Alhaji Mustafa Ali Vs Mrs. A. A Allen (1966)

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BRETT J.S.C.

The respondent to this appeal, Mrs A. A. Allen, obtained judgement in the Magistrates Court, Ibadan, against one Kasumu Alao, and as he could not satisfy the judgement in full she was granted leave by the High Court to attach his immovable property. A piece of land with a house on it at Ori Eru, Idikan, Ibadan, was attached by the Deputy Sheriff, and the appellant laid claim to it, whereupon the Deputy Sheriff took out an interpleader summons.

In his statement of interest dated the 26th January, 1962, the appellant alleged that he was a registered moneylender, and that the property had been conveyed to him by two mortgages dated the 21st February, 1956, and the 20th July, 1957, to secure loans of £300 and £200. He concluded by saying that the judgement debtor had paid neither the loans nor the sum of £306.5s. interest accrued up to the 31st December, 1961. There is no provision in the rules of court made under the Sherrifs and Civil Process Law for any further pleading by the judgement creditor, or the judgement debtor, and the matter went to trial on the statement of interest lodged by the appellant. The only person to give evidence was the appellant himself, and he produced a number of documents including the mortgages. In the High Court the appellant asked that the property should be released from attachment. In this Court we were invited to give a direction under Order 5 rule 14 of the Judgements (Enforcement) Rules, that the property should be sold and that the claims of the appellant should be paid in priority to those of the judgement creditor.

The judge held that the appellant had failed to prove compliance with sections 12 and 19 of the Moneylenders Law, and dismissed the claim on this ground. Mr. A. G.O. Agbaje on behalf of the appellant has pointed out that the attention of the appellant was never drawn to any dispute as to whether these sections had been complied with, and has submitted that the claimant was entitled to rely on the rights conferred by the mortgage and that the claim ought not to have been dismissed on a ground which had never been put dearly in issue. We need not enter into a consideration of where the burden of proof as to compliance with these sections of the Moneylenders Law lies on a claim by a mortgagee in interpleader proceedings, since it was put to the appellant in cross-examination that the loan of £300 had been repayable on the 21st February, 1959, and the loan of £200 on the 20th July, 1960, and he agreed. This being so, no proceedings would have lain at his instance in January, 1962, for the recovery of the loan or for the enforcement of the security, as the time prescribed by section 30 of the Law for bringing such proceedings is one year from the date on which the cause of action accrued, and that time had expired..

Mr Agbaje submitted that the appellant might have been able to show that the claim was taken out of the provisions of section 30 under one of the provisos to the section, but he had the opportunity of doing so at the trial, where he was represented by counsel, and it is now too late to try to do so for the purpose of these proceedings. The appellant cannot be allowed to enforce indirectly a security which he could not enforce directly. The legal title to the property is still vested in the appellant, but what will be sold is the judgement debtors right title and interest in the property, consisting of the equity of redemption, and the purchaser will no doubt take advice on whether it is open to him to claim such relief as was granted in Baba-Egbe v. Kasumu (1954) 14 W.A.C.A. 444. That question does not arise in the present proceedings and we express no opinion about it.

The appeal is dismissed with costs assessed at 27 guineas.

Other Citation: (1966) LCN/1332(SC)

Nuru Williams and Ors V Adamo Akinwunmi and Ors (1966)

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BAIRAMIAN, J.S.C.

The plaintiffs claim for the delivery of possession of an area of land and mesne profits was dismissed by Ekeruche J., sitting at lkeja on II April, 1962, and they have appealed: (High Court Ikeja Suit No. HK/84/59).

The trial judge accepted their case, that in 1927 their late father Abudu Ramonu Williams bought an area of land known as Eguru or lguru in lganmu and had a conveyance; that some of it was sold by order of court and the remainder divided among his children; and that the area now in dispute was allotted to the plaintiffs. He also accepted that between 1927 and 1953 the land was in the possession of their late father, and after his death of his children, and finally of the plaintiffs under the family division. He found that the Onitire family, to which the defendants belong, ceased to be in possession in 1927 but entered the land in 1953. He did not, however, give judgement for the plaintiffs because they had admitted that the land originally belonged to the Onitire family, which in his view raised a strong presumption that the title was in that family.

The conveyance recites that-

‘Whereas one Gboyin the eldest son of the late Onitire of Itire was during his lifetime seised in fee simple and in possession of the whole the freehold hereditaments commonly known as Iguru lands …. ‘

and the vendors convey ‘as heads and representatives for and on account of the whole members of the family of the said Gboyin deceased and as beneficial owners’. In the learned judges view there was nothing outside the conveyance which showed that Gboyin was seised of Eguru land in fee simple and the conveyance passed no title to the plaintiffs father.

The lst defendant admitted that in 1957, in a case with the estate of one Brown, he testified that the whole of Eguru land was owned by the Gboyin family, but in the judges view that earlier evidence of his did not preclude him from asserting that the land belonged to the Onitire family, nor show when the ownership passed from the Onitire family to Gboyin; and although the judge thought that the 1st defendant lied when he denied having sworn that he was the head of the Gboyin family, he nevertheless believed his evidence that the Onitire family had never sold or partitioned the land; which strikes us as an odd assessment of his evidence. The learned judge thought that the presumption that the land was still the property of the Onitire family had not been rebutted, and coupling that with the 1st defendants evidence that the family had never sold or partitioned the land, he held that the title was still in that family and they had a better title to possession.

He was sorry for the plaintiffs and, had they delivered a reply, would have given them judgement following Saidi v. Akinuwunmi (1956) I F.S.C. 107, on the ground of long possession in spite of the title being in the Onitire family; he observed as follows:

‘Although the plaintiffs rely on their long occupation of the land, the long occupation is one that ought to have been raised in a reply to the defendants statement of defence and not one that can as pleaded he relied on as a foundation for their claim.’

An order was made on 18 January, 1960 for delivery of a Statement of Claim and of a Defence, and more time was given to the parties on 9 May, 1960. Rule 16 in Order 13 of the High Court Rules (W.R.) provides that-

‘The court if it considers that the statements of claim and defence filed in any suit insufficiently disclose and fix the real issues between the parties may order such further pleadings to be filed as it may deem necessary for the purpose of bringing the parties to an issue.’

No order was made for further pleadings, and the reason for refusing judgement was due to a mistake.

The plaintiffs have two legs to their c1aim-

(1) the recital in the conveyance of 1927 that Gboyin was the owner-which brings in section 129 of the Evidence Act: and

(2) long possession, which brings in section 145.

Those sections provide as follows-

‘129. Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of Parliament, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions.’

‘145. When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.’ The effect of section 129 is explained in Privy Council Appeal No. 17 of 1957-Maurice Goualin Limited and another v. Wahahi Atanda Aminu, decided on 24th July, 1958. The facts in that case were as follows:

In 1923 one Desalu conveyed a tract of land to a company by deed of mortgage, which had this recital:

‘Whereas the borrower is seised in fee simple in possession free from incumbrances of the several freehold hereditaments hereinafter described and expressed to be hereby conveyed.’

In 1931 the mortgage company under its power of sale had the land sold at public auction to recover the debt; it was; bought by one Adewunmi, but no conveyance was executed. Later Adewunmi sold the land to one Oshire, who also did not obtain a conveyance; and after Oshires death his ‘children and heirs-at-law’ sold the land to the respondent Arninu, who obtained a deed in which the company, Adewunmi, and persons who purported to be the heirs and successors in title of Oshire joined in conveying the land to Aminu.

The earliest document on which the appellants relied was a conveyance of 1952; the recital in it had no probative value, and otherwise too they had no case.

The Privy Council quotes the recital in the mortgage deed of J 923 and the text of section 129, and says that-

‘the recital is evidence that Desalu was the true owner in 1923 and there is no evidence which contradicts it. This evidence must prevail and Desalu must, as between the parties to this case, be considered to have been the true owner in 1923.’

Lower down the Privy Council refers to the deed of 1953 in favour of the respondent Arninu, and says that-

‘As Desalu has been held to have been the true owner this deed undoubtedly conveys the legal title to the respondent.’

The probative value of the recital in the mortgage deed of 1923 is wholly independent of the conveyance to Aminu in 1953: it was the age of the mortgage deed which gave the recital its probative value as sufficient evidence unless proved to be inaccurate.

It is true, as Mr Lardner reminded us, that the provision in our section 129 comes from the Vendor and Purchaser Act, 1874, where it relates to a contract and investigation of title; but the dispute before us is not of that nature, and we refrain from discussing the provision in the context of that Act. We are concerned with the effect of the provision in the context of our Evidence Act, in which it occurs among a number of sections-e-Nos. 113 to130-under the heading of Presumptions as to Documents. They have a bearing on the burden of proof: see section 132. Some are obligatory, others discretionary. The presumption in section 129 is obligatory; it saves the party who can invoke it from proving certain facts in the first instance and puts the onus on the other side. A simple example-i-to be understood merely as an illustration-will make the point clearer. The conveyances spoken of in the example are by deed registered under the Land Registration Ordinance, as in the case in hand; the registration does not enhance the title conveyed: see s.25 of that Ordinance. Assume these events:

(a) In 1940 A conveyed certain land to X by deed reciting that A is the owner of the fee simple in possession;

(b) In 1961 X conveyed that land to Y;

(c) In 1962 Z claims the land against Y.

Y can invoke s.129 of the Evidence Act for the recital in deed (a). As the conveyance to Y does not enhance the title, it is on the title of X that Vs case must rest; and the title of X must be presumed to be good because its root is a deed twenty years old and the age of the deed creates a presumption. That being so, if X does not convey the land and Z claims it against him, X can equally invoke s.129 in vindication of his title. Otherwise we would have this unhappy result: that when Z claims against X, X must sell to V-and he will not get the proper price-to supply Y with a weapon which he himself cannot use. We do not think that by enabling Y to invoke the recital s. 129 intended to disqualify X from invoking it, and subscribe to the view of the Privy Council with due respect, that the probative value of the old deed is wholly independent of any subsequent contract or conveyance.

Having regard to that view, Mr Lardner (for the defendants) has conceded that the plaintiffs can rely on section 129 in regard to the recital in the conveyance of 1927 to the plaintiffs father, that Gboyin was the owner of the land conveyed. The learned counsel has not argued that there was evidence to contradict the truth of that recital. The plaintiffs can rely on it as making that conveyance a good and sound root of title to the land in their late father. There is also the finding that he and his children and finally the plaintiffs under the distribution of their late fathers property were in possession of the land in dispute from 1927 until the defendants in 1953 entered the land. Thus the plaintiffs had a perfect case for Judgement.

It has been argued for the defendants that the evidence of distribution among the [ate Williams children was confused, and that the plaintiffs did not prove adequately that t

Other Citation: (1966) LCN/1331(SC)

Jane Alatede V Joseph Jeje Falode And Anor (1966)

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BRETT, J.S.C. 

This is an appeal against the order of Ogunkeye J., in the High Court of Western Nigeria, “striking out” a writ of summons. It is more usual to talk of setting aside a writ of summons, which is the court’s own order, than of striking it out, but the intention seems to have been to quash the writ altogether, and we attach no special significance to the expression used. Since the proper construction of the relevant provisions of the High Court (Civil Procedure) Rules is said to be of importance in a number of actions now pending, the hearing of the ap-peal was expedited and by consent compliance with certain of the provisions of Order 7 of the Supreme Court Rules was dispensed with.

Order 2, rule 1, of the High Court (Civil Procedure) Rules provides that-

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

Rules 2-7 provide for other indorsements and rule 8 reads –

“(1) A writ of summons shall be in the form provided in the First Schedule to these Rules.

(2) Blank forms shall be obtainable at every Registry and no other form may be used.”

Rule 9 provides for the preparation of the writ by the plaintiff or his solicitor or by the Registrar from the dictation of an illiterate plaintiff who is suing in person, and rule 10 reads –

“Every writ of summons issued out of the Registry shall be signed and sealed by the Registrar of the court issuing the writ and shall thereupon be deemed to be issued.”

The remaining rules in Order 2 are immaterial.

The form of writ of summons obtainable at a Registry measures 7 inches by 10 inches. On the obverse, below the heading and the name of the judicial division and the number of the suit, there is space for the name of a single plaintiff and a single defendant and then a printed formula commanding the persons to whom the writ is addressed to attend the court at a stated time and place. Then follow a space for the Registrar’s  signature and seal and for a re-cord of fees and at the foot there appear the words “The plaintiffs claim is indorsed on the reverse side hereof.

The reverse reads–

”Writ of Summons

Indorsements

1. The plaintiffs claim is . . .

2. The plaintiff’s address for service is . . .

3. The address of the plaintiffs solicitor is . . .

4. Other Indorsements (when required by law) . . .

Signature of (Solicitor for) Plaintiff

Name in full (in block letters)

The space available for the plaintiffs claim measures 6 inches by 7 inches, and that for other indorsements 7 inches by 7 inches.

In the present case the plaintiff’s solicitor prepared the writ in accor-dance with Order 2 rule 9, and instead of writing or typing the indorsements on the reverse of the form obtained from the Registry he had them typed on a separate sheet of paper and pasted that sheet of paper on the reverse of the form. The size of the form and the way in which it is laid out might sometimes he insufficient for all the indorsements required, and where this happens presumably something like what section 32(a) of the Bills of Exchange Act calls an “allonge” must be used, but there is no suggestion in this case that the indorsements could not conveniently have been written or typed on the reverse of the form.

On the return date shown in the writ of summons Counsel appeared for the defendant and objected that pasting a piece of paper on the reverse of the writ was not a compliance with Order 2, rule S, and that the writ was not properly before the court. The Judge held that some of the indorsements re-quired had been omitted, and went on to say –

“Again it is not in the contemplation of the law that a piece of paper can be pasted on the reverse side for the indorsement. Where any paper other than the form is used, it is my view that the writ is not proper, nor is any indorsement thereon proper.

The objection is well taken. 1 cannot now consider an appli-cation for an adjournment because in my view the defect cannot be cured by an amendment. the writ is therefore struck out.

The appeal was argued on the assumption that what the Judge regarded as incapable of being cured by an amendment was not the omission of some of the indorsements required but the appearance of the indorsements on a separate piece of paper pasted to the reverse of the form instead of on the record of the form

The defendant does not allege that he has suffered, or that he fears that he might suffer, am prejudice. The question is a purely domestic one, touching the practice of the High Court, and involving no judicial decision on the merit of the case. In our vice it is peculiarly the province of the Judges of the High Court to settle such a question, and this Court ought not to reverse the decision of the court below unless it is clearly shown, to be based on a misunderstanding of what the Rules of Court require. It may well be that in commercial usage the word “indorse” is no longer restricted to its primary meaning of writing on the back of a document, and it is common knowledge that an endorsement on a licence to drive a motor vehicle takes the form of an entry on an inner page of a small book. However, commercial usage is not an infallible guide to the meaning of the High Court (Civil Pro-cedure) Rules, and the licence affords no analogy, since the form of the writ enables the required particulars, or as much of them as there is room for, to be endorsed on it in the primary sense of the word. The appellant has not satisfied us that the Judge was wrong in the view he took, and the appeal is dismissed with costs assessed at 25 guineas.

Other Citation: (1966) LCN/1329(SC)

Kalu Obasi and Ors V Chief Okereke Oti and Ors (1966)

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ONYEAMA, J .S.C. 

The plaintiffs claimed against the defendants declaration of title to an area of land drawn on a plan No.ESP/2136(LD) which was in evidence as Exhibit A, £100 damages for trespass on the land, possession of the land, and an injunction to restrain further trespass.

Their case was that the land in question which they call ‘NDURU’ had always belonged to their people of AmaekeUtutu village; they farm it; live on it, have their village juju on it and have a market on it. They claimed that they granted a portion of the land to members of a religious sect, ‘Jehovah’s Witnesses’, and that these members built a Hall on the land.

It was also their case that they had made a grant of a portion of the land in question to the defendants’ ancestors who had found their ancestral land “Ebom Ogo” too small for their increasing numbers; they alleged that the defendants are now settled on this portion which was clearly defined by boundary trees.

The plaintiffs pleaded a number of native court suits between them and the defendants’ people which they suggest establish their title to the land. The defendants for their part claimed that the land which they call ‘AZU OWUO’ belongs to them, and they showed this land on a plan No.JJ.4/64. They alleged that they farm the land, have their jujus on it, and have a water tank on it. They rely on the judgment of the Senior Resident of Calabar in a Suit No.452/28 which originated in the Ihe-Ututu Native Court which, according to them, “reversed and set aside the judgment of the Native Court and the District Officer and awarded title to the present defendants (the plaintiffs in the said Suit No. 452/28).”

Both parties are agreed that this Suit 452/28 related to the land in dispute and it will be appropriate at this point to deal with it. In that suit Nlenaya Kalu of Amanku sued Chief Elem Nchege of Ameke claiming a declaration of title to land called ‘AZI OWUORWUOR.’ It is admitted by both parties, although it was not so expressed, that the suit was between their respective communities.

The Native Court, by a majority, gave judgment on the 6th of August, 1928, as follows: “The land Ndoro or AZI OWUORWUOR for the Deft. Case dismissed.” This was confirmed on the 28th of September, 1928 by the Acting District Officer. On the 11th April, 1933, the Senior Resident of Calabar Province made the following order:

“By virtue of the powers conferred on me under Native Court Ordinance I hereby annul the judgment of the Ututu Native Court in Civil Case 452/1928:-

Nlenaya Kanu of Amanku

versus

Chief Elem Nchege of Ameke

as confirmed by Mr D. A. F. Shute, Acting District Officer, Aro, on 20th September, 1928.”

Regarding this order, counsel for the plaintiff submitted that the Resident acted without jurisdiction since, if he was exercising review powers under s.25 of the Native Courts Ordinance No. 44 of 1933 he had only six months within which to exercise them, but if he was exercising powers on appeal, then an appeal had to be brought within thirty days, and there was evidence that no appeal was lodged.

The learned trial judge accepted this submission and added that assuming there was no want of jurisdiction the failure of the Senior Resident to substitute his own decision or order for that which he was annulling left that order in full force so that the defendants could be met with a plea of estoppel. Relying on this view of the effect of Suit 452/28 and on his findings of fact he gave judgment for the plaintiffs.

It escaped the notice of counsel for the plaintiffs and the learned trial judge that the Native Courts Ordinance (Ordinance No. 44 of 1933), although enacted in 1933 and assented to on the 23rd November, 1933, was brought into force on the 1st of April, 1934. (See Gazette Notice No. 227 of the 22nd of March, 1934). It follows that the Senior Resident could not have exercised any powers under it on the 11th of April, 1933, and such powers as he could then exercise had to be derived from the Native Courts Ordinance (Cap. 5 in Volume I of the 1923 Laws of Nigeria) and the Native Courts (Amendment) Ordinance, 19241930. These enactments enabled the Senior Resident to make the order he made.

Mr Ayoola, for the respondents, submitted that the Senior Resident was obliged to make an order in substitution for the order annulled. This, he said, was the result of the wording of section 8(1)(a) and (2) of the Native Courts (Amendment) Ordinance which is:

“(a) Suspend, reduce, annul or otherwise modify any sentence (save and except a sentence of death) or decision of a native tribunal provided-.

(2) That a Resident in charge of a Province may on the application of any person concerned or of his own motion annul any order made by a member of Provincial Court, other than a Resident in charge of a Province, under this section as aforesaid and may substitute therefore an order made under his own hand.”

Mr Ayoola invited this Court to hold that the words “may substitute therefore an order made under his own hand” were mandatory. What the Resident did was to annul the order made by the acting District Officer and to substitute therefore an order made under his own hand annulling the judgment of the Ututu Native Court. Mr Ayoola’s submission is misconceived.

In our view the order made by the Resident was not outside his jurisdiction and it effectively wiped out the judgment of the Native Court and the Acting District Officer, but it did not award title to the then plaintiffs as the defendants pleaded.

The rest of the appeal was concerned with the learned trial judge’s findings of fact: in particular, it was submitted on behalf of the appellants that since they joined issue with the respondents in respect of part only of the area claimed, and themselves claimed no interest in the rest of the land the evidence and the judgment ought to have been confined to so much of the land as was disputed. It was submitted that the evidence about the occupation and use of the area of the Jehovah Witness Hall, the market, the main Aro road, and Ali Okpo land related to an area to which the dispute did not extend and was irrelevant.

We agree that a comparison of the plans put in evidence by both parties makes it clear that the defendants did not assert any interest on land west of the IYI NNE and ERURU streams and west of the junction of the farm path with the IYI NNE stream along the path to the main road from Umuahia to Arochuku,and that they conceded this western area to the plaintiffs; but having regard to the proximity of the area to the disputed land, evidence about its ownership and use was both relevant and valuable in determining title to the adjoining land.

There was abundant evidence to justify the judge’s decision that the area claimed by the plaintiffs belongs to them. It is unnecessary to review the evidence in detail, but there are certain points which are of special significance. (1) The defendants agree that the small piece of land on which their village is built-verged brown in the plan No.ESP/2136(LD), Exhibit A-is divided from the rest of the land now in issue by a line of boundary trees. No reason has been suggested why such a boundary should have been demarcated if the land on both sides of it had been the subject of the same grant. (2) According to the plans hardly any of the land in dispute is being actively cultivated. In his closing address for the appellants Chief Williams conceded that they had not established title as original owners of the land and submitted that a grant should be presumed. In our experience an outright grant of land to live on is not uncommon; an outright grant of land for cultivation is unusual but not unheard of, but an outright grant of land which is not required either for living on or for cultivation is so exceptional that it could only be proved by the clearest possible evidence and should never be presumed.

There was evidence, however, that the area verged brown in the plan No. ESP/2136(LD)-Exhibit A-was granted to the defendants absolutely by the plaintiffs’ ancestors. This evidence was given by the plaintiffs themselves; and we are of the opinion that the declaration of title made ought to have excluded this area.

Regarding damages for trespass it was submitted that since the case of the plaintiffs was that two members of the defendants’ community, namely, OKORIE OCHO and EKE OKEREKE, built houses outside the settlement granted to the defendants’ people, these two men only, and not the community, should be liable to trespass.

The answer to this is that these two men were by their acts asserting the title of the community and the community fully supported them, and, in effect, adopted their acts. It seems to us that this is a case in which the trespass can be said to be the trespass of the community.

This appeal fails, and subject to the declaration of title granted and the injunction ordered not extending to the area verged brown on the plan No. ESP/2136(LD) which was in evidence as Exhibit A, it is dismissed with costs assessed at 50 guineas to be paid by the appellants to the respondents.

Other Citation: (1966) LCN/1296(SC)

Godwin. Nwankwere V Joseph Adewunmi (1966)

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BRETT, J.S.C.

The respondent sued the appellant in the Magistrate’s Court, Ife, claiming

“the sum of £410 as damages being loss of earnings suffered by the plaintiff on account of the wilful refusal by the defendant to issue a certificate of roadworthiness in respect of plaintiffs motor vehicle No. LA 8484 after having duly tested and passed it as being roadworthy at Ife on the 8th of February, 1961, thereby preventing the said vehicle from operating on the road from the 8th of February to the 2nd May, 1961.”

He was awarded £300 damages in the magistrate’s court, and the defendant’s appeal to the High Court was dismissed. The defendant has now appealed to this Court.

At the material time the defendant was a Vehicle Inspection Officer in the Nigeria Police stationed at Ife, and it is common ground that on the 28th January, 1961, he directed the driver of the plaintiffs lorry No. LA 8484 that the lorry was to be taken off the road until it had been inspected and passed as roadworthy, and impounded the certificate of roadworthiness.

He was authorised to give the direction under regulation 70 of the Road Traffic Regulations of Western Nigeria, but our attention has not been drawn to any regulation authorising him to impound the certificate or stating in what circumstances he was entitled or required to return it, once impounded. At all events it is also common ground that he inspected the vehicle and that after certain repairs required by him had been carried out he declared it once again roadworthy.

As to what took place after that there was a conflict of evidence. The plaintiff said that he had already paid a bribe of £10 to avoid being prosecuted for putting the vehicle on the road in an unfit condition and that after the defendant had demanded a further £25 before he would inspect it they agreed on a payment of £15 and he paid £10 towards this. When he asked to be allowed to defer paying the final £5 until the vehicle was back on the road and earning him a profit the defendant refused either to return the certificate of roadworthiness or to issue a fresh one.

After some time he complained to the defendant’s superiors and his vehicle was finally inspected and passed as roadworthy at Ibadan on the 2nd May. The plaintiff s driver confirmed his story as regards the first payment of £ 10 and as regards the fact that the vehicle was off the road until the 2nd May. The defendant denied this story altogether and said that he had returned the impounded certificate after inspecting the vehicle. The only difference of opinion he mentioned was that the plaintiff asked for a fresh certificate of roadworthiness, which would be valid for six months from the 8th February, and that he refused to give him one; this part of his story was expressly rejected by the magistrate.

In arguing the appeal Mr O. Ayoola submitted (1) that the magistrate failed to direct himself properly about the standard of proof required; (2) that the special damages were not proved; and (3) that the Public Officers Protection Law applies, since the proceedings were not instituted within three months after the cause of action arose. We shall consider these submissions in that order.

As regards the standard of proof, Mr Ayoola submitted that it is governed by section 137 (1) of the Evidence Act, which reads-

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt”,

and pointed out that the magistrate does not specifically refer to this requirement in his judgment. In the High Court, Duffus, J., held that since “the plaintiffs case depends on the fact that the defendant made this illegal demand which would amount to a crime” the subsection applied, but after referring to Bello v. Police (1956) 1 F.S.C. 48 he held further (that] if there was no substantive misdirection it could be assumed that a professionally qualified magistrate knew the law applicable to the case and directed himself correctly. In Bello’s case the court was concerned with what it called the “elementary principle” of the burden of proof in a criminal case.

The standard of proof required by section 137 (1) of the Evidence Act in cases to which it applies is not equally elementary and we do not think that it can safely be assumed that the magistrate regarded it as having been satisfied unless this appears from the actual words of his judgment. In the present case this does so appear. In one passage of his judgment the magistrate said “I do not entertain any doubt as to the truth of the plaintiffs story,” and later “I am perfectly satisfied” that the plaintiffs story is true. He described the defendant’s story as “absolutely incredible” in one respect, and said that he rejected it in others. Thus even if section 137 (1) of the Evidence Act applies it was complied with.

The question whether the subsection does apply was fully argued before us and since Duffus, J., held that it did we think it desirable that we should give a ruling. In the one reported case in which the applicability of the subsection has been considered by this Court, Ikoku v. Oli [1962] l All N.L.R. 196, the members of the Court were divided in their opinions, but the nature of the present claim is quite different from that of the claim in Ikoku v. Oli and the judgments in that case were concerned with a question which does not arise here. The subsection applies where “the commission of a crime by a party to any proceedings is directly in issue.”

The Act gives a number of words and phrases a special and precise meaning and in construing any particular provision of the Act it is essential to give effect to that meaning. Section 2 contains a definition of “fact in issue” which is far from including every allegation which might properly be made or denied in a pleading. The definition reads-

“fact in issue” includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows.

Fact “directly in issue” is not defined. Section 6 declares that evidence may be given of facts in issue and of “such other facts as are hereinafter declared to be relevant.” Section 9 (1) states that “any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact,” which indicates that facts showing motive are not in the ordinary case to be included among the facts in issue but among the other facts declared to be relevant. In our view that is the way to regard the evidence of bribery in this case. The evidence that the defendant refused to return the certificate in order to bring pressure on the plaintiff to pay him the final £5 showed a motive for his act, but as the plaintiff could have succeeded in his claim without proving any motive it cannot be said that the alleged motive was a fact in issue or directly in issue.

Mr Ayoola submitted that the defendant had a duty under regulation31 (2) of the Road Traffic Regulations to give a certificate, and that that fact brought the question whether he had committed an offence under section 136 of the Criminal Code of Western Nigeria directly in issue, but the regulation is not concerned with the return of an impounded certificate and section 136 of the Code applies only to a duty directly imposed by some piece of legislation

As regards the amount of damages awarded, the plaintiff claimed a loss of profit at £5 per day for 82 days, and his evidence was not challenged in cross-examination. The magistrate felt that there should be some deduction for Sundays and Public Holidays and decided to “exercise his discretion in reducing the damages to £300.” The cases which decide that special damages must be strictly proved do not appear to us to be in point at this stage. There was evidence to justify an award of not less than £300 and if the defendant wished to challenge it the time to do so was at the trial.

The Public Officers Protection Law was not mentioned before the magistrate, but was raised on the appeal to the High Court. Duffus, J., quoted from the judgment of Scrutton, L.J., in Scammell & Nephew Ltd. v. Hurley [1929] 1 K.B. 419, where he said [at p. 427] that

“To require the application of the Public Authorities Protection Act, the acts must be acts not authorised by any statute or legal justification, but acts intended to be done in pursuance or execution of some statute or legal power.”

We agree with Duffus, J., in regarding that passage as applying equally to the Public Officers Protection Law. The Law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification; if the plaintiffs story was true the defendant did not purport to be acting in the execution of any public duty. This ground of appeal also fails.

In addressing this Court for the respondent Mr Fatoki described the action as being brought in detinue for the detention of the impounded certificate. and in his reply Mr Ayoola submitted that the use of the word “issue” in the claim restricted its application to the refusal to grant a new certificate. There were no written pleadings, and the plaintiffs evidence showed that the substance of his complaint was that the vehicle was kept off the road for want of a certificate, old or new, and that he would have been content with either. At worst the claim was ambiguous, and it could have been amended without prejudice to the defendant if more precision was required. According to the notes of counsel’s argument for the appellant in the High Court he himself twice called the case an action in detinue and we regard it as clear that that is the basis on which it was contested throughout.

Even if the point were a good one it would merely be a ground for ordering a retrial, with leave to amend, and it is not the practice of this Court to order a retrial of a case originating in a magistrate’s court on technical points of this kind.

The appeal is dismissed with costs assessed at 30 guineas.

Other Citation: (1966) LCN/1328(SC)

Madam R. Onyechie V Mrs. R. Shadiya (1966)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C. 

This appeal is from the judgment of Sowemimo J., in the High Court of Lagos upholding the magistrate.

The dispute between Madam R. Onyechie and Mrs R. Shadiya (hereafter referred to as the tenant and the landlord respectively) is whether the landlord gave the tenant a rent-free tenancy for life of the premises occupied by the tenant at No. 133 Bamgbose Street, Lagos. Shortly put, the tenant’s case is that in consideration of her providing money to rebuild the premises the landlord agreed that she should live in them rent-free as long as she liked, which she submits is a tenancy for life: the landlord’s case was, in short as we understand it, that the money was a loan and the tenant was to live in 394 Supreme Court of Nigeria Law Reports 1966 the premises for two years, but has been living there since without paying rent, or to some similar effect.

The landlord sued for recovery of possession twice in the Magistrates’ Court but without success. She next applied to the Magistrate to fix the rent of the premises under s. 11 (1) of the Rent Restriction Act, which provides that-

“Any landlord or tenant or other person interested may apply to a court for an order fixing the rent of any premises.”

The tenant objected that as an issue of title was involved the Magistrate had no jurisdiction; the learned Magistrate held that there was no issue of title and went on to say–

“It is the general principle of law that the rent is attached to the property. Whether or not the respondent should pay such rent to be fixed by the court cannot be entertained in this application. I am of the view that by section 11(1) of the Rent Restriction Act, the court is empowered to fix the rent of any premises.”

And he proceeded to fix the rent.

The tenant repeated her point on jurisdiction on appeal to the High Court of Lagos. Sowemimo, J., writes in his judgment as follows:-

“I hold that on the facts as proved on the two previous judgments” [viz., of the magistrates who refused recovery of posses-sion] “title was never involved and the decision of the lower court on the application before it” (viz., to fix the rent] “did not decide on the question of title.”

Lower down the learned Judge writes as follows–

“It is contended that for those two Acts” [viz., the Rent Restriction Act and the Recovery of Premises Act] “to be called in aid of any claim there must be the relationship of landlord and tenant. The words tenant and landlord are well defined in section 2(1) of the Recovery of Premises Act Cap. 176 of Vol. V Laws of Nigeria and on the findings of the two former cases Exhibits A and C definitely decided the relationship of appellant and respondent.”

Therefore he held that it was competent to the magistrate to make the order fixing the rent of the premises.

There is a relationship of landlord and tenant, but the tenant’s point, that there is no competent decision on her case as to the precise terms of that relationship, does not seem to have been appreciated. The learned Judge’s note of the argument for the tenant reads as follows:

“On Ground 2” [viz., that the Magistrate had no jurisdiction] “refers to section 11 of Rent Restriction Act. Bannister v. Bannister [1948] 2 All E.R. 133. The appellant is a life tenant and therefore title is involved. In deciding the issue the learned Magistrate must decide the status of the parties.”

The last sentence is not quite clear, the last but one is: that “the appellant is a life tenant and therefore title is involved.” A life tenancy, though not an estate of inheritance, is a freehold estate, and the grant may be rent-free or subject to rent. That is English law; and it is not suggested that such an interest in land is unknown to native law and custom.

On the evidence in the case there is a bona fide issue of ‘title’ to or ‘interest’ in land within the meaning of section 14(2) of the Magistrates’ Court (Lagos) Act, which provides that–

“(2) Subject to the provisions of any other Ordinance, a chief magistrate shall not exercise original jurisdiction in any cause or matter which – (a) raises any issue as to the title to land, or to any interest in land;” (etc., irrelevant here).

We have not been referred to any overriding provision in any other Act, and are of opinion that the magistrates could not decide the issue raised by the tenant, which requires to be tried and decided in the High Court.

It is true that a landlord may apply under s. 11(1) of the Rent Restriction Act to a court for an order fixing the rent of any premises, but the court is not bound to make an order: subsection (2) provides that –

“Where an application is made to a court under this Ordinance the court may refuse to make an order or may make an order authorising the receipt or recovery of the whole or any part of any increased rent or an order fixing the amount by which the rent may be increased or may by order fix the rent.”

This case was one in which rent ought not to have been fixed, as it was brought to the magistrate’s notice that there was a bona fide dispute on the nature of the tenant’s title or interest and on her liability to pay rent which could not have been decided by the magistrate. There is a grave risk in this case, particularly in view of the High Court judgment, that the landlord will sue for rent and use that judgment and the magistrate’s order as props for her claim; and this in our opinion she is not entitled to do in the circumstances of this case.

In our view the issue raised by the tenant ought to be decided first.

The appeal is allowed with sixty-seven guineas costs in all the courts against Mrs. R. Shadiya in favour of Madam R. Onyechie, the Lagos High Court judgment of 15th March, 1965 in LD/83A/64 and the magistrate’s decision of 30 July, 1964, in MR.585/63 are hereby set aside; either party is at liberty to sue or counter-claim in the High Court for a declaration on the nature and terms of the tenancy of the premises at 133 Bamgbose Street, Lagos, occupied by Madam R. Onyechie and add any other claims or counter-claims that may properly be added.

Other Citation: (1966) LCN/1323(SC)

A.C.E. Jimona Ltd V Nigerian Electrical Contracting Co.ltd (1966)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C. 

This is an appeal by the defendants from a judgment of the High Court of Lagos (Caxton Martins Ag. J.) in which judgment was entered for the plaintiffs for £5,189-13s.-6d. with costs. The matter had begun as three separate suits in respect of three different contracts alleged to have been made between the parties and these three suits had been consolidated for hearing in the High Court. The first objection taken by the defendants/appellants on theappeal is that the learned trial judge was wrong to hold that the contention of the defendants that there was no binding contract was inconsistent with the defence as pleaded.

This necessitates an examination of the pleadings and it is to be observed that though very similar the Defence is not the same in each case. In suit LD 222/63 the plaintiff in paragraph 3 stated as follows:-

“By a letter dated the 17th day of January 1961, the defendants accepted the plaintiffs’ tender of £1,852 less 5% discount for electrical installations on 2 blocks of buildings at police barracks, Ije-Apapa, built by the defendants for the Federal Ministry of Works and Surveys under their contract No. 580-578.”

The Defence to this suit did not deny this paragraph though in paragraph I there was a general traverse. It did however in paragraph 5 of the Defence state as follows:-

“The defendants aver that the plaintiffs only did a small portion of the job agreed upon and in such an unsatisfactory manner that the defendants were compelled to enter into a fresh agreement with another firm of contractors who eventually did the job over again.”

In suits LD 223/63 and LD 224/63 there was in each case a similar paragraph 3 of the Statement of Claim to that in suit LD 222/63 but in these suits the Defence did in each case specifically deny paragraph 3 and “put the plaintiffs to strict proof thereof’, following this paragraph in each case with a further paragraph similar to paragraph 5 of the Defence as set out in suit LD 222/63. Now the main objects of pleadings are twofold namely to clarify what is the issue between the two parties and not to mislead the other side. It was contended by Chief F. R. A. Williams for the defendants that it was permissible to plead in the alternative and when so doing to put forward what would otherwise be inconsistent defences.

He relied on the cases Berdan v. Greenwood And Another (1878) 3 Ex. D. 251 and In re Morgan 35 Ch. D. 492. Whilst this is a valid point it presupposes that the defence was pleaded in the alternative and we do not find it was so done in these suits and we do not consider it proper to infer it. Now the effect of a general traverse was explained in Warner v. Sampson [1959] 1 Q.B. 297 at 310 by Lord Denning when he stated:

“Since so much effect has been given to this general denial, I would say a word about it. It is used in nearly every defence which goes out from the Temple. It comes at the end. The pleader has earlier gone through many of the allegations in the statement of claim and dealt with them. Some he has admitted. Others he has denied. Whenever he knows there is a serious contest he takes the allegation separately and denies it specifically. But when he has no instructions on a particular allegation, he covers it by a general denial of this kind, so that he can, if need be, put the plaintiff to proof of it at the trial. At one time the use of this general denial was said to be embarrassing: see British and Colonial Land Association Ltd. v. Foster and Robins (1888) 4 T.L.R. 574, but since 1893 it has been recognised as convenient and permissible: see Adkins v. North Metropolitan Tramway Co. (1893) 10 T.L.R. 173. Sometimes the pleader ‘denies’, sometimes he ‘does not admit’ each and every allegation; but whatever phrase is used it all comes back to the same thing. The allegation is to be regarded’ as if it were specifically set out and traversed “seriatim.” ‘In short, it is a traverse, no more and no less. Now the effect of a traverse has been known to generations of pleaders. It ‘casts upon the plaintiff the burden of proving the allegations “denied” ‘: see Bullen and Leake on Precedents, (3rd ed., p. 436).

So this general denial does no more than put the plaintiff to proof. Mr Scarman did suggest at one stage that it might indirectly involve a positive averment. For instance, he said that, if pleaded in a libel action, it would involve a denial that the words were false and hence it would carry the implication that they were true and would amount to a plea of justification. But he did not pursue this illustration, and I think it clearly untenable. There are some denials which do involve an affirmative allegation (see MacLulich v. MacLulich); but not this general denial. It only puts the plaintiff to proof.”

In this case whether there be a specific denial of the paragraph of the Statement of Claim dealing with the formation of the contract as in suits LD 223/63 and LD 224/63 or a general traverse as in suit LD 222/63 the effect is in our judgment solely to put the plaintiff to proof that the defendants did accept the plaintiffs’ stated tender. The Defence did not deny the contract as such and paragraph 5 of the Defence when it refers to “the defendants will contend that the plaintiff only did a small portion of the job agreed upon and in such an unsatisfactory manner that the defendants were compelled to enter into a fresh agreement with another firm of contractors who eventually did the job over again,” (our underlining), clearly contemplated that there was an agreed contract but that it was not performed satisfactorily. In our judgment this was not a plea in the alternative but a defence arising out of unsatisfactory performance of the contract which followed quite logically the putting of the plaintiff to proof of his allegations as to the formation of the contract. To read the Defence otherwise would not be to give it its natural meaning and in our view the plaintiff could, if it was so construed as being in the alternative, certainly have claimed that he was misled as nowhere was it suggested in the Defence that the defendants were not the proper other party to the contracts at issue.

The next point taken on the appeal by the defence was that there was no contract with the defendants but only with Associated Construction and Engineering. We have already dealt with this point from the pleadings aspect but whilst it is correct that no evidence was offered establishing that Associated Construction and Engineering and A.C.E. Jimona Ltd. were, to all intents and purposes, the same firm, albeit that the latter was a limited company, the evidence of the 1st defence witness Mr A. A. Agoreyo goes a long way to establishing their mutual dependence. The defence that A.C.E. Jimona Ltd. was not a party to the contract, was not, as has been stated, pleaded and one finds that A.C.E. Jimona Ltd., the defendants, specifically wrote to the plaintiffs in “Ex. B.” and stated “we maintain on our part, that at the time of award of contract to you, no set pattern of payment conditions were made,” when the letter was headed as dealing with all three contracts the Area Of Law of this litigation and no reference was made to Associated Construction and Engineering.

Furthermore, the defendants themselves conceded in respect of suit LD 223/ 63 that they wrote a letter (Ex. 2) on note-paper headed A.C.E. Jimona Ltd. with underneath printed “Associated Construction and Engineering,” though the letter was signed solely on behalf of A.C.E. Jimona Ltd. and that accordingly they were bound in respect of that contract, and in fact they wrote a letter (Ex. 19) on similar headed note-paper in respect of suit LID 224/631.

Their own employee, Mr A. A. Macaulay, when swearing affidavits on their behalf when the defendants sought leave to defend the actions, specifically referred to sub-contracts entered into with the plaintiffs by the defendants A.C.E. Jimona Ltd. We are therefore clearly of the view that by their conduct A.C.E. Jimona Ltd. accepted that it was equally with Associated Construction and Engineering obtaining the benefit of the contracts, which in effect they had taken over, and they are now estopped by their conduct from denying that. In our judgment no question of assignment arises and the learned trial judge did not so accept the defendants’ contention in this regard.

The defendants however next contended that if the Court found that there was a contract between the plaintiffs and the defendants, and this Court accepts that the learned trial judge rightly so found, then it was not proved that the plaintiff was entitled to interim payments if the work was not satisfactory. Now the plaintiff in paragraph 4 in his Statement of Claim in suit LD 222/63 stated “In accordance with the usual practice of the Association of Royal Institute of British Architects and under the Articles of Agreement and General Conditions for the Federal Ministry of Works, i.e. P W D., tenders, both the plaintiffs and the defendants further agreed that interim payments for work done would be made by the defendants to the plaintiffs on the issue of monthly certificates by the P.W.D. or in accordance with progress reached by the plaintiffs from stage to stage,” (our underlining) and in paragraph 4 of his Statement of Claim in suit LD 223/63 stated “Both the plaintiffs and the defendants agreed further to be bound by the usual practice as to payment of the Association of Royal Institute of British Architects and under the Articles of Agreement and General Conditions for the Federal Ministry of Works, i.e. P.W.D., tenders, and in particular that interim payments would be made by the defendants to the plaintiffs on the latter’s presentation to the defendants of demand notes for such payments in accordance with progress reached from stage to stage,” (our underlining) and in paragraph 4 of his Statement of Claim in suit LD 224/63 stated “Both the plaintiffs and the defendants agreed further to be bound as to payment for work done under the contract by the usual practice of the Royal Institute of British Architects and under the Articles of Agreement and General Conditions for the Federal Ministry of Works (P.W.D.) tenders, and in particular that interim payment would be made by the defendants to the plaintiffs on the latter ‘s presentation to the defendants of demand or request notes for such payments in accordance with progress reached from stage to stage.” (our underlining).

It is to be noted that the defendants objected that the plaintiffs did not prove either the usual practice of the Royal Institute of British Architects or the general conditions for the Federal Ministry of Works tenders but in suit LD 222/63 there was the alternative claim “or in accordance with progress reached by the plaintiffs from stage to stage” and in the other two Statements of Claim there were the words “and in particular that interim payment would be made by the defendants to the plaintiffs on the latters presentation to the defendants of demand notes for such payments in accordance with progress reached from stage to stage,” so that this objection was not fatal to the plaintiffs case. The plaintiffs established that previously they had received interim payments from the defendants in respect of a contract with them in regard to Queen’s College Yaba and the defendants’ own witness, Mr Haastrup, stated “as usual I made request for interim payments as work progressed. It was the agreement between the defendants and myself.” We do not consider the learned trial judge was wrong to find that it was proved that interim payments should be made and it must be kept in mind that the plaintiffs had no privicy of contract with the P.W.D. so they could not ask for the P.W.D. to certify their work, as the defendants submitted that they should have done, as only the defendants could do that. The plaintiffs for their part conceded that they had not finished the work on any of the three contracts but they gave credit for this in each claim to the defendants when they submitted their final invoices. Having made their claims as to the work done for which they were entitled to be paid it was for the defendants to object if they were not satisfied, but on their own admission they did nothing, not even having the ordinary business courtesy to acknowledge these submitted claims of the plaintiffs.

Instead they brought in another contractor, Mr. Haastrup, and when he inspected the work, and as he says, found it unsatisfactory, the defendants asked him to complete the contracts without calling in either any independent witness to assess the value of the work done or anyone from the P.W.D. nor did they give the plaintiffs any opportunity to be present when the work was inspected and valued. Indeed the defendants did not value the work or, at any rate, they offered no evidence at the trial of the value of the work done but sought to say that it should be the agreed price less any monies paid to Mr. Haastrup, overlooking the fact that Mr. Haastrup was an interested party to make the work as expensive as possible and that he did not give evidence of the value of the work actually done by the plaintiffs.

We therefore do not consider the defendants offered satisfactory evidence negativing the plaintiffs claim for the work done and Mr. Ogunsanya in reply for the defendants himself conceded that he thought there was merit in a quantum meruit assessment of the plaintiffs’ work but could not suggest how this could now be satisfactorily calculated otherwise than by deducting the payments made to Mr Haastrup. In our judgment the defendants had the opportunity to make the necessary assessment of the value of the work done and not having taken it they are bound now, due to their own inactivity, to the terms of the plaintiffs’ claims

All the grounds of appeal argued having failed, the appeal is dismissed with thirty guineas costs.

Other Citation: (1966) LCN/1327(SC)

Adewale Sholuade V The Republic (1966)

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LEWIS, J.S.C. 

The appellant was tried in the High Court of Lagos before Adedipe J., sitting with a jury and was convicted of murder.

The case for the prosecution was that in the evening of the 8th of May, 1965 in Obadina Street, Lagos, the appellant struck the deceased once on the head with an axe as a result of which he fell down and had to be taken to Dr O. O. Hunponu-Wusu who treated him for a laceration on the head and after stitching it discharged him from the Lagos General Hospital, only for him to be readmitted shortly thereafter.

He subsequently died and in the post-mortem examination conducted on the 11th May, 1965 by Dr J. M. Uku, Senior Specialist Pathologist, he found that “there was a laceration 3/4” long on the left side of the scalp. I also found that the skull was broken on the right side. There was bleeding just under the skull at the site of the fracture. I found other organs to be normal. In my opinion the fracture of the skull is consistent with a blow to the skull. In my opinion death was due to fracture of the skull and bleeding into the cavity of the skull.” The appellant in a statement to the police admitted that he had hit the deceased on the head with an axe but said that he only did this after a fight and after the deceased’s mates had started to box him.

When the appellant gave evidence at the trial he stated that he had been abused by the deceased as a prophet of the Cherubim and Seraphim who drank, had his tumbler at a party in Smith Street, Lagos, which he was attending, knocked out of his hand by the deceased and as a result he then held the deceased whereupon the deceased’s friends started to beat him to make him release the deceased. He then ran off pursued by the deceased till he fell down, whereupon the deceased sat on him while the deceased’s friends beat him with sticks and belts. While he struggled to get away the appellant stated that he stretched out his hand, held something and flung the object backwards not seeing what happened to it and he was later shown the object which was an axe but this was only after he found himself in the Lagos General Hospital to which he had been taken. He also said that he did not receive the injuries which were inflicted on him from the crowd that arrested him.

Now Mr Cole filed a number of grounds of appeal which he argued on behalf of the appellant. Two grounds which he argued together were that “The learned trial judge misdirected the jury in that he stated or implied that the jury will not be released unless they arrive at a unanimous verdict. The appellant complains against this misdirection as amounting to putting pressure upon the jury to appear to come to a conclusion though they had not in fact done so.

The learned trial judge failed to direct or indicate to the jury that they were entitled to disagree and make a report of such disagreement to the court,” in support of which he cited R. v. Davey [ 1960] 3 All E.R. 533 and R. v. Mills [1939] 2 All E.R. 299 but in neither case do we consider that it is applicable to the facts of this appeal as the former turned upon whether the judge had suggested to the jury that the need for unanimity had been relaxed and that they might concur in a verdict for the sake of conformity whilst in the latter case the decision was that the direction to the jury must not give the impression a minority may acquiesce with a verdict with which they do not agree. In this appeal the learned trial judge asked the jury to consider their verdict and told them they might come back into court if they had any questions and that they should not hurry, ending by saying “you must not call the court unless you arrive at a unanimous verdict.”

When the judgment is read as a whole we do not consider the learned trial judge would have been misunderstood by the jury but that the jury would have realised he was telling them that a verdict of guilty of murder or of manslaughter or not guilty must be a unanimous one but that would not preclude them coming back to the court with any question if they could not arrive at a unanimous decision. It is not and never has been in our experience the practice in summing up to tell the jury specifically, as Mr Cole argued, that they could disagree. We do not consider in this appeal that any undue pressure was brought upon the jury to arrive at a unanimous verdict.

Mr Cole further argued that the learned trial judge in his summing up indicated his opinion very freely, usually if not invariably, against the appellant and thus deprived the appellant of the substance of a fair trial. In support of this contention he cited Broadhurst v. The Queen [1964] 1 All E.R. 111, where in a murder appeal from Malta the Privy Council held that while the opinions of the presiding judge at a criminal trial on issues of fact can often be of great assistance to the jury, yet it is very important that the jury should be told that they are not bound by them nor relieved thereby of the responsibility of forming their own view and even if a proper warning is given an appellate court can still intervene if it considers the judge’s opinions are far stronger than the facts warranted so that there was a danger of the jury being overawed by them.

In that case the presiding judge in fact gave no warning, in contrast to this appeal where the learned trial judge several times warned the jury that they were not bound to accept his suggestions but could reject them as they must make the findings of facts. Although Mr Cole has pointed out a number of opinions of the learned trial judge which might have been better expressed we do not consider in this appeal he could be said to have in any way over-awed the jury and, as has been stated, he did warn them that they were not bound to accept his suggestions. So far as his opinions were concerned he left the issues to be determined by the jury and he was entitled to express himself strongly as shown in R. v. O Donnell, 12 Cr. App. R. 219.

Mr Cole next took the point that though the trial judge had told the jury there were inconsistencies in the prosecution case these were minor and immaterial, but he did not refer the jury to such inconsistencies. Mr Cole, rightly in our view, pointed out that the learned trial judge did not deal satisfactorily with the inconsistency in the medical evidence because Dr O.). Hunponu-Wusu when he examined the deceased on the evening of the incident did not find any fracture of the right side of the skull whilst Dr Uku who conducted the post-mortem examination was of opinion that death was due to fracture of the skull and bleeding into the cavity of the skull. Dr Wusu only found a laceration of the skull which Dr Uku found to be on the left side. No questions were put to Dr Uku to find out if he thought it was possible for Dr Wusu to have missed this fracture, and no clear evidence was offered to prove whether the fracture of the skull occurred before or after Dr Wusu’s examination. We consider this inconsistency in the medical evidence was so vital that it should have been explained to the jury as one of the inconsistencies to which the learned trial judge was referring, always assuming it in fact was one to which he intended to advert.

There is a second inconsistency which is in our judgment even more vital and to which the learned trial judge did not draw the jury’s attention, and that is the inconsistency between the witness Dabiri whose evidence from his deposition was read to the jury and that of the 7th prosecution witness Adekunle Ogunmuyiwa as to what actually happened when the accused struck the deceased. The learned trial judge referred the evidence of each of them to the jury without suggesting there is any inconsistency and said the prosecution asked them to accept both witnesses as witnesses of truth. Dabiri however said there was a shout from the appellant “where is he” to which the deceased replied “I am here,” and the appellant then struck him a blow on the head, but the 7th prosecution witness said this was never said “unless this was said before I got there” yet both purported to be at hand describing the same incident.

Moreover, the 7th prosecution witness said he saw the accused holding the deceased and then he took an axe from the ground and struck him on the head with the blade of the axe, whilst Dabiri could not say with what the appellant hit the deceased but said the appellant asked “where is he” which implies he was not holding him or he would not have so asked. When dealing with this vital prosecution evidence as to the incident the learned trial judge further did not draw the jury’s attention to the fact that they had not seen Dabiri in the witness box but only heard his deposition whilst the 7th prosecution witness had given evidence in person before them. We consider these inconsistencies ought to have been brought specifically to the attention of the jury and it was a serious misdirection amounting to a miscarriage of justice to fail to do so.

Mr Cole finally also submitted that the learned trial judge wrongly put on the defence the onus of proof of the defence of self-defence. It is clear from the record that whilst in one place the learned trial judge indicated to the jury that the onus was on the prosecution to negative the defence of selfdefence put up by the accused, in another place he implied the onus was on the accused to establish self-defence. As R. v. Oshunbiyi [1961] All N.L.R. 453 clearly shows the onus remains in the prosecution to disprove self-defence once it is set up and we accordingly find that this too was a serious misdirection of the learned trial judge. We further note, though it was not a ground of appeal, that when the learned trial judge left to the jury, as the prosecution suggested he might, the determination whether the death was accidental he also wrongly put the onus on the accused rather than as he should have done on the prosecution to disprove accident. Having regard to the serious misdirections amounting in our view, as we have indicated, in each such case to a miscarriage of justice, we allow the appeal and the conviction is quashed and a judgment and verdict of acquittal is entered.

Other Citation: (1966) LCN/1326(SC)

Agbonmabge Bank Ltd V C.F.A.O (1966)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

In this appeal the Agbonmagbe Bank Ltd. complains of the judgement given by Adedipe J., in the Lagos High Court Suit No. LD/344/1963 on 6th July, 1964 in favour of the C.F.A.O. for £9,865-4s-4d.

The C.F.A.O. had a customer by the name of Esther Abiola Amushan, who gave the company a number of cheques on the Agbonmagbe Banks Branch at Shagamu between the 7th August, 1957 and the 5th October, 1957 amounting to £10,197 -8s-4d; the company handed the cheques to the Bank of West Africa Ltd., for collection, and this Bank sent them to the headquarters of the Agbonmagbe Bank at Ebute Meta, which returned the cheques dishonoured on the 10th October, 1957 in a bunch. The C.F.A.O. wrote to the Agbonmagbe Bank headquarters to complain that the delay of their Shagamu Branch in returning the cheques caused them loss for which the company held the Bank responsible, but received no reply. The C.F.A.O. sued Mrs. Amushan and obtained judgement against her for what she owed the company-£ 13,829-0s-1Od, which included the amount of the cheques; the company managed to collect £250 from her and could collect no more; so they sued the Agbonmagbe Bank for the amount of the cheques in question. The companys manager testified as follows:

‘When the cheques were not returned within reasonable time, my company assumed that they must have been paid. If the cheques had been returned within a week or so we would have stopped delivering further goods to Mrs. Amushan and our loss would have been minimised. We lost the value of the cheques as a result of the delay occasioned by the defendant.’

The C.F.A.O. manager agreed in cross-examination that the Agbonmagbe Bank were not his companys bankers; but there was no cross-examination on the companys assumption that as the cheques were not returned within a reasonable time they must have been paid. That there was undue delay on the part of the Agbonmagbe Bank was proved by a manager of the Bank of West Africa who testified on bank practice; he was not cross-examined. The Agbonmagbe Bank offered no evidence in defence.

The learned trial judge was of opinion that cheques sent from Lagos to Shagamu should, if not paid, have been returned within a week, and in his opinion the Agbonmagbe Bank had failed to fulfil its duty of returning them in the ordinary course of business to the Bank of West Africa within a reasonable time with an intimation that they would not be paid. The learned judge recognised that there was no privity of contract between the C.F.A.O. and the Agbonmagbe Bank; he relied on Donoghue v. Stevenson [1932] A.C. 562, for his view that the Bank was liable for negligence.

In that case Lord Atkin gave his view of negligence in tort (at p. 580) as follows:

‘At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances …. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be-persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing- my mind to the acts or omissions which are called in question.’

Adedipe J., states in his judgement that it was clear on the cheques that the Bank of West Africa was the agent of the C.F.A.O. for the purpose of collection, and that the Agbonmagbe Bank had a duty of care in dealing with the cheques which were sent to it for collection, but it was negligent and the C.F.A.O. suffered damages owing to its negligence. Hence the judgement in favour of the C.F.A.O., from which the Agbonmagbe Bank has appealed.

The objections to the judgement made on the Banks behalf are two

(1) that the judgement against Mrs. Amushan was a bar to a suit against the Bank;

(2) that the Bank had no duty of care to the C.F.A.O.

The court approaches an appeal on the principle that the appellant must show that the decision was wrong.

The Court is not persuaded that the judgement was wrong in the first respect, having regard to the fact that the claim against Mrs. Amushan was based on contract but that on the Bank was based on tort. There were two separate causes of action against two distinct persons, and the judgement against Mrs. Amushan did not extinguish the right of the C.F.A.O. to sue the Bank, even though it was in respect of the same cheques. What was important was that the C.F.A.O. should not recover the money on those cheques twice. They tried to recover it from Mrs Amushan and only sued the Bank when they could not recover it.

Mr. Makanju sought to support his argument by referring to Gawain v. U.A.C. Ltd,. [1961] All N .L.R. 785, and to Scarf v. Jardine (1882) 7 App. Cas. 345. sued the U.A.C. Ltd. twice for breach of one and the same contract, which is not possible: he ought to have made all his claims arising out of the breach in the first action. In Scarf v. Jardine the facts were these, Jardine had dealings with a firm known as W. H. Rogers & Co., earlier it consisted of Scarf and one Rogers; they dissolved the partnership and Scarf retired; Rogers took one Beech as partner, and they continued trading as W. H. Rogers & Co.; Jardine sold goods to the firm not knowing of the change. After he had notice of it, he sued Rogers and Beech, who later went into liquidation; Jardine proved in the liquidation, and then sued Scarf. The decision was that Jardine could have sued either Rogers and Scarf as the old firm, and that Scarf would have been liable by estoppel under the doctrine of agency between partners, as he had had no notice of the dissolution when he sold the goods, or could have sued Rogers and Beech as the new firm to whom he actually supplied the goods; but he could not have sued Rogers and Beech and Scarf together; and having elected to sue Rogers and Beech he could not sue Scarf any more. It is to be noted that there was only one cause of action, and the basis of it was contract. Neither Gafais case nor Scarfs is similar to the case in hand, and the first objection must fail.

The Court is also not persuaded that the trial judge erred in deciding that the Bank had a duty of care towards the C.F.A.O. Mr Makanju relied on Schroeder v. Central Bank of London. Ltd. (1876) 34 L.T.R. (N.S.) [735]. It is true that a banker is ordinarily not liable to the payee of a cheque for non-payment of the cheque: a cheque is not an assignment of debt in English law. But that case is on there being no privity of contract between the payee and the banker on whom a cheque is drawn. Here the C.F.A.O. is suing the Bank on the basis of negligence in tort.

Mr. Makanju has pointed out .that the principle of the decision Donoghue v. Stevenson (supra) is summed in these words of Lord Atkin (at p. 599):

“….a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumers life or property, owes a duty to the consumer to take that reasonable care.’

That certainly was the decision on the facts of the case. Donoghue drank some ginger-beer at a cafe out of an opaque bottle that was sealed with a cap; her case was that there was a decomposed slug in it, and that she suffered in health. There was no privity of contract between the plaintiff and the manufacturer, but he had a duty to take care towards potential consumers. Why? Because, as stated earlier by Lord Atkin at p. 580 in the passage first quoted in our judgement, the consumers are persons whom the manufacturer ought reasonably to have in contemplation as closely and directly affected by his acts or omissions. The decision is an application of the principle stated at p. 580 to the facts of the case.

The learned counsels reference to the passage at p. 599 was doubtless designed to show that it was only in that type of case that there was a duty to take care in the law of tort. Lord Macmillan in Donoghues case made it clear that the duty was not so restricted; he said as follows (at p. 619):

‘What, then, are the circumstances which give rise to this duty to take care? In the daily contacts of social and business life human beings are thrown into, or place themselves in, an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in that relation to each other. The categories of negligence are never closed …’

Mr. Lampejo, for the C.F.A.O., referred to Hedley Byrne & Co. Ltd. v.Heller &Partners Ltd. [1964] A.C. 465, as showing that bankers may be liable to persons who are not their customers for tort negligence which causes them pecuniary damage. In that case the defendants, who were merchant bankers, were asked by a bank on behalf of the plaintiffs, a firm of advertising agents whose name was not stated to the defendants, about the creditworthiness of a company who were customers of the defendants; and the decision was that the defendants were careless in what they said but escaped liability because they expressly disclaimed it in their answer. The case shows that bankers normally owe a duty of care to persons whose bank is making such an enquiry on their behalf.

There is a business practice among bankers in regard to cheques, and we think that the defendant Bank ought to have followed it, to avoid it being thought, as it would reasonably have been thought by the C.F.A.O., that Mrs. Amushans cheques were being paid. On the limited evidence in the case we do not think the learned judge erred in deciding that the Bank had a duty of care towards the C.F.A.O. and was liable for damage caused by its negligence, and the second o

Other Citation: (1966) LCN/1325(SC)

S. O. Akinsete V Emmanuel Akindutire (1966)

LawGlobal-Hub Lead Judgment Report

ONYEAMA, J.S.C

The appellant was the judgment creditor in a suit for debt commenced in the Magistrate’s Court at Ibadan. The respondent who was the judgment debtor appealed to the High Court at Akure and applied for a stay of execution of the judgment of the magistrate pending determination of the appeal in the High Court: he was unable to fulfil the conditions on which a stay was ordered and the appellant eventually obtained an order in the High Court to attach and sell by way of execution of the judgment of the magistrate the immovable property of the respondent.

Pursuant to this order a bailiff of the court attached and sold a storey house with two stores at Fagbo, Ondo, and a storey house at 24 Odojomu Street, Ondo, belonging to the respondent on the 14th of December, 1963; the two houses which were about fourteen miles apart were sold to the same purchaser, one Gbakaba, and each was sold for £145 although it was said to be worth about £2,000.

The respondent moved the High Court for an order setting aside the sales on the ground of irregularities in the conduct of the sales: these irregularities were said to be:

(a) That the judgment creditor’s son kept bidders away by threatening to shoot any one who came to bid with a double-barelled shot gun which he carried.

(b) That the two houses were sold at a gross under-value.

(c) That the bailiff did not allow people to bid for the property he was selling.

There were a number of affidavits filed in the High Court deposing to facts on which the allegations of irregularities were based; these affidavits were sworn by a number of deponents who claimed to be occupiers of the houses and by the judgment debtor and his landlord. On the other hand, the bailiff and the judgment creditor’s son swore to affidavits denying in detail the allegations made against them relating to the conduct of the sales.

The learned trial judge considered the affidavits and heard arguments of counsel: he was impressed by the facts that houses worth £2,000 each were sold for £145 each and that “two houses, situated about fourteen miles apart, were sold on the SAME day, bought by the SAME person, and each for the SAME amount” and accepted the allegation that bidders were scared away at the time of the sale.

In the face of the direct conflict of affidavits on crucial facts, the learned judge, we think, should have heard oral evidence from the deponents or such other witnesses as the parties may be advised to call. The judgment of Bannerman, J., on appeal which the West African Court of Appeal upheld in Government of Ashanti v. Adjuah Korkor, etc. 4 WA.C.A. 83 is authority for this.

It is, of course, open to the court to act on affidavit evidence in cases in which the facts are not disputed or in which the parties agree that this should be done; and it is only fair to say that in the present case neither side asked to be allowed to cross-examine any of the deponents or to call any witness. We do not however think that this omission by the parties can be taken to amount to consent that affidavit evidence be used in this case in which the facts in issue were irreconcilably in conflict.

For these reasons we allow the appeal. It is ordered that the order of the High Court at Akure (Fatayi Williams, J.) dated the 20th March, 1964, in Suit M/5/63 between S. O. Akinsete and Emmanuel Akindutire including the order for costs be and is hereby set aside, and that the application of Emmanuel Akindutire be reheard by another judge.

The respondent Emmanuel Akindutire will pay to the appellant S. O. Akinsete the costs of the appeal assessed at 52 guineas; the costs of the hearing in the High Court will abide the result of the rehearing.

Other Citation: (1966) LCN/1324(SC)