Chuka Okoli & Associates V. Crusader Insurance Co. Nig. Ltd (1994)

LawGlobal-Hub Lead Judgment Report

OGWUEGBU, J.S.C.

This appeal arose from the proceeding initiated by the respondents herein in the High Court of Lagos State sitting in Lagos. By a motion on notice brought under Order 4 of the High Court of Lagos (Civil Procedure) Rules, 1972 and Sections 15(4) and 16 of the Legal Practitioner Decree No. 15 of 1975, the respondents prayed the court for the following orders:

“1. Leave to change its counsel that is Messr. Chuka Okoli and Associates of Investment House. 21/25 Broad Street, Lagos.

2. For taxation of the bill of charges of Messrs Chuka Okoli and Associates of 21/25 Broad Street, Lagos dated the 9th of September, 1985.
3. For an order that pending the taxation of the said bill (and subject to the giving of a suitable undertaking) the firm Messrs Chuka Okoli and Associates of 21/25 Broad Street, Lagos to deliver to the defendant/applicant all documents handed over to that firm for the prosecution of this case on its behalf.”

This application was filed on 27th September, 1985. The facts of the case are that the respondents retained the appellants who are legal practitioners to conduct the defence of a suit filed by one Joseph Nahman against the respondents in the High Court of Lagos State (Suit No. LD/985/82). The appellants were also retained to prosecute a counter-claim in the same suit.

There were exchanges of letters between the parties as to the fees payable by the respondents to the appellants for their services. In the course of the correspondences, an agreement was reached for the payment of the sum or N55,000.00 to the appellants for the defence of the said suit LD/985/82 together with the counter-claim.

Following the agreement, the appellants delivered a bill of charges pursuant to S.14 of the Legal Practitioners Act. 1975 for the agreed remuneration on 18th April, 1983 (See pages 81-83 of the record of appeal) On receipt of the bill of charges, the respondents by a letter dated 26/4/83, made a part payment of N10,000.00 to the appellants.

The appellants having accepted the brief, entered appearance, filed pleadings and took all procedural steps in the conduct of the defence and the counter-claim. They also made court appearances spanning over a period of three years.

The respondents unilaterally repudiated the said contract by a letter dated 21st August, 1985 and retained the services of another counsel. Thereupon, the appellants on 24th September, 1985 made a demand for the immediate payment of the balance of the agreed fees (N45,302.00),

The above are the summary of the facts that gave rise to the proceedings leading to this appeal.

The court of trial granted respondents leave to change counsel and ordered the appellants to deliver all documents handed over to them for the prosecution of the case to the respondents, Prayer two was referred to the Assistant Chief Registrar of the High Court for taxation.

The appellants were not satisfied with the orders made by the trial court and appealed to the Court of Appeal. Lagos Division which court dismissed their appeal. They have further appealed to this court.

The issues formulated by the appellants as arising for determination having regard to the grounds of appeal filed are as follows:-

(i) Whether the application for taxation of the bill of charges brought after two years and five months from the delivery of tile said bill of charges was statute barred,

(ii) Whether there was binding contract for an agreed amount of fees payable between the appellants and the respondents for which a bill of costs was delivered and if the answer is yes, whether it was proper to refer the assessment of damages for the repudiation of the said contract to a taxing officer to be ascertained on quantum meruit basis in the face of express provision for remuneration which the contract between the parties contained.

(iii) Whether the appellants as legal practitioners could be compelled to deliver up documents held under a retaining lien when their fees were unpaid,”

On their part, the respondents identified two issues for determination:-

“1. Whether the learned justices of the Court of Appeal were right in confirming the learned trial Judge’s order referring the appellant’s bill of charges to the taxing master, having regard to the circumstances revealed by the affidavit evidence before the court

2. Whether the relationship between the appellant and the respondent warrants treatment of the termination of his instructions as would apply to assessment of damages of an ordinary contract.”

The issues formulated by the appellants are in line with the grounds of appeal filed and are preferred to those of the respondent which do not cover all the grounds of appeal.

Arguing the appeal, Mrs, Okoli, learned counsel for the appellants urged the court to answer the first issue in the affirmative. She submitted in her brief of argument that the application for taxation of the bill of charges of the appellants was statute barred and ought not to have been entertained.

It was her contention that the trial court made no finding on this issue which was raised in the counter-affidavit of the appellants and in the submissions in that court. We were referred to page 90 lines 17- 22 and page 106 lines 30-32. Counsel also attacked the finding of the court below that the claim is not caught by S.16(3) of tile Legal Practitioners Act. 1975 on the ground that it is not a bill of charges that relates to a completed work.

Learned appellants’ counsel referred the court to S. 18(1) of the Legal Practitioners Act supra and the definition or “charges” in S. 15(2)(a) of the said Act. She stated that the Legal Practitioners Act did not exempt disputed bills from the provisions of S. 16(3)(b) of the Act nor was any distinction made between bills delivered for completed or non-completed work.

It was further argued on behalf of the appellants that it is the usual practice for bills to be delivered before the work is completed and that taxation of a bill of charges will in all cases be statute barred if application is commenced more than twelve months from the date of delivery; and as the bill was based on agreed amount of fees, it was not a disputed bill part of it having in fact been paid.

We were urged to hold that whether a bill had been paid or not and whether disputed or not are not relevant to the application for taxation being statute barred under S. 16(3)(b) of the 1975 Act.

In reply to the above issue, the leaned respondents’ counsel submitted that the contention of the learned counsel for the appellants that the application of the respondent for reference to the Taxing Master brought after two years and five months as being statute barred is misconceived. He submitted that S.16(3)(b) of the Legal Practitioners Act, 1975 is not applicable to the facts of this case. He stated that the peculiar facts of this case is that although parties agreed on instructions and acceptance of same for a fee of N55,00.00 the mode of payment was not agreed upon and this led to the termination of the appellants’ instructions which also led to the application on which this appeal is founded.

He submitted that S.18(1) of the 1975 Act relied upon by the appellants applies to completed matters and the appellants’ instructions were determined before commencement of trial and therefore, they could not be said to have conducted the respondents’ defence in the matter to enable them charge for same within the purview of S.18(1) of the said Act.

Counsel referred the court to S.63 of the Solicitors’ Act, 1974 of the United Kingdom. We were urged to reject the contention of the appellants on the applicability of the provisions of S.16(3)(b) of the Legal Practitioners Act, 1975 and confirm that the application for reference was properly before the trial court.

As was rightly submitted by the appellants in their brief of argument, the learned trial Judge did not make any finding on the limitation of action which was raised in paragraph 12 of the counter-affidavit of the appellants which reads;

“12. That the Bill of costs dated 18th April 1993 delivered to the applicant with the letter Exhibit 10 annexed to the applicant’s affidavit, had remained unsettled even after a period of 2 years and five months (29 months) had elapsed.”

In opposing the application for taxation of the bill of charges, Mr. H.T.O. Coker. S.A.N. for the appellants at page 106 lines 28 – 32 of the record submitted:

“……………… that the court cannot order any taxation as the parties have agreed on remuneration. The application is statute barred as it was not brought within 12months (Section 16(3) Legal Practitioners Decree. 1975),”

One of the five issues canvassed by the appellants in the court below is whether a bill of costs delivered by a legal practitioner can properly be referred to a taxing officer for taxation when the application for taxation was statute barred and leave was never sought or granted to present the same.

On this issue the court below had this to say:

“With regard to the issue that this action is statute barred it is my view that in the circumstances of this case, the claim herein is not caught by Section 16(3) of the Legal Practitioners Act (1975) because it is not a Bill of charges that relates to a completed work it is a disputed bill of charges and in any event, the bill had not been paid. Section 16(3)(4) relied upon by the counsel for the appellant to say that the action is statute barred is not applicable to the facts of this case.” (See page 198 lines 26 – 33 of the record).

I will now turn to the relevant provisions of the Legal Practitioners Act Cap. 207 Vol. II. Laws of the Federation of Nigeria, 1990 and these are sections 16, 17 and 19. They provide as follows:

“16(1) Subject to the provisions of the Act, a legal practitioner shall be entitled to recover his charges by action in any court of competent jurisdiction.

(2) Subject as aforesaid a legal practitioner shall not be entitled to begin an action to recover his charges unless –

(a) a bill of charges containing particulars of the principal items included in the bill and signed by him …………….. has been served on the client personally or left for him at his last address as known to the practitioner or sent by post addressed to the client at that address; and

(b) the period of one month beginning with the date of delivery of the bill has expired.”

17(1) Except where a direction providing for the giving of security is given under subsection (3) of S. 16 of this Act and security is not given in accordance with the direction, the court shall, on an application made by a client within the period of one month from the date on which a bill of charges was delivered on him, order that the bill be taxed and no action to recover the charges shall be begun until the taxation is completed.

(2) Subject to the provisions of subsection (3) of this section, the court may if it thinks fit, on an application made after the expiration of the period aforesaid by the legal practitioner or (except as aforesaid) by the client in question –

(a) order that the bill shall be taxed;

(b) ………………..

(3) No order shall be made under subsection (2) of this action.

(a) in any case, after the period of twelve months from the date on which the bill in question was paid;

(b) except in a case where the court determines that there are special reasons for making such an order, if twelve months have expired since the date of the delivery of the bill or if judgment has been given in an action to recover the charges in question …………….”

“19(1) Without prejudice to the provisions of S. 24 of this Act, in the last foregoing sections and this section (hereinafter in this section referred to as “the remuneration provisions”) the following expressions have the following meanings unless the con otherwise requires, that is to say –

“bill of charges” means such a bill as is mentioned in paragraph (a) of subsection (2) of S. 16 of this Act;

“Charges” means any charges (whether by way of fees. Disbursements, expenses or otherwise) in respect of anything done by a legal practitioner in his capacity as a legal practitioner……….”

The following facts are not in dispute between the parties:-

(a) that the appellants delivered their bill of charges to the respondents on 18th April, 1983 in accordance with S.16(2) & (3) of the Act and

(b) the respondents brought their application for taxation of the bill of charges more than two years and five months from the delivery of the said bill.

Section 19(1) defined “bill of charges” and “charges”

“Bill of charges” means a bill as is mentioned in S.16(2)(a) of the Act and “charges” means any charges (whether by way of fees, disbursements etc) in respect of anything done by a legal practitioner in his capacity as a legal practitioner,

(the italics is for emphasis only)

As I pointed out above, the learned trial Judge made no finding on the limitation period which was raised and argued by the appellant. The application was clearly brought outside the statutory period, It was caught by S.17(3) of the Act.

In as much as the trial Judge did not consider the limitation period, he did not therefore determine if there were special reasons for making the order for taxation after the expiration of twelve months from the date of the delivery of the hill.

The respondents made no application for enlargement of time within which to apply for taxation of the bill. The order made by the trial Judge for taxation is therefore a nullity.

I agree entirely with the submission of the learned appellants’ counsel that S.17(3)(b) made no distinction between bills delivered for completed work and non-completed work. Subsection 3(b) of S. 17 of the Act did not also exempt disputed bills from its operation. In any case these considerations by the court below are completely irrelevant to the application for taxation made outside the period of twelve months from the delivery of the bill.

The court below in my humble view was therefore in error when it held that the respondents’ application was not caught by S.17(3)(b) of the Legal Practitioners Act Cap. 207 Laws of the Federation of Nigeria, 1990. This appeal succeeds on issue one. In view of the above conclusion. it is not necessary for me to consider issue two. Question three is no longer alive issue since the documents had been delivered to the respondents. The case of Aburime v. Nigerian Ports Authority (1978) 4 S.C. 111 cited by both learned counsel docs not call for my consideration as it falls within issue number two.

The appeal is allowed. The decision of the Court of Appeal as well as that of the High Court are hereby set aside. The application to the High Court is hereby dismissed with N1,000.00 costs in favour of the appellants.

Other Citation: (1994) LCN/2647(SC)

Gabriel Erim V. The State (1994)

LawGlobal-Hub Lead Judgment Report

OGWUEGBU, J.S.C.

The appellant and four others were tried and convicted by Effanga, J. sitting in the Calabar Judicial Division of the High Court of Cross River State with the following offences:-

“Statement of Offence Count 1

Conspiracy to effect unlawful purpose, contrary to section 518(f) of the Criminal Code.

Particulars of Offence

Paulinus Orok Bassey, George Okon, Justine Geku Orufa, Gabriel Erim and Mfon Akpan lniunam between the months of June and September, 1979 at Calabar in the Calabar Judicial Division conspired among yourselves and with other persons unknown to effect an unlawful purpose to wit: stealing.

Statement of Offence Count 11

Stealing, contrary to section 390 of the Criminal Code.

Particulars of Offence

Paulinus Orok Bassey, George Okon, Justine Geku Orufa, Gabriel Erim and Mfon Akpan Iniunam in or about the month of September, 1979 at Calabar in the Calabar Judicial Division stole one Mercantile Bank of (Nig.) Ltd. Mail Transfer form number 28008 valued 2 kobo property of the Mercantile Bank (Nig.) Ltd.

Statement of Offence Count 111

Forgery contrary to section 467 of the Criminal Code.

Particulars of Offence

Paulinus Orok Bassey, George Okon, Justine Geku Orufa, Gabriel Erim and Mfon Akpan lniunam in or about the month of September, 1979 at Calabar, in the Calabar Judicial Division forged one Mercantile Bank of (Nig.) Ltd. Mail Transfer form No. 28007 for the sum of N782,546.98 purporting same to have been issued by Joseph Akpan Udo, Manager of Mercantile Bank of (Nig.) Ltd., Mbukpa Branch, Calabar.

Statement of Offence Count IV

Stealing, contrary to section 390(9) of the Criminal Code.

Particulars of Offence

Paulinus Orok Bassey, George Okon, Justine Geku Omfa, Gabriel Erim and Mfon Akpan Iniunamon the 21st day of September, 1979 at Aba in the Aba Judicial Division stole the sum of N124,350.00 property of Mercantile Bank of (Nig.) Ltd.

Statement of Offence Count V

Stealing, contrary to section 390(9) of the Criminal Code;

Particulars of Offence

Paulinus Orok Hassey, George Okon, Justine Geku Orufa, Gabriel Erim and Mfon Akpan lniunam on the 21st day of September, 1979 at Aba in the Aba Judicial Division stole the sum of N75,650.00 property of Mercantile Bank of (Nig.) Ltd.

Statement of Offence Count VI

Stealing, contrary to section 390(9) of the Criminal Code.

Particulars of Offence

Paulinus Orok Bassey, George Okon, Justine Geku Orufa, Gabriel Erim and Mfon Akpan Iniunam on the 25th day of September, 1979 at Aba in the Aba Judicial Division stole the sum of N200,000.00 property of Mercantile Bank of (Nig.) Ltd.”

The facts of the case are as follows:-

Sometime in the months of June and July, 1979, the first three accused persons- Paulinus Orok Bassey, George Okon and Justine Geku Omfa approached P.W.3- Amaitari Theophilus Dadiolie, an Assistant Manager attached to Union Bank, Aba Road, Aba in his house at No. 203, Tenant Road, Aba. They discussed with P.W.3 the possibility of opening an account with the Union Bank, Aba Road Branch. As they were discussing the matter, the 4th accused – Gabriel Erim (appellant) who was then the Manager of the Mercantile Bank Ltd. Aba branch came in and they all joined in the discussion after the P.W.3 introduced the appellant to them as well as the topic.

P.W.3 had declined the request to open the said account and they turned their request to the appellant. The appellant also queried them as to their motive for leaving Port Harcourt to open an account in Aba and told them that he was not interested in a crooked account.

On the 9th of July, 1979, the 1st, 2nd and 3rd accused opened the account with Mercantile Bank Ltd., Aba branch where the 4th accused (appellant) was manager at the time material to this case. The name Asirok Construction Company was used in opening the account. They presented a photocopy of Registration of Business name No. 237918 dated June, 1975 and the names of the partners in the business are Okon Asikpo and Orok Bassey who are signatories to the account which was numbered 1393. The account was opened with an initial amount of N100.00 and from the opening of the account the 1st to 3rd accused were sending P.W.1 (Patrick Nyong Effiong) to go to the Mercantile Bank Ltd., Aba and find out from the manager (the appellant) whether their Mail Transfer Order had arrived. Meanwhile a forgery, with the co-operation of the staff of the Mbukpa Road Branch of Mercantile Bank Ltd., Calabar was perpetuated after the original, duplicate and triplicate copies of a Mail Transfer Order No. 28008 was stolen from the Mbukpa Road Branch. With the false or forged Mail Transfer Order (Exhibits 12 and 12A), the sum of N782,546.98 in favour of Asirok Construction Company was transferred to the Aba Branch of the Mercantile Bank from the Mbukpa Road Branch, Calabar of the said bank.

Before the arrival of the Mail Transfer, P.W.1 made only two lodgments of N30.00 and N20.00 on the 4th and 10th September, 1979 respectively bringing the total lodgments to N50.00.

On 20th September, 1979, the appellant (4th accused) received the Mail Transfer. He discovered that one of the signatures on the mail transfer was questionable and he called the attention of three bank inspectors who were then on inspection at the Aba branch of the bank. (P.W.5, P.W.6 and P.W.15). After inspecting and comparing the signatures, they warned the appellant to be cautious in the handling of the mail transfer.

On 21st September, 1979 the first three accused presented two cheques No. A407503 for N124,350 dated 21/9/79 (Exhibit 14) and No. 407501 for N75,650.00 of the same date (Exhibit 14A) totalling N200,000.00 and before payments were made, the cheques were presented to the appellant by the 1st to 3rd accused and he made arrangement for the money to be brought to his office for payment. The 1st, 2nd, 3rd and 5th accused persons made away with the money in a Mercedes Benz saloon car belonging to the 1st accused.

P.W.4 – Clarence Patrick Udoh the Aba Branch Supervisor of Current Account and cash custodian warned the appellant not to pay the money and that he should first of all clear with the Mbukpa Road Branch, Calabar. The appellant defied his warnings and paid the money. On 24th September, 1979, the 2nd and 3rd accused persons came again and presented another cheque for N200,000.00 and the appellant was pressurized to go to Calabar and check from the Mbukpa Branch. The appellant was later informed that the document (Mail Transfer Order) was a forgery and he then alerted the police.

On 25th September, 1979, the P.W.8 (Jonah Ekpo – An Assistant Superintendent of Police) arrived at the Aba branch office of the Mercantile Bank Ltd., with his men and informed the 4th accused (appellant) of their presence. P.W.8 was told to hold on as the other accused persons were in the appellant’s office counting the money. They waited in an office adjoining that of the appellant. Thereafter, the 2nd and 3rd accused persons came out with a carton and a brief case containing money. They were both arrested and taken to the police station, Aba along with the money which amounted to N200,000.00. The 2nd and 3rd accused persons were detained for further investigation which led to the arrest of the remaining accused persons and the recovery of the other exhibits.

At the trial seventeen witnesses gave evidence for the prosecution while the accused persons gave evidence on their own behalf. They called no witnesses. After evaluating all the evidence before him, the learned trial Judge convicted the accused persons on all the counts of the information and sentenced each as follows:-

1st Count – 2 years I.H.L.;

2nd Count – 2 years I.H.L.;

3rd Count – 3 years I.H.L.;

4th Count – 7 years I.H.L.;

5th Count – 7 years I.H.L.;

6th Count – 7 years I.H.L.;

The sentences were to run concurrently.

The 1st, 3rd, 4th and 5th accused persons filed notices of appeal against the judgment to the Court of Appeal. The 2nd accused did not appeal. Briefs of argument were filed on behalf of the 1st and 3rd appellants (1st and 4th accused in the trial court). None was filed on behalf of the 2nd and 4th appellants (3rd and 5th accused persons). The appeals were unsuccessful. In the case of the 3rd appellant (4th accused), his appeal was partially allowed. His conviction and sentences in counts 4, 5 and 6 of the information were set aside. He was discharged and acquitted on those counts. His convictions and sentences on counts 1,2 and 3 were affirmed.

The 3rd appellant (Gabriel Erim) alone has further appealed to this court.

Both learned counsel for the appellant and the respondent filed briefs of argument. From the two grounds of appeal filed by the appellant, the following three issues were identified as arising for determination in the appeal:-

“1. Whether the lower court was right in holding that the case against the appellant was proved beyond reasonable doubt in counts 1, 2 and 3, having found him not guilty in counts 4, 5 and 6 in spite of all the evidence which if considered would or should have cast grave doubt on the guilt of the appellant.

2. Whether the lower court gave sufficient consideration to all the issues raised by the appellant and if not, whether such failure occasioned a miscarriage of justice.
3. Whether the appellant merely failed to exercise due care and caution in the discharge of his duties and thereby innocently, mistakenly, negligently or even stupidly facilitated the commission of the offences by the other accused persons or whether he acted in concert with them deliberately and purposely to steal”

Two issues for determination were identified in the respondent’s brief of argument:-

From the totally (sic) of the case, can it be said that counts 1, 2 and 3 are based on the same facts and evidence with counts 4, 5 and 6, such that it will not be possible to convict on counts 1, 2 and 3 and discharge on counts 4, 5 and 6 without occasioning miscarriage of justice.

2. Whether there exist (sic) any doubt in the evidence before the court in counts 1, 2 and 3 that could have been decided in favour of the appellant.”

The first two issues identified by the appellant in his brief of argument are covered by the grounds of appeal and so are two issues formulated by the respondent.

The appellant’s issue 3 does not arise from any of the two grounds of appeal filed. I will therefore ignore it.

On the first issue, the learned appellant’s counsel submitted that the court below did not reach its conclusion after due consideration of all the facts and the law and that it was the right of the appellant to have his defence considered however weak or frivolous it might seem.

He stated that it was the appellant who promptly set in motion the process which led to the discovery of the crime and the arrest of the thieves; that the appellant did not know the other accused persons until the chance meeting in the house of P.W.3 when he first met them and the 3rd accused was introduced to the appellant by P.W.3 and all that the other accused persons were seeking to do was to open an account which could not be said to be a criminal offence. It was also submitted that the appellant had no share in the sum of N200,000.00 which was stolen before the arrests; he had no motive to commit the crime and the lapse on his part upon which the learned trial Judge based his conviction were more consistent with negligence, carelessness, mistake and stupidity than with criminality. Learned counsel referred to pieces of evidence which he said showed that the appellant was not and could not have been part of the criminal gang.

As to the forged mail transfer, counsel submitted that it emanated from Mbukpa branch where Effiong Lazarus Ekot who was originally charged as the 4th accused worked. The charge against this Effiong Lazarus Ekot was dropped when he jumped bail. Counsel said that it was this Effiong Lazarus Ekot who requested P.W.16 another staff at Mbukpa branch to teach him how to prepare mail transfers and who had access to Mail Transfer Booklet kept by P.W.16. Learned counsel urged the court to infer from the evidence of P.W.9 that it was Effiong Lazarus Ekot who conspired with the 1st, 2nd and 3rd accused persons to defraud the bank, stole Mail Transfer Form No. 28008 from Mbukpa branch of the Mercantile Bank Ltd. and forged the Mail Transfer Form.

We were also urged to hold that the failure of the learned trial Judge to advert to the role played by Effiong Lazarus Ekot amounted to non-direction upon a vital point and if he had done so, the complexion of the case and the judgment would have been different. It was argued by the learned appellant’s counsel that when the Mail Transfer Form came into the bank the appellant showed it to the branch accountant and the inspectors who confirmed that the signatures on the mail transfer were genuine and if the appellant had conspired with the other persons to defraud the bank, he would not have drawn the attention of these persons to the mail transfer form.

Learned counsel stated that it was the appellant himself who travelled to Calabar to verify the mail transfer, assisted the police to have the other accused persons arrested and that until the 1st accused made Exhibit 24, both the police and the appellant’s employers were satisfied that the appellant was not involved in the fraud. He described Exhibit 24 as the statement of a desperate criminal who had been caught and that the appellant was convicted on the basis of this exhibit and if the appellant is guilty on account of Exhibit 24, then P.W.3 and P.W.4 should also be guilty. He contended that the evidence of P.W.1 showed that Exhibit 24 is false; the statements of the 2nd and 3rd accused to the police and their evidence in court also showed Exhibit 24 to be manifestly false and the learned trial Judge failed to take these into account as it affected the appellant.

He argued that if all the above features in the case were taken into consideration, grave doubt as to the guilt of the appellant would have arisen and the doubt should have been resolved in favour of the appellant. Learned counsel referred us to the cases of Onafowokan v. The State (1987) 2 NWLR (Pt.61) 538; Okonji v. The State (1987) 1 NWLR (Pt.52) 659; and Bakare v. The State (1987) 1 NWLR (Pt.52) 579.

Counsel stated that the court below having set aside the convictions in counts 4, 5 and 6 should, in order to be consistent, have set aside the convictions and sentences in counts 1, 2 and 3 and if the appellant is not guilty of the substantive offences, he should not have been found guilty of the preparatory acts. He cited and relied on the cases of Nnaji & 7 ors. v. Inspector-General of Police (1957) 2 F.S.C. 18; (1957) SCNLR 156; Adebayo v. The State (1987) 2 NWLR (Pt.57) 468 at 470-471; and Atano & Ors. v. Attorney-General of Bendel State (1988) 2 NWLR (Pt.75) 201 at 226. Counsel finally urged the court to allow the appeal and set aside the convictions and sentences imposed on the appellant in counts 1,2 and 3.

The learned respondent’s counsel submitted in his brief of argument that the facts and evidence in counts 1,2 and 3 (conspiracy to steal, stealing of mail transfer form No. 28008 and forgery of the said mail transfer form) were not the same as those in counts 4, 5 and 6. Counsel further submitted that a scheme was originated by the other accused persons and what they wanted was a ready account where the mail transfer could be paid into and by describing the account as “crooked account,” the whole scheme must have been explained to the appellant.

He immediately rejected it and on a second thought, accepted and allowed the account to be opened. He argued that by describing the account as “crooked account” at first, he had knowledge of the scheme and by allowing it to be opened, he qualified as particeps criminis as provided in section 7 of the Criminal Code and without the part he played, the offences in counts 1, 2 and 3 could not have been committed and the offences in those counts were completed when the money was transferred into the “crooked account”. He stated that those offences would still have been committed even if no attempt was made to withdraw the money. He cited and relied on Ogbozor v. Inspector-General of Police (1964) 1 All NLR 9; R. v. Ligali & ors. (1959) 4 F.S.C. 7; (1958) SCNLR 14; Aremu v. Inspector-General of Police (1965) NMLR 327; and Atano v. Attorney-General, Bendel State (supra) at 226.

Before deciding the question whether the setting aside of the convictions and sentences on counts 4, 5 and 6 rendered the affirmation of the convictions and sentences on counts 1, 2 and 3 inconsistent, it will be expedient here to observe that the crime of conspiracy is completely committed the moment two or more have agreed that they will do, at once or at some future time, certain things. It is not necessary in order to complete the offence that anyone thing should be done beyond the agreement. The conspirators may repent and stop, or may have no opportunity, or may be prevented, or may fail. Nevertheless the crime is completed when they agreed. See R. v. Aspinall (1876) 2 Q.B.D. 48 at 58-59; and Majekodunmi v. The Queen (1952) 14 WACA 64.

In count one of the information the appellant and four others were charged with conspiracy to effect unlawful purpose contrary to section 518(f) of the Criminal Code. Conspiracy does not sink in the consummated crime. For example, an agreement to commit treason is itself an overt act of treason and the conspiracy can be prosecuted without prosecuting for treason: R. v. Burch & Ors. 176 E.R. 622. The fact that the appellant’s convictions on those counts of the information were set aside was no basis for the court below not upholding the conviction for conspiracy with others to steal. The external or overt act of the crime of conspiracy is consent by which mutual consent to a common purpose is exchanged: See Rex v. Plummer (1902) 2 K.B. at 348; and Daboh & Ors. v. The State (1977) 5 S.C. 197. Learned counsel for the appellant relied on the case of Nnaji & ors. v. Inspector-General of Police (supra), In that case, the elders of a community met and agreed to meet from time to time to hear and try cases of theft in their community and to deal with the offenders according to their rules and regulations which were drawn up by a qualified lawyer and which contained a scale of fines for different offences.

As one suspect was being tried for theft of a goat, the police came to the scene and arrested the appellants; the other people at the trial escaped. The appellants were convicted by the Magistrate on two counts charging them with (1) conspiracy to commit felony – assuming to act as judicial officers and (2) assuming to act as judicial officers contrary to section 107(1) of the Criminal Code. On appeal to the High Court, the convictions on count 2 were quashed.

On further appeal to this court, it was held that the appellants could not properly be convicted of conspiring to assume to act as judicial officers after they had been found not to have assumed to act as judicial officers.

That decision turned on the definition of “judicial officer” and the expression was held not to cover members of a native community exercising judicial powers. It was therefore logical that if the appellants were found not to have assumed to act as judicial officers, they did not conspire to commit the felony.

The case of R. v. Cooper & Compton (1947) 2 All E.R. 701 is on all fours with Nnaji & Ors. v. Inspector-General of Police (supra). In that case two accused persons were charged with conspiring to steal on count one and with stealing in four other counts. They were found not guilty on the counts of stealing but were convicted on the conspiracy count. The Court of Appeal (England) quashed their convictions since the jury had found the prisoners not guilty of doing the things which they were charged with conspiring to do, their verdict that they were guilty of conspiring as a specific offence under the first count was therefore unreasonable.

The facts of the above two cases are distinguishable from those of the present appeal. In this appeal all the accused persons were charged with conspiracy, stealing of mail transfer form, forgery and three other counts of stealing various sums of money. The learned trial Judge found all the accused persons guilty on all the six counts of the information. In the Court of Appeal the convictions and sentences passed on the appellant in counts 4, 5 and 6 were quashed. The convictions and sentences passed on the other accused persons in all the six counts of the information were affirmed. The convictions and sentences passed on all the accused persons including the appellant in counts 1, 2 and 3 were also affirmed by the court below. Even if all the accused persons including the appellant were acquitted and discharged in counts 4, 5 and 6 of the information, it would not have affected the convictions and sentences passed on the appellant in counts 1, 2 and 3. Apart from the charge of conspiracy in count 1, counts 2 and 3 are substantive offences for which the appellant and the other accused persons were equally convicted. Those convictions and sentences were not quashed by the court below.

In order to prove conspiracy, it is not necessary that there should be direct communication between each conspirator and every other, but the criminal design alleged must be common to all. Indeed one conspirator may be in one town and the other in another town and they may never have seen each other but there would be acts on both sides which would lead the jury or the Judge sitting alone to the inference. See R. v. Meyrick & anor. 21 Cr. App. R. 94; Queen v. Esege (1962) 1 SCNLR 189; (1962) 1 All NLR 110; Oyeridan v. Republic (1967) NMLR 122; and Haruna & Ors. v. The State (1972) All NLR 738 (Reprint) (1972) 8-9 S.C. 172. A person may involve himself in the crime of conspiracy by his mere assent to and encouragement of the design, although nothing may have been assigned or intended to be executed by him personally. In otherwords, it need not be intended that all the conspirators should take part in the crime as principals in the first or second degree. See Law of Criminal Conspiracies (1873) by Wright J. at page 70.

If counts for conspiracy and for substantive offences alleged to have been committed in the carrying out of that conspiracy are tried together, there is no general principle that, whenever a verdict is returned of not guilty on a count charging conspiracy to commit offences and if guilty on other counts in the same information charging those specific offences or vice versa, that the verdict is necessarily inconsistent. Each case must depend on its particular circumstances: R. v. Sweetland 42 Cr. App. R. 62.

In addition, the actual fact of conspiracy may be collected from collateral circumstances. See Brisac & Scott v. The King 102 E.R. 793. I therefore hold that there was no inconsistency in the convictions and sentences.

As to whether the court below gave sufficient consideration to all the issues raised by the appellant, the findings of fact made by the learned trial Judge are very material. His findings at pages 23-25 of the record of appeal are as follows:-

“(a) that sometime in the months of June/July, 1979 the accused persons – Paulinus Orok Bassey, Justine Geku Orufa, George Okon approached the P.W.3 – Amaitari Theophilus Dadiolie, an assistant manager attached to Union Bank, Aba Road, Aba in his house at No. 203 Tenant Road, Aba, and discussed the opening of an account with the Union Bank;

(b) that as they were discussing on this topic, the 4th accused, Gabriel Erim, who was then the Manager of Mercantile Bank, Aba branch came and met them, and they all joined in the discussion;

(c) that there the host Amaitari Theophilus Dadiolie introduced Mr. Erim to them as the Manager of Aba Branch of the Mercantile Bank, and they re-introduced their topic to Mr. Erim;

(d) that on the 9th of July, the 1st, 2nd and 3rd accused opened an account in Mercantile Bank, Aba branch with the name Asirok Construction Company and presented a photostat copy of Registration of Business Name No. 237918 dated June, 1975, and the names of the partners in the business are Okon Asikpo and Mr. Orok Bassey, who are also signatories to the account. The number of the account is 1393;

(e) that on opening the account on 9th July, 1979 they made an initial payment of N100.00 from that day they have been sending the P.W.1 (Patrick Nyong Effiong) to go to Aba and find out from the manager whether their transfer order had arrived; meanwhile an ingenuous forgery, with the co-operation of the staff of the Mbukpa Road Branch of the Mercantile Bank, Calabar- was perpetuated after the original, duplicate and triplicate copies of the Mail Transfer Order No. 28008 were stolen;

(f) that with the false or forged mail transfer order (Exhibits 12 and 12(A), the sum of N782,546.98 in favour of Asirok Construction Company, was transferred to Aba Branch of the Mercantile Bank;

(g) that before the arrival of the mail transfer, the P.W.1 had made only two lodgments of N30.00 and N20.00 on the 4th and 10th September, 1979 respectively;

(h) that on the 20th September, 1979 the Manager, Aba Branch of the Mercantile Bank received the Mail Transfer Order;

(i) that one of the signatures on the Mail Transfer was more questionable and the 4th accused called the attention ofthe three bank inspectors who were in the branch for inspection;

(j) that having examined the signatories the inspectors warned him (4th accused) to be cautious in handling the transaction;

(k) that on the 21st day of September, 1979, the 1st accused, Paulinus Bassey; 2nd accused, George Okon and 3rd accused, Justine Geku; presented two cheques No. A407503 for N124,350.00 dated 21/9/79 (Exhibit 14) and No. 407501 for N75,650.00 dated 21/9/79 (Exhibit 14A) The total amount of money drawn on this account on that day was N200,000.00;

(l) that before the payment was done the cheques were presented to the manager (4th accused) himself, and he made the arrangements for the money to be brought to his office for payment;

(m) that the 1st, 2nd, 3rd and 5th accused persons made away with this money in Mercedes Benz car belonging to the 1st accused;

(n) that by the time this money was being paid one clearance Patrick Udo P.W.14, one of the supervisors of the bank, had warned the 4th accused not to pay the money; that he should first of all clear with Mbukpa Branch of the Bank at Calabar;

(o) that the 4th accused defied all these warnings and paid out the money;

(p) that it was when on pressure and when Justine Geku Orufa and George Okon came again on the 24th day of September, 1979 to present another cheque that the 4th accused finally decided to travel to Calabar, and ostensibly to check at Mbukpa Branch. He was later informed that the document is a forgery and the police was then alerted, by that bank’s manager …………………………..

(Italics are for emphasis only).

From the facts of this case, there was ample evidence upon which the appellant was convicted and sentenced in counts 1, 2 and 3 of the information. The following facts are worthy of note in order to appreciate the role played by the appellant in the whole scheme:-

P.W.3 testified that when the 1st, 2nd and 3rd accused came to him in his house in June/July, 1979 they told him that they wanted to open an account with the Barclays Bank (now Union Bank) where the witness was the Assistant Manager. When they explained their reasons for wanting to open the account at Aba, he declined. The appellant met them in the house of P.W.3. The other accused persons introduced the subject to the appellant who queried them as to their motive for leaving Port Harcourt for Aba. The appellant told them that he was not interested in “crooked account”. P.W.3 later learnt from the 3rd accused that they had opened the account in the Mercantile Bank, Aba where the appellant was manager. He later saw the appellant and warned the appellant to scrutinise the payments and withdrawals and to watch the account carefully.

P.W.5 (James Udo Ido) was the Manager of the Ikom Branch of the Mercantile Bank. He was one of the inspectors who visited the Aba Branch of Mercantile in September, 1979 on inspection. At the close of their inspection duties, the appellant drew their attention to the signatures in the Mail Transfer (Exhibits 12 & 12A). P.W.5 examined the Mail Transfer Order. He stated:-

“When I saw it I told him that that other signature resembles that of Felicia Boco but that it was badly signed and that he should be cautious.”

P.W.6 – Mr. Clement Udom who was one of the inspectors on duty at the Aba Branch of Mercantile Bank in his examination-in-chief stated:-

“We discovered that no amount as high as over 1/12 of what was purported to be trust to that account has ever been lodged with that account. We advised the manager to be cautious in dealing with that account.”

P.W.14 was one Clarence Patrick Udoh. He was the cash custodian and supervisor of current accounts at the Aba Branch of the Mercantile Bank. In his examination-in-chief, he stated:-

“On 21/9/79, I was instructed by the Branch Accountant that the manager (4th accused) needed N200,000.00 to cover payment for cheques No: 14 – A407501 for N75,650.00 Exhibit 14A- A407503 for N124,350.00.

The two cheques were presented to him. When our manager requested for this money, I checked to find out if there was sufficient fund in their account. I told the 4th accused that the balance in the account was N150.00. Soon after a mail transfer entry was responded to and referred to me by the account. I advised the 4th accused that we should confirm the signatures at Mbukpa branch before payment. The 4th accused did not abide by my advice but advised us to bring the money. The mail transfer was shown to me. The document shown to me now is the mail transfer (Exhibit 12 identified). Since I was not satisfied with the signatures and transaction or crediting the customer’s account as it was, I sent our messenger to dissuade him from paying. On 24/9/79 – the Manager left for Calabar after 1brought much pressure to bear on him to confirm the transfer.”

P.W.15 – Sunday Inyang Ekanem. He was also on inspection tour of the Aba Branch of the Mercantile Bank on 20/9/79. When the appellant showed him Exhibits 12 and 12A, he queried the signatures in the exhibits. They sent for the signature book in the bank. They turned to the relevant pages and he did not make any comment about the signatures but he told the appellant that the amount in Exhibits 12 and 12A was very big and that he should refer to the customer’s account to find out if the customer is used to having such huge amount in his account. He left his office and after winding up their inspection, he returned to the head office of their bank.

The account was opened in July, 1979 with only N100.00. Subsequent deposits came to N50.00 bringing the total deposits to N150.00 until the Mail Transfer of N782,546.98 got its way into the account on 20/9/79 barely two months after the account was opened. No withdrawals were made from the account until the arrival of the Mail Transfer.

Proof of conspiracy is generally a matter of inference and the inference of involvement of the appellant can be inferred from all the collateral circumstances as I have tried to recapitulate above. The appellant might have repented and stopped at a stage. Nevertheless, the crime was complete. See R. v. Aspinall (1876) 2 Q.E.D. 48 at 58-59. Most of the transactions in respect of the account were handled directly by the appellant who would then delegate the appropriate subordinate officers to take one action or the other.

There was also undue haste in the withdrawals. The sum of N200,000.00 was withdrawn within twenty four hours of the arrival of the Mail Transfer and within four days the balance of the Mail Transfer was also withdrawn. Under section 7 of the Criminal Code, the appellant was rightly convicted on those three counts despite the fact that he might have repented and stopped at a stage: R. v. Griffiths 49 Cr. App. R. 701; and Daboh & Ors. v. The State (1977) 5 S.C. 197. The evidence against the appellant was overwhelming. Without his assistance the crime could not have been committed. Whatever the mistakes of the courts below, such mistakes did not occasion any miscarriage of justice. He had foreknowledge of the crime and he consented to everything done to execute it by his co-conspirators. He aided them until he was persuaded to report to the head office of the bank by his subordinate officers. All the accused persons acted in pursuance of a criminal purpose which was held in common between them.

For the above reasons, I dismiss the appeal and affirm the decision of the Court of Appeal.

In the final result this appeal fails. It is hereby dismissed. I uphold the convictions and sentences of the trial court in counts 1, 2 and 3 and I confirm the judgment of the court below.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother, Ogwuegbu, J.S.C. I entirely agree that the appeal has no merit and that it should be dismissed.

Accordingly, the appeal is hereby dismissed and the decision of the lower court is affirmed.

UWAIS, J.S.C. (PRONOUNCEMENT): The Honourable Justice Olajide Olatawura, who sat with us on the 17th day of March, 1994 to hear this appeal,retired on the 3rd day of May, 1994. Before his retirement, he took part in the conference which we held on the 23rd day of March, 1994 on the appeal and he was of the opinion that the appeal should be dismissed.

In accordance with the provisions of the proviso to section 258 subsection (2) of the Constitution of the Federal Republic of Nigeria, 1979, Cap. 62 of the Laws of the Federation of Nigeria, 1990, I hereby pronounce the opinion of the Honourable Justice Olajide Olatawura that the appeal be dismissed.

OGUNDARE, J.S.C.: I have had the advantage of the judgment of my learned brother, Ogwuegbu, J.S.C. just delivered. I agree with his reasoning and conclusion that this appeal is lacking in merit. I am satisfied that there was overwhelming evidence from which it could safely be inferred that the appellant was a party to the fraud perpetrated by his co-accused on his employer the Mercantile Bank of Nigeria Limited. I see no merit in this appeal and I accordingly dismiss it too. I affirm the judgment of the court below.

ADIO, J.S.C.: I have had the opportunity of reading in draft, the judgment just read by my learned brother, Ogwuegbu, J.S.C., and I agree that the appeal fails. It has no merit and I too dismiss it. I affirm the judgment of the court below.

The appellant appeared at first as a loyal employee when he told the other accused persons that he was not interested in the opening of a “crooked account”.

For reasons best known to him, he turned to be an active collaborator with the other accused, ignoring all warnings given to him by well-meaning people that he should be careful in the transactions involved in the commission of the various offences. The prosecution had been very careful in framing the counts in the charge. In most of the cases, each count was separate and distinct from the other counts. So, there could be no question of a discharge and acquittal for an offence solely on the basis of a discharge and acquittal for another offence.

The appeal has no merit and I too dismiss it.

Appeal dismissed.

SC.160/1993

Union Bank Of Nigeria Ltd. Vs Odusote Bookstore Ltd (1994)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

The respondent was the plaintiff in the High Court of former Oyo State where he brought action against the applicant as defendant, claiming as follows –

“(i) Declaration that the defendants were negligent in handling, Operating and management of plaintiff’s business affairs and accounts with the defendant.

(ii) An order directing the defendant to refund to the plaintiff forthwith the sum of $804,988.59 being the amount paid in respect of outstanding bills in Schedules 2B, 2C, 2D, 3 and 5.

(iii) An order directing and compelling the defendant to pay the plaintiff the sum of $12,302,555.24 being the difference between the applicable Pre-SFEM rate in respect of all the outstanding bills in Schedules 2B, 2C, 2D, 3 and 5 and the rate of which the said outstanding bill will now be remitted by private arrangement or by any process as may be directed by the Federal Government of Nigeria as at the time of judgment/payments.

(iv) An order compelling the defendant to credit the plaintiff’s account with values of bills IBC 3752 and 3732.

(v) An order directing defendant to release the plaintiff’s title documents forthwith to the plaintiff.

(vi) An order directing the defendant to pay to the plaintiff the sum of $33,410,972.58 (Thirty Three Million, Four Hundred and Ten Thousand, Nine Hundred and Seventy-Two dollars Fifty-Eight cents Only) being special and general damages suffered by the plaintiff as a result of negligent handling of plaintiff’s foreign business and bank account by the defendant.

PARTICULARS OF DAMAGES

SPECIAL DAMAGES:

(1) 50% Excess deduction made and withheld by

the defendant on plaintiff’s account as per Schedule 4………$113,730.22

(2) 15% interest charged on wrongful debit.

Entry posted to plaintiff’s account

by defendant in January, 1987. ….. $ 11,731.75

(3) Value of IBC 3752, IBC 3732

withheld by the defendants …………. 6,865.76

(4) Refund of Deposit made in respect of outstanding

bills in Schedules 2B, 2C, 2D, 3 and 5 ……… 804,988.59

(5) Cost of remitting the outstanding bills through

private arrangements loss applicable Pre-SFEM values ………..12,302.55.24

SUB-TOTAL ………………. $13,239,871.56

GENERAL DAMAGES

(6) Loss of profit on the plaintiff’s withheld capital ……….. $171,101.02

(7) Loss of business, Contract and Good will with foreign

business partners and benefactors together with loss

sustained

as a result of plaintiff’s Managing Director’s title documents….. $20,000.00.00

OR ALTERNATIVELY damages for breach of

contract by the defendant. $20.000.000.00 .

TOTAL ……… $33.410.972.58”

At the end of the hearing of the case, judgment was entered for the respondent by the learned trial judge (Sijuwade, J). In awarding damages the learned trial Judge stated as follows –

“I, therefore, award as general damages the sum of N20 million, against the defendant. The plaintiff’s action, therefore, succeeds in its entirety. In addition to all the declarations sought for in its amended pleadings which I have already granted in this judgment, the plaintiff is in all entitled to the sum total of N32,040,641.76 (Thirty-Two million, forty thousand, six hundred and forty-One naira seventy six kobo) made up as follows-

By way of Special Damages

1. 50% Excess deduction made and withheld

by the defendant on plaintiff’s account ……N113,730.22

2. 15% interest charged on wrongful debit

entry posted to plaintiff’s account

by defendant in January 1987 ………….. 11,731.75

3. Value of IBC 372, IBC 3752

withheld by the defendant ……. 6,864.76

4. Refund of deposit made in respect

of outstanding bills ………… 804,988.59

5. Cost of remitting the outstanding bills

through private arrangements …. 11,103,375.44

Sub -Total ………. 12,040,691.76

Items 1-5 above Immediate Payment ordered

By way of General Damages

6. Loss of profit on plaintiff’s withheld capital,

loss of business contracts, and goodwill with

foreign business partners and benefactors

together with loss sustained as a result of

plaintiff’s Managing Director’s title documents ………. 20,000,000.00

Total………………………………32,040,691.76

(Thirty-two million forty thousand six hundred and ninety-one naira seventy-six kobo) with costs I assess at N5,000.00 against the defendant in favour of the plaintiff.”

The judgment was delivered on the 30th day of October, 1989. The defendant brought an application on notice on the 31st day of October, 1989 in the High Court praying for an order granting a stay of execution of the judgment of this Honourable Court delivered on the 30th day of October, 1989, pending the determination of the appeal filed against the aforesaid judgment.” The application was heard by Lajide, J., who ruled as follows on the 12th of April, 1990 –

“I grant the application conditionally on the following terms by the following orders:-

(1) That the defendant/applicant pays to the plaintiff/respondent the sum of N12.040,691.76 provided the plaintiff’s current bank gives a satisfactory guarantee for its refund if the appeal succeeds.

(2) The sum of N20,000,000.00 shall be deposited into a special account be (sic) created by the defendant/applicant in its bank in the joint names of both parties pending the outcome of the appeal when whoever succeeds on appeal will be at liberty to collect it together with interest accruing there from and,

(3) The defendant/applicant shall return to the plaintiff/respondent the title deeds deposited with it and

(4) The defendant/applicant shall pay to the counsel for the plaintiff/respondent the cost of N5,000.00 awarded against it within 7 days from today provided the said counsel enters into an undertaking to refund if the appeal succeeds.”

On the 30th day of April, 1990, the defendant filed another application in the Court of Appeal, praying “for an order for stay of execution of the judgment delivered on the 30th day of October, 1989 by the High Court, Ibadan, on more favourable conditions, pending the hearing and determination of the appeal against the said judgment……………….

The affidavit in support of the application gave part of the reasons for the application in paragraphs 8, 9, 10 and 12 thereof to be:-

“8. That the conditions laid down in (a) and (c) in paragraph 7 of this affidavit are onerous and unreasonable to the defendant/applicant and it has decided to make this application to this Honourable Court seeking more favourable conditions.

9. That the judgment involves a large sum of money and I verily believe that if any portion of it is paid to the plaintiff/respondent it will be diverted to other purposes and it will be unable to repay the same back to the defendant/applicant in the event of the appeal succeeding.
10. That the General Manager of the plaintiff/respondent testified at the trial that the plaintiff/respondent carries out its business operation with money borrowed from financial institutions and I honestly reasonably believe that any money paid to it will be utilised for its business.
11. That the plaintiff/respondent is not financially stable and any money paid to it will be utilised in stabilising the said company and in paying its overseas customers, and in the most likely event of the appeal being successful, the said judgment debt will be impossible to recover.”

The affidavit in support of the defendant’s application was challenged by the plaintiff in a counter – affidavit.

The ruling of the Court of Appeal (Sulu-Gambari, Akpabio and Agoro JJCA.) was delivered on the 28th day of November, 1990. It stated as follows (per Akpabio, JCA.)-

“On the totality of the foregoing, I regret that the applicant cannot be given any more favourable term than what was given by Lajide, J. at the court below, This court believes that from the record of its assets and profits publicly declared by the applicant as one of the leading Commercial Banks in this country (“big, strong and reliable”), the applicant is perfectly capable of paying the judgment debt in the manner ordered by the lower court, which will however be modified in the manner hereinafter following:-

(a) applicant is ordered to pay to the respondent within two weeks from the date hereof the sum of N937,316,32 representing “refund of deposit made in respect of outstanding bills” by respondent to appellant and other charges shown as items 1-4 of special damages.

(b) The applicant shall pay to the respondent within one month from today the sum of N11,103,988.59 representing “cost of remitting the outstanding bills through private arrangement” for use in remitting the said bills to their overseas beneficiaries without further delay, upon a Guarantee executed in favour of the applicant from a reputable Bank and in the form already executed by the respondent through the Bank of Credit and Commerce International

(Nig.) Ltd. in exhibit A dated 17/5/90.

(c) The sum of N20,000,000.00 representing the general damages or loss of earning awarded in favour of the respondent by the court below shall within one month from the date hereof be deposited into a special account to be opened by the applicant in its Bank at Bank Road, Ibadan to attract prime interest in the joint names of the parties pending the outcome of the appeal to this court.

(d) In view of the Bank Guarantee ordered to be given to the applicant under (b) above, the applicant shall return forthwith to the respondent the title deeds deposited with it by the respondent if these have still not been returned.

Costs of this application is (sic) assessed at N500.00 in favour of the respondent.”

Still not satisfied with the conditional stay of execution granted by the Court of Appeal, the defendant brought another application in the Court of Appeal on the 17th day of December, 1990, this time seeking “an order of a stay of execution of the order made by this Honourable Court on the 28th day of November, 1990 pending the hearing and determination of the appeal to the Supreme Court against the said Order.” The Court of Appeal (Akanbi, J.CA., as he then was, Sulu-Gambari, J.C.A. and Ogwuegbu, J.CA., as he then was) ruled as follows (per Ogwuegbu, JCA.) –

“A substantial and arguable ground of law is a collateral circumstance worthy of consideration in deciding whether to grant a stay of execution or not See Martins v, Niccanar Food Co. Ltd, & Ors. (1988) 2 NWLR (Pt.74) 75.

Having regard to all the circumstances of the application including the grounds of appeal, I will amend order (b) or (2) made by this court in relation to the payment of the sum of N11,103,988.59 to read as follows:

“The applicant shall pay to the respondent within one month from today the sum of N11,103,988.59 representing “cost of remitting the outstanding bills to the overseas beneficiaries provided the said plaintiff/respondent executes in favour of the applicant a satisfactory guarantee for its refund from a reputable commercial bank.

The said sum of money shall be refunded at an interest equivalent to that in order (3) or (c) made by this court should the appeal succeed.

But for this modification, the application is refused. No order as to costs.” (parenthesis mine)

The appeal in the lower court was heard by the court on the 25th day of February, 1993 by Kolawole, Mukhtar and Salami, JJCA. Judgment of the court was delivered on the 24 day of May, 1993. The appeal brought by the defendant did not succeed. It was dismissed by the court (per Kolawole, J.CA.) in the following words with the other learned Justices having concurred:-

“Having considered all the three issues raised by the appellant in this case, I have come to the conclusion that the appeal fails on all issues. Accordingly the appeal is dismissed with N1,000.00 costs to the respondent. The judgment of the court below is affirmed.” The cross-appeal brought by the plaintiff in the Court of Appeal was allowed in part and the following relief was granted to the plaintiff (per Kolawole, J.CA.)

“It is hereby ordered that the relief claimed in paragraph 48 (iii) of the final statement of claim shall be amended to read that:-

“An order directing and compelling the defendant to pay to the plaintiff the sum of N11,103,375.44 being the difference between the applicable bills pre-SFEM rate in respect of all the outstanding bills in schedule 2B, 2C, 2D, 3 and 5 and the rate at which the said outstanding bills will now be remitted by any process as may be directed by the Federal Government of Nigeria shall be (at) the prevailing rate as at the time of payment.

2. It is further directed that the defendant shall pay the cost of remitting the said outstanding bills at the rate of exchange prevailing as at the time of payment or remittance or by any process as may be directed by the Federal Government as at the time of payment.

The cross-appellant is entitled to the cost of this appeal which I fix at N350.00 against the defendant.”

The defendant once more felt aggrieved. It filed a notice of appeal to this court and brought an application in the lower court seeking inter alia “an order of stay of execution of the said judgment of this Honourable court pending the hearing and determination of the appeal to the Supreme Court against the said judgment.”

The affidavit in support of the application says nothing about the interlocutory appeal to this court against the ruling of the lower court made on the 28th day of November, 1990 which is yet to be heard.

The Application was heard by Mukhtar, Salami and Nsofor, JJ.C.A. who in refusing it stated thus (per Mukhtar, J.C.A): –

“The applicant by his (sic) conduct has not come to this court with clean hands, most especially when he refused to comply with the conditional stay granted by this court and the court below, when the appeal was pending before this court.

In the circumstance and in the interest of justice we refuse the application for stay of execution on the condition that the respondent provides a bank guarantee within 50 days from today. We assess costs at N250.00 in favour of the respondent.”

The application which is now before this court is :-

“for an order of a stay of execution of the judgment given by the Court of Appeal Ibadan on the 24th of May, 1993, on more favourable conditions pending the hearing and determination of the appeal to the Supreme Court against the said judgment and for such further and/or other order(s) as this Honourable court may deem fit to make in the circumstance.”

An affidavit in support of the application was sworn to by one Nonye Charity Nwosu of No.2 Tinubu Square, Lagos. As the affidavit contains the reasons for making the application. It will not, in my opinion, be out of place to quote it in extenso.

It states as follows:-

“1. That I am one of the Junior Counsel in the Chambers of Messrs Kehinde Sofola & Co., the Legal Practitioner acting for the appellant/applicant herein and as such I am familiar with this case and all the facts deposed to herein are within my personal knowledge except as otherwise stated.

2. That I have the authority of the appellant/applicant to swear to this affidavit on its behalf.
3. That I have been informed that (sic) the Managing Director of the appellant/applicant and I verily believe that:-

(a) The highest profit ever declared and over which tax was paid by the said respondent was under N125,000.00;

(b) The balance sheets of the respondent for nine years preceding the action were tendered in evidence as Exhibits 222- 223 during trial and in no year did the turn-over of the respondent exceed N4,000.00.

6. The respondent is not financially stable and any money paid to it will be utilized in stabilising the said company and in paying its overseas customers, and in the likely event of the appeal being successful, the said judgment debt will be impossible to recover.
7. That the payment of any part of the judgment debt will confer on the respondent such a substantial financial benefit to which it is not in law and equity entitled and will amount to an unjust enrichment.
8. That the appellant/applicant is ready, willing and able to provide a guarantee to ensure the preservation of the res i.e. the judgment debt with interest, in the most unlikely event of the appeal being unsuccessful.
9. That is in the interest of justice that the party who ultimately wins on appeal should be able to reap the fruit of judgment.
10. That the grounds of Appeal raise substantial and arguable points of law in an area which is recondite and the chances of success in the appeal are indeed considerable.
11. That the appellant/applicant is a public limited liability company which employs many Nigerians whose livelihood depends on the continued existence of the company.
12. That the appellant/applicant is a reputable bank and will satisfy the judgment debt immediately in the most unlikely event of the respondent succeeding in the appeal.
13. That the respondent will not loose (sic) anything if this application is granted by this Honourable Court.
14. That I swear to this affidavit in good faith in support of the Motion on behalf of the appellant/applicant at its request and with its knowledge and consent.”

The plaintiff has filed a counter-affidavit sworn to by one Mudasiru A. Delano, Manager at the Import Section of the plaintiff Company, 68, Awolowo Way, Oke-Bola, Ibadan. The counter – affidavit is prolix and verbose, but be that as it may, I think it will be necessary to quote it in full for a better understanding of the facts involved in the application. It reads –

“1. That I am a Senior Manager with the plaintiff/respondent in this case.

2. That I was also a witness in the case.
3. That by virtue of the facts aforesaid, I am quite familiar with the very facts of this case.
4. That I have seen and gone though the applicant’s motion filed on 10th August, 1993 and the supporting affidavit and exhibits.
5. That I have seen and gone through the applicant’s motion filed on 10th August, 1993 and the supporting affidavits and exhibits.
6. That paragraphs 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the applicant’s affidavit are incorrect.
7. That the appellant was the respondent’s Bankers.
8. That between 1982 and 1983 the respondent ordered some books from overseas suppliers.
9. That at that time a Nigerian importer needed Central Bank of Nigeria approval for the remittance of money due to overseas suppliers.
10. That application for such remittance must be made to the Central Bank of Nigeria through the importer’s Commercial Bank.
11. That the plaintiff/respondent’s Commercial Bank was the defendant Bank.
12. That all shipping and relevant remittance documents were submitted to the defendant/applicant for onward transmission to the Central Bank of Nigeria for approval.
13. That evidence before the court by the Central Bank of Nigeria official was that on the receipt of such remittance documents, approval was normally given within 24 hours.
14. That the applicant bank was found negligent either by losing or misplacing some of the remittance documents or by failure to forward these documents to Central Bank of Nigeria.
15. That consequent upon the failure of the defendant/applicant to send the documents to Central Bank of Nigeria and in spite of repeated demands by the plaintiff, it became impossible for overseas suppliers to be paid for goods supplied in 1982/1983 at the prevailing exchange rate at the time.
16. That up till now the overseas suppliers have not been paid.
17. That the lower court ordered that the defendant/bank should make money available for payment of money due to overseas suppliers but the applicant refused to pay.
18. That there is no appeal against the finding that the defendant/applicant was negligent.
19. That the respondent also paid commission to the appellant for the remittance.
20. That the rates used in calculating the cost of remitting the outstanding bills as at October, 1989 when judgment was delivered by the High Court was N12 to a U.S. Dollar and N20.00 to a Sterling Pound, which rates were the prevailing exchange rates as at the time of hearing.
21. That the order of court that payment of the said sum of N11,103,375.44 be made immediately was in realisation of fluctuating exchange rates to the detriment of the Naira.
22. That the exchange rate has continued to increase to the detriment of Naira since the date of judgment.
23. That failure of the appellant to pay immediately after the order is worsening and will continue to worsen the situation, considering the escalating rate of exchange to the detriment of the Naira.
24. That it has been the practice of the appellant to disobey the orders of the court since the inception of the case.
25. That Chief Afe Babalola, S.A.N. informed me and I verily believe that the application of the appellant is designed to tie the hands of the respondent from paying the overseas suppliers so that the overseas suppliers who have black listed the plaintiff can re – open business with it.
26. That the appellant had twice applied to this honourable court for stay of execution and withdrew the applications whilst the appeal was pending before the lower court.
27. That Chief Afe Babalola, S.A.N. counsel to the respondent informed me and I verily believe that there are no special circumstances to warrant depriving the overseas suppliers of their money due since 1982 on goods supplied to the respondent.
28. That the said respondent counsel further informed me and I verily believe that the appellant is not in law and in equity entitled to any better condition than granted by the lower court.
29. That the respondent has always been providing bank guarantee to secure the repayment of the judgment in case the appeal succeeds and the appellant has always disobeyed the orders of the lower court in spite of the bank guarantees and the attendant expenses.
30. That the exchange rates fluctuate daily at the upward trend.
31. That unless the values of the outstanding bills are paid forthwith the plaintiff’s overseas suppliers will not resume business with the plaintiff.
32. That both the High Court and the appeal court also ordered the immediate release of the respondent’s title documents, which orders the applicant persistently flouted and that it was only two weeks ago that he released the documents.
33. That with reference to paragraph 5 of the affidavit of the applicant, the respondent is financially stable and will rely on the records before this court to show that the applicant admitted before the lower court that the respondent is a reputable company and that for over 20 years when the respondent did business with the applicant’s bank, the respondent was always in credit.
34. That on the issue of profit, the evidence before the court, which was uncontradicted was as follows –

“If I were to look for the income of the plaintiff, I would look into the profit and loss account, and not the tax clearance certificate (as it the TCC is not founded on the Profit and Loss Account). The turnover of the plaintiff in this year 1983 was N3,650,477.00 according to Exhibit 244. The exchange rate at 1982 was about $1.00 plus to N1.00. With the exchange rate as at today the turnover of the plaintiff taking the figure of 1982 would be more than N30 million.”

In the year 1988, the turnover of the plaintiff was N4,791,574.34. In the year 1988 the exchange rate was N13.00 to $1.00. If the turnover of the plaintiff as I mentioned in the year 1988 is just over N4 million whilst in the year 1982, the present date turnover should be over N30 million, then it shows that the plaintiff as at 1988 by that turnover is not doing well. If the plaintiff were doing well the plaintiff should have been making since 1987 over N30 million turnover a year. The position of the plaintiff’s low turn-over uptill today has not changed.

42. That paragraph 7 of the applicant’s affidavit is false in that the payment of the judgment debt as ordered by the court will have no effect whatsoever on the appellant.
43. That the appellant made this point before the Court of Appeal and that it was shown that the payment of the judgment debt would have no effect whatsoever on the operations of the applicant.
44. That the assets of the applicant as shown in its 1989 Annual Report and Accounts are as follow:-

(a) Gross earnings of the applicant as at 30th September, 1989 N1,059.418 million as shown on page 36 of the applicant’s Annual Reports.

(b) Fixed assets of the applicant as at 30th September, 1989 is N177.444 million as shown on page 35.

(c) 1989 Annual Profit of the applicant as at 30th September is N152.409 million before taxation as shown on page 36.

(d) Other assets of the applicant as at 30th September, 1989 is N243.059 million as shown on page 35.

(e) Statutory reserve of the applicant as at 30th September, 1989 is N101.927 million as shown on page 35. Copy of the 1989 Annual Report of the applicant is herewith attached and marked Exhibit ‘C’ and ever since the bank’s income has been improving.

45. That paragraph 8 of the applicant’s affidavit is untrue and that as a matter of fact until the overseas creditors are paid the suppliers have refused to enter into any other business with the respondent.
46. That the uncontroverted evidence of the Expert before the court are the difference between the amount on TCC and proper net profit is as follows:-

“The taxable profit of a company are arrived at after deducting from the turnover the cost of sales, the overhead and the capital allowance. The tax is calculated according to the Finance Act of each year. For instance, it is now 40% of the taxable profit or income prior to 1987 it was 45% of the taxable profit or income.”

47. That the plaintiff company is a company with adequate means to pay any part of the judgment debt that may be set aside in the unlikely event of the appeal succeeding.
48. That the plaintiff company has property worth much more than the judgment award and which are free from all encumbrances.
49. That Chief Afe Babalola, S.A.N. told me and I verily believe that the application for better condition of stay granted by the lower court is a deliberate design to delay the payment ordered by the courts.
50. That to grant this application will be oppressive and detrimental to the business of the respondent and against the interest of justice.
51. That to refuse this application will not in anyway prejudice nor render nugatory any success of the applicant’s appeal, as the respondent has enough assets to refund the entire judgment or any of it that may unlikely be set aside.
52. That I swear to this affidavit in good faith.”

In moving the application, Dr. Elias, learned counsel for the defendant/Applicant, relying on the affidavit in support, said that there is a recondite point of law to be canvassed in the substantive appeal pending in this court. The point pertains to foreign exchange and the rate of exchange to apply to the judgment debt. He cited the cases of Ajomale v. Yaduat, (1991) 5 NWLR (Pt.191) 266 at p. 291 D- H and Martins v. Niccanar, (1988) 2 NWLR (Pt.74) 75 at p.83 C-F. Learned counsel said that there is danger that if the plaintiff is paid the judgment debt now and the defendant wins on the determination of the pending appeal the defendant will not be able to recover the money. When asked by the court whether the defendant was willing to pay the judgment debt into another Bank, Dr. Elias said the defendant was willing to do so, except that that would not be necessary in view of the decision of the Court of Appeal in Union Bank of Nigeria Limited v. Emole (1991) 9 NWLR (Pt.213) 74 at p.83 E – F. He drew our attention to the fact that the plaintiff has not been able to secure a bank’s guarantee as ordered by the Court of Appeal. He referred to the annual turn-over of the plaintiff as deposed in the defendant’s reply to the counter-affidavit and said that its biggest turn-over stands at N4,791,5874.34 and its profit in 1988 was merely N70,407.07. Learned counsel then submitted that in the alternative if the plaintiff should be able to produce a bank’s guarantee for the payment of the judgment debt to them as ordered by the Court of Appeal, such guarantee should be issued by either the First Bank of Nigeria Plc or the United Bank for Africa Plc. And if the defendant is allowed to keep the judgment debt with it the defendant is willing to pay commercial interest in that respect.

In his reply, Chief Afe Babalola, learned Senior Advocate, for the plaintiff, stated that he opposed the application. He referred to the judgment of the trial court and stressed that it was delivered in 1989 and that the defendant has failed to settle the judgment debt despite the fact that the defendant had at no time appealed against the award of special damages under heads 1 to 4 inclusive. As for the production of bank guarantee ordered, by the High Court, learned Senior Advocate referred us to the copy of the guarantee contained in the record of appeal as an exhibit to the plaintiff’s counter-affidavit. The guarantee was issued on 17th May, 1990 by Bank of Credit and Commerce International (Nigeria) Limited in respect of the sum of N12,040,691.76. Learned counsel stated that despite the issuance of the bank guarantee the defendant had not opened an account in the name of the plaintiff for the judgment debt guaranteed nor paid the amount to the plaintiff. He said that there have been 7 applications for stay of execution by the defendant and that this is the seventh application in the series. All the applications were granted on condition that the defendant paid to the plaintiff the sum of N11 million to enable it remit that money to its customers overseas, but the defendant has not satisfied any of the orders so granted. On the allegation by the defendant that the plaintiff had not been able to produce a bank guarantee as ordered by the Court of Appeal, learned Senior Advocate argued that the order was frustrated by the defendant when it filed an appeal in this court against the order, and in addition filed the present application even before the time given to the plaintiff to obtain bank guarantee had expired. He submitted that a judgment creditor should not be denied the fruit of his success and said that it is immaterial that the defendant is in a position to pay the judgment debt should the application be granted. He referred to paragraph 59/13/1 of the 1991 white Book (i.e the Supreme Court Practice, 1991 in England) in support of his submission. Learned Senior Advocate canvassed that from the history of this case, the defendant should be made to comply with the order of stay granted by the Court of Appeal, it is desirable, he said, for immediate payment of the judgment debt to be made by the defendant to the plaintiff in view of the effect of delay on the business of the plaintiff. He cited the case of Woodhouse v. NPMC Ltd. (1971) All E.R 665 at p. 667 G – 668 D.

Learned Senior Advocate concluded his argument by submitting that should this court be inclined to grant the application by making an order that the judgment debt should be paid into a bank, the order should provide that the interest payable should be commercial and accrue from the date of the delivery of the judgment of the trial court.

Now the general purpose of granting a stay of execution pending determination of appeal is to preserve the res in the case and in doing so to maintain the status quo. It is settled that when an order or judgment of a lower court is not manifestly illegal or wrong it is proper to assume that the order or judgment being appealed against is correct or it is rightly made until the contrary is established. On this basis the principle laid down by this court is that a successful litigant should not be denied the fruit of his success unless of course where some special or exceptional circumstances are shown to exist – See Deduwa & Ors. v. Okomdudu & 13 Ors. (1974) 6 S.C. 21; Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S.C. 77; Kigo (Nig.) Ltd. & Anon. Holman Bms. (Nig.) Ltd. (1980) 5 – 7 S.C. 60; Okafor & Ors. v. Nnaife, (1987) 4 NWLR (Pt.64) 129, Martins v. Niccanar Food & Co. Ltd. (1988) 2 NWLR (Pt.74) 75 and Ajomale v. Yaduat, (No.2) (1991) 5 NWLR (Pt.191) 266.

The question then is: are there any special or exceptional circumstances in this case which would warrant the granting of further stay of the execution of the judgment which the lower courts had successively entered in favour of the plaintiff The main reason given by the defendant for asking for stay is that the plaintiff is not financially stable and that should the judgment debt be paid to the plaintiff it would use the money to stabilise its position and pay its overseas customers.

A second important reason is that for the defendant to part with so large a sum as the judgment debt the defendant would be deprived of the use of which it could put the money as a banker and also be deprived a considerable amount of interest which it could derive from the large size of the judgment debt.

Now, I have deliberately narrated at the beginning of this judgment the antecedent to the present application to show that the defendant had used, to a great advantage, the rules of court allowing for the making and the granting of application for stay of execution to deny and stultify the plaintiff from enjoying its success since the judgment of the trial court was delivered on the 30th October, 1989. That is for well over four years now.

The principles which should guide a court in granting application for stay of execution have been repeatedly stated in cases decided by this court. Happily an attempt to list most of the guiding principles was made in Okafor & Ors. v. Nnaife, (supra) per Oputa, J.S.C. at p. 136B thereof –

“1. The courts have an unimpeded discretion to grant or refuse a stay. In this, like in all other instances of discretion, the court is bound to exercise that discretion both judicially as well as judiciously and not erratically.

2. A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an applicant for stay but does not adequately take into account the respondent’s equal right to justice is discretion that has not been judicially exercised.
3. A winning plaintiff or party has a right to the fruits of his judgment and the courts will not make a practice at the instance of an unsuccessful litigant of depriving a successful one of the fruits of the judgment in his favour until a further appeal is determined. See Annot Lyle, (1886) 11 P.D. 144 at p.166 per Bowen, LJ.
4. An unsuccessful litigant applying for a stay must show “special circumstances” or “exceptional circumstances” eloquently pleading that the balance of justice is obviously weighed in favour of a stay.
5. What will constitute these “special” or “exceptional” circumstances will no doubt vary from case to case. By and large, however, this court in Vaswani Trading Co. v. Savalakh & Co., (1972) held that such circumstances will involve “a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings or foist upon the court, especially the Court of Appeal a situation of complete helplessness or render nugatory any order or order of the Court of Appeal or paralyse in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal there could be no return to the status quo.”
6. The onus is therefore, on the party applying for a stay pending appeal to satisfy the court that in the peculiar circumstances of his case a refusal of a stay would be unjust and inequitable.
7. The court will grant a stay where its refusal would deprive the appellant of the means of prosecuting the appeal: Emmerson v. Ind. Coope & Co., (1886) 55 LJ. Ch. 905.”

There is no doubt that where a stay of execution has been granted by the Court of Appeal, as is the case presently, a further application can be made under section 24 of the Supreme Court Act for a further stay of execution with terms or conditions which may differ from those imposed by the lower court. It is possible for the conditions imposed by the Court of Appeal to be varied or annulled by this court – See Oyeti v. Soremekum (1963) 1 All NLR 349; (1963) 2 SCNLR 210 Akerele v. Adeoshun, SC. 13/1970 (unreported) judgment delivered on 9th June, 1970 and Construzioni Generali Farsura Cogefar S.P.A v. N.P.A. & Anor. (1972) NSCC 706; (1972) 12 S.C. 107. Now, applying the principles guiding the grant of stay of execution stated above, there can be no doubt that the plaintiff made some payment to the defendant in respect of the former’s business. The amount due to the plaintiff as special damages has been determined by the trial court and the Court of Appeal to amount to N12.040.641.76. Surely the plaintiff is entitled to receive this amount. It is inequitable for the defendant to continue to use it in order to further its own business. This is improper and should not be allowed because the balance of convenience is on the side of the plaintiff and not the defendant. A stay of execution in respect of this part of the judgment debt cannot, therefore, be granted.

Next is the general damages in the sum of N20,000,000.00 awarded by the lower courts and in respect of which there is appeal as contained in grounds 6 and 7 of the notice of appeal filed by the defendant. The two grounds shown on their particulars read-

“(6) The court below erred in law in holding that the award of N20 million should be based on rate of inflation and the fluctuations of the value of Naira in the world market and thereby came to the wrong decision in the appeal.

(7) The court below erred in law by holding that the award of N20 million as general damages was valid without properly considering the submissions made thereon and thereby came to a wrong decision in the appeal.”

It seems to me this is the res to be preserved in the case because it is a consequential award. The balance of convenience and the justice of the case demand that the status quo prior to the judgment of the High Court should be maintained until the decision of this court, in the appeal, is delivered.

Dr. Elias, learned counsel for the defendant had submitted, relying on the Court of Appeal decision in Union Bank (Nig.) Ltd v. Emote (supra), that in the event of the application succeeding we should order that the judgment debt be retained by the defendant since it is reputable and financially buoyant. The decision in that case followed an earlier decision of the lower court in First Bank v. Doyin Investment Nigeria Ltd., (1989) 1 NWLR (Pt.99) 634.

The factor that influenced the Court of Appeal to arrive at those decisions was the fact that the bank concerned were reputable and financially buoyant. I am, with utmost respect, unpersuaded by the decision. To allow the bank to retain the judgment debt as deposit notwithstanding that it will pay commercial interest on the amount, is in my opinion tantamount to giving it undue advantage over the judgment creditor. For it is a matter of common knowledge that the bank would employ the funds in charging higher interest than could accrue to the judgment creditor in the event of the bank’s appeal failing.

Furthermore, those decisions of the Court of Appeal ignored the fact that the judgment creditors were the successful parties and therefore, were entitled to be favoured more than the banks that were the judgment debtors, since a successful party to a case is, as of right, supposed to enjoy the fruits of his success pending any appeal against the decision of the trial court. In addition, the decisions ignored the fact that the parties were equal before the law. Where a case has been based on a contractual agreement, as is the case here, neither of the parties to the agreement can claim superiority to or inequality of the other party to the judgment. It appears to me that to allow a bank to retain a judgment debt, in an order for stay of execution, when the bank is the judgment debtor, presupposes that the judgment creditor is the underdog. But this cannot be right since as far as the decision in the case is concerned, he is the winner in the dispute between the parties. In MohilOit (Nig.) Ltd. v. Agadaigho, (1988) 2 NWLR (Pt.77) 388 (1988) 1 NSCC 777 the Court of Appeal granted a stay of execution of a ruling of the High Court on the ground that “the applicant is only an individual whilst the respondent can be part of a Multinational Oil Company”. On appeal to this Court, it was held at p. 787 (per Uwais, J.S.C.) that the consideration was irrelevant and further observed on p.797 thereof (per Karibi-Whyte, J.S.C.) that –

“This Court has only recently held that” a discretion to grant or refuse a stay of execution must take into account the competing rights of the parties to justice. A discretion that is based in favour of an appellant for stay but does not adequately take into account the respondent’s equal right to justice is discretion that has not been judicially exercised see Okafor v. Nnaife, (1987) 4 NWLR at p. 136 .per Oputa, J.S.C. Where a stay of execution has been ordered in a pending litigation, the general rule is to maintain the status quo and not to allow either party take advantage of the litigation in dealing with the subject matter of the litigation. (emphasis mine).

It is significant to point out that the applicant in the case in question, who was favoured by the Court of Appeal was considered by the Court of Appeal to be the weaker party of the two; and yet such consideration was held to be improper. By contrast, in the cases of First Bank v. Doyin Investment Nigeria Ltd. (supra) and Union Bank v. Emole (supra) the applicant were the “stronger” parties in the cases. If it was improper to apply the consideration to the weaker party, then there is a more cogent argument in not applying it to a stronger party.

Finally, in my opinion, the only occasion when it would be proper to order that a bank that is a judgment debtor could retain the judgment debt, in an order for stay of execution pending appeal, will be when the judgment debtor consents to the court seised with the matter making the order.

In the present case, it is common ground, as the parties have agreed in the alternative to their conflicting submissions, that the judgment debt should be deposited in either the First Bank of Nigeria Plc or the United Bank for Africa Plc. Consequently, I am satisfied that on the whole there are special circumstances to warrant the grant of the application for stay of execution pending the appeal in this Court. Accordingly, the application is hereby granted on the following terms:-

1. Items 1 to 4 inclusive of the special damages awarded to the plaintiff/respondent by the lower courts, which amount to N937,316.32 shall be paid forthwith by the defendant/applicant to the plaintiff/respondent.
2. Item 5 of the special damages awarded to the plaintiff/respondent by the lower court which amounts to N11,103,375.44 shall be paid by the defendant/applicant to the plaintiff/respondent on condition that the plaintiff/respondent gives to the defendant/applicant a bank guarantee in the said amount, issued by either the First Bank of Nigeria Plc or the United Bank for Africa Plc. guaranteeing a refund to the defendant/applicant in the event that the appeal by the defendant/applicant pending in this Court succeeds.
3. The applicant for stay of execution of the sum of N20,000,000.00 being the general damages awarded to the plaintiff/respondent by the lower courts is hereby granted on condition that a deposit account attracting commercial interest is opened, by the defendant/applicant in the said sum, in the name of the Chief Registrar of this Court at any branch in Lagos of either the First Bank of Nigeria Plc or the United Bank for Africa Plc.
4. That the said deposit account shall subsist pending the determination of the appeal in this court and thereafter the Chief Registrar of this Court shall pay over to the successful party the amount so deposited together with any interest that might have accrued thereto.

The costs of this application assessed at N100.00 shall be paid by the defendant/applicant to the plaintiff/respondent.

Other Citation: (1994) LCN/2646(SC)

Otitoju V. Gov. Ondo State (1994)

LawGlobal-Hub Lead Judgment Report

IDRIS LEGBO KUTIGI JSC. 

Following the claim of the Olomuo-Oke of Omuo-Oke as the paramount Chief or Oba of Omuo-Oke, Ekiti, the Military Governor of Ondo State instituted a Judicial Commission of Inquiry headed by the Honouable Justice Ojuolape to investigate the claim. The commission took evidence and later submitted its report to the 1st defendant herein who then issued a white paper dated August, 1982. The white paper was admitted as Exhibit E at the trial.

On page 13 of Exhibit E, the recommendations of the commission and the comments of the Ondo State Government were stated in part thus -15.0 Government views and comments on the Commissions Recommendation:15.1 Recommendation (i) that the claim of Olomuo-Oke as an Oba is false and should not be entertained either politically or administratively.

Comment:

Government accepts this recommendation.

15.2 Recommendation (ii) the Olomuo-Oke should be recognised as the head chief of Omuo-Oke under the paramountcy of the Olomuo who is the recognised Oba of Omuo.

Comment:

In the light of the Governments decision on recommendation (1) above, the Olomuo-Oke will remain as the quarter headchief of Omuo-Oke quarter in Omuo under the paramountcy of the Olomuo of Omuo.’

Being aggrieved by the commissions recommendations and the governments comments thereon the plaintiff in the Ondo State High Court, holden at Akure, sued the defendants claiming tin his writ of summons thus –

‘1. A Declaration that Olomuo-Oke is the traditional and paramount ruler of Omuo-Oke Ekiti in Ondo State.

2. A Declaration that Omuo-Oke is a distinct town in Ondo State.

3. A Declaration that the findings and recommendations of Ojuolape Judicial Commission of Inquiry into the headship claim by the Olomuo-Oke of Omuo-Oke are contrary to the customary law of Omuo-Oke community and are therefore illegal and void and of no effect whatsoever.

A Declaration that the Ondo State Governments views and comments on the said commissions recommendations as contained in Ondo State of Nigeria White Paper on Ojuolape Judicial Commission of Inquiry are illegal, unconstitutional and of no effect whatsoever.

2. An Injunction restraining the Government of Ondo State, its servants, agents, privies and officers from acting on, executing, giving effect to or otherwise dealing with (to the detriment of the plaintiff) the said findings, recommendations, views and comments as contained in the Ondo State of Nigeria White Paper on Ojuolape Judicial Commission of Inquiry.’

Pleadings were ordered, filed and exchanged by the parties. An Amended Statement of Claim was filed by the plaintiff. The 1st and 2nd defendants also jointly filed an Amended Statement of Defence while the 3rd defendant filed his own Further Amended Statement of Defence. The case was fought on these new statements of claim and defence.

At the trial only plaintiff testified for himself and on behalf of the people of Omuo-Oke Community. He tendered in evidence series of documentary exhibits. The defendants on the other hand called three witnesses and tendered some documents in evidence as well.

From the pleadings of the parties and the evidence led, briefly stated the plaintiffs case was that Omuo-Oke was a distinct town in Ondo State with its own paramount chief in the person of the plaintiff himself. According to the plaintiff the Western State Government in 1975 by Order published in the Gazette as Western State Legal Notice 31 of 1975. (WSLN.31 of 1975 for short) made the provisions of part II of the Chiefs Law applicable to the Olomuo-Oke of Omuo-Oke chieftaincy. By this Order the plaintiff said he became a paramount ruler of his community instead of a minor chief that he was. The Order took effect from 20th March, 1975.

The Gazette Notice was tendered in evidence as Exhibit A. Later in 1976 the same Western State Government also approved the appointment of the plaintiff as the Olomuo-Oke of Omuo-Oke with effect from 10th March, 1976. The approval notice was also published in the Gazette as the Western State Notice No. 183. It was Exhibit B in the proceedings. The plaintiff also tenders various documentary exhibits on the traditional history of Omuo-Oke to show that it is a distinct and separate town in Ondo State.

The defendants version on the other hand was that Omuo-Oke has no separate existence from Omuo and that there were no natural features demarcating it as such. That Omuo-Oke was just one of the quarters under Omuo. It was also the defendants case that although the Olomuo-Oke as a minor chief was recognised in 1975 as per Exhibit A, and that plaintiffs appointment was also recognised as such in 1976 as per Exhibit B, the plaintiff had along with some other recognized chiefs into Ondo State been de-recognised as per Western State Legal Notice No. 6 of 1976 (WSLN. 6 of 1976) and the Ondo State Legal Notice 23 of 1979 (ODSLN. 23 of 1979). Both the two legal notices were given the same commencement date of 5th February, 1976. They therefore took effect before the recognition of the appellant as a chief as per Exhibit B which took effect from 10th March 1976.

After due hearing the trial court in a reserved judgment dismissed all the claims against the defendants when it held as follows –

‘I prefer the evidence of records tendered by the witnesses for the defence that Omuo-Oke has always been a quarter in Omuo. This has always been the view of Omuo-Oke elements until the plaintiff began to nurse his ambition for paramountcy. The claim of paramountcy by the Olomuo-Oke led to the Ojuolape Commission of Inquiry and Government acceptance of the findings. I hold the same view as did Ojulape Commission that the claim of the Olomuo-Oke as an Oba is false. Omuo-Oke is not a separate town from Omuo.

In view of my conclusion I refuse to make the 1st, 2nd, 3rd and 4th Declarations sought by the plaintiff. I also refuse to grant him an injunction.’ Dissatisfied and aggrieved by the decision of the High Court, the plaintiff appealed to the Court of Appeal, Benin-City. Four issues were submitted for determination in that court. They were –

‘1. Whether Olomuo-Oke is the traditional and paramount ruler of Omuo-Oke Ekiti in Ondo State.

2. Whether Omuo-Oke is a distinct town in Ondo State.

3. Whether the findings and recommendations of Ojuolape Commission of Inquiry on the headship claim by Olomuo-Oke of Omuo-Oke and the comments of the Ondo State Government as contained in the white paper on the said recommendations are illegal, unconstitutional, null and void.

4. If the answer to the above is in the affirmative whether an injunctive relief should be granted to prevent the Ondo State Government from acting on the recommendations and the documents thereon.’

The Court of Appeal considered all the above issues and again dismissed the plaintiffs appeal. Uche Omo JCA., delivering the lead Judgment concluded thus.

‘To summarise, the issues for determination raised by the appellant having been decided against him, this appeal must fail and is hereby dismissed with costs to the 1st and 2nd respondents jointly and 3rd respondents jointly and the 3rd respondent assessed at N200.00 each.’

Further dissatisfied, the plaintiff has finally appealed to the Supreme Court. The parties filed and exchange briefs or argument which they relied on. The plaintiff will from now on referred to as ‘the appellant’ while the defendants will be referred to as ‘the respondents’

According to the appellants brief the issues for determination in this appeal are –

(1). Whether Omuo-Oke is a distinct town separate from and not forming part of Omuo town.

(2). Whether the Court of Appeal was right in holding that Olomuo-Oke of Omuo-Oke is not a traditional and paramount ruler of Omuo-Oke Ekiti in Ondo State.

(3). Whether the Legal Notices of 1976 and 1979 with their commencement dates as 5th February, 1976 effectively repealed Exhibit A&B.

(4). Whether the Court of Appeal is not wrong in holding that the findings and recommendations of Ojuolape Commission of Inquiry on headship claim by the Olomuo-Oke of Omuo-Oke and the comments of the Ondo State Government as contained in the White Paper on the said recommendation are not illegal, unconstitutional, null and void.

(5). Whether the Court of Appeal is right in its construction of the provision of S.37 of the 1979 Constitution by limiting its effect and operation to the individuals rights as against group rights.’

It would appear that issues (1), (2) and (4) are the same as issues (2), (1) and (3) respectively before the Court of Appeal. The only new issues raised in this Court are therefore clearly issues (3) and (5). I will therefore deal with issues 1, 2, and 4 together as they are interwoven and also interdependent. Issues 3 and 5 will then be taken separately.

Issues 1, 2, & 4.

The question raised by the first issue is whether Omuo-Oke is a distinct town separate from Omuo-town. The submissions of learned council can be summarised as follows:-

(a) No valid decision can be reached without first determining the characteristics of a town or a definition of the word ‘town’.

(b) From various dictionary definitions and having regard to the provisions of the Chiefs Law and the documentary exhibits before the trial court, it was clear that Omuo-Oke had for over hundred years been recognised as a distinct geographical unit with its distinct identity and name.

(c) Exhibits C – C14 support the independent nature of Omuo-Oke community which the Court of Appeal failed to consider, and instead wrongly placed reliance on Exhibit H to hold that Omuo-Oke was not a distinct and separate town from Omuo.

(d) Exhibit H offended Section 3 of the Illiterates Protection Act (Cap. 83) and should be expunged from the record. This is actually Section 3 of Illiterates Protection Law (Cap. 48) 1978 Laws of Ondo State.

(e) The evidence relied upon by the lower Courts did not support the decisions they reached. It is therefore a proper case for this Court to interfere with the concurrent findings.

Dealing with the same issue 1, the leaned trial judge said on Pages 165/66 of the record thus –

‘As to the submission that Omuo-Oke is a town independent of Omuo, no legal proof has been advanced to substantiate the assertion. The exhibits in support of road links and distances from Lokoja and other trading parts of the Niger and John Holts Companies, the importance of Omuo-Oke as a commercial centre and other records of the provincial administrators, were made by the authorities concerned for their commercial and administrative purposes. So too were the records of St. Silas School kept for the interest of the C.M.S. authorities who were the owners of the School.

I do not consider these records appropriate in assessing the independence of Omuo-Oke form the rest of Omuo. I reject the historical evidence of the plaintiff and hold that none of them has convinced me that Omuo-Oke was a separate town with its own paramount ruler. I also reject the evidence of the plaintiff that the Olomuo paid tribute to Olomuo-Oke. There was no support for the allegation.

I prefer the evidence of records tendered by the witnesses for the defence that Omuo-Oke has always been a quarter in Omuo. This has always been the view of Omuo-Oke elements until the plaintiff began to nurse the ambition for paramountcy.’

The Court of Appeal also given a negative answer to the issue observed on Pages 303 – 304 per Uche Omo JCA. thus-

‘In attacking this decision in his brief appellant set out the various legal dictionary definitions of a ‘town’ and the Chiefs Law, ending up with a submission that ‘any geographical unit, within a local government area that has a distinct geographical identity and name and a recognised chieftaincy is a town’ He then referred to ‘the avalanche of documentary evidence tendered by the plaintiff at the trial’ which he submitted ‘go to show that Omuo-Oke for over 100 years has been recognised as a town.’

He then referred to ‘the avalanche of documentary evidence tendered by the plaintiff at the trial’ which he submitted ‘go to show that Omuo-Oke for over 100 years has been recognized as a town.’ The many documents tendered by the appellant do go to show, without doubt, the tendered by the appellant do go to show, without doubt, the importance of Omuo-Oke as a trading station during the early colonial era. It seems to have owed this to its being situate at an important junction of roads. No where in these documents is there any categorical statement that Omuo-Oke is a different town from Onuo town. I refer to Exhibit F.

Where the Olomuo is described as Head Chief; and the Olomuo – Oke merely as a prominent Chief; Exhibit H, a most damming 1943 document, in which Omuo-Oke Chiefs, Elegbes and Elders (37 of them) vigorously stated Omuo-Okes claim to producing the next Olomuo of Omuo. Why this bid to fill then vacant chieftaincy post if Omuo-Oke is a separate town from Omuo!’

He concluded on Page 305 as follows –

‘I have carefully considered this issue and come to the conclusion that the findings of the learned trial judge in the High Court therein are correct and should not be disturbed.’

It is thus clear that it is not true to say that the Court of Appeal did not consider Exhibits C – C14 or any exhibit at all before arriving at its decision. Both the two lower Courts in fact did consider all the exhibits tendered by all the parties. The Court of Appeal also did not solely rely on Exhibit H to come to its conclusion that Omuo-Oke was not a distinct town from Omuo. Apart from Exhibit H which was described as ‘most damning 1943 document’, other exhibits including Exhibits F, G, H, J, N. and P amongst others, and oral evidence were also relied upon.

It would therefore in my view have made no difference to the conclusion arrived at by the lower Courts even if Exhibit H is expunged from the record. The fact that the exhibit was signed in places and thumbprinted in other places are not sufficient in my view to have rendered same null and void as contended by the appellants. In the first place, there was no evidence no record to show that the makers (appellants herein) were illiterates since there is nothing in law which prevents a literate person from affixing his thumb impression to a document, so also the mere fact that one is able to write or sign ones name on a document does not mean that one is literate.

An ‘illiterate person’ has been defined in the case of Ntiashagho v. Amodu (1959) WRNLR 273 as ‘a person who is unable to read with understanding, and to express his thoughts by writing, in the language used in the document made or prepared on his behalf.’ I endorse this definition. The question therefore of anyone being literate or illiterate cannot be presumed by the Court but is a matter to established by evidence, (See Edokpayi v. Oke (1964) NMLR 53).

The burden was on the appellants who objected to the document to prove that they as the makers were illiterate. They did not do that. I am clearly of the view therefore that Exhibit H was properly admitted in evidence.

The second issue is whether the Olomuo-Oke is a traditional and paramount ruler of Omuo-Oke in Ondo State by virtue of Exhibits A & B and on the strength of the traditional history led by the appellant at the trial. The contention here is that a recognised chief under the Chiefs Law is the paramount ruler of his community. As shown above the learned trial Judge had rejected the traditional evidence of the appellant that Omuo-Oke was a separate town with its own paramount ruler. He preferred the evidence of the respondents that Omuo-Oke has always been a quarter in Omuo and the Court of Appeal came to the conclusion that those findings by the High Court were proper and should not be disturbed. I think the Court of Appeal was right.

Turning to Exhibit A, The Recognised Chieftaincies (Amendment) Order 1975 (WSLW. 31 of 1975) the learned trial judge on Pages 158 – 159 said – ‘It must be pointed out that WSLN. 31 of 1975 was the order recognising the Olomuo-Oke chieftaincy….Chief Gani Fawehinmi learned counsel regarded the recognition of Olomuo-Oke as conferment of paramountcy on him.

There is nothing in law or in fact to justify that assumption. It is my view that the application of Part II of the Chiefs law 1958 did not confer paramountcy. By the same token the recognition of Olomuo-Oke by Order WSLN. 31 of 1975 did not confer paramountcy on him. Hew was recognised under part II of the Chiefs law only as many other chiefs in various Local Council area of the Western State of Nigeria were.’

And on Exhibit B, Approval of Appointment of Recognised Chief (Western State Notice No. 183), the learned trial judge stated-

‘The much cherished recognition having been conferred on the Olomuo-Oke chieftaincy, the present Olomuo-Oke was approved for appointment to that chieftaincy by the Western State Notice No. 183 which reads as follows –

‘Western State Notice No. 183′

The Chiefs Law (Cap. 19) It is hereby notified for public information that in exercise of the powers conferred on the Executive Council by sub-section 16 of the Chiefs Law, which powers have been delegated to me, and by virtue of all other powers in that behalf, the appointment of Mr. Valentine Adebayo Otitoju as the Olomuo-Oke of Omuo-Oke in the Ekiti Northern Local Government Council area, is hereby approved with effect from the 10th day of March, 1976.’

Dr. J.A. Atanda,

Commissioner for Local Government and Chieftaincy Affairs,

Ibadan 10th March, 1976.’

‘I hold that by the above approval the Olomuo-Oke became a recognised chief in Omuo-Oke, Not a paramount ruler of Omuo-Oke. I reject the submission of learned counsel that the application of Part II of the Chiefs Law makes the holder of a chieftaincy in respect of which an order is made the traditional and paramount ruler of the community in respect of which the ruler is made.’

The Court of Appeal agreed with the conclusion of the learned trial judge above when it held on page 306 that –

‘As observed by the learned trial judge, among the chieftaincies so recognised under the Omuo-Local Government District Council are besides the Olomuo of Omuo, Chiefs Odofin, Olisa, Elekota, Balogun Omuo, Oloroju and four others. These are all quarter or sectional chiefs and yet they are recognised. From this the learned trial judge came to the conclusion that ‘recognition’ is quite a different thing from ‘Paramountcy’ I would prefer to postulate that recognition by the government (per the Chiefs Law – Part II) does not automatically carry with it the status of a ‘paramount ruler’. It is agreed by all that by virtue of Exhibits A & B the appellant became a recognised chiefs.’

On the issue of the findings and recommendations of Ojuolape Commission of Inquiry and the comments of Ondo State Government as contained in the White Paper, the learned trial Judge found on Page 166 that – ‘I prefer the evidence of records tendered by the witness for the defence that Omuo-Oke has always been a quarter in Omuo; This has always been the views of Omuo-Oke elements until the plaintiff began to nurse his ambition for paramountcy. Olomuo-Oke led to the Ojuolape Commission of Inquiry and Government acceptance of the findings. I hold the same view as did Ojuolape Commission that the claim of the Olomuo-Oke as an Oba is false. Omuo-Oke is not a separate town from Omuo.’

The Court of Appeal again upholding the decision of the trial Court also said ‘The proponderance of evidence on the two main issues at stake, and the customary law relating thereto, in the view of the learned trial judge is a favour of the respondent. After no reason why this finding should be disturbed.’

Issue 1, 2, & 4 as I have demonstrate above are largely questions of fact. All these issues of facts have been considered both by the High Court and the Court of Appeal. It is settled that when two courts have examined issues of fact and made concurrent findings, the Supreme Court in the absence of error on the face of the record occasioning a miscarriage of justice will not dismiss those findings (see for example Chinwendu v. Mbamali (1980) 3 – 4 SC. 31, Ibodo & Ors. v. Enarofia & Ors (1980) 5 – 7 SC. 42, Overseas Construction Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407; Fasoro v. Abdallah (1987) 3 NWLR (Pt. 59) 134; Okonkwo v. Adigwu (1985) 1 NWLR (Pt. 4) 694.

I have myself carefully read through the record of proceeding in this case and have come to the conclusion that there was ample evidence in support of the findings made by the lower courts. I have found no reason to disturb those findings.

Issues 1, 2,& 4 therefore fail.

Issues 3 This is whether the Legal Notice of 1976 and 1979 with their commencement dates as 5th February, 1976 effectively repealed Exhibits A & B. The Appellant contended that they did not.

It will be recalled that Exh. A (WSLN. 31 of 1975) applied the provision s of Part II of the Chiefs Law to the Olomuo-Oke of Omuo-Oke chieftaincy, thus becoming a recognised chieftaincy. Exh. B. (Western State Notice No. 183) gave approval to the appointment of the appellant as the Olomuo-Oke of Omuo-Oke as a recognised chief. But Exhibits A & B as stated above have as their commencement dates 20/3/75 and 10/3/76 respectively.

However in 1976 the Western State Government promulgated ‘The Recognised Chieftaincies (Revocation and Miscellaneous Provisions) Order 1976 (WSLN.6 of 1976), by which it sought to de-recognise some recognised chieftaincies, one of which is the appellant’s. The commencement date was 5/2/76. After the creation of Ondo State, a similar Legal Notice, The Recognised Chieftaincies (Application) Order, 1979 (ODSLN.23 of 1979) was passed.

The commencement date was also 5.2.76. The latter also sought to de-recognise some recognised chieftaincies including the appellants. It is pertinent to say that both Legal Notices WSLN. 6 of 1976 and ODSLN. 23 of 1979 stated that the provisions of Part II of the Chiefs Law shall apply to any chieftaincy mentioned in the schedule to the Legal Notice, Neither of the two legal notices had Olomuo-Oke Chieftaincy under its schedule. The learned trial judge was compelled to observe on Page 163 of the record as follows –

‘I hold and believe that both orders WSLN. 6 of 1976 and ODSLN. 23 of 1979 are affirmation of the intention of the makers that Part II of the Chiefs Law ceased to apply to all chieftaincies except those listed in the schedule to the orders. In so far as the Olomuo-Oke chieftaincy was not contained in the schedule it ceased from February, 1976 to be recognised as a chieftaincy under Part II of the Chiefs Law’

The Court of Appeal on its own part had this to say – ‘Exhibits A & B are two very affirmative and specific pieces of legislation. While the first recognises the appellants chieftaincy under Part II of the Chiefs Law, the other conveys the approval of the Executive Council for its recognition … The 1976 notice is cited as Recognised Chieftaincies (Revocation and Miscellaneous Provisions) Order. The main aim is to revoke certain recognised chieftaincies….. It is common ground that the Olomuo-Oke chieftaincy is not one of those chieftaincies listed in the first column of the first schedule. The effect of this order therefore is to exclude it from the list of recognised chieftaincies. The 1979 notice …… whilst revoking the 1976 legislation specifically sets down those chieftaincies to which Part II of the Chiefs Law will henceforth apply in Ondo State…… It is not listed in the schedule to the said order.

It therefore follows that as far as Ondo State is concerned it is not one of the chieftaincies recognised under Part II of the Chiefs Law ….. I am therefore of the view that the learned trial judge was right when he heard that the 1976/1979 notices repealed Exhibits A & B, and I also so hold.’

I have not been persuaded by the arguments of learned counsel for the appellant in his brief that the conclusion arrived at by the lower courts was wrong. I agree with them that clearly the 1976/979 legal notices effectively repealed Exhibits A & B. Issue 3 also fails. Issue 5. This is the issue of whether the provision of section 37 of the 1979 Constitution applies only to individual and not the group rights of a quarters or town. The issue arose I think out of misconception of a passage in the lead judgment of Uche Omo, JCA., wherein he said on Page 324 of the judgment thus –

‘The answers to their submission briefly are:

(a) that what is primarily contemplated here is the right of an individual and not group rights of a quarter/town;

(b) that the 1976/1979 notices do not in any way interfere with the rights of the Omuo-Oke people to freedom of association. There is nothing preventing them from refusing to associate with the rest of Omuo socially, whilst the government reserves the right to treat them as part of Omuo for its own administrative purposes.’

It is clear at once that it is nowhere stated in the passage above that section 37 of the Constitution applies only to individuals and not to the group rights of a quarter or town. There is nothing in the passage read as a whole which suggests that town/quarter/group rights would not be recognised if and when one is shown to exist. On the contrary the passage recognised the right of Omuo-Oke people as a quarter or group to associate or not to associate with the rest of Omuo. Individuals in Omuo-Oke may likewise do the same. But as rightly put by the learned Justice of Appeal, it is the right of individuals that is of primary concern.

It is only when individuals join together or gang up to exercise their common rights together that one talks of group or quarter rights as such. But as rightly stated above the 1976/1979 notices do not in any way interfere with the freedom of association of Omuo-Oke people while the government reserves the right to treat them as part of Omuo for its own administrative purposes. That is how it should be. And I believe that is how it has been. This issue also fails.

In conclusion, all the issues for determination having been resolved against the appellant, this appeal fails and is hereby dismissed with costs of N1,000.00 each to the 1st and 2nd respondents jointly and to the 3rd respondent alone.

Other Citation: (1994) LCN/2640(SC)

His Highness V.A. Otitoju V. Governor Of Ondo State & Ors (1994)

LawGlobal-Hub Lead Judgment Report

KUTIGI, J.S.C.

Following the claim of the Olomuo-Oke of Omuo-Oke as the paramount Chief or Oba of Omuo-Oke, Ekiti. The Military Governor of Ondo State instituted a Judicial Commission of Inquiry headed by the Honourable Justice Ojuolape to investigate the claim. The Commission took evidence and later submitted its report to the 1st defendant herein who then issued a white paper dated August 1982. The white paper was admitted as Exhibit at the trial.

On Page 13 of Exhibit E the recommendations of the commission and the comments of the Ondo State Government were stated in part thus:

“15.0 Government views and comments on the Commission’s Recommendation:

15.1 Recommendation (i) that the claim of Olomuo-Oke as an Oba is false and should not be entertained either politically or administratively.

Comment:

Government accepts this recommendation.

15.2 Recommendation (ii) the Olomuo-Oke should be recognized as the head chief of Omuo-Oke under the paramountcy of the Olomuo who is the recognised Oba of Omuo.

Comment:

In the light of the Government’s decision on recommendation (i) above, the Olomuo-Oke will remain as the quarter head chief of Omuo-Oke quarter in Omuo under the paramountcy of the Olomuo of Omuo.”

Being aggrieved by the commission’s recommendations and the government’s comments thereon the plaintiff in the Ondo State High Court, holden at Akure, sued the defendants claiming in his writ of summons thus:

“1. A Declaration that Olomuo-Oke is the traditional and paramount ruler of Omuo-Oke Ekiti in Ondo State.

2. A Declaration that Omuo-Oke is a distinct town in Ondo State.
3. A Declaration that the findings and recommendations of Ojuolape Judicial Commission of Inquiry into the headship claim by the Olomuo-Oke of Omuo-Oke are contrary to the customary law of Omuo-Oke community and are therefore illegal and void and of no effect whatsoever.
4. A Declaration that the Ondo State Government’s views and comments on the said commission’s recommendations as contained in Ondo State of Nigeria White Paper on Ojuolape Judicial Commission of Inquiry are illegal, unconstitutional and of no effect whatsoever.
5. An Injunction restraining the Government of Ondo Sate, its servants, agents, privies and officers from acting on, executing, giving effect to or otherwise dealing with (to the detriment of the plaintiff) the said findings, recommendations, views and comments as contained in the Ondo State of Nigeria White Paper on Ojuolape Judicial Commission of Inquiry.”

Pleadings were ordered, filed and exchanged by the parties. An Amended Statement of Claim was filed by the plaintiff. The Ist and 2nd defendants also jointly filed an Amended Statement of Defence while the 3rd defendant filed his own Further Amended Statement of Defence. The case was fought on these new statements of claim and defence.

At the trial only the plaintiff testified for himself and on behalf of the people of Omuo-Oke Community. He tendered in evidence series of documentary exhibits. The defendants on the other hand called three witnesses and tendered some documents in evidence as well. From the pleadings of the parties and the evidence led, briefly stated the plaintiff’s case was that Omuo-Oke was a distinct town in Ondo State with its own paramount chief in the person of the plaintiff himself. According to the plaintiff the Western State Government in 1975 by Order published in the Gazette as Western State Legal Notice 31 of 1975. (W.S.L.N. 31 of 1975 for short) made the provisions of part II of the Chiefs Law applicable to the Olomuo-Oke of Omuo-Oke chieftaincy. By this Order the plaintiff said he became a paramount ruler of his community instead of a minor chief that he was. The Order took effect from 20th March, 1975.

The Gazette Notice was tendered in evidence as Exhibit A. Later in 1976 the same Western State Government also approved the appointment of the plaintiff as the Olomuo-Oke of Omuo-Oke with effect from 10th March, 1976. The approval notice was also published in the Gazette as the Western State Notice No. 183. It was Exhibit B in the proceedings. The plaintiff also tendered various documentary exhibits on the traditional history of Omuo-Oke to show that it is a distinct and separate town in Ondo State.

The defendants’ version on the other hand was that Omuo-Oke has no separate existence from Omuo and that there were no natural features demarcating it as such. That Omuo-Oke was just one of the quarters under Omuo. It was also the defendants’ case that although the Olomuo-Oke as a minor chief was recognised in 1975 as per Exhibit A, and that plaintiff’s appointment was also recognised as such in 1976 as per Exhibit B, the plaintiff had along with some other recognised chiefs in Ondo State been de-recognised as per Western State Legal Notice No.6 of 1976 (W.S.L.N. 6 0f 1976) and the Ondo State Legal Notice 23 of 1979 (O.D.S.L.N. 23 of 1979). Both the two legal notices were given the same commencement date of 5th February, 1976. They therefore took effect before the recognition of the appellant as a chief as per Exhibit B which took effect from 10th March, 1976.

After due hearing the trial court in a reserved judgment dismissed all the claims against the defendants when it held as follows-

“I prefer the evidence of records tendered by the witnesses for the defence that Omuo-Oke has always been a quarter in Omuo. This has always been the view of Omuo-Oke elements until the plaintiff began to nurse his ambition for paramountey. The claim of paramountey by the Olomuo-Oke led to the Ojuolape Commission of Inquiry and Government acceptance of the findings. I hold the same view as did Ojuolape Commission that the claim of the Olomuo- Oke as an Oba is false. Omuo-Oke is not a separate town from Omuo.

In view of my conclusion I refuse to make the 1st, 2nd, 3rd and 4th Declarations sought by the plaintiff. I also refuse to grant him an injunction.”

Dissatisfied and aggrieved by the decision of the High Court, the plaintiff appealed to the Court of Appeal, Benin-City. Four issues were submitted for determination in that court. They were –

“1. Whether Olomuo-Oke is the traditional and paramount ruler of Omuo-Oke Ekiti in Ondo State.

2. Whether Omuo-Oke is a distinct town in Ondo State.
3. Whether the findings and recommendations of Ojuolape Commission of Inquiry on the headship claim by Olomuo-Oke of Omuo-Oke and the comments of the Ondo State Government as contained in the white paper on the said recommendations are illegal, unconstitutional, null and void.
4. If the answer to the above is in the affirmative whether an injunctive relief should be granted to prevent the Ondo State Government from acting on the recommendations and the documents thereon.”

The Court of Appeal considered all the above issues and again dismissed the plaintiff’s appeal. Uche Omo J.C.A., delivering the lead Judgment concluded thus –

“To summarize, the issues for determination raised by the appellant having been decided against him, this appeal must fail and is hereby dismissed with costs to the 1st and 2nd respondents jointly and the 3rd respondent assessed at N200.00 each.”

Further dissatisfied, the plaintiff has finally appealed to the Supreme Court. The parties filed and exchanged briefs of argument which they relied on. The plaintiff will from now on be referred to as “the appellant” while the defendants will be referred to as “the respondents.”

According to the appellant’s brief the issues for determination in this appeal are:

1. Whether Omuo-oke is a distinct town separate from and not forming part of Omuo town.
2. Whether the Court of Appeal was right in holding that Olomuo-Oke of Omuo-Oke is not a traditional and paramount ruler of Omuo-Oke Ekiti in Ondo State.
3. Whether the Legal Notices of 1976 and 1979 with their commencement dates as 5th February, 1976 effectively repealed Exhibit A & B.
4. Whether the Court of Appeal is not wrong in holding that the findings and recommendation of Ojuolape Commission of Inquiry on head ship claim by the Olomuo-Oke of Omuo-Oke and the comments of the Ondo State Government as contained in the White Paper on the said recommendation are not illegal, unconstitutional, null and void.
5. whether the court of Appeal is right in its construction of the provision of S.37 of the 1979 Constitution by limiting its effect and operation to the individual’ rights as against group rights.-

It would appear that issues (1), (2) and (4) are the same as issue (2), (1) and (3) respectively before the Court of Appeal. The only new issues raised in this Court are therefore clearly issues (3) and (5). I will therefore deal with issues 1, 2 and 4 together as they are interwoven and also interdependent Issues 3 and 5 will then be taken separately.

The question raised by the first issue is whether Omuo-Oke is a distinct town separate from Omuo-town. The submission of learned counsel can be summarized as follows:

(a) No valid decision can be reached without first determining the characteristics of a town or a definition of the word “town”.

(b) From various dictionary definitions and having regard to the provisions of the Chiefs Law and the documentary exhibits before the trial court, it was clear that Omuo-Oke had for over hundred years been recognised as a distinct geographical unit with its distinct identity and name.

(c) Exhibits C – C14 support the independent nature of Omuo-Oke community which the Court of Appeal failed to consider, and instead wrongly placed reliance on Exhibit H to hold that Omuo-Oke was not a distinct and separate town from Omuo.

(d) Exhibit H offended Section 3 of the Illiterates Protection Act (Cap.83) and should be expunged from the record. This is actually Section 3 of Illiterates Protection Law (Cap. 48) 1978 Laws of Ondo State.

(e) The evidence relied upon by the lower Courts did not support the decision they reached. It is therefore a proper case for this Court to interfere with the concurrent findings.

Dealing with the same issue 1, the learned trial judge said on pages 165/166 of the record thus-

As to the submission that Omuo-Oke is a town independent of Omuo, no legal proof has been advanced to substantiate the assertion. The exhibits in support of road links and distances from Lokoja and other trading parts of the Niger and John Holts Companies, the importance of Omuo-Oke as a commercial centre and other records of the provincial administrators, were made by the authorities concerned for their commercial and administrative purposes. So too were the records of St. Silas School kept for the interest of the C.M.S. Authorities who were the owners of the School. I do not consider these records appropriate in assessing the independence of Omuo-Oke from the rest of Omuo. I reject the historical evidence of the plaintiff and hold that none of them has convinced me that Omuo-Oke was a separate town with its own paramount ruler. I also reject the evidence of the plaintiff that the Olomuo paid tribute to Olomuo-Oke. There was no support for the allegation.

I prefer the evidence of records tendered by the witnesses for the defence that Omuo-Oke has always been a quarter in Omuo. This has always been the view of Omuo-Oke elements until the plaintiff began to nurse the ambition for paramountcy.”

The Court of Appeal also giving a negative answer to the issue observed on Pages 303 – 304 per Uche Omo J.CA. thus –

“In attacking this decision in his brief, appellant set out the various legal dictionary definitions of a “town” and the Chiefs Law, ending up with a submission that “any geographical unit, within a local government area that has a distinct geographical identity and name and a recognized chieftaincy is a town”. He then referred to “the avalanche of documentary evidence tendered by the plaintiff at the trial” which he submitted “go to show that Omuo-Oke for over 100 years has been recognized as a town.” The many documents tendered by the appellant do go to show, without doubt, the importance of Omuo-Oke as a trading station during the early colonial era. It seems to have owed this to its being situate at an important junction of roads. No where in these documents is there any categorical statement that Omuo-Oke is a different town from Omuo town.

The respondents on the other hand have been able to tender various documents which assert that Omuo-Oke is a part of Omuo-town. I refer to Exhibit F. where the Olomuo is described as Head Chief; and the Olomuo – Oke merely as a prominent Chief; Exhibit H, a most damning 1943 document, in which Omuo-Oke Chiefs, Elegbes and Elders (37 of them) vigorously stated Omuo-Oke’s claim to producing the next Olomuo of Omuo. Why this bid to fill the then vacant chieftaincy post if Omuo-Oke is a separate town from Omuo!”

He concluded on Page 365 as follows-

“I have carefully considered this issue and come to the conclusion that the findings of the learned trial judge in the High Court therein are correct and should not be disturbed. ”

It is thus clear that it is not true to say that the Court of Appeal did not consider Exhibits C-C14 or any exhibit at all before arriving at its decision. Both the two lower Courts in fact did consider all the exhibits tendered by all the parties. The Court of Appeal also did not solely rely on Exhibit H to come to its conclusion that Omuo-Oke was not a distinct town from Omuo. Apart from Exhibit H which was described as “most damning 1943 document”, other exhibits including Exhibits F, G, H, J. N. and P amongst others, and oral evidence were also relied upon. It would therefore in my view have made no difference to the conclusion arrived at by the lower Courts even if Exhibit H is expunged from the record. The fact that the exhibit was signed in places and thumb printed in other places are not sufficient in my view to have rendered same null and void as contended by the appellants. In the first place, there was no evidence on record to show that the makers (appellants herein) were illiterates since there is nothing in law which prevents a literate person from affixing his thumb impression to a document, so also the mere fact that one is able to write or sign one’s name on a document does not mean that one is literate. An “illiterate person” has been defined in the case of Ntiashagho v. Amodu (1959) WRNLR 273 as “a person who is unable to read with understanding and to express his thoughts by writing, in the language used in the document made or prepared on his behalf.” I endorse this definition. The question therefore of anyone being literate or illiterate cannot be presumed by the Court but is a matter to be established by evidence, (See Edokpayi v. Oke (1964) N.M.L.R. 53). The burden was on the appellants who objected to the document to prove that they as the makers were illiterate. They did not do that. I am clearly of the view therefore that Exhibit H was properly admitted in evidence.

The second issue is whether the Olomuo-Oke is a traditional and paramount ruler of Omuo-Oke Ekiti in Ondo State by virtue of Exhibits A & B and on the strength of the traditional history led by the appellant at the trial. The contention here is that a recognised chief under the Chiefs Law is the paramount ruler of his community. As shown above the learned trial Judge had rejected the traditional evidence of the appellant that Omuo-Oke was a separate town with its own paramount ruler. He preferred the evidence of the respondents that Omuo-Oke has always been a quarter in Omuo and the Court of Appeal came to the conclusion that those findings by the High Court were proper and should not be disturbed. I think the Court of Appeal was right.

Turning to Exhibit A, The Recognised Chieftaincies (Amendment) Order 1975 (W.S.L.W. 31 of 1975) the learned trial judge on Pages 158 -159 said “It must be pointed out that W.S.L.N. 31 of 1975 was the order recognising the Olomuo-Oke chieftaincy. Chief Gani Fawehinmi learned counsel regarded the recognition of Olomuo-Oke as conferment of paramountcy on him. There is nothing in law or in fact to justify that assumption. It is my view that the application of Part II of the Chiefs law 1958 did not confer paramountey. By the same token the recognition of Olomuo-Oke by Order W.S.L.N. 31 of 1975 did not confer paramountcy on him. He was recognised under

part II of the Chiefs law only as many other chiefs in various Local Council area of the Western State of Nigeria were.” And on Exhibit B, Approval of Appointment of Recognised Chief (Western State Notice No. 183), the learned trial judge stated –

“The much cherished recognition having been conferred on the Olomuo-Oke chieftaincy, the present Olomuo-Oke was approved for appointment to that chieftaincy by the Western State Notice No.183 which reads as follows –

“Western State Notice No. 183″

The Chiefs Law (Cap.19)

It is hereby notified for public information that in exercise of the powers conferred on the Executive Council by sub-section 16 of the Chiefs Law, which powers have been delegated to me, and by virtue of all other powers in that behalf, the appointment of Mr. Valentine Adebayo Otitoju as the Olomuo-Oke of Omuo-Oke in the Ekiti Northern Local Government Council area, is hereby approved with effect from the 10th day of March, 1976.”

Dr. J. A. Atanda, Commissioner for Local Government and Chieftaincy Affairs, Ibadan 10th March, 1976″.

“I hold that by the above approval the Olomuo-Oke became a recognised chief in Omuo-Oke, Not a paramount ruler of Omuo-Oke. I reject the submission of learned counsel that the application of Part II of the Chiefs Law makes the holder of a chieftaincy in respect of which an order is made the traditional and paramount ruler of the community in respect of which the ruler is made.”

The Court of Appeal agreed with the conclusion of the learned trial judge above when it held on page 306 that-

“As observed by the learned trial judge, among the chieftaincies so recognised under the Omuo-Local Government District Council are besides the Olomuo of Omuo, Chiefs Odofin, Olisa, Elekota, Balogun Omuo, Oloroju and four others. These are all quarter or sectional chiefs and yet they are recognised. From this the learned trial judge came to the conclusion that “recognition” is quite a different thing from “paramountcy”. I would prefer to postulate that recognition by the government (per the Chiefs Law – Part II) does not automatically carry with it the status of a “paramount ruler”. It is agreed by all that by virtue of Exhibits A & B the appellant became a recognised chiefs.”

On the issue of the findings and recommendations of Ojuolape Commission of inquiry and the comments of Ondo State Government as contained in the White Paper, the learned trial Judge found on Page 166 that-

“I prefer the evidence of records tendered by the witness for the defence that Omuo-Oke has always been a quarter in Omuo; This has always been the view of Omuo-Oke elements until the plaintiff began to nurse his ambition for paramountcy. Olomuo-Oke led to the Ojuolape Commission of Inquiry and Government acceptance of the findings. I hold the same view as did Ojuolape Commission that the claim of the Olomuo-Oke as an Oba is false. Omuo-Oke is not a separate town from Omuo.”

The Court of Appeal again upholding the decision of the trial Court also said “The preponderance of evidence on the two main issues at stake, and the customary law relating thereto, in the view of the learned trial judge is in favour of the respondent. After considering the evidence I am inclined to agree with him and find no reason why his finding should be disturbed.”

Issues 1, 2, & 4 as I have endeavoured to demonstrate above are largely questions of fact. All these issues of facts have been considered both by the High Court and the Court of Appeal. It is settled that when two courts have examined issues of fact and made concurrent findings, the Supreme Court in the absence of error on the face of the record occasioning a miscarriage of justice will not dismiss those findings (see for example Chinwendu v. Mbamali (1980) 3 – 4 SC. 31, Ibodo & Ors. v. Enarofia & Ors. (1980) 5 – 7 SC. 42, Overseas Construction Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt. 13)407; Fasoro v.Abduliah (1987) 3 NWLR (Pt. 59) 134; Okonkwo v. Adigwu (1985) 1 NWLR (Pt. 4) 694.

I have myself carefully read through the record of proceeding in this case and have come to the conclusion that there was ample evidence in support of the findings made by the lower courts. I have found no reason to disturb those findings. Issues 1, 2 & 4 therefore fail.

Issue 3

This is whether the Legal Notices of 1976 and 1979 with their commencement dates as 5th February, 1976 effectively repealed Exhibits A & B. The Appellant contended that they did not.

It will be recalled that Exh. A (W.S.L.N. 31 of 1975) applied the provisions of Part II of the Chiefs Law to the Olomuo-Oke of Omuo-Oke chieftaincy, thus becoming a recognised chieftaincy. Exh. B. (Western State Notice No. 183) gave approval to the appointment of the appellant as the Olomuo-Oke of Omuo-Oke as a recognised chief. But Exhibits A & B as stated above have as their commencement dates 20/3/75 and 10/3/76 respectively.

However in 1976 the Western State Government promulgated “The Recognised Chieftaincies (Revocation and Miscellaneous Provisions) Order 1976 (W.S.L.N. 6 of 1976), by which it sought to de-recognise some recognized chieftaincies, one of which is the appellant’s. The commencement date was 5/2/76. After the creation of Ondo State, a similar Legal Notice, The Recognised Chieftaincies (Application) Order, 1979 (O.D.S.L.N. 23 of 1979) was passed. The commencement date was also 5/2/76. The latter also sought to de-recognise some recognised chieftaincies including the appellant’s. It is pertinent to say that both Legal Notices W.S.L.N. 6 of 1976 and O.D.S.L.N. 23 of 1979 stated that the provisions of Part II of the Chiefs Law shall apply to any chieftaincy mentioned in the schedule to the Legal Notices. Neither of the two legal notices had Olomuo-Oke Chieftaincy under its schedule. The learned trial judge was compelled to observe on Page 163 of the record as follows:

“I hold and believe that both orders W.S.L.N. 6 of 1976 and O.D.S.L.N. 23 of 1979 are affirmation of the intention of the makers that Part II of the Chiefs Law ceased to apply to all chieftaincies except those listed in the schedule to the orders. In so far as the Olomuo-Oke chieftaincy was not contained in the schedule it ceased from February, 1976 to be recognised as a chieftaincy under Part II of the Chiefs Law.”

The Court of Appeal on its own part had this to say-

“Exhibits A & B are two very affirmative and specific pieces of legislation. While the first recognises the appellant’s chieftaincy under Part II of the Chiefs Law, the other conveys the approval of the Executive Council for its recognition … The 1976 notice is cited as Recognised Chieftaincies (Revocation and Miscellaneous Provisions) Order. The main aim is to revoke certain recognised chieftaincies…. It is common ground that the Olomuo-Oke chieftaincy is not one of those chieftaincies listed in the first column of the first schedule. The effect of this order therefore is to exclude it from the list of recognised chieftaincies. The 1979 notice … whilst revoking the 1976 legislation specifically sets down those chieftaincies to which Part II of the Chiefs Law will henceforth apply in Ondo State … It is also not in dispute that the Olomuo Oke of Omuo-Oke chieftaincy is not listed in the schedule to the said order. It therefore follows that as far as Ondo State is concerned it is not one of the chieftaincies recognised under Part II of the Chiefs Law … I am therefore of the view that the learned trial judge was right when he held that the 1976/1979 notices repealed Exhibits A & B, and I also so hold.”

I have not been persuaded by the arguments of learned counsel for the appellant in his brief that the conclusion arrived at by the lower courts was wrong. I agree with them that clearly the 1976/1979 legal notices effectively repealed Exhibits A & B. Issue 3 also fails.

Issue 5

(a) This is the issue of whether the provision of section 37 of the 1979 Constitution applies only to individuals and not the group rights of a quarters or town. This issue arose I think out of misconception of a passage in the lead judgment of Uche Omo, J,.C.A., wherein he said on Page 324 of the judgment thus –

“The answers to their submission briefly are:

(a) that what is primarily contemplated here is the right of an individual and not the group rights of a quarter/town;

(b) That the 1976/1979 notices do not in any way interfere with the rights of the Omuo-Oke people to freedom of association. There is nothing preventing them from refusing to associate with the rest of Omuo socially, whilst the government reserves the right to treat them as part of Omuo for its own administrative purposes.”

It is clear at once that it is nowhere stated in the passage above that section 37 of the Constitution applies only to individuals and not to the group rights of a quarter or town. There is nothing in the passage read as a whole which suggests that town/quarter/group rights would not be recognised if and when one is shown to exist. On the contrary the passage recognised the right of Omuo-Oke people as a quarter or group to associate or not to associate with the rest of Omuo. Individuals in Omuo-Oke may likewise do the same.

But as rightly put by the learned Justice of Appeal, it is the right of individuals that is of primary concern. It is only when individuals join together or gang up to exercise their common rights together that one talks of group or quarter rights as such. But as rightly stated above the 1976/1979 notices do not in any way interfere with the freedom of association of Omuo-Oke people while the government reserves the right to treat them as part of Omuo for its own administrative purposes. That is how it should be. And I believe that is how it has been. This issue also fails.

In conclusion, all the issues for determination having been resolved against the appellant, this appeal fails and is hereby dismissed with costs of N1,000.00 each to the Ist and 2nd respondents jointly and to the 3rd respondent alone.

SC.269/1990

Marcus Nwoke & Ors V. Ahiwe Okere & Ors (1994)

LawGlobal-Hub Lead Judgment Report

KUTIGI, J.S.C. 

The plaintiffs’ claims against the defendants as contained in para. 25 of the Amended Statement of Claim (which supersedes the writ), are as follows-

“1. Declaration of title to all that piece or parcel of land in dispute known as and called “Okpuhu-Ukwu”.

2. N400.00 being general damages for trespass into the said Okpuhu-Ukwu land.
3. Perpetual injunction restraining the defendants their agents or servants from further trespass thereto.”

After the filing and exchange of pleadings by the parties the case proceeded to trial. At the trial the 3rd plaintiff and four other witnesses testified for the plaintiffs while the 5th defendant along with three other witnesses testified in support of defendants’ case.

Briefly stated the plaintiffs’ case is that the land in dispute known as Okpuhu-Ukwu and delineated in their survey plan, Exhibit A, was founded by their first ancestor called Odudu. Odudu had two children named Emereonye and Nkitaogu respectively who begot their own children. The plaintiffs said they are claiming through Emereonye family. All the male issues of Nkitaogu had died and consequently all his property was inherited by the Emereonye family. The land in dispute was also pledged at one time to one Elele. The pledge was redeemed for an equivalent sum of N80.00 by plaintiffs’ family in 1974.

In 1975 the plaintiffs exchanged the land for another land called Oboro following an arrangement between them and Umukube family of Umuokwa village in Amala. When members of the latter family went on the land they were challenged by the defendants. The plaintiffs intervened saying that they gave the land to the Umukube family. The dispute between the plaintiffs and the defendants was then referred to the Parents Teachers Association (P.T.A. for short), a body consisting of the elders of the community. The body went into the dispute and the plaintiffs had to swear to” Ala Obidi juju” supplied by the defendants that the land was theirs.

The plaintiffs survived the oath for one year and the land became theirs according to the Igbo custom. A document evidencing the arbitration by the P.T.A was tendered and admitted in evidence as Exhibit C. It was in 1976 when the defendant broke into the land in dispute and started farming thereon that the plaintiffs instituted this action.

The defendants on the other hand said the land in dispute is called OkpuUku-Amankwu. Their survey plan, Exhibit B. shows the land in dispute in two parts -one portion larger than the other. The larger portion they said belong to them while the smaller portion was conceded to the plaintiffs. They claim the larger portion through their ancestors Ezeme, who deforested it. They also claim to have pledged and redeemed the land in dispute in 1971 and tendered ‘Exhibit D’ as evidence thereof. They also confirmed the intervention by the Amala Parent Teachers Association in a dispute between them and the plaintiffs in 1975. However, they said when the “Ala Obidi juju” oath was offered to the plaintiffs they refused to swear and according to custom the land was confirmed as theirs (defendants).

After hearing, the learned trial Judge in a reserved judgment dismissed plaintiffs’ claims. Dissatisfied with the judgment they appealed to the Court of Appeal, Port Harcourt Division. Four issues were set down for determination as follows-

“Issue One

Did the appellants prove the identity and precise boundaries of the land in dispute in this case

Issue Two

Which land was pledged and redeemed Who pledged and redeemed the said land

Issue 3

Was there a native arbitration over the land in dispute in this case If there was, who won in the said arbitration Does the said arbitration operate, as an estoppel per rem judicatam in this case

Issue Four

Which of the two competing stories of the parties is the more probable

If the plaintiffs were, were they not entitled to the judgment of the court below in terms of the reliefs claimed by them”

The Court of Appeal in a reserved judgment carefully considered each of the above issues and found all in favour of the plaintiffs. It declared-

“As all the grounds of appeal canvassed succeed, this appeal too succeeds and it is hereby allowed. The judgment of the court below together with its order for costs is set aside. In its place, I order that judgment be entered in appellants’ favour for;

1. A declaration that the plaintiffs are entitled to a customary right of occupancy to all that piece or parcel of land known as ‘Okpuhukwu’ situate and being at Amala shown and delineated on Survey plan No. UND/9/77 (Exhibit A in these proceedings) and therein edged ‘pink’ .
2. N200 being general damages for trespass committed on the said land by the defendants.
3. An injunction restraining the defendants, their agents or servants from committing further trespass on the said land.

The appellants are entitled to their costs of this appeal and of the costs in the court below which I assess at N650 and N450 respectively inclusive of out of pocket expenses.”

Aggrieved by the decision of the Court of Appeal, the defendants have now appealed to this court. They will hereinafter be referred to as “the appellants” while the plaintiffs will be referred to as “the respondents”.

In accordance with the Rules of Court, parties filed and exchanged briefs which were adopted at the hearing of the appeal. In the appellants, brief three issues are submitted for determination. They are-

(i) Whether the trial court was right in finding for the appellants on the issue of the identity and boundaries of the land in dispute which it held the respondents did not prove and whether the Court of Appeal was right in reviewing that finding in favour of the respondents, merely because the respondents’ plan (Exhibit A) shows a well defined land mass to which a declaration could be attached.

(ii) Whether the trial court was right in finding as a fact that the respondents did not swear to any juju on the issue of customary arbitration on the land in dispute and whether the Court of Appeal was not wrong in reviewing that decision on the ground that the court did not evaluate the evidence of the parties.

(iii) Whether the trial court was right in deciding in favour of the appellants on the ground that the respondents did not prove title to the entire land in dispute, and whether the Court of Appeal was not wrong in reviewing that decision.

Issues (i) & (iii) which are interdependent will be taken together while issue (ii) will be treated separately.

Issues (i) & (iii)

Mr Iwuji learned counsel for the appellant has in his brief argued that respondents’ evidence on boundary being inconclusive as found by the learned trial judge, the conclusion is that the identity of the land in dispute was not established. The trial court was therefore right when it dismissed respondents claims. It was argued that no declaration can be granted based on the respondents’ survey plan (Exhibit A) which failed to show the existence of any boundary between their land and appellants’ land. It also omitted to show all essential features as depicted in the appellants, survey plan (Exhibit B). He said there was nothing on Exhibit A to show that the respondents were in exclusive possession and use of the entire land in dispute. The Court of Appeal was therefore wrong to have reversed the findings of the trial court in favour of the respondents. He cited Okorie & Ors v. Philip Udom & Ors (1960) 5 FSC. 162; (1960) SCNLR 362 in support.

Mr Nsofor for the respondents on the other hand submitted that a careful look at the two plans, Exhibit A & B, filed by the parties respectively reveal that the identity of the land in dispute is very clear and certain. He said the main difference between the two plans is that while the respondents’ Exhibit A show the land in dispute as one continuous piece of land, the appellants’ Exhibit B, shows the land as consisting of two unequal piece of land and conceding the small piece thereof to the respondents. He said the respondents gave evidence which was in accord with their plan and submitted that in any case where features shown on a plan are not made issues on the pleadings, mere tendering of the plan is sufficient and the features need not be proved. He referred to cases of Omoregie & Ors v. Idugiemnwanye (1985) 2 NWLR (p.5) 41. Ezeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 208 Okechukwu v. Okafor (1961) All NLR 85; (1961) 2 SCNLR 369.

It was further submitted that since the appellants did not counter-claim, the land in dispute must be as shown in the respondent’s plan and that the said plan and evidence led thereon show identifable land mass to which a declaration and injunction could be attached. The Court of Appeal was therefore right to have granted the declaration and injunction in favour of the respondents.

In coming to the conclusion that respondents evidence on boundary was inconclusive, the learned trial Judge on p.134 of the record said-

“On the evidence of witnesses so far reviewed, I am convinced that there is a boundary between plaintiffs and defendants on the land in dispute. The plaintiffs tendered their survey plan of the land in dispute (Exhibit A). I have examined it. It is silent on these details. Then there is the conflicting evidence of Donatus Nwafor (P.W.3) who, in answer to cross-examination stated, inter alia as follows-

“Our land near the land in dispute was inherited by my father from his father. It was not given to us by anybody. I do not know if this our land was got from the plaintiffs as they indicated on their

Exhibit A. My father did not tell me that this our land was got from plaintiffs …….I don’t know if defendants have land having common boundary with the land in dispute. There is no road from Umuekpu to the land in dispute. I know the land in dispute very well. The defendants have no land having common boundary with the land in dispute anywhere.”

To me the evidence on boundary is inconclusive and does not meet the degree of certainty required in these matters.”

The Court of Appeal on the other hand per Ogundare J .C.A.(as he then was) found on page 213 of the record thus

“A close look at the land said to be in dispute in both plans will show on almost identical land on both plans. Indeed respondents’ case is that both of them own different portions of land as against appellants’ claim that they own the whole land. After a careful consideration of the evidence as a whole together with the plans tendered, I am not prepared to say as the learned trial Judge, with respect to him, erroneously held that appellants’ evidence on boundary is inconclusive and does not meet the degree of certainty required in these matters’. On the contrary, the appellants, in my respectful view, proved with certainty the identity of the land to which they claimed and in respect of which they sought a declaration. It is for the respondents who assert title to a part of the land in dispute to prove the identity of the particular portion they laid claim to – see Oyude v. Ogbedegbe (1984) 1 SC. 360. This is more so in this case where they conceded part of the land to belong to the appellants. With profound respect to the learned trial Judge, he laboured under a misconception that the appellants were claiming a part of the land in dispute. Certainly that was not their case but the case of the respondents.”

It is settled law that it is the duty of a plaintiff who comes to court to seek for a decree of declaration of title to land to show the court clearly and accurately the area of land to which his or her claim relates and usually (though not always) a plan is necessary for the purpose. Such a plan must also show clearly the dimensions of the land the boundaries and other salient features thereof. Elias v. Omo-bare (1982) 5 SC 25, Arabe v. Asanlu (1980) 5-7 SC. 78, Etim v. Oyo (1978) 6-7 SC. 91 Udofia v. Afia 6 WACA 216).

The respondents had pleaded in para.4 of their Amended Statement of Claim that-

“4. The land subject matter of this action hereinafter called the land in dispute, is a part of or a portion of a larger piece or parcel of land situate in Amala ……and is known and called “Okpuku-Ukwu”.

The precise boundaries of the land in dispute are clearly delineated in the Survey Plan No. UND/9/77 filed along with this statement of claim. The Okpuku-Ukwu land of which a portion is now in dispute is verged green whilst the portion thereof now in dispute is verged pink. At the trial the plaintiffs shall found on the boundaries of the land in dispute as delineated in the said plan No. UND/9/77.”

The plan mentioned therein is Exhibit B in the proceedings. In their Amended Statement of Defence the appellant pleaded in para.3 thus-

“3. The defendants deny para.4 of the Amended Statement of Claim. The land in dispute is in two portions: namely, the small portion verged blue in the defendants’ plan and the large portion verged yellow in the defendants’ Amended plan. The small portion verged blue aforesaid is part of the plaintiffs land which had common boundary on the east with the defendants’ land verged green in the defendants’ Amended plan. The large area verged yellow in the defendants’ Amended plan is part of defendants land verged green in their said plan.”

The plan referred to above is also Exhibit B in the proceedings. So clearly as submitted by learned counsel for the respondents, the features on the plan Exhibit A were never put in issue on the pleadings and so the question of proving them did not arise. And as rightly stated by the Court of Appeal it was never the respondents’ case that the appellants were entitled to any portion of the land in dispute, but rather it was the appellants who conceded part of the land in dispute to the respondents. The respondents did not therefore have to prove the feature of any boundary between them and the appellants on the land in dispute. I found myself in complete agreement with the Court of Appeal that the evidence of the witnesses for the respondents is generally in line with their plan, Exhibit A, and even the testimony of P.W.3 which the learned trial Judge regarded as conflicting, was clearly to the effect that the land in dispute belonged to the respondents and that the appellants had no land having a common boundary with the land in dispute. I am therefore clearly of the view that the Court of Appeal was right when it held that the respondents’ Plan (Exhibit A) showed a well defined land mass to which a declaration could be attached. In fact both the two plans (Exhibits A & B) as earlier observed, are almost identical, apart from the concession made to the respondents by the appellants in their plan Exhibit B. In other words the parties themselves know the identity of the land in dispute. Also having demonstrated above how the trial court wrongly dismissed respondents’ claims on the ground that “the evidence of boundary is inconclusive”, the Court of Appeal was quite in order for holding that the respondents proved their title to the land in dispute. Both issues (i) and (iii) are therefore resolved against the appellants.

Issue (ii)

This is the issue of whether or not the respondents did swear and took oath by “Ala-Obibi” juju in the course of arbitration. It would be recalled that a dispute arose between the respondents and the appellants in 1975 when the respondents tried to exchange the land in dispute or part of it, for another land called Obora, following an arrangement between them and the Umukube family of Umuokwa village in Amala. The exchange arrangement was aborted and the dispute between the respondents and appellants was then referred to the Parents Teachers Association (PTA.) of Amala a body consisting of elders and councillors of the community. The body went into the dispute. The respondents said the PTA. asked them (respondents) to swear on a “juju” supplied by the appellants. The respondents took the oath and survived it for one year after which the land was adjudged to belong to them according to Igbo custom. A document evidencing the arbitration by the P.T.A. was tendered in evidence as Exhibit C. The appellants on the other hand said that when the PTA. offered the “juju” oath to the appellants, they refused to take the oath and the matter was abandoned and they held onto the land. So what was in dispute at the trial was clearly the result if any of the “arbitration” by the Amala P.T.A.

The learned trial Judge on the question of arbitration said on page 136 of the record thus-

“On the question of arbitration and the taking of oath on some juju, I do not believe the plaintiffs took any oath. It is my finding that of the two competing stories regarding the ownership of the land as given by the plaintiffs and their witnesses on the one side and the defendants and their witnesses on the other, the defendants’ story is the more probable and I prefer it.”

Reversing the above finding, the Court Appeal (per Ogundare, J.CA.) after going through relevant pleadings and evidence thereon observed on pages 235-236 of the record that-

“While the witnesses for the appellants were emphatic as to the conclusion of the native arbitration, the same cannot be said of the witnesses for the respondents. According to the Amended Statement of Defence, the arbitration was inconclusive ………The evidence of the 5th respondent was along this line. He however admitted that the head of his family at the time, Egbulike Nwoke (3rd defendant but now deceased) brought out the” Ala-Obibi ” juju on the land for the appellants to swear. D.W.2’s version of the arbitration was that following the refusal of the appellants to take the juju oath, the PTA adjudged the land to the respondents. This witness claimed to have presided over the arbitration proceedings. He was not sure if the respondents produced the “Ala-Obibi” juju. Although the respondents in paragraph 27 of their Amended Statement of Defence pleaded, inter alia that-

“The records of the PTA. on this matter is pleaded and will be founded upon at the trial.”

Yet no such records were produced. This pleading however is an admission that records of the arbitration were made. The appellants produced Exhibit C as the records. Other than saying that Exhibit C was a forgery, no attempt was made by the respondents to prove – this serious allegation. Had the learned trial judge properly evaluated the evidence before him and had he adverted his mind to all the salient points, he would not have rejected, as he did, the evidence for the appellants which evidence was supported by evidence for the respondents on almost all the essentials of the oath taking except the actual oath-taking by the appellants. In admitting Exhibit C in evidence the learned trial Judge remarked:

“The weight to be attached to it is another matter.”

But throughout his judgment he gave no indication as to the weight he ascribed to Exhibit C. Indeed he said nothing about the document, important as it was to the case before him. On the totality of the evidence before the learned trial Judge had he exercised his discretion judiciously, he would have found that the appellants’ version of the oath taking was the more probable and would have concluded that issue in their favour.”

I think the Court of Appeal was right. I have also read the Amended Statement of Claim and the Amended Statement of Defence and evidence led in support thereof. Counsel for the appellants was in my view wrong when he said the Court of Appeal should not have disturbed the finding of fact by the trial court that the respondents took no “juju” oath when that finding as could be seen above cannot be reasonably justified nor supported by credible evidence in the case. Admittedly a Court of Appeal should not easily disturb the finding of facts of a trial Judge who had the singular opportunity of listening to the witnesses and watching their demeanour. It is settled law, however

that such finding of facts or inferences drawn from them may be questioned in certain circumstances and certainly this is one of such circumstances when the finding is perverse or cannot be supported by evidence. (See for example Akinloye & Anor v. Eyiyola & Ors (1968) NMLR 92. Akinola v. Fatoyinho Oluwo & Ors (1962) All NLR 244); (1962) SCNLR 352.

This issue (ii) is therefore resolved against the appellants.

There was no appeal against the finding by the Court of Appeal that-

‘The decision of the Amala PTA Arbitration Panel would, in my respectful view constitute estoppel per rem judicatam, the subject matter, the parties and the cause of action being the same in the arbitration as well as in the High Court action.”

My comments will therefore be very brief. There is no doubt that the respondents took the “juju oath” which was witnessed by members of the Amala P.T.A. That was on 6th Septcmber 1975 (See Exhibit C). The P.T.A. did not award the land in dispute to any of the parties on that day or on any other day. On that day the “decision” or “judgment” was “reserved” for one year to 6th September 1976, The “juju” was to decide. If members of the respondents’ family who took the oath were still alive on the adjourned date (6/9/76), the land belonged to the respondents. If on the other hand they died before that date, then the land belonged to the appellants. No investigation or inquiries were necessary. And none was made. The P.T.A. did not claim to possess the power of life and death. Only the juju had that power. As it turned out the respondents did not die. It was not their time to die! They were still all alive on the “judgment” day. The P.T.A. again witnessed their survival on the day as set out in Exhibit C. So one can safely say that the P.T.A. were never arbitrators in the real sense of the word. They were merely witnesses to the oath taking ceremony as well as the survival ceremony. The arbitrator in my view was the “Ala Obibi” juju which they believed had the power of life and death. My own belief is that nobody died because it was not yet time for anyone to have died. Enough of that.

However the respondents have by his suit in my view positively established their ownership of the land in dispute independently of the previous” Ala Obibi” juju oath-taking. Both sides in the contested suit called as their witnesses natural and real human beings to say what they knew about the land. All the witnesses were available for cross-examination and re-examination on their testimonies. This was as it should have been under the law. The “juju” method as cheap and quick as it might appear to have been had its own disadvantages.

For example you cannot put a “juju” in the witness box for any purpose. Its activities, methods and procedure would appear to belong to the realm of the unknown even though the effects may be real in the end. The worst of it all is that a “juju” “judgment” or “decision” is not subject to an appeal like the one we are all witnessing now in this suit. So that unless and until the “juju” descends to the level on which we can all understand its workings, it would be difficult to enforce its “decision” in a law court.

We have come a long way from the oracle! At any rate it was held in Ojiako v. Ogueze (1962) 1 All NLR 58; (1962) 1 SCNLR 112 that where a plaintiff had already received a declaration of title in a native court, the High Court could exercise its discretion to grant a new declaration where the second suit was made with reference to a plan. So it is in this case where the “juju” declaration had no plan of the land attached to it.

All the issues having been resolved against the appellant, this appeal fails. It is accordingly dismissed. The judgment of the Court of Appeal is hereby confirmed. The respondents are awarded costs assessed at one thousand Naira (N1,000.00) only.

SC.78/1992

Emmanuel Nwaebonyi V. The State (1994)

LawGlobal-Hub Lead Judgment Report

WALI, J.S.C. 

The appellant, Emmanuel Nwibo Nwaebonyi was arraigned before the High Court Abakaliki in Abakaliki Judicial Division, charged with the following offence –

“OFFENCE: Murder contrary to Section 319(1) C.C

Particulars of Offence

Emmanuel Nwibo Nwaebonyi alias Amasiri Nwaebonyi on or about 28th day of July, 1980 at Ndiogbaga Inyimagu Izzi in Abakaliki Judicial Division murdered Nwaji Nkwagu.”

He pleaded not guilty to the charge. The prosecution thereafter called a total number of 9 witnesses to prove the charge. At the close of the prosecution’s case the appellant gave evidence in his own defence but called no other witness.

The learned trial Judge, Offiah J. considered the evidence adduced and found the appellant guilty as charged and sentenced him to death by hanging.

In exercise of his constitutional right, the appellant appealed to the Court of Appeal Enugu Division and in a judgment of that court delivered by Oguntade J.J.C.A. (concurred to by both Awogu and Akintan, J.C.A.), the appellant was dismissed, confirming the conviction and sentence on the appeal by the trial court.

Before I consider the appellant’s appeal in this court, I consider it pertinent to give a resume of the prosecution’s case, leading to the appellant’s conviction, as follows:-

P.W.1 and the deceased were married under native law and custom. The appellant was making sexual advances to the deceased which she always rebuffed. When P.W.1 got to know of these immoral advances, he challenged the appellant which the latter denied. The near relations of both the appellant and P.W.1 intervened to settle the issue in a customary way. As a result the appellant was to take an oath in support of his denial that if the accusations against him were true, he would not have a living child. The appellant took the oath.

After the oath, the appellant’s wife (P.W.9) became pregnant on three occasions and each of the three children died shortly after birth. The appellant approached P.W.1 so that the effect of the oath he had taken might be neutralised. P.W.1 agreed and the appellant brought some wine to neutralise the effect of the oath, which the appellant and P.W.1 drank together. Thereafter, the appellant’s wife got pregnant again and delivered a baby which again died after birth.

The appellant decided to take a revenge on P.W.1. So on 28-7-80 which was a market day and when P.W.1 and other fellow villagers were away to the market the appellant sneaked into P.W.1’s house, matcheted his wife and their two children to death and set the house on fire, after which he escaped. He was not arrested until on 24-11-85 when he was identified to P.W.3, Sgt. Gabriel at Ugwogo Nike market square Enugu who immediately arrested him and brought him back to Iziogo where he was charged and cautioned in Ibo language as a result of which he made a statement confessing the offence.

In this Court, two grounds of appeal were filed from which the following two issues were raised –

“(a) Whether the appellant was rightly convicted solely on his confessional statement Exh. “A”.

(b) Whether the prosecution has proved its case beyond reasonable doubt as required under S. 137 of the Evidence Act.”

Learned counsel for the appellant, N. Abiodun Dabiri Esq, dealt with the two issues together. He referred to some decided cases and submitted that the appellant was rightly convicted on Exh. A, his voluntary confessional statement alone and that there was enough corroborative evidence to Exhibit A. He particularly referred to the evidence of P.W.1, P.W.6 and P.W.7 in that regard. He said the concurrent findings of both the trial court and the Court of Appeal are fully supported by unassailable evidence and could therefore not be faulted. He urged the court to dismiss the appeal.

In reply to the appellant’s brief P.C. Akubuilo, DPP, Enugu State and learned counsel for the respondent filed, with leave of the court as he was out of time, the respondent’s brief in which he adopted the two formulated issues in the appellant’s brief. And after reviewing the appellant’s case and the issues raised, he referred to some decisions of this court and urged us to dismiss the appellant’s case for want of merit.

Since this is a murder case, I intend to treat the issues formulated notwithstanding the submissions of learned counsel on both sides to the effect that they have nothing to urge in favour of the appellant. I shall deal with the two issues seriatim.

Issue 1 deals with Exhibit AA 1, the confessional statement made by the appellant in Ibo and then translated into English language.

Section 27(1) of the Evidence Act defines confession as follows –

“27(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.”

Subsection (2) of S. 27 goes on to state that –

“Confessions, if voluntary are deemed to be relevant facts as against the persons who made them only.”

As regards the voluntariness of Exh. AA, I have myself perused though the evidence on the issue and I am satisfied that it was voluntarily made by the appellant. This was confirmed by the evidence of P.W.3 Sgt. Gabriel Nnaji, who arrested the appellant and on the same day, cautioned him in Igbo language and recorded the same in the language made. It was thereafter translated into English. The Ibo version was admitted in evidence as Exh. A while its English translation was admitted as Exh. A. 1. The appellant was taken before P.W.5, Daniel Obedon, a Deputy Superintendent of Police before whom P.W.4 Sgt. Daniel Nwode read the Ibo version to the appellant and which he (the appellant) confirmed its correctness by thumb-printing it. The trial Judge, after reviewing the evidence of P.W.3, P.W.4 and P.W.5 concluded –

“I must say that I believe the evidence of Obedon P.W.5 and Daniel Nwode. I am satisfied beyond doubt and find that it was the accused who made Exh. A and that he made it voluntarily.”

In affirming the above finding of facts, the Court of Appeal commented thus:-

“It was never said that P.W.3 did not speak the language in which the appellant made his statement. It seems to me that bringing in P.W.4 to interprete the statement of the appellant to him before P.W.5 was if anything a remarkable act of fairness to the appellant. It placed the appellant in a better position to deny the voluntariness of the statement if he had previously been induced to make it.

The same may be said of the argument that a period of two weeks elapsed before the appellant was brought before P.W.5 to confirm or deny that he made Exh. A; there is no time limit for bringing an accused before a superior police officer to confirm or deny the voluntariness of a written statement credited to him and I do not think that a period of two weeks was unreasonably long. It is in fact my view an advantage to an accused that the period between making a statement and the confirmation or denial of the voluntariness of the statement is long for it allows the accused enough time to reflect more about the implications of the confession alleged to have flowed from his lips.”

These findings of fact by both the trial court and the Court of Appeal are fully supported by the credible evidence reviewed and accepted. They are on firm ground and are unimpeachable. See Onyejekwe v. The State (1992) 4 S.C. 1; (1992) 3 NWLR (Pt.230) 444.

In Rex v. Sykes (1913) 8 CR. Appl Rpt. 233 the leading authority on the weight to be attached to a confessional statement whether or not retracted, followed by the West African Court of Appeal in Kanu v. The King (1952) 14 WACA 30 and thereafter by this Court in several of its decisions such as, Dawa v. The State (1980) 8 -11 SC 236; The Queen v. Obiasa (1962) 1 All NLR 651; (1962) 1 SCNLR 137; Obosi v. The State (1965) NMLR 129 and Onochie v. The Republic (1966) NMLR 307 to mention but a few, the following rules were stated in order to decide the weight to be attached to it –

1. Is there anything outside the confession to show that it is true
2. Is it corroborated
3. Are the relevant statements made in it of facts, true as far as they can be tested
4. Was the prisoner one who had the opportunity of committing the murder
5. Is his confession possible
6. Is it consistent with other facts which have been ascertained and have been proved

The evidence of P.W.1, P.W.3, P.W.7 and Exh. AA1 established beyond any shadow of doubt that the appellant had both the motive and capability of committing the crime he was charged with and convicted. There is evidence outside Exh. AA1 both direct and circumstantial that goes to show that its contents were true. P.W.1 gave evidence of the suspicious immoral sexual advances by the appellant to the deceased, wife of P.W.1. This culminated in the appellant performing a traditional oath which resulted in the death of 4 children born to him all at their infancy. The story narrated by the appellant in Exh. A as regards his approach to P.W.1 to forgive him for his immoral sexual approach to the deceased and the bringing of some wine of P.W.1 to celebrate and reverse the effect of the oath was corroborated by the evidence of P.W.1. Immediately after the brutal killing of the deceased and her two children, the appellant fled the village and was arrested by P.W. 3 at Ugwogo market, Enugu. This was about 5 1/2 years after the incident. It was then that the police had the opportunity of cautioning the appellant and he volunteered Exh. AA1. The evidence given by P.W.7 described the wounds on deceased that caused her death. This is consistent with the type and nature of wounds mentioned by the appellant in Exh. AA1. These pieces of evidence, direct and circumstantial show that the appellant had the motive and opportunity to commit the offence and also connected him with its commission. The retraction of Exh. AA1 by the appellant in no way affected its admissibility and credibility.

Even without these corroborative evidence, decisions of this court abound to show that a trial court can convict an accused person on his free and voluntary statement alone. See Queen v. Obiasa (1962) 1 All NLR 691; (1962) 1 SCNLR 137; Yesufu v. The State (1976) 6 SC. 167; R v. Kanu (1952) 14 WACA 30 and Onochie v. The Republic (1966) NMLR 307; Obosi v. The State (1965) NMLR 129 and Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383.

Having accepted the truth of the confession contained in Exh. AA1 the learned trial Judge was perfectly justified in finding the appellant guilty of the charge against him and the Court of Appeal was also right in affirming the conviction and sentence on the evidence accepted and evaluated by the trial Judge. The provisions of Section 137 of the Evidence Act was fully satisfied and complied with.

I agree with learned counsel on both sides that there is nothing they could urge in favour of the appellant. The concurrent findings of fact made by the trial court and the Court of Appeal are of the utmost relevance in answering the two issues raised in this appeal; they are conclusive and fully answered the issues of law raised in this appeal. They are justified and could not be faulted and I see no reason to interfere with them. See Onyejekwe v. The State (1992) 4 SC 1 (1992) 3 NWLR (Pt.230) and Mbele v. The State (1990) 4 NWLR (Pt.145) 484.

The appeal lacks merit and it is accordingly dismissed. The conviction and sentence passed on the appellant by the trial court and affirmed by the Court of of Appeal are hereby confirmed.

SC.19/1993

Ejikeme V. Okonkwo & Anors (1994)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, JSC. 

Sometime in 1966, Lawrence Okonkwo and Samuel Okonkwo (both now deceased) borrowed from Edwin O.C. Ejikeme the sum of £3,700.00 (now N7,400.00) with which they developed a property at 3 Iweka Road, Onitsha. The parties entered into agreement under seal which agreement was registered in the Lands Registry in the office at Enugu. Part of the recitals of the recitals of the agreement reads as follows:

“2. The Borrowers are in course of erecting on the said property dwelling house and has requested the mortagee for the purpose of completing such dwelling house to lend to them the sum of £3,700 (N7,400.00).

‘And whereas the mortgagee has agreed with the borrowers to lend to them the sum of £3,700 out of the money belonging to his family upon having the repayment therefore as hereinafter mentioned and secured in a manner hereinafter appearing.’”

The agreement demised unto the lender

“All that plot of land with the dwelling house thereon situate at and known as and called No. 3 Iweka Road ,Onitsha to hold the same unto the mortgagee for the term of 35 years from the first day of July, 1966.”

Paragraph 6 of the agreement or deed provides:

“6. Provided always that if the said sum of £3,700.00 with compound interest thereon as aforesaid shall be paid to the mortgagee by way of half the rents collected from the secured property monthly for a period of 35 years and in accordance with the foregoing covenant, the said hereditaments comprised in this security shall at the request and cost of the Borrowers and Mortgagee be reassigned to him at the end of 35 years from the date of this mortgage.”

The Lender by virtue of the agreement was being paid by the Borrowers half the rent they were collecting from tenants in the house. The borrowers died during the Civil War and Veronica Okonkwo – wife and son respectively of Lawrence Okonkwo took out letters of administration with one other person Elizer Okonkwo in respect of the estate of Lawrence Okonkwo. In 1982 by a letter dated 19th May and addressed to Ejikeme, the Lender, Veronica gave notice of her intention.

“to pay off all the outstanding balance of the loan plus interest due thereon as at 20th June 1982”

Ejikeme replied through his solicitor that he would insist on his rights under the agreement, that is, he would continue to collect 50% of the rent accruing from the property for 35 years as stipulated in the agreement. He refused to accept the offer made by Veronica Okonkwo. Thereupon, Veronica refused to share the rent with Ejikeme who then instituted the action leading to this appeal claiming as per paragraph 10 of the State of Claim against Veronica and Ndubisi as hereunder:

1. A declaration that the plaintiff is entitled to fifty percent of all the rents collected from the house known as and called No. 3 Iweka Road Onitsha for a period of thirty-five years from 1st day of July, 1966.
2. A perpetual injunction restraining the defendants either by themselves, their servant or agents from collecting rents on the said house to the exclusion of the plaintiff.
3. An account of all the money collected by the defendants in respect of the house from the 19th day of December 1983 up to date of the judgement.”

Pleadings have been filed and exchanged the defendants in their Statement of Defence and counter-claim claimed as follows:

“(a) A declaration that the purported mortgage dated the 26th day of May 1966 made between the plaintiff and the late Mr. Lawrence Okonkwo, Samuel Okonkwo and registered as No. 27 at page 27 in volume 448 of the Lands Registry Enugu is void.

Alternatively

(b)    An order setting aside the deed of mortgage.”

The plaintiff did not file a defence to the counter-claim. The action proceeded to trial. On the date fixed for the trial however, learned counsel for both parties informed the court that they had settled issues and that the only issue calling for determination was whether the agreement was valid or not. Both referred to the agreement as a mortgage and the case was fought on the premise that it was a mortgage. Learned counsel addressed the court. In his Judgement the learned Judge dismissed plaintiff’s claims and allowed the defendants’ claim. He ordered as follows:

“1. The covenant not to redeem until 35 years has elapsed is irregular, a clog on the mortgage and cannot stand. The defendant is therefore entitled to an immediate right of redemption in this case.

2. The Mortgagee is entitled to the payment of his principal, interest and cost only. This in concrete terms means that the mortgagee id entitled to the repayment of the sum of N7,400.00 plus compound interest of 9% till the mortgaged property is redeemed.”

Being dissatisfied with this judgment the plaintiff appealed to the Court of Appeal which latter Court dismissed the appeal and affirmed the judgment of the trial High Court. The Court of Appeal ordered as follows:

“…………………it will cause unfair hardship to the defendant to pay interest as from July 1st, 1982 right till now since as at 30th June 1982 they had evinced an intention to pay off the loan and interest but for the refusal of the plaintiff.

Compound interest at 9% for about six and half years now will come to about N5,000.00. The defendants cannot be expected to bear that in the circumstances.

It is therefore ordered that the interest due shall be calculated up to 30th June 1982 and to commence again from today’s date until the defendants redeem the property.”

Being again dissatisfied, the plaintiff has further appealed to this Court upon two grounds of appeal which read as follows:

“(1)    ERROR IN LAW

The Court of Appeal erred in law in the following passage in its judgement:

‘It will be seen that there was a proviso for reconveyance contained in clause 7 already set out upon payment of all moneys thereby convenanted to be paid. The redemption clause was however not elegantly expressed. It contains typographical and other errors and or omissions. For instance the word ‘mortgage’ should read ‘mortgagee.’ A few words have also been omitted between the words ‘mortgage by way’ and ‘or half the rents’. The entire proviso should read something like this:

‘Provided always that if the said sum of £3,700 (three thousand and seven hundred pounds) with compound interest thereon as aforesaid shall be paid to the mortgagee by way of a lump sum or half the rents collected from the secured property monthly for a period of 35 (thirty-five) years and in accordance with the foregoing covenant the said hereditaments comprised in the security shall at the request and (sic) of the Borrowers and Mortgagee be reassigned to him at the end of 35 (thirty-five) years from the date of this Mortgage. It seems to me that it was the intention of the parties that when the Borrowers were able to pay off the loan by lump sum they should be free to do so and were it otherwise, clause 7 would have been unnecessary repetition of clause 1.’

PARTICULARS

(i)    Clause 7 of Ex A say nothing about the repayment of the mortgage loan. Clause 6 which the Court of Appeal referred to as clause 7 provides as follows:

‘6) Provided always that if the said sum of £3,700 (three thousand and seven hundred pounds) with compound interest thereon as aforesaid shall be paid to the Mortgage by way or half the rents collected from the secured property mortgage for a period of 35 (thirty-five) years and in accordance with the foregoing covenant the said hereditaments comprised in this security shall at the request and cost of the Borrowers and Mortgage be reassigned to him at the end of 35 (thirty-five) years from the date of this mortgage.’

This clause emphasises clause 1 which says that the loan shall be repaid by the Borrowers by paying to the Mortgage 50% or the rent collected from the mortgaged property monthly for 35 (thirty-five) years.

Although the words ‘Mortgage’ and ‘or’ which I have underlined should read ‘Mortgagee’ and ‘of’ respectively there were no omissions in the clause as was found by the Court of Appeal.

(ii)    In the High Court, Onitsha, the parties did not complain that there where omissions in clause 6 of the agreement either in their pleadings or in the address of their counsel.

(iii)    The respondents case was that no other provision was made for the repayment of the loan than by paying to the appellant 50% of the rents monthly for 35 (thirty-five) years and that this clogged their equity of redemption.

The Court of Appeal, by supplying the words ‘of a lump sum’ also underlined by me, has re-written clause 6 of the deed of mortgage and thereby introduced an option to repay the loan by a lump sum contrary to the expressed intention of the parties, and thereby failed to consider the issue before it, that is, whether the provision which stipulates that the plaintiff shall be entitled to 50% of the rents received from the mortgaged property monthly for thirty-five years is a clog on the equity or redemption of the defendants. If the Court of Appeal had considered the issue before it, it could have decided in favour of the appellant.

ERROR IN LAW

The Court of Appeal erred in law and misdirected itself in the following passage in its judgment : –

‘If however the redemption clause means that the mortgage could only be redeemed at the end of 35 (thirty-five) years, then the said provision for redemption is nugatory since ill that even (sic) the lease could have run its span with its attendant consequences.’

PARTICULARS

The respondents were the owners of the mortgaged property in fee simple absolute in possession (the italics is mine). The property was demised to the appellant for thirty-five years by clause 2 of Ex A. It is inconceivable that a lease for 35 (thirty-five) years granted by the respondents could adversely affect their fee simple absolute in possession.

By reason of this error in law and misdirection the court of Appeal came to the wrong conclusion that respondent’s equity of redemption was clogged and not merely postponed”.

In accordance with the rules of this court the parties filed and exchanged their Brief of argument. In the plaintiff/appellant’s brief, the following issues are set out as calling for determination in this appeal:

“(i) Whether the Court of Appeal was right in holding that the redemption clause

In the agreement (Ex A)gave the respondents an option to pay off the loan by any other way than by paying the appellant 50% of the rent collected from the building for thirty-five years.

(ii) If the answer in (i) above in the negative; whether the Court of Appeal was right in holding that the provision that the mortgage could only be redeemed at the end of thirty-five years was a clog on the equity of redemption of the defendants and therefore nugatory.”

The defendants/respondents on their part formulated the issues for determination as follows:-

“1. Whether the Court of Appeal as a Court of Equity was right to interprete the contents of Exh. ‘A’ as a mortgage deed in order to reach any reasonable conclusion as to its validity.

If the answer to the above question is in the position (sic) was the interpretation given by the Court of Appeal with regard to the validity of Exhibit ‘A’ that there is an option of redemption of the loan at 9% interest reasonable as a construction given to the deed of mortgage i.e Exhibit ‘A’”.

It will appear from the pleadings and the issues placed before the trial Judge that the main question calling for determination in this matter is as to whether the agreement between the plaintiff and the borrowers which is Exhibit ‘A’ in this proceedings and which is in the nature of mortgage precludes the borrowers or their successors in title, as in this case, from redeeming the mortgage by paying off the balance of the capital and interest or whether as contended by the plaintiff, it must run the full term of 35years.To determine this issue, one must ask what are the provisions of a valid legal mortgage. The learned author of Halsbury’s Law of England 4th Edition vol.32 at paragraph 498 lists the provisions of a legal mortgage as follows:-

“The main provisions of a legal mortgage are (1) a covenant to pay the principal debt and interested on a given date ;(2) a covenant to pay interest in the event of default in payment of the principal on the day named ; (3) the demise or sub-demise of ,or charge by way of legal mortgage on, the mortgaged property;(4) the proviso for cesser; and (5) such variations of the statutory provisions with regard to mortgages as the arrangement between the parties requires”

On the first provision, that is, covenant for repayment the learned author goes on to say:

“The first operative part of a mortgage is usually the covenant by the mortgagor to pay the principal and interest on a day named. If the there is no covenant and no accompanying bond, there is still an implied promise to pay. The promise to pay implied in an instrument under seal may amount either to a covenant or a simple contract to pay, depending upon the construction of the instrument.

As every loan transaction implies a right to be repaid, if a person lending money is never to have his principal back, there must be something very definite and clear showing that such was the condition of the contract.

On the date for repayment, the learned author has this to say at paragraph 500:-

“fixing a day for payment does not generally indicate the parties’ intention that actual payment is to be made on the named date, but only that the mortgage may call for payment is to be made on the named date, but only that the mortgage may call for payment on or at anytime after that date if so minded, but before. The date fixed is usually six months from the date of the loan or deed, but may be at the end of three months or any other period, or the loan may be made repayable upon demand. In general, the mortgagor may not repay prior to the date fixed for repayment.”

I pause here to consider Exhibit ‘A’. Exhibit ‘A’ does not contain a covenant to pay the principal’s debt any interest on a given date. On the authorities however, there is an implied promise to pay and as no date has been fixed for the repayment it is my view that a reasonable time will be implied. On the second provision, that is, covenant to pay interest, although no specific interest is stared in the deed in Exhibit ‘A’. I agree however, with the two courts below that the interest of 9%  mentioned in the deed in respect of further advances will apply equally to the principal sum. It does not appear that the defendants are contesting this finding as they have not appealed against it. Indeed both parties tacitly accepted that the loan was to carry 9% interest.

Exhibit ‘A’ demised unto the plaintiff by way of legal mortgage a term of 35 years.

It is the fourth requirement, the provision for cesser, that is the bone of contention in this matter. The stance of the plaintiff seems to be that the mortgage cannot be redeemed until the expiration of the 35 years lease granted the plaintiff by Exhibit ‘A’. if the position of the plaintiff is correct it would appear that there is a clog on the equity of redemption. Incidence to every mortgage in a right of the mortgagor to redeem – this right is generally referred to as the equity of redemption – see Seton v. Slade, Hunter v. Seton (1802) 7 Ves 265 – 273;34 ER. 984 – 985 where the following passage appears:

“But where the question is, not whether all title is gone by force of the statute of limitations but (as the point is put in the principal case), whether a mortgagor shall be at liberty to redeem after the day agreed upon, there, equity says, relief may be given against the legal consequences of non-payment at the precise time appointed, and redemption allowed, on the ground that the whole object and original intention of the parties, was tom secure, by the mortgage, repayment of the money: Radcliffe v. Warrington, 17 Ves, 332, 334.”

The right to redeem is so inseparable an incident of a mortgage that it cannot be taken away by an expressed agreement of the parties that the mortgage is not to be redeemable or that the right is to be confined to a particular time or to a particular description of persons. The right continues unless the mortgagor’s title is extinguished or his interest is destroyed by sale either under the process of the court or of a power in the mortgage incident to the security. This is a very important provision of a legal mortgage.

In view of the borrowers’ equity of redemption therefore, the plaintiff will not be right to claim that the defendant could not redeem the mortgage by paying for the principal and interest until the year 2001, that is, 35 years from 1966. For this reason, therefore, the learned trial Judge was righh6t to dismiss his claims and the Court of Appeal was right to affirm that decision.

In conclusion the plaintiff’s appeal fails and it is hereby dismissed. As there is no ground of appeal attacking the conclusion of the learned trial Judge as affirmed by the Court of Appeal that the counter-claim succeeded. I would say nothing on that. Suffice to say however, that in the view of the time lag since the judgment of the Court of Appeal will be varied to read:-

It is therefore, ordered that the interest due was to be calculated up to 30th June, 1982 and to commence again from the date of this judgment (23/9/94) until the defendants redeem the property.

In conclusion what is due to be paid to the plaintiff by the defendants by the way of redemption of the mortgage shall take into consideration the amount of the monthly payments made to the plaintiff from July 1966 to the time the defendants ceased to make  any further payments to the plaintiff.

I award to the defendants/respondents N 1,000.00 costs of this appeal.

Other Citation: (1994) LCN/2598(SC)