Layade Vs Panalpina World Transport Nig. Ltd (1996) LLJR-SC

Layade Vs Panalpina World Transport Nig. Ltd (1996)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, JSC.

The appellant is a chartered accountant and was employed with effect from 3rd May, 1978 by the respondent as Chief Internal Auditor as evidenced by respondent’s letter of 28th April, 1978, Exhibit B, which reads:

“Mrs. O.O. Layade,

10, Glover Road,

Ikoyi,

Lagos.

Dear Mrs. Layade,

RE: YOUR EMPLOYMENT AS CHIEF INTERNAL AUDITOR

We take pleasure in confirming to you that your application for the job of Chief Internal Auditor for Panalpina World Transport Nigeria Limited has been accepted.

Below stated please find the remunerations which will be paid to you:

(1) Salary: N13,800.00 per annum.

(2) Housing allowance: N6,000.00 per annum, payable in advance on the 1st of January of every year as a lump sum.

(3) Overtime allowance: N40.00 per month.

(4) Car allowance: N156.00 per month.

Enclosed please find our contract agreement, which kindly go through and sign same on the appropriate portion, accepting the conditions of service. We understand that one month’s notice will have to be given by you to your former employer and therefore, we take it that you may start work with Panalpina on the 1st of June, 1978, or in accordance with negotiations that may take place in the meantime.

We would like to welcome you in our Company and hope that you will be a great asset to us.

Kindly sign a copy of this letter and return same as soon as possible. Your signature on the copy serves as an agreement to take up this position and accepting the terms.

Yours sincerely,

PANALPINA WORLD TRANSPORT NIGERIA LIMITED

SOBOTTA,

MANAGING DIRECTOR.”

On 1st June, 1978 the appellant and defendant/respondent signed the formal contract of employment. It is pertinent to quote paragraphs 1 and 5 of this contract reading as follows:

Clause 1

The Company will employ the employee in any of its offices in Nigeria at duties as detailed to him by the Company and the employee will serve the Company faithfully from the date of his employment until the aforesaid contract is determined by either party as embodied in this agreement.”

Clause 5

The employee also reserves the right to resign his appointment on giving to the Company not less than three months’ notice in writing of his intention to resign, or in lieu of such notice on payment of three months’ salary to the Company. If however, the employee resigns, he will forfeit his service benefits.”

By a letter dated 2nd October, 1980, signed by the Managing Director, the respondent company terminated the employment of the appellant by giving her three months salary in lieu of notice and all her other entitlements. Against this, the appellant as plaintiff claimed before Lagos High Court inter alia as follows:

(i) “A declaration that the purported termination of the appointment of the plaintiff from the services of the defendant company as contained in the letter of 2nd October, 1980 to the plaintiff is null and void and of no effect whatsoever on grounds of irregularity, bad faith, breach of the rules of natural justice, public policy and infringement of her constitutional rights.

(ii) A declaration that the purported termination of the plaintiff from her employment as a member of the Senior Management of the defendant company is ultra vires the Managing Director of the defendant and therefore null and void of no effect.

(iii) A declaration that the purported termination of the plaintiff and virtually the entire African Members in the upper segment of the Management Staff on grounds of alleged personality conflict with expatriate Managing Director is void and illegal and against public policy, and a derogation from the plaintiff’s constitutional rights.

(iv) A declaration that the plaintiff is still a member of Senior Management Staff of the defendant company and that the plaintiff is entitled to continue in the service of the defendant company and to receive her monthly salary, emoluments, allowances and other entitlements attached to her position till her retiring age of 55.

(v) N 10,000.00 aggravated and/or exemplary damages for assault for letting loose a dog with known vicious propensity on the plaintiff.

(vi) Perpetual injunction restraining the defendant, its servants and or agents from preventing and or in any way obstructing the plaintiff from carrying on her normal duties as a member of the Senior Management Staff of the defendant company OR IN THE ALTERNATIVE N450,000.00 special, aggravated, exemplary and general damages for wrongful termination of the plaintiff’s employment.

PARTICULARS OF DAMAGES:

(1) Loss of earnings till retiring age of 55 as per Contract of service for 153 months at N1,474 per month N225,522.00

(2) Gratuity:

(a) 80% of monthly salary for each of first 10 years N 11,792.00

(b) 90% of monthly salary for each of last 5 years 6,633.00 N 18,425.00

(3) Contributory Pension:

(a) 2 years at 10% 3,537.00

(b) 13 years at 5% 11, 497.00 N 15,034.00

(4) Housing allowance at N500.00 per month N76,500.00

(5) Personal allowance at N 100.00 per month N 15,500.00

(6) Car allowance at N156.00 N23,868.00 per month

(7) Leave allowance at 6% of annual salary N15,919.00

(8) Medical expense N6,000.00

(9) General., aggravated and exemplary damages N52,832.00″

The said resolution at the General Meeting, not affecting the Articles and memorandum of Association of the respondent, was admitted as Exhibit L7. The appellant claimed her employment was terminated without recourse to Exhibit L7. Exhibit L7 the resolution of 28th January, 1978, was supposed to come into effect on 1st February, 1978, some months before the employment of the appellant.

Clause 1 of Exhibit L7 states its purport as:

“A Management Council be established to advise, counsel, and assist the Managing Director in the formation of policies for the management and administration of the affairs of the company with effect from 1st February, 1978”

The Management Council was to consist of five members, to wit, Managing Director as Chairman, the Finance Director, the Executive Director, the General Manager, and the Director of Air Freight. In clause 5, Exhibit L7 states, inter alia:

(ii) “recruitment, termination, dismissal, and regulation of the conditions of service of both senior and junior personnel in so far as it does not relate to themselves” i.e. the five members (Italics mine for emphasis) shall be among the functions of the Managing Council to “advise and counsel” about. Clause 7, I believe for the avoidance of doubt as to its function states in relation to the Management Council.

“The Management Council meeting cannot be construed to substitute or replace a Board meeting of the Company Directors which could be convened in the manner prescribed by the Articles of Association.”

After reviewing the evidence before him. Adeniji, J, who tried the case upon all the evidence which he thoroughly adverted to came to a conclusion that the appellant’s contract of employment was wrongfully terminated as the provisions of Exhibit L7 was not complied with and as the contract was not governed by Exhibit B alone.

He therefore awarded her arrears of salary from 2nd October, 1980 to 3rd of August, 1990 (date of judgment) at the rate of N1,474.00 per month and general damages totalling N34,973.00 plus other damages all making a total of N199,716.00 plus costs. Against the judgment of the High Court the respondent company appealed to the Court of Appeal.

The Court of Appeal in a split decision, [Ubaezonu, J.C.A. dissenting], allowed the appeal and held that the person who signed Exhibit B, letter of employment also signed, the letter of termination and that the management Council evidenced by Exhibit L7 was in existence before both documents the appellant cannot say her termination was void much as she could not say that Exhibit B was void. Against the decision of the Court of Appeal this appeal was lodged.

The learned counsel for the appellant raised and formulated the following issues for determination:

2.01 “Whether having regard to the purport and interpretation of Exhibits “B” and “L7” it can be rightly said that the purported unilateral termination of the employment of the appellant by the respondent’s Managing Director was intra vires the said Managing Director and legally proper in the circumstances.

2.02 Whether (if 2.01 is answered in favour of the appellant) the Court of Appeal was right in setting aside the judgment of the trial court and the damages of N 199,716.66 awarded in favour of the appellant.

2.03 Whether the Court of Appeal was right in refusing the appellant’s Cross-Appeal seeking an upward review of the damages awarded by the trial court

2.04 Whether or not the appellant is entitled to an award of aggravated and exemplary damages for the purported termination of her employment by the respondent’s Managing Director due to racial prejudice.”

As against these four issues, the respondent contended there were only two issues for determination to wit:

2.2 “The first issue for determination is:

Whether the appellant’s appointment was terminated by the proper authority of the respondent and in accordance with the terms and conditions of her employment. Under this issue, the following questions need to be considered:

(a) can the Managing Director exercise the powers of the “Company” in Clause 5 of the appellant’s contract of employment in terminating the contract?

(b) did the establishment of the Management Council by the Shareholders limit and/or deprive the Managing Director of his authority to terminate the contract of employment of the appellant?

(c) was it the Managing Directoror, the Management Council that could terminate the appointment of the appellant and sign the letter of termination? and

(d) was the issuance of the letter of termination signed by the Managing Director of the respondent a valid exercise of the authority of the respondent to terminate the appellant’s contract of employment’?

2.3 The second issue for determination is:

Whether the principles relating to the award of damages, having regard to the pleadings, the evidence and all the relevant circumstances of this case, were rightly spelt out in the lead judgment of the Court of Appeal and applied accordingly.”

The Court of Appeal in the lead judgment pointed out four documents most essential to the just determination of the case as follows:

(i) “The resolution establishing the Management Council which took effect on 1st February, 1978; Exhibit L7, (pp. 91-93 of the record);

(ii) The letter of appointment of the respondent signed by the Managing Director of the appellant ‘F’ at p. 111 of record;

(iii) The contract of Employment dated 1st June, 1978 Exhibit ‘B’ (pp. 112-117) and Exhibit ‘M’ (pp. 156-161) of record; and

(iv) The letter or Dismissal of the respondent signed by the Managing Director of the appellant, Exhibit ‘N’ pp. 95 and 162-163 of the record.”

It could be clearly seen that Exhibit B provides in its clause I that the “Company will employ” and in clause 5 thereof that the “Company will determine the employment.” What then is the effect of the letter of termination, Exhibit N, in view of Exhibit B? The contract governing the relationship of the appellant and respondent is Exhibit B which clearly states the conditions of the contract. At the time the appellant was employed there was in existence Exhibit L7 which all the documents in her possession – letter of employment and contract of employment never adverted to. Thus only Exhibit B is the contract between the parties. The powers of the Managing Director vis-a-vis the employment and dismissal of the company’s staff could not be fettered by Exhibit L7 as there is no ambiguity in Exhibit L7 as to its purport; the Management Council envisaged and set up in Exhibit 17 is an advisory body and it clearly states the Articles of Association of the Company could not be affected by it. This is the only obvious legal situation.

It is clear that both the majority and dissenting judgment, Kalgo. J.C.A. in the lead judgment clearly stated the situation between the parties as follows:

“…… it would appear to me that under normal circumstances, the contents of Exhibit N are on the face of it in complete compliance with clause 5 of the respondent’s contract agreement, Exhibit B. I say so because the holder of the office of Managing Director of the appellant who signed the letter of appointment (employment) and the agreement was the same office holder who signed the termination letter, Exhibit N.”and concluded that the Management Council envisaged in Exhibit L7 was:

“(i) set up as an advisory body to assist Managing Director in the management of the company and there is nothing to the contrary on the face of the document;

(ii) not clothed with executive powers as such and the duties set out in its clause 5 (supra) are only meant to be matters in which the Council can give their advice to the Managing Director, who is the Chairman;

(iii) not given executor powers to carry out or implement its advice and only the Managing Director can look at the advice and implement if feasible.

(iv) clearly given no more power than it had and clause 7 thereof shows that the Management Council was not to substitute or replace the meeting of the company’s Board of Directors;

(v) not meant that the appellant could not be dismissed or her appointment terminated only under the aegis of Exhibit L7 and not Exhibit B alone;

(vi) not mentioned in Exhibit B or any contract signed by the appellant, even the Council was in existence and both the letter of employment and contract of employment never alluded to Exhibit L7.”

He finally found that Exhibit L7 had no relevance to the appellants contract with the respondent which were clearly spelt out in Exhibit B which itself is not ambiguous.

Mr. Nylander, SAN for the respondent submitted that the proper authority to sign the letter of employment or termination is the Managing Director and that that is the case now before us. If the appellant could challenge the validity of Exhibit N, there was no reason advanced why she did not contend that her letter of employment and contract signed in respect thereof both coming after the setting up of the Management Council are not equally invalid.

Going by these submissions, on a proper construction of the contract between the parties the Managing Director is the person to terminate or employ on behalf of the company (See: Ajayi v. Texaco (Nig.) Ltd. (1987) 3 NWLR (Pt. 62) 577. In all contracts of employment, the courts must be wary of looking outside their terms, for the terms govern the relationship between the employer and the employee and where the terms spell out unambiguously how and when to terminate the employment and the termination is carried out in the manner provided by the terms, that termination is not wrongful. Parties must be bound by their contract and to look outside the terms of the contract to avoid termination makes no meaning of the contract. The contract between the appellant and the respondent provided for three months notice of intention to terminate the employment or three months salary in lieu of notice. The appellant was terminated and given three months salary in lieu of failure of three months notice; she was also paid for some entitlements. Certainly this meets the terms of contract in Exhibit B. It is only when time period is not prescribed for notice or payment in lieu of notice in the contract of employment that there are problems (See: Daniels v. Shell-B.P. (1962) 1 All NLR 19; (1962) 1 SCNLR 19; Alraine (Nig.) Ltd. v. Eshiett (1977) 1 SC 89, 96-97; Kusamotu v. Wemabod Estate Ltd (1976) 11 SC. 270, 293. The evidence before the trial Court is clear because both Exhibits B and N came after the introduction of the Management Council and none of the two documents advert to the Council. The contract, Exhibit B is clear and certain as to its terms that extrinsic evidence is not needed to interprete them. I cannot see why the learned trial Judge should embark on looking for more evidence outside the contract in the light of the overwhelming evidence of what the appellant signed. The Court of Appeal was therefore right in setting aside the entire decision of the trial Court (Etum Ekpeyong and ors v. lnyang Efiong Nyong & ors (1975) 2 SC 71, 80; Oridola v. M & K Ltd. (1972) SC 51.

Apart from those employments governed by statutory provision e.g. employment in civil service of statutory bodies where termination must follow the provisions of the relevant statutes (Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34)162 193/194, the master in other cases can terminate for good or bad reasons subject to remedies of compensation where applicable for wrongful dismissal. In the instant case the terms of the contract of employment for termination of the contract have been clearly adhered to.

The dissenting judgment of the Court of Appeal, with greatest respect, viewed Exhibit L7 rather disjointed by interpreting the clause thereof in isolation of other clauses. Such documents must be read as a whole so as to grasp their import. However in the instant case, I hold that Exhibit L7 is immaterial, irrelevant and should not have been construed as forming part of Exhibit B. (Chukwumah v. Shell Petroleum Development Company of Nigeria Ltd. (1993) 4 NWLR (Pt. 289) 512.

Having held that the contract of employment in question was properly terminated, the question of quantum of damages is otiose and, needless to say, no more relevant in this judgment.

In the end I find no merit in this appeal and I dismiss it with N1,000.00 costs to respondent.

Other Citation: (1996) LCN/2681(SC)

African Continental Bank Limited & Anor V. Prince A.O. Awogboro & Anor (1996) LLJR-SC

African Continental Bank Limited & Anor V. Prince A.O. Awogboro & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C.

The plaintiffs instituted a civil action in the Ikeja Division of the High Court of Lagos State against the defendants claiming that the mortgage between the 1st plaintiff and the 1st defendant which is secured by landed property known as 27, Onayade Street, Ikorodu Road, Lagos State is still valid and subsisting and that the 1st defendant’s power of sale under the mortgage has not arisen.

The plaintiffs also prayed the court to declare that the proposed sale of the said property by the 2nd defendant at the instance of the 1st defendant is null and void as it is not in conformity with the terms and conditions of the mortgage. They are also seeking an order of perpetual injunction restraining the defendants and their agents from selling or dealing in any way with the property, No. 27, Onayade Street, Ikorodu Road, Lagos.

On 4:2:85 which was the same day the writ of summons was issued, the plaintiffs filed a motion on notice praying the court in the following terms:

“Restraining the defendants/respondents by themselves and/or their agents. servants or privies from selling or otherwise dealing any way (sic) whatsoever with the property of the applicants lying being and situate at No. 27. Onayade Street, Ikorodu Road. Lagos, Lagos State pending the hearing and determination of this action.”

The application was supported by an affidavit of twelve paragraphs deposed to by the 2nd plaintiff and a further affidavit of one Idowu Asero, a clerk in the Chambers of the plaintiffs counsel. The defendants filed a counter-affidavit. The application was opposed.

The facts of the case are that both plaintiffs/respondents are husband and wife. Both are directors of a company called Awosco A-Z Stores Ltd. This company is a customer of the 1st defendant. Awosco A-Z Ltd. enjoyed banking facilities from the 1st defendant bank. The 1st plaintiff secured the facilities with a deed of legal mortgage over property known as No. 27. Onayade Street. Ikorodu Road. Lagos. The company and the 1st plaintiff defaulted in their obligations to the 1st defendant. The 1st defendant gave the 1st plaintiff and Awosco A-Z Stores Ltd. notice of sale of the mortgage property. The 2nd defendant is the auctioneer engaged by the 1st defendant to carry out the sale.

The plaintiffs resisted the proposed sale by filing a writ of summons and the application for an order of interlocutory injunction which gave rise to this appeal.

The relevant paragraphs of the affidavit in support of the application are:

“2(c) That 27, Onayade Street, Ikorodu Road, Lagos is the joint property of the plaintiffs and the 2nd plaintiff’s share of the said property is not subject to the mortgage recited in I above.

That this action was instituted as a result of the publication inserted at page 6 of the Friday Edition of the Daily Times published on 1/2/85 a photocopy of which publication is attached hereto and marked Exhibit “AA”
That before the publication of Exhibit “AA” the defendants/respondents failed and neglected to issue and serve on the 1st plaintiff/applicant the requisite notice under the Mortgage Instrument pointing out the default that made any power of sale exercisable.
That 27. Onayade Street. Ikorodu Road. Lagos is the only family house jointly owned by my husband, 1st plaintiff/applicant and myself and untold hardship will be involved should the house be sold as there is no alternative place of accommodation for us and 1st plaintiff/applicant is presently out of the country.
That the intended sale of 27 Onayade Street, Ikorodu Road, Lagos will paralyse my entire family as some of my children do attend educational institutions within the nelghourhood of Fadeyi where the property is sited.
That I will suffer irreparable damages and loss and I will have no alternative place to live with my family if the respondents are not restrained forthwith from disposing of my property.”

The affidavit was deposed to by the 2nd plaintiff/applicant who is the wife of the 1st plaintiff. The counter-affidavit gave account of the loan and mortgage transactions and the failure of the 1st plaintiff and Awosco A-Z Stores Ltd. to honour their obligations under the mortgage. In paragraphs 13, 14 and 15 of the counter-affidavit, the 1st defendant deposed as follows:-

“13. By a letter of 15/12/83 the 1st defendant issued a further demand notice to the 1st plaintiff demanding compliance with certain repayment terms or have 27, Onayade Street, Ikorodu Road sold. A copy of this letter is herewith attached marked Exhibit “G”.

By its letter of 28/9/84 with respect to the 1st defendant’s posture to sell the said property. the company pleaded with the 1st defendant to stay action “on the sale of the property of Prince A.O. Awogboro.” A copy of this letter is herewith attached and marked Exhibit “H”.
That the company again wrote to the 1st defendant only on 13/1/85 signed by the 2nd plaintiff pleading for further delay in the sale 27,Onayade Street and no mention was made of any interest of the 2nd plaintiff as a joint owner of the property.”

The learned trial Judge granted the application. The defendants not satisfied with the decision of the learned trial Judge appealed to the Court of Appeal. Lagos Division. They lost in that court and have further appealed to this court. The plaintiffs who are the respondents in this court did not file the respondents brief. They did not appear and were not represented at the hearing of this appeal. Order 6. rule 9 of the rules of this court is clear on the failure of a respondent to file his brief of argument.

The appellants have identified the following issues for determination:

Whether as is held by the court below evaluation of affidavit evidence before the learned trial Judge in determining the application for interlocutory injunction would have in the circumstances meant premature trial of issues he would later on be called upon to try.
Whether as held by the court below, the learned trial Judge would properly determine the application for interlocutory injunction before him without being concerned with the claims in the writ of summons.
Whether on the facts as found by the court below and which were in any event common ground it was competent for it to hold that this was proper case for grant of interlocutory injunction.
Whether the court below was right in affirming the failure of the learned trial Judge to extract an undertaking as to damages from the plaintiffs/applicants as a precondition for grant of interlocutory injunction in this case.

The jurisdiction of the court to grant interlocutory injunction is equitable. The main complaint of the appellants in this appeal is the exercise of the discretionary power of the learned trial Judge to grant the application for interlocutory injunction. It is a matter of discretion whether an injunction will or will not be granted. The manner of the exercise of that discretion depends upon the precise nature of the particular rights which it is sought to protect and upon all the other material facts and circumstances. If a plaintiff is able to show that his remedies at law are inadequate and that there is sufficient probability that the acts which are complained of will take place to render it unjust and unreasonable that the court should refuse to intervene. he is entitled prima facie to the issue of an injunction. It will however be refused as a matter of discretion if it should appear to be unjust or highly unreasonable to grant it having regard to the well known equitable considerations such as hardship or balance of convenience, or other such matters. In the particular case in hand there was affidavit evidence before the learned trial Judge that 27, Onayade Street, Ikorodu Road, Lagos, is the joint property of the plaintiffs/applicants and the 2nd plaintiffs share of the said property is not subject to the mortgage; that the sale will paralyse the family as it is their family house where they live and some of their children who attend educational institutions in the neighbourhood also live in the house. In granting the application, the learned trial Judge said-

“Applying these principles to the instant application, I am satisfied that there is a triable issue in this matter. For instance. it is beyond controversy that there is a mortgage transaction between 1st plaintiff, Awosco A-Z Ltd on the one hand and the 1st defendant on the other. It is also evident that the 1st defendant is now poised to exercise its right of sale under the mortgage agreement. The counter-affidavit of Mr. Njoku raised so many issues that ought to be looked into. Again it is my view that if No. 27 Onayade Street is sold and ultimately the applicants succeed there could be no return to status quo. They will suffer irreparable injury.”

The learned trial Judge considered two material questions before granting the application namely, whether the plaintiffs made out a prima facie case and the balance of convenience and inconvenience in granting or refusing the injunction.

The court below in affirming the decision of the learned trial Judge said:

“The Judge was also right in saying that he is satisfied that there are triable issues in this matter; and for saying that if No. 27, Onayade Street is sold and ultimately the applicant succeeds there can be no return to status quo and that respondent would have suffered irreparable damage.”

The subject matter of the suit is a family house which is said to be jointly owned by the plaintiffs. It is the intention of the defendants to sell the house. The courts below took into account the probability that the apprehended breach of the rights of the 2nd applicant will take place. They also weighed the respective hardship and inconvenience to the parties which could be caused in granting or refusing the relief. I am therefore unable to see where the two courts went wrong to warrant the interference by this court. This is a proper case where the court will intervene and preserve the property in status quo during the pendency of the suit until the rights to it are decided. It is not proper for the court at that stage to express any opinion as to such rights. Such an opinion might give the impression that the court has made up its mind on the substantive issue on trial before it. See Orji v. Zaria Ind. Ltd. & Or. (1992) 1 NWLR (Pt. 216) 124 and Akapo v. Hakeem-Habeeb & Ors. (1992) 6 NWLR (Pt. 247) 266.

In an application for a grant of injunction pending the determination of the substantive claim, the Judge has a duty to ensure that he does not in the determination of the application determine the same issues that would arise for determination in the substantive suit. An application for interlocutory injunction can be determined in the absence of pleadings and oral evidence. See Mobil Oil (Nig.) Ltd. v. Chief Agadaigho (1988) 2 NWLR (Pt. 77) 383 and Kufeji v. Kogbe (1961) All NLR 122 (Reprint). From the affidavit evidence the plaintiffs made out a case for an injunction. There is need for the learned trial Judge to have recourse to the writ of summons or the statement of claim. He cannot shut his eyes from them. In this case however, only the statement of claim was filed. Since the defendants had not filed their statement of defence at that stage, issues had not been joined and no oral evidence adduced. There cannot be a finding on the merits. The failure of the learned trial Judge to consider the writ of summons and the statement of claim in the circumstances of this case did not occasion any miscarriage of justice. I endorse the stand taken by the court below on the failure of the learned trial Judge to extract an undertaking from the plaintiffs in that the property which is the subject-matter of the action is in the legal possession of the 1st defendant.

I am clearly of the view that in this case the plaintiffs made out a case for the grant of an interlocutory injunction and I am also satisfied that the courts below applied the right principles to the facts of the case. The learned trial Judge exercised his discretion judicially and judiciously

There is one aspect of this case which I think it is my duty to comment upon. The appeals to the Court of Appeal and this court which followed the grant of the application on 13:6:86 lasted nine years. The action was instituted ten years ago. It should have been obvious to the learned counsel for the defendants that this is a matter in which time, inconvenience and costs would have been saved by an accelerated hearing of the substantive action from the time the ruling was delivered instead of pursuing the appeal up to this court. The learned trial Judge realized the need for accelerated hearing. He gave each party leave to apply for same at the close of pleadings but his advice was not heeded. The defendants as it were fell into a trap set for them by the plaintiffs.

The appeal fails and it is dismissed. The decision of the court below is hereby affirmed.

SC.329/1990

Omimke Ebevuhe & Ors Vs Madam Etibio Ukpakara & Ors (1996) LLJR-SC

Omimke Ebevuhe & Ors Vs Madam Etibio Ukpakara & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

ONU, JSC.

This is an appeal against the decision of the Court of Appeal sitting in Benin City, which on 7th December, 1990 dismissed in its entirety the defendants/appellants’ appeal from the trial Court’s decision wherein the plaintiffs/respondents had claimed in their writ of summons against the defendants/appellant in the following terms:-

“(a) A declaration of title to all that piece or parcel of land known as and called Erawha lying and situate in Erawha village Owhe Clan in Isoko Local Government Area, Bendel (now Delta) State of Nigeria within the jurisdiction of the Honorable Court, the extent of the land in dispute being shown and verged green and red on Amended Survey Plan No. E.R. 1724 tiled with this Amended Statement of claim.

(b) The sum of N300.00 (three hundred naira) damages for trespass by the defendants to the plaintiffs’ Erawha land aforesaid sometime in April, 1975 and

(c) An order of perpetual injunction to restrain the defendants, their servants and/or agents from further trespassing on the plaintiffs’ piece or parcel of land aforesaid.” (Parenthesis mine).

After pleadings were ordered, filed, duly amended and exchanged, the case went to trial before Akpiroroh, J. sitting at Oleh, then in Bendel but now Delta State. After both parties had closed their cases, the learned trial Judge on 29th May, 1987 in a well considered judgment, granted all the reliefs the plaintiffs/respondents (hereinafter in this judgment referred to as the respondents) had claimed, save that he reduced the damages for trespass of N300.00 to N200.00.

Being dissatisfied, the defendants/appellants (hereinafter referred to as appellants) appealed to the Court of Appeal, Benin City which as hereinbefore stated, dismissed their appeal on 7th December, 1990.

For a clearer and better understanding of this case the following are die background facts as made out on behalf of the parties.

For the respondents they are that the land in dispute is part of the land founded by Ovie their ancestor which land subsequently devolved on them. Ovie, they recounted, was the grandson of Azagba, who with his wife Owhe, founded Owhe Clan. Tracing their genealogy, they showed how Ovie had a daughter called Itete and two sons – Ejeasa and Otuata. Itete, it was maintained, beget Atamaro who in turn begat Esekwe and other children.

Esekwe, it was then stated, beget Ukpakafe, Okoro, Ugboka, Agbarugo Oguboru and other children. Ukparaka begat the 1st respondent, Okoro; Okoro begat late Johnny, the 2nd and 3rd respondents. Ovie his lifetime farmed on the land before he gave it to his daughter Itete and her descendants to farm on. Both Ovie, Itete and her descendants, it is said, exercised maximum act’s of ownership over the land in dispute. They also stated that they collected palm nuts, fished and hunted games on the land as well as owning rubber plantations and houses built by their tenants thereon.

The respondents demonstrated how sometime in 1961 the 2nd appellant and Emonido started to farm on the land, in consequence of which, the 1st respondent sued them to Oleh Customary Court and got judgment; the case being Suit No. 10C/55/61 vide Exhibit B. That in 1975, when dispute erupted over the land, the appellants summoned the respondents before the Odion 0logbo asserting ownership of the land and that after probing into the dispute, the Council gave judgment in respondents’ favour. Subsequently, the appellants again trespassed on the land; whereupon the respondents commenced the action giving rise to the case herein.

The appellants for their part denied the respondents’ claim; they in addition denied that Ovie was a descendant of Azagba and Owhe and any knowledge of the Oleh Customary Court case of 1961 vide Suit Na IOC/55/61 as well as the customary arbitration before the Odion in Council in 1975. In their claim to ownership of the land in dispute, they too relied on traditional evidence, acts of ownership and long possession. Their case is that the land in dispute called Otor-Uto was founded by Akpughe their ancestor from whom it devolved on them through Eweke. Their genealogy is to the effect that Azagba and his wife who founded Owhe begat Ogbu, Ovo and Uthata. Ovo begot Akpughe who founded Otor-Uto in Erawha land. Akpughe begat Edhegbe, Eweke and Ikperi.

After the death of Akpughe, his three children shared Oto-Uto land among themselves. Eweke begat Ariakpo, Eka, Ojokor and Erhieha and after the death of Eweke, his four children shared the land among themselves. In the course of time they maintained, Odjokor defaulted in joining to clear the path to Orise Owhe juju and his own portion of the land was seized and pledged to Esekwe, the ancestor of the respondents for 80k (equivalent of twenty cowries). They asserted that when the land was in possession of the respondents as a result of the pledge they (respondents) sued the 2nd appellant in respect of the house he built on it and that the other appellants were not a party to the action.

The appellants then asserted that sometime in 1975 they summoned the respondents before D.W. 1 (George Iduku Orvwighose) in his house in order to redeem the land pledged to Esekwe their ancestor and after deliberation, the appellants redeemed the land with the sum of N200 which they paid to the respondents.

Aggrieved by the decision of the Court of Appeal (hereinafter referred to shortly as the court below) the appellants have further appealed to this Court upon five grounds contained in their notice of appeal.

The parties subsequently exchanged briefs in accordance with the rules of court. The appellants in their brief submitted four issues as arising for our determination to wit:-

Whether the decision of the lower court was right in holding that the wrong findings by the trial Judge in coming to the conclusion that there was no redemption of the disputed land was substantial enough to lead o a reversal of the decision of the trial court.

Whether the learned Justices of the Court of Appeal were right in holding that the appellants did not appeal against the adverse findings concerning the issue of pledge of the land in dispute.

Whether the Court of Appeal was right in upholding the learned trial Judge’s application of the onus of proof as enunciated in Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799 at pages 806-807; (1986) 2 SC 385 at pages 398-401.

Whether the Court of Appeal was right in upholding the decision of the learned trial Judge in accepting case No. IOC/55/61 Ukpakara v. Emonido & Anor as an act of possession in favour of the respondents in this case.

The respondents for their part formulated three issues as arising for determination. They are:-

Whether the Court of Appeal was right in refusing to interfere with finding of facts by the learned trial Judge that the land in dispute was not pledged; and that the respondents are the owners of the land in dispute.

Whether the Court of Appeal was right in upholding the learned trial Judge’s application of the principle of onus of poof enunciated in the case of Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799 at 800.

Was the Court of Appeal right in upholding the learned trial Judge’s decision that Exhibit ‘B’ is evidence of act of possession on the part of the respondents.

At the hearing of this appeal on the 23rd day of April, 1996, learned counsel for the appellants, Dr. Mudiaga Odje, SAN, after relying on the brief filed on die appellants’ behalf expatiated thereon, laying particular emphasis on issues 1 & 3 respectively. I intend, however, to stick to the four issues formulated by the appellants in my consideration of the appeal which I will deal with by taking issues I and 4 separately and issues 2 and 3 together hereunder as follows: Issue 1: (Ground 2).

After setting out the learned trial Judge’s reasons for disbelieving the evidence of DW 1, namely as to the non-issuance of a receipt for the redemption money; the failure of Chiefs Okpobrisi and Avwenegbeku to testify that DW 1 declined to give evidence to the effect that he (DW 1) gave no evidence that the meeting for the redemption neither took place in his house nor that he handed over the money to the 1st plaintiff, extract of which the Court below also reproduced, argued that the issue is so fundamental in this case that a decision in it would have entitled the appellants to judgment based on the unchallenged evidence of DW 1.

It is because the issue (of redemption) is very crucial to the determination of this case, it is contended, that DW 1, the most senior Oletu of Otor-Owhe was called to testify, adding that its importance stems from the fact that it was a recent act by both parties to this case, occurring as it did in 1975 even though the traditional evidence of the root of title by both of them dates back beyond human memory. Hence, it is further argued, anybody could say whatever he liked in proof of such facts with much colouring as to win the sympathy of the Court.

Furthermore, it is maintained, the issue of pledge also dates back to a period when none of the witnesses was born. The only recent and reliable fact supporting the appellants against the respondents in the matter of ownership of the land by the appellants, it is contended, is the act of redemption. If, as contended by the appellants, they redeemed part of the land in dispute in 1975 from the respondents, it is further argued, it will amount to conclusive proof by the appellants that there was in fact a pledge by the appellants’ family of the land in dispute to the respondents who had falsely denied this important fact.

It is further contended that once there is proof of redemption of the disputed land from the evidence led in support of same through D.W. 1, the question will not be the controversy of who actually pledged the land to the respondents but rather it will be presumed that the radical title to it is in the appellant. Consequently, it is maintained, whoever pledged the land to the respondents on behalf of the appellants’ family will be immaterial to the determination of the ownership of the disputed land. Furthermore, it is pointed out, the issue of redemption being a more recent act of possession by the appellants against the respondents, if established and proved as in this case, is conclusive proof that at one time or the other, there was a pledge of the disputed land to the respondents who are thus estopped from ever denying this crucial fact.

The court below having held that the learned trial Judge was wrong in his evaluation of the evidence of DW 1 with respect to the issue of redemption, it is further argued, it follows that the issue of redemption was never decided by the trial court. It being trite law that a court must make pronouncement or give a decision on every material issue that is before it, in a case it is argued, the trial court relied on wrong premises in giving that decision. Citing the case of Shell B.P. Petroleum Development of Nigeria Ltd. v. Pete-Cole & Ors. (1978) 3 SC 183 at page 194-196, it is submitted that the court below was in the position of the trial court to make correct findings on the evidence of D.W. 1 and give full weight and effect to it, particularly as the respondents and their witnesses admitted in their evidence, that by Owhe Custom, a pledge is perpetually redeemable. The worst that would have happened because of the importance of this issue, it is argued, was for the Court of Appeal to remit the case for retrial. Because the learned trial Judge had so made up his mind against the case of the appellants, it is further submitted, he did not give effect to the clear evidence in favour of the appellants with respect to the issue of redemption; and this influenced him in coming to the conclusion that there was no pledge. If the learned trial Judge had given full weight and effect to the case of the appellants in relation to the issue of redemption, it is maintained, he would not have come to the same conclusion he reached when he said there was no pledge and he thereby rejected the evidence of redemption given by the appellants.

It is finally submitted that the court below was wrong in treating the trial Judge’s findings or evaluation of the evidence of DW I on redemption as a mere misdirection which will not lead to a reversal of the judgment. On the contrary, it is argued, the misdirection is substantial enough to lead to a reversal of the entire judgment in that the decision that there was a redemption as recent as in 1975 was crucial in the determination of the ownership of the disputed land, irrespective of any defect or contradiction in the evidence of the appellants at the trial court.

The court below, in my considered view, was justified when it rightly refused to interfere with the findings of fact by the learned trial Judge that the land in dispute was not pledged; and that the respondents are time owners thereof. The learned trial Judge painstakingly considered and weighed the evidence of both parties and their witnesses on an imaginary scale of justice as to the issue of pledge, traditional evidence and acts of possession and rightly, in my view as demonstrated hereunder, arrived at the unimpeachable conclusion that the land in dispute was not pledged; and that the respondents are the owners of the land in dispute findings which the court below was justified in upholding.

The appellants in paragraph 9 of their Further Amended Statement of Defence materially contradicted their evidence and the evidence of their witnesses when they later testified at the trial in relation to the alleged pledge. In the said paragraph 9 (ibid), the appellants averred thus:-

“Eweke, the grandfather of the 1st, 3rd, 4th, 5th, 6th, 7th, 8th and 9th defendants had four children, namely Eka, Ariakpor, Erieha and Odjokor. When Eweke died, the four children divided their Erahwa portion of Otor-Otu into four parts.

In the course of time, Odjokor defaulted in joining to clear the path of Orise-Owho juju which was at that time compulsory on all able-bodied adult men.

Consequently, he was fined the sum of money known as Udhe in cowries the equivalent of 80k; when he could not pay it on the spot, he was obliged to pledge his portion of Erahwa land aforesaid for 80k to one Esekwe, plaintiffs’ ancestor. It was as a result of this pledge that the said Esekwe and later the plaintiffs came into possession of only this small portion. The said portion is marked Red in the defendants’ plan filed in support of the further statement of defence.”

The appellants in their averment above stated inter alia that Odjokor pledged the land in dispute to Esekwe, the ancestor of the respondents. But the 5th appellant in his testimony in the trial court said among other things that it was Oneroha, the Oletu-Ologbo at the time, who seized the land in dispute from Odjokor and pledged it to Esekwe. In Exhibit ‘B’, the 1961 proceedings No. IOC/55/61 transferred from the Ugheli High Court to the trial court, one Emalerata Eka said in evidence that the land in dispute belongs to his father which was seized by Owhe people who sold it to Esekwe. The appellants further pleaded in paragraph 9(ibid) that only a small portion verged red in Exhibit C (the appellants’ Survey plan) was pledged. Also in paragraph 9(ibid) the appellants asserted that Eweke begot Eka, Ariakpor, Erieha and Odjokor but the appellants’ 3rd witness, Jacob Ajigho, in his testimony told the trial court that 0djokor begot Akpughe and Akpughe begat Eweke. Further still, in paragraph 9 (ibid) the appellants stated that Odjokor defaulted in joining to clear the path leading to Orise-Owhe juju and he was fined 80k. That because he could not pay the 80k fine on the spot, he pledged his Erawha land to Eseke for 80k However, in his evidence appellants’ 3rd witness stated that in the olden days when Akpughe failed to clear his portion of land, Oneroha seized it from him and pledged it to Ezekwe. The above are definitely conflicts indeed, contradictions inherent in the appellants’ case as put forward by them which are material and fatal to their case, justifying the findings of fact by the trial court and the decision of the court below which upheld those findings of fact

It is trite law that a party is bound by his pleadings-See Ikenye Dike & 2 Ors. Obi Nzeka II & 3 Ors. (1986) 4 NWLR (Pt. 34)144 at 146; Chukwueke v. Nwankwo & Ors. (1995) 2 NWLR (Pt. 6) 195 at 196 and A.G. Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 NWLR (Pt. 66) 547.

The Supreme Court (per Irikefe, JSC. as he then was) held as follows in African Continental Seaways Ltd. v. Nigerian Dredging Road & General Works Ltd. (1977) 5 SC 235 at 250:

“A court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties.”

In the instant case, the respondents who were shown by credible and consistent traditional evidence relating to their root of title that they are in possession of the land in dispute depicted in Exhibit ‘A’ also demonstrated the existence of the 1961 proceedings in Suit No. IOC/55/61 vide Exhibit ‘B’ to show the same acts of possession. The Court below was therefore, in my view, justified after a careful consideration of the findings of the learned trial Judge not to have interfered with those findings as the same were not shown to be perverse.

The appellants alleged that in 1975 they redeemed the land in dispute with N200; the respondents denied receiving either any money from them or anyone. The respondents, in addition denied receiving any money from the appellants and the learned trial Judge found, quite rightly in my view, that the land in dispute was not pledged. As redemption presupposes that there was a pledge and as in the case in hand the learned trial judge had rightly found that the land in dispute was not pledged, there can be no redemption. See: Nwagwu v. Okonkwo (1987) 3 NWLR (Part 60) 314. In the instant case, as the parties agreed and the learned trial Judge found as a fact that the respondents were the original owners of the land in dispute, the onus is on the appellants to establish a change of ownership by sale. There is indeed no onus on the respondents to establish a pledge. So held this Court in the identical case of George Onobruchere & Anor v. Ivwromoebo Esegine & Anor (1986) 1 NWLR (Pt.19) 799, wherein the principle was established that since the onus is on the defendants, in this case the appellants, it is their duty to begin to adduce evidence, for it is they who would lose if no more evidence is adduced having regard to the state of the pleadings. See also Nwobodo Ezeudu & Ors. v. Isaac Obiagwu (1986) 2 NWLR (Pt.21) 208 at 213;(1986) 3 SC 1 at 4 and Mustapha Lawal v. Abdul Gbadamosi Ijale (1967) NMLR 155 at 157.

On the onus that lies on the appellants to prove that land was pledged to them is by the production of evidence or through decided cases, failure to do so will result in the non-discharge of that burden See: Melifonwu v. Egbuji (1982) 9 SC 145 at 168; Taiwo v. Dosunmu (1965) 1 All NLR 399 and Adegboyega v. Igbinosun (1969) 1 All NLR 1. The latter principle of law is founded on the basis that once a pledge always a pledge vide Stephen lkeanyi & Anor v. Ogbonna Adighogu (1957) 2 ENLR 38. Where an issue as to redemption is made or raised, as in the instant case, it is now trite that the trial court must take a decision thereon. See: Nana Sir Ofori Atta v. Amoah (1930) 1 WACA 15 at 40 and Kano State Urban Development Board v. Fanz Ltd. (1986) 5 NWLR (Pt.39) 74 at pages 88-89. This is because a pledge naturally precedes its redemption, if there is no pledge there can be no redemption. To exemplify that there was no pledge- a phenomenon rendered inevitable by the apparent contradictions in the appellants’ case- I need refer once more to what DW 1 said in examination-in-chief vis-à-vis their pleading in paragraph 9 of the Further Amended Statement of Defence. Said DW 1.

“…. I know the plaintiffs as well as the defendants. I know the land in dispute. It is called Eweke land. Eweke land was pledged to one Osakwe by the “iletus” of Owhe because one Adjokor, the owner of the land failed to clear it when the community announced the clearing of “idhede.” The Iletus then seized the land and pledged it to Osakwe……”

In paragraph 9 of the Further Amended Statement of Defence (Ibid) they averred inter alia:-

“In the course of time Odjoko defaulted in joining to clear the path of Orise-Owhe juju which was at that time compulsory on all able-bodied adult men. Consequently, he was fined the sum of money known as Udhe in cowries the equivalent of 80k; when he could not pay it on the spot, he was obliged to pledge his portion of Erahwa land aforesaid for 80k to one Esekwe, plaintiffs’ ancestor…..”

The learned trial judge in resolving the contradictions held inter alia as follows:-

“By paragraph 9 of the further amended statement of defence, the defendants say that Odjokor pledged the land to Esekwe and still retained his radical title and in paragraph 13 of their amended statement of defence they pleaded that they redeemed the land from the plaintiffs. The plaintiffs on the other hand said that the land was never pledged and that it was founded by their ancestor. The defendants having admitted in paragraph 8 of the further amended statement of defence that at one time the radical title was in Esekwe, the ancestor of the plaintiffs, the onus is on them (defendants) to prove that the radical title had been extinguished by the alleged redemption pleaded by them in paragraph 13 of their statement of defence…..”

Since the learned trial Judge had found rightly, in my view, that the land in dispute was not pledged, there can be no redemption. Indeed, he assigned his reasons to back his stance for so holding. The court below was therefore right to have held that the reasons can only amount to a misdirection which did not lead the learned trial Judge to reach a wrong decision; such a decision not being based on a wrong principle of law as to lead to a reversal of the judgment of the trial court. The court below was therefore perfectly right when it held, relying on the case of Attorney-General of Bendel State v. Attorney-General of the Federation and Ors (1981) 3 NCLR 1;(1981) 10 SC 1 at Pp. 62-63 (Per Idigbe, JSC.) that:-

“It seems to me however that what this court has to decide is whether the decision of the judge was right, not whether his reasons were. It is only if the misdirection caused him to come to a wrong decision that it would be material.”

In P.A. Abaye v. Ikem Uche Ofili & Anor (1986) 1 NWLR (Pt.15) 134; (1986) 1 SC 231 at 321 Karibi-Whyte, JSC. had this to say:-

“It is well settled in our jurisprudence that where the judgment of the court is right and only the reasons for the judgment are wrong, the appellate court will not interfere with the judgment merely because of the wrong reasons……”

See: also Ukejianya v. Uchendu (1950) 13 WACA 45. This case, in my opinion, is not that described by the learned Senior Advocate for the appellants as one in which the learned trial Judge tragically made wrong findings which were not based on evidence on the printed record. Nor is it a case where such findings sought to be impugned amount to putting the wrong onus of proof on the appellants. Thus, the passages relied on in the cases of Ugbodume v. Rev. Abiegbe (1991) 8 NWLR (Pt.209) 261 at pages 274 A-F; 277-278 H-B and Usikaro & Ors. v. Itsekiri Communal Land Trustees (1991) 2 NWLR (PL 172) 150 at pages 168H; 809F and E and 810F are, in my respectful view, not directly in point albeit that they were forcefully called in aid. On the contrary, there has been no serious misdirection as to determine the case. The decision of the trial court which the lower court affirmed therefore did not, in my view, amount to the placement of the wrong onus or on wrong persons (the appellants) as to amount to serious errors or the adoption of a wrong procedure which culminated in a miscarriage of justice. In this wise, the cases of Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413 at 421-422 and 428 as well as Ajuwon v. Akanni (1993) 9 NWLR (Pt.316)182 at 220-221 cited to buttress learned SAN’S submission, are in my respectful view, of no avail. It would have been a perverse judgment if, as the learned vial Judge had found, that the land in dispute belongs to the respondents to have later turned round to make a contrary finding of fact that the land in dispute was pledged to the respondents and that thereafter the land was redeemed by the appellants from the respondents.

See Kimdey & Ors. v. The Military Governor of Gongola State & Ors. (1988) 2 NWLR (Pt.77) 445; (1988) 5 SCNJ 28 and The Registered Trustees of Apostolic Faith Mission & Anor v. Uma Bassey James & Anor(1987) 3 NWLR (Pt.61) 556; (1987) SCNJ 167. When the learned vial Judge therefore held inter alia that:-

“It is my view that if the defendants really redeemed the land from the plaintiffs in 1975, they could have been issued with a receipt It is also my view that if in fact they redeemed the land they could have called Chief Okpobrisi and Chief Avwenagbeku who are the spokesmen and the most Senior Oletu in Owhe respectively to testify for them in the case……”

This misdirection would not, in my opinion, amount to a serious misdirection or want of fair hearing to enable this court overturn the judgment of the court below which affirmed the same. Nor is the submission of learned Senior Advocate for the appellants that the learned trial Judge held that DW 1 did not give evidence at all a correct statement of fact.

Put in its proper perspective, the following is the finding of fact by the Learned trial Judge on the matter.

“…. I do not believe the evidence of DW 1 that the defendants redeemed the land from the plaintiffs in his house. There was no evidence from DW I that the meeting took place in his house. Equally, there was no evidence from him that the sum of N200.00 was handed over to him and he in turn handed it over to the 1st plaintiff. D W 1 said that the money was handed to one John Ukpakara.”

My answer to Issue One is accordingly in the positive.

Issues 2 and 3:

These issues ask whether the learned Justices of the Court of Appeal were right in holding that the appellants did not appeal against the adverse findings concerning the issue of pledge of the land in dispute and whether the Court of Appeal was wrong in upholding the application of the learned trial Judge concerning the principle enunciated in the case of Onobruchere v. Esegine (1986)1 NWLR (Pt.19) 799 at pp. 806-807.

It is trite law that the burden of proof in a claim for declaration of title to land lies on the plaintiff, the general rule being that a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case: See: Kodilinye v. Mbanefo Odu (1935) 2 WACA 336; Nwankwo Udegbe & Ors. v. Anachuna Nwokafor & Ors. (1963) 1 SCNLR 184;(1963) 1 All NLR 417 at 418; Woluchem v. Gudi (1981) 5 SC 291 at 309 and Sunday Piaro v. Chief Wopnu Tenalo & Anor (1976) 12 SC 31 at 37. However, there are recognized exceptions, one of which is enunciated in the case of Onobruchere v. Esegine (supra).

In Onobruchere’s case (supra), the issue was whether the land in dispute was pledged to the defendants as asserted by the plaintiffs or sold out-right to them as contended by the defendants. This court held that, having acknowledged the plaintiffs radical title to the land, the burden of proving that the plaintiffs had been divested of their radical title rested on the defendants.

In the instant case herein on appeal, the appellants conceded that the respondents are in possession of the land in dispute by means of an alleged pledge which the respondents stoutly denied. The appellants having raised the issue of the alleged pledge, the learned trial Judge relying on the case of Onobruchere v. Esegine (supra) placed the burden of proof on them. The court below agreed with the application of the law as stated by the learned trial Judge, to wic that the two cases are on all fours. I think the court below was right for the following reasons:-

Firstly, before and at the commencement of this action, the land in dispute has been and still is, in the possession of the respondents as can be seen in Exhibits ‘A’ and ‘B”

Secondly, the respondents had prosecuted trespassers on the land in dispute before the alleged redemption in 1975. In Exhibit B’ the 1st respondent had successfully prosecuted in Suit No. IOC/55/61 at the Grade ‘B’ Isoko-Oleh Customary Court the 2nd appellant for a declaration of title, damages for trespass and injunction.

Thirdly, when the said suit was tried at the Grade ‘B’ Customary Court, Isoko-Oleh, no Issue was therein raised on alleged pledge and redemption.

Fourthly, as argued in issue 1 above, once the trial court had found as a fact that the land in dispute was not pledged, the issue of redemption will not arise. See: Nwangwu v. Okonkwo (supra)_. Indeed, where a defendant admits that a plaintiff is in possession of a land in dispute although by a pledge, a pledge which the plaintiff strongly denies, the onus shifts on the defendant to prove the pledge. See: Ochonma v. Unosi (1965) NMLR 321 and Oke v. Atoloye (1986) 1 NWLR (Pt. 15) 241 at 244. And if he fails to do so, then the presumption by virtue of Section 45 (now Section 46) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, 1990, would be that the plaintiff is the owner of the land of which he is in possession. See: Ezeudu & Ors. v. Isaac Obiagwu (supra). The court below was therefore justified in upholding the application of the principle enunciated in the Onobruchere’s case which was rightly applied by the learned trial Judge. See: Salawu Ajide v. Kadiri Kelani (1985) 3 NWLR (Pt. 12) 248 at 250.

In the light of all I have stated above as well as hereinbefore in Issue 1, the Justices of the Court below were, in my view, right in holding that the appellants did not appeal against the adverse findings concerning the issue of pledge of the land in dispute. This is because the main focus of attack by the appellants being in relation to redemption which presupposes the existence of a pledge, once the carpet was removed from under the appellants’ feet that no pledge through their pleading of traditional evidence as to their root of title as well as evidence adduced at the trial in support thereof were established, their case as to pledge which therefore collapsed, provided no basis for an appeal against any such adverse findings. The learned trial Judge was perfectly right to have found as a fact that the respondents are the owners of the land in dispute and that the land in dispute was not pledged as claimed by the appellants. The principle enunciated in Onobruchere’s case was therefore not wrongly applied. Consequently, the court below was therefore justified to have upheld the findings of facts by the trial Judge. Indeed, the two decisions constitute concurrent findings of fact by the two courts below which this court will not lightly disturb since they have neither been shown to be perverse nor in breach of any substantive rule of law or procedure to warrant such interference by me.

See: Akinsanya v. U.B.A. (Nig.) Ltd. (1986) 4 NWLR (Pt. 35) 273; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; Ibodo v. Enarofia (1980) 5-7 SC 42 at 58 and Western Steel Works v. Iron & Steel Workers’ Union (1987) 1 NWLR (Pt.49) 284.

The two issues are accordingly answered in the positive.

Issue 4: The appellants’ complaint in this issue is whether the court below was right in upholding the decision of the learned trial Judge in accepting case No. 10C/55/ 61; Ukpakara v. Emonido & Anor as an act of possession in favour of the respondents in this case.

I will commence the consideration of this issue by first adverting to paragraph 10 of the Further Amended Statement of Claim wherein the respondents pleaded:-

“Sometime in 1961, the 2nd defendant and one Emonido Akpobeno at the institution (sic) of the other defendants, trespassed on the plaintiffs’ Erawha land and cleared a portion of it for farming and began building their houses on other portions without the leave of the plaintiffs first obtained. The plaintiffs challenged them and when they (and defendants and Emonido Akpobeno) laid claim to the land, the 1st plaintiff, for herself and on behalf of the Ovie family, sued them at the Isoko-Oleh Grade B customary court in Suit No. IOC/55/61 claiming a declaration of title to the said land and injunction. The 1st plaintiff won the action and title to the said Emwha land was conferred on her family. The case was fought to the knowledge of the other defendants and the 7th defendant Inana Utunedi gave evidence for the 2nd defendant in the Case No. 10C/ 55/61 aforesaid).”

The respondents adduced evidence in line with the above pleading and it is pertinent to mention that Suit No. 10C/55/61 vide Exhibit ‘B’ was fought to the knowledge of the appellants. It was part of the uncontradicted case of the respondents at the trial that the 7th appellant gave evidence as a witness for the 2nd appellant in Exhibit ’B’. There was also no issue of pledge and redemption raised by the 2nd and 7th appellants in Exhibit ‘B’ before the Isoko-Oleh Grade B Customary Court. The 2nd appellant however, said therein that “the land belongs to one Emalereta who sold it to the first respondent.”

After the 1st respondent had won the case (Exhibit ‘B’), the 2nd appellant and Emonido Akpogbeno pleaded with the 1st respondent to allow them complete their buildings on the land in dispute and for them to live thereon as customary tenants of the respondents and having agreed to pay N40.00, two bottles of native gin and a bottle of schnapps, thus acknowledging the title to the land in dispute in the respondents as pleaded in paragraph 11 of the Further Amended Statement of Claim. In paragraph I1 of the Amended Statement of Defence, the appellants averred that 2nd appellant does not belong to the Eweke branch but he is of Edegbe branch. But the 2nd appellant in his evidence in Exhibit ‘B’ said that his father and Emonido Akpogbeno (Okoro) were half brothers, indicating that 2nd appellant is a descendant of Eweke and therefore a member of appellants’ family. In paragraph 11 of the appellants’ further amended statement of defence they (appellants) jointly pleaded that they were not aware of the case (10C/55/61) cited but 7th appellant was the 2nd witness to the defendants in Exhibit ‘B’. Moreover, in the instant case, the 2nd appellant was in court. But he did not give evidence to show that:-

(a) the land the subject matter of the litigation in Exhibit ‘B’ was a different land from the land in dispute.

(b) he is not from the Eweke branch but from the Edhegbe branch, and to deny the story of how he and Akpogbeno lost the case in Exhibit ‘B’ to the 1st respondent and their being customary tenants in relation to the land on which they built their buildings with the ensuing incidents thereto.

(d) the appellants (including 2nd appellant) and the Eweke family were not aware of Exhibit ‘B’.

Besides, the land in dispute herein as shown in Exhibit ‘A’ is called Erawha land, distinguishing it from any other lands founded by the respondents’ ancestor Ovie. One is left in no doubt in both the parties’ pleadings and evidence that it was the same land that was litigated upon in Suit No. 10C/55/61 otherwise referred to as Exhibit ‘B’ in this appeal. Being quite oblivious of the respondents’ pleadings in paragraphs 6, 7, 8 and 10 of the Further Amended Statement of Claim and the evidence adduced in support thereof, the appellants’ submission at page 10 of their brief to the effect that:-

“According to the respondents even though Ovie founded the land in dispute in his life time he ordered that Itefe (sic) his only daughter should farm on the disputed land which was a gift inter vivos to plaintiffs’ ancestors.

In order to prove acts of possession, respondents tendered Exhibit “B” a judgment of Isoko-Oleh Grade ’B’ Customary Court against some individuals to which the appellants were not parties. Apart from the appellants not being parties, the subject matter in Exhibit “B “cannot be the same subject matter of the case at band in that in Exhibit “B” the land which was in dispute was that inherited and not acquired inter vivos as shown in the said judgment. And bearing in mind that it is the contention of respondents that Ovie founded many parcels of land, it must be established that what was in dispute in Exhibit “B” is the same as the land in dispute in the case in hand to enable Exhibit “B” be of evidential value of acts of possession by the respondents.

From the pleadings of respondents, the land in dispute having been given by Ovie in his lifetime as the exclusive property of Itefe (sic) his only daughter, all other members of Ovie family can (sic) longer lay claim to the use of the said parcel of land. In contradistinction to the land in dispute, that land the subject matter of Exhibit “B” is the exclusive property of the entire Ovie family which parties in the said case got title to at the time of bringing the action by inheritance. The above I submit with all respect are two sets of parcel of land one by gift inter vivos and the other by inheritance.

With respect, the trial court and indeed the Court of Appeal did not see this copious difference in the title to the land in the case in hand and Exhibit “B”’’

cannot be correct in the light of all I had set out earlier. The submission, in my view, is of no avail to the appellants. Besides, the law is that the land in dispute is the area plaintiff is claiming – in the instant case, that as shown on the survey plan vide Exhibit A. See: Nwobodo Ezeudu & Ors. v. Isaac Obiagwu (supra) at page 18.

Also in the instant case, no issue was joined as to the identity of the land in dispute because it is well known to both parties as Erawha land. See: Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41 at p. 60. Thus, although the radical title to the land in dispute remained in Ovie family of the respondents, Ovie ordered that Itete and her descendants should be allowed to farm on it – the respondents being descendants of Itete, the daughter of Ovie. The respondents being members of Ovie family have interest in Erawha land and they are, as earlier concluded, in possession of the land in dispute.

The court below was accordingly right to have held that the learned trial Judge was justified in treating Exhibit “B” as evidence of possession on the part of the respondents. See: James Uluba & Ors. v. Chief Sillo (1973) 1 SC 37 at Pp. 55-56 and Paul Nwadike v. Cletus Ibekwe & Ors. (1987) 4 NWLR (Pt.67) 718; (1987) 12 SC 14 at pages 34-44.

The issue is therefore answered in the positive.

In the result, this appeal fails and is accordingly dismissed. The appellants shall pay costs of N1,000.00 only to the respondents.

Other Citation: (1996) LCN/2666(SC)

Felix Okoli Ezeonwu V. Chief Charles A. Onyechi & Ors. (1996) LLJR-SC

Felix Okoli Ezeonwu V. Chief Charles A. Onyechi & Ors. (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

There existed an organisation known as the Ufuma Practical Praying Band with headquarters at Ufuma in the Aguata Local Government Area of Anambra State. It had a branch in Kano where the 1st defendant in these proceedings lived for many years. Sometime in June 1978 seven members of this organisation met and agreed among themselves to plan and finance the formation of a company to manufacture biscuits.

The plaintiff and the 1st defendants were among these seven members. Series of meetings were held and contributions made towards the objective. It would appear, however, that the financial burden of the formation of the company fell mostly on the plaintiff and the 1st defendant.

A legal practitioner, Mrs. Uche Offia-Nwali (now dead) was briefed by the 1st defendant to incorporate the company. She filed the necessary documents required by the Companies Act. 1968 for the incorporation of a private company with limited liability. Among these documents were the Memorandum and Articles of Association of the proposed company and Form C.O. 7 (Particulars of Directors).

On 19th October 1978, the company – City Biscuits Manufacturing Company Limited – was incorporated and a certificate of incorporation was issued on that day by the Registrar of Companies. This Company is the 2nd defendant in these proceedings.

Following the incorporation of the company, the members met on a number of occasions to raise funds to enable the company go into business. It would appear that the 1st defendant throughout acted as the Chairman, Managing Director and Secretary to the company for he summoned meetings, presided at such meetings and prepared and signed the minutes of such meetings.

By a circular letter dated 27th September 1980, the 1st defendant requested the other members to:

“Indicate in writing within the next two weeks ..whether you are continuing or withdrawing ….”

The plaintiff replied indicating his intention to continue his participation in the project. It would appear that the other five members discontinued with further participation for there is no evidence in these proceedings that they reacted positively to the circular letter.

The plaintiff made various contributions running into thousands of Naira, by cheques made out in the name of the 2nd defendant. He also secured land at Onitsha for the erection of the company’s factory. The 2nd defendant needed loan for its take-off. An application was made by the company in 1981 to the International Merchant Bank (Nig.) Ltd. (3rd defendant in these proceedings) for a loan. A total amount of N1,000.000.00 (One million Naira) as loan and current line facility was approved by the 3rd defendant. It was the plaintiff who mortgaged his house as security for the loan. The factory went into production in March 1983.

From this stage on, the 1st defendant took complete control of the affairs of the 2nd defendant. The plaintiff was no longer consulted or informed about the goings-on in the company. In September 1985 the 3rd defendant at the reqest of the 2nd defendant, forwarded plaintiff’s title deeds to the 2nd defendant. The documents were not released to the plaintiffs but kept by the 1st and 2nd Defendants.

Displeased with the turn of events, the plaintiff, by originating summons issued in the Federal High Court, Enugu, instituted the proceedings leading to this appeal claiming from the 1st, 2nd and 3rd Defendants as hereunder:

“1. A declaration that the Memorandum and Articles of Association with which the 2nd defendant City Biscuits Manufacturing Company Limited was registered and filed on the 28th day of September, 1978 with the Registrar of Companies at Lagos contains the only provisions regulating the operations of the 2nd defendant since incorporation till date.

A declaration that the plaintiff together with the 1st defendant under and by virtue of the Memorandum and Articles of Association dated 14th September, 1978 and filed on the 28th September, 1978 with the Registrar of Companies at Lagos are joint members and owners of the 2nd defendant Company that is City Biscuits Manufacturing Company Limited.
An order directing the 1st (and 3rd) defendant(s) (severally) to render an account of the management, operations as well as financial involvements of one and the other with the 2nd defendant company since its incorporation in 1978.
An order of this Honourable Court directing a meeting of the 2nd defendant/company to be held within 30 days of the Order for the sole purpose of appointing Secretary and Auditor outside the present subscriber/directors of the 2nd defendant/company.
An Order of this Honourable Court directing the 3rd defendant to release the following documents in respect of Plot No. 58 VIP Rest House GRA Onitsha Mortgage on behalf of the 2nd defendant company by the plaintiff that is to say:

(i) A Building lease registered as No. 93, at page 93 in Volume 675 at the Enugu Land Registry.

(ii) A power of attorney registered as No. 82 at page 82 in Volume 733 at the Enugu Land Registry; and

(iii) Agreement for sale made on 19th February 1975 between Celestine Obi Olisa of 27 Venn Road, South Onitsha and Felix Ezeonwu of 23 Iboku Street, Odoakpu; Onitsha.

And for such further or further orders as the Honourable Court may deem fit to make in the circumstances.”

The summons was supported by an affidavit sworn to by the plaintiff and a number of documents were annexed as exhibits FOE 1 – 18 to the affidavit.

The 1st defendant swore to and filed a counter-affidavit, an official of the 3rd defendant also swore to and filed a counter-affidavit. These counter-affidavits had annexed to them a number of documentary exhibits.

Learned counsel for the parties addressed the Court.

The learned trial Judge (Ofili, J.), after a review and appraisal of the affidavit evidence before him and the submissions of learned counsel, dismissed plaintiff’s claims 1-4. He granted claim 5 against the 1st and 2nd Defendants. Notwithstanding the dismissal of Claims 1- 4, the learned trial Judge, however, awarded the plaintiff a total sum of N129,065.37 which he ordered the 1st defendant to refund to the plaintiff being refund of “various remittances made by the plaintiff to the 1st defendant” with 5% simple interest.

Being dissatisfied with this judgment, the plaintiff appealed unsuccessfully to the Court of Appeal (Enugu Division). He has now further appealed to this Court upon five original and six additional grounds of appeal. Pursuant to the rules of this Court the plaintiff on the one hand and the 1st and 2nd Defendants on the other hand filed and exchanged their respective written Briefs of argument. In view of the judgment of the trial court on Claim 5 against which there has been no appeal either to the court below or this Court, the 3rd defendant are no longer involved in the proceedings. Hence, they did not file any Brief nor appeared at the hearings in the court below and this Court.

The following four questions are set out in the plaintiff/Appellant’s Brief as calling for determination in this appeal:

“1. Whether the Court of Appeal was right in affirming the judgment of the trial court in its interpretation and construction of the relevant statutory provisions of the 1968 companies decree governing the incorporation of the private limited company with share capital having regard to the accepted findings by the trial court.

Whether the 1st and 2nd Respondents were not estopped from denying the status of the Appellant as Member, Shareholder and Director of the 2nd defendant.
Whether it was right to hold that minutes relied upon by the appellant were inadmissible.
Whether having regard to the comments of the Court of Appeal on inappropriateness of both the form of proceedings and the conduct of the trial only on conflicting affidavit evidence alone it was right to have affirmed the award of pecuniary compensation not specifically claimed rather than order a retrial or striking out the case.”

The questions for determination set out in the Defendants/Respondents’ Brief are not dissimilar.

QUESTIONS (1) and (2):

It is convenient to take these two questions together. They both together raise the principal issue in controversy between the parties and that is, whether the plaintiff was a subscriber to the Memorandum and Articles of Association of the 2nd defendant. For if he was a subscriber, he would, by virtue of section 26(i) of the Companies Act, 1968 (applicable to these proceedings) be a member of the 2nd defendant and would be entitled to the declarations and orders sought by him.

From the affidavit evidence adduced at the trial, the following facts stand unchallenged:

That plaintiff and 1st defendant and five others agreed to form a company for the purpose of manufacturing biscuits;
That the names of the plaintiff and 1st defendant appear on the Memorandum and Articles of Association of the 2nd defendant (Exhibit FOE 15) with a signature against each name;
That the signatures against the two names were attested to by late Mrs. Uche Offia-Nwali, the legal practitioner engaged to incorporate the 2nd defendant;
That Mrs. Offia-Nwali also filed Form C.O.7 – Particulars of Directors (Exhibit FOE 16). This form contained the names of the plaintiff and 1st defendant as Directors of the 2nd defendant and was signed by the 1st defendant as Director and another person (presumably Mrs. Offia-Nwali) as Secretary; and
That on the strength of these documents, the 2nd defendant was incorporated on 19th October 1978 and a certificate of incorporation (Exhibit FOE 2) was issued and signed by the Registrar of Companies.

The plaintiff contends that he is a subscriber to the Memorandum and Articles of Association of the 2nd defendant and therefore a member of the company. He claims that he is also a director of the company. He relies on Exhibits FOE 15 and FOE 16 in proof of his case. He contends that Exhibit FOE 15 satisfied the statutory requirements provided for in section 1 and 2 of the Companies Act 1968 relating to the formation of a private company with limited liability in terms as to the minimum number of subscribers, the minimum numbers of shares taken by such subscribers and the manner for indicating such number of shares. He also contends that Exhibit FOE 15, exfacie, satisfies the requirements of section 5 of the Act. He further contends that Exhibit FOE 16 clearly establishes that he is a director of the 2nd defendant. It is plaintiff’s contention that he has furnished prima facie proof that he was a subscribe. At the oral hearing before us, Dr. Ibik SAN learned leading counsel for the plaintiff submits that the concurrent findings of the two courts below to the effect that plaintiff was not a subscriber is perverse and ought to be set aside by this Court.

It is further contended that by Exhibits FOE 7 and 17, the 1st defendant is estopped from saying that plaintiff was not a subscriber.

In his counter-affidavit, the 1st defendant deposed, inter alia, as follows:

“(9) That the plaintiff is not a member of the Board of Directors of the 2nd defendant.

(10) That the plaintiff never subscribed to the Memorandum and Articles of Association, nor a shareholder of the 2nd defendant even though he contributed unspecified amounts of money towards the incorporation expenses of the 2nd defendants or attended its meetings.

(11) That even though the plaintiff’s name was printed in the Original Memorandum and Articles of Association the plaintiff did not subscribe to it.

(12) That the person whose signature appears as subscriber under the name of the plaintiff is the solicitor engaged to file the registration documents, late Mrs. Offia-Nwali.

(13) That the plaintiff’s signature in the affidavit attached to this originating summons is clearly not that appearing over the printed word Director in exhibit “FOE 15″ of the plaintiff.”

The 1st and 2nd Defendants contend that plaintiff did not controvert the above depositions which must be taken as proved and has, therefore, failed to prove that he signed or subscribed to Exhibit FOE 15 as required by section 5 of the Act and could, therefore, not take advantage of section 26(1). It is urged on the Court not to disturb the concurrent finding of the two courts below that the plaintiff was not a subscriber to Exhibit FOE 15.

On estoppel, it is contended for the Defendants that Exhibits FOE 7 and 17 would not estop the Defendants as one could not hide under estoppel to avoid complying with the requirements of the law.

Dr. Ume, SAN learned leading counsel for the 1st and 2nd Defendants concedes it that Exhibit FOE 15 prima facie complied with section 5 of the Act but argues that the onus was on the plaintiff to prove that he signed against his name in Exhibit FOE 15.

In finding that the plaintiff was not a subscriber to Exhibit FOE 15, the learned trial Judge observed:

“A cursory look at page 5 of exhibit FOE 15 certainly does not show that the plaintiff subscribed to the memorandum as provided by the Act. Let us take notice of the documents before this Court under the authority of Craven v. Smith 1869 4 Law Report, Exchequer at 146. Exhibit FOE 5 is a letter written to Mr. C. A. Onyechi, Reference No. DAFE/JO/C8/CB/112 – 79 of 24/7 /79 signed by F. O. Ezeonwu. The signature therein does not in any way resemble his signature on page 5 of Exhibit FOE 15.

Further, Exhibit FOE 8 is a letter written to the Chairman and Managing Director of the second defendant company on the 11th of October, 1980, by Felix O. Ezeonwu, the plaintiff. His signature therein is drastically. different from his purported signature in Exhibit FOE 15.Learned counsel for the plaintiff maintains that the signature referred to “in section 5 of the Companies Decree is not the same as what the ordinary man knows. What it means is the name of the subscriber.” I do not subscribe to learned counsel’s view on the import of Section 5. See Re South Blackpool Hotel. Co. Migotti’s case Ch. (1867), LR 4 EQ 238.

It is observed and curious enough too, that the plaintiff at no time averred in his affidavit that he signed Exhibit FOE 15 which is the main bone of contention, or that his name is in the book of the second defendant/company as a shareholder and the number of shares he holds in the company. In view of paragraphs 11-16 of the first and second defendant’s counter-affidavits, one should have expected the plaintiff to counter the averments made by the defendants these averments have not been specifically or generally denied and so are deemed to be admitted.”

In affirming the finding of the trial court, the court below observed, Per Chigbue, J.C.A.:

“To satisfy, therefore, the requirement of S. 5, the shareholder has to prove that he signed the memorandum in the presence of someone who attested to his signature and that the signature thereon was his own. Exh. FOE 15 is the copy of the Memorandum and Article of Association with the purported signature of the appellant but when the trial court examined and compared the signature on Exh. FOE 5 a letter written by the appellant to one Mr. A. C. Onyechi it was found by the trial Judge to be drastically dissimilar. The same comparison was further made with the appellant’s letter to the 1st respondent on 11 October 1980 and was also found to be different. The subscription of one’s name and signature on the Memorandum and Articles of Association was one of the legal requirements to satisfy the provisions of S. 5 of the Company Act.

The Respondent’s case is that the appellant did not sign Exh. FOE 15. Their averments to this effect as contained in paragraphs 11 – 16 of their counter-affidavit stood uncontroverted by the appellant and that being so, should therefore be deemed to have been admitted – see ACB Ltd. v. Attorney-General of Northern Nigeria (1967) NMLR 231 and Commissioner for Works Benue v. Devcon Ltd. (1988) 3 NWLR (Pt.83) 403/420.”

Later in this judgment the learned Justice of Appeal observed:

” it has been established that the appellant never subscribed his signature to the memorandum and Article of Association of the company in accordance with S. 5 of the Company Acts. The appellant never denied this fact as deposed in the respondent’s counter-affidavit – see paragraphs 11 – 16. Such non-denial should be deemed as admission of facts contained thereto.”

The attitude of this Court to concurrent findings of the two courts below has been restated in numerous cases that it is now well settled. It is sufficient to say once again that this Court will not disturb such concurrent findings unless they are shown to be perverse. The two courts below found in this case that the plaintiff was not a subscriber to Exhibit FOE 15. Is this finding perverse

I am clear in my mind that the finding runs against the grain of the documentary evidence before the two courts below. As Dr. Ume rightly concedes, Exhibit FOE 15 prima facie shows compliance with section 5 of the Act which provides:

“5. The memorandum shall bear the same stamp as if it were a deed, and be signed by each subscriber in the presence of at least one witness who shall attest the signature.”

It is not disputed that the name of the plaintiff appears on the Memorandum and the Article as a subscriber. And against that name appears a signature and description and the number of shares taken. The same goes for the 1st defendant. Mrs. Uche Offia-Nwali whose signature, name, address and occupation are contained on Exhibit FOE 15 was witness to the signatures appearing against the names of the 1st defendant and plaintiff. There is thus full compliance with the provisions of section 5 of the Act. By producing in evidence Exhibit FOE 15, the plaintiff has discharged the onus on him to prove he is a subscriber to the Memorandum and Articles of Association of the 2nd defendant. The maxim is: omnia prawesumuntur rita esse acta. See also: Section 191(1) of the Evidence Act. Cap. 112 Laws of the Federation, 1990.

Now, the 1st defendant alleges that the signature against the name of the plaintiff on Exh. FOE 15 is not that of the plaintiff but that of Mrs. Offia-Nwali. By this allegation the onus shifted on the Defendants to prove that plaintiff did not sign against his name. See: Section 137 of the Evidence Act which provides:

“137(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.”

And by deposing that Mrs. Offia-Nwali signed against plaintiff’s name purporting it to be that of the plaintiff, when at the same time she signed as “witness to the above signature”, 1st defendant is alleging forgery against Mrs. Offia-Nwali. To discharge the burden on the Defendants, therefore, the 1st defendant must prove beyond reasonable doubt that it was Mrs. Offia-Nwali, rather than the plaintiff, who appended the signature standing against the name of the plaintiff on Exhibit FOE 15.

Did they discharge this burden on them I rather think not. As against 1st Defendant’s bare depositions are Exhibits FOE 16 and 17. Exh. 16 is Form CO7 signed by the 1st defendant and in which he named the plaintiff and himself as Directors of the 2nd defendant “Appointed by the subscribers to the Memo & Articles of Association with effect from 14th September 1978.” Exhibit 17 is a letter dated July 28, 1979 written by the 1st defendant to the plaintiff in which he wrote:

“You must understand that both of us as subscribers to the Memorandum and Articles of Association of the company have a great deal of responsibility to ensure that the project takes off as soon as possible.” (italics is mine)

There is also paragraph 24 of his counter-affidavit where 1st defendant deposed:

“24. That when it became obvious that the plaintiff and 1st defendant cannot work together in the 2nd defendant, in view of his persistent witch-hunting and sustained unfounded reports of criminality to the Police and Suit No. FHC/E/13/85, the 1st defendant offered to refund to the plaintiff his financial contributions after tedious negotiations both pre and post incorporation outlays with interest but the plaintiff refused.”

More revealing is Exhibit “CAO1” annexed to 1st Defendant’s counter-affidavit written by 1st Defendant’s lawyer to plaintiff’s lawyer. It reads:

“Twin House (1st Floor),

4, Old Hospital Road,

P. O. Box 2198,

Onitsha, Nigeria.

8th September, 1986.

Mr. C. O. Akpamgbo SAN.,

39 Bedewright Street,

Uwani,

Enugu.

Dear Sir,

SUIT No. FHC/E

Further to my letter of the 16th July 1986 making suggestions for amicable settlement of this matter in terms of monetary compensation we hereby in further evidence of our desire to settle this matter like to state as follows:

(a) The plant and machinery of the company even if sold has to be shared out to directors in the proportion of their share holding which is not yet ascertained as far as your client is concerned.

(b) Your client knows that City Biscuits Ltd is a tenant of another company that owns the premises he wants valued where City Biscuits operates.

(c) No businessman who invested in a company ever hopes to recoup himself 100% of his outlay within two to three years unless it is a smuggling business.

Finally in the interest of peace would you persuade your client to accept a total payment of N200,000.00 in final settlement of this matter so everybody can face other problems.

Please let me hear soonest. I am travelling overseas on health grounds on Wednesday 10th September hoping to be back Deo Volente before 16/9/86.

Yours faithfully,

(Sgd.)

P. G. E. Umeadi SAN.

Counsel for Defendants”

It is crystal clear that the courts below in coming to their finding that the plaintiff was not a subscriber to Exhibit FOE 15, failed to advert their minds to the salient facts pointed out by me above and also wrongly placed on the plaintiff the burden of disproving 1st Defendant’s allegation as to who appended the signature on Exh. FOE 15 against plaintiff’s name. Had they properly directed themselves not only would they have found that plaintiff was a subscriber and therefore, a member of the 2nd defendant but that he was since its incorporation a director of the company. It was the failure to properly consider the evidence before them that made Chigbue, JCA to observe, as he did, that –

“Appellant having failed to produce at least a witness who attested to his signature he had not discharged the burden placed on him to the effect that he signed Exh. FOE 15.”

It is so patent on Exhibit FOE 15 that Mrs. Offia-Nwali was the sole witness to the signatures of both the 1st defendant and the plaintiff. And she had died at the time proceedings commenced.

Among the things held against the plaintiff by the courts below is his failure to tender a share certificate or the register and other books of the 2nd defendant to show that he was a member of the company. In the light of the observation of Uwaifo, J.C.A. that:

“The 1st respondent was fully in control of the running of the company. He kept the relevant documents under his armpit. It seems to me he took advantage of his position. He saw how the company prospered. He played on the intelligence of the appellant and edged him out of the company.”

how would the courts below expect plaintiff to produce those books and documents

There is no evidence that shares have been allotted since incorporation.

The conduct of the 1st defendant towards his Praying Band brethren, particularly the plaintiff leaves much to be desired. His conduct has been roundly condemned by the two courts below. I do not need to add to what has already been said by them. He seems to want to eat his cake and have it. In one breadth, he says plaintiff was not a subscriber to Exh. FOE 15. If this were so, he would be the only subscriber. And as section 1 (1) or the Companies Act required at least two subscribers to incorporate a private limited liability company, the existence of the 2nd defendant as a limited liability company would be illegal. Its certificate of incorporation Exhibit FOE 2 ought to be called in by the Corporate Affairs Commission and cancelled. But 1st defendant in another breadth wants to uphold the legality of the existence of the 2nd defendant. That is the irreconcilable situation his greed and insincerity has led him.

From all I have been saying above the conclusion I reach is that from the evidence adduced in this case the reasonable findings to make are –

(a) that the plaintiff was a subscriber to the Memorandum and Articles of Association of the 2nd defendant (Exh. FOE 15) and, therefore, a member of the company by virtue of section 26( 1) of the Act; and

(b) that the plaintiff has since the incorporation of the 2nd defendant been a director and remains one, although wrongly precluded by the 1st defendant from the running of the company.

QUESTION 4:

I shall now touch briefly on Question 4. The trial court awarded to the plaintiff a total sum of N 129,065.37. In doing so the learned trial Judge reasoned:

“…Be that as it may, I have no hesitation in applying order XLVII to ask the first defendant to refund each and every beat (sic) of money remitted to him by the plaintiff from July, 1979 to 1983 ……”

The plaintiff appealed to the Court of Appeal against this award on the ground that he did not claim it. That Court in rejecting the complaint, observed, per Chigbue, J.C.A.:

“The main claims which called for declaratory reliefs are set out in 1 – 5 and the alternative claim was couched as follows:-

“AND for such further or further orders as this Honourable Court may deem fit to make in the circumstances.”

This alternative claim was an omnibus or a general prayer. It implies that if the appellant could not prove his case on the substantive reliefs sought, he called the trial court to exercise its inherent or equitable jurisdiction by granting any other reliefs but such reliefs were not expressly stated by the appellant. It is trite law that a party is bound by his pleadings as court will not adjudicate on issues not pleaded. See North Brewery Ltd. v. Mohammed (1972) NNLR 133; Emegokwue v. Okadigbo (1973) 4 SC 113; George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71/77; George v. UBA (1972) 8 – 9 Sc. 264/275; Idahosa v. Oronsaye (1959) 4 FSC 166 and

Obi Ezenwani v. Nkeadi Onwordi & Ors. (1986) 4 NWLR (Pt.33) 27;(1986) NSCC 914/929. I agree that the reliefs granted were not spelt out but the omission to do so was as a result of the fact that the action in itself was commenced by Originating Summons which failed too to specify “such further or further orders” it wished the court to make but by simply inviting the court to make “further and/or other orders as the court may deem fit”, the appellant played into the hands of the trial court and therefore needs not complain.”

But happily enough the reliefs granted in the case were made within the jurisdiction of the court. I refer to Order XLVII rule 2 of the Federal High Court (Civil Procedure) Rules 1976 which provides as follows:-

“Subject to particular rules, the Court may in all cases and matters, make any order which it considers necessary for doing justice, whether such orders has been expressly asked for by the person entitled to benefit from the order or not.”

With due respect I find myself unable to share the appellant’s counsel expression that “the parties and only the parties set the agenda and it is not the business of the court to play the role of father Xmas by giving out to the parties what was never asked for.” To me courts are perfectly justified to make consequential orders as the justice of the case demands. In this case the court granted the reliefs within its jurisdiction and the appellant having failed in his main reliefs the trial court was right in making orders to meet the justice and equity of the case. I think the orders granted appeared incidental even though they were not specifically stated – See Ogbe v. Esi 9 WACA 76; Nimanteks Associates v. M. Construction (1987) 2 NWLR (Pt. 56) p. 267/278 per Nnaemeka-Agu JCA. In the case of Laibru Ltd. v. Building & Civil Engineering Contractors (1962) 1 All NLR 387 it was observed that:-

“Where a Notice of Appeal fails to pray for a particular relief which FSC decisions should be granted but prayers in general terms for any further or other order or orders as the court may deem fit to make in the circumstances.”

FSC, on appeal may under such prayer grant the appropriate relief, as if it has been expressly prayed for in the appeal. In such an application for equitable relief, the substance and not the form ought to be regarded.”

It is the contention of the plaintiff that as the award of pecuniary relief was not asked for by him and is not incidental to the specific reliefs he sought at the trial, it is arbitrary and unjustifiable having been raised and determined by the trial court suo motu without affording the parties an opportunity of being heard on it, contrary to the rules of natural justice and fair hearing.

The Defendants contend on the other hand, that Order XLVII rule 2 of the Federal High Court (Civil Procedure) Rules and the general prayer in the Originating Summons vest in the court discretionary and equitable powers to make the award of pecuniary reliefs in this case.

A court has no power to grant to a party any relief that he has not specifically claimed. While a court can award less than what is claimed by a party it cannot award more – See Ekpenyong & Ors. v. Nyong & Ors. (1975) 2 S.C. 71, 80- 81 where Ibekwe JSC (as he then was) delivering the judgment of this Court observed:

“Secondly, we think that, as the reliefs granted by the learned trial Judge were not those sought by the applicants, he went beyond his jurisdiction when he purported to grant such reliefs. It is trite law that the court is without the power to award to a claimant that which he did not claim. This principle of law has, time and again, been stated and re-stated by this Court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law, but good sense. A court of law may award less, and not more than what the parties have claimed. Afortiori, the court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claim.”

See also Abang v. Effium & Ors. (1976) 1 Sc. 17, 31; Obioma & Ors. v. Olomu & Ors. (1978) 3 S.C.1. In Chief Registrar High Court of Lagos State v. VAMOS Navigations Ltd. (1976) 1 SC. 33,40 – 41, a case not too dissimilar to the case on hand Madarikan, J.S.C. delivering the judgment of this Court said:

“It is clear from the application before the lower court that the relief sought by the applicants was for an order of prohibition. The learned President having, rightly in our view, come to the conclusion that he could not grant that relief, it was not open to him to proceed to order payment of demurrage which was not claimed by the applicants. (See Ekpenyong & Ors. v. Nyong & Ors. (1975) 2 SC.71 at page 80).”

As the plaintiff did not claim any pecuniary relief, it was wrong to award him one.

The courts below predicated the award on the exercise of the discretion given the trial court by Order XLVII rule 2 of the Federal High Court (Civil Procedure) Rules, 1976 which provides:

This rule only empowers a court to make a consequential and not substantive order. A consequential order is one that gives effect to the judgment it follows; it cannot detract from it – see: Obayagbona v. Obazee (1972) 5 Sc. 247. The pecuniary award made in the case on hand cannot by any stretch of imagination be described as consequential to a dismissal of plaintiff’s claims (1) – (4). Indeed it detracts from it. On this ground alone, the award ought to be set aside.

But that is not the end of the matter. None of the parties was heard on the propriety of making the award before the learned trial Judge suo motu made the award. This Court has often frowned on this practice – See: Adeosun v. Babalola (1972) 5 Sc. 292, 302 where this Court, per Sir Udo Udoma, JSC, observed:

“As a general rule this Court has always regarded with disfavour the practice of a court giving a decision on a point not argued before it. In Obazke Ogiamien & Anor. v. Obahon Ogiamien (1967) NMLR 245, this Court said at pages 248 and 249:-

“This Court has pointed out on several occasions that it is wrong for a judge to give a “decision on a point which opportunity was not afforded Counsel to argue at the hearing and particularly a point which throughout the hearing was not raised.”

This case clearly manifests the wisdom of this rule. Had the learned trial Judge heard the parties before deciding to make the pecuniary award in favour of the plaintiff and against the 1st defendant he would not have found as he did in the passage following:

“The underlisted are various remittances made by the plaintiff to the 1st defendant at the request of the 1st defendant…….”

I say this because plaintiff’s cheques with which he made various remittances were drawn in favour of the 2nd defendant after its incorporation – See: paragraphs 7, 12 and 14 of plaintiff’s affidavit and Exhibits FOE 10 and 12 annexed thereto. If the pre-incorporation expenses incurred by the plaintiff would not bind the 2nd defendant what of the heavy remittances made direct to it after its incorporation Were they not meant for capitalisation After-all, the equity of the company is put at N250,000.00 as evidenced by Exhibit FOE 15.

The conclusion I reach is that Question 4 must be answered in plaintiff’s favour.

In view of the conclusions I have reached on Questions 1,2 and 4, I do not consider it necessary to go into Question 3. The conclusion I finally reach is that this appeal succeeds and it is allowed by me. I set aside the judgments of the two courts below, together with the order for costs made by the Court of Appeal and in their stead I enter judgment for the plaintiff in the following terms:

I Declare that the Memorandum and Articles of Association with which the 2nd defendant, City Biscuits Manufacturing Company Limited was registered and filed on the 28th day of September 1978 with the Registrar of Companies at Lagos contains the only provisions regulating the operations of the 2nd defendant since incorporation till date.
I Declare that the plaintiff and the 1st defendant are the only joint members and owners of the 2nd defendant, that is City Biscuits Manufacturing Company Limited.
I Order the 1st and 2nd Defendants to render an account within 30 days of the management, operations and finances of the 2nd defendant since its incorporation in 1978 to date.
I Order the 1st defendant to call a meeting of the 2nd defendant/company to be held within 30 days of the date hereof for the purpose among other things of appointing secretary and auditor outside the present subscriber/directors of the 2nd defendant/company, that is, plaintiff and 1st defendant and to do all other things as the law may require to be done at an Annual General Meeting of the Company.

I award to the plaintiff N1,000.00 costs of the trial, N1,000.00 costs of the appeal in the court below and N1,000.00 costs of this appeal to be paid by the 1st defendant personally to the plaintiff.

BELGORE, J.S.C: The plaintiff on his claims 1- 4 of the originating summons has set out clearly the part he and 1st defendant/respondent played in forming 2nd defendant/respondent as a private company. They are the sole subscribers to the formation of 2nd defendant.

The plaintiff/Appellant provided security by mortgaging his landed property to finance the take off of the 2nd respondent. The Memorandum and Articles of Association of the 2nd defendant/respondent carried the names of plaintiff/Appellant and 1st defendant/respondent as sole subscribers on the strength of which the company was registered in accordance with Companies Act 1968; thus the two became members of the company.

Their solicitor. Mrs. Uche Offiah Nwali signed as a witness to the signatures of plaintiff and 1st defendant on the Memorandum and Articles of Association thus indicating after registration that the two were members of 2nd defendant, by the provisions of sections 1 and 2 of Companies Act 1968, the minimum number of members of a private limited company, minimum number of shares and manner of indicating such numbers 2nd defendant/respondent was fully registered as a company.

As the respondent seemed to contend that the witness, Mrs. Offiah Nwali, did not sign and that Exhibit FOE 15 contained a forged signature of Mrs. Offiah Nwali, who had died in 1983, 2nd respondent then could not legally exist because if it was not registered it could not carry on business as it does; a fortiori if number of members on Memorandum and Articles of Association is less than two.

The 1st respondent, curiously insists that the company exists and wants only to say that plaintiff is not a member. In that case the onus is on him to prove it; he failed to do so. Section 5 Companies Act 1968 was certainly complied with because I cannot see the rational behind trial Court’s efforts in comparing the signature in Memorandum and Articles of Association with that of the plaintiff. The Defendants, by merely asserting that plaintiff never signed is not enough to discharge the onus of proof. The function of the Court is not to help prove, the burden to prove is on the one who asserts, plaintiff insisted that he signed, and from him he has no further burden of proving.

It is for the above reasons and the reasons in the judgment of my learned brother, Ogundare, J.S.C., with which I am in full agreement that I regretably find the decision of the two lower courts were manifestly in error and I have to allow this appeal. I also set aside the decision of Court of Appeal which affirmed the Judgment of trial Federal High Court. I make the same orders as contained in the Judgment of Ogundare, J.S.C.

SC.275/1991

Michael Edhigere Vs The State (1996) LLJR-SC

Michael Edhigere Vs The State (1996)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J .S.C.

In the High Court of Bendel State, holden at Oleh (now in Delta State), the appellant and three others were arraigned for the offence of murder, contrary to section 319(1) of the Criminal Code. The other three accused persons were; Josiah Eghagha, Passman Ugbogbo and Lucky Otunu. They were all charged of having murdered one Okpako Eghagha, on 2nd March, 1984, at Ivu bush, Enwhe, in Oleh Judicial Division.

The facts of the case for the prosecution were given in the testimony of P.W.1, Onoita Okpako. He told the trial court that on 2/3/84 while he was sitting in a hut in Ivu bush together with his father (deceased) and two sisters, the 2nd-4th accused, in the company of one, Onomeroso, came to the hut. The appellant was the 2nd accused at the trial court. The accused told the deceased that the father of Onomeroso had died and that they wanted the deceased to follow them to Enwhe.

P.W.1 said that he observed that all the three accused persons were holding matchets. The witness continued with his testimony thus:

“The deceased then followed them and left me with my junior brothers in the camp. The following day he did not come back I carried my small brothers and went to Enwhe. When we got to Enwhe I asked my aunt the whereabout of the deceased and she told me that she did not see him. The name of my aunt is Omotoware. She raised an alarm. We then went to ask Onomeroso the daughter of the 1st accused the whereabout of the deceased. She told us certain things.

As a result of what Onomeroso told us, we went to ask the 1st accused the whereabout of the deceased. He admitted that he sent the 2nd – 4th accused persons and Onomeroso to invite the deceased from the bush and kill him. Omotoware Eghagha went to lodge a complaint at the Police Station, Igbide. I was at home when she went to Igbide. She later returned with two police men and arrested the accused persons and Onomeroso. It was Onomeroso who identified them to this police.”

P.W.2 in his evidence told the trial court that Onomeroso who was the daughter of the 1st accused led the police to a fish pond in Ivu bush where the corpse of the deceased was found, covered with leaves. It was conveyed from there to the police station. The body was examined by one Dr. Felix Omon Oribator who testified as P.W.4. The doctor told the trial court that he observed a visible cleft on the head of the deceased extending to the occiput and multiple lacerations. The incised wound went through both the skin and skull. In the doctor’s opinion, the death was caused due to severe head injury resulting from the incised wound.

The trial court considered the evidence adduced including, most importantly, the confessional statements made voluntarily by the accused persons and, in a considered judgment the court convicted the 2nd and 3rd accused persons of murder and sentenced each of them to death. The 1st and 4th accused died in prison custody while awaiting trial.

Monday Edhigere, the appellant, appealed to the Court of Appeal. The court considered all the submissions made by counsel and, in a unanimous decision, dismissed the appeal.

On further appeal before this court the single issue canvassed by the learned counsel for the appellant is as follows:

“Whether the conviction and sentence of the appellant on Exhibit C was proper on the facts of this case and the nature of evidence produced by the state”

The learned counsel for the appellant, Mr. Olisa Agbakoba, made heavy weather of the learned trial Judge’s reliance on the confessional statement, Exhibit C, made by the appellant. It is relevant therefore to reproduce that statement in full before I consider the grouse of counsel against the Court of Appeal’s decision upholding the learned trial Judge’s finding in respect of the confessional statement.

The confessional statement reads:

“On the 2/3/84 at night time, at Enhwe, myself (1) Man-Pass-Man Ugbogbo, (2) Lucky Otunu (3) Ighovuamofa Enuekpe were sent to go and killed (sic) Okpako Eghagha by the following persons (1) Asanimo, Chairman of the deceased’s family, (2) Okpoumofa Eghagha Chairlady of the family, Enuekpe Eghagha (5) Omorte Owore, (6) Mowe Okpoumofa, (7) Asvoma Otunu, (8) Mathar Ebiyese, (9) Boy Edhikamaka, (10) Efamana Egeyese and (11) Ariakpomura Ighomraha. The above mentioned persons ordered us to go and bring Okpako Eghagha before them, and burn him with fire. They instructed us that if Okpako Eghagha refused to come with us we should killed (sic) him on the way.

They said he is a wizard, that he has destroyed the family. It was one girl by name Ighovuamofa Enuekpe who told us that (sgd) Monday Edhighere, 6/3/84. Okpako Eghagha is a wizard. As we were bring (sic) the Okpako Eghagha he refused to come with us. Myself, Man-passman Ughogho, Lucky Otunu and Ighovuamofa Enuekpe started to fight with the man and we used our matchets to cut Okpako Eghagha on the head and the neck, Okpako Eghagha fell down and died, at the spot.

We left the deceased on the spot at Enwhe bush and went to report the situation to those who sent us. When we arrived to the place we met Okpomofa Eghagha, Enuekpe Eghagha, Boy Edhikpamaka and Efamana Egeyese while the rest people had gone away. We reported to them that we have killed Okpako Eghagha at the bush. We left to our houses. On the 5/3/84, I was arrested from my store at Ughelli. I will help the Police to get the remaining persons. That is all about my statement. The matchets were given to those who sent us.”

The learned trial Judge said in his judgment that he was quite satisfied on the evidence before him that Exhibit C made by the appellant under caution was free and voluntary and that the appellant was fully conscious of the facts set out in that confessional statement. Further in his judgment, the learned trial Judge opined that there was no doubt from Exhibit C that the appellant intended to kill the deceased when he cut the deceased with a matchet on the head. His motive, according to the finding of the judge, was borne out of malice that they were sent to kill the deceased because he was a wizard who had destroyed their family.

Mr. Olisa Agbakoba submitted, in the appellant’s brief which he wrote, that even though this court had held in Egboghonome v. The State (1993) 7 NWLR (Pt.306) at 383 that retraction of a confessional statement does not render it valueless, it is not the law that the appellant’s evidence of retraction should be discarded and become valueless once the confession was admitted. But with respect to the appellant’s counsel’s submission the learned trial Judge did not discard the evidence of retraction. He considered the evidence of alibi that the appellant was at Ughelli on 2/3/84 when the deceased was reported missing and quite rightly, rejected it. The Court of Appeal referred to the evidence of P.W.1, the eye witness who was together with the deceased in Ivu Bush when the appellant, while in company of the 1st, 3rd and 4th accused came to the hut where the witness was staying with his deceased father. They invited the deceased and he followed them. He was not seen until the following day when his corpse was found in a fish pond.

There is no conflict, in my view, between the evidence in Exhibit D and Exhibit C. The appellant had admitted using the matchet in cutting the deceased on the head. A matchet was discovered in the house of the 1st accused. The fact that no traces of blood had been found when the matchet was examined by the Government Chemists does not establish any discrepancy between Exhibits C and D. It is safe to infer that the accused persons had enough time to wash the matchet of all traces of blood. It should be observed that the deceased had been killed and dumped in a fish pond.

The issue about failure to have the confessional statement attested by a Senior Police Officer is another weak argument. This court had said it several times in reported cases that the administrative practice of confirmation of confessional statements before a senior police officer is not a legal requirement which if not complied with would render the confession unreliable. No general rule has been laid out that the practice must be observed. R. v. Nwigboke (1959) SCNLR 248; (1959)4 F.S.C. 101. See also Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383.

The next point argued by learned counsel for the appellant is whether Exhibit C had been corroborated by the evidence of P.W.1 and P.W.4. Without hesitation I will answer the question in the affirmative. The Court of Appeal is quite right to affirm that the confession of the appellant had received adequate corroboration for the trial court to base his conviction on it. P.W.1 testified before the court that the appellant came together with 3 other accused persons to the hut in Ivu bush and requested their father, the deceased, to follow them. In Exhibit C the appellant confessed to have gone, on the instruction of some people, to bring the deceased before them so that he could be burnt with fire since he was a wizard and that if he refused to follow them they should kill him. They came with the deceased and killed him on the way. P.W.1 told the trial court that the appellant was holding a matchet when he came to the hut in the bush.

The doctor who examined the corpse of the deceased testified as P.W.4. The injuries reported by the doctor which, in his opinion, were the cause of the death of the deceased were said to have been caused by a sharp object such as a matchet.

It is trite law that the test applicable to determine the nature and extent of corroboration is to establish that the evidence is an independent testimony which affects the accused by connecting or tending to connect him with the crime. The respective evidence of P.W.1 and P.W.4 are indeed independent testimonies which positively link the appellant to the crime charged. See Afolabi v. C.O.P. (1961) 2 SCNLR 307; (1961) All NLR 654. The evidence before the court was overwhelming that the appellant and the other accused persons killed the deceased by cutting him

with matchets on the head. The failure of the prosecution to call Onomeroso to testify has not affected the well considered judgment of the trial court which the Court of Appeal affirmed.

This appeal has no merit at all. It is accordingly dismissed. The judgment of the trial High Court which the court below affirmed is hereby confirmed.

KUTIGI, J.S.C.: The appellant was originally charged along with 3 others with the murder of one Opako Eghagha. During the trial in the High Court two of them died. The appellant and one other were however, at the end of the trial found guilty, convicted and sentenced to death.

Dissatisfied with the judgment of the High Court, the appellant appealed to the Court of Appeal at Benin City. In a reserved judgment, the Court of Appeal dismissed the appeal as lacking in substance.

It is against the judgment of the Court of Appeal that the appellant has now appealed to this court.

Mr. Olisa Agbakoba learned counsel for the appellant has in his brief of argument submitted only one issue for determination in the appeal as follows:

“Whether the conviction and sentence of the appellant on Exhibit C was proper on the facts of this case and the nature of evidence produced by the State.”

The appellant had stated in his statement (Exhibit C) to the Police (P.W.5) amongst others that –

“As we were bring (sic) the Okpako Eghagha he refused to come with us. Myself, Man-Pass-Man Ugbogbo, Lucky Olunu and Ighovuamofa Enuekpe started to fight with the man and we used our matchets to cut Okpako Eghagha on the head and the neck. Okpako Eghagha fell down and died at the spot. We left the deceased on the spot at Enwhe bush and went to report the situation to those who sent us.”

The learned trial Judge in his judgment had also observed thus –

“I am quite satisfied on the evidence before me that Exhibit “C” made by him (appellant) under caution to the 5th P.W. was free and voluntary and that at the time he made it, he was fully conscious of the facts set out therein.”

The evidence led at the trial also show that-

The body of the deceased was recovered by the Police (P.W.5) and others, in a fishing pond in the bush covered with leaves.
According to P.W.1 the deceased was last seen alive in the company of the appellant and his gang who went to the house of the deceased and invited him to follow them (appellant and his gang.)
The medical doctor (P.W.4) said the deceased died as a result of severe head injuries from incised wounds which might have been caused by a sharp object such as a knife or a matchet.

I have no hesitation under the circumstances therefore in coming to the conclusion that Exhibit ‘C’ was sufficiently corroborated by the testimonies of the prosecution witnesses as indicated above. It is settled that an accused person may be convicted on his own free and voluntary confession once it is direct and positive (see for example the cases of R. v. Obiasa (1962) 2 SCNLR 402; (1962) All NLR 651; Yusufu v. The State (1976) 6 S.C. 167; Dawa & Anor v. The State (1980) 8 -11 S.C. 236; Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383.). It is for the above reasons and others contained in the lead judgment of my learned brother Mohammed, J.S.C., which I read before now and with which I agree, that I too dismiss the appeal.

OGUNDARE, J.S.C.: I agree with the judgment of my learned brother Mohammed, J.S.C. just read. I have nothing more to add. I too dismiss the appeal and affirm the judgment of the court below.

OGWUEGBU,J.S.C.: I have had the privilege of reading in draft the judgment of my learned brother Mohammed, J.S.C. in this appeal. I am in agreement with the reasoning and conclusion that the appeal ought to be dismissed. I would only emphasize that Exhibit “C” is a free and voluntary confession. It is direct, positive and was properly proved.

The learned trial Judge examined and tested the confession. He found that it was corroborated by the evidence of P.W.1 and P.W.4 (Dr. Felix O. Oributor). P.W.1 testified that the appellant was among the people who came to call the deceased from his hut in Ivu bush on 2:3:84.

The confession was also consistent with the nature of the wounds described by P.W.4. See The Queen v. Obiasa (1962) 2 SCNLR 402; (1962) 1 All NLR (Pt.4) 651 and Kapa v. The State (1971) All NLR 151 (Reprint).

I too will dismiss the appeal. The judgment of the Court of Appeal affirming the judgment of the High Court of the former Bendel State holden at Oleh is hereby affirmed.

Other Citation: (1996) LCN/2665(SC)

Mrs. O.O. Layade V. Panalpina World Transport Nig. Ltd. (1996) LLJR-SC

Mrs. O.O. Layade V. Panalpina World Transport Nig. Ltd. (1996)

BELGORE, J.S.C.

“Mrs O.O. Layade,

10, Glover Road,

Ikoyi,

Lagos.

Dear Mrs. Layade,

RE: YOUR EMPLOYMENT AS CHIEF INTERNAL AUDITOR

We take pleasure in confirming to you that your application for the job of Chief Internal Auditor for Panalpina World Transport Nigeria Limited has been accepted.

Below stated please find the remunerations which will be paid to you:

(1) Salary: N13,800.00 per annum.

(2) Housing allowance: N6,000.00 per annum, payable in advance on the 1st of January of ever year as a lump sum.

(3) Overtime allowance: N40.00 per month

(4) Car allowance: N156.00 per month.

Enclosed please find our contract agreement, which kindly go through and sign same on the appropriate portion, accepting the conditions of service.

We understand that one month’s notice will have to be given by you to your former employer and therefore, we take it that you may start work with Panalpina on the 1st of June, 1978, or in accordance with negotiations that may take place in the meantime.

We would like to welcome you in our Company and hope that you will be a great asset to us.

Kindly sign a copy of this letter and return same as soon as possible. Your signature on the copy serves as an agreement to take up this position and accepting the terms.

Yours sincerely,

PANALPINA WORLD TRANSPORT NIGERIA LIMITED

K. SOBOTTA,

MANAGING DIRECTOR.”

On 1st June, 1978 the appellant and defendant/respondent signed the formal contract of employment. It is pertinent to quote paragraphs 1 and 5 of this contract reading as follows:

Clause 1

“The Company will employ the employee in any of its offices in Nigeria at duties as detailed to him by the Company and the employee will serve the Company faithfully from the date of his employment until the aforesaid contract is determined by either party as embodied in this agreement.”

Clause 5

“Notwithstanding anything to the contrary herein-before contained, the Company may at any time determine the employment of the employee hereunder, on giving to the employee not less than three months’ notice in writing of its intention to terminate it or in lieu of such notice on payment of three months salary to the employee. The employee also reserves the right to resign his appointment on giving to the Company not less than three months notice in writing of his intention to resign, or in lieu of such notice on payment of three months salary to the Company. If however, the employee resigns, he will forfeit his service benefits.”

(v) N10,000.00 aggravated and/or exemplary damages for assault for letting loose a dog with known vicious propensity on the plaintiff.

(vi) Perpetual injunction restraining the defendant, its servants and/or agents from preventing and/or in any way obstructing the plaintiff from carrying on her normal duties as a member of the Senior Management Staff of the defendant company OR IN THE ALTERNATIVE N450,000.00 special, aggravated, exemplary and general damages for wrongful termination of the plaintiff’s employment.

PARTICULARS OF DAMAGES:

(1) Loss of earnings till retiring age of 55 as per Contract of service for 153 months at N1,474 per month – N225,522.00

(2) Gratuity:

(a) 80% of monthly salary for each of first 10 years – N11,792.00

(b) 90% of monthly salary for each of last 5 years 6,633.00 – N18,425.00

(3) Contributory Pension:

(a) 2 years at 10% – 3,537.00

(b) 13 years at 5% 11,497.00 – N15,034.00

(4) Housing allowance at N500.00 per month – N76,500.00

(5) Personal allowance at N100.00 per month – N15,500.00

(6) Car allowance at N156.00 per month – N23,868.00

(7) Leave allowance at 6% of annual salary – N15,919.00

(8) Medical expense – N6,000.00

(9) General, Aggravated and exemplary damages – N52,832.00”

During the trial of the case the appellant claimed that her employment was wrongfully terminated and that the letter of termination by the Managing Director was ultra vires, null and void, as was in her statement of claim. She also contended that prior to her employment at the Company’s General meeting, a body known as Management Council was established for the defendant company vested with specific duties including management and administration of the company and recruitment, termination, dismissal of and regulation of conditions of service of both senior and junior personnel in so far as it did not relate to themselves. The said resolution at the General Meeting, not affecting the Articles and memorandum of Association of the respondent was admitted as Exhibit L7. The appellant claimed her employment was terminated without recourse to Exhibit L7. Exhibit L7 the resolution of 28th January, 1978, was supposed to come into effect on 1st February, 1978, some months before the employment of the appellant.

Clause 1 of Exhibit L7 states its purport as:

“The Management Council meeting cannot be construed to substitute or replace a Board meeting of the Company Directors which could be convened in the manner prescribed by the Articles of Association.”

After reviewing the evidence before him,Adeniji J, who tried the case upon all the evidence which he thoroughly adverted to came to a conclusion that the appellant’s contract of employment was wrongfully terminated as the provisions of Exhibit L7 was not complied with and as the contract was not governed by Exhibit B alone. He therefore awarded her arrears of salary from 2nd October, 1980 to 3rd of August, 1990 (date of judgment) at the rate of N1,474.00 per month and general damages totalling N34,973.00 plus other damages all making a total of N199,716.00 plus costs. Against the judgment of the High Court the respondent company appealed to the Court of Appeal.

The Court of Appeal in a split decision, [Ubaezonu, J.C.A. dissenting], allowed the appeal and held that the person who signed Exhibit B, letter of employment also signed the letter of termination and that the management Council evidenced by Exhibit L7 was in existence before both documents the appellant cannot say her termination was void much as she could not say that Exhibit B was void. Against the decision of the Court of Appeal this appeal was lodged.

The learned counsel for the appellant raised and formulated the following issues for determination:

2.01 “Whether having regard to the purport and interpretation of Exhibits “B” and “L7′ it can be rightly said that the purported unilateral termination of the employment of the appellant by the respondent’s Managing Director was intra vires the said Managing Director and legally proper in the circumstances.

2.03 Whether the Court of Appeal was right in refusing the appellant’s Cross-Appeal seeking an upward review of the damages awarded by the trial court

As against these four issues, the respondent contended there were only two issues for determination to wit:

2.2 “The first issue for determination is:

(a) can the Managing Director exercise the powers of the “Company” in Clause 5 of the appellant’s contract of employment in terminating the contract

(b) did the establishment of the Management Council by the Shareholders limit and/or deprive the Managing Director of his authority to terminate the contract of employment of the appellant

(c) was it the Managing Director or the Management Council that could terminate the appointment of the appellant and sign the letter of termination and

2.3 The second issue for determination is:

The Court of Appeal in the lead judgment pointed out four documents most essential to the just determination of the case as follows:

(i) “The resolution establishing the Management Council which took effect on 1st February, 1978; Exhibit L7, (pp. 91-93 of the record);

(ii) The letter of appointment of the respondent signed by the Managing Director of the appellant ‘F’ at p. III of record;

(iii) The contract of Employment dated 1st June, 1978 Exhibit ‘B’ (pp. 112-117) and Exhibit ‘M’ (pp. 156-161) of record; and

(iv) The letter or Dismissal of the respondent signed by the Managing Director of the appellant, Exhibit ‘N’ pp. 95 and 162-163 of the record.”

It could be clearly seen that Exhibit B provides in its clause 1 that the “Company will employ” and in clause 5 thereof that the “Company will determine the employment”. What then is the effect of the letter of termination. Exhibit N, in view of Exhibit B The contract governing the relationship of the appellant and respondent is Exhibit B which clearly states the conditions of the contract. At the time the appellant was employed there was in existence Exhibit L7 which all the documents in her possession – letter of employment and contract of employment never adverted to. Thus only Exhibit B is the contract between the parties. The powers of the Managing Director vis-a-vis the employment and dismissal of the company’s staff could not be fettered by Exhibit L7 as there is no ambiguity in Exhibit L7 as to its purport; the Management Council envisaged and set up in Exhibit L7 is an advisory body and it clearly states the Articles of Association of the Company could not be affected by it. This is the only obvious legal situation.

It is clear that both the majority and dissenting judgment, Kalgo. J.C.A. in the lead judgment clearly stated the situation between the parties as follows:

“….it would appear to me that under normal circumstances, the contents of Exhibit N are on the face of it in complete compliance with clause 5 of the respondent’s contract agreement, Exhibit B. I say so because the holder of the office of Managing Director of the appellant who signed the letter of appointment (employment) and the agreement was the same office holder who signed the termination letter, Exhibit N.”

and concluded that the Management Council envisaged in Exhibit L7 was:

“(i) set up as an advisory body to assist Managing Director in the management of the company and there is nothing to the contrary on the face of the document;

(iii) not given executory powers to carry out or implement its advice and only the Managing Director can look at the advice and implement if feasible.

(iv) clearly given no more power than it had and clause 7 thereof shows that the Management Council was not to substitute or replace the meeting of the company’s Board of Directors;

(v) not meant that the appellant could not be dismissed or her appointment terminated only under the aegis of Exhibit L7 and not Exhibit B alone;

(vi) not mentioned in Exhibit B or any contract signed by the appellant, even the Council was in existence and both the letter of employment and contract of employment never alluded to Exhibit L7.”

He finally found that Exhibit L7 had no relevance to the appellants contract with the respondent which were clearly spelt out in Exhibit B which itself is not ambiguous.

Certainly this meets the terms of contract in Exhibit B. It is only when time period is not prescribed for notice or payment in lieu of notice in the contract of employment that there are problems (See: Daniels v. Shell-BP. (1962) 1 All NLR 19; (1962) 1 SCNLR 19; Almine (Nig.) Ltd. v. Eshiett (1977) 1 SC 89, 96-97; Kusamotu v. Wemahod Estate Ltd (1976) 11 SC. 270, 293. The evidence before the trial Court is clear because both Exhibits B and N came after the introduction of the Management Council and none of the two documents advert to the Council. The contract, Exhibit B is clear and certain as to its terms that extrinsic evidence is not needed to interprete them. I cannot see why the learned trial Judge should embark on looking for more evidence outside the contract in the light of the overwhelming evidence of what the appellant signed. The Court of Appeal was therefore right in setting aside the entire decision of the trial Court (Etum Ekpeyong and ors v. Inyang Effiong Nyong & ors (1975) 2 SC 71,80; Oridola v. M & K Ltd. (1972) SC 51.

Apart from those employments governed by statutory provision e.g. employment in civil service of statutory bodies where termination must follow the provisions of the relevant statutes. (Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 193/194, the master in other cases can terminate for good or bad reasons subject to remedies of compensation where applicable for wrongful dismissal. In the instant case the terms of the contract of employment for termination of the contract have been clearly adhered to.

Having held that the contract of employment in question was properly terminated, the question of quantum of damages is otiose and, needless to say, no more relevant in this judgment.

In the end I find no merit in this appeal and I dismiss it with N1,000.00 costs to respondent.

OGUNDARE, J.S.C.: I have had the benefit of a preview of the judgment of my learned brother Belgore, J.S.C. just read. I agree with him that this appeal is completely devoid of any merit. The Management Council set up by a resolution of the Shareholders of the respondent Company (see Exhibit L7) was only an advisory body to the Managing Director. It had no executive authority to employ, dismiss or discipline staff. The authority of the Managing Director to employ, dismiss or discipline staff was in no way curtailed by that resolution.

The appellant’s employment was determined by the Managing Director of the respondent Company in accordance with Clause 5 of the appellant’s letter of employment (Exhibit B). That the Managing Director acted for and on behalf of the company is not in dispute. In the face of the evidence adduced at the trial and in the light of the findings of the court below I cannot see how the appellant could have succeeded in her claims. Those claims were in my respectful view, rightly dismissed by the court below.

Consequently I too dismiss this appeal and abide by the order for costs made by my learned brother Belgore. J.S.C.

SC.141/1993

Kano State Oil And Allied Products Ltd V Kofa Trading Co. Ltd (1996) LLJR-SC

Kano State Oil And Allied Products Ltd V Kofa Trading Co. Ltd (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, JSC.

By a motion on notice filed in the High Court of Kano State, the Applicant (now Respondent before us) prayed the court “to appoint a sole Arbitrator to decide the dispute between Kasoap and Kofa Trading Company (Nig.) Limited in respect of a contract dated 15th October 1984……”

The motion which was supported by an affidavit sworn to by Alhaji Aminu Ibrahim Kofa, the Managing Director/Chairman of Kofa Trading Company Limited and to which was annexed a number of documentary exhibits, was brought under Section 6(1)(a) of the Arbitration Law, Cap. 7 Laws of Kano State and the Arbitration Act, Cap. 13 Laws of the Federation of Nigeria and Lagos, 1958. The Respondent to the motion (who is now Appellant before us) raised a preliminary objection to the motion on the ground that an action could not be commenced by way of motion but by writ of summons. The objection was overruled by the learned trial Judge, Saka Yusuf J. The motion which was vigorously opposed by the Respondent, was subsequently argued. The learned trial Judge in a reserved ruling found for the applicant, holding –

“In the light of foregoing therefore I am satisfied from the facts before the court that the applicant had served notice o the respondent for the appointment of an arbitrator. I am also satisfied that it is more than seven clear days that this notice was served without any positive response from the respondent. In view of the inability of the applicant and the respondent to agree I am duty bound to appoint an arbitrator for them.

By the powers therefore conferred on me by Section 6(1)(a) and (2) of the Arbitration Law of Laws of Northern Nigeria 1963 adopted and applied in Kano State read in pari pasu with the Arbitration Act Cap. 13 of Laws of Federal Republic of Nigeria 1958, (sic) I Saka Yusuf, a High Court Judge of Kano State appoint Messrs Adegboyega Adegbulugbe & Co., Chartered Accountants 57, Airport Road, P. O. Box 5717 Bompai Kano. (Tel: 622869) as an arbitrator to hear and determine the dispute now pending between Kofa Trading Company Nig. Ltd., and Kano State Oil and Allied Products Ltd.

That the Higher Registrar of this court should convey this order of appointment to Messrs Adegboyega Adegbulugbe & Co., with a view to obtain his consent to act as the arbitrator.

That if Messrs Adegboyega Adegbulugbe consents, this should be communicated to both Kofa Trading Company Nig. Ltd., and Kano State Oil and Allied Products Ltd., the two parties to arrange meeting with the arbitrator with a view of drawing up terms of reference agreeable, to the two parties.

That the arbitration expenses which are likely to be incurred should be borne by the two parties in the rate of 50 & 50.”

Being dissatisfied with the decision the respondent appealed unsuccessfully to the Court of Appeal. The respondent has now further appealed to this Court upon 7 grounds of appeal. Written Briefs were filed and exchanged and the appeal was set down for hearing. On the date for hearing both parties and their counsel were absent in court and the appeal was, pursuant to Order 6 rule 8(6) of the Rules of this Court, taken as having been argued on the written Briefs.

In the Respondent/Appellant’s Brief the following 4 questions are set down as calling for determination in this appeal, that is:

“(1) Whether the Court of Appeal was right in holding that the Respondent could commence proceedings for the appointment of an arbitrator by the Court of trial by Motion on Notice in the circumstance of this case.

(2) Whether the Respondent is a party to the submission and can rely on the provisions of the Arbitration Clause to invoke the Court’s power under Section 6 of the Arbitration Law Cap. 7 Laws of Northern Nigeria 1963 applicable to Kano State.

(3) If the answer to No. 2 above is positive, whether the Court of Appeal was right in holding that the Respondent had satisfied the conditions precedent to the exercise of the powers conferred upon the court by Section 6 of the Arbitration Law.

(4) Whether the Court of Appeal rightly exercised the powers conferred upon it under Section 16 of the Court of Appeal Act, having regards to the circumstances of the case, in appointing a Sole Arbitrator.”

The applicant/Respondent adopted the above questions.

QUESTION 1:

The contention of the Appellant here is that the Respondent should not have come by way of motion to institute the proceedings but by way of a writ of summons. This contention did not find favour with the two courts below. Ruling on the preliminary objection the learned trial Judge observed:

“The issues involved in the preliminary objection before the Court are simple. Can the applicant seek the relief which is being sought by way of a motion or a writ of summons. Order 2 rule 1 of the High Court (Civil Procedure) Rules 1976 provides “Every suit shall be commence by an application to the registrar for the issue of a writ of summons.’

The pertinent question then is what is a suit?

The High Court Law Cap. 49 of the Laws of Kano 1963 defines ‘suit’ as includes action. Under the same High Court Law “action” is defined as meaning ‘a civil proceeding commenced by a writ of summons or in such other manner as may be prescribed by rules of Court but does not include a criminal proceeding.’ ‘Proceeding’ is not defined under CAP 49 of the High Court Law nor by the Civil Procedure Rules 1976 but in the Oxford Companion to Law by D. M. Walker, ‘Procedure’ in its narrower and more exact sense, is defined as ‘comprising only a part of Adjective Law; and includes the principles and rules governing the steps to be taken in initiating and carrying through a legal claim or other proceedings from framing the writ, petition or other means of initiating the claim to final judgment.

In essence a suit may be said to include an action whereby a legal claim is initiated by a writ to its final judgment.

It is again necessary to ask whether the application before the Court is one to initiate a legal claim to its final judgment or whether it is just an Interim Order?

I have no doubt in my mind that what the application before the Court is seeking the Court to do is an Interim Order since the enforcement of any award made by the arbitration is still subject to the Court action. By Order 8 rule 1 of the High Court Civil Procedure Rules, 1976, it is provided ‘Interlocutory applications may be made by motions at any stage of a cause or matter.’

It is not therefore tenable for the counsel to respondent to argue that the Order being sought could not be commenced by a motion. It is an interlocutory matter and as such all interlocutory matters or cause are usually made by motion at any stage of the proceedings.

The same view and procedure are adopted and followed in a Lagos High Court judgment which went to the Supreme Court on appeal in the case of Royal Exchange Assurance v. Bentworth Nigeria Ltd. (1976) U.I.L.R. p. 293, where the Supreme Court re-affirmed the judgment of Lagos High Court delivered by (Sowemimo J.) as he then was that where a party refuses within a given time after due notice to have an arbitrator appointed, the Court has full power and jurisdiction to appoint an arbitrator on an application properly made by the party who has served such notice. When his Lordship Udo Udoma JSC was reviewing the judgment of the High Court in that of the Supreme Court he said on age 295 of the report:

‘The time stipulated in the notice having expired, the respondent by motion dated 27th August, 1966 in the High Court of Lagos State Suit No. M/179/66 applied to the Court to exercise its powers under Section 6 of the Arbitration Act (Cap. 13) by making an Order appointing an arbitrator to inquire into the matter….’

Thus when the High Court was being asked to make an Order appointing an arbitrator, the application before that Court was by a motion and not by writ of summons as contended by the counsel to the respondent.”

Achike, J.C.A., in his lead judgment in the Court of Appeal opined thus: “Therefore, the contention can hardly be sustained that Order 2 Rule 1 provides exclusively that all actions and proceedings must, of necessity, be commenced by a writ of summons since there is express provision for commencement of action additionally ‘in other manner as may be prescribed by Rule of Court or by other original proceedings’. I will cast my lot with the proponents who ascribe a liberal interpretation to Order 2 Rule 1 within the context of the meaning of the terms ‘action’ and ‘cause’ as contained in Section 2 of the High Court Law of Northern Nigeria, 1963 applicable to Kano State.”

After a review of the submissions of learned counsel for the appellant in the appeal, the learned Justice of the Court of Appeal went on to conclude:

“From the foregoing I am satisfied that the application upon motion on notice by the respondent wherein it prayed the court under Section 6 of the Arbitration Law to appoint an arbitrator in the circumstances of this case, cannot be impugned. Section 6(2) stipulates that such request by the applicant-supplicant should be done by application and no where was it said that it should be made by a writ of summons nor that the pendency of proceedings should be a condition precedent for making such application.”

The same arguments as proferred in the courts below have again been put forward in the written briefs filed in this appeal. In my respectful view, the conclusion of Achike JCA states the correct law. Section 6(2) of the Arbitration Law of Kano State sets out the mode of approaching the court for the appointment of an arbitrator. It states:

“6(2) If the appointment is not made within seven days after the service of the notice, the court or a judge may, on application by the party who gave the notice, appoint an arbitrator, umpire or third arbitrator, who shall have the like powers to act in the reference and make an award as if be had been appointed by consent of all parties.”(italics mine).

Although Order 2 rule 1 of the High Court (Civil Procedure) Rules, 1976 of Kano State provided that

“Every suit shall be commenced by an application to the registrar for the issue of a writ of summons.”

it is not the only method of commencing actions in the High Court. The High Court Law and Rules of each State recognise other methods of commencing proceedings. For Instance, Section 2 of the High Court Law Cap. 49 Laws of Northern Nigeria 1963 (applicable in Kano State) defines the word “action” as meaning –

“a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court……”

And “suit” is defined as including action. See: Aguda on Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria, paragraph 3.09 on page 18 as to the various methods of commencing civil proceedings in the various High Courts. See also: Ashiru Noibi v. R. J. Fikolati & Anor. (1987) 1 NWLR (Pt.52) 619 at 630; (1987) 3SC.105, 115-116 per Uwais, JSC (as he then was) where the learned Justice said:

“It is true that by the provisions of Order 2 rule I of the High Court (Civil Procedure) Rules, Cap. 45 of the Laws of Ondo State of Nigeria, 1978 –

‘Every action shall be commenced by writ of summons, which shall show the cause of action and be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action.’

The word ‘action’ has been defined in Order 1 rule 2 of the High Court (Civil Procedure) Rules to mean –

‘a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of Court, but does not include a criminal proceeding.’

In view of this definition, it appears to me that Order 2 rule 1 is not free from ambiguity. For if an action can be commenced by a writ of summons or any other manner as may be prescribed by rules of court, it cannot rightly be argued that the provision of Order 2 rule 1 that all actions must commence with writ of summons, is the exclusive and only way that a suit can commence in the High Court. Indeed there are, in fact, other ways in which a case can commence in the High Court. For instance an originating summons is required under the provisions of a number of statutes (such as section 10 of the Public Lands Acquisition Act, Cap. 67 of the Laws of the Federation of Nigeria, 1958, for court to determine the persons entitled to compensation under the Act) to commence an action. In proceedings in respect of the infringement of fundamental rights (see Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 1979), the prerogative orders of habeas corpus, mandamus, certiorari and prohibition, action is commenced by application to the High Court. And in election and divorce cases, action begins with petition (See Section 119(4) of the Electoral Act. 1982 and Section 112(4) of the Matrimonial Causes Act. 1970).”

This Court, has, in Lahan v. Attorney-General of W.R. (1963) 2 SCNLR 47; (1963) All NLR 224 (Reprint), held that where statutory provision is made for making a claim, that ought to be pursued in making it. And in Akunnia v. Attorney-General, Anambra State (1977) 5 SC 161, this Court, following Fajimi v. The Speaker, Western House of Assembly (1962) 1 SCNLR 300; (1962) ANLR (Pt. 1), 206, (Reprint), held that where it is sought to enforce a right conferred by a statute but in respect of which no rules of practice and procedure exist, the proper procedure is an originating Notice of Motion.

Section 6(2) of the Arbitration Law having prescribed the method – by an application – for approaching the court for the appointment of an arbitrator where the parties could not agree and that method having been resorted to by the Applicant/Respondent in this case, I must hold that there is no merit in the complaint against the competence of the proceedings in the trial High Court. I, therefore, answer Question (1) in the affirmative.

QUESTION (2):

This question, in my respectful view, is the main issue in this appeal. In the affidavit in support of the application for the appointment of an arbitrator, Alhaji Aminu Ibrahim Kofa deposed, inter alia, as follows:

“1. That I am the Managing Director/Chairman of Kofa Trading Company Limited which is the applicant in this case and by virtue of my position, I am familiar with the facts of this case.

2. That by finance contract dated 15th day of October 1984, duly executed between Ma’ana Investment Limited Kano, and Kano State Oil and Allied Products Limited Kano, whereby some rights and commitments are incumbent on both parties to carry out the provisions of the contract. Please see Annexure (A).

3. That the Finance contract makes provision for the appointment of an Arbitrator in case of any dispute between both parties – see clause 19 Annexure (A).

4. That during the course of the execution of the contract Ma’ana Investment Limited decided with the consent and approval of Kano State Oil and Allied Products Limited to assign its rights and obligations under the finance contract Annexure (A) to Kofa Trading Company Limited. See Annexure (B).

5. That Kano State Oil and Allied Products Limited clearly indicated in writing that it shall be bound by such assignment when duly executed. Please see Annexure (C).

6. That the Deed of Assignment was duly signed and executed by both Ma’ana Investment Company Limited and Kofa Trading Company Limited and forwarded to Kano State Oil and Allied Products Limited, as earlier agreed – see Annexure (C).

7. That since the execution of the Deed of Assignment Kano State Oil and Allied Products Limited ceased to deal with Ma’ana Investment Limited and started dealing with Kofa Trading Company Limited in line with the finance contract dated 15th October, 1984 (Annexure A). Please see Annexures B, E, F and G.

8. That in accordance with the provisions contained in the Deed of Assignment and as approved by Kano State Oil and Allied Products Limited all rights, privileges, duties and obligations under Annexure (A) are vested on Kofa Trading Company Limited.”

Annexed to the affidavit are some documents, principally the original agreement between the Appellant and Ma’ana Investment Limited (Exhibit A) and the deed of assignment whereby Ma’ana Investment Limited assigned its rights and obligations under Exhibit A (Exhibit B). The question to be determined is: to whom did Ma’ana Investment Limited assign its right and obligations? Exhibit B reads:

THIS AGREEMENT BETWEEN: Kano State & Allied Products Ltd., whose address is 123 Maganda Road, Kano Nigeria (hereinafter referred to as the Importer which expression shall include their personal representative, Manager receiver, liquidator and assign) and Alhaji Aminu Ibrahim Kofa whose address is Kofa Trading Company Ltd., Murtala Mohammed Road, Kano Nigeria (hereinafter referred to as the financial (sic) which expression shall include his personal representative, administrator, executor and assign) on one part and Ma’ana Investment Limited, 50, Ado Bayero Road, Kano Nigeria (hereinafter referred to as the which expression shall include their personal representative, manager, receiver, liquidator and assignee) of the other part.

WHEREAS: Under and by virtue of an agreement dated 15th October 1984 (hereinafter referred to as the Initial Agreement which expression shall include all subsequent amendments between the agreeing and the particularly described as Schedule ‘A’ parties) between the Importer and the Vendor.

The Vendor is entitled to certain Rights and Privelity (sic) upon completion of his finance/supply obligation according to the law, intent and meaning of the said initial agreement.

AND WHEREAS: Under and by virtue of an agreement dated 7th January 1985 (hereinafter referred to as the Supplementary Agreement more particularly described as Schedule ‘B’ between the Vendor and the Financier, the Vendor is indebted to the financier to the tune of N6,543,666.65 (Six million Five Hundred and Forty Three Thousand Six Hundred and Sixty Six Naira Sixty Five Kobo) under terms and condition of the said Supplementary Agreement contained therein.

AND WHEREAS: The financier have requested the Vendor for an Assignment of the Vendor’s Rights under the Initial Agreement as and complete satisfaction of the Vendor’s responsibility under the Supplementary Agreement and the Importer has consented to the assignment.

AND WHEREAS: The Vendor has agreed to assign his Rights and interest under the Initial Agreement to the Financier for and additional consideration of the sum of N50,000.00 (Fifty Thousand Naira only). Nigerian currency.

NOW THIS DEED WITNESSES AS FOLLOWS:

That in pursuance of the said foregoing agreements and in consideration of the sum of N50,000.00 (Fifty Thousand Naira), Nigerian currency paid to the Vendor by the Financier, the receiver (sic) of which is hereby acknowledge by signing this document, the (Vendor) as the benefactor of the Initial Agreement hereby assigns the receiver of all that privileges, rights, duties and obligations contained in the Initial Agreement unto the financier.
The Vendor hereby covenants to indemnify the Financier at all actions by third parties for title or other interest on the Initial Agreement. The Vendor further covenants with the Financier pass directly unto him the Kano State Government Guarantee states the Initial Agreement.
The Importer hereby covenants with the Vendor to transfer deal and pass any claim of responsibility with the Financier to the total exclusion of the Vendor.
The Financier hereby covenants with the Vendor henceforth during the execution of the said Initial Agreement to negotiate and pay all charges, impositions, outgoings and fees to the following:-

Mahammadu Wabili, Ibrahim Mudi & Co. Aeromaritime (Nigeria) Limited, Alhaji Mohammadu Sam Abdullahi The financier hereby further covenants to keep the Vendor indemnified against all claims, actions or demands on account of the said covenants or conditions in any way relating therefore and the Financier hereby from the date of the execution of this law becomes the Legal Benefactor of the Initial Agreement at the supplementary Agreement is fully satisfied.

The Schedules Referred To Above Are Attached To And Form Part of This Deed.

In Witness Whereof The Vendor Has Hereunder Set His Hand And Seal And The Financier And The Importer Have Individually Set Their Hands And Seal This Day And Year First Above Witness.

Signed, Sealed and Delivered by )

The Within Named the Vendor ) Sgd: ……………

Ma’anah Investment Limited )

In the Presence of:

Name: Alhaji Ado Danda

Address: Box 1077, Kano.

Occupation: Trader

Signature: ….……………

Signed, Sealed and Delivered )

By The Within Named, the )

Financier, Aminu Ibrahim Kofa )

In the Presence of:

Name: Abdulkadir Bantiti

Address: 174 Saraki, Kano City

Occupation: Trader

Signature: …………………..

Signed, Sealed and Delivered )

By the within named, Kano )

State Oil & Allied Products Limited)

In the Presence of:

Name:…………………………………………….

Address:………………………………………….

Occupation:…………………………………….

Signature:………………………………………..

If the above Agreement was the deed of assignment (as it was held out to be) whereby Ma’ana Investment Limited transferred its rights and obligations under its contract with the Appellant (Exh. A), then the assignment was to Alhaji Aminu Ibrahim Kofa “whose address is Kofa Trading Company Ltd., Murtala Mohammed Road, Kano” and referred to in the deed as the “Financier”; it was not to Kofa Trading Company Limited who is the Applicant/Respondent in these proceedings. Alhaji Kofa was undoubtedly the Managing Director of Kofa Trading Company Ltd., but he did not execute the deed as such but in his personal name. There is no evidence that, in executing the deed, he was acting as agent of Kofa Trading Company Limited. In the event of a dispute between the parties to the original contract necessitating recourse to arbitration (as provided for in Exhibit A), the parties to the submission would be Alhaji Aminu Ibrahim Kofa and Kano State Oil & Allied Products Limited (the Appellant in this appeal).

It might be that it was the Appellant who performed the contract but it could only have done so as agent of Alhaji Kofa; there is no evidence of any assignment of the contract from Alhaji Kofa to Kofa Trading Company Limited (the Respondent). This contention was made clear from the beginning of the proceedings in the submissions of learned counsel for the Appellant in the trial High Court. The learned trial Judge, in this ruling, observed:

“As has been pointed out the respondent did not consider it necessary to file a counter affidavit, however, this notwithstanding, he contended on points of law that the Deed of assignment was between Alhaji Amina Ibrahim in person and Ma’ana Investment Corporation.

It was his view that Kofa Trading Company Ltd., was not a party to the agreement and as such it could not take any advantage under it. If I am right in acuping (sic) that the learned counsel made this submission because of the Deed of assignment annexed to the motion paper, I will concede that the learned counsel was right to a point.” One would have thought that this observation determined the matter before him. The learned trial Judge went on, however, to observe further:

“However, the matter between the applicant and the respondent does not rest there alone.

This is because sometime on 21st June, 1985, Kano State Oil and Allied Product Ltd., wrote to the Managing Director Ma’ana Investment Ltd. By paragraphs 3 and 4 it is said:

We have noted that in the draft you forwarded under covering letterof 29th May, 1985, Kasoap has been made a party to the proposed assignment whereas in the one sent to Kasoap under the covering letter of 27th May, 1985, the proposed agreement was a tough affair between Ma’ana Investment Ltd., and Kofa Trading Company Ltd.
As advised by our solicitors, an assignment is a transfer or making over to another of the whole of any property, real or personal, in possession or in action or of any estate or right therein, as such Kasoap cannot be a party to the proposed assignment since it is not transferring any property to any one. The assignment should be between Ma’ana Investment Ltd., and Kofa Trading Ltd. Apparently Kano State Oil and Allied Products Limited anxious to see that the deed of agreement was quickly executed between Ma’ana and Kofa Trading Company followed up with another letter of 16th August 1985 forwarding a properly prepared Deed of assignment to the Managing Director of Kofa Trading Company. The contents of the letter read thus:

“We are enclosing herewith 3 Original copies of the signed Deed of Assignment between Ma’ana Investment Limited and Kofa Trading Company Nigeria Limited and kindly request you to get the document duly dated and stamped at the Revenue office of the State Ministry of Finance and Economic Planning. The documents should be returned to us as soon as this is effected.”

Although there is nothing before the court to show the contents of the New Deed of assignment nor to show when it was stamped and registered but from the contents of this letter one thing is very certain.

This is to the effect that this was a new Deed of assignment between Ma’ana Investment Ltd., and Kofa Trading Company Limited and that the New Deed had been duly signed by the parties mentioned in it and what remained then was for stamping and registration.

It can therefore be presumed that after the stamping and registration the. Deed of Assignment was duly executed between the parties. This assumption of mine is more evident from the subsequent correspondences from the Respondent to the applicant where the respondent addressed all these letters to the Managing Director of Kofa Trading Company Ltd., and not Alhaji Amino Ibrahim.

It is therefore not correct to say that the Deed of assignment was between Alhaji Aminu Ibrahim in his personal capacity and Ma’ana Investment Ltd., and that Kofa Trading Company Ltd., could not take advantage under the deed because he was not a party. It is abundantly clear from the above that the assignment was between Ma’ana Investment and Kofa Company Ltd.

But, in case my assumption is wrong, I have not slightest doubt in my mind that all the subsequent steps and action by the Respondent after the letter of 21st June, 1985, where ours to make the applicant believe that the respondent was dealing with no other person but Kofa Trading Company Ltd., …….”

And concluded:

“I therefore agree with the learned counsel to the applicant that the respondent knew very well the person they were dealing with. They were certainly dealing with Kofa Trading Company Nig. Ltd., and not Alhaji Aminu Ibrahim and since they voluntarily allowed to be bound by the Deed of assignment, they must be bound by it notwithstanding the facts that the terms are now unfavourable to them.”

While acknowledging that under the deed (Exh. B) tendered in evidence before him the Applicant/Respondent was not a party to the original contract by assignment, the learned Judge, with respect, imported another deed not in evidence before him and on which he had no evidence as to its execution.

In any event it is clear from the affidavit evidence before him that the basis of the Applicant’s claim was Exhibit B and if that document did not support its claim, the learned Judge ought to have so found and reject the application. It is not for him to speculate in the manner he did. His reliance on equity arose out of a misconception of the application before him. To be entitled to the appointment by the court of an arbitrator the party applying must be a party to the submission, that is, he must be a party to the contract providing for arbitration. Submission is defined in Section 2 of the Arbitration Law as meaning:

“a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not.”

The claim before him was not one in quantum meruit as to justify his recourse to equity.

The Court of Appeal, per Achike, JCA, had this to say on the issue under consideration:

“Now to Issues No. 2 and No. 3 which relate to the third ground of the original grounds of appeal. The crux of the two issues is whether the respondent is a party to the submission. The relationships between the respondent, appellant and another juristic person, Ma’ana Investment Ltd., Kano (hereinafter referred to as M) are clearly set out in some of the paragraphs of the affidavit in support of Respondent’s motion, …………”

After setting out paragraphs 1-11 of the affidavit in support, the learned Justice of Appeal continued:

“Briefly, Annexure A shows that there was an initial agreement between the appellant and M, which broadly involved the business of ‘crushing of seed, refining vegetable oil and manufacture of allied products.’ Subsequently, with the consent of the parties, to wit, appellant, respondent and M, (See Annexure B) all M’s interest in the said business was transferred or assigned to the respondent who effectively stepped into M’s shoes, as we had noted, with appellant’s consent and knowledge of same.”

I pause here to observe that the “respondent”, that is applicant, was never a party to Annexure B. The learned Justice continued –

“The mix-up in the arrangement between the three parties has arisen from the insertion in Annexure C the name of “Alhaji Amino Ibrahim Kofa’ referred to as the ‘Financier’ as opposed to ‘Kofa Trading Company Ltd.’ the respondent in this suit. There is no doubt that there is some difference between these two appellations: the former is a natural legal person (a human being) whereas the latter is a juristic person, a creature of statute.”

After a review of the submissions of learned counsel for the parties, the learned Justice found:

“It is correct to say, as submitted by appellant’s counsel, that the Deed of Assignment ex facie showed that M assigned his entire interests in the business to Alhaji Aminu Ibrahim Kofa and not to the respondent. But to accept that submission, without more, is to take an over simplistic view of the mix-up. With respect to Mr. Sanyaolu, that line of argument is very pedestrian. To accede to same is to deliberately turn one’s back to the overwhelming affidavit evidence placed at the disposal of the court which predominated in favour of the respondent. The main paragraphs of the affidavit in support of the motion have earlier been reproduced in this judgment. They showed unmistakably what was intended, and indeed accomplished by the three chief dramatis personae, namely, the assignment by M of his entire interest to the respondent with the appellant fully brought into the picture. It will be manifestly absurd and inequitable to hold otherwise.”

And concluded:

“I, therefore hold, even without invoking the beneficient provisions of section 131(1)(a) of the Evidence Act, but upon the totality of the unchallenged affidavit evidence placed at the disposal of the lower court that there was in fact an assignment by M to the respondent of the former’s interest as contained in the original written agreement, Annexure A, executed between the appellant and M.

Therefore, the respondent as the assignee of M’s rights in Annexure A was competent to assert all the right contained in Annexure A, including the right under clause 19 which provided for submission of disputes to arbitration.”

Mr. Sanyaolu, learned counsel for the Appellant has, in the Appellant’s Brief, argued thus:

“With the greatest respect, it is submitted that the court below was in error in reaching that conclusion because:

(1) The Respondent did not allege and did not rely on mistake or on any clerical error. It alleged forcefully in paragraphs 4 to 6 of the affidavit in support of its motion that the Deed of Assignment (Annexure C) was between Ma’ana Investment Limited and Kofa Trading Company Limited.

(2) The Court below introduced issues of mistake and errors and of equitable assignment when these issues were never raised by the parties. The Court can not inject its own views for matters which there should be, but which there was no evidence before it. See: Ejowhonta v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt.39) at page 39.

(3) The contents of the affidavit in support of the Respondent’s motion, particularly paragraphs 4 to 6 and Annexure C (the Deed of Assignment) contradict the assertion by the Respondent that the assignment was between Ma’ana Investment Ltd., and the Respondent and there was nothing left for the Appellant to challenge by a counter-affidavit.

The court below indeed at page 100 of the Record of Appeal described Annexture C as ‘the discredited deed of assignment.’ (See also page 104 of the Record).

(4) The principle of estoppel by conduct as stated in Section 150 of the Evidence Act and relied upon by the Court below at pages 98 to 99 in holding that –

‘The unchallenged affidavit evidence clearly showed that the appellant not only had knowledge of the assignment between M and respondent but that in fact, and on several occasions, it dealt with the respondent upon the existence of the said assignment’ is, with the greatest respect erroneous, since the facts upon which the Respondent relied in the affidavit in support of the motion did not make out the plea.’

The agreement relied upon by the Respondent is express (Annexure C) and it is a Deed of Assignment. No mis-representation was alleged or proved. It is also submitted that an estoppel by conduct can not operate if its effect is to override or circumvent positive rules of law, which in this case, is the provision of Section 131(1) of the Evidence Act. (See Phipson on Evidence 12th Edition, paragraph 2141 to 214).”

I agree entirely with the above submissions. The Applicant/Respondent admitted in Respondent’s Brief that a mistake was made “where the name of Alhaji Amino Ibrahim Kofa was inserted in the Deed of Assignment instead of Kofa Trading Company Limited.” By this admission the Respondent was saying that it was not a party to Annexure B, though in error. Having gone through Annexure B, I cannot myself say that a mistake was made. In any event, issue of mistake or error was not raised by either party and it is wrong of the two courts below to import same into the Applicant’s case.

The conclusion I reach on Question (2) is that the Applicant/Respondent was not a party to the submission and could, therefore, not rely on Annexure A in praying for the appointment of an arbitrator. The only persons, who could do so under Annexure B were Alhaji Amino Ibrahim Kofa and the Appellant.

In view of the conclusion I reach on Question (2), Question (3) does not arise and I do not consider it necessary to go into the issues raised on Question (4). Suffice it to say that this appeal succeeds and it is hereby allowed. I set aside the judgment of the court below and the ruling of the trial High Court. Having held that the Applicant/Respondent was not a party to the submission, it had no locus standi to bring its application which is, accordingly, hereby struck out. I award N1,000.00 costs to the Appellant.

UWAIS, CJN

I have had the privilege of reading in draft the judgment read by my learned brother Ogundare, JSC. I agree with it entirely. I have nothing to add. Accordingly, the appeal is hereby allowed. The decisions of the courts below are set aside with N1,000.00 costs to the Appellant.

Other Citation: (1996) LCN/2730(SC)

Salami Adeoti Omokewu & Ors. V. Abraham Olabanji & Anor (1996) LLJR-SC

Salami Adeoti Omokewu & Ors. V. Abraham Olabanji & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

In the High Court of Kwara State in Suit No. KWS/OM/92/84, the plaintiffs who are the respondents in the application now before us sued one Salami Adeoti Omokewu and Suleman Durotoye Abegunde II (both of whom are now dead) and two others including Sanni Salawu Odofin Ogbu (or Ogbe), the present applicant, claiming, as per paragraph 23 of their statement of claim:

(i) A declaration that the 1st plaintiff is the bonafide appointed AROMU OF OKORE,”

(ii) A declaration that the 1st defendant’s appointment as AROMU OF OKORE by the 4th defendant is null and void;

(iii) A perpetual injunction restraining the 1st defendant from parading himself as AROMU of OKORE;

(iv) An injunction restraining the 2nd, 3rd and 4th defendants from recognising the 1st defendant as AROMU OF OKORE.

The action proceeded to trial at the conclusion of which the learned trial Judge on February 17, 1988 found in favour of the plaintiffs and granted them the reliefs sought.

The defendants by Notice of Appeal dated February 24, 1988 appealed to the Court of Appeal. During the pendency of the appeal on November 3, 1988, the 1st defendant Salami Adeoti Omokewu died. The fact of his death was, however, not brought to the attention of the Court of Appeal which Court on February 1, 1989 allowed the defendants’ appeal to it and dismissed the plaintiffs’ claims. The plaintiffs, being dissatisfied with the judgment of the Court of Appeal appealed to this Court. This Court allowed the appeal on July 17, 1992, set aside the judgment of the Court of Appeal and restored the judgment of the trial High Court.

Now 3 years after the judgment of this Court the present applicant who was all along 2nd defendant in the original proceedings and presumably the only survivor of the three defendants that appealed to the Court of Appeal, brought this application seeking –

“1. AN ORDER declaring the judgment of the Supreme Court in SC. 158/89 delivered on July 1992 as null and void and striking out the said appeal.

AN ORDER declaring the judgment of the Court of Appeal in CA/K/90/88 delivered on February 1, 1989 as null and void and striking out the said appeal.
SUCH FURTHER OR OTHER ORDER/S as this Honourable Court may deem fit to make in the circumstances.”

and set out the following grounds upon which the application is predicated:

“1. That at the time the said Court of Appeal judgment CA/K/90/88 was delivered on February 1, 1989 and the Supreme Court judgment SC 158/89 was delivered on July 17, 1992, the 1st respondent who was the necessary party to the said appeals had died.

That the death of the 1st respondent to the said appeals, which occurred on November 3,1988 was never brought to the Notice or attention of the Court of Appeal or of the Supreme Court as required by law.
That any judgment delivered when a necessary party to the action or appeal had died is null and void.”

The application is supported by an affidavit sworn to by the applicant. The penultimate paragraphs of the affidavit which form the synopsis of applicant’s submissions before us, read:

“6. That the 1st respondent at the Supreme Court, Salami Adeoti Omokewu died on November 3, 1988 before the Court of Appeal delivered its judgment. Attached herewith and marked Exhibit ‘A2′ is a copy of the Medical Certificate of cause of death showing the date the 1st respondent died.

That the fact of the death of the 1st respondent, Salami Adeoti Omokewu, was never brought to the attention of the Court of Appeal as well as the Supreme Court.
That the main contest in the matter as to entitlement to Aromu chieftaincy title was between the 1st appellant and the deceased 1st respondent while the 2nd appellant and the 2nd and 3rd respondents were merely nominal parties.
That I was informed by Ayo Olanrewaju of counsel, and I verily believed him that once a necessary party to a case in the trial court or in the appeal court dies and he is not substituted by another party, where substitution is permitted by law, any judgment obtained becomes null and void.
That the above information was not available to me until very recently.
That I verily believe that if the fact of the death of the 1st respondent was brought to the attention of the Court of Appeal, it would not have delivered its judgment and if the Supreme Court had known before delivering its judgment it would have declared the decision of the Court of Appeal null and void and struck out the appeal in the Supreme Court.”

There is a counter-affidavit sworn to by the 1st plaintiff/appellant/respondent.

In it he deposed, inter alia, as hereunder:

“9. Contrary to the facts deposed to in paragraphs 7, 8, 9, 10, 11, and 12 of the Affidavit of the applicant, I say:

(a) That Exhibits ’02’ and ’03’, the Notice of Appeal dated 6th February, 1989, and the Amended Notice of Appeal dated 20th February, 1991, filed on my behalf clearly showed that the 1st respondent, Salami Adeoti Omokewu was deceased. The said Exhibit ’02’ is copied on pages 224-226 of the Record of Proceedings filed herein.

(b) In a Motion dated 6th February, 1989, the 2nd appellant and myself prayed the Court of Appeal, Kaduna, for stay of execution of the judgment of the said Court and the 2nd appellant, Salami Ajiboye Olukotun swore to an Affidavit in support thereof that the 1st respondent, Salami Adeoti Omokewu died on 2nd November, 1988, among other facts stated. Now shown to me attached herewith and marked Exhibits “04A” and “04B” are true copies each of the said Motion and Affidavit in support of the application for stay of execution which are also copied on pages 227- 229 of the Record of Proceedings herein.

(c) An order declaring the judgment of this Honourable Court null and void will adversely affect me and prevent me from enjoying my rights and privileges as the bona fide Aromu of Omu Aran.

(d) The applicant has brought the motion on notice dated 6th October, 1995, in bad faith and the same should be dismissed by this Honourable Court.”

At the hearing of the application, learned counsel for the applicant submitted that the 1st defendant having died at the time the Court below delivered its judgment and at the time this Court heard the plaintiffs appeal and the 1st defendant being a necessary party his death robbed both Courts of jurisdiction and the judgments given by both were, therefore, a nullity. He submitted further that both at common law and under Order 8 rule 9(5) of the Rules of this Court where a party to an appeal died the appeal abated. Learned counsel conceded that this Court was not aware of the death of the 1st defendant when it heard and decided the appeal before it. He relied in support of his submissions, on Ezenwosu v Ngonadi (1988) 3 NWLR (Pt.81) 163; Awoyegbe v. Ogbeide (1988) 1 NWLR (Pt.73) 695 and Okoye v. Nwulu SC.162/1989 of 16/1/95 (unreported).

Mrs. Williams for the plaintiffs, submitted that the 1st defendant was never a party to the appeal to this Court and therefore, Order 8 rule 9(5) was inapplicable. Learned counsel, relying on section 215 of the Constitution and Obioha v. Ibero (1994) 1 NWLR (Pt. 322) 503, 531,532-535, further submitted that this Court had no jurisdiction to entertain an appeal against its own decision. She also submitted that the applicant had no locus standi to bring the application as he had not shown what he would suffer if the application was not entertained or granted by the Court. In her further address, Mrs. Williams submitted that the 2nd prayer was incompetent in that unless there was an appeal before it against the judgment of the Court of Appeal this Court could not review the former’s judgment.

True enough, this Court has no jurisdiction to review its own judgment. To this extent I agree with Mrs. Williams. But this application does not seek review of the judgment of the Court but seeks to have the judgment set aside on the ground that it is a nullity. It is settled law that a court (and that includes this Court) has an inherent jurisdiction to set aside its judgment or decision that is a nullity – see Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6; Craig v. Kanseen (1943) KB 256, 262-263; (1943) 1 All ER 108, 113, Obimonure v. Erinosho & Anor (1966) 1 All NLR 250; (1966) All NLR 245 (Reprint). I, therefore, reject plaintiffs contention that this Court has no jurisdiction to entertain the application now before us. Obioha v. Ibero (supra) is just not apposite.

From the affidavit evidence before us, one fact stands out clear and, that is, that the 1st defendant had died before the Court below gave its judgment in the appeal before it. Therefore, he could not have been a party to the appeal before this Court nor was he ever made a party. This is more evident from the original, as well as the amended Notice of Appeal filed in respect of that appeal. Order 8 rule 9(5) relied on by the applicant and which states:

“(5) Where an appeal has been set down for hearing and the Court is or becomes aware that a necessary party to the appeal is dead the appeal shall be struck off the hearing list.”

is inapplicable to the facts here. On the other hand, if the 1st defendant had been made a party to the appeal to this Court there was non-compliance by his counsel with sub-rule (1) of rule 9 which provides:

“(1) It shall be the duty of counsel representing a party to an appeal to give immediate notice of the death of that party to the Registrar of the Court below or to the Registrar of the Court (as the case may require) and to all other parties affected by the appeal as soon as he becomes aware of the fact.”

It thus could not be said that the Court was aware of his death as to enjoin it to strike out the appeal as required by sub rule (5) of rule 9. Indeed it is admitted that the fact of his death was never brought to the attention of the Court.

In view of my finding that the 1st defendant was not a party to the appeal before this Court there was not such a fundamental defect in the proceedings in that appeal that would vitiate the judgment delivered by this Court on July 17, 1992. Consequently, prayer (1) fails and it is refused. The authorities cited to us by learned counsel for the applicant which I have read, do not help him, they deal with cases where the deceased was already a party to the appeal or proceedings.

Prayer (2) seeks an order of this Court declaring the judgment of the court below in the matter null and void. The supervisory jurisdiction of this Court over the court below is appellate – see section 213(1) of the Constitution and, therefore, depends for its exercise on the existence of an appeal from a decision of that court.

There is no appeal before us upon which the court could exercise its appellate jurisdiction. Coming by way of motion is not the method prescribed for lodging an appeal from the court below to this Court – see Order 8 rule 2(1) of the Rules of this Court. Prayer (2) is incompetent; it, therefore, fails.

The two prayers having failed, this application is dismissed with N100.00 costs to the appellants/respondents.

SC.158/1989-(R)

Adeyinka Abosede Badejo (Miss) V. Federal Minister Of Education & Ors. (1996) LLJR-SC

Adeyinka Abosede Badejo (Miss) V. Federal Minister Of Education & Ors. (1996)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

The appellant commenced this action through her father and next friend by a Motion Ex-Parte dated 29th September, 1988 pursuant to Order I Rules 2(3) & 6 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 for the following:-

An order granting leave to the applicant to apply to this Honourable Court for an Order to enforce and secure within Lagos State her fundamental human right to freedom from discrimination as contained in Section 39(1) of the Constitution of the Federal Republic of Nigeria 1979 which right has been breached by the respondents who refused to call her for interview for admission into Junior Secondary-1 for the 1989 Session in Federal Government Colleges merely on the ground of the applicant’s state of origin.
An interim order restraining the respondents their agents and privies from conducting the interview for admission into Junior Secondary-1 for the 1989 session at Queens College, Yaba Lagos, Federal Government College Ijanikin Lagos and all other designated interview centres throughout Nigeria on Saturday October 8, 1988 or an order directing a stay of all actions on matters relating to admission of students for the 1989 session at Queens College Yaba Lagos, Federal Government College Ijanikin, Lagos and all other Federal Government Colleges in Nigeria for which the interview mentioned in this application is planned until the final determination of the application of the applicant for an order enforcing and securing the enforcement within Lagos State of the Applicant’s said right to freedom for discrimination on the ground of her state of origin.”
An interlocutory order restraining the 1st, 2nd and 3rd respondents and/or their agents and privies from marking the scripts of candidates for and/or collating and/or releasing the results of the interview examination held all over Nigeria on 8th October 1988 in respect of the admission of candidates into Junior Secondary School in all Federal Government Colleges in Nigeria including Queens College Lagos by any form of publication issuance and despatch of letters of admission until the final determination of the applicant’s application to enforce and secure the enforcement of her fundamental right to freedom from discrimination as provided by Section 39(1) of the Constitution of the Federal Republic of Nigeria 1979 and to deem the said motion as having been properly so amended.”

(Added by an amendment of 20th October 1988, See page 58 of Record).

In the statement accompanying the Ex-Parte motion also dated 29th September, 1988 the appellant sought for the following reliefs:-

“(i) A declaration that the applicant is entitled to freedom from discrimination on the basis of her state of origin with regards to the cutoff mark and marks scored by the applicant and the applicant’s eligibility to be called for interview for admission into Federal Government Colleges.

(ii) A declaration that the decision of the respondent not to call the applicant for interview based on the criterion published by the respondents in both the Daily Times and National Concord Newspapers of September 16th, 1988 which said criterion was adopted by the Respondents in the selection of candidates for interview for admission to Secondary-1 in Federal Government Colleges in 1989 is discriminatory to the applicant, is faulty, irregular, unconstitutional, null, and void.”

On the 5th day of October, 1988 the High Court granted the appellant leave to apply for the enforcement of her fundamental right but declined or refused her prayer for an interim order of injunction against the Respondents from conducting interview for admission to Federal Government Colleges on Saturday the 8th day of October, 1988 without first giving the respondents a hearing on the issue.

Pursuant to the grant of leave above, the substantive Motion on Notice for the enforcement of fundamental right was then filed. The papers include Affidavit Verifying the Fact Relied upon and an Affidavit of Urgency. The respondents on their part filed a Counter Affidavit as well as a Further Counter Affidavit. It is important to note at once that the appellant filed no reply to any of the Counter Affidavits as I will explain later.

Counsel on both sides addressed the court on 20th October, 1988 and Ruling thereon was reserved till 4th November, 1988. On that day the learned trial judge delivered her ruling dismissing appellant’s application or motion when she concluded on page 76 of the record as follows-

“It is my considered opinion that the applicant had not been able to establish that she had suffered by the acts of respondents, injuries greater than those suffered by all the other successful candidates who were not called for interview in the Common Entrance Examination.

I am therefore of the firm view that the applicant has no locus standi to bring this application. See also Gouriet v. Union Post Office Workers (1978) A.C. 437.

The application therefore fails and it is hereby dismissed.”

Aggrieved by the above ruling, the appellant appealed to the Court of Appeal, Lagos Judicial Division. Only one issue was submitted for determination which reads:-

“The central issue for determination in the appeal is whether or not the appellant/applicant has locus standi to bring the action. In order to analyze this issue it is pertinent to examine the facts of the case.”

In a reserved judgment the Court of Appeal (Coram Akpata, Babalakin and Awogu J.J.C.A.) unanimously allowed the appeal holding that the appellant had established that she had locus standi to institute the action and awarded costs of N250.00 against the respondents. The Court of Appeal however, proceeded to strike out the entire suit on the ground that the matters complained of in the motion had been completed and overtaken by events such that there was nothing to be remitted to the High Court for further action. The suit as I said above, was therefore struck out.

Further aggrieved by the decision of the Court of Appeal, the appellant has now appealed to this Court. Only one ground of appeal was filed. The parties filed and exchanged briefs of argument as provided by the Rules of Court. These were adopted and relied upon at the hearing.

Chief G.O.K. Ajayi SAN, learned Counsel for the appellant has submitted in his brief one main and one subsidiary issues respectively as arising for determination in the appeal as follows:-

“1. Whether the applicant ought to have been prevented from being able to obtain redress for the breach of her fundamental rights because the respondents had completed the acts complained of while her application was pending Should the matter have been struck out summarily by the Court of Appeal

Was there any basis for the Court of Appeal’s statement that the matters complained of had been completed Had the case in fact been overtaken by events

Counsel for the respondents was however satisfied to summarize the two issues in one thus:-

“Whether having held that the plaintiff has Locus Standi, the Court of Appeal should have sent back the matter to the lower court for determination”.

I propose to treat together the two issues raised by the appellant in her brief. But before I do that I will first of all set out that part of the lead judgment of Babalakin J.C.A. (concurred by both Akpata and Awogu J.J.C.A.), subject matter of this appeal. It appears on page 135 of the record as follows:-

“I am satisfied that the applicant has established that she has locus standi to institute the action and I so hold. The appeal is allowed. The Ruling of Akinboboye J. delivered on 4th November 1988 is hereby set aside. I award N250.00 costs against the respondents. However as the mailers complained of in this appeal had already been completed, the subject matter of the appeal has been overtaken by events and there is nothing more to be remitted to the lower court for further action. The action in the lower court is hereby struck out.”

(Italics supplied by me for emphasis only).

Chief Ajayi in his brief submitted that there was no material before the Court of Appeal upon which it could have based its conclusion that the matter being complained of had been overtaken by events. He said the applicant had complained that she had been discriminated against by not being called for interview for admission into Federal Government Colleges and that there was no suggestion or evidence that the applicant could no longer be called for such interview. It was therefore submitted that only where there had been positive evidence by the respondents that the applicant could not be called for interview after a specific date that the Court of Appeal would have been entitled to find that the appeal had been overtaken by events and that there was no such evidence.

It was also submitted that the Court of Appeal having rightly held that the appellant had locus standi ought not to have shutout the appellant from being heard by striking out her case in the High Court. That the finding ought to have been the beginning of the determination of the infraction of her rights as guaranteed by the Constitution of the Federal Republic of Nigeria 1979. He referred to Page 132 of the record, Section 42(1) of the Constitution and to the case of Ransome-Kuti v. A.G. Federation (1985) 2 NWLR (Pt.6) (21). He said an applicant who complains that her fundamental right has been or is being contravened is entitled to have her complaint investigated by the Court. he applicant is entitled to be heard he stressed.

It was further submitted that the rationale behind the decision of the Court of Appeal is subversive of the jurisdiction granted to the courts by Section 6(6) of the Constitution to hear and determine all disputes between individuals and Government, because in an appropriate case all that Government would need to do would be to complete or execute the act sought to be challenged and then go to the High Court and rely upon its action as a complete defence to the application. He cited the case of Ojukwu v. Military Government of Lagos State (1986) 1 NWLR (pt.18) 621 and submitted that the order which the Court of Appeal ought to have made in this case was one cancelling the whole exercise of the interviews which affected the applicant and, ordering fresh interviews to which the appellant would have been invited. He said where a person complains of a breach of her fundamental rights, the court has the bounded duty to provide an appropriate remedy to the complainant and not necessarily what she asks for. It was submitted that the Court of Appeal had not addressed its mind to Section 42(2) of the Constitution and that if it had done, the proper order it could have made was to have remitted the case back to the High Court to be heard by another judge on its merit. We were urged to allow the appeal.

On behalf of the respondents, It was submitted that the record including the orders and reliefs sought, show that the appellant’s complaint was about interviews for admission into Junior Secondary – 1 for the 1989 academic year. And that the appellant in a motion and affidavit in support both dated 17/10/88 stated clearly that the interview complained of had been carried out on 8/10/88. The subject matter of the appeal was therefore no more subsisting when the Court of Appeal gave its judgment and struck out the suit on 8th January, 1990. That neither the High Court nor the Court of Appeal was in a position to enforce the fundamental rights of the appellant with regard to the reliefs and orders sought by her and that remitting the case to the High Court for trial would only have amounted to an academic exercise. A number of cases were cited in support including Ukejianya v. Uchendu (1950) 13 WACA 45 Ekpeyong v. Nyong (1975) 2 S.C. 71; Kigo (Nigeria) Ltd. v. Holman Bros. (1980) 5 – 7 SC. 60.

It was further submitted that the Court of Appeal could not have closed its eyes to the various documents before it on record showing dates of the interviews and tests as well as dates for commencement of the academic year for the interviews and admissions complained of. The Court of Appeal therefore needed no further address to be able to arrive at the conclusion that the 1989 academic year complained of had since expired, and that it is trite that the court will not make an order in vain. Learned Counsel said the Court of Appeal has powers under Section 16 of the Court of Appeal Act 1976 (as amended) and Order 3 Rule 23 of the Court of Appeal Rules 1981, to make the order it made. We were referred to the cases of Shodeinde v. Registered Trustees of Ahmadiyya Movement in Islam (1980) 1- 2 S.C 163; (1980) N.S.C.C. 163 and A.G. Bendel State v. A.G. Federation & Anor (1982) 3 NCLR 1; (1981) 10 S.C. 1.

The Court was urged to dismiss the appeal.

It is common ground, and I think there is no doubt whatsoever about it, that a careful reading of the three orders and the two declarations sought by the appellant from the High Court and reproduced above, all pertained to one thing only, and that was:-

The applicant’s eligibility to be called for interview on 8th October, 1988 for admission to Secondary-1 in Federal Government Colleges in 1988.

Let me now examine the facts as revealed on the record. In the Affidavit of Urgency in support of the Motion Ex-Parte for leave, it was deposed thus:-

“2. That the application is being brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979.

That the application also contains a prayer for an order to restrain the respondents from holding on October 8, 1988 the interview which the respondents seek to exclude the applicant from.
That if the application is not heard before the said interview date the applicant will suffer irreparable loss because she will be deprived of her said freedom from discrimination and the applicant will be permanently prevented from attending a college of her choice (i.e. Federal Government College).”

Also in the Affidavit Verifying the Facts Relied upon for the enforcement of the fundamental right, it was averred as follows:-

“11. That the respondents have issued letters to candidates invited for interview for selection into said Federal Government Colleges and such candidates received their letters on Friday 23rd September, 1988.

That the interview is scheduled to be held on 8th October, 1988.
That if the interviews in the centres mentioned in paragraph 14 above are held before the disposal of the applicant’s application to enforce the fundamental right, the applicant will lose the opportunity of attending a Federal Government College and this will cause the applicant irreparable loss.”

When on 5/10/88 the learned trial judge granted leave to appellant to apply for the enforcement of her fundamental rights but declined to make the order for interlocutory injunction against the respondents, one Mr. Olugbemi, learned counsel for the appellant was recorded on Page 52 of the record to have submitted amongst others as follows;-

“On the 2nd leg of the application, Mr Olugbemi relies on paras ……. of the affidavit and paras of the further affidavit to support her application for an Interim Order restraining the respondents, their agents and privies from conducting the interview for admission into the Federal Government College until this application is disposed of. If the interview is held on October 8th, 1988 as scheduled then the subject matter of the application will be destroyed and there will be no need for the application …….M. Olugbemi finally urged the Court to grant their prayer as to allow the interview to take place on Saturday the 8th October would cause an irreparable damage to the applicant as she will no longer be able to take part in the examination for a Federal Government College.”

(Italics is mine for emphasis only).

It is doubtless therefore that the appellant and her Counsel knew that the interview would be held on 8/10/88 and if so held and before the application was heard, then the subject matter of the application would have been destroyed completely. Now, before the substantive motion on notice pursuant to the grant of leave was moved on 20/10/88, the respondents had filed a Counter Affidavit and a Further Affidavit as I mentioned earlier. Paras. 8, 9, 13 and 20 of the Counter Affidavit read thus:-

“8. That the applicant was not invited for the interview because she scored below the cut -off mark of her state of origin and as such was not qualified to be invited for the interview.

That whereas the cut-off mark for Ogun State was 295 for girls, the applicant scored 293.
That the Federal Government Colleges were set up for the purpose of enhancing the unity of this country by bringing children from different parts of Nigeria together so that they can appreciate each other’s customs and ways of life
That it is the responsibility of the Federal Ministry of Education to implement policies in the manner that reflects the Federal character of Nigeria which implies quota system and to achieve the purpose for which the Unity Schools were set up.

Paras. 5, 8, 9, 10 and 12 of the Further Counter Affidavit also read:-

“5. That the interview for the successful candidates who scored up to the cut-off mark for their respective States of Origin had already been held on 8th October. 1988.

That having not been invited for the interview which had already been held. she had no further stake in the mode of admission to the Unity schools for the year 1988 and therefore not be allowed to disturb the other on-going processes of admission to the Unity/Schools for this year.
That the applicant is just one of the many candidate who did not score up to the cut-off mark for their states of origin and were consequently not invited for the interview and so there is no question of any discrimination.
That in bringing this application before this Honourable Court, the applicant is placing her own individual interest of and above that of the Society (i.e. the interest and several thousand other candidates) who qualified and had attended the interview.
That it would amount to this Honourable Court making an order in vain as the interview for admission to the Unity Colleges had already been held on 8th October. 1988”

There was no reply from the appellant particularly to the depositions in the Further Counter Affidavit reproduced above to the effect that the interview had been held on 8/10/88. When the Motion on Notice was being moved on 20/10/88 and Mr Olugbemi’ s attention was drawn to the respondent’s counter affidavit and further counter affidavit, he was recorded on Page 59 to have said:-

“Mr Olugbemi as regards the Counter Affidavit submitted that this confirms the deposition of the applicant and as such it lacks merit. As to the Further Counter Affidavit – there is no opposition to the averment of applicant for an interlocutory ”

Further down the page he said:-

..even though the interview had been passed yet the respondents should be restrained from marking papers, collecting the results and releasing the results of the examination to stem this suffering of the applicant. Applicant’s inconvenience outweighs that of respondents if any”.

It was therefore evident from the record that both sides knew and were aware of the fact that when the motion was actually being argued on 20/10/88. the subject matter of the motion, that is, the holding of interviews for the Unity Colleges (Federal Government Colleges) had in fact been held on 8/10/88 throughout the entire Federation of Nigeria. That fact was deposed to in the respondent’s Further Counter Affidavit and clearly admitted by appellant’s counsel in his address in court on that day as shown above. Chief Ajayi was therefore not correct when he said that there was no material before the Court of Appeal upon which it could have based its conclusion that the matter being complained of had been overtaken by events. There certainly were, as shown above. The only evidence required and available here was the positive admission on both sides that the interviews had been accomplished.

The question now is – Did the Court of Appeal need any further address from counsel before it could strike out the suit in the High Court as it did I answer in the negative. The Court of Appeal on the facts before it had no choice in the matter. Certainly if the declarations and the orders sought by the appellant were all founded and based on the appellant’s eligibility to be called for interview on 8/10/88 for admission into Secondary -1 in Federal Government Colleges in 1989, the Court of Appeal must be right when on 8/1/90, some 15 months after the interviews, it held that the subject matter of the appeal had been overtaken by events and that there was nothing left for the High Court to try and therefore struck out the suit in its entirety. I endorse the action.

Again, I find no substance in the submission of Chief Ajayi to the effect that the rational behind the decision of the Court of Appeal was subversive of the jurisdiction granted to the Court by Section 6(6) of the Constitution to hear and determine all disputes between individuals and governments. It will in my view be subversive for a court of law to claim to determine disputes where none existed or had ceased to exist Quite rightly and properly too in my view, the parties had made it known that the act complained of had been accomplished. The case of Ojukwu v. Military Governor of Lagos State (Supra) cited by Chief Ajayi is quite distinct from the present case both on facts and circumstances. It does not therefore apply. Chief Ajayi ought to have realised that for a court of law to have proceeded in the way he suggested would amount to putting the entire Federal Republic of Nigeria at the mercy of one aggrieved individual. A case of total “brutalization” of the people’s fundamental right when compared with an infringement of the appellant’s fundamental right That to me would again amount to a subversion.

Again Chief Ajayi’s submission that the Court of Appeal on 8/10/90 should have cancelled the whole exercise of the interviews of 8/10/88 which affected the appellant and ordering fresh interviews is to say the least, preposterous. Admittedly, the interviews were held on 8/10/88, the 1989 Academic Year for Secondary-l had ended, and the 1990 Academic Year for Secondary-2 (former Secondary-I) had already commenced when the Court of Appeal delivered its judgment on 8/1/90. In short, Chief Ajayi wanted the Court of Appeal to put the hands of the clock backwards by 2 Academic Years! The end result Chaos! I repeat – Chaos all over the country! No court should allow itself to be used as an instrument of subversion under the guise of enforcing a fundamental right.

A fundamental right is certainly a right which stands above the ordinary laws of the land, but I venture to say that no fundamental right should stand above the country, state or the people. I think I can safely say now and thanks to the vigorous and educational activities of the National Judicial Institute, that gone are the days of wanton grant of ex-parte injunctions when operation of a bank was halted by a person who had been removed as a director, or when installation ceremonies of chiefs were halted by those who had lost and the disputes dragged on for years; or when the convocation ceremony of a university was halted by two students who had failed their examinations! It is quite gratifying for one to observe in this case that the High Court rightly and quite properly too in my view refused appellant’s request for an order of interim injunction sought against the respondents just before the interviews of 8110/88 were held. That was as it should have been.

From all I have said above, the appeal must fail. The Court of Appeal had abundant and uncontradicted affidavit evidence before it, as well as submissions of Counsel on both sides, for it to have come to the conclusions it did. The decision of the Court of Appeal Striking out the appellant’s suit before the High Court is hereby confirmed. The appeal is therefore dismissed with N1,000.00 costs to the respondents.

Other Citation: (1996) LCN/2663(SC)

Joseph Onwu & Ors V. Ezekiel Nka & Ors (1966) LLJR-SC

Joseph Onwu & Ors V. Ezekiel Nka & Ors (1966)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

This is an appeal against the decision of the Court of Appeal, Enugu Division, delivered on the 8th day of December, 1989, dismissing the appellants appeal in a dispute concerning land situate at Nsogwu village, Urnunze town in the Anambra State of Nigeria. The said land is more particularly delineated and shown verged red in the plaintiffs’ survey Plan No. NIS/AN 1595/82 tendered at the hearing as Exhibit B.

The plaintiffs, for themselves and as representatives of the people of Amaikpa family of Nsogwu village, Umunze, Orumba Local Government Area, Anambra State had in the Amawbia/Awka Judicial Division of the High Court of Justice, Anambra State instituted an action against the defendants, for themselves and as representatives of the people of Ndikpa family of Ugwulano village, Umunze claiming as follows:-

“(a) A declaration that the plaintiffs are entitled to the customary right of occupancy of “Uhuagba” land situate at Umunze in Orumba (formerly Aguata) Local Government Area within jurisdiction of the Honourable Court.

(b) N20,000.00 (Twenty thousand Naira) being damages for trespass upon the land in dispute.

(c) A perpetual injunction to restrain the defendants, their servants or agents from further entering or in any way interfering with the plaintiffs possession and use of the said “Uhuagba land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged with the same amended by various orders of court.

At the subsequent trial, both parties testified on their own behalf and called witnesses. The plaintiffs, in the main, relied on traditional history, numerous acts of ownership and possession over the land in dispute, arbitration under customary law and estoppel by conduct in proof of their title to the land claimed. Their case is that the land in dispute known as Uhuagba or Uhuowerre had belonged to them from time immemorial, having inherited the same from their great ancestor, Agba through successive ancestors. They pleaded various acts of possession and ownership over the land in dispute such as farming the land planting and reaping the fruits of economic trees thereon without let or hindrance from anyone and warding off trespassers therefrom.

The plaintiffs claimed that following a dispute in 1968 over the said land between themselves and the defendants relations of Ndiabo family, both parties submitted themselves to arbitration by Umunze elders called “Nzuko Obu Igba” under Umunze customary law. The proceedings of this arbitration, Exhibit C, were inconclusive and did not therefore restore peace to the parties. Consequently, both parties in 1976 submitted themselves to a further arbitration under customary law by Chief M.N. Ugochukwu, the traditional ruler or Igwe of Umunze. This second arbitration which is Exhibit D ended in the award of the land in dispute to the plaintiffs. They stressed that the parties to this customary arbitration accepted the said decision and award in good faith and at no time impugned the same on any ground whatever.

The plaintiffs further claimed that when the case between them and the defendants relations of Ndiabo in respect of the land in dispute was submitted to arbitration under customary law as aforementioned, the defendants appeared before the arbitral body and testified that the land in dispute belonged to the people of Ndiabo but made no claims on their own behalf. They averred that it was as a result on the defendants trespass of the land in dispute in 1979, 1980 and 1981 that this action was filed.

The defendants, on the other hand, claimed that the land in dispute had also been their property from time immemorial and that they inherited the same from their grandfather Nwozoigbo. They,too,testified that as owners thereof, they exercised various acts of possession thereon such as farming the land, reaping the economic trees thereon and letting in residential and farming tenants on the land without any interruption from whatever quarter. The defendants admitted the customary arbitrations of 1966 and 1971 but averred that these were not in respect of the land in dispute. In particular, they accused Chief M. N. Ugochukwu of bias in the 1971 arbitration decision and claimed that he was a relation of the plaintiffs.

At the conclusion of hearing, the learned trial Judge, Obiesie, J., after an exhaustive review of the evidence found for the plaintiffs on the 21st September, 1987.

Dissatisfied with this decision of the trial court, the defendants lodged an appeal against the same to the Court of Appeal, Enugu Division which in an unanimous decision dismissed the appeal on the 8th December, 1989 and affirmed the decision of the trial court. It however reduced the award of N5,000.00 general damages to the plaintiffs against the defendants to N1,500.00.

Aggrieved by the said decision of the Court of Appeal the defendants have further appealed to this court. I shall hereinafter refer to the plaintiffs and the defendants in this judgment as the respondents and the appellants respectively.

Four grounds of appeal were filed by the appellants against the said decision of the Court of Appeal. I do not find it necessary to reproduce them in this judgment. It suffices to state that the parties, pursuant to the rules of this court filed and exchanged their written briefs of argument.

The five issues distilled from the appellants grounds of appeal set out on their behalf for the determination of this court are as follows:-

“1. Whether the plaintiffs/respondents in their pleadings and evidence relied on Exhibit C to show that the defendants/appellants once admitted that the land in dispute belonged the Ndiabos

Did the plaintiffs/respondents successfully raise the plea of estoppel by conduct having regard to their pleadings and the evidence in support
Were the preconditions necessary for the operation of the plea of estoppel by standing by established by the plaintiffs/respondents
Whether the decision of Chief Ugochukwu contained in Exhibit D was given in violation of the rules of natural justice; and if so whether it can support a plea of estoppel.
Whether the sum of N1,500.00 awarded as nominal damages is not manifestly excessive.”

The respondents, on the other hand, submitted that bearing in mind the main complaint which pervaded the appellants grounds of appeal, only two issues call for determination in this appeal. These, they contended, are as follows:-

“(a) Whether or not the Court of Appeal was right in holding, as the trial court did, that the appellants are estopped from raising any claim in respect of the land in dispute, having earlier testified that the land did not belong to them.

(b) Was the award of N 1,500.00 general damages by the lower court excessive.”

A close study of the above sets of issues clearly discloses that the issues formulated on behalf of the appellants are more all embracing and fully cover the issues identified in the respondents brief for the resolution of this court. I shall in this judgment, therefore, adopt the set of issues formulated in the appellants brief for my consideration of this appeal.

At the oral hearing of this appeal before us, both learned counsel for the parties adopted their respective briefs of argument and proffered additional arguments in amplification thereof.

Learned counsel for the appellants, Mr. Philip Umeadi (Jr.) stressed that the issues of estoppel by conduct relied upon by the respondents arose out of Exhibits C and D as pleaded in paragraphs 9 and 10 of the amended statement of claim. He conceded that both parties to Exhibit C, to wit, the present plaintiffs of Amaikpa of the one part and the people of Ndiabo of the other part voluntarily submitted their dispute to arbitration but claimed that the Ndiabo people refused to be bound by the decision of the Nzuko Obu Igba arbitral body. He claimed, at all events, that what was pleaded, in Exhibit C is the decision of the arbitration and not the proceedings. Citing the decision in Okere and others v. Nwoke and others (1991) 8 NWLR (Pt.209) 317 at 347 A-B, learned counsel submitted that it is only when both parties to a customary arbitration accepted the award of the arbitral body that it becomes binding. He also argued, relying on the decision in Boniface Ofomata and Another v. Fabian Anoka and Another (1974) 4 ECSLR 251, that the decision having been based on oath swearing, was not final and could not operate as an estoppel. He concluded by stating that Exhibit C was not a binding decision under customary law and cannot support a plea of estoppel. So too, counsel argued, is Exhibit D, in respect of which, he claimed, none of the parties submitted the dispute to Chief Ugochukwu for arbitration. He submitted that there is no evidence that the parties signified their acceptance of the decision. In his view, there was infact no customary arbitration by the said Chief Ugochukwu. He argued that Chief Ugochukwu was a relation of the respondents and that his decision must therefore be biased. He submitted that Exhibit D is incapable of creating an estoppel against the appellants.

For his own part, learned counsel for the respondents, Mr. G. E. Ezeuko, S.A.N. drew attention to the fact that the appellant testified for the people of Ndiabo in Exhibit C which was duly pleaded in paragraph 9 of the amended Statement of Claim. He argued that the material question is whether the land arbitrated upon in Exhibits C and D and the land in dispute in the present suit are both the same. He submitted that both courts below held that the identity of the two pieces of land is the same. He stressed that the appellants, having earlier testified that the land in dispute belonged to the people of Ndiabo, are now estopped from asserting that the same land now belongs to them when their claim is based on traditional history and riot on acquisition from the Ndiabo people. He therefore urged the court to dismiss this appeal as lacking in substance.

A close study of issues 1, 2, 3 and 4 as formulated in the appellants brief of argument discloses that they revolve on Exhibits C and D; whether the respondents in their pleadings and evidence relied on them to show that the appellants once admitted that the land in dispute belonged to the people of Ndiabo; whether the respondents successfully raised the plea of estoppel by conduct having regard to their pleadings and evidence and whether the decision in Exhibit D was given in violation of the rules of natural justice. I will therefore consider the four issues together.

I think it is convenient at this stage to set out paragraphs 9 and 10 of the respondents amended Statement of Claim. These aver as follows:-

“9. In 1966 the land in dispute as well as other lands of the plaintiffs became a subject of dispute between the plaintiffs and defendants relations of Ndiabo family of Ugwulano, Umunze. The parties submitted themselves to the arbitration of Umunze elders called “Nzuko Obu Igba” under Umunze Customary Law. The decision of the said body which was recorded did not restore peace to the parties. The recorded decision of the elders dated 28/5/67 will be founded upon.

In 1971 the parties to the dispute submitted themselves to the arbitration by Chief M.N. Ugochukwu, the Igwe of Umunze who settled the dispute between the plaintiffs and the defendants relations of Ndiabo. By the decision of the said Igwe M.N. Ugochukwu the land now in dispute was awarded to the plaintiffs with a proviso that one Mathias Ndukwe should continue to live within the area verged Yellow until he vacates the said area after which the area reverts to the plaintiffs. When the case between the plaintiffs and Ndiabo people in respect of the land in dispute was before Chief M. N. Ugochukwu, the present defendants appeared to testify in favour of Ndiabo people but made no claims on their own behalf. The plaintiffs will found on the findings and decision of the arbitration by Chief M. N. Ugochukwu and dated the 20th of February, 1971 which fixed the boundary between the plaintiffs and Ndiabo people at Ohia Agba as shown on the plaintiffs plan.”

It seems to me plain that Exhibits C and D, as pleaded, clearly relate to the same parties, to the same cause of action and to the same piece or parcel of land. Both decisions are in respect of arbitration proceedings between the present plaintiffs/respondents of Amaikpa and the people of Ndiabo under customary law. It is also pleaded that both parties duly submitted themselves to these arbitrations. The first is by the Nzuko Obu Igba arbitral body in 1966 per Exhibit C. It was suggested by the appellants learned counsel that what was pleaded and tendered in respect of the first arbitration was the decision only. An examination of the record however shows that what was tendered without objection was the proceedings of the arbitration, Exhibit C.

The decision in Exhibit C was described as inconclusive. This is because, although the verdict, was in favour of the plaintiffs for title to the land in dispute by an overwhelming majority of 28 as against 8 of the sitting members, it was subject to the swearing of an oath. On the appointed day, the plaintiffs, presented their seven representatives to swear to the prescribed oath but the Ndiabo people refused, insisting on swearing to the oath themselves. Under the circumstance, peace continued to elude the parties.

Consequently, the parties in 1971 submitted themselves to a second arbitration under customary law. This was by Chief M. N. Ugochukwu, the Abilikete of Umunze and the Igwe of Orumba with his traditional advisers. The proceeding, findings and the decision in this second customary arbitration were tendered before the trial court by consent as Exhibit D.

There is clear evidence on the face of Exhibit D that the parties thereto duly submitted their dispute to the second arbitral body under the chairmanship of Igwe B.M.N. Ugochukwu, that the second arbitration was by way of review of the decision of the first arbitral body, that no objection was raised against the participation of either the said Igwe Ugochukwu or, indeed, any other member of the second arbitration exercise and that the parties concerned accepted the unanimous decision of the body which affirmed the ownership of the land in dispute by the respondents. This evidence was accepted by the trial court. Of particular note, however, is the fact that there is no suggestion that the appellants were claimants or parties to these arbitrations. The parties to the arbitration accepted the decision and award of the arbitrators. None of the parties has impugned or is impugning the said award by Igwe Ugochukwu and his advisers. In my view, the appellants who were no parties to the proceedings may not now seek to attack an award they were no parties to but mere witnesses.

Turning now to the evidence, P.W.3, Vincent Alla-Eboh who came from Ndikpa family with the appellants testified for the respondents as follows:-

“I am from Umukonu family in Ndikpa …… I am related to Ndikpa, the defendants. I know the land in dispute between the Amaikpa and Ndikpa ……. The land belongs to Amaikpa, the plaintiffs. I have a common-boundary with Amaikpa people ……….

When there was a dispute as to the land in dispute between Amaikpa and Ndiabo, Ndikpa people were aware of it. At the material time, we people of Ndikpa never claimed the land ourselves. Ndikpa people do not own the land in dispute but is owned by the Amaikpa people.”

There was next the evidence of the 1st plaintiff/respondent, Ezekiel Nka who testified as follows:-

“In 1966 Ndiabo started claiming the land in dispute. It was when we reported the matter to elders called Nzuko Obu Igba under Umunze customary law. These elders settle land disputes in our town. The elders settled the matter but not completely. After settling the matter they ordered that both parties should swear to an oath. This decision was written. Michael Nwafor was the Secretary. After the matter was reduced to writing they gave us a copy and Ndiabo a copy as well. The chairman was one Ekweogu. This is the proceeding given to me. Proceedings tendered by consent and marked Exh. C. The dispute was between us and Ndiabo. Now we dispute the land with Ndikpa. Ndiabo and Ndikpa are related. At the time of the dispute Ndikpa people knew when the matter was before the elders called Nzuko Obu Igba. One person who came as a witness for Ndiabo people is in this case now. The witness is called Izumolu Maduka identified in court as the 9th defendant.”

Of the second arbitration, the witness stated thus:-

“I remember the year 1971. Something happened between us and Ndiabo people. It was the time the whole Umunze people went to the chief’s palace and the parties submitted the matter for arbitration. The chief is called Chief M. Ugochukwu, Igwe of Umunze. The matter was finally settled in Igwe’s palace. Amaikpa and Ndiabo people agreed with the settlement as decided by the Igwe and his cabinet. The present defendants knew when the matter was settled and were among the members that resolved the matter. Ndikpa people at that time never stated that they owned any land there. After the settlement Ohia or Ofia Agbu formed the boundary between the people of Amaikpa and Ndiabo. The settlement by Igwe Ugochukwu and his entire cabinet was reduced to writing. After the arbitration a copy of the decision was given to us and another to Ndiabo people. Copy of the decision tendered by consent and marked Exhibit D.”

It is pertinent to point out that it does not appear to be disputed as pleaded in paragraph 9 of the respondents amended Statement of Claim that the appellants appeared before the customary arbitration body as per Exhibit C and testified for the people of Ndiabo to the effect that the land in dispute belonged to the Ndiabos and not to the respondents. In answer to paragraph 9 of the said amended Statement of Claim, the respondents stated as follows:-

“In answer to paragraph 9 of the amended Statement of Claim, it is true that the plaintiffs on or about 1966 had some land dispute which Ndiabo famiiy of Ugwulano-Umunze who are relations of the defendants, but it never concerned the defendants portion of Uhuowerre, which may conveniently herein be referred to as Uhuowerre-Ndikpa, verged pink in defendants survey plan

aforesaid. ”

They however stressed in paragraph 10 of their second further amended statement of defence that the said dispute did not concern their portion of Uhuowerre land. Indeed the 4th defendant, Thaddeus Onyelisahu, during his cross-examination testified thus:-

“I heard that Azuko Obi Ikpa arbitrated on the dispute between Ndiabo and Amaikpa in respect of a piece of land. I was present when Ndikpa people gave evidence for Ndiabo. The 9th defendant testified for Ndiabo. Paul Obinam testified for Ndiabo …………

They were convinced that the land belonged to Ndiabo. The land in question belongs to Ndikpa. The land arbitrated upon by Nzuko Obu Ikpa for which his people gave evidence belongs to Ndiabo …………”

There is also the evidence of D.W.3, the 9th defendant, Izunwolo Maduka of the appellants family who with others testified in the arbitration proceedings in favour of the people of Ndiabo. Said he during his cross-examination.

“I gave evidence in favour of Ndiabo at Obi Igba. It was at the time Ndiabo and Arnaikpa were disputing over land. I was at Obi Igba during the hearing of the case ……..I am from Ndikpa giving evidence for Ndiabo ……..The arbitrators visited the land in dispute. I went with them …….. The land in question then belongs to Ndiabo. I went to give evidence that it belongs to Ndiabo ….. It is not a fact that after Ndiabo were defeated in their case, we have come back to claim the same land. The land in dispute now is different from the land then in dispute …….

I know Chief S. I. Onyido. He is from Ndikpa and well known …………”

It cannot be disputed that the land which was the subject matter of the customary arbitrations, Exhibits C and D, was awarded to the respondents as the owners thereof. While, however, the respondents claim that the land is the same as the land in dispute in the present case, the appellants contend that the land over which they admittedly testified for the Ndiabos at the arbitration is entirely different from the land now in dispute. The next issue must be what the findings of the learned trial Judge and the court below are with regard to these various issues placed before the court.

In this regard, the learned trial Judge after a painstaking evaluation of the evidence found in respect of Exhibits C and D as follows:-

“Although Ukeje and Okeke appear to be the parties in Exh. C, a thorough study of the evidence revealed that it was a contest between Amaikpa and Ndiabo. The matter was subsequently submitted to Chief M.N. Ugochukwu, the Abalikete of Umunze and the Igwe of Orumba for final determination. His decision embodied in Exh. D reads inter alia as follows:-

“That Ndiabo people should hands off all the area claimed and counter-claimed by Okereke Agba of Ndiabo and Ukeje of Amaikpa, for Amaikpa people to own and possess.”

On whether the land arbitrated upon as per Exhibits C and D is the same as the land in dispute in the present case, he stated:-

“On the totality of evidence and examination of Exhibits B, G, C & D, it has been established to my utmost satisfaction that Exhibits C & D relate to Uhugba land which is the same piece of land now subject to litigation.”

A little later in his judgment, the learned trial Judge further observed:

Unfortunately, I have to state that the defendants, and most of their witnesses denied any relationship between the land in dispute and the one in Exhibits C & D which is contrary to findings already made. On this issue, I find that the defendants and their witnesses are not prepared to tell the truth especially Sylvester Onyido D.W.7 who played a great part in resolving the issue of this particular land when it was referred to Chief M. Ugochukwu for settlement. His role in Exhibit D can be inferred by the following extract in the said Exhibit which is put thus:-

“I thank the Akakpoho of Umunze – you are the traditional heads of this town. I thank all of you leaders in Umunze like Messrs. S.I. Onyido and R. I. Onyejeaka who have been striving that tensions are quelled in the interest of this town.”

The said witness D.W.7 as earlier stated (supra) thanked the Chief.

This same person has now made a round about turn to deny the great role he earlier played.”

On whether the decision in Exhibit D was accepted by the parties concerned, the trial court observed:-

“This decision was accepted by all the parties as indicated in paragraph 29 of the said Exhibit worded as follows:-

“After this decision was delivered by Chief M.N. Ugochukwu, Mr. S. I. Onyido, one of the leaders in Umunze rose to thank the Chief and the audience for their support and co-operation. He emphasized that the decision which was delivered by the Chief was unanimous and that they will strive to abide by it.”

S. I. Onyido is incidentally D.W.7.”

I think it relevant to add that the said D.W.7, S. I. Onyido, on the evidence of the appellants, belongs to their Ndikpa family of Umunze.

The Court of Appeal affirmed the above findings of the trial court as established. On the issue of Exhibits C and D, the Court of Appeal examined the pleadings of the parties and commented:-

“Having regard to the averments from the parties pleadings reproduced above, it would seem that there was no issue joined as to whether there had been previous dispute between the plaintiffs and Ndiabo people and that the present defendants had in that dispute testified that the land belonged to the Ndiabos. All that remained to be resolved by evidence was whether or not the land previously in dispute between the plaintiffs and the Ndiabos is the one currently in dispute between plaintiffs and the defendants.”

On Exhibit C, the court below stated –

“Exhibit C was not tendered to show that the defendants/appellants were parties to the previous dispute. It was tendered only to show that the defendants/appellants had once admitted that the land in dispute belongs to the Ndiabo.”

It went on-

“The question is Did the defendants as a group testify in favour of the Ndiabos that the land in dispute belonged to the Ndiabo people”

And it answered thus –

“On the evidence, there is no dispute that the defendants had testified before the arbitration in Exhibit C that the land then in dispute belonged to Ndiabos. They admitted that fact in the present proceedings. ”

The Court of Appeal, quite rightly in my view, then opined that from a close perusal of Exhibit C, the case was fought, not by the nominal parties on record but by the people of Amaikpa and Ndiabo.

The decision in Exhibit D is clear. This is that the land arbitrated upon is the exclusive property of the respondents. The Court of Appeal in accepting that this land in dispute in Exhibits C & D is the same as the land in issue in the present case stated as follows:-

“It is clear that the lower court had considered the features of the land in dispute between plaintiffs and the Ndiabos with those in exhibits B and G and then related these features to the evidence given by P.W.1 and P.W.3 before concluding that the land in dispute between the plaintiffs and the Ndiabos and that in dispute in the present case is one and the same. I think the lower court adopted the correct approach. There was certainly evidence before the trial court upon which it could have come to the conclusion that the land previously in dispute and that in the current case is the same. It is not for me to substitute my views of the evidence for those of the trial Judge …….. I therefore hold that the finding of the lower court that the same land in dispute between plaintiffs and the Ndiabos is the one in dispute in the current case was correctly made.”

The above findings of the trial court as affirmed by the court below are fully supported by evidence before the court. They have neither been shown to be perverse nor patently erroneous and I can find no reason to interfere with them. See Enang v. Adu (1981) 11-12 S.C. 25 at 42; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; Igwego v. Ezeugo (1992) 5 NWLR (Pt.249) 561 at 576; Chinwendu v. Mbamali (1980) 3-4 S.C. 31 at 75; Woluchem v. Gudi (1981) 5 S.C. 291 at 320 etc. I will now examine the questions of standing by and estoppel by conduct which have arisen from the issues under consideration against the background of the above established facts.

The law is well settled that where disputes or matters in difference between two or more parties are by consent of the disputants submitted to a domestic forum, inclusive of arbitrators or a body of persons who may be invested with judicial authority to hear and determine such disputes and matters for investigation in accordance with customary law and general usages, and a decision is duly given, it is as conclusive and unimpeachable (unless and until set aside on any of the recognised grounds) as the decision of any constituted court of the land. Such a decision is consequently binding on the parties and the courts in appropriate cases will enforce it. See Joseph Larbi v. Opanin Kwasi (1950) 13 WACA 81; Anjoku v. Nnamani 14 (1953) WACA 357 at 359 etc.

The parties in Exhibits C and D willingly submitted themselves to the arbitrations of Nzuko Obu Igba and Chief M. N. Ugochukwu, the Igwe of Umunze with his traditional advisers. It is in evidence that these bodies are invested under customary law and usages with judicial functions. The decision in Exhibit D in particular, was accepted by the parties and no attempt was made by either side thereto to impugn the same. In my view, the decision therein handed down which awarded title of the land in dispute to the respondents is as effective and enforceable as any other decision of a court of law.

Estoppel has been defined as a liability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to the disability. See Halsbury’s Law of England, 4th Edition, Vol, 16 Article 1501. The appellants, as I have already mentioned, were not parties to Exhibits C and D. They, however, not only knew when the land in dispute was being fought as between the respondents and the Ndiabos per Exhibits C and D, they appeared as witnesses for the Ndiabo people and testified that the land in dispute belonged to the Ndiabos. They made no claim whatever for themselves in respect of the land.

In this regard, the court below observed thus:-

“It was undisputed in the lower court that the present defendants had asserted before the arbitral body in the dispute between the plaintiffs and the Ndiabos that the land in dispute then belonged to Ndiabos. Can the defendants now be allowed to turn round and claim the same land as their own”

It then answered –

“In the con of this case, the successful plea of estoppel by the plaintiffs means in effect that the defendants were precluded from asserting or proving that the land in dispute belonged to them since they had previously represented that the land belonged to the Ndiabos who had admittedly lost to the plaintiffs. It follows therefore that the defendants’ situation, by calling evidence of traditional history and acts of possession and/or ownership was hopeless. It is like gathering water in a sieve. All the evidence called was weightless. And this is as against the plaintiffs who called evidence of their acts of possession and ownership and in whose favour a member of the defendants’ family (i.e. P.W.3) testified.”

I agree entirely with the above observations of the court below. The appellants in Exhibits C and D testified that the land in dispute belonged to the Ndiabo people. At no time in the course of the proceedings did they claim the land for themselves as their property. In the circumstance, they are estopped from asserting that the land in dispute now belonged to them from time immemorial. This plea of estoppel having been validly set up by the respondents against the appellants, the Court of Appeal was right in upholding the judgment of the trial court and dismissing the appellants appeal.

On the issues of standing by, it is established that when the issue of title to the land in dispute was being investigated and adjudicated upon by the Nzuko Obu Igba and Igwe M.N. Ugochukwu with his traditional advisers, the appellants were not only aware of the proceedings going on, not only stood by and made no claim to the land, they had infact appeared before the arbitral body as witnesses and testified that the land in dispute was the property of the Ndiabo people. The question is whether they now turn round to claim the same land as their property from time immemorial.

The law is settled that if a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the affair is in progress, he cannot afterwards complain.

See Leeds (Duke) v. Amherst (Lord) 16 LJ. Ch.5. So, too, a person who knowingly stands by during litigation concerning the title to the land in which he claims ownership to or an interest in, in circumstances in which he might reasonably be expected to apply to be joined as a party to establish his claim may find himself bound by the judgment in the suit even though he was not a party to the suit in which the judgment was given. See Lateju v. Iyanda (1959) SCNLR 634; (1959) 4 FSC 257 at 259; Alhaja Sabalemotu Kaiyaoja and others v. Egunla (1974) 12 S.C. 55. The appellants during the arbitration proceedings failed to join in the dispute to assert their interest to the land in dispute. On the contrary, they testified that the land belonged to the Ndiabos.

An estoppel may arise where a party such as the appellants in the present case, is not allowed to say that a certain statement of fact or assertion he had made is untrue, whether in reality it is true or not. I fully endorse the observation of the court below that in the con of this case, the appellants were precluded from asserting or proving that the land in dispute belonged to them since they had previously represented in another proceedings that the land belonged to the Ndiabos who lost their claim of title to the land to the respondents. I must for all the reasons I have stated above resolve issues 1, 2, 3 and 4 in favour of the respondents.

The 5th issue questions whether the sum of N1,500.00 awarded to the respondents by the Court of Appeal as general damages is not excessive. The Court of Appeal had on the 8th December, 1989 reduced the award of N5,000.00 made by the trial court to the respondents, as general damages for trespass to N1,500.00. The respondents in giving evidence in respect of the damages they suffered from the appellants’ trespass had testified thus:-

“In 1979 the defendants entered the land and destroyed crops on our land as well as economic trees. These are cassava, pumpkin, okro and economic trees like palm trees, palm fruits. We took the defendants to Aguata Magistrates Court. I now want the court to restrain the defendants from entering our land, ask them to pay us N20,000.00 as damages and declare the land as our own.”

In order to justify reversing the court on the question of the amount of damages, it will generally be necessary that the appellate court should be convinced either that –

(1) the court acted upon some wrong principle of law or

(2) that the amount awarded was too extremely high or so very small as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.

See Zik’s Press Ltd. v. Ikoku (1951) 13 WACA 188; Idahosa v. Oronsaye (1959) SCNLR 407; (1959) 4,FSC 166; Bala v. Bankole (1986) 3 NWLR (Pt.27) 141; Onaga v. Micho and Co. (1961) 2 SCNLR 101; (1961) 1 All NLR 338; Ijebu Ode Local Government v. Balogun and Co. Ltd. (1991) NWLR (Pt.166) 136 etc. No doubt a trespass of a technical nature only, can, at best, attract nominal or minimal damages. See Umunna and others v. Okwuraiwe (1978) 6-7 S.C.1 where this court reduced an award of N3,000.00 awarded by the trial court by way of nominal damages to N200.00. This award was however made in the year 1978, almost 20 years ago and it is a matter of notoriety which I must take judicial notice of that the naira was then virtually at par in value with the pound sterling and very much stronger than the United States dollar. Today, the story is very different. In my view, the courts, are entitled to keep up with the times and economic trend in the country, and in particular, with the prevailing decline in the purchasing power of the naira over the past few years. See L.O. Ejisun v. M. Ajao and others (1975) 1 NMLR 4 at 7; Amos Adenaike v. Ganiyu (1980) Ogun S.L.R. 8 at 25; Dr. O.O. Kalu and Another v. Dr. S. Mbuko (1988) 3 NWLR (Pt.80) 86 etc.

At all events, the respondents both in their pleadings and evidence before the trial court claimed the infraction of their legal rights by the appellants. These consisted of the breaking and entry into the land in dispute by the appellants and the destruction of the respondents’ economic trees and crops including palm trees, palm fruits, cassava, pumpkin and okro growing on the land. No special damage was either pleaded or claimed by the respondents. It is equally plain that the respondents’ claim was founded on general damages and not on nominal damages.

The law is well settled that it is not enough for the court to simply award damages in an action for trespass to land without giving any reason as to how it arrived at what amounted to reasonable damage. See Umunna and others v. Okwuraiwe and others supra. In the present case, the trial court in assessing what amounted to reasonable damage reasoned thus:-

“Turning to the other arms of the claim, the defendants never denied trespassing on the land in dispute but assert that they entered the land as of right. See paragraphs 11, 12, 13of the amended Statement of Claim and paragraphs 12, 13, 14 and 15 of the 2nd Further Amended Statement of Defence. In assessing the amount of damages plaintiffs are entitled to, one has to consider the historical nature of the case and the attitude of defendants as seen from evidence given in respect of economic trees and crops damaged. N20,000 (Twenty thousand naira) is claimed but from what I have stated above the sum of N5,000.00 will be adequate for plaintiffs.”

I think the award of damages made by the trial court was certainly not by way of nominal damages but as general damages, in view particularly of the destruction by the appellants of the respondents’ diverse economic tree and crops which the learned trial Judge specifically took into consideration in his award.

The court below, however, reduced the award of damages made to the respondents to N1,500.00. There is no cross-appeal by the respondents against this reduction of the trial court’s award. In my view, I cannot hold that the said award of N1,500.00 made to the respondents by the court below is either so extremely high or so very small as to make it, in my judgment, an entirely erroneous estimate of the damage to which the respondents are entitled. Accordingly, I have no option than to uphold the award and I must therefore resolve issue 5 against the appellants.

All the issues having been resolved against the appellants, this appeal accordingly fails and it is hereby dismissed. The judgment of the court below is hereby affirmed and there will be costs to the respondents against the appellants which I fix at N1,000.00.

SC.148/1991