Casimir Odive V. Nweke Obor & Anor.(1974)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N.

This is an appeal against the ruling of Agbakoba, J., in Suit No. 0/5/1972 given in the Onitsha High Court on June 6, 1973, and in which the learned trial Judge upheld a preliminary objection raised by the counsel for the defendants regarding the competence of the court to hear and determine the claim as laid. In the action, the plaintiff claims against the defendants, a man and a woman, jointly and severally:-

(1) An order of the court compelling the defendants to return to the plaintiff the plaintiff’s children, namely, Regina Ukamaka Odive, Benedette Ebelechukwu Odive, John Muoto Odive and Sussanna Chikodili Odive.

(2) 900pounds damages for the loss of the services of the aforesaid four children as specified hereunder:

(i) 400pounds for the loss of the services of Regina Ukamaka Odive.

(ii) 200pounds for the loss of the services of Benedette Ebelechukwu Odive.

(iii) 200pounds for the loss of the services of John Muoto Odive.

(iv) 100pounds for the loss of the services of Sussanna Chikodili Odive.

When the case came up for hearing, pleadings had been ordered by the court and duly filed and delivered by both parties. The relevant facts are that the plaintiff averred in his Statement of Claim that in 1949 he was married to the 2nd defendant according to customary law, followed in 1950 by a marriage between the same parties under the Marriage Act, Cap. 115 of the Laws of Nigeria. The plaintiff also stated that all the four children born to him by the 2nd defendant were the issues of the marriage. Counsel for the defendants raised a preliminary objection in the following terms:

“I wish to raise a preliminary objection with respect to the claim –

1. Return of children. It ought to be by way of petition since marriage under the Act is foundation of the claim.
2. An action per quod servitium amissit cannot be joined to claim for return of children.”

The learned trial Judge, after listening to both sides in respect of the objection, gave an adjourned ruling on June 6, 1973, in which he upheld the objection and struck out the case.

Against this ruling, the plaintiff/appellant has appealed on the following two grounds which were the only ones argued before us out of the four that were filed. These grounds are:

“(1)(a) That the learned trial Judge erred in law in striking out the whole suit despite his finding that the plaintiff/appellant could sue for the loss of services of his children and when the only point for decision before him was whether the action could be instituted by Writ of Summons.

(b) That even if the first arm of the claim should be brought by petition, the learned trial Judge was wrong to strike out both the first arm and the second arm of the claim whereas the second arm of the claim – damages for loss of services – could properly be instituted by Writ of Summons.

(c) That the learned trial Judge misdirected himself in law and erred in law in purporting to determine the merits of the claim for damages for loss of service without hearing any evidence from the parties and when that issue was not then before him at the stage of the proceedings for determination.

(2)(a) That as the plaintiff’s claim for the return of his children is not in relation to proceedings under the Matrimonial Causes Decree, 1970, for a decree or declaration of a kind referred to in paragraph (a) or (b) of Section 114(1) of the said Decree and as the claim does not relate to concurrent, pending or completed proceedings as mentioned in Section 114(1) paragraph (a) or (b) of the aforesaid Decree, the claim is not required by the combined effect of the Sections 54(3) and 114(1) of the Matrimonial Causes Decree, 1970, to be instituted by petition. The learned trial Judge was therefore wrong in law in holding that the plaintiff’s claim for the return of his children must be by Petition.

(b)That as the plaintiff’s claim for the return of his children is not one in relation to proceedings for a decree or declaration as referred to in paragraph (a) or (b) of Section 114(1) of the Matrimonial Causes Decree, 1970, and as no other special provisions are made for cases such as the plaintiff’s present claim, then the proper manner to come to court is by action commenced by Writ of Summons and the learned trial Judge was therefore wrong in holding otherwise.”

In arguing ground 1, Mr. Egonu, learned counsel for the appellant, drew attention to the fact that the plaintiff’s claim against the defendants is joint and several and that an action for loss of the services of the four children is a common law action which can properly be brought only by a Writ of Summons, as was done in the present case. According to him, the learned trial Judge was himself aware of this position in law when he said as follows:

“If on the other hand the plaintiff does not desire a dissolution or judicial separation he can maintain an action per quod servitium amissit by Writ of Summons against the 1st defendant omitting any reference to the 2nd defendant.”

He also submitted that the learned trial Judge erred in law in considering the merits of the claim for loss of the services of the children citing Hawkesworth v. Hawksworth (1861-1867) AER 314 and Lough v. Ward (1945) 2 AER 338, when in fact the matter was not before him at that stage. It was his submission that the learned trial Judge was wrong in dealing with the issue of loss of services without having heard evidence on the point. Again, the learned trial Judge struck out the claim for loss of services because he held that the claim was not initiated by due process of law, when the Judge had himself already agreed, as stated above, that the action for loss of services could come to court by way of a Writ of Summons. Under this ground of appeal, learned counsel finally submitted that, assuming that the first arm of the claim in respect of the return of the children to the plaintiff should have been by petition rather than by a Writ of Summons, the second arm of the claim in respect of loss of the services of the children should not have been struck out as well. We think that there is merit in this contention.

In relation to the second ground of appeal which concerns the first arm of the claim, namely, the return of the children to the plaintiff, learned counsel for the appellant submitted that the claim was properly laid by means of a Writ of Summons. He argued that counsel for the defendants/respondents was incorrect in suggesting that the claim in respect of the return of the children should have been by petition in accordance with Section 54(3) and Section 114(1)(a) and (b) of the Matrimonial Causes Decree, 1970, since the claim as laid by the appellant was a disguise for a claim of custody of the children. We think it helpful to set out the provision of Section 54(3) of the Matrimonial Causes Decree, 1970, as follows:-

“54 (3) Proceedings of a kind referred to in paragraph (c) of the definition of ‘Matrimonial Cause’ in Section 114(1) of this Decree that are in relation to proceedings under this Decree for a decree or declaration of a kind referred to in paragraph (a) or (b) of that definition –

(a) may be instituted by the same petition as that by which the proceedings for that decree or declaration are instituted; and

(b) except as permitted by the rules or by leave of the court, shall not be instituted in any other manner.”

It is also pertinent to consider Section 114(1)(a) and (b) which reads as follows:-

“114(1) In this Decree unless the contrary intention appears-

‘adopted’, in relation to a child, means adopted under the law of any place (whether in or out of Nigeria) relating to the adoption of children;

‘appeal’ includes an application for a rehearing;

‘court’ or ‘the court’, in relation to any proceedings means the court exercising jurisdiction in those proceedings by virtue of this Decree;

‘court of summary jurisdiction’ means a magistrate’s court or District Court;

‘crime’ means an offence punishable by imprisonment;

‘cross-petition’ includes an answer in which the respondent to a petition seeks decree or declaration of a kind referred to in paragraph (a) or (b) of the definition of ‘matrimonial cause’ in this subsection

‘decree, (not being a Decree having effect as an enactment made by the Federal Military Government) includes a decree absolute or decree nisi, a judgment, and any order dismissing a petition or application or refusing to make a decree or order;

‘marriage conciliator’ means a person authorised to endeavour to effect marital reconciliations or a person nominated by a Judge, in pursuance of Section 11 of this Decree, to endeavour to effect a reconciliation;

‘matrimonial cause’ means –

(a) proceedings for a decree of –

(i) dissolution of marriage;

(ii) nullity of marriage;

(iii) judicial separation;

(iv) restitution of conjugal rights; or

(v) jactitation of marriage;

(b) proceedings for a declaration of the validity of the dissolution or annulment of a marriage by decree or otherwise or of a decree of judicial separation, or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation.”

It is quite clear that the present action by the plaintiff for the return of the four children to him cannot be regarded as relating to “concurrent, pending or completed proceedings” within the meaning of Section 114(1)(a) or (b), nor is the claim required by the combined operation of Sections 54(3) and 114(1) of the Matrimonial Causes Decree, 1970, to be brought by a petition. This is not an action for dissolution of marriage, judicial separation, restitution of conjugal rights, or similar matrimonial reliefs.Mr. Umeadi, learned counsel for the defendants/respondents, replied that the plaintiff’s claim as worded is a disquise for a claim of custody and that it should as such be brought by way of petition in accordance with Sections 54(3) and 114(1) of the Matrimonial Causes Decree, 1970. It was his contention that the plaintiff’s claim amounted to an action of detinue which does not apply to a claim for the return of human-beings like the four children, but only in respect of the return of goods or chattels. We think that this submission is untenable, since an action for enticement such as was involved in Lough v. Ward (1945) 2 AER 338, necessarily involves the return of children to their lawful parents or other guardians in proper cases.

We think that the learned trial Judge was clearly in the wrong when he decided to uphold the preliminary objection of counsel for the defendants at the particular stage in the proceedings when the Statement of Defence had already been filed and the issues joined between the two parties.

The learned trial Judge should have pointed out to counsel for the defendants that the preliminary objection should have been made after the delivery to him of the Statement of Claim and before filing his Statement of Defence. Another important point in this appeal is that, once issues had been joined between the parties including an allegation by the 1st defendant that the marriage between him and 2nd defendant had been made under customary law, it was wrong to entertain a preliminary objection without any further evidence on the merits.

The appeal accordingly succeeds, and it is allowed. The ruling of Agbakoba, J., in the Onitsha High Court, in Suit No. 0/5/1972 delivered on June 6, 1973, is hereby set aside. It is hereby ordered that the case be heard by him on the merit. Costs assessed at N90 are awarded to the appellant as costs in this court.

SC.290/1973

Lawrence Olu-Ibukun & Anor v. Adesola A. Olu-Ibukun (1974)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

In Suit No. WD/32/72 filed in the Lagos High Court, the petitioner, now respondent, petitioned for the dissolution of her marriage to the respondent. In the said petition she also payed inter alia,

“that she may have alimony pending suit, maintenance, maintenance for the children, and a secured provision.”

Paragraphs 8, 10(c) and 11 of the Petition read:

“8. That the respondent who is a physicist and educationist and former don at the University of Ibadan and holder of a Ph.D. degree is at present Chief of Mission for Africa under U.N.E.S.C.O. and earns a basic salary of over 10,000 (tax free) in terms of Nigerian currency.

10(c) At present the respondent does not maintain the petitioner at all and in so far as the children of the marriage are concerned he only pays their school fees.

11. That the marriage between the petitioner and the respondent has broken down irretrievably.”

While admitting in his Answer to the Petition that the marriage has broken down irretrievably but for different reasons, the respondent, now appellant, denied that he earned a basic salary of 10,000 or over in his employment. He then averred further in paragraphs 21 to 25 of his Answer as follows:

“21. That persons in the petitioner’s profession and with her experience are in high demand and she could easily obtain employment but has deliberately abstained from being employed in the nursing profession solely to claim money from this suit but she nevertheless engages in business with her mother.

22. That the petitioner was engaged in the nursing profession during her stay in Kenya with the respondent.
23. That the respondent’s present overseas pay is about 5,000 per annum inclusive of allowances of which only a maximum of 1,000 is payable and transferable to Nigeria.
24. That the respondent’s present contract expires in May, 1972.
25. That the respondent’s last full time salary in Nigeria was 1,400 and his present pay is because he is serving outside his country of birth.”

An affidavit of means in which he gave more details about his income and about the income of the petitioner was attached to the Answer. The petitioner filed a counter-affidavit in reply. In this she denied the averments in the petitioner’s affidavit and gave details of her own income.

The application for the ancillary reliefs prayed for in the petition was duly heard on 26th June, 1972. It seems to us, after a perusal of the notes made by the learned trial judge at the hearing, that learned counsel on both sides had argued the application on the basis that an application for alimony pendente lite and one for maintenance are one and the same, and also that an order in respect of the former could be made in the present proceedings.

In his ruling on the application, the learned trial judge observed, inter alia, as follows:

“The jurisdiction of the Court to order the payment of alimony pending suit is by no means in doubt. The position is clearly stated in Volume 12 Halsbury’s Laws of England 3rd Edition p. 346 at paragraph 733 where the following statement of the Law appears:-

‘On any petition for divorce or nullity of marriage judicial separation or restitution of conjugal rights, the Divorce Division of the High Court has power to make such interim orders for the payment of alimony to the wife as the Court thinks just.’

This power is exercisable even where there is clear evidence of the wife’s adultery.”

adequate alimony for the wife pending the hearing of the petition, the learned trial judge found as follows:

“Before their separation the Petitioner, the Respondent, and their three children had lived together both in Nairobi and Paris. The eminent position of the husband, as UNESCO’s Chief of Mission for Africa, must have conferred on his wife a unique social status not only in the community in which they lived in Kenya and France, but also among her friends and colleagues in Nigeria. I have also to consider the fact that, in Lagos, she has no separate accommodation of her own; consequently she has been forced, with her three children to reside at Mushin with her mother. These children attend the Sunnyfield Primary School at Surulere. This fact must impose on the Petitioner, who lives in Mushin, a measure of discomfort in taking the children to and from school. With this in mind the wife claimed in paragraph 7(c) of her petition as follows:

‘That the respondent should pay the tuition and other incidental school fees and bills and be responsible for the maintenance, clothing, transport to and from school and all other incidental expenses of these children. ‘

I think I cannot fairly assess the alimony in this case without taking into account the hardship with which the petition will be afflicted, particularly in the matter of taking the children to and from school. I have decided, therefore, to make such an award in the wife’s favour as will restore her as near as possible to the status she formerly enjoyed as wife of an officer of her husband’s rank and position. I will, therefore, order the husband to pay his wife, by way of alimony pendente lite, the sum of 100 monthly or 1,200 per annum, with effect from the 28th March,1972, when the petition for divorce was filed.”

In the appeal now before us against this order the main complaint of the appellant is that the maximum amount to which the petitioner is entitled as alimony pendente lite is one fifth of the joint income of both the husband and the wife. The total income of the petitioner as found by the learned trial judge is 984 per annum. Therefore, what the learned judge should have awarded as alimony pendent lite is an amount which would have brought the petitioner’s income to about one-fifth of their joint income. Since the joint income of the parties was found to be 5,984 per annum, the award to the petitioner, on the basis of this formula, should have been 213 which would have put her income up to the sum of 1,197 which is approximately one fifth of their joint income. To award the petitioner the sum of 1,200 per annum, as the learned trial judge has done, is indefensible because this has brought the income of the petitioner to 2,184 per annum which is far in excess of the one fifth of the joint income to which the petitioner is entitled.

Learned counsel also complained that, without taking oral evidence, the learned trial judge appeared to have resolved the conflict in the affidavits filed by the parties against the respondent/appellant and that he has also taken into consideration averments in the Petition which has not been heard. Finally learned counsel urged us to set aside the order of the learned trial judge and direct that the application be heard before another judge.

In reply, learned counsel for the petitioner referred us to the provisions of section 70(2) of the Matrimonial Causes Decree (No. 18 of 1970) but had to concede that the learned trial judge made his award, not under that Decree in which there are no provisions for the award of alimony pendentelite, but under the English Matrimonial Causes Act of 1950 (as amended). Learned counsel nevertheless contended that the order was properly made and in support he referred us to Halsbury’s Laws of England, 3rd edition, Vol. 12, paragraph 745 which states that while it is usual to allow the wife, as alimony pendentelite, such an amount as will make her total income one-fifth, it is now the tendency of the courts to deprecate any arithmetical rule of assessment and to emphasise the discretionary aspect of the award. For this reason, the learned counsel for the petitioner contended that the award is reasonable and should not be disturbed.

In the first place, we do not see how, faced with the conflicting averments in the Petition and in the Answer to it, and also with the conflicting affidavits filed by both parties, the learned trial judge could have arrived at the conclusion that the petitioner has a “unique social status” in Kenya, France and Nigeria, that she has no separate accommodation of her own, and that the fact that she lives in Mushin while her children go to school in Surulere must impose on her “a measure of discomfort in taking the children to and from school.” It is clear from his ruling all these controversial matters which were yet to be resolved, were taken into consideration by the learned trial judge in making his award. We think he was in error to have done so. In this connection, the following observation of this court in Akinsete v. Akindutire (1966) 1 All N.L.R. 147 at page 148 is apposite. It reads:

“In the face of the direct conflict of affidavits on crucial facts, the learned trial judge, we think, should have heard oral evidence from the deponents or such other witnesses as the parties may be advised to call. The judgement of Bannerman, J., on appeal which the West African Court of Appeal upheld in Government of Ashanti v. Adjuah Korkor, etc. 4 W.A.C.A. 83 is authority for this It is, of course, open to the court to act on affidavit evidence in cases in which the facts are not disputed or in which the parties agree that this should be done; and it is only fair to say that in the present case neither side asked to be allowed to cross-examine any of the deponents or to call any witness.

We do not however think that this omission by the parties can be taken to amount to consent that affidavit evidence be used in this case in which the facts in issue were irreconcilably in conflict.”

(See also the judgement of this court in S.C.179/1972-Oki & Ors. v.Eboh & Ors. delivered on 31st January, 1974, on the same point.

Apart from the above, the learned trial judge seriously erred in making an order, as he did, on the basis that the application was one for an alimony pendentelite. Admittedly, the petitioner, in addition to her application for maintenance, also asked for alimony pendente lite in her petition. Learned counsel for both parties, at the hearing of the application, appear to be confused as to the difference between an application for alimony pendente lite under the English Matrimonial Causes Act of 1950 (including the Rules made thereunder) and an application for maintenance pending the disposal of proceedings made under the Matrimonial Causes Decree 1970 (Decree No. 18 of 1970 which came into force on 17th March, 1970). Be that as it may, there can be no doubt whatsoever that the order of the learned trial judge was for alimony pendente lite. He made the order, notwithstanding the absence of any provision for such an order in the Matrimonial Causes Decree (hereafter referred to as the Decree), and in spite of the peremptory provisions of section 1 (1) of the Decree. Indeed, the learned trial judge himself, in the course of counsel’s argument, pointed out to learned counsel for the respondent that his affidavit contained nothing concerning maintenance.

The provisions with respect to maintenance are in section 70 of the Decree and they are as follows:-

“70( 1). Subject to this section, the court may in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.

(2). Subject to this section and to rules of court, the court may, in proceedings for an order for the maintenance of a party to a marriage, or of children of the marriage, pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.

(3). The court may make an order for the maintenance of a party notwithstanding that a decree is or has been made against that party in the proceedings to which the proceedings with respect to maintenance are related.

(4). The power of the court to make an order with respect to the maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of twenty-one years unless the court is of opinion that there are special circumstances that justify the making of such an order for the benefit of that child.”

Not only have the above provisions done away with the confusing terminologies of “alimony”and “maintenance” by using the word “maintenance” even when alimony in the conventional sense is intended, they have also presumably done away with the rule concerning one-fifth of the joint income for the wife (which, in any case, had its origin in the practice of the ecclesiastical courts), and have substituted a more reasonable yardstick.

Incidentally, the above provisions of section 70 are precisely the same as those of section 84 of the Matrimonial Causes Act, 1959-1966, of Australia. It will be observed that while subsection (1) of section 70 of the Decree requires the court in proceedings for maintenance, other than proceedings for maintenance pending suit, to make such orders as it thinks proper having regard to the means, earning capacity, and conduct of the parties, and to all other relevant circumstances, subsection (2) requires the court in an application for maintenance pending the disposal of proceedings (such as the one made in the case in hand) to have regard to the same matters but subject to the rules. Although no rules have been made under the Decree, we think it relevant to point out that the Australian. Rules (and particularly rules 204(6) and 210) not only limit the court’s enquiry to matters of conduct other than conduct that is in question in the proceedings for principal reliefs (unless this is admitted), they also set out detailed procedure on the various circumstances under which orders for maintenance in pending proceedings can be obtained. (See Toose on Australian Divorce Law and Practice paragraph 702 at pages 442-443). However, as Latham, C.J. has observed in Jeffery v. Jeffery (1941) 72 C.L.R. 570 at p. 581, each case must be considered in all its peculiar circumstances and particularly with regard to the station in life and the financial position of each of the parties. Moreover, in Wills v. Wills (1961) 2 EL.R. 136, which is another Australian case, the court held that the order for maintenance pending suit is not for the purpose of enabling the wife to share the husband’s fortune, but to ensure that the wife should be able to live approximately in the position to which she has been accustomed until the suit is heard.

From the above, it cannot be gainsaid that some of the matters considered by the learned trial judge are not particularly relevant when the application for maintenance pending suit is considered within the framework of section 70(2) of the Decree. If he had acted with these provisions of the Decree in mind, the learned trial judge would neither have applied the one fifth rule nor would he have had any regard to other matters which must be and are irrelevant to a consideration of ancillary reliefs. He was clearly in error in doing so.

For all these reasons, we cannot allow the order of the learned trial judge to stand. The appeal is, therefore, allowed. The order of the Lagos High Court made on 10th July,1970, for the payment by the respondent/appellant of the sum of 100 monthly or 1,200 per annum to the petitioner as alimony pendentelite, including the order as to costs, is set aside.

We further order that the application for maintenance of the petitioner pending the disposal of her Petition should be sent back to the Lagos High Court for rehearing before another judge who should also at the same time see to it that the main petition is heard as soon as possible. There will be no order as to costs.

Other Citation: (1974) LCN/1961(SC)

Colonel Olu Rotimi & Ors V. Mrs F. O. Macgregor & Ors (1974)

LawGlobal-Hub Lead Judgment Report

G. B. A.COKER, JSC.

The present appellants were the defendants in an action instituted against them by the respondent, Mrs. F. O. MacGregor, as plaintiff, in the High Court of Lagos State. The writ in the action was endorsed for the following claims, that is to say – “(a) A declaration of title to that piece or parcel of land situate lying and being at Anifowose Village, Ikeja, Lagos State described in a plan to be filed in this suit; (b) £3,260 special and general damages suffered by the plaintiff from the defendants on 20th day of March, 1970, wrongfully breaking and entering into the plaintiff’s piece or parcel of land situate lying and being at Anifowose Village, Ikeja, Lagos State in the plaintiff’s possession and there damaging the plaintiff’s properties; (c) An injunction against the defendants by themselves their servants and/or agents or otherwise from interfering with the plaintiff’s possession of the said piece or parcel of land.”

The parties duly complied with the orders of court to file pleadings and in due course severally amended their pleadings. By her amended statement of claim, the plaintiff claims to have always been in possession of the land in dispute by herself and her predecessors-in-title; she claimed that the land originally belonged to one Oshoja who died many years ago, one of whose descendants was Iyade and whose descendants eventually sold the piece of land in dispute out of a large whole to one Alhaji Alli Isiba who in turn had sold to her by virtue of an indenture of conveyance dated the 24th September, 1967 and registered as No. 31 at p.31 in Volume 1027 in the Register of Deeds kept in the office in Lagos and confirmed or rectified by a deed of “rectification” dated the 8th July, 1971, from the head and other representatives of the Iyade family. It is also part of the plaintiff’s case that by virtue of an indenture of conveyance dated the 23rd day of February, 1970, and registered as No. 64 at p.64 in Volume 1311 in the Register of Deeds kept in Lagos, and rectified by another deed of rectification dated the 8th April, 1971, and registered as No. 74 at p.74 in Volume 1350 in the Lands Registry Office in Lagos, the said Alhaji Alli Isiba sold and conveyed the said parcel of land to the plaintiff who then immediately went into possession and commenced building operations therein. Paragraph 16 of the plaintiff’s amended statement of claim then avers as follows:-  

“16. That sometime in March 1970, the plaintiff began her building operations on the said land and the said building proceeded up to the damp proof course level when on or about 23rd day of March 1970, the defendants, their servants and/or agents including fully armed soldiers in uniform forcibly broke and entered into the said land in dispute which was in possession of the plaintiff as aforesaid and broke down the plaintiff’s shed, destroyed her cement blocks and other building materials on the said land.”   By their amended statement of defence, the defendants claimed that the land in dispute is but a portion of a large area or tract of land originally belonging to the “Oshoja family (otherwise known as the Iyade Oshoja family ………….)” and that the 1st defendant claims ownership of the said land by virtue of a conveyance dated the 5th day of February, 1965, and registered as No. 46 at p.46 in Volume 814 of the Register of Deeds kept in the Registry Office in Lagos from that family to one Karimu Arubo who then conveyed same to the 1st defendant for an estate in fee simple in possession by virtue of another conveyance dated the 25th day of July, 1969, and registered as No. 47 at p. 47 in Volume 1292 of the Register of Deeds kept in Lagos. Paragraphs 8 and 9 of the statement of defence plead thus:- “8. The defendants will at the trial of this action rely on proceedings and judgment in Supreme Court Suit No. 345/1933 (Odu Abijo & Anor. vs. M. B. Nuru & Ors.).

9. The defendants plead that his predecessors in title were in possession of the land prior to the date when the plaintiff’s predecessor-in-title purported to acquire title to the land or any portion thereof.” Apart from the general traverse appearing at the top of the amended statement of defence, there is no specific pleading in answer to paragraph 16 of the plaintiff’s statement of claim.  

Both parties gave evidence at the trial and in the course of a reserved judgment, the learned trial Judge stated concerning the claim of the plaintiff for declaration of title that- “The plaintiff’s claim for a declaration of title cannot, in my view, succeed. In the course of the address I invited learned counsel on both sides to address me on the matter of non-suit and they did. In my view the plaintiff’s case for a declaration ought not to be dismissed as I think if properly presented, it may be possible for her to present a case that might lead to an order for a declaration of title. I will say no more than that.

I have decided that neither party to this action has established a right to title.” With respect to the claim for damages for trespass, the learned trial Judge concluded that – “I believe that those who had been in possession of the land sold to Isiba and delivered possession to him. I believe that Alhaji Isiba did exercise rights of possession over the land before he sold the portion with which we are here concerned to the plaintiff.

The type of conduct which indicates possession must vary with the type of land. In this case it was originally farmland later sold for building purposes. It was sufficient that fruits were reaped from it originally and later it was cleared and made ready for building. The plaintiff herself has established beyond question that she was in possession of the piece of land in dispute and that they bore the pillars Nos. YS1257, YS1258, YS1259 and YS1261 when on 20th March 1970 the land was trespassed upon and damage caused thereupon.”  

He then considered the implications on the case of the plaintiff vis-a-vis the 1st defendant of Section 161(1)(c) of the Constitution of Nigeria, 1963, and held that as the 1st defendant became the Military Governor of the Western State during the pendency of this case, the action should not have been continued thereafter against him. He however found against the 2nd and 3rd defendants on the head of claim for trespass and awarded against both of them “jointly and severally” an amount of £600 (or N1,200) together with costs.

The learned trial Judge made no order whatsoever in respect of the plaintiff’s claim for injunction, apparently because of his views concerning the constitutional position or status of the 1st defendant. The defendants have appealed against the decision of the High Court to this Court and, on behalf of the plaintiff a notice under Order 7 Rule 13 of the Rules of the Supreme Court was filed indicating that she would contend at the hearing of this appeal that she should have been awarded title to the land in dispute.

Before us on appeal, learned counsel for the defendants argued his appeal under four main grounds as follows:- (i) Plaintiff’s title is void and not just voidable and her claim to title and others should have been dismissed; (ii) Defendants’ title is merely voidable and not void and on that ground plaintiff’s action should have been dismissed; (iii) The defendants in any event were in prior possession of the land in dispute and so the plaintiff’s case should have been dismissed; and (iv) Weight of evidence.

It is apposite at this stage to refer to a point of considerable importance which although not directly canvassed in this Court, as it was in the High Court, yet is of paramount significance in the institution of this case, the parties thereto, the continuance of it and its prosecution to the end and indeed the final judgment on the many issues raised and decided thereby. In the course of his final address to the High Court, Lagos, learned counsel for the defendants for the first time and without at any time pleading it raised the question of the constitutional position of the 1st defendant, who was at that time and until now the Military Governor of the Western State.

Learned counsel submitted before the High Court that by virtue of Section 161(1)(c) of the Constitution of the Federation of Nigeria, 1963, the court could not give any judgment against the 1st defendant, that it was not necessary for him to plead that section of the Constitution which although it purports to confer a private right or privilege to immunity is evidently a matter of public policy embodied in a public act or legislation of which the court is bound to take judicial notice and which could not, by the incumbent of the office concerned, be waived.

We stated earlier on that the learned trial Judge who tried the case considered these submissions. He came to the conclusion that the Constitution of the country is a public act of legislation, that the section concerned involves public policy which the 1st defendant could not waive himself and so declined to make any orders against him. We refer to section 161 of the Nigerian Constitution, 1963, which provides as follows:- “161(1) Without prejudice to the generality of Section 156 of this Constitution – (a) no criminal proceedings shall be instituted or continued during his period of office against a person to whom this subsection applies; and  (b) such a person shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and

(c) no proceedings in which relief is claimed against such a person in his personal capacity shall be instituted or continued in any court during his period of office; but in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this subsection applies, his period of office shall be left out of account.  

2. Subsection (1) of this section applies to a person holding or required to perform the functions of the office of the President or of the Governor of a Region, and in that subsection “period of office” means, in relation to such a person, the period during which he holds or is required to perform the functions of the office in question. Manifestly, the section is prefaced “without prejudice to the generality of Section 156 of this Constitution”.

If one turns to Section 156 it is easy to see that that section of the Constitution preserves all the existing laws and, in adapting them within the umbrella of the Constitution, prescribes that they should “have effect with such modification (whether by way of addition or alteration or omission) as may be necessary to bring that law into conformity with this Constitution and the Constitution of each Region”. (See Section 156 of the Constitution for this reference). So that, in effect, whatever laws might exist outside the Constitution Section 161(1) prescribes that it will supersede any such laws.

The result is that the Court is bound to accede to the provisions of Section 161(1) of the Constitution no matter what any other laws of the country might say to the contrary or in derogation thereof. We think that the learned trial Judge was right in concluding that Section 161(1)(c) of the Nigeria Constitution confers an immunity on the 1st defendant and that the action should not have been continued against him since he became the Governor of the Western State during the pendency of the present proceedings. No question of waiver arises, for the section prescribes an absolute prohibition to “any court” during the period of office of the holder of any of the posts described in Section 161(2) of the Constitution to entertain any claim for relief against such person.

PAGE| 6 In this circumstance, the learned trial Judge should have struck out the case of the plaintiff as against the 1st defendant which, in effect, is what he did, although he made no formal order in that respect. Learned counsel for the defendants did not in the course of his address to us in this Court, contend the issue or claim the benefit of the Constitutional provisions and it is manifest from the way he had argued the appeal and the issues he had canvassed that he was not willing to rely on Section 161(1) as precluding the continuance of these proceedings against the 1st defendant. On the other hand, learned counsel for the plaintiff urged that this case should in all respects be dealt with on its merits against all the defendants, including the first, inasmuch as any immunity conferred by the Constitution was not pleaded by the defence.

We are of course unable to accept the studied silence on the part of learned counsel for the defendants as well as his indirect suggestion of having waived the benefit of this section of the Constitution; we are also unable to accept the contention which we consider tenuous of learned counsel for the plaintiff suggesting that the absence of pleading on this point is an express waiver of the privilege which the Constitution creates and confers. With respect to the defendants, we are satisfied that the provisions of Section 161 of the Constitution are peremptory and admit of no waiver and with respect to the plaintiff we point out that the contention overlooks the introductory words of Section 161 of the Constitution which words clearly assert the supremacy of the Constitutional provisions over any other laws including the laws of pleadings

The case is however different with respect to the other defendants against whom the plaintiff had claimed on her writ as well as in her statement of claim “jointly and severally” with the 1st defendant. In the plaintiff’s amended statement of claim, after referring to the matters of her title and the entry on the land in dispute by the 2nd and 3rd defendants, the plaintiff’s statement of claim avers in paragraph 18 thereof as follows:- “That the defendants admitted the matters referred to in paragraph 16 of this Statement of Claim and disputed the plaintiff’s title to the said land.”   Again, apart from the general traverse in the single statement of defence filed on behalf of all the defendants, this paragraph of the statement of claim was nowhere specifically denied. On the simple rules of pleading, therefore, these defendants had joined issue with the plaintiff on all her claims. In any case the plaintiff’s writ claims against all the defendants “jointly and severally”.

On the first, second and the fourth grounds of his appeal, learned counsel for the defendants argued that the plaintiff’s claim for a declaration of title should have been dismissed and not just non-suited because:-

PAGE| 7 (i) her title is void and not voidable; and (ii) the title of the defendants is at the worst only voidable.  On the other hand, in his own contention on the cross-appeal (or notice under Order 7 Rule 13) learned counsel for the plaintiff argued that the learned trial Judge should have awarded the plaintiff a declaration of title and that the judgment of the High Court was against the weight of evidence.

We have already referred to the pleadings of the parties and obviously on the defendants’ pleadings the 2nd and the 3rd defendants had not pleaded any claim to title. But, as pointed out before, at the close of pleadings, they were contesting that issue with the plaintiff and indeed that was one of the grounds of appeal filed on behalf of the plaintiff. In short, they had put the plaintiff to the proof of her title.   Undoubtedly, both sides are in agreement that the radical title to the land in dispute was vested in one Oshoja who died many years ago and whose progeny now exercises dominion over a large tract of land of which the portion in dispute forms a part. This was pleaded in paragraph 6 of the plaintiff’s amended statement of claim and admitted in the defendants’ amended statement of defence.

The 1st defendant claims to be owner of the land by virtue of a conveyance dated the 25th July, 1969, from one Ajayi Arubo (alias Karimu Ajayi Arubo) to himself (see Exhibit 30 and Exhibit 35). That conveyance states that Ajayi Arubo was owner of the land in fee simple. His own vendor, Karimu Arubo, originally bought from the Oshoja family by virtue of a conveyance dated the 5th February, 1965 (Exhibit 29 and Exhibit 29A) in which the parties were recited, in the introductory recital, as follows:-  

“THIS INDENTURE made the 5th day of February, 1965, between (1) OKE AMINOTU of 56, Isheri Road, Orile Ikeja, Western Region of Nigeria, (2) AYODELE OGISANRIN of 9, Lanbade Street, Orile Ikeja aforesaid, (3) LEMOMU KASUMU BELLO of Mushin, Western Nigeria and (4) LASISI SALU of 24, Alashe Place, Ojuwoye, Mushin aforesaid for Ourselves and as Principal members and representatives of Iyade-Osoja Family of Orile Ikeja aforesaid (hereinafter called “the vendors” which expression shall include their heirs, legal personal representatives and assigns) of the one part AND KARIMU AJAYI ARUBO of 5, Olumorokun Street, Mushin, Western Region of Nigeria (hereinafter called “the purchaser” which expression shall include his heirs, legal personal representatives and assigns) of the other part.” On the other hand, the plaintiff claims to have purchased the same land from Alhaji Alli Isiba by virtue of a conveyance dated the 23rd February, 1970 (Exhibit 2) and that conveyance recites that her vendor was “seised of the said hereditaments in fee simple absolute in possession”.

The conveyance also recites the title of the plaintiff’s vendor as follows:- “Whereas the hereditaments hereinafter intended to be conveyed forms portions of a large piece or parcel of land originally belonged to the IYADE FAMILY of Ikeja. AND WHEREAS under and by virtue of a Power of Attorney dated the 22nd day of March, 1966 and registered as Number 18 at Page 18 in Volume 908 of the Lands Registry at Ibadan (now Lagos) one Chief Mohammed Ilo (the Olu of Ikeja), Yinusa Salu, Jimo Oke and Nosiru Akanbi Afariogun were appointed the Attorneys of the said IYADE FAMILY. AND WHEREAS under and by virtue of a Deed of Conveyance dated the 24th day of September, 1967, and registered as Number 31 at page 31 in Volume 1027 of the Lands Registry in the Office at Ibadan (now Lagos) expressed to be made between the said ATTORNEYS and the VENDOR herein, the VENDOR became seised of the said hereditaments in fee simple absolute in possession.” The power of Attorney recited was in fact produced at the trial and it was received in evidence as Exhibit 24.

In that document, i.e. Exhibit 24, it was recited that the land concerned originally belonged to “one Olo the founder of Ikeja Village” who died some 200 years ago and was survived by “his only child Iyade”. In the same way, the conveyance by virtue of which the plaintiff’s vendor Alhaji Alli Isiba bought, was produced in evidence as Exhibit 22. The conveyance Exhibit 22 also recites the title of the vendors therein as follows:-   “WHEREAS the hereditament hereinafter described and intended to be hereby conveyed for an estate in fee simple forms a part or portion of a large tract of land which originally belonged to one Olo the founder of Ikeja Village, who was exercising all rights of ownership and possession over it until his death.

WHEREAS the said Olo died intestate about 200 years ago, and was survived by his only child TALABI who inherited the land under Customary Law. WHEREAS the said IYADE died intestate so many years ago and was survived by her four children namely: AINA OSE, MAKU BALE ILO and OSENATU OGISANRIN who inherited the land under Customary Law.” So clearly, by both Exhibit 22 the conveyance to the plaintiff’s vendor and Exhibit 2 the plaintiff’s own conveyance, the land in dispute was described as originally belonging to one Olo one of whose descendants was Iyade. It is important to note, firstly, that there is clearly a confusion with respect to the recitals in Exhibit 22 and also that in both sets of assurances, i.e. the plaintiff’s document and the defendants’ document, reference has been made to one Iyade as at one time or the other succeeding his ancestor as the owner of the land in dispute.

The present proceedings were instituted by writ dated the 25th March, 1970, and the original and first statement of claim filed by the plaintiff was dated the 19th May, 1970, and, understandably, that statement of claim pleads the original ownership of the land in dispute by Olo who was survived by “his only child named Iyade….” . The first statement of defence was dated the 29th May, 1970, and clearly pleaded that the land originally vested “in the Oshoja family (otherwise known as the Iyade Oshoja family)”. Apparently, prompted by these facts, the donors of the power of attorney in Exhibit 24 executed another deed described as an “Indenture Deed of Rectification” and dated the 13th January, 1971, and produced in evidence as Exhibit 25 whereby they agreed to alter or amend the recitals in the original power of attorney, Exhibit 24, by deleting the existing recitals concerning Olo and substituting the operative clauses in the new document Exhibit 25.

The operative clauses in the said deed of rectification, Exhibit 25, read as follows:- NOW IT IS HEREBY AGREED AS FOLLOWS:- 1. The Principal Power of Attorney shall be read and construed as if the recitals Nos. 3, 4, 5 and 6 thereof were deleted therefrom and in place thereof the following recitals were substituted, that is to say:- (3) The said large tract of land originally belonged to one Osoja the founder of Ikeja Village who exercised all rights of ownership and possession in and over same until the time of his death. (4) The said Osoja died intestate many years ago and left him surviving four children, namely; Idowu Aso, Akinlabi, Talabi and Oduboye who immediately went into possession and fully exercised maximum overt acts of ownership in and over same. (5) The said Talabi also died intestate many years ago and left Iyade her only surviving child who also went into immediate possession of the said land and exercised maximum overt acts of ownership in and over same. (6) The said Iyade died intestate many years ago and was survived by four children, namely; Aina Ose, Maku Bale Ilo and Ogisanrin on all of whom the said land devolved by right of succession.

2. As varied as aforesaid the Principal Power of Attorney and every clause thereof shall continue to be binding and in full force and effect.” Consequent upon this rectification of Exhibit 25, the plaintiff’s own vendor, Alhaji Alli Isiba, and his own grantors executed another “deed of rectification” dated the 9th February, 1971, i.e. Exhibit 23, by which they agreed to substitute corresponding recitals in Exhibit 25 for the original recitals in Exhibit 22 and, in further consequence of this, the plaintiff’s vendor and the plaintiff entered into another deed of rectification dated the 8th April, 1971, i.e. Exhibit 27, by which they agreed to amend the recitals in the plaintiff’s original conveyance Exhibit 2 by substituting therefor recitals showing that Oshoja was the original owner of the land in dispute.

The resultant position as created by this series of exercises is as follows:-  (i) If the Power of Attorney Exhibit 24 is read in conjunction with the Deed of Rectification, Exhibit 25, the result is that the donors of the Power of Attorney were acting in respect of the same lands as owned originally by Oshoja and had descended through his issues to one Iyade; (ii) If the conveyance to Alhaji Alli Isiba, Exhibit 22, is read in conjunction with the Deed of Rectification, Exhibit 23, the result is that the same vendors sold the same land but characterised the land as originally belonging to Oshoja and not Olo; (iii) If the conveyance to the plaintiff, Exhibit 2, is read in conjunction with the Deed of Rectification, Exhibit 27, the result is that the land sold to the plaintiff by Alhaji Isiba originally belonged to Oshoja through whose line it has devolved on Iyade. Now, by the amended statement of claim filed on the 24th April, 1971, the plaintiff has pleaded all the documents concerned and in paragraph 6 thereof states that the said land “formed portion of the land which originally belonged to one Oshoja from time immemorial”.

As stated before, the defendants in paragraph 4 of their amended statement of defence admitted this. We have already stated that at the trial both sides gave evidence as to the ownership of the land by Oshoja, the plaintiff’s witnesses being Momodu Ilo, described as the Olu of Ikeja and, by the plaintiff, as the Head of the Oshoja family, and one Jimoh Oke; and the defendants’ witnesses being Karimu Ajayi Arubo, the defendants’ predecessor-in-title (who stated that those who had sold to him by Exhibit 29 were principal members and representatives of the family and denied that Momodu Ilo was ever the Head of the same family) and one Lasisi Salu. In his consideration of the defendants’ title and the conveyance Exhibit 29, the learned trial Judge expressly rejected that title. He said, inter alia, as follows:-   “I have given adequate consideration to the evidence adduced on behalf of the defence as to the title of Arubo, the predecessor in title of the 1st defendant. I am by no means satisfied about Arubo’s title. Quite apart from the execution of the deed of conveyance, Exhibit 29, made by Oke Aminatu, Ayodele Ogisanrin, Lemomu Kasunmu Bello and Lasisi Salu to Karimu Arubo, with which I am not satisfied, is the fact that these persons all come from the Ogisanrin branch of the family. Yet they too conveyed for and on behalf of the Iyade/Osoja family’! There was no evidence that the sale was authorised by Iyade/Osoja family or even by the Ogisanrin branch.

Members of the Ogisanrin branch of the family who had testified (Jimoh Oke and Sikiru Kasumu) said that there was no such authority and I believed them. I am also not satisfied with the evidence of Karimu Arubo or his brother Lasisi Salu.” PAGE| 11 The learned trial Judge refused the application of the plaintiff to yet further amend her statement of claim and then dealt with the several deeds of rectification, Exhibit 23 and Exhibit 27 (and impliedly Exhibit 25), and observed thus:- “I wish now to turn to the deeds of rectification Exhibits 23 and 27.

The plaintiff filed her action on 26th March, 1970. The deed of rectification Exhibits 23 and 27 were executed in her favour on 9th February, 1971 and 8th April, 1971 respectively. The rights, purported to have been acquired by her in 1971 did not exist on 26th March 1970 when she was claiming an order for a declaration of title.” Later, and in the course of determining the same point, the learned trial Judge observed:- “In the light of the foregoing it is my view that although the deeds of rectification Exhibits 23 and 27 were admitted in evidence and the pleading of the plaintiff was amended to permit her to let them in, they avail her nothing in so far as the present case for declaration of title is concerned. The rights, if any which she acquired under them did not exist when she filed her action for a declaration of title.” In coming to that conclusion, the learned trial Judge referred to the cases of (i) Blenkhorn vs. Penrose (1880) 43 L.T. 668 and (ii) The Tottenham Local Board of Health vs. Lea Conservancy Board (1885) 2 T.L.R. 410.

These cases, in our view, stand on a completely different pedestal and it is right to say that in Blenkhorn’s case, supra, the amendment asked for was in fact granted by the court. In the other and later case the rationale of the decision is that the court should be reluctant in granting an amendment which would constitute a new cause of action. But whilst the refence is apposite with respect to the application of the plaintiff to further amend her statement of claim to plead partition (which application was refused) it is clearly not relevant in the consideration of the deeds of rectification which had been fully set out in the plaintiff’s amended statement of claim, the order for amending having been properly sought and made by the learned trial Judge himself.  

As stated before, learned counsel for the plaintiff argued on appeal before us that the learned trial Judge should have awarded the plaintiff a declaration of title. The learned trial Judge decided not to award title to the plaintiff on the grounds described, supra, but we think that he was mistaken. First of all, the cases on which he had based his decision were clearly unhelpful in that regard. Secondly, the decision of the learned trial Judge overlooked the fact that the plaintiff’s amended statement of claim filed on the 24th April, 1971, fully pleaded her conveyances and the other deeds of ratification, Exhibit 23, Exhibits 25 and Exhibit 27. Speaking about the effect of an amendment of pleadings, Hodson, L.J. observed in Warner v. Sampson & Anor. (1959) 1 Q. B. 297 at p.321 thus:-  “I do not think that this amendment can be ignored. Once pleadings are amended, what stood before amendment is no longer material before the court and no longer defines the issues to be tried.

Here the defendant has obtained leave to amend, and there has been no appeal against that order; and, whatever may have taken place at the hearing of the application to amend, the court must, I conceive, regard the pleadings as they stand, the purpose of amendment being to determine the real question in controversy between the parties:.”  

Manifestly, therefore, the plaintiff’s amended statement of claim filed on the 24th April, 1971, spoke in effect as from the date of the original statement of claim and it should be treated as such once the amendment was effected by leave or order of the court. The documents Exhibits 23, 25 and 27 are deeds not of any ratification of the plaintiff’s title or of tracing a different title but they are deeds of rectification of the recitals contained in the original documents which the plaintiff always held. She had not thereby set up any newly acquired title or cause of action. What she had altered or amended was the history of the same people who had granted to her the same land.

That amended family history is incidentally conceded by the defence and indeed learned counsel for the defendants in the course of the proceedings was willing to assume (and indeed said so) in her favour that with the introduction of the deeds of rectification her better title would have been proved. Before the High Court, there was a great deal of argument on whether or not the documents Exhibits 23, 25 and 27 introduced a new cause of action; we are satisfied that they did not and although they were made subsequently to the institution of the present proceedings, all they did was to substitute a new family history of the same grantees. In the course of his judgment, the learned tria

Other Citation: (1974) LCN/01348(SC)

Adama Dipcharima & Anor V. Alhaji Umar Ali & Anor (1974)

LawGlobal-Hub Lead Judgment Report

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

This appeal is against the judgments of Hague Ag. J., in Suit No. NEM/15/71 delivered respectively on 11/6/73 and 20/11/73. On 10/12/73 the learned trial Judge also awarded cost of N1,420 to the respondents.

The claims of the plaintiffs, who are now the appellants before us, are set out in paragraph 10 of the Statement of Claim which reads:-

“10. It will be the Plaintiffs case that no meetings of Directors or shareholders of the 2nd Defendant Company have been summoned or held to their knowledge since the death of the late Zanna Bukar Dipcharima aforesaid.

In consequence of the foregoing the Plaintiffs have suffered loss and damage and claim from the defendants jointly and severally:-

(1) A declaration that the 1st Defendant has no proprietary in the second defendant company not being a shareholder in the said company.’

On this first claim the learned trial Judge held as follows:-

“Among other things the Plaintiffs ask for a declaration that the 1st defendant has no proprietary interest in the 2nd defendant company. Manifestly he has not as the documents filed in the action do not show him as the owner of any share.”

On this finding one would have expected the learned trial Judge to enter judgment for the plaintiffs. The learned trial Judge had in an earlier portion of the judgment rejected Exhibit O which purported to be the minutes of a meeting purporting to have been held in 1965 whereby the 1st defendant was appointed a Managing Director.

This was quite rightly rejected because an abortive attempt was made in 1969, six years later and after the death of Zanna Dipcharima and his mother, to file particulars to reflect the purported appointment of the 1st defendant as Managing Director. For some reasons, which did not appear on the record, the learned trial Judge contradicted himself by saying that 1st defendant could have been validly appointed a director, and by some further strange reasonings held that the plaintiffs had acquiesced in such appointment by not objecting to the company’s 2nd defendant’s headed note-paper in which the name of 1st defendant was shown.

If the learned trial Judge had realised that he was trying the case on issues joined by the parties in their pleadings, he might not have embarked on a fruitless endeavour of considering matters not raised in the pleadings. After all, trials based on pleadings filed by parties, are prosecuted on the lines of issues raised and joined by the parties. The judgment of such a court must, we wish to emphasise, turn on such issues as had been joined. The question of the law applicable must necessarily be based on the findings made.

It is very tempting for a trial Judge, in his endeavour to do justice “to wander into areas not pleaded by the parties” and thereby open himself to a charge of either unintentional miscarriage of justice or purported leaning to one side, thereby leaving himself open to an allegation of impartiality. Although we do not believe that the learned trial Judge did these alleged acts deliberately, we nevertheless will be shirking our duties if we fail to point out that departures from settled practice and procedure could leave a court open to such charges.

We are, therefore, of the view that the learned trial Judge was wrong, both in law and on the facts, to have held that claim for declaration was not made out. We hold that the claim was made out and that judgment should have been entered in accordance with the relief sought.

The second head of claim in paragraph 10 of the Statement of Claim reads:

“An order directing the 1st defendant to render a full account of all the affairs of the said 2nd defendant company from 1st April 1969 to the present time as managed by him under his assured role of Managing Director.”

On this item of claim the learned trial Judge in his judgment said:-

“Evidence has been led during the hearing which indicates that the second defendant company is a large, scale operator. The extent of its transport holdings and the large transactions disclosed in the bank statements put this beyond doubt. The averments in paragraphs 6(a) and (b) of the statement of claim were withdrawn during the hearing, but it has been established that no annual returns have been filed since the death of Z.B. Dipcharima and no accounts circulated to the members.

“Averments that qualified Accountants audited the accounts in the years 1967, 1968 and 1969 and that financial report “dated 3/9/1969 was circulated to the members were withdrawn during argument. In consequence it is absolutely essential for the just determination of this action that the 1st defendant do file accounts in this Court for the year, 1969 to the end of the 2nd Defendant Company’s last financial year, all inclusive and in addition shall file a copy of the report referred to in paragraph 11 of the Defence.

“I order that the necessary documents be filed within 30 days and a decision on the other relief claimed by the plaintiffs will be deferred until the documents have been filed and considered.” (underlining ours)

The learned trial Judge having found as above, should have granted the order sought for by the plaintiffs and made a consequential order that the 1st defendant should file the accounts as requested and served same on the plaintiffs within a given period, and should also grant the plaintiffs time to falsify and surcharge the accounts as filed within a specified period. However, the court did not do this; instead it ordered that statements of accounts be filed both outside and within the period requested by the plaintiffs, and it made no consequential order for service on the plaintiffs for falsifying and surcharging the accounts. In the ensuing period granted and later extended by the Court, the accounts were never filed nor properly tendered in Court. The result was that when the plaintiffs were asked to address the court on the accounts he had not seen, they declined to do so. One wonders what the learned trial judge expected them to say on statements of accounts which were not filed in Court or served on them, but which were allegedly handed by counsel for the defendants to the trial Judge in chambers. It is wrong of the learned trial Judge not to order the 1st defendant, as claimed by the plaintiffs, to file the accounts and serve same on them for falsifying and surcharging. We are of the opinion that the learned trial Judge, having found that the complaints as averred were made out, was justified in refusing to make the order sought for in their second item of claim. We, therefore, hold that learned counsel for the plaintiffs was justified in his complaint against Claims three and four which read as follows-

“(iii) A perpetual injunction restraining the 1st Defendant, his agents, servants and other such representatives from intermeddling with the affairs of the said 2nd Defendant Company except in accordance with its Memorandum & Articles of Association and/or the Companies Decree, and

(iv) 100000 pounds, being Damages against the 1st Defendant for wrongfully intermeddling with the affairs of the 2nd Defendant Company as aforesaid.”

In view of the finding of fact of the learned trial Judge that Exhibit O was ineffectual to appoint the 1st defendant either as a Director or a Managing Director, the claims on these heads should have been granted.

The appeal succeeds and it is allowed. We therefore make the following orders:

“1. We hereby set aside the judgments of 11th June, 1973 and 20th November, 1973 by Hague Ag. J, including his award of costs assessed at 1,420 Naira in favour of the defendants.

2. We order that the claims of the plaintiffs on the four heads as per paragraph 10 of the statement of claim be hereby granted.
3. Consequent on (2) above, we order that 1st defendant should as from the date of this judgment cease to intermeddle with the 2nd defendant Company and cease to parade himself as Managing Director of 2nd defendant Company which we hold to be an invalid assumption of office.
4. We order that all audited statements of account from 1st April 1969 up till date should be filed with the Court below and served on the plaintiffs on or before 1st February 1975, and that the Plaintiffs should be served with such audited accounts, with liberty to falsify and surcharge the accounts duly filed, within 30 days of the service on them, and the lower Court should make the necessary order after the filing, falsifying, and surcharging of the accounts. It is further hereby ordered that the accounts when finally settled be filed with the Registrar of Companies.
5. For the avoidance of doubt, we hereby order a perpetual injunction against 1st defendant, from the date of this judgment, to cease all forms of management of the 2nd defendant Company and hand over the management to the plaintiffs. We also order that the 1st defendant should forthwith make out a handing-over note to the plaintiffs, and that such handing-over to the plaintiffs be effected on or before 1st February, 1975.
6. We hereby order the 1st defendant personally to pay damages of 200,000 Naira for intermeddling without any lawful authority from the date the late Zanna Bukar Dipcharima died in 1968 up till date.
7. In view of the foregoing orders, we hereby order the plaintiffs to summon a meeting of all share-holders to regularize the position of things by making appointments, if so advised and resolved at the meeting, of those who are to manage the 2nd defendant company; and that such meeting should take place after the accounts have been settled in the Court below.
8. The above orders for settling the account as filed and for falsification and surcharging should be carried out in the lower court before another Judge, and not by Hague Ag. Judge.
9. We hereby order that the 1st defendant do pay costs assessed at 2000 Naira in the High Court and at 104 Naira in this Court.
10. We further hereby order that a copy of this order restraining the 1st defendant from managing the 2nd defendant Company and operating its banking account, in all banks in which the accounts of 2nd defendant company is or are kept, be served on

(a) all relevant banks

(b)the Northern States Produce Marketing Board.

(c) the Registrar of Companies in the Federation Ministry of Trade.

These orders shall constitute the judgment of this Court.

Other Citation: (1974) LCN/1847(SC)

I. A .O. Adebajo v. Tennessee Nigeria Inc. (1974)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N.

This is an appeal from the judgment of Kassim, J., in Suit No. LD/529/66 delivered in the High Court of Lagos State on August 21, 1967, in which he non suited the plaintiff in respect of his claim against the defendant for the use and possession of the premises in question, but granted the plaintiff’s other two claims in respect of the Lagos City Council Rates and the defendant’s share of the cost of consumption of electricity on the premises. The plaintiff’s claim against the defendant was for the sum of 2,650: 13:9d made up as follows:

“(1) Use and possession of office space covering approximately.

1,800 square feet on the third floor of 144, Broad Street, Lagos, for the period 16th February to 15th August, 1966, at 3,060 Pounds per annum ………………………….1,530 Pounds

(2) Lagos City Council Rates for the period February, 1965 to August 1966, i.e. 11/2 years at 1/5 of 2,980pounds per annum in respect of the said office space at 10/’97 in the …..447pounds

(3) Share of electricity consumption from February 1965 to 31st October, 1965, plus fixed charge for November, 1965 to August, 1966 to August, 1966……………………

673:13:9d

TOTAL 2,650:13:9d

Pleadings were ordered and were filed. The plaintiff led evidence to show that under the Deed of Lease (Exhibit A), the parties agreed that at the expiration or sooner determination of the lease, the defendant would peaceably yield up to the plaintiff the demised premises, subject to the defendant’s right to exercise an option to renew the lease at any time within six months before its expiry. It is common ground that the lease is a yearly tenancy which took effect from February 16, 1965, that the defendant left the premises in October but kept the keys until August, 1966 when he surrendered them to theplaintiff, and that the defendant never exercised the option contained in the lease. The learned trial judge thereupon proceeded to non-suit the plaintiff in respect of the claim for use and occupation of the premises for the period February 1966 to August 1966 when the tenant held over after the expiry of the lease as contained in the Deed of Lease. The learned trial judge, however, granted the other two claims of the plaintiff, with the amounts of claims substantially reduced in each case.

The present appeal has been brought by the plaintiff/appellant mainly against the non-suit of the claim for use and occupation of the premises. As finally formulated, the grounds of appeal are as follows:

“1. The learned trial judge erred in law in holding that ‘plaintiff’s right is an action for breach of contract’ .

Particulars of Error.

The contract between the parties having determined on the expiration of the lease the plaintiff was entitled to commence an action for use and occupation.

2.Judgment is against the weight of evidence.”

Mr. Ajose-Adeogun, learned counsel for the appellant, contended that the learned trial judge was in error in basing his judgment on the fact that there was none, the Deed of Lease having expired with the date of the expiration of the yearly tenancy in February 1966. He pointed out that both parties are agreed on this point, the plaintiff having averred it in paragraphs 1, 2 and 3 of his Statement of Claim, which the defendant specifically admitted in paragraph 2 of his Statement of Defence. It was his contention that the learned trial judge did not consider these facts and thereby misconceived the point when he ruled as follows:

Having gone carefully through the cases cited by counsel on both sides, and especially the unreported case E.O. O. Fasheun v Pharco (Nigeria) Limited, Lagos, Suit No. WI326166 decided by Taylor, C.J., I hold that the first item of plaintiff’s claim must fail, exhibit A’ is a lease under seal, therefore, the plaintiff has no right to sue the defendant for use and occupation Will & Redman Law of Landlord and Tenant, 14th Edition, Page 336: Halsbury, 3rd Edition, Vol. 23, Page 559, Paragraph 1229. It is quite plain from the above judgment of Taylor, C.J., that plaintiff’s right is an action for breach of contract. I wish to say here also that the tenancy determined by effluxion of time and that surrender is not involved here.”

Learned counsel for the appellant referred us to Halsbury’s Laws of England, 3rd Edition, Vol. 23, paragraph 1229 and Woodfall on Landlord and Tenant, 27th Edition, Vol. 1, pp. 437-438 as authority for the proposition in a 1,800 square feet on the third floor of 144, Broad Street, Lagos, for the period 16th February to 15th August, 1966, at 3,060 per annum … … … 1,530

(2) Lagos City Council Rates

for the period February 1965 to

August 1966, i.e. 1 1/2 years at lIs of

2,980pounds per annum in respect of

the said office space at 10/- in

the … … 447

(3) Share of electricity consumption

from February 1965 to 31st October

1965, plus fixed charge for November

1965 to August 1966 673 13 9d.

————-

Total 2,650 13 9d.

————–

Pleadings were ordered and were met. The plaintiff led evidence to show that under the Deed of Lease (exhibit A), the parties agreed that at the expiration or sooner determination of the lease, the defendant would peaceable yield up to the plaintiff the demised premises, subject to the defendant’s right to exercise an option to renew the lease at any time within six months before its expiry. It is common ground that the lease is a yearly tenancy which took effect from February 16, 1965, that the defendant left the premises in October but kept the keys until August 1966 when he surrendered them to the case like the present one, where a tenant held over after the expiration of the lease, he is liable to pay to the landlord an amount adjudged by the court to be due for the use and occupation of the premises concerned. We think that there is merit in this submission.

Mr. Egbe, learned counsel for the defendant/respondent, on the other hand, contended that the learned trial judge was right in the conclusion he had reached, and that he was even generous by merely non-suiting the plaintiff only on the first item of his claim. His main reason, as far as we could understand his argument, was that there was a contract under seal although it had expired after the one year of the lease, and it was his view that since the respondent was not on the premises all the time and did not in any case enter upon the premises since leaving it in October 1965, the respondent was not liable to pay for the period between February 1966 and August 1966 when he finally surrendered the keys. We are unable to accept this proposition of law.

The appeal, therefore, succeeds and it is allowed. Accordingly, the judgment of Kassim, J., in the Lagos State High Court in Suit No. LD/529166 delivered on August 21, 1967, whereby he non-suited the plaintiff on the claim for use and occupation of the premises, is hereby set aside, including the order as to costs. We, therefore, make the following orders:

(a) Judgment is entered for the plaintiff for the sum of 1,530 against the defendant for his use and possession of the premises in question from February 1966 to August 1966;

(b) The sum of 298pounds awarded by the learned trial judge in favour of the plaintiff as the defendant company’s share of the charges for rates and the sum of 242Pounds: 12:6d. as the defendant company’s share of charges for electricity consumption are hereby affirmed;

(c) The respondent should pay to the appellant costs assess at N160 in the court below and N100 in this Court; and

(d) This shall be the judgment of the Court.

Other Citation: (1974) LCN/1960(SC)

Armel’s Transport Ltd v. Transco (Nig) Ltd (1974)

LawGlobal-Hub Lead Judgment Report

A. G. IRIKEFE, J.S.C. 

When this appeal came before us on 7th October, 1974, after hearing counsel for the parties, we made the following orders:

(i) That the award of 500 (Five hundred pounds) general damages be refused:

(ii) That 3,940 (Three thousand nine hundred and forty pounds) be substituted as loss of earnings:

(iii) That 1,325 (One thousand three hundred and twenty five pounds) be confirmed as special damages for repairs:

(iv) That otherwise the appeal be dismissed; and

(v) That costs assessed at eighty-four Naira be awarded to the respondents.

We indicated at the time that we would give our reasons for making the above orders later, and we now do so. Before the High Court of Lagos State, the plaintiffs/respondents herein indorsed their writ against the defendants/appellants in the following terms:

The Plaintiff’s claim against the Defendants is for the sum of 6,525 {Six thousand Five Hundred and Twenty Five pounds} being special and General Damages suffered by the Plaintiffs as a result of the negligent repairs of the Plaintiffs’ Lorry Registration No. PL 2135 by the Defendants.PARTICULARS OF NEGLIGENCE

On or about the 24th day of April, 1968 the Defendants accepted the Plaintiffs’ lorry Mercedes Benz Type 1618 Registration No. P L. 2135 into their (the Defendants’) workshop at Apapa for repairs to the Engine, Gear Box, differential, water pump etc.

The said repairs was not “Completed” until the 9th day of September, 1968 when the Plaintiffs paid the Defendants’ bill of 181: 1: 10d but on inspection it was discovered that the repairs was badly done and the vehicle could not be driven out of the Defendant’s workshop.

The Defendants urged the Plaintiff to leave the Lorry with them and promised that proper repairs would be done.

The Defendants informed the Plaintiff of the completion of the repairs on the 30th December, 1968 but the said repairs was badly done and the vehicle was delivered in a worse condition than it entered the Defendants workshop.

The Plaintiffs were obliged to take the vehicle to Leventis Motors Ltd. Apapa for proper repairs which was completed on the 24th day of March, 1969.

(Particulars of Damages)

SPECIAL DAMAGES:

Cost of one shortblock damaged by the Defendants and condemned by…Messrs Leventis Motors Ltd 70(pounds).

Cost of repairs done by the Leventis Motors Ltd. as a result of the bad…workmanship of the Defendants 625.

Loss of use of the vehicle from the 9th day of September, 1968 to the 24th…day of March, 1969 i.e. 28 weeks @150 nett per week …..’4,200(pounds):

General damages….’ 1 ,000:

The action duly proceeded to hearing and at the end thereof, the lower court found for the respondents. The leamed trial judge concluded his decision thus:

“That the plaintiffs spent 700(pounds) for the purchase of the shortblock is therefore incontrovertible. The 1 st p. w. testified that he paid the sum of 625(pounds) to Leventis Motors Ltd. and in this he is supported by Exhibit F and the evidence of p. w. 2. All the items in Exhibit F would be done as part of the instructions if a person asked for the over-hauling of the parts in Exhibit A. According to p. w.2 (whose evidence I accept) Exhibit A is a precis of exhibit F. The sum of 625(pounds) paid by the plaintiffs to Leventis Motors Ltd. is therefore part of the damages which flow from the negligence of the defendants. With regard to the loss of use, the plaintiff claims 18:6:8d(pounds) per day from 9th September, 1968 to 24th March, 1969. This amounts to 3,377:6:8d(pounds) The plaintiff claimed that he could have earned 20(pounds) per day from the Army during this period and he produced Exhibits E-R6 to show that his vehicle was commandeered by the Anny and he further testified that he was paid 20(pounds) per day by the Nigerian Army. This piece of evidence is not challenged in any way and since I have no reason to disbelieve it, I accept it. There will be judgment for the plaintiff as follows:

(a) 1325(pounds) Special damages.

(b) 3,777:6:8d(pounds) Special damages (Loss of use)

(c) 500 (pounds)General damages

5,502:6:8d or N11,204.63

I award the plaintiffs costs assessed at N168.”,

This appeal is against the above decision and learned counsel for the appellants, Mr. Ogunsanya, relied exclusively on the-Three additional grounds of appeal in respect of which he had earlier obtained our leave. These grounds complain:

(i) “That the learned trial judge erred in law in awarding general damages in this case when all the losses alleged to have been sustained by the plaintiffs have been fully compensated for by the award of special damages.

(ii) That the learned trial judge eited in law and in fact when he awarded the sum of 3,337 :6:8d(pounds) as loss of use only on the ipse dixit of the plaintiffs and when there is no proof by the plaintiffs of such loss as required by law.

(iii) The learned trial judge erred in law in awarding the sum of 625(pounds) as cost of repairs by Leventis Motors Limited when the evidence before him was that this amount covered other items of repairs which were not occasioned by any negligence on the part of the defendants.”

On the first ground of appeal, counsel submitted that, in as much as the claim before the court was founded in negligence arising from the contractual relationship between the parties, it was only open to that court to award such damages as flowed directly form the breach of that contract, and no more. The situation here, counsel argued, differs from that in an action for tortious liability where damages are left at large. Again, counsel stressed that in the case in hand, it is plain that all losses established on the evidence had been compensated for by the damages awarded and that the sum of 500(pounds) could be no more than an attempt at double compensation, the more so, as no reasons had been given for the award.

In support of the above contention, learned counsel relied on THOMAS VS. KEREWI 1965 (1) ALL NIGERIA LAW REPORTS p. 95 at pp. 98-99 and EZEANI VS. EJIDIKE-1964 (1) ALL NIGERIA LAW REPORT p. 402 at p. 405.

We find considerable force in learned counsel’s argument on this ground of appeal and think that Mr. Adesanya, learned counsel for the respondent, was right in informing us that he did not wish to support the lower court’s decision on this award.

We note that, when dealing with the same principle of law as that raised in this appeal in the EZEANI VS. EJIDIKE case (Supra),Brett J.S.C. in delivering the judgment of this court at page 405 of the report observed thus:

“Where, as has happened here, a plaintiff asking for damages begins by setting out specific items of damages and then agds a claim under the heading of general damages for a sum which will bring the total claimed to a round figure, his claim should always be carefully scrutipised both by the defendant and by the court in order to see whether he is in fact asking to receive compensation more than once for the same cause of action. An instance of this occured in ONAGA & ors MICHO & Co. 1961 ALL NIGERIA LAW REPORTS p. 324, where this court held that having awarded damages for his actual loss under various specific headings a plaintiff in an action for breach of contract could not receive any further award under the heading of general damages. The measure of damages in an action in tort is not the same as in an action in contract, but the rule against double compensation remains the same.”

The award of 500(pounds) as general damages seems to us indefensible and is clearly in the nature of double compensation.

No argument of any substance was presented before us on grounds 2 and 3 and learned counsel for the appellants readily agreed, when it was pointed out to him, that there was in fact enough evidence before the learned trial judge to justify the award for loss of use of the vehicle and cost of repairs. We had, however, to alter the award for loss of use from 3,777:6:8d(pounds) as shown in the order of the lower court to 3,940(pounds) so as to harmonise it with the evidence which that court accepted, that is, loss of use as from 9th September, 1968 to 24th March, 1969 at the rate of 20(pounds). per day.

In the result, the appeal fails, and save as ordered above, it is dismissed.

Other Citation: (1974) LCN/1851(SC)

Casimir Odive V. Nweke Obor & Anor (1974)

LawGlobal-Hub Lead Judgment Report

ELIAS, CJN. 

This is an appeal against the ruling of Agbakoba, J., in Suit No. 0/5/1972 given in the Onitsha High Court on June 6,1973, and in which the learned trial Judge upheld a preliminary objection raised by the counsel for the defendants regarding the competence of the court to hear and determine the claim as laid. In the action, the plaintiff claims against the defendants, a man and a woman, jointly and severally:- “(1) An order of the court compelling the defendants to return to the plaintiff the plaintiff’s children, namely, Regina Ukamaka Odive, Benedette Ebelechukwu Odive, John Muoto Odive and Sussanna Chikodili Odive.

(2) £900 damages for the loss of the services of the aforesaid four children as specified hereunder: (i) £400 for the loss of the services of Regina Ukamaka Odive. (ii) £200 for the loss of the services of Benedette Ebelechukwu Odive. (iii) £200 for the loss of the services of John Muoto Odive. (iv) £100 for the loss of the services of Sussanna Chikodili Odive.” When the case came up for hearing, pleadings had been ordered by the court and duly filed and delivered by both parties.

The relevant facts are that the plaintiff averred in his Statement of Claim that in 1949 he was married to the 2nd defendant according to customary law, followed in 1950 by a marriage between the same parties under the Marriage Act, Cap. 115 of the Laws of Nigeria. The plaintiff also stated that all the four children born to him by the 2nd defendant were the issues of the marriage. Counsel for the defendants raised a preliminary objection in the following terms:   “I wish to raise a preliminary objection with respect to the claim – 1. Return of children. It ought to be by way of petition since marriage under the Act is foundation of the claim. 2. An action per quod servitium amissit cannot be joined to claim for return of children.” The learned trial Judge, after listening to both sides in respect of the objection, gave an adjourned ruling on June 6, 1973, in which he upheld the objection and struck out the case.   Against this ruling, the plaintiff/appellant has appealed on the following two grounds which were the only ones argued before us out of the four that were filed. These grounds are: “(1) (a) That the learned trial Judge erred in law in striking out the whole suit despite his finding that the plaintiff/appellant could sur for the loss of services of his children and when the only point for decision before him was whether the action could be instituted by Writ of Summons.

(b) That even if the first arm of the claim should be brought by petition, the learned trial Judge was wrong to strike out both the first arm and the second arm of the claim whereas the second arm of the claim – damages for loss of services – could properly be instituted by Writ of Summons.  (c) That the learned trial Judge misdirected himself in law and erred in law in purporting to determine the merits of the claim for damages for loss of service without hearing any evidence from the parties and when that issue was not then before him at the stage of the proceedings for determination.

(2) (a) That as the plaintiff’s claim for the return of his children is not in relation to proceedings under the Matrimonial Causes Decree, 1970, for a decree or declaration of a kind referred to in paragraph (a) or (b) of Section 114(1) of the said Decree and as the claim does not relate to concurrent, pending or completed proceedings as mentioned in Section 114(1) paragraph (a) or (b) of the aforesaid Decree, the claim is not required by the combined effect of the Sections 54(3) and 114(1) of the Matrimonial Causes Decree, 1970, to be instituted by petition.

The learned trial Judge was therefore wrong in law in holding that the plaintiff’s claim for the return of his children must be by Petition. (b) That as the plaintiff’s claim for the return of his children is not one in relation to proceedings for a decree or declaration as referred to in paragraph (a) or (b) of Section 114(1) of the Matrimonial Causes Decree, 1970, and as no other special provisions are made for cases such as the plaintiff‘s present claim, then the proper manner to come to court is by action commenced by Writ of Summons and the learned trial Judge was therefore wrong in holding otherwise.”

In arguing ground 1, Mr. Egonu, learned counsel for the appellant, drew attention to the fact that the plaintiff’s claim against the defendants is joint and several and that an action for loss of the services of the four children is a common law action which can properly be brought only by a Writ of Summons, as was done in the present case. According to him, the learned trial Judge was himself aware of this position in law when he said as follows:   “If on the other hand the plaintiff does not desire a dissolution or judicial separation he can maintain an action per quod servitium amissit by Writ of Summons against the 1st defendant omitting any reference to the 2nd defendant.” He also submitted that the learned trial Judge erred in law in considering the merits of the claim for loss of the services of the children citing Hawkesworth v. Hawksworth (1861-1867) AER 314 and Lough v. Ward (1945) 2 AER 338, when in fact the matter was not before him at that stage. It was his submission that the learned trial Judge was wrong in dealing with the issue of loss of services without having heard evidence on the point.

Again, the learned trial Judge struck out the claim for loss of services because he held that the claim was not initiated by due process of law, when the Judge had himself already agreed, as stated above, that the action for loss of services could come to court by way of a Writ of Summons. Under this ground of appeal, learned counsel finally submitted that, assuming that the first arm of the claim in respect of the return of the children to the plaintiff should have been by petition rather than by a Writ of Summons, the second arm of the claim in respect of loss of the services of the children should not have been struck out as well.

We think that there is merit in this contention.   In relation to the second ground of appeal which concerns the first arm of the claim, namely, the return of the children to the plaintiff, learned counsel for the appellant submitted that the claim was properly laid by means of a Writ of Summons. He argued that counsel for the defendants/respondents was incorrect in suggesting that the claim in respect of the return of the children should have been by petition in accordance with Section 54(3) and Section 114(1)(a) and (b) of the Matrimonial Causes Decree, 1970, since the claim as laid by the appellant was a disguise for a claim of custody of the children. We think it helpful to set out the provision of Section 54(3) of the Matrimonial Causes Decree, 1970, as follows:-   “54 (3) Proceedings of a kind referred to in paragraph (c) of the definition of ‘Matrimonial Cause’ in Section 114(1) of this Decree that are in relation to proceedings under this Decree for a decree or declaration of a kind referred to in paragraph (a) or (b) of that definition – (a) may be instituted by the same petition as that by which the proceedings for that decree or declaration are instituted; and (b) except as permitted by the rules or by leave of the court, shall not be instituted in any other manner.” It is also pertinent to consider Section 114(1)(a) and (b) which reads as follows:-  

“114 (1) In this Decree unless the contrary intention appears- ‘adopted’, in relation to a child, means adopted under the law of any place (whether in or out of Nigeria) relating to the adoption of children;  ‘appeal’ includes an application for a rehearing; ‘court’ or ‘the court’, in relation to any proceedings means the court exercising jurisdiction in those proceedings by virtue of this Decree;  ‘court of summary jurisdiction’ means a magistrate’s court or District Court;  ‘crime’ means an offence punishable by imprisonment; ‘cross-petition’ includes an answer in which the respondent to a petition seeks decree or declaration of a kind referred to in paragraph (a) or (b) of the definition of ‘matrimonial cause’ in this subsection; ‘decree, (not being a Decree having effect as an enactment made by the Federal Military Government) includes a decree absolute or decree nisi, a judgment, and any order dismissing a petition or application or refusing to make a decree or order;   ‘marriage conciliator’ means a person authorised to endeavour to effect marital reconciliations or a person nominated by a Judge, in pursuance of Section 11 of this Decree, to endeavour to effect a reconciliation; ‘matrimonial cause’ means – (a) proceedings for a decree of –

(i) dissolution of marriage; (ii) nullity of marriage; (iii) judicial separation;   (iv) restitution of conjugal rights; or (v) jactitation of marriage; (b) proceedings for a declaration of the validity of the dissolution or annulment of a marriage by decree or otherwise or of a decree of judicial separation, or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation.”   It is quite clear that the present action by the plaintiff for the return of the four children to him cannot be regarded as relating to “concurrent, pending or completed proceedings” within the meaning of Section 114(1)(a) or (b), nor is the claim required by the combined operation of Sections 54(3) and 114(1) of the Matrimonial Causes Decree, 1970, to be brought by a petition.

This is not an action for dissolution of marriage, judicial separation, restitution of conjugal rights, or similar matrimonial reliefs. Mr. Umeadi, learned counsel for the defendants/respondents, replied that the plaintiff’s claim as worded is a disquise for a claim of custody and that it should as such be brought by way of petition in accordance with Sections 54(3) and 114(1) of the Matrimonial Causes Decree, 1970. It was his contention that the plaintiff’s claim amounted to an action of detinue which does not apply to a claim for the return of human-beings like the four children, but only in respect of the return of goods or chattels. We think that this submission is untenable, since an action for enticement such as was involved in Lough v. Ward (1945) 2 AER 338, necessarily involves the return of children to their lawful parents or other guardians in proper cases.  

We think that the learned trial Judge was clearly in the wrong when he decided to uphold the preliminary objection of counsel for the defendants at the particular stage in the proceedings when the Statement of Defence had already been filed and the issues joined between the two parties. The learned trial Judge should have pointed out to counsel for the defendants that the preliminary objection should have been made after the delivery to him of the Statement of Claim and before filing his Statement of Defence.

Another important point in this appeal is that, once issues had been joined between the parties including an allegation by the 1st defendant that the marriage between him and 2nd defendant had been made under customary law, it was wrong to entertain a preliminary objection without any further evidence on the merits. The appeal accordingly succeeds, and it is allowed.

The ruling of Agbakoba, J., in the Onitsha High Court, in Suit No. 0/5/1972 delivered on June 6, 1973, is hereby set aside. It is hereby ordered that the case be heard by him on the merit. Costs assessed at N90 are awarded to the appellant as costs in this court.

Other Citation: (1974) LCN/1957(SC)

Taiwo Bucnor Smart V. The State (1974)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, JSC 

The appellant was charged before, and tried by, the Lagos Assizes (Lagos State) on an Information charging him with:- (i) stealing a sum of £5,000 (or N10,000) which was entrusted to him by one Titus Essien to transfer to the account of D. L. Payne in Britain contrary to Section 390(8)(b) of the Criminal Code; (ii) forgery of Form B Application to Purchase Foreign Currency No. A154313 for purchase of £5,757-17-0d British sterling contrary to Section 467(2)(h) of the Criminal code;  (iii) uttering of document alleged on Count 2 contrary to Section 468 of the Criminal Code; (iv) forgery of Form B of Application to Purchase Foreign Currency No. A166494 for purchase of £6,137.25 British sterling contrary to Section 467 of the Criminal Code; (v) uttering of document alleged on Count (iv) contrary to Section 468 of the Criminal Code;  (vi) forgery of Bill of Entry No. 22499 purporting same to have been signed by Messrs. Andex (Nigeria) Ltd., contrary to Section 467 of the Criminal Code; (vii) uttering of the document alleged in Count (vi) contrary to Section 468 of the Criminal Code;  

He pleaded not guilty to all the Counts on the Information and witnesses were called by the prosecution to the effect that one Titus Essien (2nd P.W.) entrusted to the appellant some time in May, 1971, an amount of £5,000 (or N10,000) in the following circumstances:- “During the month of May, 1971, he contacted me and said he had some money in his Barclays Bank Account in London about £5,000.

He told me the money was in his fixed account deposit in London, and as he was not going back to London he would like to exchange the money in London with any one who is interested, by depositing the equivalent amount with the Barclays Bank in Lagos. The Barclays Bank Nigeria will instruct Barclays Bank in London to release the money in London to the person who made the deposit here. He said this would be done on a commission of £1,250 or N2,500.

I went and said all these to one Mr. D.L. Payne an industrialist who was my customer. Mr. Payne was interested and agreed to the terms.” The witness, Essien, further testified that he then collected the sum of £5,000 from Mr. D.L. Payne as well as the commission due to the appellant and paid over all to the appellant. Thereafter, the appellant would not let him know when the corresponding amount would be paid in London nor return the money handed over to him by the witness.

There was also evidence from the prosecution witnesses to the effect that the appellant on divers dates in June 1971 deposited Central Bank application forms for foreign currency of the numbers charged with the Barclays Bank in Nigeria, or rather in Lagos, as well as the local draft by which the amount of £5,000 was paid to him; there was evidence as well of the discovery that the companies purported on the documents to be ordering for goods and therefore requiring foreign currency were fictitious in that Police Corporal Samuel Suberu (1st P.W.) and other policemen went to the various addresses given on the suspected Bills of Entry supplied by the appellant and found that no companies by those names or designations occupied the premises.

The prosecution also gave evidence that the numbers on the Bills of Entry were already allocated to other transactions by the Customs and Eugenson Adokiye Frank Higgue (4th P.W.), Principal Collector of Customs, testified that it was “not possible for the Bills of Entry issued in the same month to have identical numbers be it for export or import”. Indeed, it was part of the case for the prosecution, and in respect of which evidence was given at the trial of the appellant, that the application forms to purchase foreign currency (Exhibits A, B, C and D) proved to have been lodged by the appellant at the Central Bank were foregeries inasmuch as “the information contained in the originals are not the same as those submitted to the Central Bank”.

In any case, there was no corresponding deposit of any amount in London as envisaged by the transaction which the appellant had planned and several efforts to make the appellant refund the amount failed despite the promises given by the appellant to Titus Essien, 2nd P.W., Johnson Olorunfemi Oyebanjo, 7th P.W., and others, that he would refund the amount by installments as he had already invested it in another business.  

At the end of the case for the prosecution, learned counsel appearing for the appellant announced that he would not call any evidence and he thereafter addressed the court on behalf of the appellant. In the course of a reserved judgment, the learned trial Judge extensively reviewed the evidence given by the nine witnesses who had testified for the prosecution as well as the several points raised in the addresses of learned counsel on both sides, came to the conclusion that on the admission of the appellant himself, he had converted the amount entrusted to him to his own use, that he was unquestionably found in possession of foreign currency forms which he himself stated that he had bought and knew to be forgeries and that he indeed uttered these forms to the bank official whose evidence was not controverted. He convicted the appellant on all the seven Counts of the Information and sentenced him to imprisonment.

The appellant has now appealed to this court against his conviction on a number of original as well as additional grounds of appeal. The contention on behalf of the appellant before us was two-fold. With respect to the Count of stealing, it was submitted by learned counsel for the appellant that the learned trial Judge wrongly convicted him of stealing the amount of £5,000 since the evidence was that both the possession and the ownership of that money were transferred to him when the money was handed over.

With respect to the Counts for forgery and uttering, whilst not disputing the conviction on the charges of uttering, learned counsel for the appellant contended that the forgeries were not proved as there was no evidence that Certificates of Incorporation were never issued to those companies and that the search concerning these companies had been conducted only in the Registry of Business Names.

The Learned Deputy Director of Public Prosecutions, Lagos State, who had appeared for the respondent, resisted these submissions and argued that the appellant never had any corresponding money in London so that the criminal intent to steal was manifest from the beginning of it all, that the searches for the companies named by the appellant on his forms were properly made in the Registry of Business Names and that in any case where the prosecution stated, as here, that the companies were not found, it was for the appellant, if he maintained that there were such companies, to produce the evidence as no certificates or official records could be available in respect of non-existent companies.

The decision clearly falls within a small compass. It is quite clear on the evidence that there was no corresponding payment in London at any time and so Titus Essien, 2nd P.W., who had entrusted the amount of £5,000 to the appellant on account of Mr. D.L. Payne, was pressing all the time for the return of that amount and the appellant never in fact paid it back. In arguing that the conviction of the appellant on the first Count was wrong, learned counsel for the appellant referred us to the case of Whitehorn Brothers v. Davison (1911) 1 KB 463, at p.479, where Buckley, L.J. attempted, with some extraordinary courage, to mark out distinctly the difference between larceny or stealing by a trick and obtaining goods or money by false pretences. In that case (it is a civil case) the plaintiffs, who were jewellery manufacturers, had sued the defendants for the return of some jewellery of considerable value which the plaintiffs had entrusted, at his own request, to one Bruford, a jeweller and dealer in pearls, for sale by him on the plaintiffs’ account to a customer of Bruford’s and which jewellery Bruford had then pledged to the defendant as security for some personal advances made by the defendant, a pawnbroker, to Bruford.

The Court of Appeal held that inasmuch as the offence of Bruford was one of obtaining goods by false, since he never had any customer for the jewellery, the plaintiff could not recover the jewellery from the defendant. Obviously, there is a difference between stealing by a trick and obtaining goods or money by false pretences. In the latter case, the deciding factor has always been the intention of the owner of the property to pass both the possession and the ownership of the property concerned to the villain. The distinction has persisted throughout the history of criminal jurisprudence and the difficulty in distinguishing one crime from the other had bedevilled the trial of such cases for long.

The situation is however now remedied in England by the Larceny Act 1916, Section 44, by virtue of which alternative convictions could be recorded by the court convicting of obtaining by false pretences on a charge for that offence where the facts proved amount to larceny (see Section 44(3) of the Larceny Act).

In Nigeria, the position is now governed by Section 173 of the Criminal Procedure Act which, as amended by Decree No.84 of 1966, The Criminal Justice (Miscellaneous Provisions) Decree 1966, Schedule 3, reads thus:-  “173. Where a person is charged with any of the following offences, that is to say-  (a) stealing any property, contrary to Section 390 of the Criminal Code; (b) obtaining or inducing the delivery of any property by a false pretence, and with intent to defraud, contrary to Section 419 of the Criminal Code; (c%2

Other Citation: (1974) LCN/1850(SC)