Nimota Oluwo & Ors V. R.o. Adebowale (1964)

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MBANEFO JSC 

The plaintiffs in the Court below, as the executors of the estate of one C. J. Oluwo (deceased) sued the defendant in the High Court of Lagos for:-

(1) An order setting aside a deed of Assignment of Lease dated the 20th July, 1955 and duly registered in the Lands Office, Lagos;

(2) An order that the aforesaid registration be expunged; and

(3) An injunction restraining the defendant and his servants and/or agents from acting under the said Deed.

The facts were shortly as follows. The deceased was a grantee of an area of land known as Plot 10 in Block 29 for a term of ninety nine years from the last day of February 1940. He had erected a substantial building on same which is known and referred to as No. 99 King George Avenue, Yaba. On the 5th February, 1955 the deceased mortgaged the property to one Mr Ibikunle Dada to secure a loan of £2,060 with interest; the deceased was unable to repay this loan on account of his illness which kept him confined to his bed, with the result that Mr Dada was desirous of exercising his powers of sale under the mortgage.

The plaintiffs, and this is where the dispute arises between the parties, say that the defendant offered to take over the mortgage of Mr Dada by advancing the deceased a total sum of £3,200, and that this was in fact done. The defendant, on the other hand, says that the transaction between himself and the deceased was one of sale and not mortgage. The principal documents on this point are exhibits ’25’, the deed of Assignment, and ’30’, the purchase agreement. The plaintiffs say with respect to these deeds in their Statement of Claim as follows:-

’11. That on 21-6-55, while the late Clement Jaiyesimi Oluwo was seriously ill on his sick bed, the Defendant brought some documents to him to sign which the defendant described to him as a receipt for the loan given to him by the Defendant and the Mortgage Deed for the said Loan.’

’14. That by a purported Deed of Assignment of lease dated the 20th day of July, 1955 and registered in the Register of Leasehold Titles in the Lands Registry Lagos as No. M00134, the said property known as 99 King George Avenue Yaba was purported to be assigned to the Defendant.’

’21. The Plaintiffs aver that the said assignment was not the act of the late Clement Jaiyesirni Oluwo: that it was not genuine: that it is a fraud and an utter nullity and ought in the interest of justice to be set aside.’

A defence was filed to this, but at no time before the hearing of the action was any application made on behalf of the defendant for particulars with regard to the allegations made in paragraph 21 above. In paragraphs 8 and 12 of the Statement of Defence it is averred that:-

‘8. With reference to paragraph 14 of the Statement of Claim the defendant states that the Deed of Assignment of the lease dated the 20th day of July, 1955 and registered as No. MOO 134 was duly executed by Clement Jaiyesimi Oluwo and attested by a witness after the former had read same. The said Jaiyesimi Oluwo could read and understand English.’

12. The Defendant says that the Plaintiffs ought not to be admitted to say that the said Assignment was not genuine or that it is a fraud and utter nullity because …. ‘

It seems quite clear from the state of the Pleadings that the Plaintiffs were setting up, and the defendant understood the plaintiffs as setting up, with relation to the Deed of Assignment, two contentions

(i) That the Deed was not signed by the Deceased, and alternatively

(ii) That it was not the act of the deceased, the execution of it having been obtained by fraud, i.e. that the Deed drawn up was one of Assignment whereas the deceased understood himself to be executing a deed of mortgage.

During the hearing of the case in the Court below, Learned Counsel for the plaintiffs was requested by the Learned Trial Judge to state categorically without equivocation the fraud on which he relied. Counsel is recorded as saying inter alia that:

‘The alleged deed of assignment dated 20-7-55, on which appears a signature purporting to be that of the deceased is a forgery, as it is not his signature. Secondly, Exhibit 30 described as a purchase receipt, which we say the deceased signed is not his act (non est factum) in that it was represented to him as a receipt for a loan and NOT a receipt for sale of the property.’

After this particularizing of the fraud, further evidence was adduced by the defence, and subsequent proceedings, including addresses of Counsel, bear out the contention of Mr K. Sofola, Learned Counsel for the appellants at the hearing of the appeal, that the contest as to the validity of the Deed of Assignment was fought out with the two alternative weapons to which reference has already been made.

The Learned Trial Judge dismissed the plaintiff’s claim and made the following findings, inter alia:-

(i) That the Deed of Assignment exhibit ’25’ was in fact signed by the deceased. That there was no forgery of the deceased’s signature.

(ii) That the deceased could not have understood the contents of exhibit ’30’, the Purchase Agreement even if he had read it.

(iii) That this exhibit ’30’ was procured by fraudulent misrepresentation.

(iv) That as a period of one month had elapsed between the signing of exhibit ’30’ and exhibit ’25’, in the absence of specific evidence of any fraudulent misrepresentation in respect of the latter, it must be shown that the fraudulent misrepresentation which induced the deceased to sign exhibit ’30’ on the 21st of June, 1955, continued up to the 20th July, 1955, when exhibit ’25’ was executed before the plaintiffs could succeed.

A total of eleven grounds of appeal, including four additional grounds, were filed, but Learned Counsel for the appellant argued only the first of the original grounds of appeal and grounds R to 11 of the additional grounds. His submissions may be put as follows under three heads:-

(a) That the finding of the Learned Trial Judge that exhibit ’30’ was procured by fraud amounts to a rejection of the Defence.

(b) That as the Learned Trial Judge has found that exhibit ’30’, made on the 21st June, 1955, which fanned the basis of the transaction between the parties, was procured by fraudulent misrepresentation, it follows that the onus was then shifted to the defendant/respondent to show that at the time exhibit ’25’ was executed the deception, the fraudulent misrepresentation, had been removed. That, in the absence of evidence to show this the Trial Judge should have found that exhibit ’25’ was also procured by fraudulent misrepresentation.

(c) That the Trial Judge erred in law in his application of the principle stated in Clough v. L.NWR. 1871 L.R. 7 Exch. 26, by refusing to grant the relief sought on the ground that the parties could not be restored to their original position.

Mr Odesanya, Learned Counsel for the respondent, found himself on the horns of a dilemma by the first submission put forward by Mr Sofola. He submitted that the judgement dismissing the action was correct but disagreed with the finding by the Trial Judge that exhibit ’30’ was procured by fraud. It was pointed out to Learned Counsel that the provisions of Order VII Rule 13(1) of the Federal Supreme Court Rules, which provides that a respondent. who intends to contend at the hearing of the appeal that the decision of the Court below should be varied or affirmed on grounds other than those relied on by that Court shall give notice of such intention within one month after the service on him of the notice of appeal, were not complied with. Mr Odesanya then made application under Order VII Rule 13(2), for an adjournment to enable him to give such notice or, in the alternative, for him to giv

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Other Citation: (1964) LCN/1167(SC)

Arua Eme V. The State (1964)

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ONYEAMA, J.S.C. 

The applications for leave to appeal by the three appellants from the judgment of Nkemena, Ag. Judge dated the 12th of June, 1964, in the High Court at Port Harcourt, on question of fact were refused on the 24th of September, 1964, as the facts of the case were quite clear and fully justified the conviction of the appellants of the offences charged; in the case of the third appellant, Arua Eme, his complaint that the learned trial judge erred in law by refusing him the right to call his defence witnesses to corroborate his statement, raised a point of law and his appeal on this point was adjourned for a full court.

The record of the proceedings at the trial does not show, as it does in the case of the other accused persons, that the appellant Arua Eme, who was the second accused, and who was not defended by counsel, was asked If he had any witnesses to examine as required by section 287(1) (a) of the Criminal Procedure Act (Cap. 43).

As the effect of the failure by a trial court to comply with this provision of the Criminal Procedure Act is a matter of importance on which there have been conflicting views and decisions, Mr J. A. Cole, of Counsel, was assigned to the appellant and the point was fully argued.

The relevant sections of the Criminal Procedure Act are as follows:

“287    (1) At the close of the evidence in support of the charge If it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his defence and:

(a) If the defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely

(i) he may make a statement, without being sworn, from the place where he then is; in which case he will not be liable to cross examination; or

(ii) he may give evidence in the witness box, after being sworn as a witness; in which case he will be liable to cross- examination, or

(iii) he need say nothing at all, If he so wishes, and in addition the court shall ask him If he has any witnesses to examine or other evidence to adduce in his defence and the court shall then hear the defendant and his witnesses and other evidence, If any;”

(b) and (2) (not relevant.)

“288    Failure to comply with the requirements of paragraph (a) in section 287 shall not of itself vitiate the trial provided that the court called upon the defendant for his defence and asked him If he had any witnesses and heard the defendant and his witnesses and other evidence, If any.”

The result of non-compliance with section 287(1)(a) was considered by the West African Court of Appeal in Oladimeji v. The King 13 W.A.C.A. 275. The court took the view that it was not open to it, as it would be in England, to consider whether the accused person in such circumstances had been prejudiced, because the obligation to ask the defendant If he had witnesses was imposed by statute, and the necessary implication in section 288 was that failure to comply with section 287(1) (a) was to vitiate the trial; the court interpreted the word ‘vitiate’ to mean ‘render null and void’ and in the case before it declared the proceedings a nullity.

The like view was taken in Adikun Oke v. Inspector-General of Police 14 W.A.C.A 645, but no reasons were given for taking that view; apparently it was taken for granted; or it maybe that the court was following Oladimejl without saying so.

About two years before Adikun Oke’s case the West African Court of Appeal considered the same question in Salawu Atunde v. Commissioner of Police 14 W.A.C.A. 171 and in allowing the appeal said it was doing so because there was a bare possibility that the appellant may have been prejudiced and in view of crown counsel’s submission that this is a fit case for a retrial; they did not say the trial was a nullity. This judgement was followed in the Northern Region High Court in Igwenagu (1959) N.R.N.LR. 80.

The case of Oladimejl Is the only reported decision in which the effect of sections 287 and 288 Is considered by reference to their precise wording. The reasoning in that case Is based on the view that section 288 amounted to a positive enactment that failure to comply with section 287(1)(a) shall vitiate the trial; and that the word ‘Vitiate’ meant rendered null and void.

Neither section 287 nor section 288 states expressly that failure to comply with section 287 shall render the trial a nullity; this effect is said to be necessarily implied by section 288. The court in Oladimeji’s case did not consider the consequences which flowed from its view. One consequence is, as was pointed out by Mr Offish, who appeared for the respondent, that even where a defendant who is not represented by counsel calls his witnesses, his trial Is null and void merely because the trial judge did not ask him whether he had any. The aim of section 287(1)(a) is to ensure that a defendant shall have an opportunity of making his defence; he does make it if he calls his witnesses; and the mere omission to ask him whether he has any should not per se nullify his trial. Likewise, if he has no witnesses, the omission does not deprive him of anything. Indeed, Mr Cole for the appellant does not argue that the omission nullifies the trial. His argument is that it impairs the trial, and does so to the extent that the appeal must be allowed in any event, and then the appellate court may direct an acquittal or a retrial, but has no other choice: in his submission, the court cannot dismiss the appeal on the ground that there was no substantial miscarriage of justice. In our opinion there is nothing to preclude the court from dismissing the appeal for the reasons we shall give.

We think that section 288 was intended to cut down or qualify the supposed effect of failure to comply with the requirements of paragraph (a) in subsection 1 of section 287; in substance, it is a proviso; the object of a proviso is to qualify or cut down something which has gone before, usually called the enacting clause; we think section 288 should be construed in that light. By reason of the premises, the enacting clause, namely section 287(1) (a) would, but for the proviso, have the effect which the proviso seeks to qualify, and that was the reason for adding the proviso. A proviso is sometimes added to allay fears which may be unfounded with the result that a statute is burdened with a needless proviso; for if the enacting clause does not have the effect which the proviso seeks to qualify, there is no point In adding the proviso. The trouble arises from assuming that the enactment has the effect implied by the proviso; one then goes on to infer that I does really have that effect, and to import legislation Into the body of the statute; so that a proviso Intended to cut down or qualify the enacting clause has the opposite result and enhances the effect of the clause.

This court had occasion to say so in N.I.P.C. and Mansour v. Bank of West Africa Ltd. (as yet unreported; but see F.S.C. 478/61 decided on 7th November, 1962) on the second proviso to section 15 of the Land Registration Act (Cap. 99 in the 1958 Laws of the Federation); and, on the construction of a Proviso, Lord Halsbury said it would be most formidable to give a proviso a meaning which would suggest that the previous part of the section of which it is a proviso should imply by law the existence of words there of which there is not a trace in the previous words of the section itself: see West Derby Union v. Metropolitan Life Assurance Society [1897] A.C. 647 at p. 651. Lord Herschell, in the same case said at p. 655:

“I decline to read into any enactment words which are not to be found there, and which would alter its operative effect because of provisions to be found in any proviso. Of course a proviso may be used to guide you in the selection of one or other of two possible constructions of the words to be found in the enactment, and show when there is doubt about its scope, when it may reasonably admit of doubt as to its having this scope or that, which is the proper view to take of it; but to find in it an enacting provision which enables something to be done which is not to be found In the enactment itself on any reasonable construction of it, simply because otherwise the proviso would be meaningless and senseless, would, as I have said, be in the highest degree dangerous.”

With respect to the learned judges who decided Oladimeii v. The King, 13 WA.C.A. 275, they used section 288, a saving clause intended to cut down the effect of paragraph (a) in subsection 1 of section 287, as the basis for importing into that subsection a provision which is not there. They quote section 288, say that it is unintelligible-which it is-and then go on to say this:

“if failure to comply with the provisions of paragraph (a) of the section shall not in itself vitiate the trial when amongst other things the court has asked the defendant if he had any witnesses we think it is necessarily implied that if the court has not done so the trial is vitiated.”

In effect, they imported into section 287 a positive enactment that failure to comply with the requirements of paragraph (a) in section 287(1) shall vitiate the trial, contrary to the accepted rule of construing a proviso, which applies equally to what is framed as a saving clause and is a proviso in substance. We must dissent from the use made of section 288 in Oladimeji v. The King, that decision must be over-ruled. The proper course in our view is to consider the effect of failure to comply with section 287(1)(a) without importing into it any implication from section 288.

We were referred to section 304(3) of the Criminal Procedure Act which provides that:-

“If the magistrate shall not inform the accused of his right to be tried by a judge of the High Court or with a jury, as the case may be, the trial shall be null and void ab initio unless the accused consents at any time before being called upon to make his defence to be tried summarily by a magistrate in which case the trial shall proceed as if the accused had consented to being tried summarily by a magistrate before the magistrate proceeded to hear evidence in the case.” There it is expressly stated that the trial shall be null and void, and the reason is want of jurisdiction. The decided cases nearly all show that proceedings are usually a nullity where the trial court has no jurisdiction in the case or where there has been such a departure from the rules of procedure that it can be said that there has, in fact, been no trial.

We think that the construction adopted by the West African Court of Appeal in Atunde v. Police is the correct one and that failure to comply with section 287 (1) (a) of the Criminal Procedure Act, although an irregularity, does not render the trial null; the effect of such failure must depend on the circum stances of the particular case, and the appellate court is at liberty to allow the appeal and order an acquittal or a retrial, or dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

In the case with which this appeal is concerned, the appellant Arua Eme stated in his defence that he had been away from Port Harcourt at the time the crime with which he was charged was committed; he had gone to demand payment of a debt from an unnamed person and k was while he was returning from this debtor’s house to Port Harcourt that he was involved in a fight with a group of people; later in the day he was arrested and charged with the offences set out on the Information. He said that the debtor, who would, no doubt, be the witness to support his story that he was not in Port Harcourt at the material time, wrote him a letter and the letter was produced in evidence as Exhibit 19. The appellant did tell the police who this debtor was in his statement-Exhibit 16-but he added that he did not find this debtor at home; the debtor could not, therefore, say whether the appellant came to his house or not; and as the appellant did not suggest that he saw anybody else who could give relevant evidence on the question, there was no other evidence which the appellant could have added to his defence.

The position then is that the appellant had no witness who could have been of any assistance to him and he is in no way prejudiced by the failure to ask him If he had any witnesses to examine.

The evidence against the appellant and his confederates was overwhelming and there is no question of a miscarriage of justice.

The appeal is dismissed and the conviction and sentence are affirmed.

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Other Citation: (1964) LCN/1093(SC)

Idowu Alase & Ors V. Sanya Olori Ilu & Ors (1964)

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ONYEAMA, J.S.C

The appellants were the plaintiffs and the respondents the defen-dants in the court below. The claim was for a declaration of title to the farmland known as Iganke and situated in Imota, Epe District; there was a further claim for an injunction. The plaintiffs brought the claim on their own behalf and as representing “the entire members of Rowuyo family”, and the defendants were sued for “themselves and the entire members of Ogunbala’s family.”

The plaintiff’s’ case on the pleadings was that the land in question was first occupied by their ancestor Mawogbe from whom it had descended to them. A son of Mawogbe named Okusi married a woman of the defendants’ people and of her had-a son Ewesanya. As a result of the relationship which developed between the two families out of this marriage and a subsequent marriage between Salawu Anjorin of Ogmbala family and Olayemi Abudu of Rowuyo family, Salawu Anjorin was allowed to farm on Rowuyo family land; other members of Ogunbala family married women from Rowuyo family and were allowed to farm on Rowuyo family land; one such member was Enigbokan Anjorin whose brothers Oke and Tiamiyu joined him and farmed on Rowuyo family laud. Tiamiyu Anjorin, how-ever, went outside the area allowed to Enigbokan and farmed on land occupied by Taiwo Sunmogejo, a member of Rowuyo family; this led to a dispute which was referred to the head Chief, who warned Tiamiyu to desist from further interfering with the land; other menbersofOgunbalafamily,however. came on the land and commenced cultivation without the consent of the plaintiffs’ family.

The defendants’ caw was that the land in question was called ‘Egan Emuren’ and belonged to their ancestors before them; it was Taiwo Sunmogejo who went into Tiamiyu Animin’s land wrongfully and Tiamiyu Anjorin who complained. to the head Chief and took action in the Ikosi Native Court at Imota in Suit No. 22/1950; judgment went against Taiwo Sunmogejo and it was ordered that he should vacate the land in question; the de-fendants pleaded that “in view of the foregoing defendants say that the present plaintiffs are estopped per rem judicatam from bringing this action as the land the subject-matter of this action is the same land as in Suit No. 22/50 Native Court Ikosi referred to above.”

There are other allegations of fact in the defence but it is not necessary to set them out.

The case came before Doherty, J. in the High Court at Ijebu Ode for hearing on the 17th of April, 1962; the Teamed judge decided to hear the plea of res judicata as a prelimi-nary point. The defendants called evidence that in 1951 they instructed a surveyor to survey and map an area of land near Imota which measured 848.72 acres; that the area claimed in the suit and shown on the plan filed in court as Exhibit B was within the area surveyed and mapped by the surveyor; that the judgment in the native court related to the area of land near Imota which was surveyed and shown on a plan which was in evidence as Exhibit A. That was the extent of the evidence.

It was submitted to the learned judge on behalf of the defendants that the parties in the native court case and the suit before him were the same and that they sued and defended in the same capacity. In support of this submission attention was called to the fact that in the native court case Jole Anjorin had described himself as the head of his family, and to the evidence of Olupitan Ajaeaku. Mr. Solanke, who appeared for the plaintiffs, submitted to the trial judge that there was nothing in the native court judgment to show that the case was fought in a representative capacity; and that the identity of the land in dispute with that to which the native court suit relates was not proved.

The learned trial judge. decided in favour of the defendant’s plea of res judicata; he, therefore, dismissed the claim. In dealing with the submissions of Mr. Solanke he said:

“With regard to the first objection although the writ of summons did not say in what capacity the plaintiff sued or the defendant was sued, it is abundantly clear from the evidence in the case and also from thejudgmcm that each party represented his family in the 1950 action. In the course of his evidence Tiami-yu Anjorin (the plaintiff in that action) deposed as follows-

‘All the farms that are situated at the said Egan Emuren belonged to my family and no one else.” Again, Jole Anjorin, plaintiff’s 1st witness testified thus:-

“Plaintiff is my young brother of the same father.. We have many members of the family who owned the farm in question. I am now in the position of the head of the family. I can say much of this farm, I am the real per-son who asked the plaintiff to go and sue the defendant to court for this action, because he defendant has no portion of land or farm at Emmen and he did not allow my people to make use of the farm as they like.’

“Finally, Bakare Alashe, plaintiff’s 3rd witness who appeared on behalf of the community of Imota spoke of “Plaintiff’s family” and “defendants’ family” right through his evidence, thus confirming that the 1950 dispute was between the two families. With regard to the identity of the land, it is obvious from the combined evidence of Mr. Pitan and Tiamiyu Anjorin in this court that this has been amply proved.”

Thus, the learned trial judge found that the defendant in the native court case was defending on behalf of his family from the references in the evidence of Bakare Alashe in the native court bearing to the “defendant’s family” right. The defendant in the native court had not claimed to represent anybody but himself and, indeed, he was not sued in any but a personal capacity.

On the hearing of this appeal by the plaintiffs, the judgment was attacked on two main grounds, namely: that the parties and the Area Of Law in Suit No. 22/50 are different from the parties and Area Of Law in the present suit—J/3/61; and that the plan Exhibit A was inadmissible in evidence and had been wrongly admitted. The argument is that a plea of res judicata cannot be upheld unless it is shown that the parties, issues and Area Of Law in the case forming the foundation of the plea are identical with the parties, issues and Area Of Law in the later case in which the plea is raised; that the parties in the native court case (No. 22 of (1950) were different from those in the suit J/3/61 before Doherty, J. that in the native court suit the defendant was not sued in a representative capacity nor did he claim to defend in that rapacity; that the copy of proceedings (Exhibit D) made this clear and throughout the native court proceedings the defendant was referred to in the singular; that the incidental references to his family made by the plaintiff’s witness in the native court suit did not constitute the defendant the champion of his family in that case; and that his family was not privy to the case and the principle of the decision in Nana Ofori Atta II v. Nana Abu Bonsra [1958]  A.C. 95 did not apply; and the observations of Lord Red-cliffe on the principle of “standing by” in Nwakobi v. Nzekwu were referred to. Regarding the plan Exhibit A, it was submitted that since it was not countersigned by the Regional Director of Surveys as required by section 23 (1)(b)(ii) of the Survey Act it was inadmissible in evidence.

Mr. Alakija for the defendants, now the respondents, has, on the other hand, argued to the following effect: strict adherence to form should not be observed in dealing with native court cases; the substance of the claim should be given effect to; it is conceded that the plaintiff in the native court case (No. 20 of 1950) sued in a representative capacity; the representative capacity in which the defendant defended appears from the plaintiffs’ evidence in that case, that–

“Defendant is a native of Ode and as such he has no farm at the said place at all. All the fame that are situated at the said Egan Emuren belonged to my family and no one else. Some times ago the matter as to who was the owner of the lands over there had come before the community who decided that defendant and his family should be paying annual rent for us but they paid nothing”.

Mr. Alakija has argued that the present plaintiffs belong to one family and therefore any one of them suing or being sued must be taken to be representing his family since the land is family land; that since the defendant raised the title of his family to the land in the native court hearing, his family must be bound by the outcome; and that it must be assumed that a case of the importance of the native court case was known to the then defendant’s family, but they chose not to join in. Mr. Alakija conceded that the plan Exhibit A was wrongly admitted in evidence but he contended that the proper time to object to its admission was when it was tendered in evidence.

It is not in doubt that before the doctrine of estoppel per rem judicatam can operate it must be shown that the parties, issues, and Area Of Law were the same in the previous action as those in the action in which the plea is raised.

In the native court case the claim against the defendant was “to quit the plaintiff’s farm situate at Egan Emuren”, and it was complained that the defendant had, ten days before, “cleared a farm” on the land; this meant that the defendant brushed an area of the land in question on which he proposed to farm, and complains of the isolated act of an individual. Before the judgment in that case can bind the family of that defendant it must be shown that the family knew of the case and participated in it is such a way that they can truly be regarded as parties.

In the case of Ofori Atta II v. Bonara II, which both parties cited, them was a claim to an area of land the title. to which bad been the subject of previous litigation between the stool of Muromun and the Banka stool; the Banks stool won; Ofori Atta II, the plaintiff in. the later case, was the paramount. Chief of Akim Abuakwa, to whom the Muronam stool, the second plaintiff in the case, was subject; Bonara II, the representative of the stool of Adanse, asked that his master, the Banks stool, be joined as defendants; and this was done. The defendants denied the plaintiffs claim and pleaded the former judgment as estoppel; the plea was upheld against the stool of Muronam; in respect of its paramount Chief, Ofori Atta II, it was decided that he was also estopped from questioning a judgment obtained against a stool claiming under him, as the issue in the previous action was about the title itself to the land and he knew of that action and had a right to intervene but did not: (see 14 W.A.C.A. 149). It was established by evidence that the paramount chief was aware of the proceedings in the previous litigation and supported his subordinate stool unit, and on appeal to the West African Court of Appeal from the finding of estoppel against the paramount chief that court decided that if being cognizant of the proceedings he was “content to stand by and see his battle fought by somebody else in the same interest” to the defeat of his champion, he could not re-open the question of title to the land which had been determined in the former action; he was clearly estopped from so doing. On further appeal to the Privy Council (1958) A.C. 95, the Board was satisfied that Akim Abuakwa and Adansi were not parties to the former proceedings, but they undoubtedly knew of them and of the disputes that had been going on for years before.

In speaking upon the question how far there was an estoppel between persons who were not parties to previous litigation, the Board said:

“The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice of deciding an issue against him in his absence. But this general pile admits of two exceptions: one is that a person who is in privity with the parties, a “privy” as he is called, is bound equally with the parties, in which case he is estopped by res judicata: the other is that a person may have so acted as to preclude himself from challenging the judgment, in which case he is estopped by his conduct. Their Lordships propose in this case to consider first estoppel by conduct”.

Their Lordships were of opinion that the principle stated by Lord Penzance should be applied to the case; this principle was stated in Wyrcherley v. Andrews and is as follows:

“There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to reopen the case. That principle is founded on justice and common sense, and is acted upon. in courts of equity, where, if the pet sons interested are too numerous to be all made parties to the suit, one or two of the class are allowed to. represent them; and if it appears to the court that everything has been done bona fide in the interests of the parties seeking to disturb the arrangement, it will not allow the matter to be reopened”.

It is clear that this principle can only apply in cases where the party sought to be estopped know what was passing and was content to stand by and let someone else in the same interest champion his cause and fight his battle. As Lord Radcliffe observed in Amachuna Nwakobi and Others v. Eugene Nzekwu and Another [1964] 1 W.L.R.1019:

“the principle of ‘standing by,’ while certainly a valuable one for application when circumstances demand it, does need to be confined towns in which part-icipation in “the battle” is proved up to the hilt. Otherwise, the distinction between suits in which plaintiffs have chosen to sue a defendant individually, though a community title may be brought in question, and those suits in which they set out to and do challenge a community title as such will be in danger of being obscured; and even a measure of assistance to a defendant from other community members may give plaintiffs an advantage in all future litigation which, in fairness, there is no reason for them to enjoy.”

That observation is a valuable footnote to the principle of standing by stated in Wycherley’s case and applied in Ofori Atta’s case, and a reminder of the danger of extending it outside its scope to cases to which it does not properly apply.

On the face of the record the parties before the native court were not the same as before the High Court; the family of the defendant in the native court, who are now the plaintiffs in the High Court can, therefore, only be estopped by their conduct to standing by. It is perhaps possible to say that the plaintiff before the native court represented his family; the defendant on the other hand, did not claim to represent his family; there was no participation in the contest by his family, and there was nothing to show that his family was even aware of the proceedings. We do not agree that in the circumstances of this case it can be urged with good reason that the present plaintiffs had stood by during the native court case or had made the then defendant their champion so as to be estopped by their conduct from re-opening the matter.

For these reasons we think the plea of estoppel per rem judicatam should have been rejected.

Regarding the plan Exhibit A, Mr. Alakija for the Respondents concedes that it was wrongly admitted in evidence; his contention is that the objection should have been taken before the trial judge.

The prohibition against the admission of the plan in evidence is a statutory one; the plan was not countersigned by the Regional Director of Surveys and so is caught by section 23 (1)(b) of the Survey Act. It is the duty of all courts to give effect to legislation and the parties cannot by consent or acquiescence or failure to object nullify the effect of a statute. This court in Owonyin v. Omotosho [1961] All  N.L.R. Part II 304,308, called attention to the impropriety of relying on inadmissible evidence in arriving at a decision. It was there said, on the authority of  Jacker v. International Cable Co. Ltd. (1888) 5 T.L.R. 13:

“When matter has been improperly received in evidence in the Court below, even when no objection has been raised, it is the duty of the Court of Appeal to reject it and to decide the case on legal evidence.”

When that rule is applied to the case under examination there is no evidence of the extent of the area which was in issue in the native court case. In fact the plan was made after the native court case.

This appeal is allowed and it is ordered that the judgment of the High Court at Ijebu Ode dated the 7th June, 1962 in Suit No. J/3/1961 including the order as to costs be, and is hereby set aside, and that the suit be remitted to the High Court for hearing on the merits. The respondents shall pay the appellants as costs of this appeal the sum of fifty guineas, and twenty-five guineas as costs of the hearing in the court below of the plea of res judicata.

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Other Citation: (1964) LCN/1092(SC)

Habib Disu & Ors V. C. W Daniel-kalio (1964)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

In this appeal the defendants complain of the decision in the Lagos High Court Suit No. 147 of 1961 awarding the plaintiff damages for breach of contract.

In 1954 the plaintiff bought a piece of land from one Sadiku Adeniji, and entered into possession; he had a deed, and that was registered; it described the land and had a plan. A judgment given in 1960 made the plaintiff alive to the fact that the true owners were the Disu Labulo Family, and he made a contract to buy it afresh from the Family. He visited the land with the first defendant; he paid £850 down and undertook to pay the balance of £350 by the end of 1960; he was left in possession; on 21st December, 1960, he sent a cheque for £350 with a request for a conveyance.

The memorandum of the contract is as follows:

“HADJ HABIB DISU, SABITIYU ADAGUN, MUMUNI A. DISU, YUNUSA A. DISU.

Received from Mr G. W. Daniel-Kalio the sum of eight hundred and fifty pounds being part payment of four plots of land (150 x 200) erroneously bought from Mr Sadiku-Adeniji and now resold by us on behalf of Disu Labulo Family.

Balance of three hundred and fifty pounds to be paid ere the end of Dec., 1960.”

It is signed by the first, third and fourth, not by the second, of the persons named at the top of the Receipt (exh. B).

On the 23rd December, 1960, Mr Abayomi Disu, a solicitor, sent a letter to the plaintiff enclosing a cheque for £850 and beginning thus:

“I am instructed by my clients the Disu Labulo Family to forward to you a cheque for the sum of £850 which sum represents the deposit you paid for a piece of land at Obele.”

Paragraph 2 goes on to allege that at the beginning of December-

“it was agreed by both parties that if by the 15th December, 1960, the balance was not paid by you the whole negotiation would fall through.”

That was not the fact. Paragraph 3 alleges this:

“Moreover, you would observe that only four plots were bargained for by you, but it was later detected that you had made a misrepresentation and you were going to have six plots.”

What the plaintiff was going to have was the land he had bought in error from Adeniji; and that was known. The points in those two paragraphs were not pursued in the appeal.

To revert to the antecedents of the suit. The defendants returned the cheque for £350 in January; and they sold the land to a third person. In the course of the trial they put in a deed (exh. K) in which the four defendants are named as the vendors and which has this recital:

“And whereas at a family meeting held in December, 1958, the aforesaid Disu Labulo Family appointed the aforementioned Vendors the Family’s representatives duly competent and entitled to sign and execute conveyances in respect of the said Family’s land at Oju-Elegba Surulere.”

The Plaintiff’s claim for specific performance was defeated; Lambo, J. awarded him damages. The defendants have appealed on two grounds, of which the second reads thus-

“2.     The learned trial Judge erred in law in holding that the receipt tendered by the plaintiff sufficiently complies with section 4 of the Statute of Frauds requiring a note or memorandum.”

That plea was alleged in the court below. Lambo, J. in effect decided that there had been part performance; and this aspect of his decision was not controverted in the argument on appeal, which moved along these lines:

One line of the argument was that the land should have been described adequately but was not, in the Receipt. On the other hand it was conceded that the land was known. In the Court’s view it was sufficiently described by the plaintiff’s previous purchase from Sadiku-Adeniji, which identified it for both sides to the contract.

The other line of argument was that the second defendant was not among the signatories of the Receipt. The answer to that is the letter from the Family’s solicitor: it acknowledges the fact that the contract had been made on behalf of the Family, of which she is a member, in fact one of the four authorized to deal with the Family land; it does not repudiate the contract on the ground that she did not sign the Receipt.

On either line of argument the second ground fails. In addition the plaintiff has the benefit of part performance, which was not controverted in the appeal.

The plaintiff sued the four defendants “for themselves and on behalf of Disu Labulo Family”. Their Defence makes no objection to that. Paragraph 2 of the Defence states that

“The first, second, third, and fourth defendants admit that they are members and accredited representatives of the Disu Labulo Family beneficial owners of a vast area of land in Obele-Oniwala of which the land in dispute forms part.”

They defended the suit on that basis. But their learned counsel at the trial in his closing address made this point:

“Defendants are sued in a Representative capacity. No order of court approving defendants being sued as representatives of the family-submits action is not properly before the court, cites Adegbite v. Lawal, 12 WACA 398, 399.”

At the trial of that case the defendants, quite early in the trial, took the point that they could not be sued in a representative capacity without the authority of the others whom the plaintiffs wanted them to represent; and the trial judge made an order that they should represent the others. The relevant local rule (Rule 3 in Order 4 of the former Supreme Court (Civil Procedure) Rules) reads as follows:

“Where more persons than one have the same interest in one suit, one or more of such persons may with the approval of the court be authorised by the other persons interested to sue or to defend in such suit for the benefit or on behalf of all parties so interested.”

That differs from Rule 9 of the English Order 16; and the Court of Appeal pointed out that locally the authority must come from those interested in the suit before the trial court can authorise the named defendants to defend on their behalf too. One hopes to see the English rule adopted. But the above local provision was in force at the trial of the present suit.

Dealing with the point made in the closing address for the defendants, the learned trial judge wrote this in his judgment:

“The defendants were sued in a representative capacity and although it was contended on their behalf that plaintiff obtained no order of court before suing them as such, they themselves admitted in effect by paragraph 2 of Defence, that they were defending this action in that capacity. This point was not made an issue at the trial. Even if it was I would hold that it is the defendants who should apply for the approval of the court to defend in a representative capacity-vide Adegbite v. Lawa1,12 WACA 398.”

The defendants object in the first ground of appeal that –

“1. The learned trial judge erred in law in

“(i) holding that it was for the defendants and not the plaintiff to apply to the court for an order that the defendants be sued in a representative capacity, and

“(ii) that the defendants were properly before the court despite the fact that there was no order of court authorising them to appear in a representative capacity: this decision is contrary to the judgment of the Federal Supreme Court in WACA 32/1955 between  Amusa Gbadesere v. Aina Edu and others delivered by Foster Sutton F.C.J. on the 15th February, 1956.”

Part (i) of the ground of appeal is not in point: an order that the defendants be sued in a representative capacity could not be made without the authority of their Family, who, if asked for it by the plaintiff, would not have given it to help him. If the defendants had asked their Family for such authority, the prospects would have been better. In practice, when defendants are sued on their family’s behalf, it is they who, if so minded, obtain the family’s authority and apply to the court for approval. In this case the defendants did not apply for an order authorising them to appear in a representative capacity, and part (ii) of the first ground of appeal objects that they were not properly before the court, viz. no doubt, in that capacity. They cite Gbadesere v. Edu, in which the judgment said

“The appellant was sued in a representative capacity and it is perfectly clear that he had no authority so to appear. That being so, the learned trial judge erred in giving judgment against him. In these circumstances we have no alternative but to allow this appeal, but in doing so we desire to point out that this decision does not stop the respondents from bringing a fresh action if they are so advised.”

The defendants therefore argue that the judgment cannot stand, viz. no doubt, as a judgment binding on their Family.

The argument presupposes that the defendants had no authority to appear on behalf of the Family. Paragraph 2 of their Defence means that they thought they were competent so to appear: the point made by their learned counsel at the trial in his closing address, and repeated in their appeal, means that they were not competent: the question is, were they competent?

The solicitor’s letter recognises on the Family’s behalf that the first, third, and fourth defendants made a valid contract of sale on behalf of the Family, of which the second defendant is a member; the subsequent conveyance to a third person, which the defendants put in to bar an order for specific performance, is evidence that the four defendants have the authority of the Family to deal with the family land, or, at any rate, that they claim to have that authority; the plaintiff’s trump card in his suit is the solicitor’s letter.

Armed with it and with the Receipt, which is the memorandum of the contract, the plaintiff could have sued the three signatories of the Receipt: they represented the Family in making the contract, so they could have been sued as representing the Family for the enforcement of the contract. The plaintiff took the more cautious course of suing all the four whose names appear at the head of the Receipt as representing the Family.

There is a finding in the judgment that the second defendant was a party to this transaction, which warranted including her as a defendant. The defendants cannot in one breath say that they can validly sell family land, and in the next breath say that they cannot validly be sued in a case arising out of a valid sale; equally it would be odd if the Family were to say, after recognising the validity of the sale to the plaintiff by some of their members, that the plaintiff could not sue those members as representing the Family for repudiating the sale; but be it added that other members of the Family did not intervene either in the court below or in the appeal. The defendants were competent to defend on the family’s behalf, and there was no need for any fresh authority or any court order for them to do so. In the Court’s opinion, Adegbite v. Lawal and Gbadesere v. Edu differ on the facts and do not apply in the present case. The fast ground of appeal fails like the second, and the appeal will be dismissed.

It remains to add that learned counsel for the defendants also argued that there could be no judgment against them personally on the ground that they were sued in a representative capacity.

That is a novel point taken in the appeal and outside the true meaning of the first ground of appeal; it must therefore be disregarded. The defendants were sued ‘for themselves and on behalf of Disu Labulo Family’ according to the title of the suit in the record; the title stands, and the judgment must bear that title with its consequences.

For clearness’ sake this Order is made:

“That the appeal from the judgment of 18th December, 1961, in the Lagos High Court Suit No. LD/147/61 be hereby dismissed with costs of appeal assessed at thirty guineas, and that it be declared that the said judgment is against the defendants for themselves and on behalf of Disu Labulo Family.”

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Other Citation: (1964) LCN/1159(SC)

Francis Ibezi Enekebe V. Christina Enekebe (1964)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN JSC 

In this appeal the husband, who is the petitioner in Suit K/46/61 of the High Court of Northern Nigeria (Kana Division), complains that his petition was wrongly dismissed.

He and his wife married in May, 1938. They lived in Kano, but they did not get on very well. She left in December, 1942; and they have lived apart since. In his amended petition he alleged adultery, cruelty on 12th December, 1950, and persistent nagging.

The trial Judge (Bate J.) did not think the adultery was proved; he regarded the assault in December, 1950 as trivial; he found, however, that the wife had been guilty of cruelty before leaving Kano, but he dismissed the petition on the ground of culpable delay.

The learned Judge asked the husband about the delay, and his answers were:- ‘Cannot say why I have taken so long to bring this Petition except that I gave my wife a long time to repent; i.e ., to change her vindictive habit. When she committed adultery, I gave up all hope of her ever repenting; i.e., in 1947 or 1948.’

After she left in December, 1942, he was not without company: he sent money to his brother in 1943 for another woman, and in 1949 he went home to Nkpor (near Onitsha) and paid for another woman; he lived with them both, and had children from each; he wanted to marry them, he said, by the Ibo native law and custom of Nkpor. In addressing the Court, his learned counsel dealt with delay; he mentioned the petitioners evidence, and cited Latey on Divorce (14th ed.) at p. 158 (paragraph 283-Delay must be culpable). There Binney v. Binney [1936] P. 178, is the latest of the cases cited. On discretion he cited Latey, p. 163, paragraph 296, which mentions Blunt v. Blunt [1943] A.C. 5 17.

The notes of counsels argument do not indicate that he asked the Judge to have regard to the principles in Blunt v. Blunt as a counterweight to culpable delay. A petitioner who is guilty of adultery must plead for the exercise of discretion in his favour; presumably it was in this connection that counsel cited paragraph 296 in Latey. Dealing with the delay in the presenting of the petition, Bate J. found it was culpable, and dismissed the petition.

The grounds of appeal complain that he misapplied the decision in Binney v. Binney, and that in dismissing the petition on the ground of undue delay he failed to direct his mind to the obvious breakdown of the marriage and the conditions of the portions [probably a mistake for parties] at the date of presentation of the appeal [probably a mistake for petition].

The argument is that in this case there were other factors-two women whom the husband would like to marry and make his union with them regular, and although their children would not be legitimised, it would look nicer for them too. The marriage had broken down and there was no prospect of reconciliation; and the balance in the interest of the community was to dissolve it. The principles in Blunt v. Blunt applied in spite of the delay. That was the argument.

The argument for the wife is that the learned Judge had regard to whatever was raised in evidence, and even if he did not mention the breakdown of the marriage, he no doubt had it in mind; that the Judge gave his reasons and his exercise of discretion should not be tampered with.

The judgement notes that for thirteen years or more after the husband had known of his wifes adultery and gave up hope of her giving up her vindictive habits, he did not petition for divorce, although he had already taken another woman after his wife left Kano in 1942, and another in 1949, and had children by them; that he could have petitioned for adultery and earlier still for cruelty, but did not till 1961; and the judgement goes on- ‘Although the petitioners wish to marry the women named in the discretion statement is no doubt laudable, his failure to take any steps for so many years after he claims to have heard of his wifes adultery and after the acts of cruelty amounts to acquiescence. His delay is culpable delay.

I am not without sympathy for the petitioner but, as was said in Binney v. Binney, personal sympathies are not a proper ground for exercising judicial discretion. I hesitate to debar the petitioner from relief but his delay is unexplained, unexcused and so long that, if I do not exercise my discretion to debar the petitioner in this case, I find it difficult to imagine circumstances where I could fairly and consistently do so.’

The relevant provision in the Matrimonial Causes Act, 1950, is in Section 4(2): ‘Provided that the court shall not be bound to pronounce a decree of divorce and may dismiss the petition if it finds that the petitioner has during the marriage been guilty of adultery or if, in the opinion of the court, the petitioner has been guilty- (i) of unreasonable delay in presenting or prosecuting the petition.’

That is intended to make a spouse diligent in presenting his or her petition, for it is in the public interest that he should be diligent; and a husband who is late in petitioning may well give ground for saying that he has acquiesced in the misconduct of his wife or is indifferent to the loss of her company. The present appellant was certainly indifferent: he had other company. It is true that in spite of unreasonable delay, the court may grant a divorce having regard to the considerations mentioned in Blunt v. Blunt, [ 1943] A.C. 517, which are, at p.525-

‘(a) the position and interest of any children of the marriage;

(b) the interest of the party with whom the petitioner has been guilty of misconduct, with special regard to the prospect of their future marriage;

(c) the question whether, if the marriage is not dissolved, there is a prospect of reconciliation between husband wife; and

(d) the interest of the petitioner, and, in particular, the interest that the petitioner should be able to remarry and live respectably.’

After giving those considerations (which had been stated in Wilson v. Wilson [1920] P. 20) Lord Simon went on to say in Blunt v. Blunt- ‘To these four considerations I would add a fifth of a more general character, which must, indeed, be regarded as of primary importance, namely, the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down.’

There was no question of delay in Blunt v. Blunt; there was (a) in Binney v. Binney (above), (b) in Purton v. Purton [1957] 1 W.L.R. 216, and (c) in England v. England [1961] 1 W.L.R. 608. From case (b) (at p. 218) it appears that cases of culpable delay in which a divorce is granted are rare; from cases (b) and (c) it appears that there may be reasons which, the delay notwithstanding, may make it desirable, in the light of Blunt v. Blunt, to exercise the discretion in favour of granting a divorce. One of the reasons advanced is that the marriage has broken down.

So it did in Binney v. Binney and the other two cases; so it does generally in any case of culpable delay; and if that could serve as a good reason to outweigh the delay, then delay would cease to be a bar, and the statutory provision that divorce may be refused on the ground of unreasonable delay would become a dead letter.

Although Bate, J. did not mention the breakdown of the marriage specifically when dealing with delay, it was doubtless present to his mind, as appears from perusal of his judgement; and it would be rash to assume that a careful judge of his experience failed to take it into account because towards the end of a long judgement he did not specifically mention it, particularly as he said he was in sympathy with the petitioner: (cf. Blunt v. Blunt, at bottom of p. 528).

The other reason advanced is that the husband would like to regularise his union with the two women living with him by marriage under native law and custom, and that it would look nice for the children too. The children would derive no advantage; that was conceded and was not pressed. As to the wives, whose interest was pressed, they and the petitioner have been content to live together as they have d

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Other Citation: (1964) LCN/1158(SC)

Adebowale Alonge V The Attorney General, Western Nigeria (1964)

LawGlobal-Hub Lead Judgment Report

BRETT JSC

The appellant was convicted of the murder of a woman named Jose Akintade, who was the wife of Akintade Omoye. It would appear that the appellant was in love with Jose and that Jose’s husband had discovered that the two had been committing adultery. The appellant was taxed with this and there was a threat of an action in court. According to the appellant, he was made to swear an oath that he had not committed adultery with Jose and after swearing it he became ill.

On the evening of the 8th April, 1963, Jose and three other women were returning to Akure from their farm. They were walking in single file and Jose was at the back. They met the appellant who was coming from the direction of Akure and he greeted the women in front. Soon after this they heard shouts and on looking back saw the appellant attacking Jose with a matchet. Her body was found later lying on the ground and the cause of death was a deep laceration on the back of the neck which nearly separated the head from the neck.

The appellant made a statement under caution in which he said that it had been certain that he himself would die and that he determined to kill Jose before he died; that he followed her and killed her with a matchet. In his evidence at the trial he said that he met Jose on the road on the day she died, that he said nothing to her but she said to him “You’ve had it”, by which he knew she was referring to his illness.

He was annoyed and so attacked her with his matchet. It was submitted in the court of trial that these words constituted sufficient provocation to reduce the offence from murder to manslaughter. The Judge rejected this submission and quoted from the judgment of Ridley, J. in R. v. Mason 8 Cr. App. R. 121, where it was said that “mere words of provocation or abuse could not…. have the effect of reducing the crime from murder to manslaughter’.

It is now settled that this statement does not represent the law under section 220 of the Criminal Code of Western Nigeria (section 283 in the Federal Code) which expressly defines provocation as including any wrongful act or insult; but we agree with the learned trial Judge that the words used in this case were not such as to constitute sufficient provocation to reduce the crime from murder to manslaughter. In these circumstances, the appeal was dismissed. 

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Other Citation: (1964) LCN/1156(SC)

Lawani Adogan V. Afuwape Aina (1964)

LawGlobal-Hub Lead Judgment Report

BRETT JSC 

This is an appeal against the decision of Madarikan, J., in the High Court of Western Nigeria, in which he struck out an appeal brought by the defendant from the judgment of the Ikeja Grade B Customary Court given on appeal from the Ikorodu Grade C Customary Court. Section 48(2) (b) of the Customary Courts Law provides that-

“Any party aggrieved by a decision or order of a customary court of appeal..in –

(b) a civil cause or matter in which the Area Of Law is of the value of fifty pounds or upwards, may, within thirty days of the decision or order, appeal to the High Court”, and Madarikan, J., held that in this case the Area Of Law was not of the value of fifty pounds or upwards.

If the form of the plaintiff’s claim is conclusive as to the Area Of Law of the cause, this view is perfectly correct.

The claim read as follows-

“CLAIM: The plaintiff claims on behalf of the Eyita family, Ikorodu, refund of £35 seven years rent collected by the defendants on Onori stream in the name of Eyita family from the Ikorodu Ceramic Industry, Ikorodu, the said amount which the defendants had refused to share with the rest members of the entire family, and also claims production of the old document for renewal.”

The claim was contested, however, on the ground, to quote from the judgment of the court of trial, that “the plaintiff’s branch of the family has no share in the Onori stream”, and that at once put the title to the stream in issue.

Any court, e.g. a magistrate’s court, which is precluded from exercising original jurisdiction to determine an issue as to the title to land would have had to decline jurisdiction as soon as the issue was raised: Oluwo v. Adebowale (1959) 4 F.C.S. 143. The court of trial accepted the defendants’ claim as to title and dismissed the case.

The judgment of the customary court of appeal treated the plaintiff’s claim as depending entirely on the finding as to the title to the stream, and after finding that he had established that his branch of the family had an interest in the stream, allowed his appeal on that ground.

We are satisfied, on the evidence, that if the title to the stream may properly be regarded as the Area Of Law of the cause the value to the appellants of the interest in the Area Of Law which they stand to lose is more than fifty pounds, and it is the value to the appellants that is the test: see Lakhamshi v. Furniture Workshop [1954] A.C. 80.

The decision of the Court of Appeal in Studham v. Stainbridge [18951 1 Q.B. 870 is authority for looking at the substance rather than the form in deciding what the Area Of Law of proceedings is, and in our view a further test is to consider what a judgment will be held to have decided for the purpose of a plea of estoppel. Section 53 of the Evidence Act provides that-

“Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based-”,

and although section 2 contains no definition of ‘fact directly in issue’ it defines ‘fact in issue’ as including

“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”.

In our view, the judgment of the customary court of appeal in the present case would be conclusive evidence as against the defendants in any future dispute between the parties as to the title to the stream, and we hold that the Area Of Law of the cause included the extent of the defendants’ interest in the stream and was therefore of a value exceeding fifty pounds.

It is agreed that if the Area Of Law of the cause was of a value exceeding £50 it was outside the jurisdiction of a Grade C Customary Court, and nothing would be gained by remitting the appeal to the High Court for disposal. The order of this Court will be-

The judgment of the High Court of Western Nigeria in appeal No. HK/13 CA/61, Lawani Adogan & Anor versus Afuwape Aina Bale, and the judgments of the Ikorodu Grade C Customary Court and the Ikeja Grade B Customary Court in the same cause are set aside and it is ordered that the cause be struck out.

The respondent shall pay to the appellants costs of the proceedings in the High Court assessed at twenty guineas and costs of this appeal assessed at sixty guineas and if the costs awarded to the respondent in the High Court have been paid to him they shall be refunded.

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Other Citation: (1964) LCN/1154(SC)

Ibeakanmo Ugwajiofo & Anor V. Monago Onyekagbu (1964)

LawGlobal-Hub Lead Judgment Report

BRETT JSC

In this case the plaintiff, who described himself as suing on behalf of himself and of Isieke, Agbaobu, brought an action against the two defendants personally, claiming a declaration of title to a piece of land called Alahuhu, and £15 damages for trespass. He obtained judgment on both parts of his claim, and the defendants have appealed.

The essential question is whether the land belongs to the people of Agbaobu (otherwise spelt Abobu or Aborbor) or to the defendants’ community, which is called Amuraw, Amuror or Amuro.

The land is bounded on the East by a stream called Orieka, and on the West by another stream called Iyiachara, and it is common ground that Agbaobu own the land West of the Iyiachara stream and Amuraw own the land East of Orieka stream, but whereas the plaintiffs say that the Orieka stream is the boundary between their land and that of Amuraw the defendants say that in the area in question the boundary is the Iyiachara stream.

The plaintiffs do not claim to be in occupation of the land themselves, but say that it is occupied by a number of tenants from Aro who were put there by them, and pay tax through them. They called three of these tenants as witnesses, who supported their version of the facts. The defendants say that the Aro tenants were put there by them, but they called none of them to support their version. This was certainly evidence which would have warranted the Judge’s findings of fact, if he had accepted and relied on it.

However, while the Judge referred to the evidence of the Aro tenants in his judgment and said in general terms that he accepted the evidence adduced by the plaintiffs as being substantially true, he made it clear that in finding in favour of the plaintiffs he was relying primarily on an inference drawn, in accordance with section 45 of the Evidence Ordinance, from the decision given in a number of previous actions concerning land to the North and South of Alahuhu, and here he misdirected himself. He was of the opinion that five of the cases of which the records were produced established between them that both to the North and to the South of Alahuhu the boundary between Agbaobu and Amuraw was the Orieka stream, but in fact only two of the cases, Exhibits E and F, involved representatives of Amuraw, and they were both concerned with the land to the South. The confusion probably arose from the fact that the plaintiffs call the land to the South Okwachiricha and the land to the North Okwachara, which may have misled the Judge into thinking that the land concerned in Exhibit F was the land to the North.

The misdirection would be ground for ordering a retrial, but the defendants submit that the matter is concluded in their favour by the decision in another case, produced as Exhibit B, which they pleaded as constituting res judicata, and to which the Judge did not refer in his judgment. In that case the present plaintiffs sued the present defendants in the Otanzu Native Court for a declaration of title to the land now in dispute. They lost in the Native Court and on appeal to the District Officer and to the Resident, and later they applied to the Governor for leave to appeal out of time. On the 13th January, 1956, the Deputy Governor refused their application, but they made a fresh application, and on the 9th May, 1956, the Deputy Governor granted leave to appeal out of time, allowed the appeal and ordered a rehearing de novo.

It is submitted on behalf of the defendants that after the first application for leave to appeal out of time had been refused the Governor was functus officio, and that his Deputy no longer had power to grant a further application, but we are unable to accept this submission. An order refusing an extension of time within which to appeal is not a decision on the merits, and we do not consider that it constitutes in law an absolute bar to a further application.

The Deputy Governor had a discretion in the matter with which we cannot interfere, and we hold that he acted within his legal powers. It follows that in the present case the trial Judge was right in not giving effect to the plea of res judicata, and the case must go back for retrial.

The order of the Court will be that the judgment of the High Court of Eastern Nigeria in suit No. 0178/1956 Monago Onyekagbu versus Ibeakanma Ugwajiofo and Another is set aside, and it is ordered that the suit be retried before the High Court, each party being at liberty, with the leave of the High Court, to amend his pleadings.

The appellants are awarded costs of the appeal assessed at 100 guineas. If the costs awarded to the plaintiff in the High Court have been paid they are to be refunded, and the costs of the former trial shall await the event of the retrial.

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Other Citation: (1964) LCN/1153(SC)

Ezekiel Akinsola Oladimeji V. The Queen (1964)

LawGlobal-Hub Lead Judgment Report

BRETT JSC 

The appellant was convicted in the High Court of Western Nigeria on a charge of having, on the 5th July, 1962, murdered a woman or girl named Ibirinlade Falana, and Mr J. A. Cole, who appeared on his behalf in this Court, did not submit that there were any grounds for setting aside the conviction.

He submitted, however, that on the evidence before him the trial judge ought to have been of the opinion that at the time of committing the offence the appellant had not attained the age of seventeen years, and that if the judge had formed that opinion section 21 (7) of the Constitution of the Federation, 1960 (section 22(7) of the Constitution of 1963), would have required him to order the detention of the appellant during Her Majesty’s pleasure, in accordance with section 257(2) of the Criminal Code of Western Nigeria, instead of passing sentence of death in accordance with section 257( 1).

Both section 257(2) of the Criminal Code and section 368(3) of the Criminal Procedure Ordinance lay down that where a conviction for murder is recorded against a person who in the opinion of the Court has not attained the age of seventeen years the offender shall not be sentenced to death, but shall be ordered to be detained during pleasure. Section 21 (7) of the Constitution of 1960 lays down that ‘no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time when the offence was committed’.

In R. v. Bangaza (1960) 5 F.S.C. I, this Court expressed the view that for the purpose of the Criminal Procedure Ordinance the material date was the date on which the conviction was recorded, but the constitutional point was not raised in that case, and the dictum does not apply in the present case. Mr Coles submission is that the words ‘the penalty in force’ in section 21(7) of the Constitution should be treated as equivalent to ‘the penalty to which the offender was liable’, and this is a novel and important point.

It can only arise, however, if on the facts the judge ought to have been of the opinion that the appellant had not attained the age of seventeen years at the time of committing the offence. Section 208 of the Criminal Procedure Ordinance empowers the Court to make due inquiry as to the age of any person who is before it, and goes on to provide that ‘an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of that person shall for the purposes of this Ordinance be deemed to be the true age of that person’.

To the extent of any inconsistency between this section and the Constitution, the Constitution must prevail, so that if Mr Coles submission is right, the opinion of the Court of trial cannot be conclusive for the purpose of deciding whether or not a sentence of death should be imposed, but in the present case the trial judge, quite understandably, did not find it necessary to record any presumption or declaration as to the age of the appellant, since the constitutional point had not been raised before him.

The only evidence in the High Court as to the appellants age was that of the appellants father, who said in reply to a question put by the judge-‘Both the deceased and the accused are of the same age group.

The deceased is about eighteen years of age.’ In view of what this Court said in R. v. Bangaza, this was sufficient to warrant the passing of a sentence of death, unless the Constitution precludes it, and no criticism attaches to the judge for not inquiring further.

When the appeal was first argued before this Court, Mr. Cole submitted that that single piece of evidence was enough to entitle the Court to say that the trial judge ought to have been of the opinion that the appellant had not attained the age of seventeen years at the time of the offence, which was about a year before the trial, but we were unable to agree, and we were of the view that at the highest there could be said to be a question deserving further examination.

In providing that the Court itself may make due inquiry as to the age of a person who is before it, the Criminal Procedure Ordinance appears to remove the question from the category of those on which there is a true burden of proof in any sense of the phrase.

That being so, this Court did not consider this a case for the calling of evidence under paragraph (b) or (c) of section 33 of the Federal Supreme Court Act, and in fact neither the appellant nor the respondent invited the Court to receive further evidence; indeed Mr Cole submitted with all the force he could that the Court ought not to consider anything but the evidence given by the appellants father in the High Court.

The Court decided to treat the question as one involving scientific or local investigation which could not conveniently be conducted before the Court, and referred it for inquiry and report to Mr Justice Fatayi Williams, sitting as a special commissioner appointed by the Court, under section 33(d) of the Act.

The order of the Court directed that evidence was to be taken from certain of the appellants near relatives and from the prison doctor, but expressly said that the doctor was not to examine the appellant with a view to determining his age unless the appellant consented, or in the manner provided by the Prisons Regulations.

The special commissioner sat on the 8th and 13th February, 1964, and the appellant was present and was represented by counsel on both days. The father and mother of the appellant stated on oath that his age in July, 1962, was sixteen or about sixteen; his aunt said that he was aged sixteen in February, 1964. Dr J. B. Azinge, a medical practitioner attached to the General Hospital, Benin, whose opinion the special commissioner thought reliable, said that after examining the appellant and taking X-ray photographs of him he had formed the opinion that in February, 1964, he was about twenty-five years of age; he

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Other Citation: (1964) LCN/1151(SC)

Paul Eledan V. The State (1964)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN JSC

On the 26th March, at the hearing of this appeal, the Court dismissed it and will now give the reasons for the dismissal.

The charge is that the appellant murdered one Iwagu Eledan on 4th June, 1962, at Mbiri near Agbor in the Benin Judicial Division. She was his wife. They had married, he said in his statement to the Police on 5th June, 1962, twelve years and had children, and she was pregnant at the time he killed her; she had been neglecting him and was disrespectful of late; he thought she was pregnant by another man; he called her in her sleep and as she woke up, he matcheted her to death.

In this appeal his act of killing her was not denied, neither was it suggested that there was any circumstance of mitigation: the submission was that he was not fit to plead and take his trial, and should not have been tried without compliance with the provisions of section 223 of the Criminal Procedure Act; and the decision of the Court in R. v. Ogor [1961] All N.L.R., 70, was relied upon.

The judgment in Ogor discusses section 223 at length. In that case the doctor certified in July, 1960 that Ogor was mentally abnormal in a state of semi-stupor and was unfit to plead; the certificate was shown to the trial Judge in October, and he wrote in his notes that the question arose whether he should call for a medical report on Ogor’s fitness to stand his trial. Counsel for Ogor told the Judge he was satisfied that Ogor was fit to stand his trial-he had given proper and rational instructions; and in answer to the Judge Ogor said he knew he was charged with murder and had understood the proceedings to date.

The Judge wrote a note that he was satisfied the accused was capable of understanding the proceedings and making his defence; and the trial proceeded. In the appeal from conviction, this Court held that when the presumption of the sanity of an accused person was displaced or put in doubt by evidence-which the doctor’s certificate was-it was necessary to have evidence, be it in the shape of a medical certificate, that the accused had recovered and become fit to stand his trial; but there was no such evidence and the trial should not have continued.

What counsel for Ogor said from the bar was not evidence to resolve the doubt on Ogor’s sanity, but apparently it was treated as evidence by the trial Judge. Ogor gave evidence at his trial, the Judge formed the impression that his mind was “dangerously balanced “; he should not have been tried, for s. 223(1) provides that-

“When a judge holding a trial or a magistrate holding a trial or inquiry has reason to suspect that the accused is of unsound mind and consequently incapable of making his defence the judge, jury or magistrate, as the case may be, shall in the first instance investigate the fact of such unsoundness of mind.”

We stress the words “has reason to suspect.”

The appellant in the present case was brought up before Peter Thomas, J. on 5th December, 1963. He had been under medical observation for a long time, and the doctor certified that he was fit to take his trial. He had no counsel on the 5th; on the 6th he had; and his counsel stated that he was unable to receive any coherent instructions from the appellant despite several attempts, and was of opinion that he was unfit to plead; whereupon counsel for the prosecution drew attention to the doctor’s certificate of 30th November, 1963, that he was mentally fit. The note continues to say – it is not clear from the transcript whether it is based on a statement of counsel or on the Judge’s observation-that the accused had twice interrupted the proceedings since he was called up. Someone was sworn to interpret, the charge was read, the plea was not guilty, and the trial was adjourned to the 9th, to enable counsel to receive further instructions; and on the 9th witnesses were called by the prosecution.

First, the little daughter; she was cross-examined on whether she was awake and how she could have seen the deed. Second, the appellant’s brother; he was cross-examined on the number of wives the appellant had had and why they left him, and whether there was any other house between that of the appellant and where the voice of the appellant came from which he heard when he went to the appellant’s house upon the little girl’s report. In addition the learned Judge asked him whether the appellant had ever acted abnormally, and he said no. The next witness was on the identification of the corpse to the doctor; he was not cross-examined. Then came a police witness who tendered the pathologist’s report and the appellant’s statement; he was asked in cross-examination whether he found it hard to record the statement, and he said no. Finally the Sessions Clerk produced the doctor’s deposition and a gazette on his having left.

That closed the prosecution case; the next note is –

“The accused states that he does not want to testify after getting into the witness box and that he would make a statement not on oath.

He then left the witness box and proceeded to make the following statement under examination.”

It is hard to say whether anything in it is relevant to the charge. Counsel for the defence submitted that it was abundantly clear from the demeanour of the accused at the trial and his incoherent statement that he was mental. After reviewing the evidence for the prosecution, the judgment under appeal goes on to say-

“The accused was represented by counsel and the Court then explained to him that there were three courses open to him and that it was up to him to make his choice. The accused then said that he was going to testify on oath. Just as he was about to be sworn, he changed his mind and said that he preferred to make a statement from the dock. He was allowed to leave the witness box and he then made a statement from the dock and that concluded the trial.”

Lower down the judgment notes that the statement from the dock was unintelligible and incoherent; it adverts to the defence of insanity and rejects it, and goes on thus-

“It is my considered opinion that he is quite sane and was just playacting when making his defence. At this distance of time, he finds it difficult to justify his action on the early morning of the 5th June, hence his simulation at the trial.”

He was convicted; that he killed his wife in circumstances amounting to murder was not disputed; the submission in his appeal was that he should not have been tried at all without an investigation having first been made by the trial Judge on whether he was of sound mind-or rather, on whether he was not of unsound mind and consequently incapable of making his defence. Attention was drawn to what learned counsel for the appellant told the trial court on the 6th December, 1963 (the first day of his appearance) and to the unintelligible statement made by the appellant from the dock. The argument was that the trial Judge should have taken the initiative of investigating the ability of the appellant to stand his trial in the circumstances and erred in not doing so.

It is needless to repeat what was said in R. v. Ogor; but the facts here differ. Not only is there a presumption of sanity: there was a medical certificate less than a week old before the trial court that the appellant was mentally fit; that court had no reason to suspect that his mind was unsound.

On the evidence of the doctor he was fit to stand his trial; and the learned Judge did not allow himself to be carried away by the statement of counsel for the defence on the 6th December, that he could not get any rational instructions from the appellant. He adjourned to the 9th to enable him to get further instructions; what they were one does not know, but from the trend of the cross-examination they appear to have been sensible.

It is of the highest significance that the appellant at first thought of testifying on oath and then changed his mind. The learned Judge explained to him the choice he had; he obviously made a choice, for he changed his mind from a course which would have made him in conscience bound to be truthful and in law liable to cross-examination; he elected a course which absolved him from that obligation and that liability. That made it clear that he was able to follow the distinction between the implications of sworn evidence and those of an unsworn statement, and

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Other Citation: (1964) LCN/1149(SC)