) of the Staff Regulations, the Establishment Committee decided to dismiss the plaintiff; and that the plaintiff was dismissed by the letter Exhibit F.

In a reserved judgment, the learned trial Judge carefully reviewed the evidence and made the following findings of facts:

“From the above it is clear that the plaintiff was dismissed by the Establishment Committee. It was the Establishment Committee that appointed him and they alone had the power to remove him.”

The plea raised by the defence that the action was statute-barred under Section 61(1) of the Nigerian Broadcasting Corporation Act was considered. and rejected by the learned trial Judge. Finally, the learned trial Judge came to the conclusion that the dismissal of the plaintiff was wrongful and he awarded 971pounds damages and 150 guineas costs to the plaintiff.

The defendant has now appealed against that decision.

Although many grounds of appeal were argued before us, we consider it necessary to deal with only one of them, that is the first ground of appeal which reads as follows:

“The learned trial Judge is wrong in law when he holds that Section 61(1) of the Nigerian Broadcasting Corporation Act does not apply and consequently that the action is not statute barred.”

At the trial, there was uncontroverted evidence that the plaintiff’s dismissal took effect from the 8th of June, 1965, and that this action was commenced about 31 months thereafter, that is, on the 8th of January, 1968. It was on these facts that the defendant grounded the plea that the action was statute barred, and in rejecting that plea the learned trial Judge said;

“Counsel for the defendant submitted that since the dismissal of the plaintiff was on the 10th of June, 1965, and the action was brought in 1968 it was statute barred. He drew my attention to Section 61 (1) of the Nigerian Broadcasting Act which reads:

“No suit against the Corporation or any servant of the Corporation for any act done in pursuance or execution or intended execution of any ordinance or law or of any public duty or authority or in respect of any alleged neglect or default in execution of such ordinance or law, duty or authority shall lie or be instituted in any court unless it is commenced within 12 months next after the act, neglect or default complained of or in the case of continuance of damage or injury within 12 months next after the ceasing thereof.”

In my view, Section 61(1) contemplates the position where the Corporation on the authority of an Act does an act which causes injury or trespass to a person or his property. But it does not apply to a case where the Corporation is exercising its right based on common law or on a contract. An action for wrongful dismissal, especially one of this nature, is a specie of breach of contract. This is a common right and is not based on any statute. A master acting within the limits of his authority is entitled to dismiss an employee taking proper care that his action is within the terms of his contract with the employee but such an act cannot come within the provisions of Section 61 (1) of the Nigerian Broadcasting Corporation Act.”

We are in no doubt that the learned trial Judge was in error in taking the view that Section 61(1) is restricted to acts causing “injury or trespass to a person or his property”; and does not apply to cases where the corporation is exercising “right based on common law or on a contract.’ Upon a proper interpretation of Section 61 (1), we fail to see how it could be said that the section draws such distinction. In our view, the wording of the section is clear and unequivocable. It applies to

“an act done in pursuance or execution or intended execution of any Ordinance or Law, or of any public duty or authority, or in respect of any alleged neglect or default in execution of such Ordinance or Law, duty or authority.”

and affords protection to all acts done in the circumstances contemplated by that section. Section 1 of the Public Authorities Protection Act, 1893, which is similar to Section 61 (1) of the Nigerian Broadcasting Corporation Act was considered in Compton v. West Ham County Borough Council (1939) 3 All ER 193. In that case, it was held that the breach of a contract which a public authority has the duty to make or is by statute bound to make comes within the protection of the Act. We respectfully adopt the views expressed by Crossman, J., at pp. 198 to 200 when he said:

“The defendant council relied upon the provisions of that Act. Section 1 of that Act provides as follows:

Where after the commencement of this Act any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any action done in pursuance, or execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, duty, or authority, the following provisions shall have effect: (a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within 6 months next after the act, neglect, or default complained of, or, in case of a continuance of injury or damage, within six months next after the ceasing thereof……..

Counsel for the defendant council says that the keeping back from the plaintiff of the half of his salary which was kept back was an act done in pursuance or execution or intended execution of an Act of Parliament, and that, the action not having been commenced within 6 months next after the act so done, the action does not lie. Counsel for the plaintiff says that the Act does not apply because the action is for breach of contract, and he relies upon Clarke v. Lewisham Borough Council (4) and Sharpington v. Fulham Guardians (5)

The statement in HALSBURY’S LAWS OF ENGLAND, Hailsham Edn., Vol. 26, p. 294, para. 612, in the article on “Public Authorities and Public Officers,” and in the section which is concerned with the execution of a statute, duty or authority, dealing with the public Authorities Protection Act, 1893, is as follows:

“The performance, or breach, of a contract which a public authority has the power, but not the duty, to make, is not within the protection (of the Public Authorities Protection Act).

I think that that is a correct statement of the law, and I think that it also would be correct to take that in an inverted form, and to say that the breach of a contract which a public authority has the duty to make is within the protection of the Act. However, that does not make it at once possible to see how that applies to the present case, because the question is, what was the act done here in respect of which this action is brought I think that it is only a breach of contract which a public authority has the power, but not the duty, to make which is not within the Act. I think that this appears from Bardford Corpn. v. Myers (6) and McManus v. Bowes (7).

I find it difficult, really, to construe the authorities, and to arrive at the law applicable to this case from them. I think that a breach of a contract which a public authority is by statute bound to make does come within the Public Authorities Protection Act, 1893, and, as the defendant council were, by the Public Assistance Order, 1930, art. 142 (1), bound to make the appointment of the plaintiff, I hold that an action for breach of the terms of that appointment is an action within Section 1 of the Act of 1893. Art. 142 provides as follows:

  1. The council shall appoint a district medical officer for every medical relief district and a relieving officer for every general relief district formed pursuant to art. 20.

Thus, the appointment of the plaintiff was an appointment which the defendant council were bound to make under the Act. The action here has arisen in consequence of that appointment, and it seems to me that the best conclusion at which I can arrive as to the meaning of Section 1 of the Act is that the section does apply to an action which is to remedy a breach of a contract which the defendant council were bound to make in pursuance of the Poor Law Act, 1930, and the regulations thereunder. I should say that, under the Poor Law Act, 1930, Section 136(2), the articles contained in the Public Assistance Order, 1930, have the same effect as if they were enacted in the Poor Law Act, 1930.”

In the instant case, it seems to us that by the combined effect of Section 53 of the Nigeria Broadcasting Corporation Act by virtue of which the defendant/corporation appointed its staff, and the regulations made under Section 55(1) for the dismissal of staff, the plaintiff’s contract of employment was one which the defendant/corporation was bound to make under the Act, and as the present action alleged a breach of that contract, the defendant/corporation is entitled to the protection offered by Section 61(1) of the Nigerian Broadcasting Corporation Act. It follows that the defendant’s plea that the action was statute barred under Section 61(1) ought to have been upheld by the learned trial Judge.

In the event, the appeal must succeed and it is hereby allowed. The judgment of the High Court, Lagos in Suit No. LD/8/68 including the order for costs is set aside and we make the following orders:

(1) The plaintiff’s case is hereby dismissed and this shall be the order of the court.

(2) The plaintiff/respondent will pay to the defendant/ appellant the costs, in this court fixed at 75 guineas and in the court below fixed at 100 guineas.


SC.191/1969

Registered Trustees Of The Apostolic Church, Etc V. Attorney-general, Mid-western States & Ors (1972) LLJR-SC

Registered Trustees Of The Apostolic Church, Etc V. Attorney-general, Mid-western States & Ors (1972)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, J.S.C.

The 1st appellant, who was the plaintiff in the High Court, sued the 1st defendant/respondent at the Ubiaja High Court, in the Mid-Western State in Suit No. U/1O/68. The claim in that suit reads:-

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

(1) A declaration that the plaintiffs are the proprietors of Apostolic Church School, Amoya-Otuo and Apostolic Church School, Igarra. (Both schools are within the jurisdiction of this court.)

(2) A declaration of title to the said school buildings, the land on which they stand and everything appertaining thereto, in favour of the plaintiffs.

(3) A declaration that the decision or order of the 3rd defendant [now 2nd respondent] made on or about 17th April, 1965 transferring the said schools to the 4th defendant is unlawful, invalid and therefore null and void.”

After a lengthy hearing the learned trial judge concluded his judgment in favour of the defendants in the following terms:-

“In summing up I will reiterate that the plaintiffs have not established their proprietorship to either of the schools they now claim; nor have they established their exclusive titles to the parcels of land on which the said schools and other appurtenances stand. Also they have not satisfied me that the 3rd defendant acted ultra vires by inviting both the A.C. and C.A.C. to a meeting in his office in order to resolve the ownership of the schools although I regard the 3rd defendant’s act as a purely administrative and no more. One other point is that the 4th defendant to whom the schools were alleged transferred by the 3rd defendant had been dropped from this action and the plaintiffs did not amend their writ in relation thereto.

Furthermore, the plaintiffs have not satisfied this court that they are the registered trustees of the Apostolic Church, Ilesha Area, Nigeria, West Africa, the capacity in which they have instituted this action. This is not a case where a non-suit can be considered and from the premises I am constrained to dismiss the plaintiffs’ case on all the arms of claim.”

It is against this judgment that the plaintiffs have appealed to this Court. The case arose out of the decision of the Ministry of Education of Mid-Western State as to who should be given the grants-in-aid of the two schools at Igarra and Amoya-Otuo mentioned in the writ. In coming to a decision on this issue, an inquiry was held with the consent of both parties, viz. the representatives of the Apostolic Church as presently constituted and those of the Christ Apostolic Church. When eventually the decision was given and it did not favour the plaintiffs they instituted this action. The main point of conflict is as to the ownership of the two schools and church at Igarra and Amoya-Otuo.

The plaintiffs averred in their statement of claim that the Apostolic Church was incorporated under the Land (Perpetual Succession) Act and their registration number is 186; that by virtue of the said trust, they hold a number of secondary modern and primary schools which include that of Igarra-Oke and Amoya-Otuo Church Schools; that the 2nd respondent (then the third defendant) decided that the two schools which had been under their management since 1949 should be taken over by the 5th defendant (now 3rd respondent) from 1st July, 1965; that the land at Igarra-Oke was allotted to the plaintiffs in 1935 and they built the school in 1951; that a similar portion of land was allotted to them in Amoya many years ago and that they built a school thereon; that at the time they were granted land in 1935, the Christ Apostolic Church was then not in existence; that in 1949 the plaintiffs took over the running of the Apostolic Church School at Amoya-Otuo in response to the appeal of the community; that the Apostolic Church had existed for many years and at its inception was known as the ‘Faith Tabernacle Church’; that at one time one Babalola, a prophet of rare ability and piety, and his followers joined forces with the Faith Tabernacle in 1930, but that he and his followers broke away after a schism in 1941 but this was not known at Igarra and Amoya-Otuo until 1945 or 1946; that the Babalola group became known as the Christ Apostolic Church whereas the Faith Tabernacle had by 1931 adopted the name of Apostolic Church.

The 1st, 2nd and 3rd defendants in their statement of defence denied that the plaintiffs were incorporated under the Land (Perpetual Succession) Act and therefore put them to a strict proof of this. Suffice it to say that the plaintiffs failed to prove that they were so incorporated. The 3rd defendant (now the 2nd respondent) averred that it was at the instance and consent of the plaintiffs and 5th defendant, and in order to avert possible clash between the two factions, that he decided to inquire into their different claims and made a settlement.

The 5th defendant (now 3rd respondent) averred that the Christ Apostolic Church of Nigeria was registered in Nigeria in May 1943 under the Land (Perpetual Succession) Act, 1924. The registration number is 147. The 5th defendant also averred that Joseph Ayo Babalola founded the Christ Apostolic Church on 11th May, 1928; that the Apostolic Church started in Nigeria in 1932; that the pieces of land at Igarra-Oke and Amoya-Otuo were granted to the 5th defendant and they erected a church school in each place; that the said schools were named St. Paul’s School, Amoya-Otuo and St. Joseph’s School, Igarra-Oke; that the plaintiffs in 1949 assumed unlawful possession of the two schools by false propaganda and there had never been any formal or legal transfer of the two schools; that protests were made from 1949 to 1950 and 1964 and 1965 by the 5th defendant against the unlawful possession.

Evidence led by both sides showed that each side depends on the history of its church as determining the ownership of the two schools at Igarra-Oke and Amoya-Otuo. Before examining the disputed histories as between the appellant and the 3rd respondent we would like to dispose of the appeal as it affects the 1st and 2nd respondents (1st and 3rd defendants).

In paragraph 1 of their statement of claim in respect of 1st and 2nd respondents, the plaintiffs had claimed to be the registered trustees of the Apostolic Church, Ilesha Area, Nigeria, West Africa. They averred that they were registered under the Land (Perpetual Succession) Act and the registration number was given as No. 186. The 1st and 2nd respondents disputed this in their statement of defence and put the plaintiffs to the strict proof of the averment. The plaintiffs failed to establish that they are registered trustees and therefore have no locus standi. We refer to subsections (1) and (3) of section 2 of the Land (Perpetual Succession) Act which read:-

“2. (1) Trustees or a trustee may be appointed by any body or association of persons established for any religious purpose, and such trustees or trustee may apply, in manner hereinafter mentioned, to the Commissioner for a certificate of registration of the trustees or trustee of such community, body or association or persons as a corporate body.”

(3) The trustees or trustee shall thereupon become a body corporate by the name described in the certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in such corporate name”, etc., etc.

Although evidence was led as to named persons being made trustees the certificate of incorporation was never produced. It is therefore clear that unless the plaintiffs could comply with section 6 of the Act under consideration they have no power to sue or be liable to being sued.

Section 6 reads:-

“A certificate of incorporation so granted shall be conclusive evidence that all the preliminary requisitions herein contained and required in respect of such incorporation have been complied with, and the date of incorporation mentioned in such certificate shall be deemed to be the date at which incorporation has taken place.”

In view of the above provisions of the Act the plaintiffs, having failed to prove their incorporation by the production of their certificate of incorporation, have no power to sue the 1st and 2nd respondents. In the circumstances the plaintiffs/appellants’ claim against them must fail and the appeal is therefore dismissed in respect of 1st and 2nd respondents.

We would like at this stage to refer to two matters. The first is the 5th respondent produced its certificate of incorporation which is dated 4th May, 1943. It was put in evidence by consent, Mr. Boyo appearing for the present appellants did not oppose; in fact he consented to the document’s going in evidence. It was marked exhibit A. The second matter to which we would like to refer is the history of the Church. This was fully dealt with by the learned judge in his exhaustive judgment. Before us, Mr. Olayera for the 5th defendant reiterated this history and the veracity of it was not in question. We now put it briefly:-

In 1918 the Faith Tabernacle was established headed by late Pastor Odubanjo. Later Prophet Babalola formed his own group which existed as a separate religious body between 1928 to 1930. In 1930 there was a great revival and the Faith Tabernacle led by Pastor Odubanjo and Apostle Babalola’s group merged together and became known as the AFRICAN APOSTOLIC CHURCH. In 1932, the new church invited two missionaries from the United Kingdom. On the arrival of these two Europeans the name of the Church was changed to APOSTOLIC CHURCH and the word” African” was dropped. In 1939 to 1940 there was a schism because the Europeans insisted in the use of medicines for the sick whereas the main body of the Church led by Apostle Babalola and Pastor Odubanjo objected to this and preferred the use of Holy Water for the sick. As a result of this schism, the Europeans and those who shared their views broke away from the main body led by Apostle Babalola. This main body then became known as the NIGERIAN APOSTOLIC CHURCH and the secessionists led by the Europeans continued to bear the name Apostolic Church. At this time Apostle Babalola’s group had extended to GHANA and the Ghana group objected to the word NIGERIA as part of the name of the church and this was consequently changed to UNITED APOSTOLIC CHURCH. In 1943 owing to the confusion between the names of V.A.C. (Ltd.) a commercial firm, and the United Apostolic Church (U.A.C.) the name of the Church was changed to CHRIST APOSTOLIC CHURCH. It was in this year, 1943, that the Christ Apostolic Church was incorporated under the Land (Perpetual Succession) Act. It is therefore from the above narrative that the churches that became merged in 1930 as the African Apostolic Church on incorporation became known as the Christ Apostolic Church.

We will now deal with the issue before the learned judge, and this is which of the two sides seceded

As earlier on indicated the break away faction led by the two Europeans retained the name Apostolic Church for their own group. In evidence each side claimed that the land at Igarra Oke was granted to it. It was also claimed that a little later, although no specific period was mentioned in evidence, the land at Otuo on which the school and church now stand was granted to one or the other group. Pastor Adako, who gave evidence in this case for the appellant admitted that before his defection to the Apostolic Church, he was a minister of the Christ Apostolic Church and was in charge of the school and church in Igarra Oke between 1943 to 1946. His predecessor in office was one Rev. Orogun whom he admitted to be a minister of Christ Apostolic Church. This witness also admitted that Prophet Babalola was during this service in Ogarra Oke the proprietor of St. Joseph’s School, Igarra Oke and St. Paul’s School, Amoya-Otuo. On leaving in 1946, this witness also admitted that a Rev. Ajibola, a minister of the Christ Apostolic Church, succeeded him. It was in 1949 that he defected to the Apostolic Church. On the evidence therefore of plaintiffs’ witness it is quite clear that the Christ Apostolic Church was in control of both the churches and schools at Igarra Oke and Amoya-Otuo up to 1949.

The learned trial judge in dealing with the case before him touching on the properties at Igarra Oke and Otuo said inter alia:-

“Regarding the parcels of land on which the church and school buildings stand, the evidence is that they were given out initially for the propagation of the A.C. Gospel. After the split of late 1939 or early 1940 the congregation remained or carried on as C.A.C. to the man. As far as Igarra and Otuo was concerned, therefore, there was no A.C. as from 1940 to 1949.”

Later on the learned judge in his judgment had this to say:-

“I have already found as a fact that between 1940 and 1949 there was no A.C. faction in either community. The C.A.C. having become a corporate body in the meantime, any property vested in them became perpetual in succession.”

The learned trial judge having held that the two schools and churches at Igarra Oke and Otuo belonged to the C.A.C. and were run by them as from 1940, then on incorporation they became vested in the C.A.C. in perpetuity. There was no doubt that the Apostolic Church on the promise that they could obtain Government grants for the two schools and indeed build colleges, the community at Igarra Oke and Otuo allowed them to take charge of the management of the schools. The Christ Apostolic Church protested against this incorporation and consequent on series of petitions to government the proprietorship of Christ Apostolic Church of the two schools at Igarra Oke and Otuo was acknowledged. It is this act by government that sparked up the present action. The learned trial judge, in deciding in favour of the 3rd respondent concluded thus:-

“To divest them of their title the A.C. has to do so properly. There has been no evidence throughout this case that there was any difference of religious belief or form of worship as amongst the congregation at Igarra and Otuo. Were they ever A.C. between 1940 and 1949 I would say certainly not … the plaintiffs have never established their title to either of the parcels of land now in question nor shown that they ever established any schools on the very parcels of land. I do not believe the evidence of Pastor Adako about the extinction of the schools he established. There was no application by the A.C. to the Ministry of Education to establish any schools in Kukuruku Division; nor were there any corresponding approvals by the Ministry of Education for the opening of such schools by the A.C.”

We are in agreement with the learned trial judge, that whatever may be the admission of the 3rd respondent of the status of the appellant, there is no evidence before the court that the appellant was ever a corporate body. This could only be established as a matter of law by the production in evidence of the certificate of incorporation, admission inter parties notwithstanding. The corporate status of appellants not having been established, then under Land (Perpetual Succession) Act, no property could be vested in the named trustees and neither could they sue or be sued. In this regard, we consider the arguments canvassed before us by the learned counsel for appellants as completely misconceived.

In the event, this appeal must be dismissed and it is hereby dismissed. There will be costs in favour of 1st and 2nd respondents assessed at 130 guineas; and in favour of 3rd respondent also assessed at 130 guineas.


SC.323/1970

I. B. Animashawun Vs Onwuta Osuma & Ors (1972) LLJR-SC

I. B. Animashawun Vs Onwuta Osuma & Ors (1972)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

Some time in the year 1906, one Badaru Animashawun obtained from the Mgbelekeke family of Onitsha, the right to the use and occupation, under what is known in Onitsha as a “kola tenancy”, of a piece of land in Onitsha verged green in plan No. SE 29/63 of 10th June, 1963 (exhibit A). Badaru Animashawun later built houses on the land which he occupied with the members of his family. In 1928, he leased the portion verged pink in the plan (exhibit A) to one J. M. Stuart-Young.

Four years later, the Mgbelekeke family, being of the opinion that Badaru Animashawun had sold his rights in the portion in question to Stuart- Young and had thereby forfeited his kola tenancy, granted another lease of the same portion to Stuart-Young. Being dissatisfied with this action of the Mgbelekeke family, Badaru Animashawun brought an action against both the family (represented by one Michael Obanye) and Stuart-Young in Suit No. 4/32 (exhibit B).

At the hearing of that suit on 26th February, 1934, Mr. Clinton who appeared for the family (who were the 1st defendant) agreed to begin “as his case is that the plaintiff was a kola tenant and forfeited his rights of such by selling house to 2nd defendant”. Evidence was then adduced by the family. When the case of the family closed, learned counsel for Stuart- Young (who was the 2nd defendant) informed the court that he was not calling evidence on behalf of 2nd defendant.

Whereupon learned counsel for Badaru Animashawun opened the case for the plaintiff and called Stuart Young (2nd defendant) as his witness. After the witness had been cross examined, the case was adjourned to the following day 27th February, 1934. The following are the notes made by Graham Paul J., at the hearing on the following day:

“Court adjourned for ten minutes to enable parties to consider as to an extra-judicial settlement. On resumption counsel intimates that a settlement has been arrived at.

The terms of settlement are that the plaintiff and his successors are to be entitled to two-thirds of the rent under the lease by the first defendant to the second defendant and that this applies to arrears as well as to future rents. Order by consent accordingly.”

Pursuant to this consent judgment, Badaru Animashawun and the Mgbelekeke family, as lessors, executed a lease of the land in question in favour of Stuart-Young as lessee. This lease (exhibit C) executed on 1st January, 1937 (fifteen months after the coming into force of the Kola Tenancies Ordinance Cap. 98 of the Laws of Nigeria, 1948) was for a term of twentyfive years at an annual rent of 10pounds. It is significant that the name of Animashawun came before that of the Mgbelekeke family in the said deed of lease. The lease also provides that:

“The above named rent of ten pounds per annum is to be divided 6pounds 13s 4d to Badaru Animashawun and 3pounds 6s 8d to the Mgbelekeke family.”

Among the covenants entered into by the lessee is one in clause 5(2) which reads:

“At the expiration or sooner determination of these presents to deliver up the said piece of land peaceably to the lessors.”

In 1939, Stuart-Young died. After his death, one Solomon Obike (who was the 3rd defendant in the present action) after obtaining letters of administration in respect of the estate of Stuart-Young stepped into his shoes as lessee under the said lease and continued to pay the rent to both lessors in the agreed proportion 6pounds 13s 4d to Badaru Animashawun and 3pounds 6s 8d to the Mgbelekeke family. In 1934 Badaru Animashawun died and this arrangement continued after his death.

In 1962, the lease to Stuart-Young expired. Isiaka Badaru Animashawun (the present plaintiff) who is the eldest son of the late Badaru Animashawun and is also the head of the family came to Onitsha and invited Solomon Obike (3rd defendant) to one Chief Bakare’s house. At the hearing of this action Isiaka Animashawun narrated what transpired at that meeting as follows:

“I told him that the lease has expired and I would like to know what he was prepared to do. He said that Mgbelekeke people have sold the house to him for 1,000pounds. He is still occupying the house and he has not been paying me any rents. It is not correct that he has sought for me to negotiate for the land with me.”

Eventually, the plaintiff, on 4th January, 1963, took out a writ in the Onitsha High Court in which he claimed:

“(a) Recovery of possession of the premises occupied by the 3rd defendant through the 1st and 2nd defendants at Onitsha which premises is known and described as No. 42 New Market Road, Onitsha to be more particularly delineated in a plan to be filed in this case.

(b) Injunction to restrain the defendants,their heirs, successors, servants, agents and assigns from further interfering with the plaintiff’s possessory right to the premises aforesaid.”

Paragraphs 14 and 15 of the plaintiff’s statement of claim read:

“14. When the lease to Mr. J. M. Stuart-Young expired in 1962 the plaintiff sought to know from the 3rd defendant whether he proposed to renew permission to stay on the land or alternatively to deliver possession thereof. The 3rd defendant ignored the plaintiff and unknown to plaintiff, treated with the Mgbelekeke family and paid a large sum of money to them and has ever since remained on the land without any reference whatsoever to the plaintiff and in spite of plaintiff’s protestations.

  1. The 1st and 2nd defendants have no right to put the 3rd defendant or anybody in occupation of the said land without reference to the plaintiff and neither has the 3rd defendant the right to be on the land without the knowledge and consent of the plaintiff.”

In reply, the 1st and 2nd defendants averred in paragraphs 13 and 14 of their joint statement of defence as follows:

“Part of paragraph 14 of the statement of claim as regards the expiration of the lease is hereby accepted but the defendants deny the rest of paragraph 14 of the statement of claim. Furthermore, the 1st and 2nd defendants contend that owing to the breach of one of the conditions of the kola tenancy that the land was not to be leased to an expatriate and the fact that it was agreed by both the plaintiff’s father and the Mgbelekeke family that the plaintiff’s interest in the land will be determined once the lease expired, the Mgbelekeke family had no other option than to transfer their interest in the land to the 3rd defendant who is a native i.e. a Nigerian citizen.

  1. Paragraph 15 of the statement of claim is hereby denied and the defendants will require a strict proof thereof.”

The reply of the 3rd defendant is in paragraphs 10 and 11 of his own statement of defence. It reads:

“10. Ref para. 14 S/Claim-3rd defendant denies allegation in paragraph 14 of Claim and state further that he dealt with the Mgbelekeke family when all efforts to get the Animashawun family to co-operate failed.

II. Ref para. 15 S/Claim-3rd defendant in answer to this paragraph will plead that he was lawfully put on the land by the 1st and 2nd defendants’ family as of right on valuable consideration paid by virtue of a deed of grant dated 13th day of July, 1961, and registered as No. 37 at page 37 of Volume 257 of the lands registry at the office at Enugu. 3rd defendant will rely on this grant.”

All the parties gave evidence in support of the averments in their pleadings. Testifying as to what made the Mgbelekeke family give a conveyance (exhibit G) of the land to the 3rd defendant, Joseph Akwukalia (2nd D/W and the only witness called by the 1st and 2nd defendants) stated:

“The plaintiff’s father then brought an action against us and at a stage during the proceedings the judge advised that we go and settle out of court. We went to Obanye’s house and there Mr. Young appealed to us to allow Mr. Badaru to join in the lease but that at the end of the lease he could leave the land for us. We agreed and the lease exhibit C was made. When the lease expired the plaintiff did not approach us so we gave the land to the 3rd defendant on kola tenancy. ”

In his own defence, the 3rd defendant (D/W) testified as follows:

“I approached the plaintiff in 1961 and told him that the Mgbelekeke family had promised to give me a grant of the land as a kola tenant. He said he would know what to do when the lease expired.

I did not approach him since the lease expired and he did not demand any rent from me.”

Under cross-examination the 3rd defendant agreed that he obtained the conveyance (exhibit G) from the Mgbelekeke family before the expiration of the lease (exhibit C).

After reviewing the evidence, the learned trial judge summarised the contention of the parties as follows:

“The plaintiff’s contention is that after the settlement in exhibit B, the parties were reverted to their former status quo that is to say that the plaintiff’s father continued to be the kola tenant for the Mgbelekeke family with regard to the land in dispute and that when the lease contained in exhibit C expired the land reverted to him as a kola tenant. The contention of the 1st defendant is that the plaintiff’s father agreed to forfeit the holding when the lease expired hence he agreed to be taking two-thirds of the rents of the lease between the first defendant and Mr. J.M. Stuart-Young and did not insist that the lease should be set aside in his action exhibit B and that when the lease contained in exhibit C expired, the land reverted to Mgbelekeke family and not to the plaintiff and that the 1st defendant was therefore entitled to sell the land as they did in exhibit G.”

He then non-suited the plaintiff after finding as follows:

“I am of the opinion that there is much in the contention of each party. The plaintiff’s father did not insist in his action exhibit B that the lease by the Mgbelekeke family to J.M. Stuart-Young should be set aside and his own lease to him restored. He only agreed to be taking two-thirds of the rents. He was however brought in the deed of lease exhibit C and here again .he agreed to execute the lease with the Mgbelekeke family as joint lessors and the document stated that the land shall revert to the lessors when the lease expired. It cannot therefore be said that the Mgbelekeke family has no interest in the land which they can transfer to the second defendant but what that interest is, I cannot from the claim before the court say for the plaintiff has not asked that the document exhibit C be judicially interpreted. I may also add that the conduct of the plaintiff’s father appears to lend credibility to the first defendant’s story that he agreed that the land be forfeited at the expiration of the lease. I may also add that at the time the dispute arose in 1932 and the Kola Tenancy Ordinance had not been enacted and therefore the parties were not bound by it.

I am also of the opinion that since the plaintiff knew about the sale of the land in dispute by the 1st defendant to the second defendant before he brought his action, he should have sought for a declaration that the sale be declared null and void and the deed of conveyance set aside before asking for possession and injunction. At present the 2nd defendant is on the land by virtue of this deed of conveyance (exhibit G) and until it is set aside I am of the opinion that he cannot be dispossessed of the land and there is no claim before the court that he is a trespasser and as far as the plaintiff is concerned it may also be contended that the 3rd defendant is at least a tenant holding over after his lease has expired in which case possession against him may be sought under the Recovery of Premises Law.

There is also nothing before this court to show that the plaintiff applied to the court under Order 4, rule 3 of the High Court Rules for the approval of the court to sue for the benefit of or on behalf of all the members of Badaru Animashawun family.”

In the appeal now before us against that decision, learned counsel for the plaintiff made a number of complaints about the findings of the learned trial judge. Firstly, it was submitted that by declining to interprete the provisions of the deed of lease (exhibit C), the learned trial judge failed to direct his mind to the legal position of the plaintiff and the Mgbelekeke family at the expiration of the term in the said lease and thereby also failed to determine whether the land in dispute reverted to the plaintiff as a kola tenant and the Mgbelekeke family as their landlords or simpliciter to the Mgbelekeke family. It was further submitted that since it was provided in exhibit C that the property should revert to the lessors at the expiration of the lease it could only revert to the plaintiff as joint lessor in his capacity as a kola tenant and that was why, it was pointed out, that at the expiration of the lease Obike still regarded the plaintiff as one of the lessors. Thirdly, it was contended that the terms of settlement in the judgment (exhibit B) showed clearly that the plaintiff’s father had not forfeited his rights as a kola tenant. Moreover, as the plaintiff’s father was a kola tenant of an area of land of which the one in dispute forms only a portion, he could not forfeit his holding in respect of only a portion of the whole land so held. With respect to the capacity in which the plaintiff brought the action, learned counsel contended that the head of a family in order to preserve family property can bring an action on behalf of the family without authorisation and referred to the case of Sogunle v. Akerele and Ors. (1967) N.M.L.R. p. 58 in support.

For the Mgbelekeke family, it was submitted that there was evidence that the lease (exhibit C) was a formal representation of the terms of settlement agreed to in exhibit B. Learned counsel, however, agreed that if parties went to court and agreed to settle the matter and terms were also agreed, there was nothing to prevent such parties from varying the terms of the agreement later. He also explained that if the plaintiff had approached the Mgbelekeke family at the expiration of the lease (exhibit C), the family would have made him a fresh grant of the land as a kola tenant but as he did not, they granted the land to the 3rd defendant. Learned counsel then asked this court to read “lessor” for the words “lessors” used in clause 5(2) of the lease (exhibit C) and elsewhere therein; he was however unable to give any reason as to why the plural should be construed as singular. Finally learned counsel for the Mgbelekeke family submitted that what transpired between the parties during the proceedings in exhibit B was essential to the construction of the terms of exhibit C and that exhibit C should be construed to give effect to exhibit B. Dealing with the capacity in which the plaintiff had sued, learned counsel submitted that as the approval required under Order 4, rule 3 of the High Court Rules was not obtained, the plaintiff was not competent to bring the action and that the learned trial judge was not in error in non-suiting the plaintiff for that reason.

Learned counsel for Obike (3rd defendant) in his own reply submitted that since the plaintiff’s contention, based on exhibit C, was that he was still a kola tenant and therefore never out of possession, he could not bring an action for possession. As the 3rd defendant was validly put in possession by a co-lessor as shown in exhibit G, the plaintiff’s claim should not have been one for possession. He should, instead, have brought an action for a declaration that his family was still a kola tenant of the Mgbelekeke family. Learned counsel then observed that as long as they were left in possession they would be prepared to attorn tenant to whoever won this case. Finally, he submitted that the plaintiff not being authorised by the family lacked the capacity to bring this action. In support he referred to Adegbite v. Lawal 12 W.A.C.A. 398 but had to concede that that case dealt only with the capacity of defendant to defend the action. He also referred us to the case of Chapman v. C.F.A.O. 9 W.A.C.A. 181 on the same point.

To our mind, there is a number of glaring errors both of law and of construction in the finding of the learned trial judge in this case.

Firstly, the terms of settlement in the judgment (exhibit B), by giving Badaru Animashawun and his successors two-thirds of past, present and future rents payable by Stuart-Young, in respect of the disputed portion, showed clearly that the Mgbelekeke family still recognised Badaru Animashawun’s right to the use or occupation of the said portion as a kola tenant. It must be remembered that the area in dispute both in exhibit B and in the instant case is only a small portion of the area of land of which Badaru Animashawun was the acknowledged kola tenant of the Mgbelekeke family. If he had incurred forfeiture of his kola tenancy it would have been in respect of the whole area not just a portion thereof. That is why we cannot conceive of any other reasonable explanation for allowing him to keep two-thirds of the rent than that the Mgbelekeke family still regarded him as their kola tenant.

Secondly, the view which we had aired above explained why the deed of lease (exhibit C) (in which Badaru Animashawun was shown as the first lessor) coming about three years after the terms of settlement, was executed by both Badaru Animashawun and Mgbelekeke family as co-lessors. The whole case, to our mind, hinged on the construction of the said deed of lease (exhibit C). It was pleaded in paragraph 10 of the plaintiff’s statement of claim which reads:

“10. The rent was paid and shared accordingly and in 1937 a formal deed of lease was executed by the plaintiff’s father to Mr. Stuart Young for a term of 25 years in respect of the area which measured 217,117 square yards at a rent of 10pounds per annum to be shared in proportion aforesaid. The Mgbelekeke family was made joint lessors as a mark of their consent to the lease.”

The 1st and 2nd defendants’ reply in paragraph 9 of their statement of defence reads:

“9. Paragraph 10 of the statement of claim is not correct. The 1st and 2nd defendants agree that rents were shared as stated in paragraph 10 of the statement of claim but further maintain that the reason why the Mgbelekeke family was made joint lessors was to ensure that the piece of land was not disposed of by the plaintiff in future and also to give effect to one of the conditions of the settlement as stated in paragraph 8 of the statement of defence.”

It is, therefore, clear even from the pleadings that each party had put in issue his own interpretation of the provisions of this lease. The learned trial judge was therefore clearly in error in stating that the “plaintiff has not asked that the document exhibit C be judicially interpreted.” As we had pointed ‘out earlier, it is proved in clause 5(2) of exhibit C that:the expiration or sooner determination of these presents to deliver up the said piece of land peaceably to the lessors.”

Manifestly, the premises should have reverted to the plaintiff as well at the expiration of exhibit C.

In what capacity could Badaru Animashawun and his heirs have taken delivery of the said land in those circumstances other than as a kola tenant As the words used in clause 5(2) are clear and unambiguous they must be given their ordinary meaning. It is one of the established cannons of construction that no gloss should be put on any of the words used. The function of the court is to ascertain what the parties meant by the words which they used.

(See Thames and Mersey Marine Insurance Co. v. Hamilton, Fraser and Co. (1887) 12 App.Cas. 484 (H. L.) at p. 491. In ascertaining what the parties meant, the court must declare the meaning of what is written in the instrument, not what was intended to have been written.

(See Marshall v. Berridge (1881) 19 Ch. D. 233 C.A.)

It is also the duty of the court to give effect to the intention as expressed in the deed and in this respect it is not permissible to guess at the intention of the parties and substitute the presumed for the expressed intention (Smith v. Lucas (1881) 18 Ch. D.531 at p. 542)./a

A lessor is one who lets any property to another by lease for an agreed term which is less than his own estate and who is entitled to the reversion of the property at the expiration of that agreed term. It must be remembered, however, that where the same words, such as the word “lessors” in the lease (exhibit C), have for many years received a judicial construction, it is not unreasonable to suppose that parties have contracted upon the belief that their words will be understood in what we will call the accepted sense; (as per observation of Lord Halsbury L.c. in Thames and Mersey Marine Insurance Co. v. Hamilton, Fraser, and Co. (supra) at p. 490. Therefore, in the instant case, the only interpretation that can be put on the provisions of clause 5(2) of exhibit C, and which we now put, is that at the expiration of the term in the deed of lease exhibit C the land thereby demised should be delivered to the co-lessors. The 3rd defendant (Solomon Obike) was quite aware of the position and that was why he testified that before the expiry of the lease in 1962, he approached the plaintiffs in 1961 and told them that the Mgbelekeke family had promised to make a grant of the land to him as a kola tenant.

The learned trial judge was also in error in holding that instead of claiming possession of the land, the plaintiff’s family should have sought a declaration that the sale is null and void and that the deed of conveyance (exhibit G) be set aside. In the first place, when a party believes or has reason to believe that a transaction liable to affect his rights is null and void, he is under no obligation to ask for a declaration that that transaction is null and void. Moreover, we observe, with respect, that a void transaction cannot be set aside because being void ab initio there could be nothing to set aside. Finally, in an action to set aside a deed (also known as a claim for rescission), the possible parties to the proceedings are ordinarily the persons who were, or who are deemed to have been parties to the deed. In this case, the plaintiff’s family are not a party to the deed (exhibit G). They are, therefore, not competent to bring an action to set aside the said deed.

The next point which calls for determination is this: what is the effect of the deed of conveyance (exhibit G) whereby the Mgbelekeke family conveyed the land in dispute to the 3rd defendant In the first place, the deed was executed on 13th July, 1961, while the deed of lease (exhibit G) was still in force. As we have found earlier, the plaintiff’s family, at the date, were, as kola tenants, one of the two lessors of the 3rd defendant. When the lease expired on 31st December, 1961, the land reverted as well to the plaintiff’s family as the kola tenants. Before the Mgbelekeke family could deal exclusively with the land, as they had done by executing the conveyance (exhibit G) they must terminate this kola tenancy of the plaintiff’s family.

It was not contended, or even suggested, before us that the Mgbelekeke family had determined the kola tenancy of the Animashawun family in the whole land and, that being the case, they were at all material times and still are the kola tenants of the Mgbelekeke family with respect to the land in dispute. The Mgbelekeke family had therefore no such interests in the land to sell to the 3rd defendant and it must follow that the deed of conveyance (exhibit G) conveyed nothing to him and consequently he has no right to be on the land after the expiration of the lease (exhibit C).

The learned trial judge also observed that it could also be contended that the 3rd defendant was a tenant holding over after his lease (exhibit C) had expired in which case an action for possession might lie under the Recovery of Premises Law. The answer to this is that it was not the 3rd defendant’s case that he was a tenant holding over. Paragraph 11 of his statement of defence and the evidence given in support showed, without doubt, that he relied solely on the deed of conveyance (exhibit G) for his possession of the land. As we had pointed out on a number of occasions, it is not the function of a court of trial to raise for the parties issues which they had neither pleaded nor relied upon. The case should be decided on the issues properly raised in the pleadings.

There is one final point to which we must advert. The defendants contended that the plaintiff in bringing “the action for and on behalf of the family of Badaru Animashawun” lacked “capacity” because he could not bring the action without the authority of the family and that as he had produced no such authorisation to sue in a representative capacity, the trial judge was right in non-suiting the plaintiff. In support of this contention, we were referred to three cases-Efiom Duke v. Henshaw 6 W.A.CA. 200; Adegbite v. Lawal 12 W.A.CA. 398; and Chapman v. C.F.A.O. 9 W.A.CA. 18t. The first two of these cases dealt with the representative capacity of the defendants while the trial judge in the last case, after finding that the plaintiff’s had not established their authority to sue in a representative capacity, nevertheless gave judgment in their favour. In the instant case, the plaintiff brought the action as head of the Badaru Animashawun family. His testimony was clear on this point. From this, it is apparent that none of these cases is in pari materia. A case in point, to which we have been referred by learned counsel for the plaintiff is that of Sogunle v. Akerele and Ors. (1967) N.M.L.R. p. 58. There we held that a member of a family may take steps to protect family property or his interest in it; if he has not the authority of the family to bring the action, the family would, of course, not be bound by the result unless for some reason the family was estopped from denying that the action was binding. Thus, if an ordinary member of a family can take steps to protect family property without the family’s authority, the head of the family, such as the plaintiff, is in a much stronger position. It is our view, therefore, that he can take steps to protect family property, and indeed it is his duty to take such steps, with or without the prior authority of the other members of the family. The learned trial judge was therefore in error in holding that the plaintiff lacked the capacity to bring the action.

The appeal succeeds on all the points argued and it is allowed. The plaintiff should have succeeded in his claims in the court below. The judgment of Kaine J., delivered in the Onitsha High Court in Suit No. 0/2/63 on 27th September, 1965, including the order as to costs, is hereby set aside. We accordingly order:

(1) (a) that the third defendant do give up possession of the parcel of land with the buildings thereon known and described as No. 41 New Market Road, Onitsha (and verged pink in plan No. SE. 29/63 of 10th June, 1963) on or before the 30th June, 1972;

(b) That save with respect to the landlord’s rights under the kola tenancy the three defendants, their hiers, successors, servants, agents and assignees be restrained, and are hereby restrained, from any further interference with the customary rights under the kola tenancy of the plaintiff and his family in the said land;

(2) That this shall be the judgment of the court.

(3) That costs to the plaintiff in the court below against all the defendants be assessed at 50 guineas and in this court at 66 guineas.


Other Citation: (1972) LCN/1454(SC)

Ibadan City Council Vs J. O. Odukale (1972) LLJR-SC

Ibadan City Council Vs J. O. Odukale (1972)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C.

This appeal has been brought by the defendant – the Ibadan City Council- in the Ibadan High Court Suit No. 1/218/66 in which judgment was given in favour of the plaintiff herein respondent, in his claim for damages against the defendant Council. An appeal against the judgment was dismissed by the Western State Court of Appeal, which affirmed the judgment of the Ibadan High Court.

This appeal is against the judgment of the Western State Court of Appeal and raises two very substantial and fundamental questions of law, namely, as to whether or not on the facts and circumstances of this case on appeal a Local Government Council:-

(a) is answerable for the acts or defaults of its officials; and

(b) is liable for non-feasance;

or, more explicitly and precisely, as to whether or not an action sounding in damages was the appropriate relief available to the plaintiff in the

circumstances of this case.

The case giving rise to this appeal arose in this way: In 1964 in exercise of the powers vested in it by paragraph (a) of subsection 1 of section 11 of the Road Traffic Law (cap. 113) Western Nigeria, the defendant Council-that is, the Ibadan City Council, promulgated “The Ibadan City Council (Control of Traffic) Bye-laws, 1964” which was published in the gazette as W.N.L.N. 117 of 1964. For the purpose of this appeal the only relevant part of the Bye-laws which need be referred to are Bye-laws 6(1), (2), (3) and (5), the provisions of which are as follows:-

“6(1) No person shall operate or cause to be operated any stage or hackney carriage within the areas of jurisdiction of the Council save under and in accordance with a permit issued by the Council.

(2) The form of such permit and the fees payable thereunder shall be as specified in the Fourth and Fifth Schedules respectively.

(3) An application for a permit shall be as in the form set out in the Sixth Schedule hereto.

(5) A permit referred to in this bye-law shall be taken out on the 1st of January of each year or such later date as the vehicle shall first be operated as a hackney or stage carriage and such permit shall continue in force from the date of issue until the 31st day of December next following.”

By the terms of the provisions set out above, on coming into force of the Bye-laws, to operate any stage or hackney carriage within the area of the jurisdiction of the defendant Council, it became obligatory to obtain a permit from the defendant Council for which a fee of 25pounds was payable in the case of an omnibus, and such permit would only continue in force from the date of issue until 31st December of the year of issue; so that permits were obtained annually and would remain valid and in force till the end of the year of issue.

The Bye-laws came into force on 7th May, 1964. On 18th May, 1964 at the invitation of the defendant Council, by its letter of 16th May, 1964, exhibit A in the proceedings on appeal, the plaintiff together with other transport service operators attended a meeting of the defendant Council’s transport committee of which one Chief Akinloye, the chairman of the defendant Council, was chairman and one Chief Oyesina, the secretary of the defendant Council, was also the secretary. At the meeting the provisions of the new Bye-laws were explained and discussed. Instructions were then given that anyone wishing to run a passenger bus service business in the city of Ibadan must obtain permits at the prescribed fee of 25pounds per vehicle for the defendant Council.

Next day the plaintiff, a transporter since 1956 and the owner and operator of eight passenger buses which had been operating in the city ofIbadan prior to the making of the Bye-laws applied and obtained from the secretary of the defendant Council the prescribed application forms for permit. He duly completed them; but when he submitted them to the secretary for the issue of permits the latter declined to accept them. The secretary explained to him that he could not deal with them himself without the prior approval of Chief Akinloye chairman of the defendant Council who, as already stated, was also the chairman of the transport committee and that the prevailing practice was that all applications for permits must first be submitted directly to the chairman of the transport committee who, if he approved, would initial them, thereby authorising the issue of such permits to applicants.

Acting on the advice of the secretary, the plaintiff promptly delivered his application forms duly completed to Chief Akinloye as chairman of the defendant Council who after accepting the same, deliberately refused to issue the plaintiff with the requisite permits for his buses on the ground that the plaintiff and his employees were members of the United People Grand Alliance-a political party which was in opposition to the Nigerian National Democratic Party-another political party of which Chief Akinloye was a member and which was the party at the material time in control of the Government of Western Nigeria and the defendant Council. Chief Akinloye told the plaintiff that, unless he declared for the Nigerian National Democratic Party and he and his employees supported the Government Party, he would not be issued with any permits for the operation of his eight buses. The plaintiff remained unyielding. He refused to declare support for the Government Party. So too was Chief Akinloye. He remained adamant and refused to issue the plaintiff with any permit despite the intervention of other persons on behalf of the plaintiff. On the other hand, permits were issued to those who declared for the Nigerian National Democratic Party and supported the Government of the day.

The result of this was that for that year the plaintiff could not operate his eight passenger buses in the city of Ibadan. The buses remained idle up to some time in 1966: and the plaintiff thereby sustained losses and damage and his 56 employees were thrown out of job. Then in January 1966 there was a military coup d’etat the consequences of which were the formation of a military government, the dissolution of the defendant Council and the appointment of a sole Administrator who took charge of the administration of the affairs of the defendant Council. The plaintiff thereupon petitioned the new military government about his plight under the dissolved Council. As a result, the plaintiff and all those like him who were refused permits by the dissolved Council, were immediately issued with permits which enabled them to resume their transport business in the city of Ibadan.

The plaintiff was issued with permits in July 1966, and, on or about 21st December, 1966, he instituted proceedings, the subject matter of this appeal, against the defendant Council and another, the defendant Council being therein shown as the second defendant, claiming:-

“The sum of 15,000pounds being special and general damages suffered when the defendant continuously and wrongly refused the plaintiff permit to operate bus transport within Ibadan City between June 1964 and June 1966 (both months inclusive); or in the alternative, being special and general damages suffered as a result of the defendants non-feasance of their statutory duties of issuing bus permits under the Ibadan City Council (Control of Traffic) Bye-laws 1964 made by virtue of section 11 subsection 1 (a) of the Road Traffic Law 1959 (cap. 113).”

Pleadings having been ordered and duly filed and delivered, the case was heard by Delumo J. who found and entered judgment for the plaintiff in the sum of 8,000pounds as special damages for loss of earnings at the rate of a340 per month for each of the eight buses for a period of 25 months. The plaintiff was also awarded 60 guineas costs. In the course of his judgment the learned trial judge in determining liability said, inter alia:

“I believe the evidence of the 5th and 6th pl.ws. and indeed the evidence of the plaintiff and his witnesses. Without permits, the plaintiff could not operate his buses during the material period without contravening the provisions of section 6(1) of the Ibadan City Council (Control of Traffic) Bye-laws 1964 punishable under section 9 of the same Law.

I am satisfied on the evidence that the continuous refusal of the 2nd defendant to grant permits to the plaintiff between 1964 and 1966 was wrongful. ”

The claim against the 1st defendant was, however, dismissed for the reasons therein stated by the court.

On appeal to the Western State Court of Appeal by the defendant Council the issues contested were the same as those contested before us in this Court. It is of interest to note that in his reply to the contentions of learned counsel for the defendant, the learned counsel for the plaintiff submitted, among other things, that “the basis of the action” by the plaintiff against the defendant “is non-feasance on the part of the secretary in refusing to accept the fee of 25ponds”; that “the plaintiff’s cause of action is one of non-feasance of duty which the Council committee assumed under Bye-law 6”; that if the action had been in mis-feasance the point of ultra vires raised by the appellant might have been arguable. Thus the plaintiff all the time was emphatic that his claim to be entitled to damages is based principally on non-feasance of the statutory duty imposed on the defendant Council.

In a reserved judgment, the Western State Court of Appeal held that the plaintiff was refused permits for the operation of his buses because he was not a member of the Nigerian National Democratic Party; that Chief Akinloye was the alter ego of the transport committee and of the defendant Council for the purpose of the issue of permits under the Bye-laws; that Chief Akinloye as the chief functionary of the transport committee was the directing mind and will of both the committee and the Council; and that for those reasons the defendant Council was liable for the acts or omissions of Chief Akinloye; and finally, that the learned trial judge was right in finding for the plaintiff as a proper cause of action was disclosed by the writ of summons. As already stated the defendant Council’s appeal was dismissed with 60 guineas costs, the award of 8,000ponds as special damages for a period of 25 months to the plaintiff being thereby affirmed. The cross-appeal by the plaintiff on the damages which were disallowed by the learned trial judge was also dismissed with 20 guineas costs to the defendant Council.

This appeal as hereinbefore stated is against that judgment. There was also filed an application by the plaintiff of his intention to contend at the hearing of the appeal that the decision of the courts below be affirmed on some other grounds, the particulars of which were set out in the said application. For the reasons which will appear in this judgment it will not be necessary to consider this application.

For the defendant Council, seven grounds of appeal were filed and argued. The first three grounds of appeal which were argued together raised in effect, as already indicated above, the question as to whether or not on the facts and circumstances of the present case a Local Government Council, that is, the defendant Council, is answerable for the acts or defaults of its officials. These grounds are in substance in the following terms:-

“(1) The learned Judges of Appeal misdirected themselves in law in holding as follows:-

The committee headed by Chief Akinloye which no doubt exercised the act of issuing permit by granting the permit only to members of N.N.D.P. obviously refused the issue of the permit for the same reason that the applicant is not a member of that party … The position in which the Council thus placed Chief Akinloye in this case no doubt is one which exceeds the status of mere servant or an employee to whom the provisions of sections 99-107 of the Local Government Law (Cap. 68) would apply. That committee is the alter ego of the Council in so far as the issue of permit under the Bye-laws is concerned and Chief Akinloye occupies the post of the chief functionary of the committee. In fact he was the directing mind and will of the committee a fortiori of the Council, in so far as the act of granting permits to bus operators is concerned. In our view, a master who puts a servant in a position in which that servant becomes the sole judge of what to do in performing certain acts takes responsibility for such wrong as may be committed in performing those acts.”

(Particulars of misdirection complained of which we consider unnecessary to reproduce were clearly set out following upon this ground).

“(2) The learned judges erred in law in failing to observe that one of the real issues before them on the appeal was whether, in the absence of evidence that there was a resolution or decision of the Council that permits be issued only to members or supporters of the N.N.D.P., a court of law ought to presume that any agent or servant of the Council who refuses to grant permit to the plaintiff because of his political alignment, must have done so pursuant to the implied authority of the Council.

(3) The learned judges erred in law in thinking that the Poulton case was modified by subsequent decisions.”

In his submissions on these grounds, learned counsel for the defendant contended that the charge of refusal to grant permit to the plaintiff was on the pleadings and on the evidence made directly against the defendant Council and not on the basis of vicarious liability for the acts of Chief Akinloye as chairman of the defendant Council and of the Transport Committee, as was held by the Western State Court of Appeal; that the learned trial judge in the High Court did not have any opportunity of ever giving consideration to the application for permit, let alone to grant such permit; that in any case, the act of refusal to grant permits to the plaintiff because he was not a member of a political party was ultra vires the Council; that on the principle of law as stated in Halsbury’s Laws of England Vol. 9 3rd Ed. paragraph 179 at page 88 the defendant Council could only be answerable for the acts or defaults of Chief Akinloye if the latter acted within the scope of the defendant Council’s authority either express or implied; that the only effective means of proving that Chief Akinloye had the authority of the defendant Council for his action was by the production and exhibition in the proceedings at the trial of the case of a resolution to that effect, and that no such resolution was in fact exhibited; and that again, on the principle of the maxim delegatus non potest delegare, since the power to issue permits was delegated by the defendant Council to the transport committee the latter was not competent to delegate such function to Chief Akinloye, and that any such delegation was illegal and void, in which case, the defendant Council could not be answerable for such illegality.

In support of his contention that the charge of refusal to grant permits to the plaintiff was made directly against the defendant Council and not on the basis of vicarious liability, learned counsel referred to paragraphs 10 and 25(b) of the amended statement of claim which read as follows:-

“10. Notwithstanding the immediately preceding paragraph, the permits of the plaintiff’s buses were arbitrarily and wrongfully withheld and subsequent issue refused.

  1. (b) That it is not the Ibadan City Council (Control of Traffic) Bye-laws, 1964 itself that inflicted damages on the plaintiff, but the continuous refusal of the defendants to perform their duties thereunder lawfully, as expressed in paragraph 5 above and which refusal was persisted in until July 1966.”

In respect of the submission that as the act of refusal to grant permit to the plaintiff merely because he was a member of an opposing party being ultra vires the Council, such refusal could not be held against the defendant, learned counsel placed reliance, correctly in our view, on the case of Poulton v. London and South Western Railway Co. Ltd. (1867) L.R. 2 Q.B. 534 and in particular on the statement of the law by Lush J. in Campbell v. Paddington Corporation [1911] 1 K.B.869 when he said lt pages 877 to 878:-

“The second contention was that the act of the defendant was illegal and that therefore the only person to be sued in respect of it are those individuals who authorised it. In support of this contention the case of Poulton v. London and South Western Railway Co. was cited. In that case a Station Master, being a servant of the defendants, without any instructions or authority from the defendants gave the plaintiff into custody for refusing to pay for the carriage of his horse. The question was whether the act of the Station Master in giving the plaintiff into custody was within the scope of his employment. It was held that, as the defendants themselves could not lawfully have done the act, it could not be within the scope of their servant’s employment to do it.”

We do not, however, agree with the learned counsel that the Western State Court of Appeal was of the view that because Poulton v. London and South Western Railway Co. (supra) was modified by subsequent decisions it was no longer good law. Contrary to that contention, it is our view that the Western State Court of Appeal was at pains to show that in spite of subsequent decisions, and, in particular, the attempt by Blackburn J. to limit and distinguish the decision in Poulton’s case from Moore v. Metropolitan Railway Co. (1872) L.R. 8 Q.B. 36 and Goff v. Great Northern Railway Co. 30 L.J. Q.B. 148, the decision was still good law which is still being followed by the courts. In this connection the Western State Court of Appeal said:-

“There is no gainsaying it that despite Blackburn J.’s clear explanation in the Moore case and the limitation placed thereon by that judge the courts had followed on several occasions the Poulton case as an authority for holding the master not liable on the grounds that he would have had no power to commit the particular tort alleged. ”

And further:-

“Notwithstanding the decisions in the Poulton case and its follow up in these other cases, one thing is clear to us that it is the facts of each case that will determine whether the servant had implied authority or not. For to use the words of Lord McMillan in Northumbrian Shipping Co. v. McCullum [1932] All E.R. [Reprint] 138 at p. 141:-

‘The circumstances and incidents of employment are almost of infinite variety. ”

On the basis of the above principles the Western State Court of Appeal proceeded to examine the evidence in order to ascertain whether there was any limitation placed on the power or authority of Chief Akinloye bearing in mind that he was chairman both of the defendant Council and of the transport committee and came to the conclusion, we think rightly, that the defendant Council in appointing the transport committee did not lay down any procedure to be adopted by it in approving the issue of permits to bus operators. No criteria were laid down by the Council for the guidance of the committee. Everything was left to the unfettered discretion of the committee. It held also that the defendant Council attached considerable importance to the committee, hence it placed its own chairman as the chairman of it. We think the Western State Court of Appeal was right to hold that the position in which the defendant Council had placed Chief Akinloye was one which exceeded the status of a mere servant or an employee, to whom the provisions of sections 99-107 of the Local Government Law (Cap. 68) would apply; for Chief Akinloye certainly occupied the position of the chief functionary of the committee. He was on the evidence the directing mind and will of the committee and a fortiori of the Council for the purposes of the grant of permits to bus operators.

As learned counsel for the plaintiff rightly contended, the onus was upon the defendant Council to show that what was done by chief Akinloye had not its approval, and to establish by evidence the restrictions which were imposed on the exercise of power by Chief Akinloye. Unlike the situation in Jarmakani Transport Limited v. Madam Wulemotu Abeke [1963] 1 All N.L.R. 180 in which the appellants therein successfully showed by evidence that by carrying passengers contrary to their instructions their driver acted outside the scope of his employment, the defendant Council in the present case made no attempt whatsoever to establish the limits, if any, which were imposed upon the exercise of power by Chief Akinloye as chairman of the transport committee; nor was there any evidence as to the specific policy of the Council in respect to the issue or grant of permits for the operation of omnibuses in the city of Ibadan. Indeed, the line of defence was not that in refusing the plaintiff permit, Chief Akinloye was on a frolic of his own and therefore acted without the authority of the defendant Council. Rather than exculpate or exonerate itself from any excesses or abuse of power by Chief Akinloye, the defendant Council was engaged in a defence of justification.

As was observed by the learned trial judge in his judgment, no attempt was made by the defendant Council even to establish by evidence the defence which was pleaded in paragraph 18 of the statement of defence to the effect that:-

“The defendant did not consider the applications of the plaintiff because the Ibadan Transport Bus Owners Association of which the plaintiff is a member by their letter dated 22nd May, 1964, refused to accept and/or comply with the conditions stipulated by the Council for the grant of permit.”

In the absence of the letter of 22nd May, 1964, which was never produced during the trial even though specifically pleaded, and of any evidence to the contrary would it be unreasonable to infer that the conditions stipulated for the grant of permit by the Council included becoming a member of or declaring for the Nigerian National Democratic Party which was the political party in control of the Council We think not.

That the defendant Council attached considerable importance to the transport committee and the grant of permits to applicants cannot be denied and is beyond argument. That must account, as was held by the Western State Court of Appeal, for the defendant Council placing its own chairman who may be regarded as the chief exponent of its policy in full charge of it; and, on the evidence, it is equally clear that the chairman, thus entrusted, administered the affairs of the committee with the full support of the defendant Council. His activities in this respect were never denounced by the defendant Council. On the facts of this case matters of this kind cannot be treated as a purely abstract proposition. We think here that the words of Lord Dunedin in Lennards Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. [1915] A.C. 705 in connection with the application of section 502 of the Merchant Shipping Act are pertinent. He said at p. 715 of the report:

“The real question therefore turns upon what is to be the application of the words there used to a metaphysical conception like an incorporated company which cannot act directly themselves …. I do not think it arises in this case, and I certainly incline to the opinion that it would be found always to depend upon the particular facts of the case. If I was bound to decide affirmatively in this case, I should be inclined to think that there was enough known about Lennards to show that, to use the appellant’s learned counsel’s own phrase ‘he was the alter ego of the company’. He was a director of the company. I can quite conceive that a company may by entrusting its business to one director be as truly represented by that one director as in ordinary cases it is represented by the whole board. I am quite sure that you cannot at least put as a general proposition in law that it is true that nothing will ever be the actual fault or privity of an incorporated company unless it is the actual fault of the whole board of directors. But, my Lords, I think the true criterion of the case is that which was found and applied by Hamilton L.J. that the parties who plead this 2nd section must bring themselves within its terms and therefore the question is, have the company freed themselves by showing that this arose without their actual fault or privity I think they have not. … Anyway, they have not discharged the onus which was upon them.”

It is abundantly clear that on the facts of this case the defendant Council failed to discharge the onus upon it of showing that what was done by Chief Akinloye was without its knowledge, authority or approval and that it was not privy thereto.

Then there were the averments contained in paragraphs 6 and 7 of the amended statement of claim which are as set out hereunder:-

“6. At a certain time, Mr A.M. Akinloye was the Chairman of the Transport Committee of the 2nd defendant Council.

  1. The Committee referred to in paragraph 6 above is an arm of the 2nd defendants charged with the responsibility of controlling and regulating transport generally in Ibadan City.”

These averments were admitted in paragraphs 4 and 5 of the statement of defence as follows:

“4. The 2nd defendant admits paragraph 6 of the plaintiff’s statement of claim.

  1. The 2nd defendant admits paragraph 7 of the plaintiff’s statement of claim.”

In view of these admissions and other facts established by evidence accepted by the learned trial judge, we consider that the criticisms of the Western State Court of Appeal on this aspect of the case in describing Chief Akinloye as the alter ego of the committee and of the Council were unjustified. We are satisfied on a critical examination of the evidence and hold that the Western State Court of Appeal came to a right decision when it took the view that the defendant Council was answerable for the acts or defaults of its official, Chief Akinloye, and that the latter was the directing mind and will of both the committee and the defendant Council. The first three grounds of appeal therefore fail.

The most serious problem posed by this appeal is to be found in the second question in grounds 4 and 7, the substance of which may be set out thus:-

Accepting all the facts pleaded and proved by the plaintiff in this case, was an action sounding in damages the appropriate relief open to the plaintiff Or as was consistently and repeatedly asserted and argued by learned counsel for the plaintiff that the basis of the plaintiff’s case was non-feasance, is the defendant as a corporation aggregate, a local government council, liable in damages in an action the foundation of which is non-feasance as distinct from misfeasance

In dealing with this aspect of the case the learned trial judge in the High Court in a passage which may aptly be described as a classic in brevity in an otherwise long judgment said:-

“I am satisfied on the evidence that the continuous refusal of the 2nd defendant to grant permits to the plaintiff between 1964 and 1966 was wrongful.”

This finding is vague and unsatisfactory in at least two respects. In the first place, the evidence before the court was that under the Bye-laws permits were granted annually to applicants. To obtain a permit there must be an application on a prescribed form accompained by the payment of the prescribed fee. In other words, in each year there must be a fresh application and the payment of the prescribed fee before a permit could be issued to an applicant. It follows that until an application for the grant of permit was made to the Council and refused there could not be a wrongful act, and each application made and refused would constitute a separate and distinct wrongful act which may entitle the plaintiff to some relief. On the evidence the only application for the grant of permit made by the plaintiff was in 1964, which was refused. There is no evidence that thereafter fresh applications were made and refused before the coup d’etat. It is therefore not in accord with the evidence before the court for the learned trial judge to have described the single refusal made in 1964 as “the continuous refusal of the second defendant to grant permits to the plaintiff between 1964 and 1966”. In our opinion, the learned trial judge was in error to have taken into consideration the period 1965 to 1966 in the award of damages to the plaintiff; and the Court of Appeal was also wrong to have confirmed the quantum of damages awarded in those circumstances.

In the second place, it is not all wrongful acts which are actionable torts, and the present action is based on tort. The learned trial judge, with respect, failed to identify the nature of the wrong which the act of refusal to grant the plaintiff permit constituted and the cause of action disclosed by the pleadings and the evidence in the case, and whether the same could constitute a proper foundation for an action sounding in damages. It seems to us that a mere refusal to grant the plaintiff permit might well fall within the category of wrongs classified by the learned authors of Winfield on Tort as “Doubtful Wrongs”, it being an abuse of statutory power over a person’s means of livelihood, which, if even it is a wrong, may still be insufficient to support a claim for damages in tort. (See Winfield on Tort, 8th Ed. p. 516).

The view expressed and the conclusion reached by the Western State Court of Appeal on this aspect of the case do not appear to improve matters. The Western State Court of Appeal’s decision was that a proper cause of action apparently entitling the plaintiff to damages was disclosed. To put it in the language of the court, it said:-

“From this one can take it further and after examination of the writ of summons one would conclude that a cause of action has been disclosed against the defendant/Council.”

The decision of the Western State Court of Appeal was undoubtedly based on the authority of the judgment of the Privy Council in Asokam Kumar David v. M. A. M. Abdul Cader [1963] 3 All E.R. 579. The Western State Court of Appeal relied heavily on a passage of that judgment which was delivered by Viscount Radcliffe. Having examined the judgment of the Privy Council in that case, we are satisfied that the Western State Court of Appeal, with respect, was in error to have based its judgment on it. For, it failed to appreciate two fundamental issues dealt with in that judgment, the first of which being that the claim of the plaintiff in that case was based on delict under Roman Dutch Law which does not operate in this country. The Privy Council itself took the trouble to point out that the Supreme Court of Ceylon was wrong in law to have based its decision on English law, that is, on the decision in Davis v. Bromley Corporation [1908] 1 K.B. 170, for although the facts of both cases were similar, the laws applicable were different.

Secondly, the Western State Court of Appeal failed to realise that David v. Cader (supra) was dismissed on a preliminary objection raised in limine on the application that the plaint did not disclose a cause of action. It was the view of the Privy Council that the dismissal was wrong at that stage of the proceedings as there were triable issues raised on the pleadings. The case was therefore sent back for a proper trial of the issues in controversy between the parties. There is no information available to us as to how the case finally ended.

The Western State Court of Appeal, with respect, appeared also to have overlooked the insistent assertion on the part of learned counsel for the plaintiff that his claim in the case on appeal was based on nonfeasance. In the writ of summons the damages claimed were expressed to have been suffered as a result of the defendant Council’s non-feasance of its statutory duties of issuing city bus permits under the Ibadan City Council (Control of Traffic) Bye-laws, 1964. Reference has already been made to the averment contained in paragraph 25(b) of the statement of claim.

It is a well-known fact that judicial redress can more readily be obtained for wrongful acts than for wrongful omissions on the part of a public authority like a local government council. The courts have always regarded with disfavour a claim against a local authority on the ground of non-feasance.

In Wilson v. Kingston-Upon-Thames Corporation [1949] 1 All E.R. 679 a hole in an asphalt road way was temporarily repaired by the Highway Authority by filling it with tarmacadam. The road again became in need of repair and the plaintiff, as a cyclist riding over the hole, was thrown from his cycle and injured. He brought an action for damages against the defendants, the Highway Authority, on the ground that they had carried out repairs to that part of the highway so negligently that it had again become out of repair by the time of the accident. Morris J. held that the lack of repairs of the highway arose from non-feasance and not from mis-feasance in repairing the road negligently, and, therefore that the defendants were not liable. That decision was affirmed on appeal by the Court of Appeal.

In Burton v. West Suffolk County Council [1960] 2 W.L.R. 745, it was held, inter alia, that even where a highway authority had carried out drainage work, failure to provide adequate drainage by not doing sufficient work was an act of non-feasance for which the highway authority was not liable. (See also Sheppard v. Glossop Corporation [1921] 3 K.B. 132).

It may therefore be asked: does it mean that in a case such as the one under review a plaintiff is altogether without a remedy The answer to that question must be in the negative. We think that it would be foolhardy to hold that the plaintiff who, on the evidence in the case on appeal, had suffered considerable injury to his business would have no remedy in law. The problem in this case is the form which such a remedy should take. We think the courts have from time to time declared appropriate remedies which are available. For this purpose, we would content ourselves by referring to only two decided cases which we consider relevant and pertinent on the point.

In Davis v. Bromley Corporation (supra) it was held that an action would lie against a local authority for maliciously refusing to approve building or drainage plans deposited with it; and if a local authority, in rejecting the plans, has been actuated by improper motives, and has merely pretended to exercise its powers without addressing its mind to the question before it, the remedy of the person aggrieved is by a mandamus to the local authority to hear and determine his application.

In dealing with the question as to the remedy available to the plaintiff in that action, Vaughan Williams L.J. in his judgment said at p. 173:-

“if it is suggested that the result of our decision, affirming that of Lawrence J., would leave the plaintiff without a remedy, the answer is that, although an action for damages will not lie, there is nevertheless a remedy where the court can see from the facts that, although the local authority has made a pretence of exercising its power, it has, neverthless, in truth and in fact, never addressed its mind to the question before it; in such a case a mandamus to hear and determine the matter might be obtained in the King’s Bench Division.”

(See also Glossop v. Heston and Isleworth Local Board (1879) 12 Ch. D. 102).

In more recent times there is the case of Nagle v. Feilden and others [1966] 2 Q.B. 633. There a woman racehorse owner and trainer was refused a licence on the ground, as she alleged in her statement of claim, of her sex by the defendants therein as representatives of a Jockey Club whereby she suffered loss and damage. She brought an action against them claiming a declaration, injunction and damages. Her action was dismissed on the application of the defendants on the ground that it disclosed no cause of action. She appealed finally to the Court of Appeal. In allowing the appeal, Lord Denning M.R. said in part at p. 644:-

“The common law of England has for centuries recognised that a man has a right to work at his trade or profession without being unjustly excluded from it. He is not to be shut out from it at the whim of those having the goverance of it. If they make a rule which enables them to reject his application arbitrarily or capriciously, not reasonably, that rule is bad. It is against public policy. The court will not give effect to it.”

And further at p. 647:-

“I do not think that this statement of claim should be struck out.

If the facts which the plaintiff alleges are proved, she may have a good case to ask for a declaration and injunction. I would allow the appeal accordingly. ”

We have gone into the trouble of referring to and dealing with these cases in order to show that in all the circumstances of this case on appeal, having regard to the endorsement on the writ of summons, the averments in the statement of claim and the evidence which was accepted by the learned trial judge, the plaintiff’s action in the form in which it was constituted was not competent. The defendant Council cannot be made liable in damages for non-feasance which the learned counsel for the plaintiff repeatedly insisted was the basis of the claim for damages. We are satisfied and hold (albeit reluctantly as our sympathy naturally goes to the plaintiff), that, (although the plaintiff might have been entitled to a declaration that, having fulfilled all requirements, he was entitled to permits for his vehicles or that a mandamus should issue against the defendant Council to compel it to grant him permits), an action, such as the present sounding, as it is, in damages is not the appropriate relief available to the plaintiff. An action for damages does not lie in the circumstances of this case.

In the result this appeal succeeds. It is allowed. The judgment and orders of the Ibadan High Court awarding the plaintiff ‘a38,000 damages with 200 guineas costs and of the Western State Court of Appeal dismissing the defendant Council’s appeal and affirming the said judgment with 60 guineas costs against the defendant Council are hereby set aside.

We order that the plaintiff’s claim in the High Court be and it is hereby dismissed with 200 guineas costs to the defendant Council. The defendant Council is also awarded costs in the Western State Court of Appeal and in this Court assessed and fixed at 100 guineas and 74 guineas respectively.


Other Citation: (1972) LCN/1397(SC)

Aliyu Nmodu V. The State (1972) LLJR-SC

Aliyu Nmodu V. The State (1972)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, AG. J.S.C.

The appellant who was the accused in charge No. KWS/11C/71, was arraigned before the Ilorin High Court on a charge of Culpable Homicide contrary to Section 221 (b) of the Penal Code. He was tried and convicted by Adesiyun, J., and sentenced to death on 29th October, 1971. He appealed to this court against his conviction. The appeal was heard on the 5th of April, 1972, and was dismissed.

The facts which were established before the learned trial Judge were as follows: the 1st prosecution witness, one Baba Dumagi visited Shesitagi on 8/2/71 which was the second day of the Sallah; he found on arrival at the premises of the deceased, one Nnawo Audu, that she was being beaten by the accused; she Nnawo Audu (later deceased), was bleeding from the nose and the mouth as a result of the beating. The accused then pushed the deceased to the ground, and placed a stone on her chest and a mortar on her abdomen. He then pressed the stone on to the chest of the deceased by standing on it. He later stood on the mortar placed on the abdomen of the deceased and jumped on it. As a result of this some excreta was thereby forced out from the deceased. The accused went and collected some grasses from the roof of a nearby disused hut and spread it over the body of the deceased and sprayed some pepper over the body as well.

He then lit the grasses and the deceased was burnt. On completion of this dastardly act the accused left the scene and went back to his village, Ndakasa. On the following day the deceased, Nnawo, died. The 1st prosecution witness, one Baba Dumagi, was the first eye witness of the incident and saw all that happened for two and half hours. When he challenged the accused as to the cruelty he caused by his acts, the accused threatened to kill him. The 2nd prosecution witness, Ndagi Yababo, the 3rd prosecution witness, Nda Kassim, and the 4th prosecution witness, Baba Tetengi, also witnessed the incident having arrived at the scene a little after the 1st prosecution witness. They gave evidence which corroborated that of the 1st prosecution witness.

The Etsu of Shonga, one Alhassan, gave evidence that on information received and having seen the corpse of the deceased at Shesitagi, he went to Ndakasa village and there arrested the accused. He later drove to Shonga in the company of the accused who was later handed over to the Police.

A son of the deceased, one Nmodu Kawu, who gave evidence as the 6th prosecution witness told the court that his brother, one Shabe, told him that he sent for the accused when his wife, Adisetu, who was ill, alleged that the deceased, the mother of 6th prosecution witness and Shabe, bewitched her and that that was the cause of her illness. Shabe admitted to this witness that when the accused came he started to beat their mother, the deceased.

The 7th prosecution witness is the constable, who arrested the accused and took him to Shesitagi on 10/2/71. His evidence as regards what happened at Shesitagi reads thus:

“I found the deceased covered with a piece of cloth there. The accused when asked told me that he used a mortar and a stone on the deceased. He added that he set fire on the deceased. The accused showed me the place where he set fire on the deceased. It was the accused who on picking the stone handed it over to me. The accused alleged that it was one woman called LAMUYE that asked him to punish the deceased.”

The witness later collected the mortar and the stone alleged used on the deceased. He also took the corpse to the General Hospital at Ilorin.

Under cross-examination the 7th prosecution witness said:

“I brought Lamuye to the State’s C.I.D. Ilorin. At the scene of the crime, the accused told me that he used mortar, stone and fire to punish the deceased.”

Dr. (Mrs.) Subbash Sharma performed the post-mortem examination on the body of the deceased. She gave evidence as the 12th prosecution witness, stating her findings thus:

“I discovered extensive superficial and deep burns over face, neck, hands, back and front and back lower limbs including her genitals. Both the feet had escaped bums; hairs were burnt on the sides, at front and back. She had prolapse uterus and haemorrhage. The cause of death was due to shock due to extensive burns of the whole body.”

The statement made in Nupe by the accused on caution is Exhibit H and the English translation, Exhibit H 1. He narrated how one Lami Iye, who later gave evidence as Defence Witness 2, requested him to accompany two men to whom she gave three types of medicine to be applied to a sick woman referred to as Sule’s wife. He also gave account of how he rubbed two of the medicines on the body of the sick woman and that her husband rubbed the third around her waist. The statement then continues

“After I informed the woman to release (relax) I left there for my lodging place leaving the deceased and the sick woman. One of the deceased’s children sent somebody for me to come that he was happy for the help rendered. I told him not to be happy of what I had done but that they should thank God. That their mother was crying because of cruelty. One of the woman’s children said I should punish the deceased well. She would release (the name of the) her gangs, and give me one pound. When I got the money I left for my house. After that I saw a man whom I told to branch to my house whenever is passing by. When he was coming I get up and met he on the way and gave him one pound to be handed to Lamiye. On that night people gathered together because of this matter. I then called the deceased asked her, are you the one killing this woman who was praying to deliver Then she replied yes that she wanted to kill her. I then told her lye (lie) down, I then placed mortar on her stomach and waged (wedged) the mortar with a stone in order not to fall. When the mortar was so long on her stomach then, she told me to bring it down, that she should like to talk to me. She then said that she had ever trained the sick woman’s child because the father of the sick woman had done good for her, because she has trained the sick woman’s daughter and she had got married. I then told the deceased that her children had requested me to punish her (the deceased) that was why I placed the mortar on her. On the very night I left the village and returned back to Dumagi and showed to Lami lye all that I had been given from there, and she asked me to put it there together with the gown, trouser and shoes. I went to my father to greet him and he said the person whom I was sent to is dead.”

The accused, in his defence at his trial, denied the allegation that he beat and burnt the deceased woman. On the contrary, his version was that someone else must have caused the death of the woman. In his evidence he said inter alia:-

“It was getting to sunset, I asked that I be given water to perform my absolution so that I may say my prayer. I was using the water when Momoh called me. I went to him and saw him holding 1pound currency note. Momoh pointed at the deceased and told me she was not his mother but she had bewitched four people already. Momoh then asked me to ask the deceased if she wanted to bewitch Adisetu. The deceased answered me that she was bewitching Adisetu.

The deceased at that time squatted near a mortar. Momoh pushed her and she fell over the mortar. She stood up. Someone went to a nearby dis-used grass hut and brought a bundle of grass and lit. People gathered round the deceased looking at her.”

The 2nd Defence witness is one Lamiye Dumah. Her evidence was that one Alhaji came to her to report the illness of a sister and met the accused with her. As she could not go with Alhaji to Shasitagi, she gave him some medicine for his sick sister. Accused volunteered to follow Alhaji since she could not go. The witness denied sending accused to Shasitagi. The accused on his return from Shasitagi told the witness that Alhaji gave him 1 pound, a pair of shoes and gown which were kept in her premises by accused without per knowledge.

The 3rd Defence witness, one Suleiman Shasitagi, admitted that he accompanied Alhaji to D.W. 2 to solicit her help in respect of his sick sister. He said that, as the D.W.2 could not follow them and, after seeing the sick woman, ordered everybody out of the premises and this witness left for his farm.

The 4th Defence witness, one Momo Audu, is a son of the deceased woman. He denied that he was present when his mother was being beaten. He admitted giving 1 pound to the accused because he had treated his brother’s wife. The stage at which the gift of 1 pound was made was not stated.

The 5th Defence witness is one Alhaji Mohammed. While he admitted bringing the accused to Shasistagi to treat his sister, he denied any knowledge of the treatment meted out to the deceased woman. He admitted giving a gown and a pair of shoes to the accused for successfully treating his sister.

The 6th Defence witness is Adisetu Shasistagi, who was alleged to be ill and treated by the accused. Although she remembered being ill she could not remember who treated her and stated that her cure was due to God.

The learned trial Judge, after a review of the evidence before him, held that the prosecution had proved the case against the accused beyond reasonable doubt. He therefore found the accused guilty of the offence of culpable homicide punishable with death.

Mr. F.O. Akinrele, the learned counsel for the appellant said that he could not find anything to urge in favour of the appellant. We have also considered the findings of the learned trial Judge, and on the evidence before him, we see no justification to disturb the verdict. We hold that the appellant was rightly convicted and we dismissed his appeal.


SC.334/71

Abudu Salawe Vs The State (1972) LLJR-SC

Abudu Salawe Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, AG. J.S.C. 

The appellant was on 8th of October, 1971, convicted on a charge of murder and sentenced to death at the High Court, Auchi by Omo-Eboh, J. He appealed against his conviction to this court and on the 22nd of November 1971, the appeal was heard and dismissed.  We now give our reasons for so doing.

The appellant, Abudu Salawe is one of the children of one Salawe Okhidemhen (now deceased). The appellant and his brothers lived together with their father in the same house at Apana village near Jattu in Auchi Division.

On 2nd December, 1970 at about 7 p.m., Salawe Okhidemhen (the deceased) went to a nearby mosque to say prayers. He was about 80 years of age. On his return from the mosque he hung his chalice on the wall of his parlour and changed his dress. Whilst doing so the appellant fired a gun at  him. As a result he could not stand on his own and learnt against a wall until two of his children came to his assistance. He was later carried to his room but by this time he had died. After firing the fatal shot from his gun the appellant tried to escape by running away.
The medical officer, who performed a post mortern examination on the corpse gave evidence as the 5th prosecution witness. He said-

“I examined the corpse at about 12.40 hours on that day 3/12/70 and found as follows-

1.The corpse was fresh; no decomposition.

2.The height was about 5 feet 6 inches; the head was shaved of hair the  beards were grey; the eyes were black.

3.I observed a gunshot wound with nine (9) entry-wounds extending on the right axilary to the left axilary i.e. from the right armpit towards the left armpit.

5.There was only one exit wound on the left fourth intercestal space i.e. in between the ribs of the left side about the mid axilary line.

6.There was clotted blood in the mouth and the nostrils.

7.The body had on a knicker and was covered with a wrapper.

In my own opinion, I certify the cause of death to be shock secondary to primary haemorrhage arriving from gunshot wound described above.

The probable date of death is 2/12/70. This wound, in my opinion, could not have been self-inflicted.”

The appellant in his defence at his trial alleged that his father (now deceased) poisoned him about 17 years before the date of the incident; that the poison was administered through a wife of the father by the name of Gibia; and that since then he had nursed a feeling that some pain in his chest and eyes was caused by the poison.  Strangely enough this did not seem to have prevented him from qualifying as a shoe maker and umbrella repairer. He did so well in his trade that he was able to give his father, (the deceased), a sum of 50(pounds) when the latter went on Holy Pilgrimage to Mecca. On his return from Mecca his late father fell ill. The appellant also contributed a sum of 35(pounds) towards the cost of his treatment. In spite of these financial contributions however, it would appear from his evidence that the appellant entertained the impression that his father hated him, because he failed to obtain a cure from the alleged poisoning of more than 17 years ago.

What appeared to be the immediate cause of the incident leading to the death of the father of the appellant had to do with appellant’s desire to get a wife.  In his statement to the Police Exh. ‘B’ dated 7/12/70, the appellant stated inter alia as follows-

“This year when I see say my father dey well small, small, I ask him say he help me look for one girl make I marry and I give am 60(pounds).  Instead make he marry this girl for me, he marry the girl for himself and the girl dey for my father house now. The name of the girl nan (Oshi Ogboni) Then me kill my papa and I shot am with gun. I kill am for about 7 o’clock for evening. I see say they don load the gun and they keep it inside my father room behind his cupboard before I take am and kill my father with am.
xxx
My father be dey come from the mosque when I see say he don reach verandah of our house, I tell am say my father, you don finish today and when he see say I don stretch the gun he want come hold me before I just shoot him.”
In another statement, Exh. ‘H’ made on 4th December, 1970, but confirmed before a Senior Police Officer on 8/12/70, the appellant stated inter alia thus-

“Whenever I see the deceased my mind will not be sweet. I told one Abutude of Auchi, one Alhaji Kalua, one Alhaji Lasuru and Chief of Iyare to help me to beg my father the deceased to cure me. I also told one Isinekhua and one Imamudu of Apana, because they were only the people who could advise the deceased.  When I see that the deceased could not take to their advice, I took up gun and fired him. The gun is now inside the bush.”

In his evidence in defence at his trial on 21st August, 1971, the appellant said inter alia thus:-

“My father and family say that I am impotent but I know that I am not impotent and that I do have sex with women hence I worked for money to marry a woman and I gave the money to my father. I showed the daughter of Mrs. Tokhana to my father as the girl I liked for a wife. We all started tending the girl. At last the girl was married to our house and my father said that the girl is his own wife and not mine. I went to Mrs. Tokhana and complained to her and quarrelled with her family.

After some time, I approached my father and asked him what the position was about a wife for me and he named and compared me with Buari of Auchi and Aileru of Ibie who are all mad people and said that I was not better than them.
xxx
My father refused to marry for me saying that I was unwell.

He said so again on the day of the incident when he was returning from the mosque in the evening; he shouted at me that I was a mad and impotent person and how do I except him to marry a girl for me; and so I get annoyed and went and took the gun and shot it at him. It was as he shouted these words at me and 2nd prosecution witness laughed at me, I quickly went for the gun and discharged it against him.”

The learned trial Judge reviewed the evidence called by the prosecution and defence exhaustively. On the issue of provocations, he rejected the evidence of the appellant that his deceased father insulted him as he alleged. He accepted the evidence of the prosecution witnesses that at no time was the appellant ever provoked by his father now deceased. He also accepted the evidence of 1st prosecution witness to whom the appellant had confessed on the day of the incident that he killed his father because the latter did not like him or take care of him. He rejected the allegation of insanity because there was no evidence in support of it.

Furthermore, the learned trial Judge observed that if even he had accepted the evidence of the appellant and his witnesses, it was not sufficient to sustain the defences of provocation and insanity. He pointed out that the defence of insanity was not specifically raised and there was no evidence whatsoever either by the prosecution or the defence from which this plea could be inferred. On the defence of provocation, the learned trial Judge also considered the law applicable, as was expounded in extenso by this court in Obaji v. The State (1965) NMLR 417, pp. 419-423. He concluded, quite rightly in our view, that the defence of provocation was not made out in the case before him.

Mr. Akinrele, learned counsel assigned to argue this appeal stated after a perusal of the records that he could not find anything to urge in favour of the appellant. We had ourselves considered the records and concluded that there was no merit in the appeal. We therefore dismissed it.


Other Citation: (1972) LCN/1635(SC)

Dan Akpan Vs The State (1972) LLJR-SC

Dan Akpan Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

SOWEMIMO, JSC.

The charge against the appellant, then accused, at the Calabar High Court, was that on the 9th of September, 1970, he murdered one Mary Okon, hereinafter referred to as the deceased, at Eto-Mkpe village, Akpabuyo, Calabar. He was tried and on the 27th of July, 1971, was convicted of murder and sentenced to death by Kooffreh, J. His appeal against the conviction was dismissed by this court on 15th August, 1972, and we now give our reasons.

The facts of the case are hardly in dispute. On the 9th of September, 1970, the deceased left her residence in order to purchase palm oil from one Nna. When she did not return till night-fall a search party, comprising Michael Udo, the 3rd prosecution witness and Nna, proceeded to the surrounding bushes to look for her. During the search they saw a disturbed portion of ground in a cassava farm. The spot looked like a fresh grave.

They observed blood stains and some clots of blood along the path leading the spot which they suspected to be a grave. The 3rd prosecution witness went to report their finding to the husband of the deceased, one Udo Udoma, the 5th prosecution witness. At the same time Nna, who had earlier seen the deceased in the company of the accused, suspected that he must have had something to do with the disappearance of the deceased. She therefore returned to the village and, with the help of the villagers, the accused was arrested. The accused was taken to the house of the Village Head and there confronted with the murder of Mary Okon. A report was later made to the Police, who on arrival visited the spot suspected to be a grave. The place was dug up and the corpse of the deceased was found in the shallow grave. There were several wounds on the body, which appeared to be matchet cuts.

The body was found lying face downward. The corpse was wrapped with the loin cloth, which the deceased had worn when she was last seen. Dr. Udoh, the 2nd prosecution witness performed a post mortem examination on the body of the deceased at the General Hospital, Calabar. The material portion of the evidence relating to his findings is as follows:-

“The body was that of an African female about 5ft 3in. tall with dark hairs. On examination there was multiple matchet wounds on the body of the deceased. The sides affected were the exterior aspect of the right wrist, right side of the abdomen, left breast, a perineum including the vagina and the exterior aspect of the neck. The internal organs were normal. Death in my opinion was due to shock and massive haemorrhage caused by wounds. The instrument like a matchet shown to me in the court could have caused the injuries I have discussed. Death occurred about the 9th of September, 1970.”

The accused, when arrested by the Police, made a confessional statement admitting that he killed the deceased. His version of the incident was that on the 8th of September, 1970, he was sent by the 1st prosecution witness, one Affiong Edem, to harvest some cassava roots from his farm. The accused at the material time was a tenant of the 1st prosecution witness. He harvested two basket fulls of cassava. While in the farm the deceased, Mary Okon, and one other man came to meet the accused. They expressed a wish to buy a basket of cassava and after negotiation, a price of 10/7d was accepted by the accused. The man carried away the basket of cassava leaving the deceased behind with the accused, with a promise that he would return with the purchase price of 10/7d. He failed to turn up that day. The deceased promised to return the following day and both she and the accused then left the farm. On the following day, which was the 9th of September, 1970, the accused went to the cassava farm, and whilst there the deceased came and wanted to bargain for more cassava roots. The accused demanded the amount of 10/7d, value of the basket of cassava purchased the previous day.

The deceased refused to pay up and so the accused held on to her. There was a struggle. The accused at this stage became annoyed. He got hold of his matchet and inflicted matchet cuts on the deceased. The first matchet cut was on the neck. He further inflicted other cuts on some parts of the body of the deceased and stated that these cuts were accidental. He said that when he found that the deceased had died he dragged her body to a spot where he dug a shallow grave and buried the corpse.

He had done so because he did not want her body to be eaten up by ants. The learned trial Judge considered whether, in the circumstances of the case, the defence of provocation was open to the accused. He examined the evidence closely and considered whether the provision of Section 284 of the Criminal Code, which deals with the defence of provocation, was applicable. He came to the conclusion that, in the peculiar circumstances of the case before him, the defence of provocation could not be made out. He therefore convicted the accused on the charge of murder and sentenced him to death. On appeal before us, learned counsel for the appellant had nothing useful to urge in favour of the appellant. After a perusal of the records ourselves we saw no reason to disagree with learned counsel. We upheld the verdict of the learned trial Judge, and dismissed the appeal.


Other Citation: (1972) LCN/1301(SC)

Aliyu Nmodu Vs The State (1972) LLJR-SC

Aliyu Nmodu Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

SOWEMIMO, AG. JSC. 

The appellant who was the accused in charge No. KWS/l1C/71, was arraigned before the Ilorin High Court on a charge of Culpable Homicide contrary to Section 221 (b) of the Penal Code. He was tried and convicted by Adesiyun, J., and sentenced to death on 29th October, 1971. He appealed to this court against his conviction. The appeal was heard on the 5th of April, 1972, and was dismissed.

The facts which were established before the learned trial Judge were as follows: the 1st prosecution witness, one Baba Dumagi visited Shesitagi on 8/2/71 which was the second day of the Sallah; he found on arrival at the premises of the deceased, one Nnawo Audu, that she was being beaten by the accused; she Nnawo Audu (later deceased), was bleeding from the nose and the mouth as a result of the beating. The accused then pushed the deceased to the ground, and placed a stone on her chest and a mortar on her abdomen.

He then pressed the stone on to the chest of the deceased by standing on it. He later stood on the mortar placed on the abdomen of the deceased and jumped on it. As a result of this some excreta was thereby forced out from the deceased. The accused went and collected some grasses from the roof of a nearby disused hut and spread it over the body of the deceased and sprayed some pepper over the body as well. He then lit the grasses and the deceased was burnt. On completion of this dastardly act the accused left the scene and went back to his village, Ndakasa. On the following day the deceased, Nnawo, died. The 1st prosecution witness, one Baba Dumagi, was the first eye witness of the incident and saw all that happened for two and half hours. When he challenged the accused as to the cruelty he caused by his acts, the accused threatened to kill him. The 2nd prosecution witness, Ndagi Yababo, the 3rd prosecution witness, Nda Kassim, and the 4th prosecution witness, Baba Tetengi, also witnessed the incident having arrived at the scene a little after the 1st prosecution witness. They gave evidence which corroborated that of the 1st prosecution witness.

The Etsu of Shonga, one Alhassan, gave evidence that on information received and having seen the corpse of the deceased at Shesitagi, he went to Ndakasa village and there arrested the accused. He later drove to Shonga in the company of the accused who was later handed over to the Police.

A son of the deceased, one Nmodu Kawu, who gave evidence as the 6th prosecution witness told the court that his brother, one Shabe, told him that he sent for the accused when his wife, Adisetu, who was ill, alleged that the deceased, the mother of 6th prosecution witness and Shabe, bewitched her and that that was the cause of her illness. Shabe admitted to this witness that when the accused came he started to beat their mother, the deceased.

The 7th prosecution witness is the constable, who arrested the accused and took him to Shesitagi on 10/2/71. His evidence as regards what happened at Shesitagi reads thus:-

“I found the deceased covered with a piece of cloth there. The accused when asked told me that he used a mortar and a stone on the deceased. He added that he set fire on the deceased. The accused showed me the place where he set fire on the deceased. It was the accused who on picking the stone handed it over to me. The accused alleged that it was one woman called LAMUYE that asked him to punish the deceased.”

The witness later collected the mortar and the stone alleged used on the deceased. He also took the corpse to the General Hospital at Ilorin. Under cross-examination the 7th prosecution witness said:-

“I brought Lamuye to the State’s C.I.D. Ilorin. At the scene of the crime, the accused told me that he used mortar, stone and fire to punish the deceased.”

Dr. (Mrs.) Subbash Sharma performed the post-mortem examination on the body of the deceased. She gave evidence as the 12th prosecution witness, stating her findings thus:

“I discovered extensive superficial and deep burns over face, neck, hands, back and front and back lower limbs including her genitals. Both the feet had escaped bums; hairs were burnt on the sides, at front and back. She had prolapse uterus and haemorrhage. The cause of death was due to shock due to extensive burns of the whole body.”

The statement made in Nupe by the accused on caution is Exhibit H and the English translation, Exhibit H 1. He narrated how one Lami Iye, who later gave evidence as Defence Witness 2, requested him to accompany two men to whom she gave three types of medicine to be applied to a sick woman referred to as Sule’s wife. He also gave account of how he rubbed two of the medicines on the body of the sick woman and that her husband rubbed the third around her waist. The statement then continues-

“After I informed the woman to release (relax) I left there for my lodging place leaving the deceased and the sick woman. One of the deceased’s children sent somebody for me to come that he was happy for the help rendered. I told him not to be happy of what I had done but that they should thank God. That their mother was crying because of cruelty. One of the woman’s children said I should punish the deceased well. She would release (the name of the) her gangs, and give me one pound. When I got the money I left for my house. After that I saw a man whom I told to branch to my house whenever is passing by. When he was coming I get up and met he on the way and gave him one pound to be handed to Lamiye. On that night people gathered together because of this matter. I then called the deceased asked her, are you the one killing this woman who was praying to deliver? Then she replied yes that she wanted to kill her. I then told her lye (lie) down, I then placed mortar on her stomach and waged (wedged) the mortar with a stone in order not to fall. When the mortar was so long on her stomach then, she told me to bring it down, that she should like to talk to me. She then said that she had ever trained the sick woman’s child because the father of the sick woman had done good for her, because she has trained the sick woman’s daughter and she had got married. I then told the deceased that her children had requested me to punish her (the deceased) that was why I placed the mortar on her. On the very night I left the village and returned back to Dumagi and showed to Lami lye all that I had been given from there, and she asked me to put it there together with the gown, trouser and shoes. I went to my father to greet him and he said the person whom I was sent to is dead.”

The accused, in his defence at his trial, denied the allegation that he beat and burnt the deceased woman. On the contrary, his version was that someone else must have caused the death of the woman. In his evidence he said inter alia:-

“It was getting to sunset, I asked that I be given water to perform my absolution so that I may say my prayer. I was using the water when Momoh called me. I went to him and saw him holding £1 currency note. Momoh pointed at the deceased and told me she was not his mother but she had bewitched four people already. Momoh then asked me to ask the deceased if she wanted to bewitch Adisetu. The deceased answered me that she was bewitching Adisetu.

The deceased at that time squatted near a mortar. Momoh pushed her and she fell over the mortar. She stood up. Someone went to a nearby dis-used grass hut and brought a bundle of grass and lit. People gathered round the deceased looking at her.”

The 2nd Defence witness is one Lamiye Dumah. Her evidence was that one Alhaji came to her to report the illness of a sister and met the accused with her. As she could not go with Alhaji to Shasitagi, she gave him some medicine for his sick sister. Accused volunteered to follow Alhaji since she could not go. The witness denied sending accused to Shasitagi. The accused on his return from Shasitagi told the witness that Alhaji gave him £1, a pair of shoes and gown which were kept in her premises by accused without per knowledge.

The 3rd Defence witness, one Suleiman Shasitagi, admitted that he accompanied Alhaji to D.W. 2 to solicit her help in respect of his sick sister. He said that, as the D.W.2 could not follow them and, after seeing the sick woman, ordered everybody out of the premises and this witness left for his farm.

The 4th Defence witness, one Momo Audu, is a son of the deceased woman. He denied that he was present when his mother was being beaten. He admitted giving £1 to the accused because he had treated his brother’s wife. The stage at which the gift of £1 was made was not stated.

The 5th Defence witness is one Alhaji Mohammed. While he admitted bringing the accused to Shasistagi to treat his sister, he denied any knowledge of the treatment meted out to the deceased woman. He admitted giving a gown and a pair of shoes to the accused for successfully treating his sister.

The 6th Defence witness is Adisetu Shasistagi, who was alleged to be ill and treated by the accused. Although she remembered being ill she could not remember who treated her and stated that her cure was due to God.

The learned trial Judge, after a review of the evidence before him, held that the prosecution had proved the case against the accused beyond reasonable doubt.

He therefore found the accused guilty of the offence of culpable homicide punishable with death.

Mr. F.O. Akinrele, the learned counsel for the appellant said that he could not find anything to urge in favour of the appellant. We have also considered the findings of the learned trial Judge, and on the evidence before him, we see no justification to disturb the verdict. We hold that the appellant was rightly convicted and we dismissed his appeal.


Other Citation: (1972) LCN/1456(SC)

Silias Okoye & Ors V. Chief Agbogbua Kpajie & Ors (1972) LLJR-SC

Silias Okoye & Ors V. Chief Agbogbua Kpajie & Ors (1972)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, J.S.C.

This is an appeal against the judgment of Kaine, J., in which he awarded 5 pounds damages for trespass and injunction against the appellants.

The plaintiffs averred in their statement of claim as follows; that they have been living and farming on the land as owners of the land in dispute; that they have several dwelling houses on the land as well as some juju shrines; that in the exercise of their right of ownership they had let out certain portions of the land in dispute to tenants; that there had been several court cases between the parties between 1921 and 1961 and these confirmed their (Plaintiffs) ownership of the land; that the defendants trespassed on the land in 1955 and damaged some of the plaintiffs’ property on the land as a result of which suit No. 0/12/57 was brought against the Umusiome people (defendants in this case) and twelve others in the Onitsha High Court and judgment was entered against the Umusiome and twelve (12) other defendants; that on appeal to the Federal Supreme Court, in Appeal No. FSC/206/60, the court in dismissing the appeal held “that the reference to Umusiome quarter should be omitted” and the judgment of the Onitsha High Court was varied to that extent; that the present defendants misconstrued the Federal Supreme Court judgment as awarding title of the land in dispute to them and therefore entered on the land and “collectively jumped on the land in dispute and started to cultivate crops, build thereon and to cut down some economic trees without the consent of Plaintiffs. This last averment was the immediate reason for the institution of this present action in the High Court Onitsha.

The defendants in their Statement of Defence denied the allegations of trespass. They averred that 1st defendant and other members of the Umusiome family farmed on the land in dispute, and that the other defendants have no farms on the land. In paragraphs 13, 14, 15 & 16 of the statement of defence the defendants averred:-

  1. “The 1st defendant further says that his ancestors have occupied this land for a period beyond human memory.
  2. The Defendants say that because their people have been in possession of this land they – the occupiers and possessors have put in tenants on the said land to cultivate the same and to tap palm trees thereon.
  3. The defendants say that although the Ogidis have claimed the title to this land they have never disturbed the possessions of the defendants and always stopped their cultivation of the land along Mkpia Bush known to the Nkpor people as Mgbu or Ebu.
  4. The defendants will at the trial plead
  5. Res Judicata
  6. Long Possession
  7. Laches
  8. Abuse of Process of Court.”

Of the witnesses called in support of Plaintiffs claim only the 2nd plaintiff gave evidence on behalf of the other Plaintiffs. He claimed that the land in dispute had always been in the possession of the Ikenga Ogidi people from time immemorial. He said that as owners, the Ogidi people live on the land, farm on portion of it, reap the economic trees and put tenants on other portions of the land. He denied that the defendants ever farmed or lived on the land except by their recent acts of trespass which gave rise to the present action.

Under cross-examination the 2nd Plaintiff as the 3rd witness for Plaintiffs had this to say:-

“We showed the surveyor our own farms where we farmed on the land in dispute but not within the area upon which the defendants trespassed. The Umusiome people did not trespass into the whole area of Owelle land but into a portion………………………

………………………………………

The palm trees were felled in several places and we showed them to the surveyor. What we showed the surveyor was the stumps of the palm trees. I cannot tell after they have been cut that I saw them. I did not see when they were being cut down. Several Umusiome people have cassava farms on the land when we brought this action.

We have seen many of their women cultivating cassava farms there. I had no cassava farms there. We do not farm there yearly. We know some of the individuals who own the cassava farms. We sue the defendants. Where we saw their people clearing the land and cultivating it.” (Underlining ours).

The 4th Plaintiffs’ witness, is one Nwafor Omem. He gave evidence, that his age group, known as the Seven Age Group supervised Owelle land. He had, at the time he gave evidence, been taking part in the supervision of the land for four years. He further stated:-

“Four years when Nkpor people trespassed on the land we informed our people and a report was made to the people. Some of the people were all these nine defendants and others. All the people had farms on the land including the nine defendants, at the time this action was brought. They had cassava farms and farms for yams.”

Under cross-examination the witness stated-

“It is only Ezeme and Silas Okonkwo who have built on the land in dispute. We the Seven Age Group saw farms belonging to the Umusiome people on the land and I know particularly those of the nine defendants ……………………………………..

……………………………………..

The Umusiome people had no market on the land in dispute. They erected stalls overnight on the land and when we saw them we destroyed them. This was about ten years ago.” (Underlining ours).

The Plaintiffs’ surveyor gave evidence and identified the plan he made for the Plaintiffs as Ex. C. Under cross-examination he admitted that he saw all the houses he showed on Ex. B (defendants’ plan). The land shown on Ex. B is part of the land shown in Ex. C. that is, the land edged ‘pink’ in Exhibit ‘B’ is part of the land verged ‘green’ in Exhibit C. He denied seeing stumps of palm trees on the land, as alleged by the plaintiffs.

The 1st defendant stated in evidence that he was born on the land and had lived there all his life. The ruins of his father’s house are on the land. He was formerly living in the house of his mother, which also was on the land in dispute before he built his own house ten (10) years prior to the time he gave evidence. He claimed to be about 50 years old and had been farming on the land since he grew up. He denied destroying any palm trees in March, 1962. He asserted that the land in dispute belonged to Umusiome people and is known as Okofia.

The 2nd defendant admitted farming on the land since he was a young man. He said that he built a house on the land. His son also built a house on the land about 2 miles distant from his.

The 3rd defendant also claimed to have been born on the land and to have erected a house at the spot where his father’s house used to be. He had been living on the land since he was born. He was one of the defendants in the 1957 case.

On the evidence before the learned trial Judge both sides claimed to be in possession of different portions of the land in dispute. At least two of the defendants claimed to have been born on the land and had lived and farmed there ever since. It therefore became necessary for the learned trial Judge to resolve the issue as to which of the two parties had exclusive possession when the alleged trespass was committed.

In the present suit O/122/62 at the Onitsha High Court, the Plaintiffs claimed 600pounds as special and general damages for trespass against the defendants as well as an order for injunction. Kaine, J., who tried the case, entered judgment for the Plaintiffs but he failed to resolve the issue as to who was in exclusive possession of the land. The learned trial Judge held that the land in dispute belonged to the Plaintiffs because of the Judgments of the several court proceedings tendered before him. He also rejected the contention of the defendants that they were not defending in a representative capacity and held that the defendants trespassed on the land without specifying the nature of the trespass and on what portion or portions.

There was uncontradicted evidence that the defendants had been farming on the land for many years and as was stated in evidence before the learned trial Judge, at least two of the defendants, apart from being born on the land, had erected buildings thereon and had lived there all their lives. These facts were in support of their defence as pleaded in paragraph 16 of the statement of Defence. The learned trial Judge did not consider any of the defences thus raised in the pleading and supported by evidence.

After commenting on the issue of title which was not an issue before him, the learned trial Judge stated in his judgment thus:-

“I may say that I can understand the predicaments of Umusiome people in this matter. The land in dispute is very close to their village. In some cases it is just behind their back houses. There is no doubt that injunction would work hardship in such cases unless something is done to cut off the land. For this reason I have spoken to the counsel for the two parties to see whether the plaintiffs could cut off the land with barbed wire fence and the plaintiffs have agreed to do so and also to bye pass any house by five feet which lies on the boundary. I am of the opinion that five feet allowance would be too narrow and I hereby order that such byepass would be 10 feet so that children might not play and fall on it when it is too close to their house. I also order that the boundary be constructed with a barbed wire fence mounted on concrete pillars along the boundary with Umusiome as shown in the plan No. EC 5/63 Exhibit “C” and that the boundary be constructed under the supervision of the police since this land has been the subject of several criminal matters arising from violence over the dispute between the parties.

There will be judgment for the plaintiffs for trespass and injunction. I am not however satisfied that special damages have been satisfactorily proved and in order to promote peace among the parties I award the plaintiffs nominal damages of 35pounds.” (Underlining ours).

On appeal before us, Mr. Ofodile, learned Counsel for the appellants, was granted leave to argue an additional ground of appeal along with the three grounds of appeal filed with the Notice of appeal. As a matter of fact he only argued grounds 2 and 4, and then together. The two grounds read-

“(2) The learned trial Judge erred in law in ordering that concrete pillar boundaries be placed between Umusiome village of Nkpor and the people of Ikenga Ogidi when this was not claimed by the people of Ogidi the plaintiffs, nor did the Umusiome defended the action in a representative capacity.

“(4) The learned trial Judge erred in law in making the order of injunction in terms of the claim or at all having regard to the defendants long and undisturbed possession and the Plaintiffs laches and acquiescence.

Mr. Ofodile conceded that appellants are not contesting the issue of title, but argued that there was evidence of long possession by the defendants/appellants. The surveyor, who made the two plans Exhibit B and C for the defendants and plaintiffs respectively, gave evidence as Plaintiffs’ witness. He admitted that he saw houses claimed by the defendants on the land in dispute. He also denied the allegations of the Plaintiffs that there were stumps of palm trees on the land. The learned trial Judge did not consider this evidence of a witness who is independent. This is some evidence of possession by the defendants and unless the learned trial Judge, for good reasons, held otherwise, he could not find for the plaintiffs as he did on the issue of possession.

It is beyond dispute that what the learned trial Judge directed to be done, that is, construction of boundaries, erection of barbed wire fence, placing of concrete pillars and allowing a distance of 10 feet between each house and the boundary, were not asked for by the Plaintiffs and no evidence was ever led about that.

Although the learned trial Judge in a part of the judgment already cited above, held that it will cause undue hardship if an injunction was granted having regard to the peculiar facts of the case before him, he nevertheless in the penultimate paragraph of the judgment proceeded to order an injunction as claimed.

Mr. Iguh, learned counsel for the respondents could not support the judgment in view of the line the learned trial Judge took in fixing an arbitrary boundary by directing the construction of pillars and barbed wire fence and at the same time granting an injunction as claimed. He also conceded that in view of the conflicting claims to exclusive possession by either party, the learned trial Judge ought to have resolved the issue before proceeding to award damages for trespass. He then asked this court to make the necessary findings of fact which the learned trial Judge had failed to do.

With respect, learned counsel for respondents must appreciate that where conflicting evidence was adduced in a court of trial, and the learned trial Judge who heard and saw the witnesses failed to resolve the conflict, it is impossible for an appeal court to make any findings in such a situation.

It is the duty of the Plaintiffs to prove conclusively that before the alleged trespass, they were in exclusive possession of the land. It must be proved, in support of the claim for an injunction that not only are the sets of trespass being continued but also that the defendants had threatened to commit further acts of trespass. The burden of proving these rests squarely on the Plaintiffs. If they fail to discharge this onus of proof, then they have failed to establish their claims and therefore the claims should have been dismissed.

For the foregoing reasons the appeal succeeds and it is allowed. The judgment of Kaine, J., in suit 0/122/62 in the Onitsha High Court is hereby set aside as well as the award of damages and costs. We substitute instead an order dismissing the plaintiffs claims for damages for trespass and injunction with costs. The defendants/appellants are awarded costs assessed at 40 guineas in the High Court and 68 guineas in this court.


SC.570/1965