Nababa Tubale V. The State (1972)

LawGlobal-Hub Lead Judgment Report

A. FATAYI-WILLIAMS, J.S.C. 

When we dismissed this appeal at the hearing on 29th May, 1972, we indicated that we would give our reasons for doing so later. We now give those reasons.

On the 10th of January, 1972, Nababa Tubale was convicted of culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code and sentenced to death by Hassan, J., in charge No. NWS/26c/71 in the High Court of the North-Western State sitting at Sokoto.

The case for the prosecution may be summarised as follows.  On 26th May, 1970, at about 9 p.m. Sule Majidaji  (P.W. 6) saw the room of a woman named Nunu at Tubale Village in Isa District on fire. Sule Majidaji, accompanied by one Isa Na Sade (P.W.7) and one Jarbri, (P.W.8), went to Nunu’s room. There, outside the room, they saw Nababa Tubale (the accused) attacking Nunu with a cutlass. He was cutting her “all over her body.” On seeing the three men, the accused ran away. They pursued him and overtook him at the nearby mosque. Alhaji Umaru (P.W.10) one of the village elders, was in the mosque when the accused was caught there by his pursuers. Alhaji Umaru asked the accused why he had attacked and “killed” Nunu; the accused replied that he “killed” Nunu  because Nunu had killed Dan Isa and Yarisa. On hearing this, Alhaji Umaru instructed Majidaji and his companions to take the accused to the house of the Mogaji of the village which they did.

Majidaji then returned to Nunu’s room where he noticed that, although Nunu was still alive, she had multiple wounds on both sides of her waist, below her abdomen, on her head, and on her back. Isa Na Sade (P.W.7) also returned later to Nunu’s room but by this time Nunu was dead.  He also saw the multiple injuries on Nunu’s body. Later that morning, one Mamman Na Magaji  (P.W.9) picked up a cutlass (Exhibit 1) from the grass behind the mosque which he gave to the Magaji to whom the accused had been taken. The cutlass was later handed over to P.C. Tukur Abubakar (P.W.3), the police constable who later investigated the incident.

The following day, that is, 27th May, 1970, one Balarabe Tumbawal (P.W.1) a local Authority Dispensary Attendant of about sixteen years experience, went to Tubale to examine Nunu’s body which was identified to him by Mamman Na -Magaji (P.W.9). P.W.1 described what he saw as follows:-

“I found several injuries on her body. These injuries were on her forehead, right side of the neck, on the right shoulder, on the right side of the wrist, on the back, and on the occipital side. There was dry blood around the injuries. The length of the injury on the right side of the neck measured about three and a half inches. The forehead injury was about two inches in length. The shoulder injury was about two inches in length. The back injury was just like a bruise.”

After examining the body, P.W.1 told Nunu’s relatives to keep it until the police arrived.

The police arrived on 28th May, 1970, a day after the examination of the body by P.W.1. On that day, P.C. Tukur Abubakar (P.W.3) after due investigation, arrested the accused and brought him to the police station at Gusau where, after he had been charged and cautioned, the accused made the statement (Ex. 3A) in which he said inter alia as follows:-

“I Nababa Tubali I know that Nunu has bewitched my mother and father, relative, and daughter, and because of the killing of the daughter that is why I cut her with “ADDA’ cutlass on the shoulder, the back of her head and some four places which I could not remember them, and before I could get her I first put fire on her room then after I finished this work I went to mosque showing my body where Isah my friend came and met me, then they took me to Chief house – ‘Magaji’ of our town Tubali that’s all I can say.”

Eight months later, on 22nd February, 1971, to be precise P.W.3 took the accused to one Alhaji Aliyu Sokoto (P.W.4), an Area Court Judge who is also a Justice of the Peace to whom the accused made another statement (Ex. 4A). In this second confessional statement, the accused confirmed what he had earlier said in his statement (Ex. 3A) and stated that because the deceased killed his mother, daughter, and brother, he set fire to her room on the night of 25th May, 1970, but that the deceased was not in the room at the time. As he was coming out of the room he saw the deceased near the Granary. There he attacked her with a matchet until she fell down. He then ran away but was pursued and caught by his friend Isa near the mosque. Isa then took him to the house of the Magaji of the village from where he was taken to Shinkafi and then to Gusau.

The accused did not give evidence in his defence nor did he call any witnesses to testify on his behalf.

In convicting the accused of the offence charged, the learned trial Judge found as follows:-

“Both in Exhibits 3 and 4 (English translations are Exhibits 3A and 4A) the accused has admitted to inflicting matchet or cutlass wounds on Nunu. This admission of the accused is uncontradicted and I accordingly find as a fact that he did so. There is the evidence of P.W.1 which I accept that Nunu was dead on the 27th May, 1970, and I have no hesitation in finding on the evidence before me that the prosecution have proved beyond reasonable doubt the death of Nunu.”

In dealing with the cause of Nunu’s death, the learned trial Judge said-

“I am quite satisfied that it was the accused that inflicted injuries with a cutlass on parts of Nunu’s body. There is the evidence of several prosecution witnesses of seeing multiple injuries on Nunu, and what is more confirmed by the accused that he cut Nunu with a matchet or cutlass. There is also the undisputed evidence of the nature, number and location of the injuries on Nunu’s body which I have already found caused her death………
The nature of the act itself speaks and manifests the accused’s intention, and the innumerable injuries found on Nunu’s body leave me in no doubt that the accused intended to kill the deceased. I accordingly find that the prosecution have proved beyond reasonable doubt that the act of the accused that caused the death of the deceased was done with the intention of causing death.

Finally I would mention that the accused in his statements said that he cut Nunu with a cutlass because he believed that it was Nunu who bewitched his mother and daughter. In law this could afford no justification for the brutal and savage manner in which the accused cut Nunu.”

Before us on appeal, Mr. Gagi who appeared for the appellant submitted that the learned trial Judge erred in law by relying on the two confessional statements in convicting the appellant in spite of the contradictions and inconsistencies in the evidence of both P.C. Tukur Abubakar (P.W.3) and Alhaji Aliyu Sokoto (P.W.4).

Other than the difference as to the date on which the second confessional statement (Ex. 4A) was taken by P.W.4, we are unable to discern any material inconsistency in the evidence of these two witnesses.

As a matter of fact, P.W.3 admitted that he made a mistake as to the dates on which the appellant made the first statement (Ex. 3A) to him, and the second statement (Ex. 4A) to P.W.4. In any case, as Mallam Aliyu Salman, Ag. Senior State Counsel (North-Western State) who appeared for the respondent had rightly pointed out, even if the two confessional statements were expunged from the record, there would still remain the overwhelming evidence of the eye-witnesses, which the learned trial Judge accepted, of the brutal attack on Nunu by the appellant on the night in question. Added to this is the testimony of Alhaji Umaru (P.W.10) who said that the appellant informed him that “he killed Nunu because she killed Dan Isa and Yarisa.”

As we saw no merit in any of the points urged upon us, we dismissed the appeal.

SC.107/1972

Total Nigeria Ltd Vs Electrical And Mechanical Company Limited (1972)

LawGlobal-Hub Lead Judgment Report

ELIAS, CJN. 

This is an appeal against the judgment of Bello, J., at the High Court, Kaduna, on March 30, 1971, in which he refused to set aside the sale of the property, 7 Sokoto Road, Kaduna, which belongs to the judgment debtor, to the purchaser of the property at an auction held by the Deputy-Sheriff on August 13, 1970.

The case originated in Suit No. Z/33/1968 which the plaintiffs brought in the High Court at Kaduna by Writ of Summons dated September 17, 1968, in which the plaintiffs’ claim was for the sum of £660: 5/-being the value of petroleum products delivered to them to the defendants on credit at the latter’s request and for which the defendants had failed to pay despite demand.

The facts of the case, which are not in dispute, may be summarized as follows: that the appellant obtained judgment against the respondent for the sum of £660: 5/- on October 26, 1968; that the judgment creditor issued a Writ of Fife on November 16, 1968, for the attachment of the movable property of the respondent in satisfaction of the judgment debt but that the writ was returned for the reason that the respondent had no movable property on which to levy execution within the jurisdiction of the High Court; that upon the application of the judgment creditor, the High Court at Kaduna, on April 19, 1969, granted leave for the sale of the immovable property of the respondent, namely, 7 Sokoto Road, Kaduna, in satisfaction of the judgment debt; and that, in compliance with this order of the Kaduna High Court, the Deputy Sheriff sold 7 Sokoto Road, Kaduna, for £13,000 to Alhaji Sanni Bakori as purchaser at a public auction held on August 13, 1970.

By his affidavit, Mr. G.A. Obayan, counsel for the applicant in the lower court, averred that on August 14, 1970, he reported the sale of the property in question to his senior partners, Messrs. Irving & Bonna at Kano, that he was then informed that the judgment debtor had settled the judgment debt and costs, but that no notice of the said settlement of the debt was given in time to the solicitors to revoke the order for sale. Mr Obayan further averred that he returned from Kano on August 15,1970, and thereafter wrote to the Registrar to stop making the sale absolute; and that he filed an exparte motion on August 20, 1970, to set aside the sale.

In his counter-affidavit, Mr. V.T. Ekuere, a Manager of the respondent, averred that on April 15, 1969, the applicant/judgment creditor registered in the Lagos High Court a certificate of the judgment he had obtained in the Kaduna High Court; and that, in consequence of the Writ of Execution issued out of the Lagos High Court, the respondent paid to the applicant/judgment creditor the judgment debt together with costs. The purchaser who was not represented by counsel but who had been put on notice regarding these proceedings on March 10, 1971, argued that he bought the property at a public auction and that he was not aware of any defect in the sale. He further stated that he paid the purchase price and obtained a Certificate of Occupancy from the Governor.

The learned trial Judge noted that counsel for the applicant/judgment creditor drew his attention to the Correspondence File of the Kaduna High Court Registrar in respect of a notice from the Registrar of the Lagos High Court to the effect that a Writ of Execution had been issued against the movable property of the respondent in Lagos on April, 16, 1969. He nevertheless proceeded thereafter to hold as follows:

“From the foregoing I find that sale of the property, 7 Sokoto Road, Kaduna, took place after the judgment debt had been liquidated; that neither the applicant/judgment creditor nor the respondent/judgment debtor who were both aware of the settlement of the debt before the sale took any step to stop the sale.

I also find that the Deputy Sheriff and the purchaser were not aware of the fact that the judgment debt had been settled at the time of the sale. I find that the purchaser purchased in good faith.”

Both Mr. Razaq for the judgment debtor and Mr. Obayan for the judgment creditor contended that the sale was void and should be set aside because, the judgment debt having been fully paid before the sale, the execution was wrongful and Mr. Obayan also argued that as the sale had not been made absolute at the time he filed ex parte motion within 21 days of the sale, the provision of Section 47 of the Sheriffs and Civil Process Law of the Northern States had been complied with. This section provides as follows:

“At any time within twenty-one days from the date of the sale of any immovable property, application may be made to the court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to satisfaction of the court that he has sustained substantial injury by reason of such irregularity.”

The learned trial Judge cited Bate, J.,’s judgment in Attorney-General (North) v. Nigerian Embel Tin Smelting Ltd. & 3 Ors. Suits No. JD/8/63 delivered on 23rd June, 1967 (unreported) to show that two irregularities were found in the execution proceedings which lead to the sale being set aside. He observed that the irregularities were that the goods were unlawfully attached by the Deputy-Sheriff and that the latter had notice of a claim to the goods attached on the part of a third party before the sale and nevertheless failed to take interpleader proceedings to determine the claim of that third party. The learned trial Judge, however observed:

“I find no evidence of any irregularity in the conduct of the sale. The order for sale was made before the liquidation of the judgment debt in Lagos. Neither the Registrar of this court nor the Deputy-Sheriff was notified of its liquidation. If there is any irregularity whatsoever, it was the negligence of the appellant/judgment creditor, who employed the process of the court to sell the property and the respondent/judgment debtor, who sold over their attached property in failing to apply to the court to revoke the order for the sale. Both parties are estopped from relying upon their negligence to deprive a bona fide purchaser for value of the property.”

In order to emphasize this view that he took of the matter, the learned trial Judge further observed:

“I have also considered the notice of the issue of the Writ of Attachment from the High Court of Lagos to the Registrar of this court. The notice was received by the Registrar on 29 April, 1969, after this court had made the order for the sale of the property on 19th April, 1969. The notice did not indicate that the judgment debt had been liquidated. In fact it was not liquidated until 6th June, 1969.

The notice therefore was not sufficient to supersede the order made by this court on 19th April, 1969, for the sale of the property as provided by Section 22(2) of the Law.”

The learned trial Judge accordingly confirmed the sale of 7 Sokoto Road, Kaduna, to the purchaser, Alhaji Sanni Bakori.

Against this judgment the present appeal has been brought by both the judgment debtor and the judgment creditor who are ad idem in seeking to set aside the sale in order to have the property restored to its original owner. Chief F.R.A. Williams appeared for the defendant/appellant, while Chief H.O. Davies appeared for the plaintiff/applicant. Chief Davies applied for and was granted extension of time within which to file an appeal on the ground that his client had found it convenient to appear in the case as an appellant, although his client was respondent in the court below. Chief Davies submitted that, if his request were granted, it would facilitate the subsequent proceedings on this appeal since he was ready to adopt the arguments of Chief Williams on behalf of his client on this appeal. After careful consideration, we granted Chief Davies’ request, and over-ruled the objection of Mr. M. Akanbi, learned counsel for the respondent/purchaser. Chief Williams thereafter sought and was granted leave to file and argue certain additional grounds of appeal in partial substitution for the original grounds. For convenience, we set out the six agreed grounds of appeal:

(i) that the learned trial Judge erred in Law and/or in fact by holding that the purchaser has a valid title of the house sold under a Writ of Execution for sale which was void ab initio and wrongful and illegal and of no effect whatsoever;

(ii) that the learned trial Judge erred in law by holding that the High Court of Justice, Kaduna, and the Registrar of the same court can lawfully issue out a Writ of Execution for the sale of immovable property in this suit when the High Court of Lagos State had been seized of all processes in the matter and that the Kaduna High Court had no more jurisdiction over the matter until a return is submitted to it from the High Court of Lagos State;

(iii) that the learned trial Judge erred in law and/or in fact by holding that the Appellant was estopped from complaining about the sale of his house at No. 7 Sokoto Road, Kaduna, under a Writ of Execution when there was abundant evidence before the court that at all material time of the sale of the house, the appellant was not aware of the sale and neither was it put on notice until the 8th January, 1971, when

Other Citation: (1972) LCN/1401(SC)

Sabo Kumbul V. The State (1972)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N. 

On 13th October, 1971, at the Bauchi Judicial Division, the accused was charged with culpable homicide punishable with death in that on or about 21st March, 1971, at Bauchi, he set Macindo on fire with knowledge that death would be the probable consequence of his act. The accused was convicted of the offence charged and sentenced to death under section 221 of the Penal Code.

On 26th May, 1972, during the Supreme Court session held in Kaduna, we allowed the appeal against conviction and we now give our reasons.

The facts briefly were that on a date in March 1971, the deceased was found in front of a beer shop in Bauchi, that the accused took grass from the roof of a house nearby, placed it on the deceased and then set fire to the grass by means of a burning piece of wood. Sanda Anjo, 6th p.w.,a married woman who sold local liquor at the premises, testified that, on a Sunday afternoon, she found Macindo “dead” and that, shortly afterwards, the accused placed some grass on the man’s body, set fire to the grass with a burning piece of wood, then placed more grass over the body in consequence of which “Macindo cried and struggled but could not rise.” She further testified that she had earlier seen people bring Macindo and dump him outside her premises to which Macindo came frequently. Shakaru Bauchi, 7th p.w., testified that he was some 30-35 yards from Macindo when the accused arrived, placed his bicycle against the drinking house, took grass from a nearby roof which he put on Macindo, and then “took a piece of burning wood and put it on the grass which caught fire.” According to this witness, “Macindo had not moved up to this point, but when the fire began he squirmed and shouted Oh God! Oh God!”. The witness stated that the squirming lasted 20 minutes. Again, Sgt.-Maj. A. Kola, 1st p.w., stated that the incident took place at 2.30 p.m. and that, on being informed by Shakaru Bauchi (7th p.w.) of what the accused was doing outside the beer house in which he was drinking at the time, he came out, saw the body on fire, and said to the accused:

“During the war 1 have never seen you do such a thing.”

According to this witness, the accused replied: “I have done it.” This witness (1st p.w.) also explained that “the body was twitching in the fire and had no chance of survival”. Private Yanga Hamman (p.w. 2) of the same battalion put the time at 4 p.m. and that, although he was not sufficiently close to say with what the grass was lit and although he left the scene before the 1st p.w., he stated that the body on the ground made no sound until he left the scene.

Dr. K. M. Bialas, Medical Officer of Bauchi who conducted a postmortem on the deceased on 23rd March, 1971, gave evidence which the learned trial judge summarised as follows:-

“Apart from burns the doctor described several injuries so serious that the deceased could not in any event have survived. There were stab wounds, with burned blood in them, indicating the deceased was alive when stabbed. The doctor offered his opinion that deceased was still alive when the fire was lit, because burned blood was found outside the tissue of the body. This had come from the arteries of the body showing the heart was beating when the fire started. It was unlikely deceased had bled to death because no major blood vessel had been severed, though he could not have survived peritonitis from infection of the peritoneal cavity resulting from three penetrating wounds in the intestine.”

The learned trial judge observed that, when questioned by learned counsel for the defence, the doctor agreed that “a heart may continue to beat for some minutes after a person is registered as dead.”

It is interesting to note that the accused elected to rely on the cautioned statement which he made to the police, 3rd p.w., to the effect that at about 2.30 p.m. on 21st March, 1971, two corporals (one of whom was injured on the left hand) dragged what he described as a “dead body” and were kicking it; and that the wounded corporal carried a knife and he the accused then ran home. He declined to give evidence or call witnesses. It was his counsel’s contention that on the evidence before the court Macindo was dead before the fire was lit and that his client should accordingly be acquitted in view of the discrepancies in the prosecution evidence. The learned trial judge, however, held as follows:-

“I am convinced on the testimony given that the victim was not dead when the fire was lit. Two witnesses heard Macindo cry and there is abundant evidence that his body squirmed or twitched in the fire. The expert medical witness said a dead body might give some movement when burned, but the degree of movement described by the witnesses surpasses this and I am convinced that the fire was set on a dying, but not dead man. In arriving at this conclusion I find support from the medical evidence that burned blood from the arteries was found outside the tissues of the body.”

We do not agree with this conclusion of the learned trial judge in so far as his own findings are not free from contradictions. We observe that the evidence of Private Yanga Hamman (p.w. 2) who said that he heard no sound from the burning body should not have been so lightly discounted by the learned trial judge, nor do we consider the medical evidence as definitive of the exact cause of death as the learned trial judge would seem to have assumed. On the other hand, we agree with the learned trial judge when he confessed:-

“To this court’s knowledge the present situation is unique. There is no evidence that accused was a participant in inflicting the wounds from which Macindo would in any event have died. It is therefore different from R. v. Church (1965) 49 Cr. App. R. 206, where the prisoner threw a woman into a river whom he had seriously injured. An appreciable time later she died from drowning. The Court of Criminal Appeal held that on murder, the proper direction to the jury was that if they regarded his behaviour from the moment when he first struck her to the moment he threw her into the river as a series of acts designed to cause her death or grievous bodily harm, it was open to them to convict of murder.”

If the learned trial judge had then proceeded to give the accused the benefit of the doubt as to whether the accused participated in inflicting the wounds from which the deceased would in any event have died, there would have been little to disagree with. The learned trial judge however,went on to hold as follows:-

“In the present case I find that by wilful and premeditated acts, which to his knowledge would probably, if not certainly, cause death, the accused destroyed any chance the victim had of recovering from the serious injuries he had sustained. That chance, however remote, existed, but accused wickedly and callously removed such slender hope of survival which the victim had. I also observe that the attitude of the bystanders was deplorable, but it is the accused who must deservedly pay the penalty for his shocking crime against a helpless person.”

This, if we may say so, is a verdict that is not easy to support. To deprive a deceased, as to whom there is no clear evidence whether he was dead or alive at the time fire was set to his body, of any chance he may have had of recovering from certain serious injuries inflicted by an unknown person, might possibly constitute a criminal offence involving burning or desecration of a corpse, but it would not seem to us to come within the provision of section 221 of the Penal Code involving culpable homicide punishable with death.

The crucial question, in our view, is: At the time the accused set fire to the deceased, was the body dying or dead If dying, the accused’s crime would be culpable homicide under section 221 if and only if there was incontrovertible evidence that it was in fact merely dying. In the present case there was no incontrovertible evidence that the body was a dying one. On the contrary, all the evidence on the point was conflicting and therefore created a doubt the benefit of which should be given to the appellant.

As we do not consider the offence of culpable homicide punishable with death under section 221 of the Penal Code proved against the appellant, we allowed the appeal and discharged and acquitted the appellant.

SC.50/1972

Linus Ntibunka & Anor Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

SIR I. LEWIS, J.S.C. 

On the 31st of August, 1971, Balonwu, J., in the Owerri High Court convicted Linus Ntibunka and Cyprian Ejianu of the murder of Okwerenkedia U. Agwu in Charge No. HOW/8C/71, and on the 6th of January, 1972, we dismissed the appeals of the two accused and now give our reasons for so doing.

The case for the prosecution turned on circumstantial evidence as no one witnessed the actual killing of the deceased woman. She had on the 18th of March, 1970 gone off to farm having been warned before she went by the 1st accused in the presence of the 1st P.W. not to go near the breadfruit trees or she would die.

The 1st P.W. who was the maid of the deceased who was in fact her aunt followed her later that day to the farm to take her food but when she got there she could not find her though she saw the wearing apparel of the deceased by some bloodstains on the ground.

She ran off to seek help and when she got to the road she saw the two accused coming towards her from the opposite direction, and remembering the words of the 1st accused to the deceased earlier that day got frightened and hid in the bush as they passed. She noticed, however, as they did so that they were holding a shovel, a matchet and a stick and both had bloodstained trousers.

The 2nd P.W. said in his evidence that in the evening of the 18th of March after receiving a report from the 1st P.W., he went at about 10 p.m. with the others to the deceased’s farm to search, with the aid of a hurricane lamp, for the deceased and they eventually found her body in a pit on the farm. They thereupon hid themselves and he then described in his evidence what happened as follows:-

“In the night, I was feeling rather sleepy, when I heard a noise which alerted me. As I watched carefully, I saw the first accused with a shovel, coming towards the pit where the corpse of the deceased lay. This was about 2 a.m.  As the first accused was standing by the pit, looking around, I saw the second accused coming with a matchet towards the pit. At that stage, I shouted. Members of my search team then came out of their hiding places, and we all pursued the two accused persons. We ran after them. We and they suffered. I caught the first accused. Later, I heard Lawrence Onuegbu shouting that he had caught the second accused. I wanted to matchet the first accused, but others told me not to do so.”

The 6th P.W. who was also there that night confirmed the 2nd P.W.’s story and Lawrence Onuegbu (the 9th P.W.) also confirmed it and said that he was the one who actually caught the 2nd accused as he tried to run away that night from the pit where the corpse of the deceased was.

The defence of each of the accused was an alibi but the learned trial Judge carefully considered the alibi of each of them and rejected them and found that he believed the evidence of the 1st, 2nd, 6th and 9th P.Ws. as to what happened.

Mr. Akinola for the accused urged on us that the prosecution had not proved the case against the accused beyond reasonable doubt and that the learned trial Judge gave too much weight to the evidence of the 1st P.W. especially when she was a relative of the deceased. He submitted that the learned trial Judge should have believed the alibi of each of the accused. As, however, the learned trial Judge in his judgment in no way misdirected himself as to the evidence of the 1st P.W. which he believed and indeed specifically warned himself that the prosecution witnesses were related to the deceased and as he carefully dealt with the alibi of each of the accused but disbelieved them we saw no merit in this submission. Indeed we noted that the 1st accused even admitted in cross-examination that his evidence was disbelieved.

Mr. Akinola then urged that the death of the deceased might have been by her accidentally falling, so that killing was not established, but as the learned trial Judge correctly quoted the evidence of the Doctor who examined the body of the deceased when in his judgment he said:-

“The doctor found that the body was that of an African Woman, aged about 48 years, in a fairly good condition; that the neck and the head were swollen with a laceration on the face; that there was a laceration on the nose, and on the lower lip. In his opinion, the cause of death was asphyxia and cerebral conclusion, which is a damage to the brain cells, which can be caused by a heavy blow from a blunt object.”

We think he was entitled to infer therefrom that the death of the deceased was as a result of a deliberate attack on her and from the surrounding circumstances he was also entitled to find as he did that the evidence pointed irresistibly and unmistakenly to the accused being the persons who killed her. We therefore came to the conclusion that the accused were rightly convicted and dismissed the appeal of each of them for the reasons which we have now given.We would only wish to add that the learned trial Judge concluded his judgment with the words:-

“In view, therefore, of the foregoing circumstances, I find each of the accused men guilty of murder as charged, and convict them accordingly.Findings: 1st accused – guilty.

2nd accused – guilty.

The accused are informed of their right to appeal to the Supreme Court against their conviction and sentence within 30 days. This does not show what sentence he passed and this should have been recorded. However, we noted in the record of the appeal a certificate from the Registrar of the Owerri High Court in regard to the 1st accused which inter alia said:

“I HEREBY CERTIFY THAT at the Sessions of the High Court of the Owerri Judicial Division held at Owerri by the Honourable Mr. Justice Moses Onuora Balonwu on Tuesday, the 31st day of August, 1971, Linus Ntibunka (m) was convicted of Murder of Okwerenkedia U. Agwu and that the following sentence was passed upon the said Linus Ntibunka (m):

‘The Sentence of this court upon you is that you be hanged by the neck until you are dead and may the Lord have mercy on your soul.”and a certificate also in similar terms in regard to the 2nd accused, so that it is clear that in fact the proper sentence was passed on each of them.

It is not necessary therefore for us to direct, as we have recently had cause to do in another murder appeal, that the trial Judge pass the required sentence, but we do draw attention to the importance of recording in the judgment the sentence that is passed.

Other Citation: (1972) LCN/1640(SC)

Seismograph Service Ltd v. Benedict E. Onokpasa (1972)

LawGlobal-Hub Lead Judgment Report

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

In Suit S/29/68 the plaintiff/respondent sued the defendant/appellant at the High Court of Sapele in the Mid-Western State for special and general damages to the Trinity College buildings at Okwidiemo of which the respondent was the proprietor. The endorsement to the writ of summons reads:-

CLAIM

The plaintiff’s claim against the defendant is for the sum of 40,000.00pds (forty thousand pounds) being special and general damages for damage caused by the defendant to the plaintiff’s eight college buildings, namely, one block of 12 class rooms, one block of 4 class rooms, one dormitory block, one assembly/dining hall and kitchen block, the Principal’s house, the Principal’s kitchen, latrine building and one piggery house at Okwidiemo within the Sapele Judicial Division when between May and June 1968, the defendant carried out seismic operations near the plaintiff’s aforementioned college buildings at Okwidiemo which shook the said buildings to their very foundations and caused the said damage.

On the completion of hearing, Ekeruche 1 on 29th October, 1969 gave judgment for plaintiff in the sum of 24pds,2 14 17s 11d as special damages for trespass. The defendant has therefore appealed to this Court.

It was conceded by both parties that the learned trial judge was clearly in error to have found the claim in trespass and that the proper cause of action is one for nuisance.

The issue that was joined at the trial was whether the seismic operations carried out by the defendant company prospecting for oil caused the extensive damage to some buildings which plaintiff claimed to have erected to house a college under his proprietorship.

The plaintiff claimed that his damaged buildings comprised of “a block of 12 classrooms (two storey) uncompleted, erected at a cost of 4,000pds, one block of 4 classrooms valued at 2,500pds, one dormitory block valued at 3,500pds, one assembly/dining hall and a kitchen block valued at 2,400pds, Principal’s house valued at 1,250, outhouses valued at 230pds and a piggery house erected at a cost of 500ps.” He gave evidence also that prior to the “shooting operations” the defendant company sent one Ossai to inspect his buildings and submit a report of his inspection. He further stated that on completion of defendant’s “seismic operations” the college buildings were inspected by an official of the defendant company. According to the plaintiff this official made a report of his inspection and promised that the defendant company would make good all the damages to the college buildings. He contended that it was as a result of some vibrations from defendant’s “seismic operations” that the college buildings were damaged.

The defendant company on the other hand in its amended statement of defence admitted sending assai to the premises of the college but not for inspection; he was to check on the distance from the college premises to any point that would be safe enough for the “shooting operations” that were to be carried out by the defendant. The defendant required the information as it was in a position to know what distance is safe for any “shooting operations” using a particular type of explosive charge. After ascertaining this the defendant company then commenced its shooting operations. It is the case of the defendant that whatever damages the college buildings suffered were not in any way connected with the shooting operations carried out by its workmen.

The relevant portions of the pleadings on which issues were joined are, so far as the statement of claim is concerned, as follows:-

8. A few days after Paul assai’s pre-shooting inspection workers of the defendant company came into the college compound, walked into the adjoining bush, and started the shooting operations around the school premises.
9. The four nearest shot-points as shown on the markings on posts on the points marked by the defendant are ‘S.P. 228’ which is about 266 yards from the Principal’s house, outhouses and the fourclassroom blocks. Another, ‘S.P.’ (Post recently removed by the defendant company) is about 291 yards from the Assembly/dining hall block, the piggery block and the hostel block. The uncompleted two storeyed classroom block is equidistant from the two shot-points above referred to.
10. The two other shot-points are S.P. 120 and S.P. 328 which are about 300 yards and 400 yards respectively from the compound but are on the other side of the premises and almost opposite the first two shot-points.
11. Shooting exercise was carried on by the defendant’s workers on several points including the four nearest shot-points referred to above at various times during the months of May and June 1968. At each point several seismic shots were fired. They averaged five a day and lasted for about three weeks.
12. At each blast or shooting there were vibrations of the buildings and the ground around. During this period classes were disturbed by the boomings and vibrations which went to the very foundations of the buildings.
13. On one occasion the tremor caused by these heavy shootings were such that the beams carrying the roof of class V (that is the uncompleted 12 classroom block) were fractured in several places and a hugh piece of the concrete broke away and fell down narrowly missing a student’s head.
14. So serious is the damage done to class V building (that is the uncompleted 12 classroom block) that the building has been declared dangerous and out of bounds to students. Classes are since being held in the Library and under tree shades. The building operation was forced to be stopped and the promised building aid from the Ministry of Education could not be pursued.
15. The nature of damage done to all these buildings described in paragraph 2 by the defendant’s aforesaid operations are vertical and horizontal cracks. These cracks occur to the walls without following lines of the mortar joints. The cracks cut across the blocks either horizontally or vertically and are at strategic points in the buildings. Where the cracks are neither vertical nor horizontal, they are scattered in all directions from a point on the wall. These are shattering cracks.
16. The plaintiff will contend at the trial:

(i) That these cracks are dangerous in nature and different from those described in the dormitory and the four classroom blocks in paragraph 5 above.

(ii) That these cracks are symptoms of shock which affected the buildings right from the ground.

(iii) That the cracks to the walls indicate that the foundation concrete for the different buildings have been fractured by the shock and vibrations which emanated from the shooting operations at the various points referred to above.

(iv) That as a result the buildings are now human traps in their present condition and are no longer fit for human habitation.

(v) That these buildings though now still in position, will sooner or later collapse on their fractured foundations and must be rebuilt.

The defendant’s reply to the averments referred to above are contained in paragraphs 7 to 13 of the amended statement of defence. In these paragraphs the defendant company averred:-

7. With regard to paragraph 8 of the statement of claim the defendant avers that the company’s surveyors, drillers, shooters and observers went into the bush adjoining Trinity College premises Okwidiemo at various times.
8. The defendant denies the allegations contained in paragraph 9 of the statement of claim and avers that the properties mentioned in the said paragraph and their distances from the various shot points are as shown in survey plan No. OM. 2762 prepared by Mr. O.E. Omoregie licensed surveyor. The defendant will at the trial found on the said survey plan.
9. The defendant denies paragraph 10 of the statement of claim and avers that the only shot point on the other side of the premises (that is, on the left hand side while standing on Warri/Sapele Road and facing Sapele) is about 2,470 feet away from the dormitory. This shot point is shown on survey plan No. OM. 2762 referred to in paragraph 8 hereof.
10. With regard to paragraph 11 of the statement of claim the defendant admits that the shooting exercise was carried on by its employees at several points shown on survey plan No. OM. 2762 during the months of May and June, 1968, but makes no further admissions as to the rest of the said paragraph .
11. The defendant denies damaging plaintiff’s property and is not in a position to admit or deny the other allegations contained in paragraph 14 of the statement of claim.
12. The defendant denies paragraph 15 of the statement of claim and avers that some of the cracks on the buildings follow the slope of the blocks and do not cross them, while others radiate from the corners of the windows. The defendant will contend at the trial that these cracks were due to constructional weaknesses.
13. The defendant denies all the allegations contained in paragraph 16 of the plaintiff s statement of claim and puts the plaintiff to very strict proof thereof.

In order to determine the crucial point as to the cause of the damage to the plaintiff’s buildings, the plaintiff called evidence to the effect that the cracks to the buildings were symptoms of shocks which had gone right to the ground; that the concrete foundation had been fractured by the shocks and vibrations of the shooting operations of the defendant. The defendant on the other hand called evidence in support of its contention that the seismic operations which were carried out at Okwidiemo between May 1968 and June 1968 could not have any connection with the alleged damages or cracks to the Trinity College buildings. The defendant company also relied in support of its contention on plan No. OM. 2762 exhibit 14, which showed the relative positions of service lines to the Trinity College buildings; on various records of shootings at different points as shown in exhibit 13. The contention of each party is of a technical nature and therefore such evidence as could support it must necessarily be that of people specially qualified in the particular field of science which in this case comprised of the knowledge and practice of seismology and civil engineering. It is on the examination of such evidence as is considered relevant that a determination must be arrived at as to the cause of the damages alleged.

Counsel had canvassed many grounds of appeal before us but it is our view that this case can be resolved on the issue of causation and consequential liability. On this issue he had argued extensively his second ground of appeal which reads:-

2. “The learned trial judge erred in law and on the facts in holding that, ‘the cracks and damage to the plaintiff’s buildings were caused not by faulty construction…but by the disturbance of the foundation of the house’ when:-

(a) such a finding is not supported by the evidence of the plaintiff’s witnesses and is negatived by the evidence of the witnesses for the defence; and

(b) the finding aforesaid was based upon conjecture and not upon facts proved or inferences therefrom.”

It is counsel’s contention that the appellant had called expert evidence which proved that damages and cracks on respondent’s buildings were not caused by the shooting operations carried out by the appellant at its site at Okwidiemo. He argued that such evidence as had been put forward by the respondent had not been that of experts and they therefore are irrelevant in the determination of the cause of the damage and cracks. The learned trial judge regarded the witnesses called by each party as to the cause of the damage as experts. He believed the evidence of the “experts” called by plaintiff as to the cause of the damage and therefore gave judgment for the plaintiff. The judge did not expressly reject the evidence of the experts called by the defendant but impliedly did so; because on a visit to the site, he observed certain cracks, which were not referred to in evidence before him, and substituting such observations as proved facts proceeded to infer that the cracks he observed were caused as described by respondent’s experts.

We consider it pertinent at this stage to refer to this portion of the judgment where the learned trial judge stated thus:-

“During the period of adjournment,” (for judgment after the addresses of counsel) “having perused the entire proceedings in the course of wanting to write the judgment, I found that in view of the expert evidence adduced by either side as to the cause of the cracks in the walls of plaintiff’s buildings and the evidence as to the value, it was necessary for me to visit the college premises to inspect the buildings in order to find out which side was speaking the truth.”

The counsel for the appellant contended, and quite rightly in our view, that it must be accepted, that the learned trial judge had impliedly found that on the completed evidence before him the plaintiff had not established the liability of the defendant. At that stage the learned trial judge should have dismissed the plaintiff’s claim.

The judge did not do this but decided to visit the college premises, inspect the buildings “in order to find out which side was speaking the truth.” On the visit to the premises the judge recorded his observation of the cracks which he itemised under six heads.,He described the number of cracks, the extent of such cracks as going to the foundation which was thereby disturbed and extensive damage to the walls. On these observations the judge proceeded to determine the cause of the cracks. This, it must be remembered, was done after the close of the case by both sides and when what remained was the judgment. In the circumstances whilst the learned counsel did not question the right of the judge to visit the premises, he contended that he treated his notes and findings as real evidence when counsel were never shown them or allowed to comment on them. The learned counsel referred us to the case of Goold v. Evans (1951) 2 T.L.R. page 1189 as to evidentiary value of observations at a view. Before dealing with the relevant portions of the judgment to which our attention was drawn, we wish to refer to sections 75 and 76 of the Evidence Act which is applicable in the Mid-Western State which deal with oral evidence and the question of what evidence is admissible consequent upon a view of the premises. There are two provisos to the section 76 and we consider that proviso (ii) to subsection (a) Covers the point being contended.

It reads:-

“Oral evidence must, in all cases whatever, be direct:-

(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says she saw that fact;

PROVIDED

………………………………….”

(ii) if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection, or may inspect or may order or permit a jury to inspect any movable or immovable property, the inspection of which may be material to the proper determination of the question in dispute.

In the case of such inspection being ordered or permitted, the court shall either be adjourned to the place where the subject-matter of the said inspection may be and the proceedings shall continue at that place until the court further adjourns back to its original place of sitting or to some other place of sitting, or the Court shall attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in court afterwards … ”

In Nwizuk v. Eneyok (1953) 14 W.A.C.A. page 354 it was held:-

“(1) The court did not cease to be a court when on inspection and the statements were as much oral admissions by a party in court as if they had been made in a courtroom and could be taken into account as such.

(2) The absence of a record of the inspection is not fatal; statements by the judge in a solemn judgment must be taken as a correct account of what occurred.”

This case is distinguishable from the present one on appeal. There was no dispute as to what the court held in paragraph (2) above in the case of Nwizuk v. Eneyok (supra). The difference is that the learned judge in that case during inspection took statements in which the parties had admitted giving false evidence at the trial, and on these admissions dismissed the plaintiff’s case. In his judgment, the judge gave an account of his inspection and mentioned the admissions. In this case the judge inspected the premises, and in his judgment regarding the inspection stated “The notes and findings are as follows:-” After itemising the cracks he found or observed other than the cracks given in evidence by both parties, he proceeded to regard such observations as established facts and used them as such. This he did in his comments on the evidence of the defendant’s 5th witness, who was called to give expert evidence, and whose evidence as to the cracks he observed on the uncompleted classrooms was not challenged at the trial; the learned judge had this to say in his judgment:-

“said cracks here were only in the suspended concrete floor. Said there were no cracks at all on the walls. This last statement is a lie because in the very room there was a fire crack running through the entire height of the crosswall from top to the ground floor and this crack was through the wall because it could be seen on the other side. Also there were cracks on other walls in the block.”

Obviously in this portion of the judgment the learned trial judge was using his view as real evidence. This clearly is contrary to the provisions of the proviso (ii) to section 76(a) recited above especially this portion which reads:-

“the court shall attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in court afterwards. ”

If, as the learned trial judge had done, he was treating his view as “findings”, then this amounts to real evidence and according to our law this could only be done on the evidence received at the scene or in court; and parties must be given the opportunity of hearing the additional evidence through a witness and where necessary offered the opportunity of cross-examination and for counsel to comment. It is therefore clear that the learned trial judge had erred in regarding his view as “findings” when considering other evidence before him in his judgment.

As stated in Goold’s case referred to above our attention has been drawn to certain portions of the judgment but it is enough for a support of the principle of law we have expressed about a view to quote what Hodson L.J. said at page 1191:-

“I would like to put slightly differently what has been said about a view…Mr. Croom-Johnson has, I think rightly, contended that a view is not in itself evidence. A view does not do away with the necessity for evidence.”

We have dealt with this aspect of this case extensively, because in view of our conclusion in this appeal, it will finally determine the rights of the parties. This disposes of ground 2(b) of the appeal.

In ground 2(a) appellant’s counsel has contended that the learned trial judge erred in law in holding that “the cracks and damages to the plaintiff’s buildings were caused not by faulty construction … but by the disturbance of the foundation of the house.” This contention is founded on the point that has to be resolved, whether the evidence given by plaintiff’s “experts” does fall within the provisions of section 56 of the Evidence Act and therefore becomes relevant facts.

The plaintiff relied on the evidence of one Josephus Theophilus John, who described himself as a civil engineer and licensed surveyor, one Godwin A. Etuwere who described himself as a research officer under the firm of A. T. & P. (Nigeria) Ltd., and physics master, St. Malachys College, Sapele, and one Christopher Ikweke who described himself as Principal A.S.B. Trade Centre, Sapele. On the ground that such evidence as was called by plaintiff on this point was not the opinion of experts and such evidence therefore becomes irrelevant and should be rejected.

With regard to Mr. John, he gave evidence that since he qualified in 1926 he had concentrated mainly on survey work and as a matter offact had not done any civil engineering work since 1929. As to Mr. Etuwere, he has no practical experience of civil engineering as he is a research officer and admitted that he was not a geo-physicist. Christopher Ikweke gave evidence that he studied estate management in the University of Nigeria at Nsukka, but did not obtain any degree.

He also gave evidence that he had never by himself erected or constructed a building. His only experience was that on an occasion as a student he took part in the erection of a building. As against the three expert witnesses called by the plaintiff the defendant company also called three witnesses: The first one John Edward Charles Medlock is a geo-physicist and works under the defendant company. He kept records of the particular shooting operations of May and June 1968 at Okwidiemo in the neighbourhood where the plaintiff’s buildings known as Trinity College are situated. He gave evidence that the dynamite used was between five pounds weight and ten pounds and tendered the relevant record book as exhibit 13.

He also tendered the plan of their service lines (shooting points) showing their relative positions to the Trinity College buildings. This plan was tendered in evidence and marked exhibit 14. The second witness called was one Sikiru Olatunbosun Oke who is a chartered structural engineer. He inspected the premises of the Trinity College and gave his opinion as to the cause of the cracks on the buildings. The third witness called was Lan Chestine. He is a seismologist. He has had seven years experience of seismic work, three of which are in Nigeria. He had carried out shooting operations in Onitsha, Nembe/Brass area of the Rivers State and around Burutu, Bomadi in the Mid-Western State.

The learned trial judge in considering the evidence of these witnesses did not resolve whether they were experts or not. Section 56, subsections (1) and (2) of the Evidence Act which is applicable in the Mid-Western state provide as follows:-

(1) When the court has to form an opinion upon a point of foreign law, native law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, native law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts.

(2) Such persons are called experts.

The four witnesses called by the plaintiff and whose opinions the learned trial judge accepted as proving the cause of the damages to the plaintiff’s buildings cannot be said to be that of experts. On the other hand, the defendant company had called witnesses who are specially skilled in their fields of science and who come within the definition of experts in section 56, sub-sections (1) and (2) of the Evidence Act. We are of the view, therefore, that if the learned trial judge had applied the correct test he would have come to the conclusion that the only expert opinions before him were those of the defendant’s experts, and so unless for good reasons otherwise should have accepted them. We may in this respect refer to the case of United States Shipping Board v. The Ship St. Albans [1931] A.C. page 632 and at page 642 where Lord Merrivale in delivering the judgment of the Privy Council stated inter alia thus:-

“The question of the evidential value of the testimony of the three expert witnesses for the defendants depends in like manner upon ascertained limitations which define the power of judges to accept opinions of witnesses as proof of matters of fact.

The extent to which the opinions or conclusions of skilled persons are receivable by way of proof in point of fact has not been seriously in doubt from the time when, in 1782, in Folkes v. Chadd [1782] 3 Doug. 157, Lord Mansfield stated the grounds on which the evidence of Smeaton, the famous constructive engineer, was to be admitted upon a disputed question of obstruction to a harbour: ‘ the opinion of scientific men upon proven facts may be given by men of science within their own science.’ Another Chief Justice, Lord Russell of Kilowen, explained the rule in a modern case of Reg. v. Silverlock [1894] 2 Q.B. 766, 771. The witness must have made a special study of the subject or acquired a special experience therein. ‘The question is,’ Lord Russell said, ‘is he peritus; is he skilled; has he an adequate knowledge’

In reinforcing this principle we would like to refer to section 76(d) of the Evidence Act which provides:-

“Oral evidence must, in all cases whatever, be direct:-

(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.”

It is therefore, clear that the only expert evidence that the learned trial judge had before him was that of defendant’s experts; these show that the defendant was not responsible for the damage caused to buildings. Ground 2(a) of appeal is therefore upheld. Although other grounds were argued before us, we do not think it necessary that they should be considered, since on grounds 2(a) and (b) the appeal should be allowed.

The appeal therefore succeeds. The judgment of Ekeruche J. in suit No. S/29/68 given at the Sapele High Court on 29th October, 1969 and the costs awarded are hereby set aside. We therefore enter judgment for the defendant. The plaintiff’s claim in the High Court is dismissed with 100 guineas costs and in this Court the defendant/appellant is awarded 94 guineas costs.

Appeal allowed.

SC.73/1970

Jimoh Adebakin V. Sabitiyu Odujebe (1972)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C 

The appellant was the defendant in an action instituted against him in the High Court, Ikeja, Lagos State. The plaintiff is the present respondent and her writ was endorsed for the following claims:-

“(1) Recovery of possession of all that piece or parcel of land situate lying and being at Akinwunmi Village, Mushin in the Ikeja Division, the said land being more particularly described on a plan to be filed in this action;

(2) 100 pound General Damages for trespass to the said land.

(3) Injunction restraining the defendant his servants an agents from further acts of trespass. The annual rental value of the land is 5 pound.

Title is involved.”

The plaintiff filed a statement of claim in which she stated that one Muranoh Akanni Eniafe “became seised in fee simple absolute in possession of the said land” by virtue of a conveyance dated the 25th day of August, 1948, and that by another conveyance dated the 14th March, 1958, the plaintiff had become “seised in fee simple absolute and in possession of the said land.” The statement of claim further stated that she duly entered into possession of the land and remained peacefully in such possession until “on or about the 2nd August, 1959” when the defendant entered the said land, dispossessed her and erected a building thereon despite her protests.

The Statement of Defence denied the dispossession of the plaintiff and averred that the land always belonged to the Eyisha Family under Native Law and Custom and that this family was in full, undisturbed and effective possession of the land until by virtue of an indenture of lease dated the 14th day of June, 1958, they had leased the said land to the defendant. The statement of defence finally in paragraph 9 thereof averred that –

“The defendant pleads and relies on

1. Acquiescence
2. Standing by
3. Laches
4. The Limitation law

We observe that although pleadings in this case closed with the filing of the statement of defence on the 13th May, 1963, no evidence was taken by way of hearing of this case until the 31st March, 1966, and then only before Kester, J., (as he then was), who, after part-hearing the case until the 29th April, 1966, left the jurisdiction for other duties. The hearing which has culminated in the judgment now on appeal did not commence before Beckley, J., until the 11th September, 1967, some four years after the close of pleadings and certainly five years since the institution of the proceedings. Cases involving lands are pre-eminently those which require as witnesses persons who have had some considerably long experience of the lands concerned as well as the relevant history and the passage of time may in these circumstances bring about incalculable and unexpected vicissitudes to the character of the cases and the availability of witnesses.

Be that as it may, the plaintiff did give evidence in support of her statement of claim. She produced both the Purchase Receipt (admitted as Exhibit “A”) and her Deed of Conveyance covering the land. This conveyance was admitted in evidence as Exhibit “B. She testified that after her purchase of the land she met the defendant on the land; that he would not leave the land despite the letters written to him by her solicitors and that she eventually instituted proceedings against him. She called her vendor Muranoh Akanni Eniafe who testified that he had bought the land from one R.A. Disu and produced his own conveyance which was admitted in evidence as Exhibit “D”. The plaintiff’s surveyor, Mr. Body Lawson, also gave evidence and identified the plan in the plaintiff’s conveyance Exhibit “B” with that on the conveyance of her vendor, Exhibit “D”.

The witness also produced a plan showing the area of encroachment which is in dispute between the parties and this was admitted in evidence as Exhibit “E”. The plaintiff had done the negotiation and purchase of the land through her landlord one Abu Bakare Okewande. He also gave evidence and described the negotiation with Eniafe. He stated that the plaintiff went into possession and indeed cleared the bush on the land regularly. In the same way the defendant gave evidence that he had bought the land from the Eyisha Family because he always knew that the land belonged to that Family. In the course of his testimony he stated before the court as follows:-

“I only knew at the time that the Eyisha family were the only family dealing with land in that neighbourhood at the time. My house cost me 200 pounds to build. I roofed the building about 12 years ago. In 1960, Lawyer Ojosipe wrote a letter to me which I handed over to my lawyer. At that time I had already completed my main building and I was living there. All my aunts were there on the land granted to me by the Eyisha family. I first built on the land. There was nothing between the plaintiff and myself until I got a writ of summons from her.”

The defendant called his surveyor, Marcellino Augustin Soweje who also prepared a composite plan (produced in evidence as Exhibit “G”) and identified the land verged red on Mr. Lawson’s plan Exhibit “E’ as the same area as that which he had verged green on his own composite plan, Exhibit “G”. The defendant called one Raimi Apena a member of the Ojomo Eyisha Family as a witness. Raimi Apena gave evidence to the effect that the land in dispute was leased by his Family to the defendant by virtue of the Deed of Lease Exhibit “F”; that the land in dispute was part of his Family land in respect of which they had plans, the first of which was made for his Family by the late Herbert Macaulay, licenced surveyor, in 1912. He testified in the course of his evidence thus:-

“The family land commences from Idioro roundabout, across railway line to Igbobi then towards the back of the Orthopedic Hospital to Somolu to Debari and across the Ikorodu Road to Idi Araba, which is the old footpath to Onigbongbo then onwards back to Mushin with Ojuwoye family land on the right hand side. I know the land in dispute. It is at the centre of our family land. The land belongs to the Eyisha family. Eyisha first settled on the land over 300 years ago.

The land belongs to the Eyisha family.” This witness further testified that his family was always in possession of the land in dispute until it was leased to the defendant some time in 1947 and then proceeded to enumerate the cases which they had fought and won on several portions of the large expanse of land already described by him. He attempted to produce the relevant judgments, they were objected to by learned counsel for the plaintiff and although learned counsel appearing for the defendant referred the learned trial Judge to the provisions of Section 45 of the Evidence Act, Cap. 62 (Laws of the Federation, 1955) the judgments were rejected by he learned trial Judge. A number of these was tendered but they were rejected one after the other by the learned trial Judge. In one case learned counsel pleading for the admission in evidence of one of these judgments submitted as follows:-

“It is tendered to show dealings by Eyisha family with land within the boundaries of the family land as described by the witness with a view that when all the evidence of dealing is in evidence, the court will be asked to draw the inference that this particular land in dispute belongs to the Eyisha family. One single claim of evidence may be insufficient to enable the court to draw the inference, but the sum total of a number of acts of ownership upheld by the court with regard to different parcels of the Eyisha family land may enable the court to come to the conclusion that the land in dispute belongs to the Eyisha family.”

His plea was rejected and the judgment was also rejected. At the end of the hearing learned counsel on both sides addressed the court and in a reserved judgment the learned trial Judge upheld the claims of the plaintiff and gave judgment for her according to her The defendant has appealed to this court against that judgment complaining of misdirection of law in that the learned trial Judge wrongly concluded that the plaintiff had made out a title when she had not; that he wrongly rejected the several judgments which the defence attempted to put in evidence and that even on the facts of the case the learned trial Judge wrongly found possession in favour of the plaintiff.

We shall deal with these points seriatim. Learned counsel for the defendant has submitted before us that the learned trial Judge wrongly came to the conclusion that on the evidence before him the plaintiff had proved her title. We have set out earlier on in this judgment the plaintiff’s claims as they appear on her writ and manifestly as stated by the plaintiff herself on that writ title is involved. The claim of the plaintiff as expressed on the writ postulates that she was not in possession at the time of the institution of these proceedings for she was asking for recovery of possession since, according to her statement of claim, she had been evicted by the defendant from the land on or about the 2nd August, 1959, and the present proceedings were begun on the 28th November, 1962, after, again according to her, the defendant had “also erected a building thereon.” On those facts which she had herself put forward as the bases of her claim, it seems inconceivable that there should have been any finding of possession in her favour. She had asked in the action for recovery of possession as well as for damages for trespass. The former pre-supposes that she was out of possession at the time of the institution of the proceedings whilst the latter assumes that she was in possession. In dealing with this aspect of the case the learned trial Judge in his judgment observed as follows:-

“I think the onus is on the defendant to prove his justification for encroaching on the land possessed by the plaintiff for I am satisfied on the evidence adduced by the plaintiff that at the time she purchased and at the time she put fence round the land she purchased there was no building on the land now in dispute and there was no well dug on the land in dispute at that time. She was in possession before the defendant encroached upon the land…….. The plaintiff on her part said that at the time she bought and was shown the site there was no building on the land in question. I accept that evidence.”

Thus, it seems that the evidence accepted by the learned trial Judge was that the plaintiff was always in possession before the defendant entered on the land vi et armis. If that is so, a claim for recovery of possession is inappropriate for a trespasser does not by the act of trespass secure possession in law and if the plaintiff was always so in possession then the defendant can only be liable for damages in trespass and to an order of injunction. We must observe that the learned trial Judge made no clear findings on this point, especially when his later observation in this case to the following effect is considered:-

“Having given the whole evidence my most careful scrutiny, I have come to the conclusion that the plaintiff’s claim must succeed. I accordingly give judgment for the plaintiff against the defendant for the recovery of possession of all that piece or parcel of land edged green in Exhibit E survey plan No. L&L/C 2455 counter-signed by the Surveyor -General of Western Nigeria on the 29th day of April, 1964. I also award damages of 40 pounds for trespass against the defendant in favour of the plaintiff. I order an injunction restraining the defendant, his servants and agent from further acts of trespass on the land possessed by the plaintiff as shown in Exhibit “E”.

With respect, it is not possible from these observations to decipher which of the parties was in possession at the time of the institution of the proceedings and undoubtedly a clear finding in this respect is fundamental to the success of one or the other of the parties. We think therefore that the complaint of the defendant on this aspect of the case is justified.

Adverting now to the issue of title, the learned trial Judge at the commencement of his judgment directed himself as follows:-

“The plaintiff alleges that the area in dispute, that is the area verged green in Exhibit “E” is within the area of the land conveyed to him by Exhibit “E” and which traces her title to one Mr. J.A.O. Phillips. On the other hand the defendant stated that he is the lessee of the land shown in Exhibit “F” which includes the portion verged green in Exhibit “E”. He also traces his root of title to the Ojomo Eyisha family and to prove his title he called Raimi Apena, a member of the family of Ojomo Eyisha family. The question therefore for determination is as to which of the plaintiffs or defendant has a better title to the land in dispute. The defendant claims that by virtue of the lease granted to him he has a right to build and utilise the portion edged green in Exhibit “E” as part of his property.”

So, whilst the plaintiff had stated her root of title as that of Mr. J.A.O Phillips, the defendant had relied on the title of the Eyisha Family. The learned trial Judge then discussed at length the case of the defence on the title put forward by the defendant and criticised both the case and the efforts of the defence to prove that title. Learned counsel for the defendant has before us attacked the judgment on this point in two ways. Firstly, he submitted that the plaintiff’s title must first of all be established before a consideration of the defendant’s title could arise and, secondly, he argued that the learned trial Judge wrongly rejected the several judgments by which the defendant had sought to establish the title of his lessors. Concerning the first contention, we simply draw attention to the observation of this court in the case of Alhaji J. Aromire & Ors. v. J.J. Awoyemi, SC. 38/69 of the 11th February, 1972, to the following effect:-

“The plaintiff claimed that they were trespassers but assuming that they were, indeed the plaintiff in order to evict then must show a better title and cannot succeed in doing so by canvassing a title which itself was demonstrated to be defective. (See the observations of the West Africa Court of Appeal in Alhaji Adeshoye v. Siwoniku (1952) 14 WACA 86 at p. 87). The learned trial Judge observed in a number of passages that the appellants had not proved their title or that the land in dispute fell within Exhibit “E”. On the strength of the authorities the plaintiff’s title must first be considered and decided upon before a consideration of the title of the defendants arises.”

The learned trial Judge in the instant case properly directed himself as to the necessity of examining the respective titles of the parties. In her statement of claim, the plaintiff had claimed to be “seised in fee simple absolute in possession of the said land” and it is by virtue of this title that she wanted recovery of possession from the defendant. She produced her conveyance as Exhibit “B”; it is dated the 14th March, 1958, and was made between her as the purchaser of the one hand and Muranoh Akanni Eniafe as the vendor of the other hand. There was only one recital of the title of the vendor (or vendors) of Eniafe himself in Exhibit “B” and it reads thus:-

“WHEREAS under and by virtue of a Deed of Conveyance dated the 25th August, 1948, and registered as No. 12 at page 12 in Volume 786 of the Register of Deeds kept in the Lands Registry at Ibadan all the piece or parcel of land situate lying and being at Ojuwoye Town, Mushin, Ikeja District in the Western Region of the Federation of Nigeria aforesaid and which with its dimensions and abuttals is more particularly described and delineated on the plan drawn or attached at the foot of the Deed of Conveyance aforementioned was conveyed in fee simple absolute in possession by JACOB ADEPEJU OGUNDIPE PHILLIPS of No. 6 Ashiwaju Lane, Lagos, and RAIMI ADISA DISU of No. 38 Agoshofin Street, Lagos, to the vendor.”

Muranoh Akanni Eniafe then gave evidence and produced his own conveyance (admitted as Exhibit “D”) from Phillips and Disu. Exhibit “D’ is dated the 25th August, 1946, and is expressed to be made between Jacob A.O. Phillips as vendor, Raimi Adisa Disu as purchaser and Muranoh Akanni Eniafe as sub-purchaser. The contents of Exhibits “D’ show that Raimi Adisa Disu obtained no conveyance for himself at the time he bought the land from Phillips and indeed at the time he sold same to Eniafe. In Exhibit “D” the title of Phillips was described in the relevant recital as follows:-

“WHEREAS the vendor is seised in fee simple or otherwise sufficiently entitled to the hereditaments hereinafter described and intended to be hereby granted for an estate of inheritance in fee simple in possession free from encumbrances.”

Clearly therefore, Phillips had no more to his title than the recital in Exhibit “D”. It should be noted that he was then described as having a fee simple absolute – a tenure which is only provable by writing and in this case a claim of title completely unevidenced by any writing or authority. The learned trial Judge in the course of his judgment referred to the above recitals from Exhibit “E” and Exhibit “D”. He observed thereon as follows:-

“The root of title of Mr. Jacob A.O. Phillips does not appear clear from Exhibit “D’ which is a conveyance between himself and Raimi Adisa on the one part and Mr. M.A. Eniafe on the other part.”

The learned trial Judge then quoted in extenso the recital dealing with the title of Phillips in Exhibit “D” and then observed as follows:-

“It would therefore be observed from the above quoted recital of Exhibit “D” that the root of title of Jacob A.O. Phillips is not certain but suffice it to say that Exhibit “D” confirms that he had in any way been in possession of that piece of land since 1948.”

With respect again, the inferences drawn by the learned trial Judge does not follow from the premises. If the root of title from Phillips “does not appear clear” or if that root of title “is not certain” then the obvious conclusion must be and is that the plaintiff had failed to prove the title through which she had claimed. To say then that she had proved “her root of title as far back as the year 1948” does not follow and in any case is a conclusion which is a direct antithesis of the evidence accepted by the learned trial Judge himself. That was all there was to the title of the plaintiff and her predecessors-in-title. It was contended before us by learned counsel for the plaintiff that she was already on the land exercising numerous acts of possession thereon before the advent of the defendant. As to this argument, we are unable to place any reliance on it. There was, as we observed earlier on in this judgment, no clear finding as to possession and in any case the argument could not be an answer to the issue of title. It is clear that on the material before the learned trial Judge the plaintiff had failed to prove her own title to the land and, in the circumstances of this case, that finding should have decided the case.

Again, on the issue of title, learned counsel for the defendant complained that the several judgments by which he had sought to prove the title of his lessors were wrongly rejected by the learned trial Judge. Learned counsel for the plaintiff had argued before us that the judgments were rightly rejected by the learned trial Judge inasmuch as they were not shown to be relevant to the case in hand. We are firmly of the view that the several judgments were wrongly rejected by the learned trial Judge. We have already referred to the evidence of Raimi Apena one of the defendant’s lessors and his attempts to produce the several judgments in evidence. Section 45 of the Evidence Act, Cap. 62 provides as follows:-

“45. Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.”

If the defendant was allowed to produce the judgments it is easy to see the application of such judgments to the case of the defence either as the evidence then stood or by the calling of further evidence to identify the judgments already in evidence with land in such proximity to the land in dispute as to strengthen the probability of the evidence of the witness.mThe documents were rejected and indeed contrary to established practice were not marked as “Tendered and Rejected,” so we have no opportunity of looking at them and ascribing to them what we think should be their probative value. The rejection of the judgments by the learned trial Judge was clearly an error of law. In dealing with the evidence of the witness Raimi Apena on this point, the learned trial Judge said in his judgment as follows:-

“He did not give evidence which I could regard as traditional evidence tracing how his family became the owner of this large piece of land including the land in dispute. Whether his family bought the land, acquired it by conquest or by being the first settlers on the land is not clear and in my view that evidence is too scanty to be able to establish that his family is the owner of the land on which the plaintiff is in possession. For the second defendant’s witness to establish that the property in dispute belongs to his family, the onus is upon him to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant an inference that members of his family were the exclusive owners (see Ntoe Ekpo Ekpo versus Eta Ita XI Nigeria Law Reports, page 69). Attempts were made to tender several judgments in evidence but these judgments were not proved to be relevant to the present case and they were accordingly rejected.”

We have already stated that those judgments were wrongly rejected at the stage when they were so rejected. The learned trial Judge in his judgment concluded that the witness did not produce the type of evidence that would support his claim of ownership to the Eyisha family land but by his own decision and rejected of his documentary evidence, the learned trial Judge himself had made it impossible for the witness to give the type of evidence which he should have given. The learned trial Judge had laid down certain criteria for proving absolute title of ownership but lost sight of the fact that those criteria were to be proved by evidence and not necessarily by numbers of witnesses.

On the issue of title, it is sufficient for us to point out that the plaintiff had clearly failed to prove her title and as the defendant was in possession at the time of the institution of these proceedings it is inconceivable that she should have succeeded in her claim for recovery of possession on the strength of her title.

We have come to the conclusion that all the grounds of appeal argued on behalf of the defendant are justified and therefore succeed. The appeal succeeds and it is allowed. The judgment of the High Court, Ikeja, in Suit No. IK/205/62 including the order for costs is set aside and it is ordered that the plaintiff’s case be dismissed. This shall be the judgment of the court.

The appellant is entitled to his costs both in this court and in the court below and these we fix at 66 guineas and 72 guineas respectively.

SC.42/70

Messrs. Comptoir Commericial Industriel (Afrique) (Nigeria) Ltd Vs A. O. Onayemi (1972)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, JSC.

In Suit No. LD/290/1968 in the High Court of Lagos, the claim of the plaintiff, now respondent, against the defendants, herein appellants, as endorsed on the writ of summons was in the following terms:

“1. The plaintiff is a trader with her business premises situate at 55, Idumagbo Avenue, Lagos.

2. The defendants are importers and manufacturers’ agents and have their business premises at 11 Martins Street, Lagos.

3. The plaintiff ordered through the defendants who are the sole importers and manufacturers’ agents of Walgust brand Tomato Paste, Five hundred (500) cartons of the said Walgust Brand Tomato Paste, on the conditions that “Exclusivity” be guaranteed to the plaintiff.

4. The defendants agreed to and granted the guaranteed “exclusivity” to the plaintiff to cover Lagos and Ibadan for a period of three months after receipt of the goods.

5. In consideration therefore and relying on the representations of the defendants the plaintiff deposited the sum of Three hundred pounds (£300) with the defendants.

6. The defendants were unable to guarantee exclusivity to the plaintiff when the goods arrived, as a result of which the market was flooded with goods of the same type selling at a lesser price.

7. The plaintiff therefore was unable to sell and/or make any profits whatsoever on the goods.

8. The plaintiff therefore claims from the defendants:-

In obedience to an order of court made in that behalf both the plaintiff and the defendants filed and exchanged pleadings. In her statement of claim the plaintiff averred that some time in March, 1967, the defendants offered to order for her, she being a trader, Walgust tomato paste and puree from their principals, the manufacturers in Europe; that in furtherance of the offer, the defendants further represented, in respect of the goods, to grant her “exclusivity” (sic) to cover Lagos and Ibadan for a period of three months after the receipt of the goods aforesaid; that she relied on the representation that she would be the only trader exclusively to sell the brand of paste and puree, the subject-matter of the offer, which she accepted, and thereupon ordered 500 cartons of the said Walgust tomato products through the defendants, to be shipped to her in Nigeria in two lots of 250 cartons each, for which purpose she, at their request, deposited the sum of £300 with the defendants; that before the arrival of the goods, the markets in Lagos and Ibadan were flooded with goods of the same type and make, which were being sold at prices much lower than even the cost price of the goods on order.

As a result she only took delivery of and paid for the first 250 cartons of the goods on arrival, and, then only on the further representation, coupled with a promise, made to her that the defendants would make good any losses that might be incurred by her as well as refund to her, her deposit of £300; that she was unable to sell and make any profit on the first shipment of which she took delivery but instead sustained, losses; that the defendants took delivery of, and sold the second shipment of £250 cartons on arrival; and that in addition to the losses, which she sustained, the defendants have bluntly refused on demand to refund to her the deposit of £300.

Hence her claim as already stated. The defendants admitted in their Statement of Defence certain averments contained in plaintiff’s Statement of Claim to wit: the offer and acceptance; the payment of £300 deposit for the goods ordered; the order for 500 cartons of Walgust tomato paste and puree to be delivered in two lots of shipment of 250 cartons each.

The defendants, however denied ever representing to the plaintiff to make good her loses or to refund to her the deposit of £300 or that the markets in Lagos and Ibadan were flooded before the arrival of the first lot of shipment in Nigeria. The defendants then alleged that as distributors of the goods, the subject matter of the transaction between them, they never at any time sold the goods to any other dealer than the plaintiff. They further alleged that it was only when the plaintiff refused to take delivery of the second lot of shipment on arrival that they had perforce to take delivery of the said goods at C.I.F. price and thereby incurred a loss over and above the deposit of £300, which the plaintiff had paid to them and which they forfeited. The defendants therefore pleaded that the plaintiff’s claim be dismissed as misconceived, frivolous and speculative.

On the pleadings therefore the main issue in controversy and for determination appears straight forward and settled. It was this: Was there any breach of contract on the part of the defendants which had occasioned the loss and damage which the plaintiff alleged she had suffered? If so, what form did such a breach take and what was the contract breached? Such being the position, surely the onus was on the plaintiff to prove that there had occurred such a breach of contract as would entitle her to recover the damages that she claimed. When the case came up for trial, both sides gave evidence. For the purpose of establishing her claim, the plaintiff testified on her behalf and called one witness, a woman trader.

In the course of her testimony, the plaintiff tendered, among others, two documents which we consider of vital importance in this case, and which we propose to deal with later. The documents were admitted in the proceedings and marked Exhibits A and E. The plaintiff further testified that she refused to take delivery of the second lot of goods on arrival because she had sustained a loss of some £400 on the first lot of 250 cartons which she received, and that the defendants had refused despite demand in that respect, to refund to her the deposit £300 (Receipt, Exhibit E) which she had paid when she placed her order for the goods. She admitted, however, that the £300 she deposited was for the goods she The only witness for the defendants was Fasasi Adebayo a salesman.

He swore that before 1967 the defendants, as the manufacturers’ representative, never imported Walgust tomato into Nigeria; that when the first shipment of the goods arrived, the plaintiff had cleared the consignment herself from the wharf but that she refused second shipment thereby compelled the defendants to clear the consignment at total cost of £1,212:12s :6d; that the defendants only realised the sum of £942: 2s: 6d from the sale of the goods resulting in a shortfall of £370:10s which had to be offset with the sum of £300 deposited with the defendants by the plaintiff; and that the defendants suffered a loss of £70.10s in the whole transaction.

The learned trial Judge in a reserved judgment reviewed the evidence. He was of the opinion that the case of the plaintiff was not seriously challenged and that the facts were not in dispute. He therefore entered judgment for the plaintiff in the following terms: “There will be judgment for the plaintiff in the sum of £300, being the refund of the deposit she made with the defendants company, and for £400, loss sustained by her after she had sold the first consignment of the tomato, with one hundred guineas costs.” The defendants have brought this appeal against that judgment. They have complained in substance, firstly, that the plaintiff did not establish on the evidence that the defendants had committed in any way any breach of their contract in relation to “exclusivity”.

Secondly, that the learned trial Judge within the context of Exhibit A, misconstrued the word “exclusivity” to mean a guarantee of profit; and within the context of Exhibit E, the word “deposit”, as meaning “security or earnest for the performance of some contract”.

Thirdly, that the costs awarded the plaintiff were excessive. In his submissions in support of the defendants’ complaints, Mr. Awonyinfa, learned counsel for the defendants, contended that the onus rested squarely upon the plaintiff to show by evidence that the defendants had committed a breach of contract whereunder in terms of Exhibit A, the plaintiff was granted “exclusivity to cover Lagos and Ibadan for a period of three months”. Learned counsel contended that by the grant of “exclusivity”, the defendants did not guarantee that the plaintiff must make profit from the sale of the products, and, in any case, that there was no evidence that the markets were flooded through the instrumentality, or in consequence of any act on the part of defendants.

There was no evidence, it was further contended, that the traders who were selling the goods in the market had bought them from the defendants, and that, in the circumstances the action was misconceived and ought to have been dismissed the plaintiff, not being entitled to any damage whatsoever. Mr. Desalu, learned counsel for the plaintiff, in reply, contended that the learned trial Judge was right in entering judgment for the plaintiff and that the judgment should in no way be disturbed.

He maintained that the claim for £300 was for a refund of a deposit whilst the award of £400 related to damages suffered by the plaintiff, not necessarily on the basis of loss of profit. Learned counsel then submitted that while he would concede that there was no evidence that the defendants were responsible for the markets in Lagos and Ibadan being flooded with the goods in the manner described, still the defendants were bound by their contract in which they had undertaken to grant the plaintiff the exclusive right of selling the products in Lagos and Ibadan as expressed in Exhibit E.

As an alternative, it was conceded by learned counsel, that, in the event the court disagreed with his submission, he would ask that the case be remitted to the court below for a rehearing. It would appear that the case of the plaintiff was based on Exhibits A and E. The judgment of the learned trial Judge appears to have been based on the construction and application of the terms of these two documents. It is therefore necessary that both Exhibits be examined and their purport be considered in the light of the evidence before the court.

There can be no question that the claim of the plaintiff was based on a breach of contract between her and the defendants. The only documentary evidence of the terms of the contract purported to have been broken is Exhibit A – an invoice dated 18th April, 1967 for 250 cartons of Walgust tomato puree, the C.I.F. value whereof is shown thereon as £672. 4s. 41/2d. There is also endorsed on Exhibit A the following remarks:

“Note: Exclusivity granted to cover Lagos and Ibadan for a period of three months after receipt of the goods (first shipment).”

Then there is Exhibit E, which is receipt No. 081/892 of 11th March, 1967 for the sum of £300 issued to the plaintiff by the defendants. It is worthy of note that Exhibit E contains the under-mentioned particulars:-

“Article: 500 cartons of Walgust Tomato Paste Amount: Total £1,342.9s. 2d Payment: £300 – being deposit on the above order paid on SBWA cheque No. C/4 832122 of 11/3/67.”

We think learned counsel, Mr. Desalu, was right in conceding that there was no evidence – indeed not a tittle of evidence – that the defendants were responsible for the markets being flooded with the goods, the subject matter of the contract between the plaintiff and the defendants. It seems to us, having regard to Exhibit D – a copy of a letter addressed by the defendants to the Board of Customs dated 8th June, 1967, produced and tendered by the plaintiff – that the defendants were as much embarrassed and surprised as the plaintiff to learn of the market having been flooded with goods for the importation and distribution whereof they were the sole agent in Nigeria. It is significant as well as remarkable that the defendants were complaining in the letter, Exhibit D, that their investigation had revealed that the goods were being smuggled through Dahomey, a foreign country, into Nigeria. The purpose of the letter was to seek protection for their goods from the Board of Customs. In his judgment the learned trial Judge said

“On the loss of £400 sustained by the plaintiff after the 1st consignment of the tomato products had been sold, the evidence disclosed that the defendant company guaranteed exclusively of the particular brand of tomato to the plaintiff before she made a deposit of £300 and asked that the products be ordered for her.

Before the goods arrived the market had been flooded with the brand of tomato and she had to sell them at less than the cost price. She said that she would not have parted with her money, or ordered the goods, if no promises had been made to her. That she sustained loses was confirmed by the defendant company itself.”

The learned trial Judge then continued:-

“Who should bear the losses sustained by the plaintiff? On the evidence before me, I hold that the losses should be borne by the defendant company.”

From the above passages of the judgment it appears that the learned trial Judge did not properly direct his mind to the issue in controversy between the parties in the case, nor did he correctly approach the case of the plaintiff on the evidence before him. The learned trial Judge would appear to have thought that all the plaintiff had to do to succeed was to prove that she had suffered losses regardless as to how such losses had been brought about or as to whether such losses had been occasioned by any act on the part of the defendants within the terms of their contract.

It seems plain that on the evidence, the plaintiff did not even attempt to, nor did she establish any breach of contract on the part of the defendants. On the other hand, her refusal to take delivery of the second lot of 250 cartons of the tomato paste on arrival would constitute breach of contract on her part and was sufficient, we think, to disentitle her to a refund of the deposit of £300, especially as the defendants had perforce to take delivery of the goods at a total cost to them of £1,212.12s. 6d thereby incurring a loss of the sum of £370. 10s.

It must be remembered that the plaintiff had admitted in her evidence that the £300 was deposited by her for the goods she had ordered. We are of opinion that the learned trial Judge misconstrued and misapplied the word “exclusivity” in Exhibit A. He took it to mean a guarantee of profit to the plaintiff. We think that, in all the circumstances of this case, this action was misconceived.

Furthermore, there was no breach of contract proved as the evidence given by the plaintiff fell far short of the degree requisite to establish a breach of contract on the part of the defendants. At all events, the action ought to have been dismissed.

Accordingly, this appeal succeeds. It is allowed. The claim of the plaintiff in the Lagos High Court Suit No. LD/290/1968 is dismissed with 60 guineas costs; and this shall be the judgment of the court. The appellants are entitled to costs of this appeal assessed and fixed at 34 guineas.

Other Citation: (1972) LCN/1522(SC)

Oba Adeyinka Oyekan v. BP Nigeria Ltd. (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

The appellant was the defendant in an action instituted in the High Court Lagos under the provisions of Order III, rule 9 of the Rules of Court applicable in that Court and placed on the “Undefended List”.

As on the writ, the claim against the appellant by the respondents, who were the plaintiffs in the High Court, was “for the sum of 7,205pounds (seven thousand, two hundred and five pounds), being money paid to the defendants by the plaintiffs in Lagos, on or about 9th September, 1965 as rent in respect of a lease of a parcel of land measuring 4,390 square feet situate at Great Bridge Street, Lagos the consideration for which has totally failed.”

The facts of the case are simple, the issues to be decided, and which were decided by the High Court, are circumscribed and the matter for consideration on appeal confined within a small compass.

As suggested by the writ, the claim is for a refund of part of money already paid by the plaintiffs to the defendant in respect of the lease of some lands which lease did not eventually turn out to be effective. As stated before, the action was placed on the Undefended List and by the combined provisions of Order III, Rules 9, 10, 11, 12 13 and 14, the defendant is required to file within the time prescribed a notice of intention to defend the action or, failing that, an affidavit setting out a substantial defence to the action and the judge is vested with the discretion to allow a defence to be filed or oral evidence to be given and indeed to enter judgment if such a course became necessary.

In this case, however, the defendant, now appellant, did not avail himself within the time stipulated of the provisions entitling him to file a defence and when leave was sought to do so out of time by learned counsel appearing for him, the application was refused by the learned trial judge. In the exercise of his discretion, however, the learned trial judge took and heard evidence concerning the claim of the plaintiffs and gave a judgment in the case. In the course of that judgment he observed as follows:

Now whether the property in dispute is family property or stool property I have no doubt that if the paramount chief or the family head entered into any contract or transaction with a third party in respect of the property, it is good law that he must purport to deal with the property in the particular capacity in which the land is entrusted to him as distinct from a capacity which assumes his individual ownership of the land.”

He then directed himself with respect to the contents of the deed of lease put in evidence and the designation of the defendant therein to the effect that although the defendant had been sued in the present action in his personal capacity, the deed of lease describes the defendant as the head of the Dosumu family. He observed further as follows:

“I have not been asked by Mr. Jibowu to amend the claim, and I am not at all sure that if I were so asked could be entitled so to do in view of what I have already said as to the conclusion that has arisen as to the capacity in which the land is owned as a result of previous cases.

The learned trial judge then ordered a non-suit stating that in doing so he was giving “both parties an opportunity to come to court again.”

This appeal is from that judgment and the complaint of the appellant is that the learned trial judge should not have non-suited the plaintiffs but instead should have dismissed their case. The plaintiffs on the other hand had filed a notice under the provisions of Order VII, rule 13 of the Rules of the Supreme Court to contend that the decision of the Court below be varied by entering judgment against the defendant for the amount of the claim together with costs.

It is pertinent at this stage to observe that at the hearing of the appeal the plaintiffs were neither present nor represented by counsel. We observe that the contention of the plaintiffs as on their notice, was that the judge should have given judgment in their favour and point out that if this were so it would have been desirable for them to file a cross-appeal if they be so advised rather than file a notice pursuant to the provisions of Order VII, rule 13 of the Rules of the Supreme Court. We refer in this connection to the observations of this Court in Ajayi v. Lagos City Council, S. C 74/68 decided on 25th September, 1970 and Lagos City Council v. Ogundemuren and Anor S.C 335/69 decided on 26th November, 1971 .

Be that as it may, as the plaintiffs were not present at the hearing, we propose to strike out the notice, which they had filed and we will at the end of this judgment make an order to that effect.

The only point as stated that arises for consideration is as to the propriety of an order of non-suit as ordered by the judge in the circumstances of this case. Learned counsel for the defendant had strongly urged on us the argument that as the judge had found that under no circumstances could the plaintiffs succeed against the defendant in the capacity in which he was sued, he should have dismissed the plaintiffs case. In maintaining this submission, learned counsel relied on the cases of Westgate v. Crowe [1908] 1 K. B. 24 (in particular the dictum of Philimore J. at p. 26) and S. Oragbaide v. Chief Onitiju [1962] 1 All N.L.R. 32 (especially the dictum of Bairamian F.J. at p. 38). In Westgate’s case the decision of the County Court was reversed because the County Court has ordered a non-suit when, as Philimore J. pointed out in the action taken by the plaintiffs therein “the defendants were not liable but that certain other persons, if any, were the parties responsible for the accident”. In Oragbaide’s case the Federal Supreme Court affirmed the order dismissing the plaintiff’s case because he had sued the defendant as representing the Ifetedo community when in fact there was no such community with the persons comprising such community “having the same interest in one cause or matter” but a collection of persons each having or holding separate parcels of land in individual capacities.

We do not agree with learned counsel for the defendant that the present case can be treated as if it were on all fours with the authorities which he had cited to us. The learned trial judge was dealing in the case in hand with an action which was not defended and in which all the evidence there was had proceeded from the other side of the plaintiffs. The learned trial judge decided to non-suit not because the defendant was the wrong person to sue but because he had not been sued in the proper capacity in which he should have been sued. It is not contended before us that the situation could not have been rectified by a simple amendment and indeed the learned trial judge considered this aspect of the case in the portion of his judgment, which we have quoted above. He however thought that he should not make an order of amendment since notice of this would have had to be served upon the defendant who in the present case had not been allowed to defend the action.

In all the circumstances of the case we do not think that it has been shown to us that the judge was wrong in taking the course, which he took of non-suiting the plaintiffs. After all, the defendant had not defended the case and there has been no injustice done him by the mere fact that the door was left open for the plaintiffs to start other proceedings if they are so advised.

The appeal fails and it must be dismissed and we make the following order:

(i) The appeal of the defendant herein is dismissed without costs;

(ii) The notice of intention to vary the judgment filed by the plaintiffs pursuant to Order VII, rule 13 of the Rules of the Supreme Court is struck out and also without costs.

Other Citation: (1972) LCN/1614(SC)

T.O. Kuti & Anor. V. Oludademu Jibowu & Anor (1972)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

This is an appeal by the 1st and 2nd defendants from the decision of the Western State Court of Appeal which gave judgment in favour of the plaintiff (now respondent) in a claim for damages for negligence.

The claim originated in the Ibadan High Court in Suit No. 1/219/67 where the plaintiff claimed against the 1st and 2nd defendants jointly and severally the sum of 31,000pounds as special and general damages for the damage done to the plaintiff’s motor car (identification No. WE 1981) when the 1st defendant’s minibus (identification No.LM 7986) negligently driven by the second defendant collided with the plaintiff’s motor car along Agodi double carriage way, Ibadan, on the 1st May, 1967.

Paragraphs 2, 3 and 4 of the plaintiff’s statement of claim read:

“2. The 1st defendant is a trader and owner of a Morris minibus index No. LM 7986 at the material time of the accident.

3. The 2nd defendant was a driver of the Morris minibus index No.LM 7986 at the material time of the accident.
4. On the 1st May, 1967, the 2nd defendant negligently drove the said Morris minibus index No. LM 7986 and collided with the plaintiff’s motor car registered No. WE 1981, a Morris 1100, as it was being driven by the plaintiff along Agodi double carriage way, Ibadan,at about 9 p.m.”

In his statement of defence, the 1st defendant admitted that he was the owner of the Morris minibus (No. LM 7986) at the time of the accident but averred further that the said vehicle was not in his possession and control at the material time. He then explained further in paragraphs 3 to 7 of the said statement of defence as follows:-

“3. By a hire-purchase agreement dated 29th July, 1966, the 1st defendant had hired out the said vehicle No. LM 7986 to one Mr. Joseph Adenuga of 13 Bogije Lane, Atikori, Ijebu-Igbo in whose possession and control the said vehicle was at the material time of the accident.

4. The first defendant delivered the hired vehicle No. LM 7986 to the said Mr. Joseph Adenuga (hirer) new and without any mechanical defects whatsoever.
5. The first defendant avers that there is a contractual agreement between him and the said Mr. Joseph Adenuga (hirer) that he (Adenuga) would be responsible for (a) road worthiness including tyres of the hired vehicle, (b) any accident caused by or to the said vehicle No. LM 7986.
6. The said hirer, Mr. Joseph Adenuga, employed the 2nd defendant Mr. Mufutau Ajagbe, who drove the said vehicle No. LM 7986 at the time of the accident. The 1st defendant will, at the trial, contend that the 2nd defendant was not his servant and/or agent.
7. The first defendant further avers that the said vehicle No. LM 7986 was registered in his name for the purpose only of facilitating the recovery of the hire-purchase charges between him and his customers. ”

In his statement of defence, the second defendant admitted in paragraph 2 thereof that he was the driver of the Morris minibus No. LM 7986 at the time of the accident and averred further that he was employed to drive the said vehicle by one Mr. Joseph Adenuga of 13 Bogije Lane, Atikori, Ijebu-Igbo. The second defendant, while further admitting in paragraph 3 of his statement of defence that there was a collision between the plaintiff’s car No. WE 1981 and vehicle No. LM 7986 on 1st May, 1967, as stated in paragraph 4 of the statement of claim, denied “that he drove negligently at the material time of the accident.” He further averred in paragraph 6 and 7 of his statement of defence as follows:-

“The second defendant avers that while he was carefully and skilfully driving along Agodi-Bere Road at a decidedly slow speed the off side front tyre of the vehicle No. LM 7986 suddenly got burst; immediate and energetic control was taken to avoid colliding with the plaintiff’s car.

7. The second defendant further avers that the collision was caused by inevitable accident without any negligence or default on his part.”

Both the first and second defendants filed their respective statement of defence on 22nd May, 1968 and on that same day they both applied to the Ibadan High Court for an order to join Joseph Adenuga as a defendant in the action. The motion was heard on 17th June, 1968. At the hearing that day, Joseph Adenuga agreed to be joined and he was duly joined as 3rd defendant without any objection by the plaintiff.

In his own statement of defence filed thereafter, Joseph Adenuga (hereinafter referred to as the third defendant) admitted that he bought the Morris minibus No. LM 7986 new on hire-purchase from the first defendant, that there was a written hire-purchase agreement dated 28th July, 1966 between him and the first defendant in respect of the said vehicle which contained various terms including liability for accidents, that the said vehicle was under his control at the time of the accident, and that he employed the second defendant as a driver to drive the said vehicle at the time of the accident.

At the hearing on 18th October, 1968, the first defendant testified as follows:-

“I know the 3rd defendant. I gave a minibus No. LM 7986 to him on hire-purchase. This is the agreement between us-(tendered, no objection, marked exhibit N)-I delivered the vehicle new to the 3rd defendant. The tyres too were new…I do not know the 2nd defendant. I did not employ him.”

Under cross-examination by Chief Okubadejo who then appeared for the plaintiff, the first defendant stated that he was trading under the name and style of Abusi Odu Transport and that he delivered the minibus to the third defendant on 29th July, 1966. He admitted that on the day of the accident, he was the registered owner of the vehicle and that he signed the hire-purchase agreement (exhibit N) as such owner. He was not cross-examined as to the validity or otherwise of the agreement (exhibit N). To a question asked by the court, he replied:-

“When I hire the vehicles out to the hirers, I allow the hirers to engage any drivers they please.”

The first defendant was not cross-examined by Mr. Akande who appeared as counsel for the third defendant who was also present at the hearing that day.

In his own defence, the driver of vehicle No. LM 7986 (2nd defendant) testified as follows:-

“I know the 3rd defendant. He is my master. I am the driver of lorry No. LM 7986. I am employed by the 3rd defendant to drive the vehicle. I was employed three days after the 3rd defendant got the vehicle. I was driving the vehicle on the day of the accident. I know the 1st defendant but I do not work for him. He did not employ me to drive any vehicle.”

He then explained how, on 1st May, 1967, the front right hand tyre of his vehicle got burst, how he lost control of the vehicle as a result, and how the vehicle crossed the island and went to the other side of the road where it collided with the plaintiff’s car No. WE 1981 which was coming from the opposite direction. In answer to a question from Chief Okubadejo for the plaintiff he replied that he was the first driver employed by the third defendant to drive the minibus. He denied driving the vehicle negligently on the day of the accident. Although the second defendant was cross-examined by Mr. Akande about other matters, he was not cross-examined about his admitted relationship with the third defendant.

The third defendant did not testify in his defence at the trial.

In a reserved judgment, the learned trial judge, after a careful consideration of the evidence adduced before him, observed as follows:-

“I am of the view that the questions which have to be resolved in reaching a decision in this matter are these:-

(1) Who is the owner of the vehicle No. LM 7986 against whom the plaintiff must establish his case

(2) Is the 2nd defendant negligent as averred in the statement of claim

(3) If so, what, if any, damages were proved”

On the issue of ownership of the minibus, the learned trial judge found as follows:-

“As far as the first point is concerned I am satisfied both on the evidence and on the law that the 3rd defendant is the owner of the offending vehicle. By virtue of exhibit N a rather curious and one-sided hire-purchase agreement, the 3rd defendant took possession of the vehicle No. LM 7986, and agreed to be:-

‘solely responsible and liable for any litigation that may arise as a result of any accident’ and to ‘indemnify the owner on all claims.’

He also agreed to be responsible for renewing the vehicle licence, the certificate of road-worthiness and the insurance policy whenever they fall due for renewal. Furthermore, the evidence, which I accept, shows that he employed the 2nd defendant as his driver and that he had an overall control of the vehicle.”

With respect to the claim against the 1st defendant, the learned trial judge then found as follows:-

“Having found that the 3rd defendant was the owner of the vehicle at the material time, and that the 2nd defendant was his driver, it follows that the plaintiff’s case against the 1st defendant fails and it is accordingly dismissed.”

The learned trial judge also dismissed the claim against the 2nd and 3rd defendants for the following reasons:-

“In the present case, the 2nd defendant explained that the cause of the accident was due to a front tyre-burst. This bit of evidence was confirmed by plaintiff’s first witness P. C. Akinpelu. Since the cause of the accident is known I hold that the maxim res ipsa loquitor does not apply.

It now remains for me to decide whether on all the facts as are now known the plaintiff has proved negligence against the defendants, and if so, what damages the plaintiff is entitled to ….

I accept the story of these two men as to how the accident happened, and I am satisfied that the defendants have discharged the onus of proving that the accident was inevitable. As I had previously observed,the plaintiff had advance notice of the defence which the defendants were putting up, but led no evidence to show that the accident could have been avoided by due care and skill, or that the tyre got burst because of faulty maintenance or that the defect (if any) in the tyre could have been detected by the exercise of due care.

I am satisfied that the 2nd defendant drove with due diligence on the day and that the accident which later occurred was one over which he had no control. In the result, regrettable as it may seem I hold that the plaintiff has failed to prove negligence against the defendants.”

In the appeal by the plaintiff against this decision, the Western State Court of Appeal considered the liability of each defendant. With respect to the second defendant (the driver), the court, quite rightly in our view,observed as follows:-

“What is important and what the learned trial judge should have directed his mind to, in our view, was the cause of the tyre-burst. He clearly misdirected himself when he said that once the defendant explained that the cause of the accident was due to a front tyre-burst that explanation obviated the doctrine of res ipsa loquitor. The responsibility was on the respondent, in our view, to establish why that tyre burst. Evidence should have been called to show that the tyreburst was not due to the negligence of the respondent. … The onus is clearly on the respondent to establish the cause of the tyre-burst and it is only when this would have been satisfactorily done that the doctrine of res ipsa loquitor could be obviated.”

After referring to the decision in Barkway v. South Wales Transport Co. Ltd. [1950] 1 All E.R. 392, another case of a burst tyre, in support, the Court of Appeal, again quite rightly, disagreed with the learned trial judge that the accident which occurred was one over which the driver had no control. They expressed the view, with which we again agree, that this is a case of prima facie negligence shown by the plaintiff and not rebutted by the driver (2nd defendant).

On the issue of the vicarious liability of the 1st and/or 3rd defendants for the negligence of the 2nd defendant, the Court of Appeal observed as follows:-

“As we had earlier said the learned trial judge relied on this exhibit in determining that the 3rd respondent was the owner of the vehicle. However, on exhibit N the name of hirer was put as ‘Joseph Adenuga.’ Joseph Adenuga is the 3rd respondent but the exhibit was executed by one S. A. Adenuga’ whereas the same agreement was alleged to have been explained and interpreted to Joseph Adenuga. Mr. Okueyungbo who represented the 1st and 2nd respondents informed us that he would not be pressing the issue of the signatures. He admitted that ‘ A. Adenuga’ signed exhibit N as ‘hirer’ whereas the agreement was purported to have been made between Kuti the 1st respondent, and ‘Joseph Adenuga’ the 3rd respondent. Counsel further admitted that Mr. Joseph Adenuga, that is the 3rd respondent, did not sign the agreement. Mr. Akande took the course of not supporting the judgment in view of the revelation in exhibit N. It is obvious to us that counsel having conceded so much, the issue as to the ownership no longer arises and the ground of appeal filed against this issue must succeed as it stands. In other words, it can no longer be an issue that the 3rd respondent is liable on the facts as pleaded. The 1st respondent must be held liable as the owner or person responsible for the vehicle and the 2nd respondent liable as the driver. If then liability could be proved, first respondent would be vicariously liable for the fault of the 2nd respondent. This to put it simply, must be the position.”

The Court of Appeal thereupon allowed the appeal, gave judgment for the plaintiff against the first and second defendants jointly and severally, and awarded the sum of 500.15(pounds) as damages in his favour against the two defendants.

The 1st and 2nd defendants have now appealed against this judgment on the following grounds:-

“(1) The learned judges of the Court of Appeal erred in law in holding that the 1st defendant was vicariously liable whilst there was evidence that the 2nd defendant was unknown to the 1st defendant and that the 1st defendant did not employ the 2nd defendant to drive the hired car No. LM 7986.

(2) The learned judges of the Court of Appeal erred in law in holding that the 1st defendant was the owner of the car No. LM 7986 whilst the 3rd defendant admitted in his statement of defence that he (3rd defendant) executed a hire-purchase agreement (exhibit N) in respect of the car No. LM 7986.

(3) The learned judges of the Court of Appeal erred in law in holding that the 3rd defendant did not sign the hire-purchase agreement exhibit N because of the signature only whilst the execution of the document exhibit N was admitted by the 3rd defendant in his statement of defence and therefore not in issue in the High Court and there was no evidence of a handwriting expert to contradict it and the Court of Appeal substituted its own view.

(4) That the decision of the learned judges of the Court of Appeal cannot be supported having regard to the weight of evidence.”

The contention of Mr. Sofola, learned counsel for the 1st defendant/appellant who argued all the grounds of appeal together, may be summarised as follows. It was erroneous of the Court of Appeal to hold that ownership of a vehicle determines liability because before an owner can be held liable, the driver must not only be the servant of the owner by he must also be acting in the course of his duty at the time of the accident. There is evidence which the learned trial judge accepted that the 1st defendant was not the master of the 2nd defendant at the material time. Moreover, there was no plea, not even by the plaintiff, that the driver (2nd defendant) was driving the car under the authority of 1st defendant. Furthermore, nowhere in his writ of summons or pleadings did the plaintiff aver that the 2nd defendant was the agent or servant of the 1st defendant. All the plaintiff averred both in his writ and in his statement of claim was that the 2nd defendant was the driver of the mini-bus at the time of the accident. Mr. Sofola then referred us to three cases- Hewitt v. Bonvin [1940] 1 K.B. 188 at page 191; Higbid v. R. C. Hammett Ltd. (1932-33) 49 T.L.R. 104; and Droke v. Ede (1964) N.N.L.R. 118 at page 119.

With respect to the views expressed by the Court of Appeal on the hire-purchase agreement (exhibit N), Mr. Sofola submitted that the Court of Appeal should have decided the appeal on the points on which issues were joined by the parties and should not have formulated new issues for the parties. The issue of the signature of “Joseph Adenuga” in exhibit N was not raised by the parties in the High Court, and although he did not testify at the hearing, the 3rd defendant admitted signing the hire-purchase agreement.

In reply, Mr. Cole, for the plaintiff, submitted that it was not necessary for the plaintiff to plead that the 2nd defendant was the servant or agent of the 1st defendant and that the owner of a vehicle at a particular time is deemed to be in possession and control of the vehicle. This relieved the plaintiff of the obligation of proving that the 1st defendant was in possession and control of the vehicle in this case. As the 1st defendant did not deny ownership, it is not incumbent on the plaintiff to file a reply saying that he was the owner. Learned counsel then referred to the case of Ogunmuyiwa v. Solanke (1956) 1 F.S.C. page 53 and page 54. He also referred to the hire-purchase agreement (exhibit N) and pointed out that the ownership of the vehicle by the 3rd defendant was based on exhibit N. Even though it contained recitals and jurat and showed the 3rd defendant as hirer, it bears the signature of a name different from that of the hirer. As there was no explanation from the 3rd defendant of the difference between Joseph Adenuga and S. A. Adenuga or that S. A. Adenuga was Joseph Adenuga’s attorney, the Court of Appeal was right in finding as it did that there was no proof that Joseph Adenuga was the owner of the vehicle concerned. Learned counsel then submitted that although the 3rd defendant was present in court, he did not identify exhibit N as the document executed by him; that the writer of the jurat on exhibit N did not give evidence and that the 1st defendant who gave evidence did not say that he saw the 3rd defendant sign the document. Learned counsel, however, conceded that more questions should have been put to the 1st defendant at the trial to clarify the issue of ownership and control of the vehicle. Finally it was submitted that because of the difference between the pleadings and the evidence (a point not raised in the Court of Appeal), we might consider sending the case for retrial.

The liability of the owner of a car for any damage for which the driver of the car was found to be responsible has been clearly stated by du Parcq LJ. in Hewitt v. Bonvin [1940] 1 K.B. 188 at page 194. It is this. The ownership of a car cannot of itself impose any liability on the owner. The owner, without further information, is, however, prima facie liable because the court is entitled to draw the inference that the car was being driven by the owner, his servant or agent, but when all the facts are given in evidence and therefore ascertained, as in the instant case, the court is not left to draw that inference. Moreover, the owner is only liable if the driver is his agent or if he had authority, express or implied, to drive the vehicle on the owner’s behalf. The above statement of the law was repeated by Denning LJ. (as he then was) with approval in Ormrod v. Crossville Motor Services Ltd [1953] 2 All E.R. 753 at pages 754 and 755.

In the case in hand, the plaintiff/respondent did not state in his writ of summons nor did he aver in his statement of claim that the 2nd defendant/appellant drove the minibus on the day of the accident with the authority of the 1st defendant/appellant. On the contrary, there is the admission of the 2nd defendant/appellant both in his statement of defence and in his testimony in court, which the learned trial judge accepted, that he was the driver, not of the 1st defendant, but of the 3rd defendant. Furthermore, there is also the evidence, which the trial judge also accepted, that it was the 3rd defendant who employed the 2nd defendant as his driver and he (the 3rd defendant) had an overall control of the minibus No. LM 7986. As for the case of Ogunmuyiwa v. Solanke (supra) referred to by learned counsel for the plaintiff/respondent, it is sufficient to point out that, unlike the instant case, the evidence in rebuttal of the primafacie evidence of ownership of the vehicle concerned was not believed by the Chief Magistrate who heard the case. That case is therefore not on all fours with the one in hand and is of no assistance to the plaintiff/respondent. Finally, it was common ground that it was the 2nd defendant who drove the minibus on the day it collided with the plaintiff’s car. In the face of all these findings of fact, we do not see how the difference between the name used by Joseph Adenuga (3rd defendant) in the hire-purchase agreement (exhibit N) and the signature “S. A. Adenuga”, even if this could have been regarded as a difference in identity (and we do not say it can be so regarded), could have made the 1st defendant/appellant vicariously liable for the negligence of the 2nd defendant/appellant. On this ground alone the appeal of the 1st defendant/appellant must succeed.

We would like, however, to express our view on the observations and findings of the Court of Appeal with regard to the hire-purchase agreement (exhibit N). The doubt about the authenticity of exhibit N started, for the first time, during the hearing of the appeal in that court. How it all started could be gathered from the following notes taken by the court at the hearing of the appeal:-

“Okueyungbo for 1st respondent:

As to ownership

Exhibit N was signed by 1st and 3rd respondents.

Court:

Attention of counsel drawn to exhibit N that Joseph Adenuga the hirer did not sign the agreement. Okueyungbo says he is not pressing the issue of the signatories. He admits S. A. Adenuga signed as hirer whereas the agreement was supposed to be between Kuti and Joseph Adenuga. The latter did not sign the agreement.

Akande:

Says that in view of the discrepancies noticed in exhibit N, he is not supporting the judgment.”

This record shows that the point about the “discrepancy” in the signature of the 3rd defendant/respondent was not made an issue by any of the parties or their counsel either during the trial or at the hearing of the appeal. It was taken by the Court of Appeal suo motu and even then learned counsel for the 1st and 2nd defendants/appellants said that he was not pressing the issue. The statement of Mr. Akande, who appeared for the 3rd defendant/respondent, that he was “not supporting the judgment” could not be taken as conclusive proof that Joseph Adenuga did not execute exhibit N. Learned counsel for the plaintiff (who was then the appellant) was not even asked to express any opinion on the matter.

Throughout the trial before the High Court, there was no occasion when the authenticity of the hire-purchase agreement (exhibit N) was disputed by any of the parties nor was there any time when Joseph Adenuga (whose interest was adversely affected by the admission of the document) disputed his signature on the agreement. The only relevant point in this case, to our mind, is whether there was evidence which the trial judge could accept, and which he accepted, that exhibit N was an agreement between the 1st defendant/appellant and the 3rd defendant/ respondent. The 1st defendant/appellant testified that this was so in the presence of both the 3rd defendant/respondent and his counsel and produced the said agreement which was admitted in evidence without any objection either by the plaintiff/respondent and his counsel or by the 3rd defendant/respondent and his counsel. As a matter of fact, the genuineness of the agreement was accepted by all parties. In these circumstances, it is, in our view, not open to the Court of Appeal to raise issues which the parties did not raise for themselves either at the trial or during the hearing of the appeal. There may be occasions during the hearing of an appeal, however, when the genuineness of any document tendered during the trial of a case may appear to the court hearing the appeal to be in doubt. In such a case, and only if it is material to the determination of the appeal, the party or parties who were supposed to have executed the document in question should be given an opportunity to explain the discrepancy before any opinion is expressed as to the genuineness of the document. In the case in hand, the learned judges of the Court of Appeal gave neither the 1st defendant/appellant nor the 3rd defendant/respondent any such opportunity. With respect, we think it is unfair to castigate the 3rd defendant/respondent as they had done and on that basis hold that the 1st defendant/appellant was the owner of the vehicle. In any case, the 1st defendant/appellant had admitted in his testimony before the trial court that he was the owner of the minibus and had stated further that he gave the minibus on hire-purchase to the 3rd defendant/respondent. He also explained in answer to a question put by that court that when he hired his vehicles out to hirers, he allowed them to engage any drivers they pleased. This should have been the end of the matter particularly as the learned trial judge must have accepted this testimony before finding that the 3rd defendant/respondent was in control of the vehicle at the material time.

The views which we have expressed above, both on the question of liability and as to observations made by the Court of Appeal, do not affect the decision in so far as it affects the 2nd defendant/appellant who did not appear to argue his appeal before us and was not represented. His appeal is dismissed for want of substance with costs to the plaintiff-respondent assessed at 49 guineas.

Be that as it may, the judgment of the Court of Appeal, in so far as it affects the 1st defendant/appellant, cannot be allowed to stand. The appeal is allowed and the judgment of the Western State Court of Appeal in Appeal No. CAW/67/69, delivered on 31st March, 1970 in so far as it applies to T. O. Kuti (the 1st defendant/appellant), is hereby set aside.

So also is the order as to costs made against him. We accordingly order that the claim against him in Suit No. 1/219/67 in the lbadan High Court be dismissed with costs in the High Court assessed at fifty guineas, in the Court of Appeal at 70 guineas, and in this Court at 49 guineas. All the costs are against the plaintiff/respondent.

SC.291/1971

A. Okosun Okpere V. Eboade Ehinebo & Anor. (1972)

LawGlobal-Hub Lead Judgment Report

A. FATAYI-WILLIAMS, J.S.C. 

In the Uromi Customary Court in Suit No. 63/68, the plaintiff’s claim reads:-

“The plaintiff claims severally and jointly against the defendants:

(1) declaration of title to ownership of a piece of land valued at 370 situate at Ualokpere quarters in Eguare village along Ualokpere-Idumuague Road in Uromi.

(2) Injunction to restrain the defendants and their servants or agents from further trespass to the said land.

(3) 350 as damages for trespass therein.”

The plaintiff gave evidence in support of his claim to the following effect. The land in dispute situated at Ualor Okpere, in Eguare, Uromi, was originally owned by one Okpere (now deceased) the father of the plaintiff. During his lifetime, Okpere farmed on the land. Nobody disputed the land with him. After his death the land was divided among his children. This particular portion in dispute was the plaintiff’s share. Sometime in 1955, when he returned to his home at Uromi on leave, the plaintiff found the two defendants on the land.

They were cultivating economic crops such as cocoa, rubber, kolanuts and citrus trees there. One Agboma had also started a building on the land. The defendants when questioned begged to be allowed to stay on the land but the plaintiff refused and uprooted the crops. Agboma, who was building on the land was sued in suit No. 73/43/55 in Okhiode Group Court and judgment (exhibit A) was obtained against him. When the plaintiff returned home on leave again in 1957, he discovered that the two defendants as well as others had started building on part of the land in dispute.

As one Ogbebor was the chief instigator of the people disputing the land with him, the plaintiff’s family authorised his elder brother named Okpuje to sue Ogbebor for building on the land without permission. This second case (suit No. 618/57) was tried in the Uromi-Uzea Federal Court. The plaintiff’s family won the case as shown by the judgment (exhibit B) about which we will have more to say later.

One Okokpofi Egbehi (1st P/W), a member of the plaintiff’s family, was one of the two witnesses who gave evidence in support of his claim. His testimony is as follows:-

“I know both plaintiff and the defendants. Egbehi was my father. He virgined the land in dispute and other portions of the land left unvirgined by my grandfather Egbe. Okpere the first son of Egbehi virgined the remaining portion of the land untouched by Egbehi. It is a large portion of land which we are unable to use for farming all at once. Okpere family warned the defendants not to farm or plant economic crops on this land but they refused to heed the warning and continued to plant more.”

The 1st defendant also gave evidence. His defence, in short, was that the land in dispute was given to him by the late Chief Uwagbale, the Onoje of Uromi. This defence was confirmed by the 2nd defendant. In support of their case, the defendants called one Frederick Elabebolo (1st D.W.) who tendered another judgment of the Uromi-Uzea Federal Court (suit No. 337/58 delivered on 12th August, 1958) (exhibit G) in which judgment was given in respect of the same land in dispute for the defendants’ people by that court in an action brought by them against the plaintiff’s people. This same court, it will be recalled, had previously given judgment for the plaintiff’s family (the Ualor Okpere people) in respect of another piece of land situated between Idigie and Efandion in suit 618/57 (exhibit B). The defendants also called the present Onoje of Uromi, Chief Okoje II (3rd D.W.) who after testifying as to the traditional history of the land stated further as follows:-

“I was told by my father that the plaintiff had a land case before with the first defendant and that he supported the defendant in the case which the defendant won.”

In the majority judgment (which was the judgment of the court) delivered by two of the three-member court (Chief R. O. Etiobio and Mr. E. Eriakha) on 10th May, 1968, the plaintiff’s claim was dismissed. In dismissing the plaintiff’s claim, the court observed as follows:-

“The plaintiff tendered exhibits A and B and he failed to show the court members on inspection that the land over which the plaintiff now seeks declaration of title, injunction and claim for damages is part of land claimed in case No. 337/58 by Uromi/Uzea Federal Civil Court.

2. In this case No. 337/58 the now defendant was plaintiff. There appears to be no record of appeal to this case No. 337/58. When the decision was given by the Uromi-Uzea Federal Civil Court on 12th August, 1958 that this present customary court cannot be used as appellate court to the dissolved old courts (sic).
3. From the evidence before the court particularly that of an independent witness, the Onoje of Uromi, court finds as a fact that the land in dispute was owned by Ualor Noke people who had lived and farmed on this very land.
4. (a) The necessary conclusion from this is that Okpere’s family did not virgin the same land.

(b) That Okpere’s family were merely strangers on the said land.

(c) That the defendant Ebuade had lived on the land in dispute over 23 years.

(d) That Okpere’s family had no title to the land in dispute.

5. Therefore since there had been no appeal to case No. 337/58, i.e. exhibit G in this case, (from) Uromi-Uzea Federal Civil Court within the stipulated time, it appears this court has no jurisdiction to try this case even if this court has jurisdiction, from the evidence before this court, the claim as to declaration of title is dismissed”.

In his own separate judgment, the third member of the court who incidentally was the President, found for the plaintiff after finding as follows:-

“According to the native law and custom of Uromi, any parcel of land large or small virgined by an individual or members of a family becomes the personal property of such a person or persons. It is entirely unfair to disturb any person or persons who had lived in a particular place for upwards of 800 years.”

The plaintiff being dissatisfied with the judgment of the court (i.e. the majority judgment) appealed to the Ubiaja Magistrate’s Court. After considering the submissions made to him at the hearing ofthe appeal, the learned magistrate found as follows:-

“In my view exhibit G is not a valid judgment. As it attempted to set aside the judgment in exhibits A and B. This it had no power to do. It found among other things that the land is communal and set aside exhibits A and B. In my view the proceedings are again unsatisfactory in another aspect. It was conducted in a manner contrary to principles of natural justice. No one was allowed to cross-examine either parties. In my view this judgment is not valid and I agree with the submission of the learned counsel for the appellant that it is not binding on the appellant. Ground 7 raises a point of considerable importance. Chief Etiobio sat as a member of the lower court which dismissed the action. It is submitted and with some force that he is biased and an interested party. Learned counsel for the appellant has drawn my attention to exhibit G and exhibit F and the evidence that he has a house on the disputed land. Evidence of Chief Etiobio in exhibit G is against the appellant … in my view Chief Etiobio’s presence in the panel occasioned a miscarriage of justice.”

The learned magistrate then considered the traditional evidence as well as the evidence of possession given before the customary court in support of plaintiff’s claim and finally found as follows:-

“For the foregoing reasons, I allow the appeal (from the judgment) of the Uromi Customary Court dated 10th May, 1968. I set aside the majority judgment. After a careful consideration it will not be in the interest of justice to send this case back to be heard de novo. I order that the minority judgment delivered by Chief A. O. Ayewoh shall be the judgment of the Uromi Customary Court in this matter.”

Being dissatisfied with the judgment of the learned magistrate, the defendants appealed to the Ubiaja High Court. The learned judge who heard the second appeal and whose attention had been drawn to the judgments in the 1955 case (exhibit A), in the 1957 case (exhibit B) and in the 1958 case (exhibit G) made the following observations with respect to these judgments:-

“In the 1958 suit the plaintiff in the 1955 and 1957 suits was joined with his brothers as defendants. It is worthy of note that the judgment (exhibit G) was delivered at least one whole calendar month before the meeting of the Uromi-Uzea District Council; exhibit F refers. Another point worth noting is that the Onogie of Uromi at the material time, Chief Uagale or Uwagale, gave evidence in favour of the plaintiff in the 1955 and 1957 suits but gave evidence against him and his brother in the 1958 suit. Besides giving evidence personally as a witness he was also the Court President at the hearing of both the 1957 and the 1958 suits. This was a very unsatisfactory state of things … As exhibit A was part of the records before the learned magistrate he had every right to comment on it. I would even say at this stage that the Uromi-Uzea Federal Civil Court which sat in August 1958, being of the same jurisdiction as the Uromi-Uzea Federal Court of 1957, had no jurisdiction to set aside previous judgments by it as it did. The two judgments of 1957 and 1958, i.e. exhibits B and G, were also bad in that the Onogie of Uromi could not be a witness in any suit over which he was presiding as president. Any subsequent judgments, therefore, founded on exhibits B and/or G should fail.

Another aspect of the whole case is this. One of the Uromi Customary Court members, Chief A. O. Etiobio, was one of the councillors present at the Uromi-Uzea District Council meeting of the 18th September, 1958: exhibit F refers … Chief Uwagale, the Onogie was also present. Exhibit F showed that the 40 councillors present at that meeting resolved that the land belonged to the now plaintiffs/ appellants/respondents. In the 1958 suit, just one month before the resolution in exhibit F, the same Chiefs Etiobio and Uwagale gave evidence against the present plaintiffs/appellants/respondents even though they called Chief Etiobio as their witness. After the active part played by the said Chief Etiobio in 1958 could he be said to have heard the 1968 case with a blank mind”

Chief Etiobio, we must recall, was one of the three members of the Uromi Customary Court which heard the case now on appeal before us. The learned judge, after referring to the provisions of section 55(1)(a) of the Customary Courts Edict of the Mid- Western State (No. 38 of 1966),finally found as follows:-

“Having regard to the foregoing it is my view that the learned magistrate having allowed the appeal should have ordered a fresh trial before an entirely independent judge or panel of judges with a blank mind about the subject matter. I support the judgment of the learned magistrate in so far as it set aside the majority judgment of the Uromi Customary Court, but reject it in so far as it upheld the minority judgment. In the circumstances I hold that the justice of this case requires a proper hearing in the High Court and it is, therefore, so ordered.”

In the appeal now before us against the above finding, a number of points were urged upon us by learned counsel for the appellant. One of these is that the learned judge had no power to order that the case be reheard in the High Court. In view of the order which we propose to make, however, we will deal only with the complaint made about this order for retrial.

It cannot be disputed, and indeed, it was conceded by both parties, that there are glaring irregularities which offend against the principles of natural justice during the proceedings in exhibits A, B and G. Some of these irregularities had been spotlighted by both the learned magistrate and the learned judge at the hearing of the appeals before them. With the presence of Chief A. O. Etiobio (who had earlier given evidence in the 1958 case-exhibit G) as a member of the Uromi Customary Court which originally heard the case on 12th March, 1968, and which dismissed the plaintiff’s claim on 10th May, 1968, the instant case is also not free from irregularity.

Because of all these irregularities, we agree with the trial judge that there ought to be a retrial of the case. There is merit, however, in the submission of learned counsel for the appellant that the learned judge was in error when he ordered that the appeal before him be heard de novo in the High Court. Before expatiating further upon this, we would like to point out that while the order of the magistrate allowing the appeal and setting aside the judgment of the Uromi Customary Court was within his competence and therefore in order, his further order that the minority judgment delivered by Chief A. O. Ayewoh (the president of the court) should be the judgment of the Uromi Customary Court in the matter was clearly made without jurisdiction. In this respect, we refer to the provisions of section 9(2) of the Customary Courts Edict which read:-

“In all causes before a customary court the opinion of the majority of the members hearing the cause shall, in the event of the members disagreeing, be deemed and taken to be the decision of the court.”

Therefore, having heard the appeal and set aside the decision of the Uromi Customary Court, he should have exercised the powers conferred upon him by section 55(1)(b) of the said Edict which reads:-

“55(1) Any court (other than the Supreme Court) exercising appellate jurisdiction in civil matters under the provisions of this Edict may in the exercise of that jurisdiction:-

(a) …

(b) quash any proceedings and thereupon, where it is considered desirable, order any such cause or matter to be reheard de novo before the court of first instance or before any other customary court or before any magistrate’s court.”

In other words, he should have ordered the case to be reheard de novo before the Uromi Customary Court or before any other customary court or any magistrate’s court. In this connection we refer to the decision of the Federal Supreme Court in Lateju v. Iyanda and another (1959) 4 F.S.C. 257 where similar provisions in section 40 of the old Native Courts Ordinance (Cap. 142 in the Laws of Nigeria, 1948) were considered. In his judgment at page 261, Brett F.J. observed as follows:-

“In my view, a distinction has to be drawn between a rehearing under section 40(1)(a) of the Native Courts Ordinance, and an order for rehearing under section 40(1)(b). Under paragraph (a) the appellate court rehears the case itself; under paragraph (b) it orders the case to be reheard by some other court, and the order made by the magistrate in Apena v. Shonusi 9 W.A.C.A. 95 must be regarded as exceptional in this respect. Where there is to be a rehearing under paragraph (a) I do not consider that the judgment of the court of first instance is set aside until the rehearing is complete and some other order is made. The power of the appellate court under paragraph (a) is entirely an appellate power, that is to say, the court’s power is to make any such order or pass any such sentence as the court of first instance could have made or passed.”

It only remains for us to point out that once the decision of the Uromi Customary Court has been set aside, the magistrate’s court was functus officio and could not, therefore, give judgment for the plaintiffs as it had sought to do by substituting the minority judgment of that court. (See Amoku v. Duro 14 W.A.C.A. 257).

In the same manner, the learned judge, having confirmed the order of the learned magistrate setting aside the judgment of the Uromi Customary Court, could only exercise the powers conferred upon him under section 55(1)(b). He, therefore, had no power to order that the case be heard in the High Court. This is understandable. To hold otherwise would be tantamount to saying that one judge of the High Court could order another judge of the High Court to rehear a case de novo by virtue of his powers under section 55(1)(b). This is clearly unsatisfactory and the statute does not say that. In any case, the provisions of the section are clear and unambiguous-the judge can only order a rehearing de novo “before the court of first instance or before any other customary court or before any magistrate’s court.”

Having so found, this appeal must be allowed. The judgment of the learned judge in suit No. U/5A/69 delivered in the Ubiaja High Court on 2nd December, 1969, only in so far as it ordered that the case be reheard de novo in the High Court, is set aside. In view of the irregularities which had been spotlighted during the hearing of the appeal, we share the views of the learned judge that it would be in the interest of justice that the case be reheard de novo in the High Court. Unfortunately he had no power, having confirmed the order of the magistrate setting aside the judgment of the Uromi Customary Court to so order. For one thing, the probative value or effect of the proceedings and judgments of the Okhiode Group Court in exhibit A and those of the Uromi-Uzea Federal Court in exhibits B and G, about which we express no opinion, will need to be considered thoroughly.

According to section 22 of the Supreme Court Act (No. 12 of 1960) the Supreme Court at the hearing of an appeal:-

” … may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or in the case of an appeal from the High Court in its appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”

In the exercise of this power, we accordingly order that the case be reheard de novo by another judge in the Ubiaja High Court. At the rehearing the parties, if they so desire, shall be at liberty to deliver fresh or amended pleadings and file a survey plan of the disputed land.

costs of this appeal in favour of the plaintiff/appellant are assessed at 105 guineas and costs in the courts below shall abide the event.

SC.102/1970