Agnes Emecheta V. A.u. Ogueri & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A. 

The appellant as plaintiff took out this action against the defendants (now respondents) jointly and severally, at the Aba High Court. The claims of the plaintiff as contained in paragraph 18 of the Statement of Claim were as follows:-

“(a) A declaration that the purported sale of the property registered as 84/84/626 Enugu (now Owerri) by the 2nd defendant to the 1st defendant by public auction is null and void.

(b) An injunction restraining the 1st defendant and/or his agents from ejecting the plaintiff from her residence at No. 26 Okigwe Road, Aba part of the property registered as 84/84/626.”

Pleadings were ordered, filed and duly exchanged by the parties to the suit. At the hearing, the plaintiff who gave evidence, tendered some documents and called one witness. The defendants, also, gave evidence at the hearing and tendered some documents. After hearing the parties and their counsel, Jonah Johnson J., in a reserved judgment delivered on 22nd October, 1991 dismissed the suit with costs. Dissatisfied with the judgment, the Plaintiff, now Appellant, has appealed to this Court. The Further amended Notice of Appeal contains eight grounds. They read without their particulars as follows:-

“GROUND ONE ERROR IN LAW

The learned trial Judge erred in law when he held that the Auctioneer’s Notice as prescribed by Auctioneer’s Law was neither necessary nor a condition precedent to the sale of a Mortgaged Property and thus held that the sale to the 1st defendant of property registered as 84/84/626 Enugu (now Owerri) by the 2nd defendant without adequate notice by the Auctioneer was a valid sale.

GROUND TWO ERROR IN LAW

The learned trial Judge erred in law when he concluded that Exhibit ‘C’ was of no legal significance and thus could not confer locus standi on the plaintiff when the legal significance or authenticity of Exhibit “C’ was never in issue before the court as per the pleadings filed by the parties.

GROUND THREE MISDIRECTION

The learned trial judge misdirected himself as to the facts of this case when he held that he was satisfied following evidence before him that the Plaintiff/Appellant withdrew from the 2nd defendant the sum of N71,559.00 being balance of the proceeds of sale of the mortgaged property, when no such evidence was led by any of the parties before the court.

GROUND FOUR ERROR IN LAW

The learned trial Judge erred in law when he held that the property Plot 232 Fuel Plantation Layout G.R.A. Aba i.e. property No. 84/84/626 had not been partitioned and thus was still intact and in existence in its original form.

GROUND FIVE ERROR IN LAW

The learned trial Judge erred in law when he held that the plaintiff had no locus standi to prosecute the case.

GROUND SIX MISDIRECTION

The learned trial Judge misdirected himself, which misdirection led to a miscarriage of justice when he held:

“Her denial that she collected the money from the sale had been punctured by the fact that there is no evidence before the court that the N71,559.00 left by the 2nd defendant is at present lodged with any bank to the credit of the estate of the deceased.”

GROUND SEVEN MISDIRECTION

The learned trial Judge misdirected himself, which misdirection occasioned a miscarriage of justice when he said: “The evidence before the court showed that the WILL, Exhibit ‘C’ had not been admitted to probate at the time of this action.”

GROUND EIGHT

Judgment is against weight of evidence properly admitted at the trial”

From the grounds of appeal the Appellant raised six issues arising for determination in his appeal. They read:-

“(a) Whether a sale by auction conducted without compliance with the required notices under Auctioneer’s Law is valid.

(b) Whether the proof and admission to probate of the Will, Exhibit ‘C’ was an issue before the court for adjudication. Even if yes, was the invalidation of the Will proper?

(c) Whether the Appellant lacks locus standi to prosecute the case.

(d) Whether the Respondents proved the alleged appellant’s withdrawal of the sum of N71,559.00 from the 2nd Respondent.

(e) Whether the judgment of court is supported by evidence before it.

(f) Whether Plot 232 Fuel Plantation Layout, G.R.A. Aba registered as property No. 84/84/626 was not partitioned”

The first respondent identified four issues for determination in the appeal. They read as follows:

“(i) Was the sale of the property in dispute by the second defendant/respondent valid?

(ii) Did the plaintiff/appellant have the capacity to maintain the suit?

(iii) Is the Plaintiff/Appellant estopped by her own conduct from challenging the sale of the property in dispute?

(iv) Is the judgment of the court supported by the evidence before it?”

The second respondent raised five issues for determination. They read as follows:-

“(a) Was non-compliance with the provisions of the Auctioneers Law, an issue on the pleadings joined by the parties and if so what is the effect of such non-compliance?

(b) Was the learned trial Judge correct in the conclusion he arrived at that Exhibit C was insufficient to confer locus standi on the appellant in the absence of legally admissible proof that it had been admitted to probate?

(c) Did the conclusion of the learned trial Judge that the plaintiff withdrew the balance of the proceeds of the auction sale amount to a misdirection which has occasioned a miscarriage of justice?

(d) Was the Lower Court correct in its conclusion that the property in dispute had not been partitioned?

(e) Is the judgment of the Lower Court consistent with the weight of evidence?”

It seems to me that the four issues formulated at page 3 of the first respondent’s brief are more succinct and subsume and encompass all the grounds of appeal in this case. I shall therefore treat this appeal in accordance with the issues raised by the first respondent.

Issue No. (1) in the first Respondent’s amended brief is one and the same thing as issue No. (a) or 3a in the Appellant’s amended brief and issue No. (a) in the second Respondent’s amended brief of argument.

For the Appellant it was submitted by the learned Senior Advocate of Nigeria that the learned trial Judge confused the Mortgagee’s Notice of intention to sell mortgaged property with the Auctioneer’s Notice of Sale. It was submitted that the learned trial Judge, instead of applying the Auctioneer’s Law which was profusely cited before him to determine the fate of the newspaper advertisement which is an Auctioneer’s Notice of sale went ahead to consider the newspaper advertisement under the concept of the Conveyancing Act 1881. It was contended that the Auctioneer’s functions are provided for in the Auctioneer’s Law applicable to Imo State (now Abia State) and whether any act done was valid or not would be determined by the provisions of that Law. It was also contended that no single provision of that Law which was duly referred to by counsel during address was considered in the judgment. Reference was made to the cases of Obikoya v. Governor of Lagos State (1987) 1 NWLR (Pt 50) 385; Duru-Ugwo v. Union Bank (unreported) FCA/E/176/82 delivered on 26/11/86; Oseni v. A.I.I.C. Ltd. (1985) 3 NWLR (Pt. 11) 229; Sanusi v. Daniel & Anor. (1956) 1 F.S.C. 93.(1956) SCNLR 288.

For the first respondent it was submitted that at pages 52 lines 21 – 23; 53 lines 1-3 of the record of proceedings, the learned trial judge set out six issues not in dispute between the parties. Two of these are the indebtedness of the deceased to the second defendant/respondent and the fact of the legal mortgage of the property by the deceased to the second respondent. It is the contention of the first Respondent that the relationship between the Mortgagor and the Mortgagee is governed by the Conveyancing Act, 1881 held to be a Statute of general application in Nigeria – Sanusi v. Daniel (1956) (1956) SCNLR 288 F.S.C 93; Lawal & Ors. v. Younan & Ors. (1961) 1 All NLR. (Pt. 2) 245 at 254-257. It was submitted that at page 6 of the Brief of Legal Argument of the Appellant, an attempt had been made to distinguish the case of Sanusi v. Daniel supra on the ground that it dealt with the Money lender’s Act. It was submitted that no attempt had been made by the Appellant to establish that a case of mortgage under the Conveyancing Act, 1881 cannot be so treated as the learned trial Judge has done in this case. It was contended that that omission by the appellant shows the Auctioneer’s Law is not all encompassing in its application and effect. It was submitted that the Conveyancing Act, 1881 is to be read subject to the modification contained in the Deed of Legal Mortgage – Exhibit ‘E’.

Issue No. (a) in the Second Respondent’s brief is one and the same thing with issue No. (a) in the Appellant’s brief. It was submitted for the 2nd Respondent that the argument of the Appellant simply put is that there was non-compliance with section 19 of the Auctioneers Law (cap 12) Laws of Eastern Nigeria applicable to Abia State and as such the sale to the 2nd Respondent was invalid. It was argued that to properly appreciate the soundness or other wise of this argument, it is necessary to refer to the pleadings of the applicant contained at pages 3-7 of the records. It was contended that it is not difficult to appreciate that the case of the Appellant was not based on alleged non-compliance with the provisions of the Auctioneers Law but on the fact of the non-existence of the property at the time of the auction. Reference was made to pages 6-7 of the records. It was submitted that there is no doubt that it was during the addresses of counsel that learned counsel for the appellant raised the issue now canvassed on appeal. It was argued that it is not enough for counsel for the appellant to raise the matter at address stage. It was stated that section 19 of the Auctioneers Law relied upon by the appellant stipulates that no sale of any land shall take place until after at least seven days public notice thereof made in principal town of the district in which the land is situate and also at the place of the land intended for sale. It was submitted that the burden of showing non-compliance rested on the appellant who failed to discharge the burden. It is the contention of the second respondent that there was no issue on the pleadings of non-compliance and hence the respondent could not call evidence showing compliance. It was stated that had the issue been properly raised by the appellant then the respondents could have been saddled with the burden of showing compliance with the Law. The Auctioneer would have been called as a witness.

It was submitted that the respondents surely cannot be expected to show compliance with all laws if an issue was not raised at the trial, It was also submitted that if the issue had been properly raised, the appellant would still fail in her bid to impugn the auction sale.

It is manifest from pages 55 lines 13-33; 56; 57 lines 1-22 of the record of proceedings that the learned trial Judge meticulously considered the contentions of the appellant on the validity of the sale of the property in dispute and concluded as follows:-

“following the above authorities, I hold that the 1st defendant obtained valid title to the property and that his title cannot be impeached.”

It must be mentioned also that the question of non-compliance with the provisions of Auctioneers Law is a question of fact which ought to be pleaded if the Appellant had wanted to make it part of her case. It is settled law that parties are bound by their pleadings.

It is also settled law that a party is not allowed to set up a different case in each stage of the hierarchy of courts. See Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134; A-G., Anambra State v. Onuselogu Ent. Ltd. (1987) 9-11 SC. 197 (1987) 4 NWLR (Pt.66) 547 at 202.

It is not enough for the learned Senior Advocate of Nigeria to raise the matter of non-compliance at the address stage. I would like to say also that it is settled law that a declaration cannot be made in favour of a person who has acquiesced in the matter. See Jadesimi v. Okotie Eboh (1989) 4 NWLR (Pt. 113) page 113; Judicial Service Committee v. Michael Omo (1990) 2 NWLR (Pt. 157) 407 at 460 to 461. By Exhibit G, the appellant and her solicitor applied to the 2nd respondent for the balance of the proceeds of the auction sale and applied to the court below through her said solicitor for the said balance of the auction to be paid to the appellant and other beneficiaries. The order of the court is at pages 65-66 of the record. The Appellant herein was the sale applicant. The order of the court was for the balance to be paid to the Applicant now the Appellant within 14 days. It seems to me that the Appellant having accepted the validity of the auction sale by applying to be paid part of the proceeds of sale cannot turn round to ask for a declaration to be made in her favour that the same auction sale was invalid. It should be noted also that the appellant’s attempt to impugn the sale on the ground of non-compliance with the Auctioneers Law regarding seven days notice is misconceived. By clause 8 of the Deed of Legal Mortgage the Appellant’s husband expressly waived the right to notice under section 20 of the Conveyancing Act or under any law or custom in operation in any part of the Federal Republic of Nigeria before the sale of the mortgaged property. Clause 8 of Exh. ‘E’ reads:-

8. The Borrower hereby expressly waives his right to be given notice by the Bank under section 20 of the Conveyancing Act 1881 or under any law or custom in operation in any part of the Federal Republic of Nigeria before the sale of the mortgaged property.:

It should be mentioned also that the appellant has relied on the dictum of Kolawole, J.C.A. in the case of Duru-Ugwo v. Union Bank (unreported) FCA/E/176/82 delivered on 26/11/86. It is patently clear that the dictum of the learned Justice quoted by the appellant was obiter. The lead judgment was delivered by Dahiru Musdapher, J.C.A. and it is clear from a perusal of the lead judgment that the sale was impugned successfully on grounds of equity. There was suspicion in that case that the bank had not acted in good faith.

It should be noted that the lead judgment in that case with which Umaru Maidama, J.C.A. of blessed memory and kolawale, J.C.A. agreed with did not refer to section 19 of the Auctioneers Law at all. It seems to me therefore that the authority is not applicable to the present case. In the authority under reference, the aggrieved party did not first of all accept the sale, apply and received part of the sale money and turn round to challenge the same auction. Furthermore, there is no suspicion that the 2nd respondent had not acted in good faith in the present case.

I am of the view that the correct position in law can be found in the case of Sanusi v. Daniel (1956) F.S.C. 93; (1956) SCNLR, 288 relied upon by the learned trial Judge, the complaint was similar. The property subject matter of auction had been conveyed to the purchaser whom the learned trial Judge held was a bona fide purchaser for value. The appellant challenged the sale on the ground that certain provisions of the moneylenders ordinance had not been complied with and that the seven days notice required by section 19(1) of the sales by auction Ordinance (similar to s.19 under consideration in this appeal) had not been given. The Federal Supreme Court per Jibowu acting F.C.J with de Lestang F.J. and Hubband Acting F.J. concurring stated thus:-

“The Appellants complaint is against an irregular exercise of the power of sale on the ground that there was a contravention of section 19(1) of the Sales by Auction Ordinance. It seems to me that the title of the 2nd respondent cannot be impeached since the property was conveyed to him and that the Appellant’s remedy is the damages against the 1st Respondent as provided by section 21(2) of the Conveyancing Act 1881.”

In the case in hand, the learned trial Judge was correct when he held that the 1st Respondent’s title could not be impeached since he was a bonafide purchaser for value without notice.

It is unlikely that the views of Kolawole, JCA would have been the same if the above Supreme Court authority was drawn to his attention. Thus I hold that the issue of non-compliance with the Auctioneers Law which is a question of fact did not arise from the pleadings and even if it did, such alleged non-compliance cannot nullify a sale to a bonafide purchaser for value like the 1st Respondent in this appeal.

Issue (ii) in the first Respondent’s brief is referred to as Issue 3 (b) by the Appellant and Issue (b) in the second Respondent’s brief. The learned Senior Advocate of Nigeria submitted that the Will Exh. ‘C’ was pleaded by the Appellant in paragraph II of the Statement of Claim. The first defendant traverses this averment in paragraph 9 of his Statement of defence. It was submitted that the traverse of the 1st Respondent does not put the validity of the Will Exh. ‘C’ in issue between the appellant and the Ist Respondent. Reference was made to the case of Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587. It was submitted that the 2nd respondent traversed paragraph II of the Statement of defence. It was argued that this paragraph rather than challenge the validity of the Will, rested on it to plead lack of locus standi in the appellant. Reference was made to the case of Orizu v. Anyaegbunam (1978) 1 LRN 216. It was contended that only issues properly raised in the pleadings filed by the parties may be adjudicated upon by the court. It was submitted that where the court adjudicated on an issue not raised the resultant conclusion cannot be sustained. Reference was made to the case of Idika v. Erissi (1988) 2 NWLR (Pt. 78) 563. It is the contention of the appellant that from the pleading what was put in issue by the 2nd respondent was whether the appellant could derive locus standi from Exhibit ‘C’ in view of the fact that there was no re-grant after the partition. It was stated that no where was it alleged in any of the Statement of defence that Exhibit ‘C’ was not proved or admitted to probate. Consequently, it was submitted that all the learned trial Judge could do in the circumstance was to see whether Exhibit ‘C’ contained any conferment on the appellant of any right to any property before the court. It was contended that the legal significance of Exhibit ‘C’ was never in issue before the court.

It was submitted that the finding of the trial court that the appellant had no locus standi was based on extraneous conclusion which cannot stand.

For the 1st respondent, it was submitted that the issue in the case was not the validity of the will but the competence of the appellant to institute the action. It was submitted that the issue is the evidential or probative value of Exhibit ‘C’ and consequently, the capacity of the appellant to maintain the action. This, also, was what the learned trial Judge pronounced, it was submitted.

On pleadings, it was submitted that paragraph 11 of the statement of claim was sufficiently traversed. A number of cases were cited. It was contended that the issue of validity of the Will did not arise in this case. It was not in issue. It was submitted that what was in issue was the competence of the appellant to maintain the action, that is to say, her locus standi.

For the 2nd respondent it was submitted that the short question to be determined is whether on the pleadings, the validity of the purported Will – Exhibit C was in issue. It was submitted that the appellant argues in her brief that

“No where was it alleged in any of the statement of defence that Exhibit C was not proved or admitted to probate.”

It was contended that the appellant does not show an appreciation of the issues joined on the pleadings. Reference was made to paragraph 11 of the statement of claim wherein the appellant averred that the Will Exhibit ‘C’ had been proved and read at the Probate Registry, Owerri. Reference was also made to the averments contained in paragraph 9 of the 1st respondent’s statement of defence and paragraph 9 of that of the 2nd respondent. It was therefore submitted that the appellant has no locus standi in this case. It was further submitted for the 2nd respondent that the 2nd respondent pleaded in paragraph 12 of the statement of defence that the purported bequest to the appellant was invalid, null and void and that the appellant had no locus standi in this case. It was stated that the parties address the court on the issue.

After a hard look at the pleadings and the evidence adduced by the parties, it seems to me that the issue of the validity of the Will Exhibit ‘C’ did not arise in this case. It was not in issue. What was in issue was the competence of the appellant to maintain the action; that is to say, her locus standi. It is trite law, that the first duty of any plaintiff in a suit is to establish the capacity in which he sues. This to my mind is a mandatory requirement of law contained in the Rules of Court. The plaintiff must discharge this burden or the action fails. It is not a matter of pleadings as a party does not plead law. It is therefore difficult to agree with the appellant that the question whether Exhibit C was proved or admitted to probate was not in issue. It is settled law that a matter is said to be in issue, when one party affirms the existence of a fact and the other party denies the same. See Ehimare v. Emhonyon (1985) 1 NWLR (Pt. 2) 177; Overseas Construction Co. (Nig.) v. Creek Ent. (Nig.) Ltd. (1985) 3 NWLR (Pt. 13) 407; Honika Sawmill (Nig.) Ltd. v. Hoff (1992) 4 NWLR (Pt. 238) 673.

The next question that calls for determination since the respondents denied that the alleged Will had been proved or admitted to probate in their pleadings is whether the appellant discharged the burden of proving that the will Exhibit had been so admitted. The appellant made heavy weather of the answer given by PW2 under cross-examination that the Will had been admitted to probate. It is the view of the appellant that this amounts to sufficient proof. With respect, I do not agree with this view of the appellant. The appellant herself at page 22 lines 25 – 26 of the record stated that she had not obtained grant of Probate. See also page 24 line 1630 of the record. In the case of Lijadu v. Mrs. Franklin (1965) All NLR 114 also (1965) 1 All NLR 110 (old edition) it was held that

“The executor should not assert or rely on his right in any court without showing that he has previously established it in the probate division either by suit by probate in solemn form or in the ordinary form. The usual way in which he proved it was by production of a copy of the Will certified under the seal of the court. The state of the Law was described by Jarvis C.J. in Johnson v. Warwick 17 C.B. 516, as being that the court had not the legal optics through which to look at the Will until the Will was proved in the form provided by English Law.” See also Hass v. Atlas Assurance Co. Ltd. (1913) 2 K.B. 209.

Based on the above, it seems to me that the trial court was incapable of looking at Exhibit C, hence the conclusion arrived at by the lower court that it was incapable of conferring locus standi on the appellant is well founded. It must be noted that the appellant had the onus of producing a Will duly admitted to Probate and properly sealed with the seal of the court. The appellant did not do this and thus lacked locus standi to bring the action. See Quo Vadis Hotels & Ors. v. Commissioner of Lands, Mid-Western State & Ors. (1973) 6 SC.71 at page 82. The learned trial Judge at page 60 lines 17-31 of the record made the following additional observation:-

“I have observed that the plaintiff was mentioned in the Will in a dual position as a beneficiary as well as executrix. In this action, it is not certain whether the plaintiff was suing as executrix when in fact Mr. Edwin Emecheta son of the deceased is another executor or whether the plaintiff was suing on behalf of the beneficiaries who comprised of all the members of the family of the deceased including his first wife Mrs. Grace Emecheta. In the face of this argument, I am in complete agreement with the submission of the learned counsel to the 1st defendant “that plaintiff had not capacity to bring this action.” The mere fact that the Will Exhibit C mentioned her name as the owner of the property is not enough right to bring the action.”

The appellant had argued that since she

(a) was a beneficiary of the deceased’s Estate;

(b) was an executor of the Will of the deceased

(c) was residing in the premises

(d) was sued by the 1st respondent in suit No. A/371/84

(e) was given joint management powers with others by virtue of Exhibit “F” she was therefore competent to institute the action.

I have no doubt in my mind that none of the above facts taken singly or jointly entitled the appellant to institute the action the one crucial point in this matter which the appellant had over-looked is that the property in question was mortgaged to the 2nd respondent and the same had not been paid off. It cannot be contested that there could be no valid bequest of the property to her unless the mortgage was discharged. It is not in doubt that the law is settled that if there are more than one executor, all of them should join as plaintiffs except such as have renounced probate. Exhibit ‘C’ the alleged Will is clear that the appellant was not the Executrix and as such the action was very incompetent. See Bullen and Leak and Jacobs Precedents of Pleadings 12th Edition page 415. It must be remembered again that the purported Will was never admitted to probate. See appellant’s answers at page 22 lines 25-26 of the record of proceedings.

The appellant had referred to Exhibit F which is copied from pages 65-67 of the record of proceedings. Paragraph 8 of the said (Exhibit F) made at the instance of the appellant as applicant states –

“8. The A.C. Bank who gave a loan of N33,441.87 as of now and sold property at N105,000.00 will pay to them the balance of N71,558.13 within 14 days with effect from today 12/12/84 provided notice is given them at once”

The excerpt reproduced above certainly lends no strength to the appellant’s case but only goes further to show that the suit was incompetent. The applicant who applied to court to withdraw proceeds of the sale could not subsequently rely on the same order as entitling her to challenge the sale.

I now move on to the consideration of Issue No. (iii) in the 1st respondent’s brief which is Issue No.3 (c) in the appellant’s Brief of Argument and Issue No. (c) in the 2nd respondent’s brief.

The issue is whether or not the appellant is estopped by her own conduct from challenging the sale of the property in dispute. This issue is tied to the issue of the locus standi of the appellant to institute the present action. It is the submission of the learned Senior Advocate of Nigeria that the appellant has locus standi to institute this action. He cited a number of cases.

For the 2nd respondent it was submitted that the issue under consideration is peripheral to the issues for determination in this appeal, as even if it is upheld, it cannot decide the appeal in favour of the appellant. Reference was made to the case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688. Reference was made also to the findings of the learned trial Judge at pages 57 lines 27-33, 58 lines 1-25 of the record. It was submitted that those findings are impeccable and unimpeacheable. It was also submitted that the fact of the appellant applying for and receiving payment for the balance outstanding after the second respondent had deducted the amount owing was pleaded by the defendants: paragraph 13 of the statement of Defence of the 1st defendant/respondent (page 10 lines 18-34); paragraph 13 of the statement of Defence of the second defendant/respondent at page 14 lines 24-30 of the proceedings. It was submitted that the issue revolves on facts and the findings of the learned trial Judge have not been demonstrated to be perverse.

For the 2nd respondent it was submitted that the conclusion of the learned trial Judge that the appellant withdrew the balance of N71,539.00 from the proceeds of the auction sale is consistent with and deducible from the evidence before the court. It was stated that the 1st respondent pleaded in paragraph 14 of the statement of defence that the appellant and others were appointed managers of the estate of the deceased and on 12/12/84 did obtain a High Court order to withdraw proceeds of the sale of the property. A certified true copy of the Order was admitted in evidence as Exhibit “P’. Reference was made to pages 65-67 of the record for the Order and in particular paragraph 8.

It should be noted that appellant filed a reply to the respondent’s brief of argument. The Reply Brief was dated 24/2/97 and filed the same date. I have perused the Reply Brief and I notice that the appellant did not file a reply to paragraph 14 of the 1st respondent’s Statement of Defence to either deny the existence of the Order or to attack it in any way. See Obot v. Central Bank of Nigeria Limited (1993) 8 NWLR (Pt. 310) 140. It must be mentioned that the law is settled that a certified true copy of a document is admissible without proof Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637. It is manifest from the record of proceedings that the appellant lied shamelessly under cross-examination in the face of the court Order – Exhibit F. See page 20 lines 5-20 and pages 20-21 of the record. The appellant who contended that Exhibit F was varied could not prove this.

Again, by Exhibit G a letter dated 5th February 1985 copied at page 68 of the record the appellant and her solicitor applied for the release of the funds to them as a result of the High Court Order – Exhibit ‘F’. The document was pleaded in paragraph 13(d) of the statement of defence of the 2nd respondent. The appellant again filed no reply to this paragraph of the statement of defence. Under cross-examination by counsel to the 1st respondent at page 20 lines 17-21 of the record, the following is recorded –

“Q: What happened to the balance of N71,558.13 remaining from the proceeds of sale of the property after the 2nd defendant had taken their money i.e N33,441.87?

Ans. No reply”.

I have no iota of doubt in my mind that in the face of Exhibits F and G and the barefaced lies of the appellant, it was impossible to reach any other conclusion than that reached by the lower court. As borne by the record the appellant was silent when the question above was put to her. The maxim of the Law is “silence means consent” See Iga v. Amakiri (1976) 11 SC. 1 at p. 12. The learned trial Judge held that there was no evidence before him that the balance of the proceeds of the auction sale was still standing in the credit of the deceased’s estate and when this is taken along with Exhibit G and P, it was most logical to presume that the appellant had collected the money. See section 151 of the Evidence Act Cap 112 of the Laws of the Federation of Nigeria.

I now consider issue No. (iv) in the 1st respondent’s brief. This is issue No. (e) in the appellant’s amended brief of argument and also issue No. (e) in the 2nd respondent’s brief. It was submitted for the appellant that the learned trial Judge did not give due weight to the evidence led by the appellant in support of her case. It was contended that the learned trial Judge had come to the conclusion that property No. 26A was different from property No. 26 Okigwe Road as stated in Exhibit ‘C’. It was submitted that contrary to the statement in the judgment to the effect that the appellant’s evidence was at variance with her pleading, the appellant’s testimony as PW1 was consistent with the appellant’s case as pleaded that there was a partition in the life time of her husband, Mathew Nwaigwe Emecheta of the property No. 26 Okigwe Road into parcels ‘A’ and ‘B’. It was submitted that the appellant testified that she lived at 26A Okigwe Road, Aba and the 16A written in the record was a typographical error as 16 never featured anywhere in the case. Reference was made to pages 16-22 of the record and pages 23-24. A number of cases were cited. Concomitant with issue No.3 (e) in appellant’s amended brief is issue No. 3(1) which is whether or not Plot 232 Fuel Plantation Layout, G.R.A. Aba registered as property No. 84/84/626 was partitioned. I intend to take the two issues together. It was submitted for the appellant that the learned trial Judge made a finding that there was no partition of plot 84/84/262 Owerri with No. 26 Okigwe Road, Aba. It was contended that the appellant tendered Exhibit ‘B’ which duly informed the deceased Emecheta and 1st respondent of the partition. It was argued that the learned trial Judge appeared to hold the view that once a certificate had not been issued, no right had accrued. It was submitted that a certificate never creates a right, but is evidence of existing right. The following cases were cited and relied upon: Oil Field Supply Centre v. Johnson (No. 2) (1987) 2 NWLR (Pt. 58) 625; Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; Bada v. Pereira (1974) 11 SC. 51. It was submitted for the appellant that by virtue of Exhibit ‘B’ the plot No. 26 Okigwe Road had been duly partitioned into 26A and 26B. It is the contention of the appellant that by virtue of its surrender for partition, it ceased to exist.

For the 1st respondent it was submitted that issues 3(e) and 3(f) in the appellant’s amended brief are issues dealing wholly with findings of fact by the learned trial Judge. It was stated that to succeed in challenging these findings on appeal, the appellant must establish that they are perverse in the sense that they are insupportable by the evidence in the proceedings. It was submitted that the appellant must, also, establish that these affected the judgment materially and occasioned a miscarriage of justice. It is the contention of the 1st respondent that the judgment is supported by the evidence before the trial court.

For the second respondent it was submitted that when there is a complaint that a judgment is against the totality of evidence, it must necessarily be against the totality of the evidence adduced before the trial court and not against any specific document or issue. Such complaint must be concerned with the appraisal and not the weight to be attached to any particular evidence or document. It was contended that the consideration should be on the failure of the trial Judge to weigh the evidence on one side as against those on the other aside on the imaginary scale. Reference was made to the following case:

1. Finnih v. Imade (1992) 1 NWLR (Pt. 219) 511
2. Leyland (Nig.) Ltd v. Dizengoff (1990) 2 NWLR (Pt. 134) 610.
3. Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643.

It was submitted for the 2nd respondent that the appellant contends that because Exhibit ‘B’ was written to the deceased and the 1st respondent the property known as Plot 232 Fuel Plantation Layout Aba ceased to exist. It was submitted that there was no partitioning of the property as Exhibit B was a mere proposal.

Exhibit ‘B’ is a letter from the Assistant Chief Land Officer, Aba dated 6/6/83 addressed to the deceased. The letter is at pages 64-65 of the record of proceedings. I have read the letter carefully and I do not agree with the interpretation given to it in the appellant’s Amended Brief of Argument. The letter – Exh. ‘B’ merely conveyed approval of the Ministry of Lands, Survey and Urban Development to the proposed partitioning of the land in dispute. It did not in itself constitute partitioning of the property. The act of partition still lay in future. It is, so to say, inchoate. There were, consequently, no statutory certificates of occupancy issued in respect of the property. This fact ostensibly accounts for the same Ministry giving consent to the assignment of the property Exhibit ‘0’ – by the second respondent, after the auction sale. It is not in doubt that Exhibit ‘D’ demonstrates

(a) That the property in dispute still exists

(b) That the lease of it was still valid and existing for all purposes. At page 53 lines 28-33 and page 54 lines 1- 7 of the record, the learned trial Judge had this to say:-

“Taking issues 1 and 2 together of the issues in controversy, I would say that there is no evidence before me to prove that the property at No. 26, Okigwe Road, Aba has been partitioned into two or more. There are no separate documents of title to separate partitions of the property. At best the letter Exhibit ‘B’ from the Ministry of Lands might be a proposal which, of course was not carried out by the deceased before his death.

Since in the Will – Exhibit C the deceased bequeated the entire No. 26 Okigwe Road, Aba to the plaintiff without any partition. Indeed, there are no separate certificates of occupancy before the court showing Part A and Part B of the property.”

The above finding of the court below is sound in law and in common sense. The conclusion of the court is impeccable. It should be noted that the appellant and the 1st respondent never paid the requisite fees, and again from the evidence of the 2nd defendant’s witness Christian Okwuba at pages 33 lines 10-34 and page 34 lines 1-34, it is clear that the bank gave a conditional acceptance of the proposed break up which required the Lands officials to give an undertaking to fulfill the conditions pleaded in paragraph 5 of the statement of defence at page 13 of the record. The evidence of the 2nd defendant’s witness is that following the failure of the Ministry of Lands to satisfy the conditions given by the 2nd defendant/appellant it was assumed that the transaction had fallen through. This was natural since they were unpaid mortgators. There was therefore no question of surrendering anything.

It is the complaint of the appellant that the findings of fact by the learned trial Judge in this case were perverse and this court should interfere. It is settled law that it is where a trial court has made improper use of the opportunity of seeing and hearing the witnesses that is, where the finding of the lower court is not supported by the printed record or the finding is not the proper conclusion or inference to be drawn from the evidence, that the Court of Appeal will and must in the interest of justice, interfere by altering, reversing or setting aside such perverse finding of the lower court. In the case in hand, it is manifest from the record of proceedings that all the findings made by the lower court are consistent with the evidence before the court. See Egiri v. Uperi (1973) 11 Sc. 299 at page 310; Kuforiji & Anor v. V.Y.B. (Nig.) Ltd. (1981) 6-7 SC. 40 at page 85; Chief Frank Ebba v. Chief Warri Ogodo (1984) 4 SC. 82 at 98., (1984) SCNLR 372

In conclusion I must also say that the fraud pleaded by the plaintiff/appellant was not proved. See Egbase v. Oriareghan (1985) 2 NWLR (Pt 10) 884; George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71. In the result, this appeal fails and it is dismissed by me. I confirm the decision of the learned trial Judge delivered on 22nd Day of October, 1991. The respondents are entitled to their costs, which I assess at N1,500 to each of the two respondents thus making a total of N3,000.00 costs in favour of the respondents against the appellant.

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Other Citations: (1997)LCN/0338(CA)

Alhaji Kawule Abubakar & Ors V. Jos Metropolitan Development Board & Anor (1997)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A. 

By a motion on notice dated 30th May, 1997 filed in the registry of this court on 2nd June, 1997, the applicants prayed for the following orders:

“1. directing the respondents to rebuild and restore to the applicants, the applicants’ stalls which were situate at the premises known as Yan Soso at the Laranto Market Jos which stalls were unlawfully destroyed by the respondents pending the determination of the appeal herein;

2. restraining the respondents from interfering with the applicants’ right to occupy the said premises pending the determination of the appeal herein AND such further orders as the Honourable Court may deem just.”

The motion is supported by a 15 point affidavit and 9 Exhibits. In opposition thereto, the respondents on 11th June 1997 filed a counter-affidavit of 6 paragraphs.

As can be garnered from the affidavit evidence and the accompanying exhibits, the facts of the case giving rise to the application may be summarized as hereunder:

The eleven applicants claim to be representatives of the Plateau Traders and Marketing Association Laranto Market Branch Jos. Prior to the incident giving rise to this case, they were carrying on their trading in market stalls or shops numbering about 193. The shops were located at the section of Laranto Market, Jos described as ‘Yan Soso’ hereafter referred to as the premises in dispute. They were put on the premises in dispute in 1976 by the then Jos Native Authority following an outbreak of fire which in 1974 gutted Jos main market. The applicants erected stalls on the disputed premises at their own expense and had been occupying the stalls and paying rates, levies and taxes to the Jos Native Authority now known as Jos North Local Government Council. It is the applicants’ case that by a quit notice dated 29th August, 1996. (Exh. 1) issued by the 1st respondent and served on them, they were ordered to quit the premises in dispute within 24 hours on the ground that their occupation thereof was illegal. According to the applicants, the 1st respondent in issuing Exh. 1 purported to act on behalf of Angona Nigeria Limited, a private liability company that claims to have acquired the land from an alleged radical owner. In reaction, the applicants by a writ of summons (Exh. 2) sued the respondents to challenge the ejection notice. Subsequent thereto, the applicants by a motion No PLD/J472m2/96 filed in the court below applied for an interim injunction to restrain the respondents from evicting them from the premises in dispute pending the determination of the substantive suit The said motion was on 17th September 1996 dismissed by Dangban J in a ruling (Exh 4) which he concluded thus: “Accordingly I rule that although the applicants have filed (sic) to move the court to uphold their application, it is hereby ordered that the respondents allow fourteen clear days from today to enable the applicants move their belongings from the disputed cite (sic) to another cite (sic) for save (sic) keeping pending the determination of their substantive suit.”

Dissatisfied by the above ruling, the applicants as per motion Exh 3 filed in the court below on 27/9/96 sought an order for stay of execution and in addition appealed against the said ruling vide the notice of appeal Exhibit 5.

Paragraphs 9 to 14 of the supporting affidavit complete the rest of the applicants’ case. The paragraphs read as follows:

“9. While the said motion for stay and the appeal were yet to be heard, the respondents brought before the trial court a notice of preliminary objection to suit No. PLD/J472/96 and on 25/4/97 the trial court ruled allowing the said preliminary objection and dismissed the suit

A copy of the preliminary objection and of the ruling thereon are herewith attached as Exhibit 6 and 7 respectively.

10. On the same said 25/4/97 that the trial court dismissed the said suit the applicants through their counsel Mr. Chris Abashi filed a motion on notice seeking a stay of execution of the ruling of the same date pending an appeal which he intended to file against the said ruling which appeal was filed on 19/5/97. Copies of the motion and the notice of appeal are attached herewith and called respectively exhibits 8 and 9 respectively.
11. After the ruling of 25/4/97 and after being served exhibit ‘7’ before close of work on that day the respondent entered the premises at 5 pm with several carpenters under the marshall of fully armed mobile policemen and destroyed the shops and goods of the applicants.
12. The applicants have not been able to carry on their normal trading occupation since their shops were destroyed and trading is the applicants’ only means of livelihood.
13. The loss of income which the applicants have suffered on account of the destruction of their stalls have occasioned great hardship on the applicants as they now find it difficult to feed themselves and their families.

Exhibit 7 referred to in paragraph 11 of the supporting affidavit supra is the ruling of the court below whereby Naron J in upholding the respondents’ preliminary objection and dismissing the applicants’ suit concluded thus:

“I have held that the preliminary objection succeeds on grounds 2 and 3 and dismissed the suit in its entirety. There is nothing left to be done in the matter. If the defendants had intended to eject the plaintiffs from the said premises, there is nothing that prevents them from doing so now and I do hereby so direct.”

Apparently it is on the strength of that directive that the respondents evicted the applicants who have reacted by bringing the instant application.

For their part, the respondents in their counter-affidavit stated, inter alia, that the applicants had no title to the disputed premises which they occupied illegally; that the applicants’ goods and materials were not damaged as they were allowed to remove them to an alternative site provided for them by the Jos North Local Government Council for carrying on their business.

When this application came up for hearing on 11th June, 1997, learned counsel on both sides addressed us extensively. The gravamen of the applicants’ case was that after the lower court had dismissed their case on 25/4/97, they filed a motion for stay of execution the same day and have same served on the Attorney-General for the respondents and despite that the respondents went ahead to evict the applicants from the disputed property. Mr Chris Abashi for the applicants referred to the case of Governor of Lagos State v. Emeka Ojukwu (1986) 1 NWLR (Pt. 18) 621 (I986) 1 All NLR 233 and submitted that when parties have submitted their dispute to the court for adjudication neither party should resort to self-help. In her response, the leading counsel for the respondents Mrs Fwangohi; the Director for Civil Litigation, Ministry of Justice, Jos submitted that as at 25/4/97 when the applicants were evicted from the disputed premises, there was no pending appeal against the ruling of the court below dismissing the applicants’ substantive suit. She further submitted that Exhibit 5 not having been filed with the leave of the court was not a valid notice of appeal. She contended that until the main appeal is determined in favour of the applicants, prayer one of the application cannot be entertained. In respect of prayer 2, it was contended that having regard to the considerations for the grant of an injunction, the prayer cannot be granted in that an injunction cannot be granted in respect of an act that had been completed; the applicants’ affidavit did not disclose a triable issue nor any irreparable injury to the applicants nor could the applicants show that the balance of convenience is in their favour.

Several authorities were cited in support of the above submissions. In his further submissions Mr Abashi for the applicants contended that the notice of appeal Exh. 5 was valid as it raised grounds of Law and therefore did not require the leave of the court. On the contention that an injunction is not available for a completed act, counsel argued to the contrary and cited the case of Ojukwu supra in support. Finally, he submitted that the balance of convenience is in favour of the applicants.

I consider it appropriate to approach this matter by first considering the preliminary question as to whether this court is vested with the jurisdiction to entertain the application on hand. It is well settled that the issue of jurisdiction is fundamental to the question of the competence of the court making any order or giving a decision and therefore the issue must first be determined. It is also well established that a court is not only entitled but bound to put an end to the proceedings if at any stage and by any means it becomes manifest that they are incompetent. This is so because decisions given without jurisdiction amount to a nullity no matter how well the proceedings were conducted or that the decisions were given in the interest of justice: See Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179, Barclays Bank Ltd. v. Central Bank of Nig. (1976) 6 SC 175.

The court can on its own initiative raise the question of its jurisdiction even though the parties have failed to do so because mere acquiescence does not confer jurisdiction: See Onyema v. Oputa (1987) 3 NWLR (Pt 60) 259; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377; Attorney-General of the Federation v. Sode (1990) 1 NWLR (Pt 128) 500.

In determining whether this court has the jurisdiction to entertain the applicants’ application, I bear in mind the provisions of section 219 of the Constitution of the Federal Republic of Nigeria 1979 (as amended) – Cap 62 Laws of the Federation of Nigeria 1990. The section provides thus: “219 Subject to the provisions of this constitution, the Federal Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, High Court of a State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State.”

It is manifest from the above provision that the jurisdiction of the Court of Appeal is purely appellate and not original. In the case in hand it is evident that the present application had not been made to the lower court for it to express an opinion thereon before it was brought to this court. In a situation not too dissimilar, in the case of Attorney-General Anambra State v. Okafor (1992) 2 NWLR (Pt 224) 396 at page 429, the Supreme Court, per Nnaemeka-Agu J.S.C. observed thus:

“In the case of Chief lman Y.P.O. Shodeinde and ors v. Registered Trustees of the Ahmadiyya-Movement-In-Islam & Ors (1980) 1 – 2 S.C 163, this court made it clear that an application by unsuccessful plaintiff to restrain successful defendant from dealing with property in dispute pending the determination of the plaintiffs appeal was wrongly made in the first instance to the Federal Court of Appeal instead of the High Court. The Court of Appeal had no jurisdiction to hear and determine such an application as the proper forum for such an original motion was for the High Court. I feel entitled to take notice of the fact that the jurisdiction of the Court of Appeal is entirely appellate (see section 219 of the 1979 Constitution) …………………….

So, no matter how one looks at it, there is no room for an invocation of the principle in Ojukwu’s case (supra),”

Applying the above principle, since the applicants’ substantive suit had terminated with its dismissal on 25/4/97, the applicants’, original motion to this court for injunctive reliefs as prayed is incompetent as this court has no jurisdiction to entertain same.

Should I be in error in holding that the applicants’ application does not fall within the ambit of the jurisdiction of this court, it seems to me that even on merit, the application lacks substance. The application is for an order of injunction. One of the main classifications of injunction relevant to the case in hand is the classification into prohibitory (Restrictive) and mandatory injunctions. An injunction restraining the continuance of some wrongful act is called prohibitory or restrictive. An injunction to restrain the continuance of some wrongful omission or to do a particular act or thing is called mandatory. The reliefs sought by the applicants had earlier been set out but at the risk of repetition but for ease of reference I will repeat them hereunder as follows:

“1. directing the respondents to rebuild and restore to the applicants the applicants’ stalls which were situate at the premises known as Yan Soso at the Laranto Market Jos which stalls were unlawfully destroyed by the respondents pending the determination of the appeal herein.

2. restraining the respondents from interfering with the applicants’ right to occupy the said premises pending the determination of the appeal herein”

The first relief sought for in the above application is a mandatory injunction. A mandatory injunction is grantable even though the act sought to be restrained has been nearly or entirely completed before the action is begun Holmes v. Upton (1840) 9 Ch App 214: See Halsbury’s Laws of England 4th Edition Vol. 24 paragraph 950. The power of the court to grant a mandatory injunction must like in every injunction, be exercised with the greatest possible care. Some of the circumstances in which mandatory injunction may be granted are:

1. Where the injury done to the plaintiff cannot be estimated and sufficiently compensated for by damages.
2. Where the injury to the plaintiff is so serious and material that the restoration of things to their former condition is the only method whereby justice can be adequately done: Kelk v. Pearson (1871) 6 Ch App 809.
3. Where the injury complained of is in breach of an express agreement: Me Manus v. Cooke (1887) 35 Ch D 681.
4. Where the defendant attempts to steal a match on the plaintiff such as where, on receipt of notice that an injunction is about to be applied for the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed: Daniel v. Ferguson (1891) 2 Ch.D 27.

See paragraph 947,948 Halsbury’s Laws of England supra, Central Bank of Nigeria v. Universal Trust Bank of Nigeria Ltd (1996) 4 NWLR (Pt 445) 694. The crux of the applicants’ case is that their market stalls at Yan Soso in Laranto Market were destroyed by the respondents. The applicants did not in their supporting affidavit state that the damage to their stalls cannot be estimated and compensated by damages nor have they deposed to facts to bring their case within any of the principles stated above for the grant of mandatory injunction. That being the case, the remedy of mandatory injunction prayed for in the first relief of their motion is not available to them; so too is the second prayer which is ancillary to the first.

There is yet another dimension to this case. In the ruling of 25th April, 1997, (Exh 7) on the preliminary objection by the respondents to the applicants’ substantive suit, the court below dismissed the applicant’s action. Although an appeal has been lodged to this court by the applicants against the ruling, the decision is still subsisting. The judgment of a lower court on appeal is presumed to be right or correct and remains valid until set aside: See Chukwunta v. Chukwu 14 WACA 341; Antia v. Asuquo (1990) 5 NWLR (Pt. 151) 446. The implication of the dismissal of the applicants’ case is that they have no interest in the subject-matter of the case, that is the stalls in question. It is trite law that for a plaintiff to obtain an injunction and indeed any equitable relief he must show some property, right, or interest in the subject matter of his complaint: Maxwell v. Hogg (1866-67) 2 Ch. App 307 at 311. In the face of the subsisting ruling of the court below whereby the applicants’ action was dismissed, it goes without saying that the reliefs sought by them in this application are misconceived.

In the light of the foregoing, this application is premature and is refused. It is struck out but with no order as to costs.

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Other Citations: (1997)LCN/0337(CA)

First Bank of Nigeria Plc. V. Chief M. A. Akande & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

This is an appeal by the Defendant/Appellant against the judgment of Ade Alabi, J. sitting at the Lagos High Court, delivered on the 4th day of December, 1992 which granted all the reliefs sought by the Plaintiff/Respondent. The facts that led to this appeal are as follows:-

On 27/9/88 the respondent purchased from the appellant bank US $144 (One hundred and forty four United States Dollars). He paid N851.65 for the purchase. He was issued with a purchase receipt which contained the serial numbers of the currency notes sold to him. The respondent then departed Nigeria in the night of 27/9/88 and arrived at Zurich Airport in the morning of 28/9/88. At Zurich Airport, according to the respondent, he offered one $20 note to the cashier of a bank in the arrival hall of Zurich airport. The cashier looked at the note and told the respondent that the note was fake. The cashier then made some telephone calls. A few minutes later, the Police arrived and whisked away the respondent in their van to the Police Station. The respondent testified that the Police found the remaining Dollar Notes he was carrying which they declared fake except $4 which they said were genuine. At the Police Station, the respondent was grossly ill treated and subjected to various types of indignities. As a result the respondent sued the appellants claiming the sum of N20,000,000.00 (Twenty million naira) as aggravated damages and the sum of N625,951.60 as special damages. He also sought for an order directing the appellant to acknowledge in writing to the KANTONS POLIZEI Zurich that it sold the $140 to the “‘respondent and absolving the respondent from blame whatsoever. He further, sought for an order directing the appellant to apologies in writing to the respondent.

The appellant denied all the respondent’s claim. The appellant alleged that they purchased the said currency notes from the Nigeria Police. The appellant therefore filed a third party notice, claiming indemnity against the third party in respect of the respondent’s claim. The appellant maintained that the currency notes they purchased from the Nigeria Police, which they sold to the respondent, were genuine. Before the said Nigeria Police, the notes were tested and they were found to be genuine.

At the trial, three witnesses testified on behalf of the respondent, including the respondent himself, while the appellant called one witness. In his judgment, the learned trial judge held that the respondent’s action succeeded. He accordingly entered judgment in favour of the respondent in the sum of N750,851.61 with N2,000 costs in favour of the respondent. The trial judge stated:- “I do not believe the evidence of “DW1” to the effect that the American Dollars the Defendants sold to the Plaintiff were very genuine. He was not telling the court the truth. He was out to mislead the court to protect not only his employers but also himself and his job having been directly involved in the transaction of sale of the fake and counterfeit United State Dollars.

The trial judge then held that the respondent was entitled to the award of aggravated damages and stated:-

“In the light of the above, I award aggravated damages in favour of the Plaintiff assessed at Seven hundred and fifty thousand Naira. In addition I believe that the Plaintiff is also entitled to a letter of apology as claimed and I hereby direct accordingly.”

The Defendant/Appellant being dissatisfied with this decision has appealed to this Court on the following grounds of appeal:-

(1) The learned trial judge erred in law in awarding aggravated damages to the Plaintiff.

Particulars of error

a) There was no pleading on the part of the Plaintiff of any behaviour of the Defendant in aggravation of damages.

b) . There was no proof of any behaviour of the Defendant which could have justified an award of aggravated damages.

c) The injured feelings and embarrassment alleged and held as proved by the Plaintiff are the consequences of the alleged negligence of the Defendant. The Defendant had not been shown to have done any other act in excess of its alleged negligence to aggravate the damages occasioned by the negligence.

d) Negligence does not fall within the group of tortuous claims for which aggravated damages is normally awarded.

(ii) The decision of the learned trial judge that the Plaintiff had proved beyond reasonable doubt that the currency sold by the Defendant was counterfeit was against the weight of evidence.

(iii) The decision of the learned trial judge that the plaintiff’s evidence in proof of his alleged arrest and detention was uncontroverted and unchallenged was against the weight of evidence as the learned trial judge did not give full consideration to the inconsistencies and contradictions revealed in the Plaintiff’s testimony by cross-examination.

(iv) The award of N750,000 as aggravated damages was excessive and erroneous in that the learned trial judge failed to take into consideration factors relevant to the circumstances of the alleged wrong and also the lack of proof of any consequence of alleged shame and embarrassment of the Plaintiff and whether the Plaintiff had any international reputation which was affected.

(v) The learned trial judge erred in law in failing to give judgment on the Defendant’s claim under the third party notice.

Particulars of Error

a) The learned trial judge had dealt with the third party notice in his judgment in holding that the third party was bound by the Statement of Defence and by the decision of the Court in the Suit.

b) The learned trial judge however failed to make any decision regarding the Defendant’s claim for indemnity against the Third Party under the third party notice, which he ought to have done.

c) Having dealt with the third party notice without reaching a decision on the claim thereunder the third party notice cannot be further tried separately after the pronouncement of the judgment herein.”

Briefs of argument were subsequently filed and exchanged. The appellant formulated four issues for determination. They are:-

“1. Whether the Plaintiff has proved beyond reasonable doubt the allegation that $140 in American currency notes sold to it (sic) by the Defendant/Appellant were counterfeit.

2. Whether the Plaintiff was entitled to the award of aggravated damages in this suit.
3. Even if Plaintiff was entitled to an award of aggravated damages, whether the Plaintiff actually suffered any significant injury to his feelings of self esteem as to warrant the quantum of the award made.
4. Whether the third party notice has been satisfactorily dealt with by the learned trial judge.”

The respondent in his brief identified three issues for determination in the appeal. The issues formulated by the respondent are similar to those formulated by the appellant. There is no need to reproduce them. I will adopt the issues formulated by the appellant as the issues for determination in this appeal.

I will now consider the first issue i.e. whether or not the plaintiff has proved beyond reasonable doubt that the American Dollars sold to him by the appellants were counterfeit. Selling counterfeit currency is a crime as rightly held by the trial judge. Since there is an allegation of crime against the appellant, the respondent is bound to prove the allegation beyond reasonable doubt. Section 138 of the Evidence Act Cap 112 Laws of the Federation of Nigeria provides:- “138(1) If the commission of crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of Section 140 on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”

From the above quoted provision, it is clear that where a person asserts the commission of a crime in any civil proceeding, where the criminal act is directly in issue, that person must prove the commission of that crime beyond reasonable doubt. See Benson Ikoku Vs. Enoch Oli (1962) 1 SCNLR 307. See also Nwobodo Vs. Onoh (1984) 1 SCNLR 1 where the Supreme Court considered the above provision and stated at page 4 that the Rule in Civil proceeding is subject to the principle of Severance of pleadings. This principle is to the effect that if after severing the allegation of crime from the body of pleadings, there still remain enough averments upon which the plaintiff can still rely to prove his case then the a burden on the plaintiff in order to succeed, is one of balance of probability. What this means in effect is that if the allegation of crime is severed from the body of the Statement of Claim, would there still remains enough averments upon which the plaintiff would not require to prove this case? If that is so, the Plaintiff would not require to prove the case beyond reasonable doubt, it will be enough if he succeeds in proving his case on balance of probability.”

I have carefully considered the pleadings in this matter. The respondent alleged that the appellant sold to him fake or counterfeit American dollars. The appellants have denied this allegation. It is clear that the commission of crime is directly in issue in this matter. It is also clear from the pleadings that the principle of severance cannot apply to this case. If the allegation of crime is severed from the body of the pleadings, there will not remain enough averments upon which the respondent could still rely and prove his case. I therefore hold that in order to succeed, the respondent must prove the allegation of crime beyond reasonable doubt.

The law is that once the Court is left in a state of doubt as to the guilt of the accused, the prosecution has not proved its case beyond reasonable doubt. In such a case, the accused should be given the benefit of doubt and be acquitted. See Ikhane Vs. C.O.P. (1977) 6 S.C. 119. The meaning and connotation of “proof beyond reasonable doubt” has been stated by the Supreme Court in the case of Akalezi Vs. the State (1993) 2 NWLR (Pt. 273) 1 as follows:-

“Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. In the case of Miller Vs. Minister of Pension (1947) 2 All. E.R. 372, it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt.”

The learned trial judge before arriving at his decision relied heavily on the documentary evidence adduced before him. He also disbelieved the evidence of the only defence witness whom he said was out to mislead the court to protect not only his employers but also himself and his job.

The evidence before the court below is that the respondent bought $144 from the appellant. This is not in dispute. The appellant agreed that they sold the American dollar notes to the respondent. The respondent testified that he wanted to make a phone call at the arrival hall of the Zurich airport. He therefore went to a Bank to change one of the notes sold to him by the appellant. The bank cashier looked at the note and declared that the dollar note was fake. The cashier called the police and the respondent was arrested. The other notes sold to the respondent by the appellant, were also seized by the Zurich Police. They said the notes were also fake.

However, the appellant denied selling fake American dollars to the respondent. They maintained that the American dollars sold to the respondent were genuine. The appellant’s witness testified that they purchased the dollars from the Nigeria Police and that:-

“At the time we purchased the foreign exchange from the Police they were properly checked as to their genuiness. I personally checked them. As at 1988 I had been dealing with foreign exchange for 14 years. During that period, I saw counterfeit American Dollars I can easily identify one if I see it. To the best of my knowledge and from my experience the American Dollars we sold to the plaintiff were very genuine.”

This piece of evidence was not challenged. Indeed the witness was not cross examined on this issue.

It should be noted that there is no evidence that the bank cashier at Zurich airport tested the genuiness of the currency note with any machine. It was testified that he just looked at it. There was also no evidence that the Zurich Police subjected the dollar notes to any test either scientific or mechanical before concluding that the notes were counterfeit. The trial judge based his judgment on the documentary evidence. However, all these documents which he relied upon derive their assertion from the Zurich Police but there is nowhere in the plaintiff’s testimony nor in any of the documents relied upon by the trial judge that they discovered that the notes were counterfeit after conducting a scientific test or using a scientific instrument.

Considering the totality of the evidence adduced we can see that on the one side is the plaintiff’s testimony who testified that the cashier at Zurich Airport said the currency note was counterfeit. The Swiss Police also through the documents tendered declared the currency notes as counterfeit. On the other side, we have the evidence of DW1, a Bank Manager in Nigeria who testified that the currency notes were genuine. We also have the Nigeria Police who by virtue of the fact that they sold the currency notes to the appellant must have asserted that the currency notes were genuine. The Nigeria Police and a Nigerian Bank Manager assert that the currency notes were genuine while the Swiss Police and a Swiss Bank Cashier assert that the currency notes were counterfeit. It is my considered opinion that since the currency notes in question were neither Nigerian currency nor Swiss currency, the opinion of neither should be given preference over the other. This is so because the said currency notes were not forensically tested, either by the Nigeria Police or the Swiss Police. The currency notes were also not tendered in evidence before the lower court.

Since the currency notes were not tendered before the court and no forensic test was conducted to establish whether or not the currency notes were counterfeit and in view of the conflicting evidence adduced by the two sides, I am of the view that the plaintiff has failed to prove his case beyond reasonable doubt. There is nothing to make the trial judge prefer the evidence adduced by the respondent to that of the appellant.

Since the respondent made an allegation of crime against the appellant, the standard of proof required is proof beyond reasonable doubt. This the respondent has failed to do. My answer to the first issue for determination is therefore in the negative. The first issue is the main issue in this appeal. The other three issues are ancillary to the first issue. Since I have come to the conclusion that the respondent did not prove beyond reasonable doubt the allegation that the $140 sold to him by the appellant were counterfeit, this has effectively disposed of the appeal. There is no need to consider the remaining issues.

In the circumstance the appeal succeeds and it is hereby allowed. The judgment of the Court below is set aside. I make no order as to costs.

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Other Citations: (1997)LCN/0336(CA)

Alh. Abdul Waheed Ahmed V. Trade Bank of Nigeria Plc (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

The appellant in this appeal was one of the customers of the respondent Bank at its Ilorin branch in Kwara State. By a letter dated 8th August, 1991, the appellant applied for a short term loan of N500,000.00 from the Ilorin branch of the respondent to enable him to execute a contract for the supply of kitchen equipment to the Government House Ilorin. In this application, the appellant gave the undertaking that the proceeds of the execution of the contract was to be paid directly to the respondent Bank. The respondent, through its letter dated 30th August, 1991 approved the appellant’s application and granted him overdraft facility of N500,000.00 payable on 31st October, 1991. Other conditions of the loan such as the interest thereon and other charges were contained in the respondent’s letter which the appellant signed as having accepted the loan on the conditions it was granted. When the loan remained unpaid up to 7th April, 1992, the respondent wrote to the appellant demanding for the repayment of the loan which by then had arisen to the tune of N544,551.94. When more than one year later on 25th May 1993 the amount due from the appellant rose to N690,500.85 and still there was no effort on the part of the appellant to settle the debt, the respondent then took out a Writ of Summons under the undefended list and claimed from the appellant as defendant the following reliefs

“The claim of the plaintiff against the defendant is for the sum of N690,500.85 being the principal sum plus agreed interest on the loan/overdraft facilities granted to the defendant at his request and which he has failed, neglected and refused to pay despite repeated demands.

Whereof the plaintiff claims:-

(i) The sum of N690,500.85 being the debt outstanding on the defendant’s current account at 25th May, 1993.

(ii) Interest at the rate of 35% per annum from 26th May, 1993 till the date of judgment.

(iii) 10% interest per annum on the “judgment debt from the date of judgment until final liquidation.”

The marked writ of summons on the undefended list was duly served on the defendant now appellant in this appeal together with the affidavit in support of the respondent’s claims paragraph 12 of which clearly deposed that the defendant/appellant had no defence to the action. Inspite of having been so served with the process of the Lower Court, the appellant failed to take any step in accordance with the rules of the lower court to file any notice of intention to defend the suit together with an affidavit disclosing his defence on the merit. Accordingly, the suit was heard as an undefended suit and judgment entered for the respondent in terms of its claims on 29/11/93. Aggrieved by that decision, the appellant with the leave of this court granted on 13/7/95 had appealed against it. Contained in the notice of appeal are the following two grounds of appeal without their particulars:-

“1. The learned trial Judge erred in law when she entered judgment for the plaintiff and treated the suit as undefended when the proper parties for the determination of the case as such whose presence are mandatory are not made parties to the suit.

2. The learned trial Judge erred in law in that the judgment entered as undefended list in favour of the respondent is a clear inadvertence violation of the rule relating to action treated as undefended list.”

Although briefs of argument were duly filed and served by both parties to this appeal before it came up for hearing on 19-3-97, the appellant was not represented at the hearing inspite of his counsel having been put on notice. The appeal was therefore deemed to have been argued by the appellant while the learned counsel to the respondent merely adopted the respondent’s brief of argument and urged this court to dismiss the appeal.

In the appellant’s brief of argument, two issues were formulated from the two grounds of appeal. The issues read:-

“1. Whether the trial court was right in determining the suit under undefended list.

2. Whether the judgment of the court can be sustained.”

In the respondent’s brief of argument however, only one issue was identified for the determination of the appeal. The issue is:-

“Whether the learned trial Judge was not right to have placed the suit on the undefended list and to have given judgment accordingly having regard to the circumstances of the case.”

It was observed in the respondent’s brief that the two issues framed in the appellant’s brief of argument are not related to the grounds of appeal filed by the appellant. This statement is not correct because the two issues raised by the appellant are virtually the same complaining in the main against the determination of the appellant’s claim under the undefended list. However what had been brought out quite clearly by the issues as framed by the appellant is the fact that no issue was framed on ground one of the appellant’s grounds of appeal which complained on the absence of proper parties before the lower court. Taking into consideration the nature of this case which was heard and determined under the undefended list without the appellant taking any step under the rules of the lower court to file any notice of intention to defend the suit with an affidavit of defence disclosing such defence on the merit, it is difficult to see how the appellant can now be heard on appeal on an issue of absence of proper parties at the trial which was not raised at the lower court without leave granted by the lower court or this court. It is settled law that issues for determination in an appeal are framed from the grounds of appeal filed by the appellant Consequently, any issue, argument or other part of the brief which has no ground or grounds of appeal to support it, or which is based on a ground of appeal for which no leave was sought and obtained is not only incompetent but also completely useless for the purpose of the appeal. See Idika v. Esiri (1988) 2 NWLR (Pt. 78) 563 at 579 – 580. Therefore taking into consideration that no leave was granted to the appellant to raise ground one of the grounds of appeal as a fresh point before this court, coupled with the fact that no issues was formulated by the appellant from that ground of appeal, all the arguments advanced by the appellant on this ground in the appellant’s brief are to be ignored in the determination of this appeal.

In short, having regard to the circumstances of this case, there is only one issue for determination as identified in the respondent’s brief of argument which issue infact is virtually the same as the two issues framed in the appellant’s brief of argument. The lone issue that has to be determined is whether the learned trial Judge was right in hearing and determining the suit filed by the respondent under the undefended list having regard to the requirements of the rules of the lower court. It was argued for the appellant that having regard to the contents of paragraphs 7 and 13 of the respondent’s affidavit in support of its claims which stated that the Kwara State Government had given an undertaking for the domiciliation of the account, the lower court ought to have transferred the matter to the general cause list for hearing.

This is the only argument in the appellant’s brief which is relevant to this appeal. All the remaining arguments in the brief touching on the issue of the alleged non-service of court processes and hearing notices on the appellant relate to matters which have not been raised in either of the two grounds of appeal filed by the appellant. With no ground or grounds of appeal from which issues were formulated to support such arguments, the arguments are plainly irrelevant for the purposes of this appeal. See Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514; Ifediorah v. Ume (1988) 2 NWLR (Pt.74) 5 and Omagbemi v. Guinness (Nigeria) Ltd. (1995) 2 NWLR (Pt. 377) 258 at 268.

It was submitted for the respondent that the claim of the respondent against the appellant being one for the recovery of debt within Order 23 Rule 1 of the Kwara State High Court Rules 1989, was properly placed under the undefended list and properly heard as such. A number of cases including Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414 at 443 were cited and relied upon in support of this argument. Learned counsel to the respondent had contended that since the appellant was duly served with the claims of the respondent duly supported by an affidavit but failed to file his notice of intention to defend the action together with an affidavit disclosing his defence on the merit, the lower court was right in proceeding to enter judgment for the respondent having regard to order 23 rule 3 of the rules of the lower court and the cases of Uba Kano v. Bauchi Meat Production Ltd. (1978) 9 and 10 SC 51 and First Bank Ltd. v. Khaladu (1993) 9 NWLR (Pt. 315) 44 at 55-57.

Now, in Kwara State, the procedure for the hearing and determination of an undefended suit is as provided by Order 23 Rules 1 to 5 of the Kwara State High Court (Civil Procedure) Rules 1989. By these rules of order 23, an application to place a suit on the undefended list must be made to the court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim. The application must be supported by an affidavit setting forth the grounds upon which the claim is based and stating in one of the paragraphs of the affidavit that in the deponent’s belief, there is no defence to the action. The court to which the Writ of Summons was filed shall examine the claims and the affidavit in support thereof, and if satisfied that there are good grounds for believing that there is no defence to the suit, enter the suit for hearing under the undefended list of the court and mark the writ of summons accordingly and enter thereon a date for hearing. A copy of the affidavit is served with each copy of the marked writ of summons on the defendant or defendants as the case may be. If the defendant is not disputing the claim, he does not need to do anything. In that case, on the date fixed for the hearing, judgment will be given for the plaintiff without his calling evidence in proof of his claim unless the court on its own discretion in the interest of justice calls for oral on documentary evidence. See U.T.C. (Nigeria) Ltd. v. Pamotei (1989) 2 NWLR (Pt. 103) 244.

However, where the defendant on being served with marked writ of summons and on the affidavit in support of the plaintiff’s claim containing a date fixed for the hearing of the suit, felt that he has a defence to the suit, he is required by Rule 3 on Order 23 of the rules to file a notice of intention to defend the suit supported by an affidavit disclosing his defence on the merit to the action before or on the date fixed for hearing. It is important to note that the provision in the old rules requiring the filing of such notice of intention to defend at least 5 days to the date fixed for the hearing of the suit is not applicable in the current rules. Such notice and affidavit can now be filed by a defendant even on the very day the case is fixed for hearing. At the hearing, the first duty of the learned trial Judge is to examine the defendant’s affidavit to see if it really disclosed a defence on the merit to the action. If the trial Judge is satisfied that the defendant’s affidavit has disclosed a defence on the merit to the action, the suit is there upon transferred to the ordinary cause list for hearing after the exchange of pleadings between the parties. Where however the learned trial Judge is satisfied that no defence on the merit to the action had been disclosed in the defendant’s affidavit in support of his notice of intention to defend the suit, then the case is heard as an undefended suit and judgment given thereon to the plaintiff. Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd (1989) 5 NWLR (Pt. 123) 523 at 529.

In the present case, the marked writ of summons and the supporting affidavit together with the documents exhibited to the affidavit, particularly the appellant’s application to the respondent for a N500,00000 loan and the respondent’s reply granting the appellant overdraft facility of N500,000.00 payable within a given period which the appellant signed and accepted, there is no doubt whatsoever that the respondent’s claim in the instant case was one for the recovery of debt within the contemplation of rule 1 of Order 23 of the Kwara State High Court (Civil Procedure) Rules 1989. The record of the lower court shows plainly that the appellant who was the debtor, was duly served with the writ of summons containing the claims of the respondent against him together with the supporting affidavit in which it was deposed that the appellant had no defence to the action. Therefore by failing to avail himself of the opportunity provided by Rule 3 of Order 23 of the High Court Rules 1989 by filing a notice of intention to defend the action together with affidavit disclosing his defence on the merit to the action, the appellant as defendant was deemed to have admitted that he had no defence to the action. The learned trial Judge therefore was right in entering judgment for the respondent without calling upon it to lead evidence, oral or documentary. See U.T.C. (Nigeria) Ltd. v. Pamotei (supra). For this reason,l am of the firm view that the present action was properly placed and heard as an undefended suit by the lower court. Accordingly, the judgment entered by the learned trial Judge in favour of the respondent as the plaintiff without calling oral or documentary evidence was quite proper being in accordance with Rule 4 of Order 23 of the Kwara State High Court (Civil Procedure) Rules 1989.

In the result, I find no merit at all in this appeal, which I hereby dismiss. The judgment of the lower court of 29/11/93 is hereby affirmed. There shall be N1,000.00 costs to the respondent.

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Other Citations: (1997)LCN/0335(CA)

Samuel Abolarin V. Chairman Rent Tribunal No.3 Lugard Hall, Kaduna & Ors (1997)

LawGlobal-Hub Lead Judgment Report

IGE, J.C.A.

This is an appeal against the judgment of Yahaya J. delivered on 14/2/91 in Suit No. KDH/KAD/231M/90. This case originated from the Kaduna Rent Tribunal No.3 presided over by the 1st respondent. The 2nd respondent (later referred to as 2nd to 5th respondents after the death of the 2nd respondent) sued the appellant to court for recovery of possession of the house known as No.3 Garden Avenue. Afaka, Mando village, Kaduna. The respondents also asked for payment of arrears of rent at N200 a month from June 1990 up to the date of judgment and mesne profit thereafter.

The 1st respondent as the Chairman of the Rent Tribunal No.3 gave judgment in favour of the respondent upon the admission of the appellant.

The appellant was later dissatisfied with that judgment hence he took out a writ of certiorari in the Kaduna High Court for a judicial review of the judgment of the 1st respondent for the purpose of being quashed. This gave rise to Suit No. KDH/KAD/23/M/90 before Yahaya J of the Kaduna High Court wherein the appellant complained that 1st respondent acted without jurisdiction as the relationship between him and the respondents was not that of landlord and tenant.

After looking into the application and considering all the affidavits in support and against, the learned trial Judge delivered his judgment in favour of the respondents on 14/2/91 thus:-

“From all the above, it is my well considered view, that the 2nd defendant/respondent had an equitable title to the premises having been so recognised by both the applicant and the law. Even if this did not pass title to him, it is obvious that the power of attorney donated to the 2nd respondent entitled him to exercise all rights including taking possession and collecting rents on the property. This right is general and does not in any way exclude the donor. Once he exercised this right, the donor could not complain. The case Ebesua v. Nbaduba (1981)11 CA 220 AT 228 cited by Mr. Owolabi is direct on this issue. I hold therefore that the proceedings before Rent Tribunal III Kaduna were valid and in order and the Tribunal had jurisdiction to entertain the matter since it was a relationship between a landlord (Donee of the power attorney) and tenant (Donor of the power of attorney). The application lacks merit and it is hereby dismissed. The judgment and orders of the Rent Tribunal III may be enforced directly.

Sgd

Justice A. Yahaya

Judge

14/2/91”

The appellant is further dissatisfied with this judgment and has appealed to this court.

In his Notice of Appeal dated 15th February, 1991, the appellant filed one ground of appeal with a promise to file further grounds of appeal. This is the original ground of appeal and it reads thus with its particulars:-

“The learned trial Judge erred and misdirected himself on points of law when he held to the effect that considering all the documents before him it was clear to him that the appellant/applicant had “sold” his house to the 2nd respondent.

Particulars of errors in law

(a) No “Sale” or alienation is valid in law or enforceable by a court of law unless such a “Sale” or alienation was done with the consent in writing of the Military Governor of the State.

(b) There was no consent of the Military Governor presented to the court in respect of the transaction before the court.

(c) The learned trial Judge failed entirely to advert to any of so many legal principles relevant to issues before him.

Particulars of misdirection in law

(a) The reasoning and decision of learned trial Judge were based on issues not traversed before him.

(b) The counsel to the 2nd respondent abandoned their claim to assignment in the face of incurably defective documents.

(c) The issue for resolution following (b) was whether the alleged Power of Attorney could entitle the donee to evict the donor from the subject property.

(d) The learned trial Judge failed to address this issue but rather misdirected his whole efforts unto reasoning in sentimental abstract.

(e) Further grounds of appeal shall be filed when the records of proceedings are available.”

The appellant later with leave of this court filed on 4/5/95, three additional grounds of appeal which I will number Grounds 2, 3 & 4. The grounds read thus:-

2. “The trial Rent Tribunal erred in law and acted without jurisdiction in adjudicating in a dispute between the appellant and the 2nd respondent whereas there was no landlord and tenant relationship between them.

Particulars

1. The Rent Tribunal acted per incuriam
2. Section 9 of the Rent Edict of Kaduna State allows the Rent Tribunal to adjudicate only in certain cases between landlord and tenant.
3. The case between the appellant and the 2nd respondent involved substantial questions of law particularly:-

(a) as to the interpretation of the transaction between both of them;

(b) as to whether there was a valid sale of appellant’s house to the 2nd respondent;

(c) as to whether the power of attorney granted by the appellant enabled the 2nd respondent to evict him.

3. The learned High Court Judge erred in law in failing to quash a judgment of the Rent Tribunal No. 3 of Kaduna which judgment the said Rent Tribunal gave without jurisdiction.

Particulars

1. The application before the Judge was for an order of certiorari and for an order quashing the judgment of the Rent Tribunal.
2. The ground was that the said Rent Tribunal acted without jurisdiction.
3. The documents presented by both parties and the averments in their affidavit sufficiently showed that there were substantial issues of law between the appellant and the 2nd respondent yet to be pronounced upon by a court of competent jurisdiction.
4. The High Court ought at that point to quash the judgment of the Rent Tribunal.
5. It was not open to the High Court to make the far reaching pronouncements in order to uphold the void judgment of the Rent Tribunal.
6. The learned High Court Judge erred in law and acted in excess of his jurisdiction when upon hearing the issue of an application, for an order of certiorari and for an order quashing the judgment of an inferior court he undertook to adjudicate into and made pronouncements on contestable and substantial questions of law between parties.

Particulars

1. An application under Order 42 of the High Court Civil Procedure Rules of Kaduna State allows only for the judicial review by a higher court of the acts of an inferior court.
2. The questions of law which arose in the transactions between the appellant and the 2nd respondent needed to be pronounced upon before the Rent Tribunal could have jurisdiction to adjudicate between them.
3. It was not competent for the High Court to expand the application for certiorari to cover consideration and pronouncement on issues that were independently contestable.”

For determination in this appeal, the appellant has formulated two issues namely:-

1. “Whether or not it was right for the Judge of the High Court to fail to quash the judgment of the trial Rent Tribunal considering the fact that there were very clear evidence that the said trial Rent Tribunal lacked jurisdiction to adjudicate in the case in which the judgment was given on the basis that the nature of the dispute between the parties did not indicate relationship of landlord and tenant
2. Whether or not the Honourable Judge of the High Court was right in considering and making pronouncements on contestable and substantial questions of law rather than just weighing out whether or not the judgment of the Rent Tribunal ought to be quashed.”

After criticising the two issues framed by the appellant, the learned counsel for respondents formulated only one issue for determination. The respondents’ issue reads thus:-

“Whether consent of Military Governor is necessary for exercise of jurisdiction of Rent Tribunal in property where the parties before the tribunal were not in dispute as to title and the appellant has accepted to pay arrears of rent to the respondent and further requested for time to deliver possession thereto.”

In his brief of argument counsel for the respondents has raised preliminary objection on the grounds of appeal filed in this case. His objections are:-

1. “That the ground of appeal in this matter is vague, misleading and was not elegantly drafted and is therefore incompetent and not a proper ground.
2. That particulars 1 (a) – (c) and 2 (a) – (e) are not only amplifications or clarification of the complaint improperly raised in the ground of appeal but are independent complaint or submission and ought to be struck out.
3. That the issues raised by the appellant were not based on the ground of appeal filed in the appeal, therefore the ground of appeal is presumed abandoned.
4. That all the issues discussed in the appellant’s brief of argument could not be designed from the ground of appeal.
5. The appellant filed only one ground of appeal but framed 2 and verbose issues for determination. The two issues framed by the appellant are incompetent and should be struck out.
6. That there cannot be a ground of appeal involving error in law and misdirection in law and such ground is not a good ground and must be struck out.”

He therefore urged this court to dismiss the appeal. The appellant’s counsel in his Reply Brief dated 10/7/96 submitted that the preliminary objection is misleading and rather adventurist. He submitted that the objection is utterly misconceived and should be ignored by the Court of Appeal and the appeal should be considered on its merit. He further stated that every issue being canvassed in this appeal goes to the competence and jurisdiction of the lower court who while sitting as a tribunal to exercise supervisory powers over a lower tribunal, went ahead to exercise its inherent jurisdiction as the High Court of a State. Issues bearing on competence and jurisdiction can be raised at any time without leave of court.

Let me first of all correct the impression created by the respondents that only one ground of appeal was filed by the appellant. As I said earlier on there are 4 grounds of appeal filed in this case, 1 original and 3 additional ground.

The law is very clear on the procedure to be adopted when drafting grounds of appeal. Under Order 3 Rule 2(2) of the Court of Appeal Rules, 1981 as amended, a ground of appeal which alleges an error or misdirection in law to be a valid ground of appeal, must comply with the following conditions –

1. Quote the passage in the judgment where the misdirection or error in law is alleged to have occurred;
2. Specify the nature of the error in law or misdirection; and
3. Give full and substantial particulars of the alleged error or misdirection -Anyaoke v. Adi (1986)3 NWLR (Pt. 31)731 at 741; Anadi V. Okoli (1977)7 SC 57 followed; and Olawuyi V. Adeyemi (1990)4 NWLR (Pt 147)746.

It is also trite law that grounds of appeal upon which issues are formulated for determination, must relate to the matters decided in the judgment from which the appeal originates. See the case of Egbe v. Alhaji (1990)1 NWLR (Pt. 128)546 at 590.

Now let us apply the above principles to the grounds of appeal filed by the appellant in this case. The first ground which is the original ground talks of error in law and misdirection in law by the learned trial Judge. The appellant’s particulars of error in law and misdirection in law have failed to comply with Order 3 r.2 (2) of the Court of Appeal Rules 1981. The appellant went on to argue his case in his stated particulars instead of quoting the exact portion of the judgment where the error or misdirection has occurred. He gave 3 particulars of errors in law and 5 particulars of misdirection in law all of which amounted to his argument of ground 1. He did not have to argue his ground of appeal through his particulars of error but through issues formulated in the appeal. See the cases of Macaulay V. NAL Merchant Bank (1990) 4 NWLR (Pt.144) 283 and Egbe V. Alhaji (1990)1 NWLR (Pt.128) 546 at 590.

In an appeal, it is issues that are argued and not grounds. Arguments based on grounds of appeal instead of issues formulated for determination must be disregarded and discountenanced by the Court. See the cases of Adejemo V. Ayantegbe (1989) 1 NWLR (Pt 110)417; Popoola V. Adeyemo (1992)8 NWLR (Pt.257)1 at 31; and Sanusi V. Ayoola (1992) 9 NWLR (Pt.265) 275. In this case not only did the particulars of ground 1 fail to comply with Order 3 R,2(2) of the Court of Appeal Rules 1981, but they are unnecessary amplifications and clarification, and unrelated to the complaint alleged in ground 1. This ground is therefore incompetent and must be struck out. Ground 1 is struck out by me.

I now go to Ground 2 which is Ground 1 of the additional grounds of appeal.

The wordings of ground 2 seem to be complaining about the decision of the Rent Tribunal which is not the decision before this court. No appeal lies directly from the Rent Tribunal to the Court of Appeal hence ground 2 is inapplicable and must be struck out. Ground 2 is baseless and is therefore struck out with all its particulars. It is wrong for the appellant to attack the decision of the Rent Tribunal No.3 of Kaduna State in the Court of Appeal – See the case of Oge v. Ede (1995) 3 NWLR (Pt. 385) 564 at 576.

Now to Ground 3 which says the learned trial Judge erred in law by failing to quash a judgment of the Rent Tribunal No.3 of Kaduna which judgment the said Tribunal gave without jurisdiction. Again the particulars stated by the appellant under this ground consist of narration and argument relating to documents and pronouncements made by the learned trial Judge. The appellant failed to specify the particulars and the part of the judgment where the error in law was committed by the learned trial judge. I am afraid this ground also fails as being incompetent.

It is hereby struck out along with its particulars and arguments.

Ground 4 says the learned trial Judge erred in law and acted in excess of jurisdiction when upon hearing the issue of an application for an order of certiorari and for an order quashing the judgment of the inferior court, he undertook to adjudicate into and made pronouncements on contestable and substantial questions of law between the parties. As he did in grounds 1 & 3, the appellant in his particulars under ground 4 went on to argue his complaints under that ground. He neither quoted the specific part of the judgment complained of, nor the pronouncements made by the learned trial Judge showing the “contestable and substantial” questions of law between the parties. This ground is even worse than the other 3 earlier grounds of appeal in that it involves question of mixed law and fact by the way it is couched. That the learned trial Judge exceeded his jurisdiction is a matter of law, but to adjudicate into and make pronouncements on contestable and substantial questions in a case, I am afraid is a question of fact

A ground of appeal cannot be an error in law and misdirection on the facts simultaneously. Wherever it does so as in this case, the ground is incompetent and should be struck out. See the case of Akuchie v. Nwamadi (1992)8 NWLR (Pt.258) 216. I hereby strike out ground 4 as incompetent

I am afraid the appellant is not left with any valid and competent ground of appeal from which he could formulate issues for determination. The two issues formulated by the appellant in this case therefore have to be discountenanced and struck out because they have not flown from anywhere. Issues 1 & 2 as formulated by the appellant’s counsel are hereby struck out. In effect respondents’ preliminary objection is upheld and the appeal is dismissed as incompetent.

This is an unfortunate case where counsel for the appellant has failed flagrantly to comply with the Rules of Court in couching his grounds of appeal properly as required by the Rules. This court and the Supreme Court have held times without number that counsel in appeal cases must comply with the Rules as laid down by the Courts. The Rules of Court are not made for fun.

The Courts have an inherent jurisdiction to ensure that litigants comply with the relevant Rules of Court, and where they have failed to do so they must be ready to face striking out of their processes or a dismissal of their case. See the case of Onifade V. Olayiwola (1990) 7 NWLR (Pt.161) 130.

I have no alternative but to dismiss this appeal as lacking in merit and unsustainable. Appeal dismissed with N2,000.00 costs in favour of the respondents.

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Other Citations: (1997)LCN/0334(CA)

African Continental Bank Plc. V. Haston (Nigeria) Limited (1997)

LawGlobal-Hub Lead Judgment Report

ACHIKE, J.C.A.

The plaintiff a private limited liability company operates, at all material times, a current account with the defendant bank at Calabar. Plaintiff’s case is, that as customer of defendant bank, and by means of certain forged cheques, its account was fraudulently debited with a total sum of N212.700.00. As a result of the defendant’s negligence, the plaintiff suffered in its trade and business and also injured as to its credit and has been unable to pay its creditors. Whereof the plaintiff claimed against the defendant as follows:

“(1) The Defendant is in breach of her duty to the Plaintiff by refusing to make available to her, her STATEMENT OF ACCOUNT and copies of the cheques and instruments drawn on the Account as demanded.

(2) The Defendant is in breach of her duty to the prevailing interest rate of 54% per annum from the date of withdrawal until judgment.

(3) N5 million being damages for breach of contract, negligence and loss of reputation.”

The defendant denied any forgery or fraudulent debiting of plaintiff’s account or any breach of contract and raised various legal defences which were rejected by the trial court.

At the conclusion of the hearing, the learned trial judge Effanga J (as he then was) found for the plaintiff and entered judgment in its favour as follows:

“(1) N212, 700.00 being money fraudulently withdrawn from the plaintiff’s Account No. 05604 as a result of the Defendant’s negligence and collusion.

(2) Interest on the principal calculated at the rate of 54% per annum from the date of withdrawal until judgment.

(3) N3.5 million being general damages for the breach of contract, negligence and loss of reputation. N1,000.00 as cost.”

Dissatisfied with the judgment defendant has appealed to this court, having filed nine grounds of appeal.

Chief U. N. Udechukwu SAN, learned counsel for the appellant formulated the following issues for determination:

“(1) Whether the Respondent’s Solicitor at the trial court could in fact be said to have failed to sign the plaintiffs amended statement of claim.

(2) Whether, if indeed the Solicitor did not so sign, or date the amended statement of claim, such a ground was sufficient, or even valid to reverse the decision of the trial court, having regard to the provision of the Cross River State Civil Procedure rules.

(3) Whether the Respondent, as plaintiff, suing in her name and own behalf, needed or could be required to produce authority from herself to herself, to warrant taking out the proceedings.

(4) Whether this court is not empowered under its rules to effect an arithmetical correction, once proven to be merely so, and thereby sustain, rather than overturn the judgment of a lower court.

(5) Whether the pleadings and evidence of the Respondent, as proposed before the trial court were insufficient to prove custom and usage, as well as elicit the grant of interest over the principal award, as allowed by the Learned Trial Judge.

(6) Whether the Learned Trial Judge was not entitled to make findings and to effect award in favour of the Respondent for general damages under more than one subhead of substantive law, particularly in Tort and in contract.

(7) Whether on the totality and preponderance of the evidence in proof of the respective pleadings between the parties before him, the learned Trial Judge was wrong to enter judgment for the Plaintiff/Respondent.”

For the respondent, its learned counsel Mr. Richard Ebri also formulated seven issues for determination:

“(i) Whether the learned trial judge had the jurisdiction to decide the case based on the Plaintiff’s further Amended Statement of claim which was neither dated nor signed;

(ii) Whether the learned trial Judge was justified when he said that the threshold issue as to competence of the suit raised by the Defendant did not arise and that the averments in paragraphs 4 to 8 of the Defendant’s further Amended Statement of defence were misconceived, misplaced and frivolous.

(iii) Whether the learned trial Judge was justified when he relied on Exhibits 1, 1A, 4 and 5 to give judgment in favour of the plaintiff.

(iv) Whether the learned trial Judge was justified when he held that paragraphs 14, 15, 16, 19, 20 and 21 of the Further Amended Statement of claim were not abandoned.

(v) Whether the award of the sum of N212,700.00 to the Plaintiff as “money fraudulently withdrawn from the Plaintiff’s account No. 05604 as a result of the Defendant’s negligence and Collusion” is justifiable.

(vi) Whether the award of 54% Interest per annum as interest on the principal sum of N212,700 is justified by the pleadings and evidence in this case.

(vii) Whether the award of the sum of 3.5 Million Naira to the Plaintiff as general damages for breach of contract, negligence and loss of reputation was warranted by the pleadings and the evidence in this case.”

At the oral hearing no further arguments were advanced by counsel who relied on their respective briefs.

On appellant’s first issue, Chief Udechukwu SAN submits that failure to sign and date the plaintiff/respondent’s pleadings rendered the same null and void, as the court lacked the jurisdiction to act on the said unsigned and undated pleadings. Reliance was placed on Anunam (Nig) Ltd. v. Leventis Motors Ltd. (1990) 5 NWLR (Pt. 151) 458 at p. 568. For the respondent, Mr. Richard Ebri of counsel submits on their behalf that the amended statement of claim was signed because, according to counsel, it is sufficient by the dictionary meaning of the word ‘signature’ once what is done by a person amounts to:

” …. an indication by sign, mark or generally by writing of a name or initials that a person intends to bind himself to the contents of a document.”

In other words, it is counsel’s submission that mere typing in of a person’s name or initials will amount to sufficient signature. Counsel refers to P. 40 of record to show that the submission on the document not being dated is misconceived. It is also counsel’s further submission that the provisions of Order 25 Rule 28 and Order 2 Rules 1 and 2 of the Cross River State High Court Rules are enough to take care of the question of failure to sign the pleadings by respondent. Counsel further submits that the authority of Anunam case is not helpful in the instant case and cites several authorities in support of this contention to stress that the complaint about absence of signature is one based on technicality which counsel contends should be discountenanced.

Clearly, in ordinary parlance, to sign a document or place one’s mark or to thumb impress a document as it applies to any person implies to affix one’s signature or that which he regards as his mark or to affix his thumb impression on the document. The submission of respondent’s counsel that mere typing of a person’s names or initials on a document is sufficient to constitute that person’s signature or mark is, with respect, rather on the ridiculous side because the requirement for introducing one’s signature on a document prima facie envisages the act of affixing what a person affirms to be his signature, and this may well be his mere mark, or sigh or simply writing his initials thereon. Whatever is done to represent a person’s signature, it is manifest that it requires doing something overt on the document which is recognisable by any interested person. It is therefore untenable to hold that merely typing of a person’s name on a document, without more, will by any imagination amount to affixing ones signature thereon. But the learned trial judge Effanga J. (as he then was) reasoned differently. This is how he put it at 146 line 3 et seq of the record:

“Order 25 Rule 4 provided for the signing of pleadings. It however does not define the word “sign”. But MOZLEY Law Dictionary says that “SIGNATURE” is an indication by sign, mark or generally by writing of a name or initials that a person intends to bind himself to the contents of a document. That in my view is just what Okon N. Efut Esq did. He intended to be bound by the contents of the Statement of claim as amended.”

Learned Appellant’s counsel who had earlier cited and relied on Anunam case as good authority for the invalidity of the pleadings by reason of absence of signature of respondent’s counsel goes further and says that “the authority is binding on the lower court, being a decision of the Court of Appeal (Jos Division) who lacked the jurisdiction to ignore that decision or depart from it.” In support of this proposition, he relied on Okonjo v. Odje & Ors. (1981) 10 SC 267 at 268.

Learned appellant’s counsel described the learned judge’s conclusion as non sequitur, I am clearly of opinion that the conclusion of the learned trial judge is insupportable, and indeed misconceived being contrary to the definition proffered in the Mosley Law Dictionary. It is obviously going too far to impute that by merely typing of “Okon Efut Esquire” on the pleadings tantamount that the named counsel signed the pleadings. That reasoning is far-fetched and to say the least, weird.

Ex facie, the submission of learned counsel for the appellant is seemingly sound but it appears to me that a lot depends on all the circumstances of the case. The doctrine of stare decisis is now firmly established in our jurisprudence that it ought not to lead to any confusion. Nevertheless, be it noted that a trial judge who is confronted with a decision of this Court is not obliged to follow such earlier decision of the Court hook, line and sinker where he finds that the earlier case is distinguishable from the facts or circumstances of the case under reference. After all, the doctrine of precedent only enjoins a lower court to follow the early decision of a superior court which is found to be seemingly on all fours with the case under consideration by the lower court, and not otherwise.

Appellant’s learned counsel has urged us to affirm our decision in Anunam case. This will depend on the construction we shall give to the relevant provisions of the applicable law. The question whether failure to sign or date the pleadings will nullify the pleadings depends on the effect to be given to Order 25 Rule 28 of the Cross River State High Court Rules. That rule provides that: “No technical objection shall be raised to any pleading on the ground of any alleged want of form.”

It is manifest that counsel’s omission to affix his signature to his pleadings is an error or irregularity which goes to form. Such failure is excused by Order 25 Rule 28. It is enough answer to appellant’s complaint under issue No. 1.

No doubt if appellant counsel had raised this point of omission or irregularity in limine he would have been satisfactorily met by the provisions of Order 2 Rule 2(1) which states:

“An application to set aside for irregularity any proceedings or any document ….. shall not be allowed unless it is made ….. before the party applying has taken any fresh step after becoming aware of the irregularity.”

It would have been obvious that appellant’s amended statement of claim dated 16/8/93 would tantamount to a step envisaged under Order 2 Rule 2(1) sufficient to put to an end to the quibbling on irregularity.

Let us now examine the background underlying the decision in Anunam case. There, in that case which originated in the Plateau State High Court, pleadings were neither dated nor signed. Ordinarily, that state of the pleadings would be inconsequential to the validity of the pleadings, except that by the High Court Law applicable to Plateau State, its Order 18 Rule 18 enjoins the lower court to make references to the applicable rule of practice and procedure for the time being in force in the High Court of Justice in England and conform therewith Mutatis mutandis. The invocation of that applicable rule of procedure requires that pleadings shall be dated and signed. On appeal, the Jos Division of this Court held, and rightly in my view, that the unsigned and undated pleadings rendered the pleadings invalid, so also the proceedings. This meant that the trial Judge lacked the jurisdiction to found against the defendant.

This, however, is not the situation in the instant case. I am satisfied that the decision in Anunam case neither bound the lower court nor binds this court as the applicable laws in the two cases are different and are bereft of ambiguity. No doubt, although I am clearly of the view that, failure to sign the pleadings would ordinarily not have the effect to invalidate the pleadings, nevertheless, any adverse consequence to the contrary has been neutralized by the benevolent provisions of Order 25 Rule 28 of the Cross River State High Court Rules. Rule 28 ensures that anachronistic and undue adherence to technicalities under our adjectival law would no longer be tolerated or used as an instrument or ridicule to enthrone injustice. So I said elsewhere in OHMB v. B.B. Apugo & Sons Ltd. (1995) 8 NWLR (Pt. 416) 750 at p.753:

“… the present mood of the courts, particularly the appellate courts has shown a radical shift from the stance of absolute rigidity and undue reliance on technicality to one of liberality.”

This approach had earlier been endorsed by Karibi-Whyte J. S. C. in Ihrahim v. Osim (1988) 3 NWLR (Pt. 82) 257 at p. 296.

The conclusion from the foregoing is that issue No. 1 lacks merit and the same is resolved against the appellant.

Appellant’s counsel calls the 2nd issue a threshold issue because it raises the question of the competence of the plaintiff/respondent to institute the action. He contends that the burden is on the respondent to establish his competence to initiate the action otherwise the court would be incompetent to entertain the suit. Reliance is placed on Ajao v. Sonata & Ors (1973) 5 S.C. 119 at 123. Counsel submits that when an action is taken against a limited liability company and when the right to initiate the action is challenged, the burden is on the plaintiff to establish the authority empowering it to initiate the action. It is his further submission that Exhibit 2, the Mandate Card does not convey such authority, nor do Exhibits 4 and 5. Finally, counsel relies on section 244(1) of Companies and Allied Matters Act 1990 (C.A.A.) in his contention that Management of the Company rests in the collective management of the Board of Directors and the Board must act by resolutions and relies for this proposition on Atewolgun v. Metro Motors Ltd (1978) NCLR 346. Concluding, he submits that in the absence of production of such resolution of the Board authorizing the commencement of the action, respondent’s suit would be incompetent.

Respondent’s learned counsel submits that no such authority is required for a company to institute an action and that the authority of Ajao v. Sonola & Ors (supra) only applies where a person sues in a representative capacity for and on behalf of the company. Finally, counsel submits that sections 244(1) and 292 of the CAMA 1990 are inapplicable and urged us to disregard all the submission on this issue.

It goes without saying, and indeed as good legal principles that for a suit to be validly constituted the plaintiff must have the capacity and competence to initiate it. The right to initiate a suit can be challenged, and invariably is challenged as soon as possible in order to enable the trial court make a decision in respect thereof. Competence of the plaintiff is a fundamental issue as it goes to the question of competence of the court to entertain the suit. In other words, it goes to the issue of jurisdiction. Where there is a challenge to a party’s right to initiate an action, as was done by the defendant/appellant in the instant case, the burden rests on the defendant/respondent to establish his competence to initiate the action. Ajao v. Sonola & Ors (supra) is a good authority that there must be competence as well as capacity by plaintiff/respondent to institute an action. Contrary to what learned respondent’s counsel has submitted, I am clearly of opinion that Ajao case is helpful on the issue of competence of the appellant to institute the action at the lower court. By section 244(1) of CAMA, 1990, as well as by Exhibit 6, it is unquestionably clear that the management of a company is the collective duty of the Board of Directors. It is also firmly established that no person can institute an action in the name of a company unless it is so instituted on the authorization of the company upon the resolution of the Board of Directors or the resolution of the shareholders. This is so because where an injury has been done to a company, it is the company that has the right of the action and not any of the member or group of shareholders, acting together. See Foss v. Harbottle (1843) 2 Hare 461. In the absence of aforesaid resolution any action so instituted on behalf of the company is nullity. See Danish Merchantile Co. Ltd & Ors v. Beaumount & Anor (1951) 1 All E.R. 925. But it is also open to the purported plaintiff company to ratify the unauthorised act of the person who constituted the action in a general meeting to give the authorization by ordinary resolution. See Marshall’s Value Gear Co. Ltd. v. Manning, Wardle & Co. Ltd. (1909) 1 Ch. 267. Having perused Exhibit 6, the Memorandum and Articles of Association of respondent company, I am clearly of opinion that there is nothing in it that confers even on a director the right to initiate an action.

Despite the challenge to the respondent’s company to initiate the action, it simply contended, and placed reliance on the evidence of the ipse dixit of PW1, that the suit was regularly initiated without however producing any resolution authorizing the commencement of the suit. Surely, the learned trial judge was in error to deny that there was compelling need for the respondent to prove its competence by producing the resolution of the Board or ordinary resolution of members of the company. I am of opinion that failure to produce this authority to initiate the legal action is fatal to the claim. See Provincial Highway Chemist (Nig) Ltd. v. S. S. Umaru & 2 Ors (1986) F.G.C.L.R. 196 and Trans Atlantic Shipping Agency Ltd & Anor v. Dan Trans Nigeria Limited (1996) 10 NWLR (Pt. 478) 360 at 368. The contrary view of the learned trial judge that the production of the resolution authorizing the commencement of the legal proceedings was unneedful, is insupportable.

In the result the 2nd issue is resolved against the respondent.

On Issue No.3 appellant’s contention is that the learned trial judge was not justified to rely on Exhibits 1 1A, 4 and 5 to enter judgment in favour of the respondent. The submission made on behalf of the appellant by their learned counsel is that the only person who could complain about Exhibits 1 & 1A is plaintiff/respondent and there was no legal evidence of any complaint that payments were made on Exhibits 1 & 1A. It is his further contention that Exhibits 4 and 5 were respectively a letter (Exhibit 4) written kanu G. Agabi, of counsel to appellant bank in respect of the personal account of one Victpr Egba of 101 Marian Road Extention. Calabar on the other hand written by respondent’s counsel. Mr. J.B. Aniekan. It is manifest that Exhibits 4 and 5 do not strictly relate to anything done on behalf of the plaintiff/respondent, Haston (Nig) Ltd. Indeed, the preamble of Exhibit 4 makes it clear that that document was written on behalf of one Victor Ndoma-Egba. Even though this same person, who testified as PW1 and styled himself as “Chairman of the Board of Directors of plaintiffs company” and further claims that he “is a Director.” I would be testified that “Patrick T. Taiwo is the other Director. I would be surprised to know that I am not a director. There was a resolution before I was appointed a director. The defendant satisfied themselves before the Account was opened and maintained for at least three years, they did not complain about any directorship.”

The response of appellant’s Issue No. 3 tallies with part of respondent’s 7th Issue and part of the appellant’s respondent’s 7th Issue and part of appellant’s Issue No.4. It is the submission of counsel to the respondent that although the correspondence. Exhibits 4 and 5, were between Victor Ndoma-Egba and the appellant, their contents affected the respondent. Counsel further submits that the standard of proof required of the respondent in the case on hand is one that rests merely on balance of probabilities and not a proof beyond reasonable doubt. No doubt, the last submission is a valid principle of law.

It is perhaps necessary, in passing, to say just a word about the legal proposition so well-put by learned respondent’s counsel in his brief, namely, that the burden of proof on the respondent is one merely on balance of probabilities and not a proof beyond reasonable doubt. Undoubtedly, proof beyond reasonable doubt imposes a heavier burden on the party who had the onus of proof. This is the standard of proof prescribed for success in criminal prosecution. It is enough for our present discussion in expatiation of that term of art that proof beyond reasonable doubt implies or imposes a burden on a prosecutor to establish his case to the hilt. This means that all the material ingredients of the offence must be established to the satisfaction of the court. See Woollminston v. D.P.P. (1935) All ER (Reprint) 1. On the other hand, in civil cases the burden of proof is not as heavy.

Thus a rather small evidence may be required to prove a claim. So long as the fact sought to be proved has been established. Therefore, for a straightforward and non-contentious fact, very small or minimal evidence only will be required in proof thereof whereas a highly contentious fact, for example the question of directorship of PW1 and the fact of certain resolutions have been made by respondent company would only be established on preponderance of evidence.

The following observations deserve our action. First, the statement of defence, paragraph 4(1) denied that Chief Victor Ndoma-Egba who testified as PW1 was neither a Director or a shareholder of the plaintiff company. Secondly, on the admission of PW1 , the other Director of respondent company in the Articles and Memorandum of Association submitted to the appellant, in the document admitted into evidence as Exhibit 6 is P. TAWO. Yet Exhibit 6 did not confirm that PW1 was a Director of respondent company. On the contrary, Exhibit 6 named one J. BIKOM OWAN as a Director as well as P. TAWO as the second Director. Surely, it is the law that in the face of P.W.1’s claim as being a director and the challenge to this assertion in the appellant’s pleadings, rigourous cross-examination on the same issue and the unequivocal evidence of DW1 disaffirming that claim to P.W.1’s directorship, it behoves PW1 to produce good legal evidence in proof to the challenge to his directorship. In other words, the mere ipse dixit of PW1, without more, cannot effectively match the overwhelming evidence produced by the adversary in challenging his claim. Indeed, as often as I peruse Exhibit 4 and 5, the more I am convinced and left in no doubt that respondent company was a total stranger to those documents. The name Haston (Nigeria) Ltd never featured in those exhibits. How can any fair-minded tribunal allow itself, even inferentially, to be influenced by those exhibits to found a judgment in favour of the plaintiff/respondent in the face of absolute absence of any nexus or linkage between PW1 and Haston (Nigeria) Ltd., bearing in mind that Exhibit 4 was written on behalf of Victor Ndoma-Egba, who was fielded as PW1. Suffice to say that it beats the imagination.

Nevertheless and unfortunately, PW1 simply relied on his empty ipse dixit, to answer the serious challenge to his locus standi in relation to the respondent company. Clearly, this weakened respondent’s case, even on mere balance of probabilities. PW1 also testified that there was resolution of the respondent company appointing Kaine Agabi & Associates to initiate the action. No such resolution was thought fit to be tendered in evidence. No doubt, if it had been tendered, P.W.1’s name would appear thereon as one of the directors who subscribed to the said resolution. PW1 further testified that there was also a resolution of the Board of Directors of respondent’s company mandating him (PW1) as “Chairman to prosecute this matter, in court or through negotiations with Defendant if they are so disposed to its logical conclusion. In the face of the challenge to P.W.1’s claim as Director his mere ipse dixit, as already noted, in assertion thereof is hopelessly insufficient to erect the legal evidence required to sustain his bare assertion. PW1 and the respondent, ought to bear in mind that it is quite elementary but fundamental, and requires no authority to support the legal principle that he who asserts must prove. No effort was made to compel the appellant to produce the so-called resolutions which apparently were in the custody of the appellant in proof of the claim to directorship or chairmanship of the Board of Directors.

Also it is not borne out from evidence on record that respondent’s company, a limited liability company, made any demand on the appellant for either a statement of account (either in writing or orally through its servants) for paid cheques or for restitution for unauthorized payments made on Exhibits 1 and 1B.

It is quite clear to me that I can resolve Issue No.3 without going into the point whether there was satisfactory evidence or proof beyond reasonable doubt as to the criminal allegation of forgery of Exhibit 1 and 1B.

Holding earlier as demonstrated by the failure of the respondent to make a demand for loss arising from exhibits 1 & 1B or even lodge formal complaint in respect of Exhibits 1 & 1B, as well as the complete irrelevance and lack of nexus between Exhibits 4 & 5 and the respondent’s company, it is my view that by no stretch of imagination could those four exhibits on their own alone assist the learned trial judge to found in favour of the respondent. In the result I also resolve the third issue in favour of the appellant.

In the appellant’s fourth issue, paragraphs 14, 15, 16, 19, 20 and 21 were submitted to be deemed to be abandoned because respondent failed to lead evidence in respect of the facts averred in respect of those paragraphs. I shall take the paragraphs one by one.

With regard to paragraph 14 of the amended statement of claim, respondent pleaded that in consequence of the fraud perpetrated on the respondent’s account, it was obliged to spend money for running its business as traders and contractors and forced to borrow money from finance house at the rate of 15% monthly interest but PW1 testified (at p. 100 of the record) that it borrowed money from Finance Houses at the interest rate of 60%. Clearly, this piece of evidence is contrary to the pleadings and parties and even the courts are bound by the pleadings. Such conflict in evidence goes to no issue; it does not avail the respondent. It is good as saying that the pleaded facts have been abandoned Emegokwue v. Okadigbo (1973) 4 S.C. 113 at 117 and Woluchem v. Gudi (1981) 5 S. C. 291, paragraph 15.

Apart from the alleged cheques admitted in evidence as Exhibits 1 & 1A, respondents averred that it would rely on its other dishonoured cheques dated 2/4/93 drawn in honour of one said HENOUND valued at N40,000.00. It was further averred that the ‘said cheque would be relied upon at the trial of this suit. No such cheque was produced nor tendered in evidence. Of course, the trial judge, in the circumstances, was obliged to invoke section 149(d) of the Evidence Act by respondent’s failure to produce the said cheque that he pleaded. See Elias v. Omo-Bare (1982) 1 All NLR (Pt. 1) Vol. p.70. Again, that material averment of paragraph 15 must be deemed abandoned.

It was unfortunate that with regard to paragraph 16, the learned trial judge had misconceived the averment and therefore was of the view that oral evidence could be given because the documents pleaded were in the custody of the appellant and had been given notice to produce them whereas the learned trial judge failed to appreciate that what the respondent pleaded was that it would rely on mere copies of the letters and not oral evidence. In any event, paragraph 16 of the Further Amended Statement of Claim was denied at paragraph 16 of the Further Amended Statement of Defence, the result is that before the notice to produce could avail the respondent, it must first establish that the documents are in the custody of the appellant. No such proof was elicited by the respondent. In the result, it was erroneous for the trial court to presume in favour of the respondent that the documents were in the custody of the appellant. See Odionye v. Ayansi & Brunton Ltd. & Ors (1963) 2 All NLR 44 at P. 47, 15 Halsbury Laws of England (3rd ed) 361 – 362 and Nlewedim v. Uduma (1995) 6 NWLR (Pt. 402) 383 at 394.

Again, in respect of paragraph 19, it was averred that respondent rely on a certified true copy of the criminal charge at Calabar Chief Magistrates Court but failed to produce any such charge yet the learned trial judge in reference to this paragraph took the view that evidence was given and not contradicted. It was unfortunate that the learned trial judge completely overlooked the provisions of section 131 of the Evidence Act which precludes oral evidence of the judicial proceedings. The irresistible conclusion is that having failed to adduce proper evidence of the pleaded facts the same is certainly abandoned. See Adisa v. Saibu (1977) 2 S.C. 89 at 119. Finally, even though the respondent pleaded in paragraph 20 that it made repeated demands for the statements drawn on the said account, yet there is complete absence of proof of demand. Again, it is clearly a case of abandonment of the pleaded facts because where pleaded facts are not backed up by evidence, the pleading does not avail that party seeking to reply on it.

It is therefore clear that in paragraphs 14, 15, 16, 19 and 20, so also in paragraphs 21 and 22 of the Further Amended Statement of Claim, respondent specifically pleaded facts and yet no evidence was produced in proof thereof, nor were the specific documents pleaded produced. Issue No.4 is also therefore resolved against the respondent.

The 5th appellant’s issue, it is submitted on behalf of the appellant, is contrary to the established principle of pleading in that the respondent’s claim is contrary to the evidence led. Thus the gross total of the figures set out under paragraph 7 of the Further Amended Statement of Claim i. e., N212,500.00 is not in consonance with the figure of N212,700.00 that was actually awarded by the trial court. It is counsel’s submission that this Court cannot correct the awarded sum without altering the pleading and evidence led on this point. Counsel calls in aid the Supreme Court decision in Ugochukwu v. C.C.B Ltd. (1996) 6 NWLR (Pt. 456) 521. at p. 539. Counsel further submits that the claim being in the form of special damages the same must be strictly proved otherwise the award will not be justified and relies on the authority of Sommer v. F.H.A. (1992) 1 NWLR (Pt. 219) 548 at 561.

In his reply, the respondent’s learned counsel submits that the whole complaint is based on arithmetical error because whereas the total amount claimed under the head of claim was N212.500.00 and “the amount erroneously claimed on the part of the lawyers and the judge was stated as N212,700.00”; in other words, a difference of N200.00. Counsel submits that the error was a “slip” which invariably both the trial and appellate courts have always corrected with little fan fare. Counsel calls in aid the following authorities, to wit, Min. of Lagos Mines & Power & Anor v. Akin-Olugbade & Ors (1974) NSCC Vol. 9 p. 489; Ogunsola v. NICON (1996) 1 NWLR (Pt. 423) 126 and U.B.A v. TAAN (1993) 4 NWLR (Pt. 287) 368 at 370-371.

It is now beyond question that both the court of trial and appellate courts enjoy the power of correction or modification of an order or orders contained in a judgment on the ground that the order as drawn up does not in fact represent what the court had intended to state. In other words, by this power, a court is afforded the opportunity to correct a mistake arising from clerical error of accidental slip or omission. This is now popularly referred to as the “slip-rule.” See Asiyanbi & Ors v Adeniji (1967) 1 All NLR 82. Such correction of clerical error or slip or omission should not be invoked and used as a subterfuge for reviewing or rehearing of a case. Thus in Min. of Lagos, Mines & Power & anor v. Akin-Olughade & Ors (1974) NSCC Vol. 9 p. 489, where the applicant under the guise of the slip-rule sought a review of the judgment of the Supreme Court but that application was refused and dismissed. What this boils down to is that once a court has decided an issue which forms part of the court’s judgment and an order in respect thereof has been effectively drawn, the court is powerless to reopen the issue and change its earlier decision. See also Thynne v. Thynne (1955) 3 All E. R. 129.

Now it is important to bear in mind that any attempt to alter the judgment of the court by substituting something different from the pleadings or from the evidence may be difficult to explain away. The foremost obstacle is that any attempt to tailor the judgment of the court to correspond with the pleadings, say, by adding or subtracting to the judgment will be resisted by the adversary party on the ground that the court lacks the power to present a case different from what the party has pleaded or the evidence it has led at the trial which formed the basis of the judgment. Nevertheless, in support of the court’s power to invoke the slip-rule learned respondent’s counsel cited and relied on UBA v. TAAN (1993) 4 NWLR (Pt. 287) 368, where Tobi J.C.A., while reviewing the authorities collated on the question of the slip-rule, stated by way of general proposition as follows at p. 371.

“(d) Where accidental omission or arithmetical errors are committed on the face of the record.”

This statement is not as simple as it may appear. My understanding of it, and this is the only way it may be in consonance with the authorities, is that if by way of clerical error a judge who had wanted to write N55,000 mistakenly writes N50,000, omitting N5,000, the mistake may clearly be corrected under the slip-rule and substituted N55,000 for N50,000. But it is however not the same thing for the court to substitute N55,000 as attested to by PW1 with N50,000 being the figure stated by PW1 in his pleadings. The simple error here is that the evidence does not correspond with the pleading and the plaintiff’s case must fail. See Emegokwue v. Okadigbo (supra), In the instant appeal, the total amount claimed under paragraph 7 of the Further Amended Statement of Claim is N212,500 whereas in their evidence, they testified to N212,700. Clearly, that is another way of saying that the respondent failed to prove to claim on balance of probabilities and the claim therefore failed and the court lacks the power to tinker with the difference in the two figures. Inspite of the difference between the pleaded figure and the figure attested to in evidence the learned trial judge in his judgment awarded the amount pleaded under paragraph 7 of the Further Amended Statement of Claim. This is wrong.

Further more since the amount claimed in the aforesaid paragraph 7 was characterized as special damages, the Law enjoins the respondent to prove same strictly. This he has failed to do.

In the result, the 5th issue is resolved in favour of the appellant.

The sixth issue questions the interest rate awarded by the learned trial judge on the alleged sum of money borrowed consequent to the loss resulting from the fraudulently raised cheques Exhibits 1 and 1A. Learned appellant counsel submits that the amount claimed as interest being special damages must be strictly proved and must be shown to arise from a specific law and relies on some authorities. It is also his further submission that the interest rate of 15% pleaded by the respondent was not sustainable because its basis was not only unknown, the same run counter to the 60% and 54% rates of interest stated in evidence by PW1. In his further submission, counsel contended that fluctuating rate of interest was not a matter the trial court could take judicial notice under section 74(1) of the Evidence Act. The Learned trial judge finally opined that the burden was on the defence (i.e., the appellant) to use the published rate of interest to challenge the evidence of the respondent.

Many things are wrong with the treatment of the issue on interest rate by the learned trial judge I cannot restrain myself from commenting on some aspects of the serious errors committed by him on this matter. It is surprising that despite the assistance of learned appellant’s counsel to the learned trial judge in guiding him with relevant legal authorities, his lordship completely overlooked them. This was unfortunate. First, I am clearly of opinion that a claim based on any particular rate of interest is a matter that sounds in special damages which must not only be expressly pleaded but the evidence in respect thereof must be strictly proved. See Himma Merchants Ltd v. Aliyu (1994) 5 NWLR (Pt. 347) 667 and Sabbach Bros v. BWA Ltd. (1966) 1 All NLR 240; NSCC Vol. 4 (1965-1966) 276.

As if this was not enough, faced with divergent evidence of interest rates at 60% and 54%, on the one hand, and 15% as expressly pleaded in the respondent’s Further Amended Statement of Claim, on the other, the learned trial Judge unfortunately failed to appreciate that these conflicts were incapable of being resolved at that stage of the trial and therefore was obliged to dismiss that arm of the plaintiffs/respondent’s claim without further ado. That approach is supportable by a chain of authorities which has long established that a claim is insupportable where the evidence led is at variance with the pleadings. See Emegokwue v. Okadigho (supra) and F.H.A. v. Sommer (1986) 1 NWLR (Pt. 17) 533. The benevolent reason for this principle is also backed up by yet another principle that it is not for the court to re-write the parties’ pleadings for them. See Ogida v. Oliha (1986) 1 NWLR (Pt. 19) 786, Ajayi v. Texaco (Nig) Ltd. & Ors (1987) 9-10 SCNJ 1 (1987) 3 NWLR (Pt.62) 577 and Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 583.  In any event, the learned trial Judge ought to have equally appreciated that where evidence is not called to support a party’s pleadings, the same are deemed abandoned. See Idahosa v. Omnsaye 4 FSC 166 at 171 and National Investment & Properties Co. Ltd. v. Thompson Organization Ltd. (1969) 1 NMLR 99.

Finally, I am clearly of the view that the learned trial Judge was in deep error to have opined that the onus was on the defendant/appellant to call in aid the official published rate of evidence of the plaintiff/respondent. With respect, that will be doing irreparable violence to the established legal maxim that he who asserts must prove. It has never been the law that where the assertor or fails to prove his positive statement or meet the rules of pleading that the adversary is placed under a duty to adduce rebuttal evidence. On the contrary, where a plaintiff fails to lead evidence to establish his claim or assertion there is no legal duty whatsoever on the defence to lead any evidence. After all, the point raised with regard to the rate of interest is not in respect of the appellant’s lending but the rate of interest the respondent borrowed from the Finance Houses. In such a situation, the fact of the borrowing rate of interest will be peculiarly known to the borrower and in the circumstances it would be invidious for the defence to speculate on the rate of interest at which the plaintiff privately borrowed from the Finance Houses. Both common sense and all known rules of evidence frown on shifting the burden of proof from an assertor.

It remains to commend Mr. Richard Ebri, learned respondent’s counsel who courageously declined to support the glaring misconception of law displayed by the trial Judge. This is legal practice per excellence which should must be encouraged .

For all I have said and the concession made by learned respondent’s counsel on this issue, the fifth issue is also resolved in favour of the appellant.

This brings us to the last issue, i.e., the seventh issue. The crux of the complaint herein is that the learned trial Judge deeply erred by making a lump sum grant of N3.5M as general damages for the tort of negligence, for loss of reputation and for breach of contract, on the ground that it is bad for misjoinder and duplicity. Counsel submits that respondent if at all he was entitled to damages for breach of contract would be entitled to the loss of his bargain or the market value of the benefit of which he had been deprived of due to the breach of the contract. Counsel calls in aid the authorities of P.Z. & Co. Ltd. v. Ogedenghe (1972) 1 All NLR 202 at p.206 and Dumez (Nig) Ltd. v. Ogboli (1972) 1 All NLR 244 and also McGregor on Damages (11th ed) (1980) Chap. 2 p. 21. It is his further submission that in respect of claim in tort, general damages will be determined by the Court. While in loss of reputation this loss must be proved as an injury before damages can follow. Counsel further contends that the claim on loss of reputation ought to fail because paragraph 15 of the Further Amended Statement of Claim on which it was based was either abandoned or not proved by production of the pleaded documentary evidence. For lumping the claims together counsel places reliance on Amakiri & Ors. v. Newington (1951-1953) 20 NLR 13. In any event, if the award is based on Exhibits 1 and 1A, its quantum of award would be sufficiently met by the reversal of the alleged wrong or fraudulent debit as a further award in excess of this would, amount to double compensation. That is bad in law. Counsel further submits that if the breach is based on failure to deliver additional statements of account or to return the paid cheques, no contractual obligation to do so was proved.

The respondent’s reaction to appellant’s issue No.7 is set out in respondent’s issue No.6, at pp.10-13 of Respondent’s Brief. It is the submission of respondent’s learned counsel that the lumping together in one sum N5m for the various misdeeds of the appellant as well as his breach of contract set out in paragraph 23(3) of the Further Amended Statement of Claim is good in law. To counsel what the law seeks to achieve in both the injuries inflicted on the respondent once he succeeds in proving that he has been wronged. To this end, counsel itemized the five heads under which the claim for general damages has been conceived as follows:

“1. Fraudulent and wrongful withdrawals from her account, in breach of contract between her and the Appellant.

2. The implied retention of the monies so withdrawn, thereby denying the Respondent productive use of the same from the date of each such wrongful withdrawal, until indeed now.
3. Negligence of the Appellant in having wrongful so compromised the Respondent’s monies.
4. Denial by the Appellant of the Respondent’s right to access and operation of her own account owing to the failure or refusal to render statements of accounts under contract, or as demanded, and
5. All unparticularizable but foreseeable losses suffered by the Respondent on account of the Appellant’ s injuries on the Respondent, in Contract and Tort.

Reliance is placed on the Supreme Court decision on Akinfosile v. Mobil Oil Nigeria Ltd (1960) NSCC Vol. 376 where that court tersely cautioned about undue categorization of damages in breach of contract in terms of special and general damages. Counsel also cites and relies on Balogu v. N.B.N. Ltd. (1978) NSCC Vol. iii p. 135 that it is open to the court, but within reason, to award any sum by way of general damages it considers proper for the breach of contract although there has been no proof of actual loss. Finally, relying on Shell Pet. Dev. Co. v. Tiebo VII (1996) 4 NWLR (Pt. 445) 647, counsel submits that it is no barrier in assessment of general damages that damages are difficult to assess and for that reason deprives the plaintiff of his remedy in damages. He also relies on Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124, a case referred to in Tiebo VII case.

It is unquestionably incontestable that all things being equal, the real contest in this appeal is whether the amount of N3.5m awarded by way of general damages is sustainable having regard to the facts of the case, the evidence led at the trial and the law applicable in the circumstances of the case. The main hurdle in the plaintiffs/respondent’s case is whether, in all the circumstances of the present case it was legally justifiable for the learned trial Judge to make a lump award by way of general damages for claims that sounded in contract and tort. Counsel for the parties as would be expected, hold two divergent views. General damages unlike special damages do not require strick proof but the amount awardable must be within reasons and the court would be guided by all the circumstances of the case.

Now if one assumes that the breach of contract is founded on the payments made on Exhibit 1 and 1A, the damages that would have resulted therefrom to the respondent would be the reversal of the erroneous debit on respondent’s account. Any sum payable in excess of the value of those cheques would be unjustifiable in law. In other words, the respondent’s loss must be the damages which will flow as natural or probable consequence of the breach alleged and it makes no difference whether it is styled special or general damages. See Hadley v. Baxendale (1854) 9 Exch 341 and Akinfosile v. Mobil Oil Nig. Ltd. (1960) (supra). This approach will make the determination of damages awardable by the court in the earlier itemized five heads for damages as identified by respondent’s counsel in the judgment easy. But it will be purely speculative and a guess-work for a court to pretend to award a lump sum for some breaches of peace of contract as wall as for injuries allegedly found on negligence when there is the possibility that a particular head of breach of contract may be established and therefore damages in respect thereof ought to be awarded whereas the breach in respect of another aspect of the contract may not have been proved, and obviously would not attract damages. It may then be asked, how will the damages in respect of the two situations be severed in order to make the award of damages where possible on the one hand, and refuse to award damages if the circumstances do not permit, on the other hand? Learned appellant’s counsel relied on Amakiri v. Newingron (supra) to attack the lump sum award. I must say straightaway that this case is not a direct authority on the point under references.

The issue in Amakiri case was that several plaintiffs made a single lump sum claim for an amount of damages for assault and false imprisonment committed by the defendant on separate occasions. It was held. inter alia, that there being two or more occasions of alleged false imprisonment, the amount claimed in respect of each must be stated on the writ so that damages could be assessed for anyone on which a plaintiff succeeded. It was also held that each of the plaintiffs had a separate ground of action depending on the damage he suffered and must bring a separate action.

It seems clear to me that in the appeal on hand the damages that may be founded for the breach or breaches of contract constitute a separate ground of action from the tortious act of negligence alleged in the suit; the one may succeed while the other may fail. By analogy, the damages claimed in respect of the claim that sounds in contract must be different and separated from that sounds in tort. This has not been done in this case. Rather respondent had in one action made a claim for breaches in contract and for the tort of negligence and followed it up by claiming one lump sum for the breaches in contract and act of negligence. This is bad in law yet the trial court made a lump sum award of N3.5m. The two separate heads of action, tort and contract, should be considered separately. i.e., in two o separate actions so that each cause of action will, where established. succeed on the quantum of damages the court may assess and award otherwise each action may fail and be refused. It is clearly complicated for a party to claim in tort and breach of contract in one action and the court without separating the two causes of action. How then can the damages in the two causes of action sounding in tort and contract be meaningfully assessed. I am clearly of opinion that the writ as filed, so also the Further Amended Statement of Claim which superseded the writ is bad in law.

If the case rested there I would have been minded ordinarily to non-suit the respondent. But the matter did not stop there. I have taken the pains to peruse the record of appeal and given detailed examination and consideration of the various issues raised in the appeal, and on cool consideration of the totality of these issues which were, except in respect of one issue, overwhelmingly resolved against the F respondent. I have reached the conclusion that this is a case that deserves to be dismissed and not one to be non-suited. I have also formed the opinion that the seventh issue has merit and the same is resolved in favour of the appellant.

Having thus found overwhelmingly in favour of the appellant I am also clearly of opinion that plaintiffs/respondent’s action, as earlier stated, is bereft of substance and the same deserves to fail in its entirely. In the result, this appeal succeeds and is allowed; the judgment of the lower court is hereby set aside. I also assess and award N2,000.00 cost to the appellant.

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Other Citations: (1997)LCN/0333(CA)

Agro Millers Limited V. Continental Merchant Bank (Nigeria) Plc (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A. 

This is an appeal against the judgment of Dagara Mallam J. of the Kaduna State High Court of Justice delivered on 30/11/92. The respondent as plaintiff had filed an action under the undefended list at the lower court against the appellant which was the defendant, to recover a debt in the sum of N7,913,346.64k. The respondent’s writ of summons was filed together with an affidavit and a further affidavit in support of the claim. On being served with the writ of summons and the supporting affidavits, and in compliance with the rules of the lower court, the appellant duly filed its notice of intention to defend the suit with an affidavit and a further affidavit in support of the notice. On the date fixed for the hearing of the undefended suit, the learned trial Judge heard arguments from learned counsel on both sides on whether the appellant as defendant ought to be granted leave to defend the suit on its affidavits in support of its notice of intention to defend the suit, or judgment should be entered for the respondent as plaintiff. In a considered ruling/judgment delivered by the learned trial Judge on 30/11/92, he refused to grant the appellant/defendant leave to defend the action and entered judgment for the respondent/plaintiff in the sum of N7,913,346.64k with interest at the rate of 27% per annum from 18/11/91. In that ruling/judgment, the learned trial Judge also held that the affidavits in support of the defendant’s notice of intention to defend did not disclose any defence on the merits as required by ORDER 22 RULE 3 of the Kaduna State High Court (Civil Procedure) Rules 1987. Dissatisfied with the ruling/judgment, the defendant now appellant has appealed against it to this Court. The Notice of Appeal dated 7/12/92 contains 7 grounds of appeal.

The parties, in accordance with the rules of this court duly filed their respective briefs of argument. In the appellant’s brief, the following 2 issues for determination were formulated.

“1. Whether or not the learned trial Judge was right in holding that the appellant’s notice of intention to defend did not disclose a defence on the merit and in entering judgment for the respondent

2. Whether or not the learned trial Judge over amplified the requirement of Order 22 Rule 3, High Court of Kaduna State Civil Procedure Rules as relates to onus of proof under the undefended list.”

In the respondent’s brief of argument however, only the following one issue was identified for the determination of the appeal –

“Was the Honourable learned trial Judge right in holding that the appellant’s affidavit in support of the Notice of Intention to defend the action discloses no defence on the merits as required by Order 22 Rule 5 of the Kaduna State High Court (Civil Procedure) Rules 1987.”

Looking at the second issue for determination raised in the appellant’s brief of argument, it is quite plain that the resolution of the issue one way or the other will not affect the result of this appeal because the issue has not been related to the decision of the lower court refusing to grant the appellant leave to defend the action, nor to the judgment of the lower court granting the respondent’s reliefs. In other words whether the learned trial Judge over amplified the requirement of ORDER 22 RULE 3 OF THE KADUNA STATE HIGH COURT (CIVIL PROCEDURE) RULES 1987 as relates to onus of proof, whatever that means, or he did not, as long as the answer is not sought to be linked with the decision of the lower court being challenged in this appeal, it is not a proper issue for determination in the appeal.

The remaining issue for determination in the appellant’s brief and the sole issue formulated in the respondent’s brief are virtually the same having been framed on the requirements of the application of ORDER 22 RULE 3 of the Kaduna State High Court (Civil Procedure) Rules 1987. Rule 3(1) of Order 22 of the Rules which is relevant reads:-

“3(1) If the party served with the writ of summons and affidavit as provided in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.” (Italics mine)

It is quite clear from this rule that it is not the notice of intention to defend that must disclose a defence on the merit as stated in the issue as formulated in the appellant’s brief. It is the affidavit accompanying the notice of intention to defend that must disclose a defence on the merit before a defendant is granted leave to defend the action.

Therefore in so far as the issue formulated by the appellant has attributed the disclosure of defence on the merit to the notice of intention to defend rather than the appellant’s affidavit as stated by the rule, the issue is not properly framed. Similarly, the only issue as identified in the respondent’s brief is also defective in that the issue referred to RULE 5 instead of the relevant RULE 3 OF ORDER 22. Be that as it may, having regard to the circumstances of this case, I am of the view that there is only one issue for determination as identified in the respondent’s brief and also as formulated in the appellant’s Issue No.1 but slightly modified to reflect the legal requirements of RULE 3 of ORDER 22 of the Kaduna State High Court (Civil Procedure) Rules 1987. The issue properly framed should read thus:-

“Whether or not the learned trial Judge was right in holding that the appellant’s affidavits in support of its notice of intention to defend did not disclose a defence on the merit and in entering judgment for the respondent”

In support of the appellant’s arguments on this issue, its learned counsel Mr. Ashiekaa referred specifically to paragraphs 10, 11, 12, 13, 14, 15, 16 and 17 of the appellant’s affidavit in support of its notice of intention to defend and submitted that these paragraphs which were neither denied nor disputed were deemed admitted by the respondent and therefore no longer in controversy. The case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 721 among others was cited in support of the submission. Learned counsel pointed out that from the quoted paragraphs, it was clear that the appellant had raised triable issues such as the uncertainty of the amount being claimed in the action, the charging of more interest than agreed between the parties and duplication of debit entries for various amounts in the appellant’s account with the respondent among others justifying the learned trial Judge accepting the same as having disclosed a defence on the merit. Counsel stressed that at that stage of the hearing of the undefended suit, it was not necessary for the court to decide whether the defence has been established. That what was required simply was for the court to look at the facts averred in the affidavits of the defendant to see if they can prima facie afford a defence to the action. He cited the case of Nishizawa Ltd. v. Jethwani (1984) 12 SC 234. Learned counsel complained that the learned trial Judge had placed undue reliance on the case of Macaulay v. Nal Merchant Bank (1990) 6 SCNJ 117; (1990) 4 NWLR (Pt.144) 283 which is quite distinguishable with the present case as that case was decided under ORDER 10 RULES 1 and 2 of the Lagos State High Court Civil Procedure Rules which are not the same as ORDER 22 RULES 1 and 3 of the Kaduna State High Court Rules. Counsel therefore maintained that the appellant’s affidavit had disclosed a defence on the merit to warrant it being allowed to defend the action as the type of defence required to be disclosed in the affidavit is not a defence beyond reasonable doubt. It was also argued for the appellant that the lower court had placed a greater burden on the appellant than required by RULE 3 of ORDER 22 and that since it was obvious that there were conflicts in the evidence contained in the affidavits of the parties, particularly as to the rate of interest, the actual amount of the outstanding debt and the double debit entries, the only way the conflicts could have been resolved was by hearing oral evidence when the suit is transferred to the general cause list for hearing on the authority of Jipreze v. Okonkwo (1987) 3 NWLR (Pt.62) 737. Finally, the appellant concluded that by entering judgment for the respondent, the lower court had denied it a hearing and this had caused a miscarriage of justice.

It was however contended for the respondent that the appellant’s affidavits, particularly the paragraphs referred to in the appellant’s brief did not disclose any defence on the merits to justify granting the appellant leave to defend the action. Respondent’s counsel who described the paragraphs in the appellant’s affidavits as being mere blanket denial, pointed out that paragraphs 3, 4, 5, 6 & 7 of the appellant’s affidavit in support of its notice of intention to defend had in fact admitted the respondent’s claim. Learned counsel to the respondent further observed that all the averments in paragraphs 7 through to 17 of the appellant’s affidavit required supporting documents pointing out that paragraph 15 in particular in respect of which the Central Bank Circular fixing the interest rate of 21% at the material time ought to have been exhibited as the court cannot take judicial notice of a government circular which has not been produced before it as was decided in Katto v. Central Bank of Nigeria (1991) 9 NWLR (Pt. 214) 126. That for that reason, the lower court was right not to have given any weight to the appellant’s bare averments in its affidavit. A number of cases including Kimdey v. Governor of Gongola State (1988) 2 NWLR (Pt. 77) 445 at 473 – 474 was cited in support of this argument. Still on the bare averments of the appellant’s affidavit, the respondent further submitted that since the averments in the respondent’s affidavit in support of its claim on the undefended list were fully supported by documents while the averments in the appellant’s affidavit were bare and unsupported by any document, the learned trial Judge was right in entering judgment for the respondent on the authority of Udechukwu v. Ngene (1992) 8 NWLR (Pt. 261) 565 at 577.

It is indeed true as rightly submitted in the appellant’s brief of argument that the procedure under the undefended list as provided in the provisions of Order 22 Rules 1 to 5 of the Kaduna State High Court (Civil Procedure) Rules 1987 is not designed to exclude a defendant who can show in his own affidavit that there are triable issues in the action. It is also settled law that in determining whether a defendant has a good defence to the action on the merit, it is not necessary for the trial court to decide at that stage whether the defence has been established. What is required is simply to look at the facts averred in the defendant’s affidavit in support of the notice of intention to defend and see if those facts can prima facie support a defence to the action on the merit. Whether that defence will ultimately succeed is totally irrelevant at that stage. See Nishizawa Ltd. v. Jethwani (1984) 1 SC 234. In other words where a defendant in an action under the undefended list raises substantial question of fact or law which ought to be tried, leave should be granted to such a defendant to defend the action. Leave to defend will also be granted where there is an alleged misrepresentation by the plaintiff or where the facts alleged by the plaintiff are of such nature as to entitle the defendant to interrogate the plaintiff or cross-examine the plaintiff’s witnesses on the accompanying affidavit. See University of Nigeria Nsukka v. Orazulike Trading Co. (1989) 5 NWLR (Pt. 119) 19 at 29.

However, it is equally the law that under the undefended list procedure, a defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by the delay tactics aimed, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness. See Nishizawa v. Jethwani (1984) 12 SC 234 and Macaulay v. Nal Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283. It is equally the law that for the trial court to hold that the defendant has satisfied the requirements of Order 22 Rule 3 of the Kaduna State High Court (Civil Procedure) Rules, 1987, to be entitled to be granted leave to defend the suit, the defendant’s affidavit in support of the notice of intention to defend must of necessity disclose facts which will at least throw some doubt on the case of the plaintiff. See Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737 at 744.

In the present case, the appellant as defendant was relying specifically on the facts averred in paragraphs 10 to 17 of the affidavit of its General Manager Mr. Ushe Uba of 22/5/92 as having disclosed defences on the merit to the action. The facts averred in these paragraphs starting from paragraph 9 are as follows:-

“9. That I have read the affidavit of one Engineer Abubakar Fari particularly paragraphs 9, 10, 11 and 12 thereof to the effect that the defendant is indebted to the plaintiff to the tune of N7,913,346.64k.

10. That the said figure cited in paragraph 9 hereof is a gross exaggeration and distortion of the state of affairs and bears no semblance to the extent of defendant’s indebtedness.
11. That I know as of fact that the defendant irregularly and without requisite authorization paid out sums of money yet to be ascertained to Trana Limited and others and debited the plaintiff’s Account. This debit entries form part of the alleged defendant’s indebtedness to the plaintiff.
12. That I know as of fact that on 21st December, 1988 the defendant duplicated legal charges of N42,715.00 and debited same together with interest therein to defendant’s account.
13. That the plaintiff contrary to agreement, has been charging 1% on the outstanding loan as at the beginning of each quarter instead of charging per quarter on the outstanding goods in the warehouse.
14. That I know as of fact that based on this erroneous premise the plaintiff has continued and persisted in charging the defendant a whooping sum of N33,722.84 per quarter based on the 1% of outstanding loan. These amount form part of the plaintiff’s claim against the defendant.
15. That in January 1991, the Central Bank fixed the maximum Interest rate at 21%. The plaintiff however continued to charge the defendant’s interest at 30.5%.
16. That the defendant will at the trial hereof urge the court to reverse the said compound interest from January, 1991 to date.
17. That I know as of fact that on the 25th May 1990 the plaintiff duplicated an entry of N25,300.00 and debited same against the defendant. The plaintiff continued to charge compound Interest on this amount up to 15th April 1992. This amount forms part of plaintiff’s claim against the defendant.

The learned trial Judge in his judgment at pages 37 – 40 of the record duly considered all the facts averred in these paragraphs of the appellant’s affidavit in support and came to the conclusion that no real defence had been disclosed therein to justify granting the appellant leave to defend the action. I have myself examined these paragraphs of the appellant’s affidavit and having regard to the claim of the respondent contained in the writ of summons and supported by clear averments in the affidavit duly supported by the relevant documents exhibited in support of the claim, I entirely agree with the learned trial Judge that the bare averments of facts contained in the appellant’s affidavit in support of the notice of intention to defend, unsupported by the vital documents from which the facts were averred, did not disclose any defence to the respondent’s claim for the repayment of the sum of N7,891,346.64k granted to the appellant as loan. Indeed the appellant having admitted in paragraph 5 of its affidavit in support dated 22/5/92 that the respondent had approved a facility of N7 million naira to the appellant which commenced draw down of the same upon signing the requisite agreement, the burden was on the appellant to show in its affidavit that the amount had been paid back to the respondent in whole or in part thereof or the reasons for the failure to repay the DEBT. See Macaulay v. Nal Merchant Bank Ltd. (supra). Certainly, for the appellant to simply say that the amount being claimed is a gross exaggeration and distortion of the state of affairs and bears no semblance to the extent of its indebtedness, is not a defence to the action upon which leave could be granted to defend. Further more, all the allegations of improper payments, or wrong and double debit entries in the appellant’s account with the respondent, or the over charging of interest contrary to what was agreed in the loan agreement between the parties, and the specific amounts averred in paragraphs 11, 12, 13, 14, 15, 16 & 17 of the appellant’s affidavit were clearly facts lifted from various relevant documents which were not exhibited with the affidavit for the trial court to see and be adequately guided in the determination of the matter. Surely the averment of the appellant in paragraph 12 of its affidavit in support which stated that there was a duplication of debit entry of the sum of N42,715.00 in its account for example, can only amount to a defence if the duplication of the entry was in fact made as alleged in the paragraph. Therefore without exhibiting the relevant statement of account showing at least the duplicated entries and the dates they were made, the averment in that paragraph is devoid of any evidential value and as such would not have disclosed any defence as rightly found by the learned trial Judge on the authority of Macaulay v. Nal Merchant Bank Ltd., (supra). Therefore by merely stating the obvious, namely, that the bare averments in the appellant’s affidavit not supported by the relevant documents which were the real source of the facts averred, did not disclose any defence on the merit, the learned trial Judge was not guilty of placing more burden of proof than necessary as required by ORDER 22 RULE 3 on the appellant.

On the complaint of the appellant that there were conflicts in the affidavits of the parties filed at the lower court which necessitated the resolution of such conflicts by the lower court by hearing oral evidence when the case is transferred to the general cause for hearing, I must say straight away that the procedure for the determination of an undefended suit under ORDER 22 RULES 1 to 5 does not permit the resolution of conflicts in affidavits by hearing oral evidence as a means of allowing a defendant leave to defend. What in fact is provided by the rules governing the procedure is that the plaintiff’s case and the defendant’s defence to it on the merit are to be determined on each of the parties’ affidavit alone. In other words a judgment for the plaintiff under the undefended list is determined only on the plaintiff’s affidavit in support of the claim in the writ of summons filed under RULE 1 of ORDER 22 of the rules. Similarly, the question of whether a defendant has a defence to the undefended suit is determined solely from the affidavit filed by the defendant in support of the notice of intention to defend as provided in RULE 3 of ORDER 22 of the same rules. The learned trial Judge was therefore right in not even attempting to examine any alleged conflicts in the affidavits of the parties warranting resolution by oral evidence, let alone use the same as the basis for transferring the case to the Ordinary Cause List for hearing in clear violation of the rules.

From what I have said so far on the lone issue raised for determination in this appeal, I cannot but entirely agree with the learned trial Judge that the appellant’s affidavit in support of its notice of intention to defend the action did not disclose any defence on the merit to justify granting the appellant leave to defend the action. This is because the facts deposed in the affidavits of the appellant in support of its notice of intention to defend the suit do not contain enough facts and particulars to satisfy any reasonable tribunal that a defence on the merit to the action had been disclosed warranting the transfer of the case to Ordinary Cause List for hearing. See Pan Atlantic Shipping & Transport Agencies Ltd. v. Rhein Mass GMBH (1997) 3 NWLR (Pt.493) 248 at 256. In the circumstance of the case, having regard to the affidavit evidence with all the relevant documents in support of the claim in the writ of summons, the lower court was indeed right in entering judgment for the respondent in terms of its claim against the appellant.

In the result, this appeal must fail. THE APPEAL IS ACCORDINGLY DISMISSED and the judgment of the lower court of 30/11/92 is HEREBY AFFIRMED.

There shall be N1,500.00 costs to the respondent against the appellant.

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Other Citations: (1997)LCN/0332(CA)

Musa Dauda V. Magajiya Dan Asabe (1997)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against the decision of the Sharia Court of Appeal of Katsina State delivered on 23/11/95 wherein the Court dismissed the appeal by the present appellant against the earlier decision of the Upper Area Court Funtua which had quashed the earlier decision of the Danja Area Court.

The facts of this case briefly put are as follows: The respondents herein as plaintiff before Danja Area Court sued the appellant herein as defendant claiming as per page 1 of the records as follows:

“I, Magajiya sue M. Dauda because my father Mohammadu went and left his farmland in his possession while his mother and my father are brother and sister. I came and asked for our farmlands he told me that he bought the farmlands. We don’t have any in his possession that is why I sue him to court and praying to Court to collect back my father’s farmlands.”

The plaintiff claimed that his father died 8 months earlier. The Court confronted the defendant/appellant with the claim and he denied claiming that he bought the farmland from the plaintiff/respondent’s father when he was about to leave the town to settle in Zaria province. The defendant said that he had 3 witnesses to confirm the sale but that 2 of them had died leaving only one, who is Marguwa Garuba. The plaintiff/respondent on being asked told the Court that he had 2 witnesses to confirm that her father did not sell the farmland but gave it for safe keeping to the defendant. These are M. Yusufu (85 yrs) and M. Dawuda (76 yrs) both of who testified as PWs 1 and 2 respectively claimed to be living in the same home with the plaintiff/respondent’s father. They confirmed that they knew when the plaintiff’s father left for Zaira province and gave his farmland to the defendant for safekeeping. When confronted with the evidence of both witnesses, the defendant admitted that it is true that the plaintiff’s father gave him part of the farmland for safekeeping and sold part of it to him. The defendant called his only surviving witness to prove the sale of the farmland to him by the plaintiff’s father. This was Marguwa Ganbo. In his testimony, DW1, Marguwa Ganbo Layin Kwari confirmed that the disputed farmland belong to the plaintiff’s father but denied knowing anything about the sale of the farmland of Muhammadu, the plaintiff’s father to the defendant as such sale was not made in his presence. He said he did not know about the issue of safekeeping either. On being asked by the Court to comment on what the witness has said, the defendant said his evidence was true. On being asked question about the farmland by the plaintiff, the witness reaffirmed that no deal concerning the farmland was made in his presence and to his knowledge. He further affirmed that at no time was the defendant given the farmland as a gift in his presence or to his knowledge. On the visit by the trial Judge to the farmland the defendant showed the Judge the part of the farmland given to him for safekeeping and that he claimed he bought.

In the course of the trial, the parties tried some efforts at reconciliation whereby the plaintiff agreed and gave part of the disputed farmland to the defendant. The Court entered judgment in favour of the plaintiff and confirmed to the defendant the part of the farmland which the plaintiff gave to the defendant. Dissatisfied with this farmland, the defendant appealed to the Upper Area Court Funtua (hereinafter referred to as the UAC).

At the UAC Funtua, the defendant stated his ground of appeal as follows:

“The reason why I appealed is that because I have 3 farmlands 2 of them about 70 years I am in possession of them while the one I bought it from Muhammadu the father of Magajiya about 30 years ago at ?16 but the Area Court Danja Confiscated these farmlands and gave them to Magajiya and I was left with only one which I bought from Muhammadu that was why I don’t agree. I appealed.”

After taking the addresses of both parties as well as going through the records, particularly based on the evidence of the plaintiffs 2 unimpeachable male witnesses and the admission of the defendant, at page 5 line 16 of the records, the UAC dismissed the defendant’s appeal and affirmed the decision of the trial Area Court and confirmed the farmlands to the plaintiff as they belong to her father. Dissatisfied with this decision by the UAC, the defendant again appealed to the Katsina State Sharia Court of Appeal holden at Funtua on the following 4 grounds viz:

“1. These farmlands in dispute I bought 2 of them from Muhammadu Dankadau the father of Magajiya Dan-Asabe I bought one at ?1.0.0. about 70 years ago the other one I bought it ?16.0.0. about 30 years ago and one was given to me as a gift about 70 years ago because I was brought up in his house.

2. I don’t know what the Area Court Danja relied upon to give my opponent the farmlands because she was claiming only one farmland which was sold to me at ? 16.0.0. but the court gave her the other farmlands which she didn’t claim i.e. that which her father gave me 70 years ago and with the one which I bought ?1.0070 years ago that I should be given one farmland as a gift for being possession of the disputed farmland for all these years.
3. The U.A.C. Funtua didn’t make any investigation to apply Oath since there was no sufficient evidence/witness from the complainant because the witnesses she produced are her relatives but the court gave her the 2 farmlands and gave me one.
4. The Court didn’t order that these 3 farm lands for all these 70 yrs I mentioned. I was in possession of them and I have been given them and they have never talk about them since that long period or time it is now she ask for her father’s farmland. Muhammadu after he died 9 months ago she sue me to court claiming these farmlands.”

After hearing the parties on the grounds of appeal and going through the records of proceedings, the Sharia Court of Appeal dismissed the appeal of the defendant and affirmed the decision of the Upper Area Court, Funtua. The Sharia Court of Appeal confirmed that the farmland belong to the plaintiffs/respondent’s father. Dissatisfied with this judgment, the defendant has again appealed to this Court on the omnibus ground. The defendant/appellant hereinafter referred to as the appellant was unrepresented and filed no brief. In the same vein since the appellant did not file the appellant’s brief, the respondent did not file the respondent’s brief. However, the appellant and the respondent appeared before us on 19/6/97 when this appeal was heard. The appellant appeared in person. He argued his appeal by adopting his case as presented at the Danja Area Court, Upper Area Court Funtua and the Katsina State Sharia Court of Appeal. He said he had nothing to add and urged the Court to allow the appeal. By way of reply, Mr. A.A. Olagoke learned Counsel who appeared for the respondent also adopted and relied on the cases presented at the three lower courts. He said he had nothing to add and urged the court to dismiss the appeal. I have considered the submission of both parties vis-a-vis the records and the prevailing law. It is my view that their arguments boil down to whether the trial lower court followed the correct procedure in Islamic Law in awarding the farmland to the plaintiff/respondent who had called 2 unimpeachable male witnesses to prove that her late father kept his farmland with the defendant appellant for safekeeping as against the unproved case of sale by the defendant appellant who called a witness who denied the counterclaim of sale by the defendant/appellant I have stated in detail the facts of this case so as to bring out the issues in controversy since both parties were not represented save in our Court. I have considered the arguments of both parties vis the records and the proceeding law. In my view their argument boils down to the following basic issue of whether the proper procedure regarding burden of proof in Islamic law had been followed? It will be necessary to find out what this procedure is. This had been briefly summarised by the Supreme Court in Hada v. Malumfashi (1993) 7 NWLR (Pt. 303) 1 p. 17 per Wali JSC thus:

“Under Islamic Law, unlike English Law parties are not competent witnesses in their respective cases; hence their statements in court would not be regarded as evidence as their statements are something akin or similar to the statements’ of claim or defence in Court. The plaintiff or claimant is required to state his case and it is only when the plaintiff or claimant has stated his case that the defendant will then be called, asked and ordered by the court to respond there and make an answer to confess or deny the plaintiffs claimant’s claim. If the defendant admits the claim, judgment can be entered for the claimant. However, if the defendant denies the plaintiff or claimant shall then be called upon to adduce evidence in proof of his claim. But the court will not enter judgment in favour of any of the litigants until after the claimant has stated his case.”

The Supreme Court laid down the procedure for discharging burden of proof under Islamic Law at paras D-E of page 17 supra as follows:-

“The general principle of Islamic Law relating to claims in civil matters in both moveable and immoveable property is that proof is complete by:

(a) evidence of two male unimpeachable witnesses; or

(b) evidence of one male witness and two or more female unimpeachable witnesses; or

(c) evidence of one male or two female witnesses with the claimant’s oath in either case.

Thus, in the instant case, since two male unimpeachable witnesses testified to confirm the plaintiff/respondent claim, such claim is regarded as proved under Islamic Law and the defendant needs not be called upon to say anything. In the circumstance, I hold that the trial Upper Area Court was therefore in order when it entered judgment in favour of the plaintiff/respondent. In fact the Court should have entered judgment at that stage in favour of the respondent but it went further to receive evidence of 1 witness in support of the appellant’s claim. This is an unnecessary surplusage. It is only when both parties are in possession that such a procedure is followed. See Hafsatu Abdullahi v. Haruna Adamu (unreported) appeal No. CA/K/71/S/92 decided by this panel of the Court on 10/12/93.”

Since the parties at every stage of their case had been dwelling on the issue of the defendant having the farmlands in dispute in his possession for safekeeping. It needs to be stressed here that under Islamic Law the issue of Hauzi (prescription) does not affect a property in possession of another, no matter how long such a property in possession of another, if it is on loan, pledge or for safekeeping. In such a situation, the defence of Hauzi is not open to the defendant to plead. See Mallam Idrisu Gulma v. Ahmadu Bahago (1993) 1 NWLR (pt. 272) 766 CA. I have touched on this issue having regards to the position of the importance of procedure under Islamic Law as well as in other legal systems.

This is moreso when it is realised that the position under Islamic Law with respect to the role of the appellate courts is different from the role of such courts under the common law system. Thus unlike the position under the common law system, the appellate courts are not under Islamic Law restricted to the grounds or issues raised by the parties before them. The position of the law was succinctly put by the Sharia appellate bench of this court in Ahmadu Sidi v. Abdullahi Sha’ aban (1992) 4 NWLR (Pt. 233) 113 P. 118 lines 2-5 per Uthman Mohammed J.C.A (as he then was) as follows:-

“Once a case is brought before a Judge under the Islamic Law and Procedure, the court is not restricted to the grounds of appeal (if any) filed before it. The Judge can without being called upon to do so, consider the relevant law and apply it. At the appellate stage the appellate court can rehear or retry the case in whole or in part.”

It is in compliance with the above position of the Islamic Law that this court had examined and dealt with the issue of Hauzi vis-Ã -vis property kept for safekeeping by a person.

In sum this appeal fails and it is dismissed. The judgment of the Katsina State Sharia Court of Appeal in Appeal No. KTS/SCA/FT/182/95 delivered on 23/11/95 affirming that of Funtua UAC of 4/9/95 is hereby affirmed. The respondent is entitled to the costs of this appeal which I assess at N1,000.00.

---

Other Citations: (1997)LCN/0330(CA)

Gabriel C. Ideh V. Mr. D.O. Onyejese & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

IGE, J.C.A. 

In the court below the respondents as plaintiffs took out a Writ of Summons against the appellant in suit No.AG/7/91 claiming in their 42 paragraphs Amended Statement of claim as follows:-

“1. An order setting aside the spurious document titled:

“Deed of Assignment dated 12th day of December, 1989” purported to be executed between the plaintiffs and the defendant on grounds that:

(a) It contravenes and offends the provisions of the Money Lenders Law, Cap. 100, Volume IV, Law of Bendel State of Nigeria, 1976.

(b) The purported agreement and security therein specified and the entire transaction are usurious, harsh and unconscionable.

(c) The purported transaction is spurious and fraudulent having regard to the circumstances of this case.

2. A declaration that the said “Deed of Assignment” dated 12th December, 1989 is illegal, unenforceable null and void and of no effect whatsoever.
3. An order compelling the defendant to release forthwith the 1st plaintiff’s Peugeot 404 Pick-Up Vehicle with Index No. 6827 GB with Engine and Chassis Nos. 10001796 respectively and all documentary particulars related thereto.
4. An order compelling the defendant to release forthwith the 2nd plaintiff’s two cold-rooms and/or Refrigerators documents as securities for the said loan which the 2nd plaintiff has fully and finally paid to the defendant.
5. Payment of N300.00 (Three hundred Naira) per day from the date of the wrongful seizure and detention of the vehicle No. BD 6827 GB that is from 2/3/90 until the day of judgment in this suit or until the vehicle is released to the 1st plaintiff.
6. N10,000.00 (Ten thousand Naira) being general damages for wrongful seizure and detention of the plaintiffs’ said goods. DATED AT AGBOR, this 10th day of October, 1991.”

The defendant/appellant also filed an amended Statement of Defence containing 24 paragraphs wherein he denied all the 42 paragraphs of plaintiff/respondents’ Statement of Claim with the exception of paragraphs 1 & 2. His Amended Statement of Defence ended up in paragraph 23 with the following contentions:

“(a) Plaintiffs are not entitled as claimed on paragraphs 35 to 42(1) (2) (3) (4) (5) and (6) or at all:

(b) This suit be dismissed in that it is scandalous, frivolous and abuse of process.

(c) The defendant is not guilty of any offence cognisable in law to warrant the grant of the prayers sought and same is deserving of an outright dismissal.

DATED AT AGBOR THIS 5TH DAY OF NOVEMBER, 1991.”

Before the hearing began in the case the parties filed several applications to which the learned Trial Judge delivered various Rulings. When the case proceeded to trial parties also filed various applications including an originating summons and an application for the committal of the defendant/appellant. The commissioner of Police, Delta State, The Attorney-General Delta State and Peter Mordi (Alias Able Dealer) to prison for their contempt of court upon the grounds set forth in the schedule subjoined hereunder.

Schedule

“1. The defendant/respondent and other respondents herein named have failed, refused and/or neglected to obey the Order of Court “restraining any of the respondents from selling or interfering with the RES (Motor Vehicle) in this application till the 2 Motions on Notice are considered” as contained in the ENROLMENT OF ORDER dated the 31st day of August, 1992.

And for an Order that the costs of and occasioned by this motion be paid by the defendant/respondent and other respondents to the plaintiffs/applicants.

And for such further Order or Orders as this Honourable Court may deem fit to make in the circumstance.

DATED AT OGWASHI-UKU THIS 6TH DAY OF NOV., 1992.

(Sgd) DR. C.Y.O. ADEL

Counsel for plaintiffs/applicants

39, Agidiehe Street,

Ogwashi-Uku – Nigeria.

The applicants for Orders of Committal against appellant and the 3 other respondents also swore to an affidavit of 9 paragraphs in support of the Motion.

The affidavit reads thus:

Affidavit in support of Notice of Motion:

“I MRS BEATRICE ONYEJESE, business woman and house wife, residing at No. 5 Hausa Street, Boji Boji Owa, Nigerian, make oath and states as follows:-

1. I am the 2nd plaintiff/applicant in these proceedings and have the consent of the 1st plaintiff/applicant who is my husband, to swear this affidavit.
2. On 20/8/92, the 1st plaintiff/applicant and I filed a motion on notice for certain reliefs. This motion has not yet been heard by this Honourable Court.
3. On 31/8/92, the 1st plaintiff and I together with the defendant/respondent and other respondents appeared in Court whereupon this Honourable Court made an Interim Order, an Office copy of which, is here referred to as Exhibit 1.
4. The defendant/respondent and the other respondents have refused, failed and/or neglected to obey the said Interim Order of this Honourable Court by selling and/or interfering with the vehicle Pick-Up No. 404, Registration No. BD 6827 GB with Chassis No. 10001796.
5. The defendant/respondent – Gabriel Ideh has boasted to me that he would, as far as the said vehicle is concerned, do anything in defiance of the Interim Order of this court with impunity.
6. The said Gabriel Ideh – the defendant in this case, has been intimidating one of my witnesses in this case (Prince Felix Etumonor) of Royal Palace, Umunede. A copy of the said Etumonor’s letter to the Registrar High Court of Justice Agbor is here referred to as Exhibit 2.
7. In expatiation of paragraph 4 supra, the said “RES” (motor vehicle)” – Pick-Up 404, Registration No. BD 6827 GB is no where to be found at present and I believe out of my own knowledge of the defendant/respondent that he – the defendant/respondent – Gabriel Ideh, has removed the said Car from the Police station Agbor to elsewhere.
8. The said vehicle was with the Police at Agbor Police station as at 31/8/92 and had been with the Police since 4/10/91. A certified True Copy of Ruling of this Court dated 4/10/91 is here referred to as Exhibit 3.
9. I swear this affidavit in support of this application and, paragraphs 1 to 8 above are true to the best of my knowledge, information and belief.

(Sgd) MRS. BEATRICE ONYEJESE

DEPONENT.

Sworn to at the High Court Registry, Asaba this 6th day of Nov; 1992.”

Applicants also swore to a further affidavit. The defendant/appellant swore to a Counter-affidavit of 7 paragraphs refuting the Motion thus:

COUNTER AFFIDAVIT TO REFUTE MOTION

“I, Gabriel C. Ideh, Male, Nigerian citizen residing at No. 60 Alika Street, Boji Owa, Delta State, do make oath and state as follows:-

1. That I have not failed, refused or neglected to obey the interim order of this court dated on 31/8/92 as to justify my being called upon to be committed to prison for contempt of this Honourable Court.
2. That paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of applicants affidavit are all untrue and denied.
3. In further answer to paragraph 1 above I state emphatically as follows:-

(i) That the applicants own Exhibits attached to her further and further affidavit at paragraph 15(i) and (ii) Sworn to in this Court on 4/9/92 and herein attached as Exhibits “A” and “B” show that the vehicle BD 6827 GB has passed on from Chief P.I. Mordi to one Valentine Offor as far back as 14/8/92.

(ii) The applicant’s motion which led to the alleged interim order of 31/8/92 was filed on 20/8/92. (iii) Paragraph 14 of same affidavit states, ‘That our said vehicle was surreptitiously removed from the Police Station to the Sales premises of Mr. Peter Mordi (Alias Able Dealer) on 30th July 1992 and when I discovered this I quickly reported the matter to the Agbor Police.”

(iv) Paragraph 11 of applicant’s Affidavit filed on 20/8/92 states, “That on 31st July 1992, I was informed by my relation, Mr. Ikechukwu Malia whom I verily believe that while he was travelling away from Town he saw out said vehicle being towed to the Town”.

(v) While paragraph 12(a) of the same affidavit reads “That the said Ikechukwu Malia further informed me and I believe him that when he later returned from his travel on 31/7/92 he saw the vehicle at the sales premises of one Peter Mordi (Alias Able Dealer) being displayed for sale.

4. That in a petition dated March 25th 1991, the 1st plaintiff, Mr. D.O. Onyejese reported to Police that I have sold the vehicle Exhibit “C”.

I sold the vehicle to Chief P.I. Mordi on 16/1/91 Exhibit “D” not after 31/8/92.”

5. That applicants Exhibit 2 is blatant falsehood and a forgery as there is no body or any existing human being by name “Prince Felix Etumonor” or Royal Palace Umunede.
6. That this application is illogical, based on falsehood and confused reasoning as evidenced by applicants Exhibits A, B, C, herein, which are all applicants own documents.
7. That I make this affidavit sincerely believing the contents to be true.

(Sgd) ???

DEPONENT

Sworn to at the High Court Registry this 24th of day of Nov., 1992.”

On 13/1/93 the court began to hear argument in support of application filed for committal of the appellant for failure to obey the Court Order made on 31/8/92. Counsel for the applicant first addressed the court on the same date. Counsel for the respondent/appellant Mr. Dumkwu also began his address on 13/1/93 when the court adjourned Further hearing of the Reply to 29/1/93. On 29/1193 Mr. Dunkwu asked for an adjournment to enable him file a further Counter/affidavit to refer to the Counter/affidavit already filed on 22/4/92. Counsel for the applicant, Dr, Adei objected to the application for an adjournment, the learned Trial Judge delivered the following Ruling on 29/1/93.

RULING

“I have considered the arguments before me and it would appear that the applicant will be prejudiced if more averments are allowed, moreso when, the applicant had concluded his argument. The respondent is only allowed to rely on the affidavit evidence he had already tendered, either directly or referred to in the said counter-affidavit. Consequently, I find it difficult to allow the application now made.

(Sgd) A.N. Maidoh,

JUDGE.

29/1/93.”

It is against this Ruling that the appellant has appealed to this court.

The appellant has filed 4 grounds of appeal, and formulated 3 issues for determination.

The following are the 4 grounds (without their particulars).

“1. The learned Trial Judge erred in law when he refused the defendant/respondent/applicant’s application to file a Further Counter-Affidavit.

2. The learned Trial Judge misdirected himself when he failed to take judicial notice of the records in Court’s file.
3. The learned Trial Judge was erroneous in law and amounted to an injudicious exercise of discretion vested in the learned Trial Judge when he refused the applicant to refer to paragraphs 16, 17, 18, 19 and 20 of the Amended Statement of Defence filed on 6th day of November, 1992 respectively or to file a Further Counter Affidavit to refer to the said paragraphs only.
4. The Learned Trial Judge was in grave error of law when he failed to consider ever or at all the submission that the failure to include in the Counter Affidavit the paragraphs now sought to be averred in the Further Counter Affidavit the error if ever there was one is due to Counsel’s negligence or inadvertence.”

At page 32 of the Brief of argument filed by appellant’s counsel, he submitted these 3 issues for determination:

“1. Whether the learned Trial Judge was right in overruling the application of the appellant to refer and use paragraphs 16, 17, 18, 19, and 20 in the amended statement of defence filed on 6th November, 1991 and paragraphs 11, 18, 19, 21, 22 and 23 of the Counter Affidavit filed on 31st day of August, 1992 which are in the case file, before the said Judge the said documents which we also served on the respondents.

2. Whether the learned trial Judge was right to have refused the appellant an adjournment to incorporate in a further affidavit, paragraphs in the amended statement of defence, counter affidavit and further counter affidavit.
3. Whether the learned trial Judge was right in refusing to grant the appellant adjournment since counsel’s inadvertence or negligence can not be visited on the client. Moreso, when the committal proceedings is quasi-criminal and the liberty of the appellant was at stake.”

For their own part the respondents formulated 4 issues for determination as follows:-

”A. Was the appellant right in disposing the Peugeot 404 Pick-Up, the res during the pendency of the case despite Court’s Order thereby knocking off the substratum of the case and thereby making whatever the judgment of the Trial Court, would be a nugatory?

B. Were the respondents not right in bringing the Committal Proceedings in consonance with the High Court (Civil Procedure) Rules 1988 as applicable to Delta State when the appellant disposed the res contrary to Court Order and when the case was pending?

C. Was the learned Trial Judge not right in not allowing the appellant to use the Additional Counter-Affidavit filed on 31/8/92 when the respondents have moved their application and the appellant had already replied midway, since this would foreclose the respondents’ as they cannot now join issues with the appellant on the affidavit evidence on record?

D. Is the wisdom of appealing at the close of the substantive matter not desirable instead of intermittent interlocutory appeals which could be taken together at the close of the case with the main issues?””

I have examined carefully the grounds of appeal filed by the appellant in this case and I do not see how grounds 2, 3, & 4 relate to the Ruling delivered by the learned Trial Judge on 29/1/93. Anyone reading the grounds of appeal filed by the appellant would think, the appeal was against a different Ruling from the one delivered by MAIDOH J., on 29/1/93.

I shall quote hereunder the whole record of proceedings that took place on 29/1/93 in respect of suit No. AG/7/91 as at page 236 – 237 of the records.

“BEFORE HIS LORDSHIP, HON. JUSTICE A.N. MAIDOH JUDGE:

ON FRIDAY, THE 29TH DAY OF JANURAY, 1993:

AG/7/9I: D.O. Onyejese & Anor v. G.C. Ideh.

Parties in court, except 1st plaintiff.

Dr. C v. O. Ade; for plaintiff/applicant.

P.C.E. Dunkwu for defendant/respondent.

Dunkwu continues with his reply.

Relies on Statement of Defence filed on 22/4/91. As for counter-affidavit of 31/8/92. At this stage Mr. Dunkwu asks for adjournment to enable him to file Further Counter-Affidavit to refer to the Counter-Affidavit already filed and the Statement of Defence filed on 22/4/91. The matter before the court is quasi-criminal. The facts to be mentioned are not new.

Adei objects:

(1) the applicant had concluded argument on the motion filed for committal on 13/1/93.

The respondent’s counsel had started replying based on the counter-affidavit to refute the motion. All the facts which he now wants to expose were available to him at all times. Asks that Dunkwu should conclude his reply. Dunkwu applies for an adjournment to enable him file a further Counter-Affidavit to enable him to refer a certain paragraphs filed in the Counter-Affidavit filed on 31/8/92. AND certain paragraphs in the Amended Statement of Defence filed on 22/4/91 and nothing more.

Adei objects for an adjournment to enable Dunkwu improve on his case.

Applicants have argued their motion on 13/1/93 and relied on the facts deposed to in the affidavit in support of the application. The respondent deposed to Counter-Affidavit opposing the application.

RULING:

I have considered the arguments before me and it would appear that the applicant will be prejudiced if more averments are allowed, moreso when, the applicant had concluded his argument. The respondent is only allowed to rely on the affidavit evidence he had already tendered, either directly or referred to in the said counter-affidavit. Consequently, I find it difficult to allow the application now made.

(Sgd) A.N. Maidoh,

Judge

29/1/93.”

There is nowhere in the Records that the learned Trial Judge was called upon to take judicial notice of certain Records in Court’s file hence the issue of refusal or denial of fair hearing does not arise.

Ground 2 therefore fails as it does not relate to the Ruling appealed against. In ground 3 the appellant complained about learned Trial Judge’s refusal to allow the applicant refer to paragraphs 16, 17, 18, 19, & 20 of the Amended Statement of defence filed on 6/11/91 and the Counter/affidavit paragraphs 11,18, 19, 21, 22, & 23 filed on 31st Day of August, 1992, respectively or to file a further Counter/affidavit to refer to the said paragraphs only – I am afraid this ground is also a non sequitur. It does not relate or arise from the Ruling of the learned Trial Judge. In his application for an adjournment, Counsel referred to a Statement of Defence filed on 22/4/91 whereas in Ground 3 he was talking about an Amended Statement of Defence filed on 6/11/91.

Ground 3 fails and is hereby struck out. In Ground 4 the appellant is complaining of the grave error committed by the learned Trial Judge when he failed to consider the submission that the failure to include in the counter affidavit the paragraphs now sought to be averred in the further counter affidavit is due to counsel’s negligence or inadvertence.

I have had several careful looks at the entire proceedings of 29/1/93 before MAIDOH J. I fail to see any portion wherein counsel for the appellant pleaded his own negligence or inadvertence in the omission allegedly referred to in his counter-affidavit. In his application for an adjournment, counsel for the appellant never owned up that he was negligent or that the omission sought to be rectified by an adjournment was due to his fault which should not be visited upon his client.

This ground of appeal is an afterthought and has no bearing whatsoever with the ruling of the learned Trial Judge. Ground 4 also fails.

In framing a ground of appeal, Counsel for the appellant must conform with the provisions of Order 3 rule 2(4) of the Court of Appeal Rules. The Rules provide thus:-

“(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.”

In this case appellant’s counsel has filed 4 grounds of appeal out of which only one discloses a reasonable ground of appeal relating to the Ruling delivered by the learned Trial Judge. Grounds 2, 3, & 4 are bad, incompetent and irrelevant and do not comply with the provisions of Order 3 rule 2(4) of the Court of Appeal Rules hence they are hereby struck out. See the case of Innih v. Ferado Agro & Const, Ltd. (1990) 5 NWLR (Pt. 152) 604.

‘I am now left with only Ground 1. Since an appeal is argued on issues and not on grounds, I have got to examine which of the issues submitted by the appellant is covered by Ground 1.

It is trite law that issues for determination in an appeal must relate to grounds of appeal. Appellant who has filed only one competent ground of appeal cannot formulate 2 or 4 issues from that one ground – See the cases of:

Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137 at 148.

Nwosli v. Udeaja (1990) 1 NWLR (Pt. 125) 188 at 217.

It is wrong for a party to formulate more issues than the grounds of appeal.

In this case the only issue which can arise from Ground 1 is Issue 2 and it reads thus:

Whether the learned trial Judge was right to have refused the appellant an adjournment to incorporate in a further affidavit, paragraphs in the amended statement of defence, counter-affidavit and further counter-affidavit.”

In support of this issue the appellant has argued that the reason given by the learned trial Judge when he refused to grant an adjournment was untenable and erroneous. He conceded the fact that the Judge had a discretion whether or not to grant or refuse an application for an adjournment. Counsel however submitted that in the circumstances of the instant case, the learned trial Judge was injudicious in the exercise of his discretion when he refused to grant the appellant an adjournment. He cited several cases to support his case. Among them are the following:

Udo v. The State (1988) 3 NWLR (Pt. 82) 316 at 326.

University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143.

Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909.

With regard to this issue I could hardly find anything said by the respondent in his brief of argument. The respondent’s brief of argument addressed different issues from those posed by the appellant. The respondent formulated 4 different issues on matters not contained in the appellant’s brief or grounds of appeal, The counsel for the respondent went off target as far as this appeal against refusal to grant an adjournment was concerned, and began to make out the applicant’s case in the committal proceedings. The respondent formulated issues which are not distilled or related to the grounds of appeal filed by the appellant. The material issue in this appeal and the matter under controversy is that the learned Trial Judge refused the appellant’s application for an adjournment midway in his address to enable him file a further additional counter-affidavit. The learned Trial Judge refused to grant an adjournment and the appellant has appealed against the Ruling of Refusal.

The only relevant material answer given by the respondent to this material point in his brief of argument was his submission under his Issue C. He submitted that the learned Trial Judge was very right in not allowing the appellant to argue a further counter/affidavit wherein new/fresh facts were raised in the course of his counsel’s reply and the parties at this stage were bound by affidavit evidence. Counsel sees the application as a ploy to frustrate the case. This is the only useful portion in the entire brief of the respondent. I shall make further comments later on about the briefs filed by both parties to this appeal. Now to the only relevant issue in this appeal. When a party in a case applies for an adjournment during the trial, he does not get it automatically or on a platter of gold. He must satisfy the court that he has a good reason to seek for an adjournment. The trial Judge also has a judicial discretion either to grant or refuse an application for an adjournment. The trial Judge has a duty to consider the application on its merits and state his reasons for his decision to grant or refuse the application.

In this case the learned trial Judge was hearing arguments on a Motion for committal to prison for contempt against the appellant and 2 others. The counsel for the applicants filed affidavit and further affidavits in support of the motion and attached some exhibits to these affidavits. Counsel for respondent (appellant in this case) filed counter/affidavit and further counter/affidavit. The applicants’ counsel had completed his address and respondent’s counsel had also commenced his own address. In the middle of his address, counsel prayed for an adjournment to file a further counter/affidavit to incorporate some paragraphs in his amended statement of defence already filed in the original suit which have given rise to the contempt proceedings. Counsel for the applicants opposed the application for an adjournment and the application was refused by the learned Trial Judge. Let us look at the reasons given for the refusal. The Ruling is very short hence I shall quote it hereunder.

RULING

“I have considered the arguments before me and it would appear that the applicant will be prejudiced if more averments are allowed moreso when, the applicant had concluded his argument. The respondent is only allowed to rely on the affidavit evidence he had already tendered, either directly or referred to in the said counter/affidavit. Consequently, I find it difficult to allow the application now made.”

Upon a careful scrutiny of the reasons given by the learned trial Judge for his refusal, it seems to me that the learned Trial Judge was only concerned with the case of the applicants. He is particular about the respondent not producing more averments to prejudice the case of the applicants. He has shut his eyes to the rules of natural justice that all parties must be given a hearing in a trial. If the respondent wishes to tender more affidavit evidence to defend his case in committal proceedings, should a trial court not allow him to do so in the interest of justice and fair hearing? The learned Trial Judge went further in his Ruling to commit more blunders by saying that the respondent is only allowed to rely on the affidavit evidence he had already tendered either directly or referred to in the said counter-affidavit.

In other words, he is limiting the scope of the defence of a person under trial in a committal proceeding which is quasi criminal in nature. Why the hurry? And why the use of the long stick to limit the defence of the appellant? In my view the learned trial Judge has not considered the application for an adjournment judiciously and judicially in this case and his ruling of a refusal must be set aside. He was most unfair and arbitrary to the respondent in the committal proceedings and the appellant in this case. See the case of: Udo v. The State (1988) 3 NWLR (Pt.82) 316 at 326. In an application for an adjournment, a trial Judge must be mindful of the nature of the proceedings before him when considering whether or not he will grant an adjournment. In the instant case the learned Trial Judge was hearing a case of Committal for contempt, of his Order, hence he ought to be very careful in making sure that he gives both sides equal opportunities to state their case fully, especially the party who seems to be on trial for his alleged disobedience. He did not do so in this case. The question of an adjournment is a matter in the discretion of the learned trial Judge and it must depend on the facts and circumstances of each case. Each case has its own peculiar circumstances. In the case of Jenkins v. Bushby (1891) 1 CH 484 at 495 Kay L.J. opined thus:-

“In matters of discretion no one case can be authority for another, and the court cannot be bound by a previous decision to exercise its discretion in a particular way, because it would be in effect putting an end to the discretion,”

This court will hesitate to interfere with the exercise of a trial Judge’s discretion unless it is satisfied that the exercise would be an injustice to one or other of the parties. See the case of:

Maxwell v. Keun (1928) 1 KB 645 at 633.

It is my view that this is a case that warrants a review of the learned trial Judge’s Ruling, and I am in duty doing so here. In sum this appeal succeeds and is hereby allowed. The Ruling of Maidoh J. delivered on 29/1/93 is hereby set aside and the appellant is allowed to file a further counter/affidavit in support of his case.

I cannot end this appeal without some comments on the briefs filed by both parties to this appeal. The appellant filed a 40 paged document which he labelled appellant’s brief of argument. Pages I to 32 consist of introduction, facts and a reproduction of previous motions, affidavits and counter/affidavits which have no bearing whatsoever on this appeal, The 4 issues were formulated on page 32. Counsel lumped up his arguments on the issues together on pages 33 – 39. The brief is unnecessarily verbose, substantially irrelevant and very defective in most parts. In fact it is a bundle of pettifogging – to use the language of UWAIS, J.S.C. in the case of Adehi v.Atega (1995) 5 NWLR (Pt. 398) 656. I would have discountenanced the entire brief as bad but for the interest of justice. Counsel paid no attention to the provisions of Order 6, rules 1, 2, 3 of the Amended Court of Appeal Rules.

The Brief of argument filed by the respondent although shorter in volume, is in no way better than that of the appellant. He failed to observe all the Rules of court pertaining to issue of brief writing. He filed his issues independently of the grounds of appeal filed by the appellant. The issues for determination is a very serious part of a brief and ought to be carefully formulated. Issue should be framed in such a way that it should arise from and relate to the grounds of appeal filed. The grounds of appeal filed represent and reflect the questions in controversy in the appeal. See the case of:

Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284 at 304. The respondent has woefully failed to comply with the rules pertaining to filing briefs of argument.

Order 6 r. 4(1) & (2) of Court of Appeal Rules give a guideline as to what a respondent is required to file and when he is required to file same. Rule 4 provides thus:-

“(1) The respondent shall also within forty-five days of service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.

(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief, and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall, mutatis mutandis, also conform with rule 3(1), (2) (3) (4) and (5) of the Order.”

The respondent formulated his own issues as if he was a cross-appellant. It is my view that counsel in cases before the Court of Appeal and the Supreme Court should not feel too big to read and study briefs of well experienced and successful lawyers before writing their own briefs. This will help them to improve their own standards. I recommend same and the book written by Nnaemeka Agu, J.S.C. on Manual of Brief Writing for the reading of the two counsel in this appeal. They will be richly blessed.

As I said earlier on, this appeal succeeds and is allowed. The Ruling of Maidoh J. delivered on 29/1/93 is hereby set aside and the appellant is allowed to file a further counter/affidavit in support of his case in suit. No. AG/7/91 – re-committal Proceedings. No Order as to costs.

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Other Citations: (1997)LCN/0329(CA)

Boniface Ezeadukwa V. Peter Maduka & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

TOBI J.C.A.

The 1st respondent as applicant in the lower court filed a motion exparte under the Fundamental Rights (Enforcement Procedure) Rules for leave to enforce his fundamental rights against the appellant, who was the 1st respondent in the Court and the 2nd respondent, Mr. Okonkwo. The motion was granted on 26th April, 1989. On 16th June, 1989, the 1st respondent filed the motion on notice. On 7th July, 1989, the 1st respondent filed a motion on notice dated 5th July, 1989 praying the lower court alia for an “order extending time within which to file the motion on notice in the above suit in respect of the Applicant’s Fundamental Rights, the statutory filing period having expired”. The application was granted on 16th October, 1989 as prayed. The matter was heard. On 2nd December, 1994, judgment was given in favour of the appellant. The court granted the injunction sought, awarded exemplary damages of N15,000.00 and general damages of N10,000.00. The court did not award the claim of N100,000.00 special damages.

Aggrieved by the judgment, the appellant has come to this court. Briefs were filed and duly exchanged. The appellant formulated the following three issues for determination.

“(a) Whether the Lower Court could on the strict interpretation of the provisions of Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 legitimately extend time within which an applicant may bring a substantive application for the remedy sought after the expiration of 14 days of the grant of leave for same?

(b) Whether based on the affidavit evidence together with all the materials placed before the court, the lower Court was justified in arriving at the finding of fact that an infringement of Fundamental Rights of the applicant had been established?

(c) Whether it could be rightly held based on the facts and evidence presented, that infringement had been occasioned by the application herein to entitle 1st respondent to the orders granted against the appellant?”

The 1st respondent also formulated three issues for determination:

“1. Whether the present appeal against the judgment of Hon. Justice i.e. Nzeakor delivered on 2nd December, 1994 can be challenged based on the legitimacy of the order of extension of time granted on 16th October, 1989 and in effect whether one of the grounds of appeal is competent, i.e. Ground one.

2. Whether the lower court was right to have granted the orders sought in the face of the affidavit evidence and counsel’s addresses before the lower court.
3. Whether the consequential orders for injunction, and damages were justified in the circumstances.”

Learned Senior Advocate for the appellant Mr. J.H.C. Okolo submitted that Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules is both a special and mandatory provision requiring a party/applicant who has been granted leave to bring, commence or initiate his application by way of Motion on Notice in protection of his fundamental rights within 14 days after the grant of the leave. Learned Senior Advocate did not see any conflict between section 6(6)(a) of the 1979 Constitution and Order 1 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules as to warrant the activation of the former by the learned trial Judge. Accordingly, counsel did not see much in the argument of the learned trial Judge that since the provisions of section 6(6)(a) of the Constitution have vested the High Court with unlimited jurisdiction, the High Court could therefore enjoy the exercise of powers which may be contrary to the provisions of the Fundamental Rights (Enforcement Procedure) Rules. The learned trial Judge therefore had no powers to extend the mandatory 14days imposed by Order 2 rule 1(2) of the Rules as the words of the statute are very clear, learned Senior Advocate submitted.

On the reliance by the learned trial Judge on the High Court Rules of 1988, learned Senior Advocate contended that the Fundamental Rights Enforcement Procedure) rules are complete and that the requirement of 14 days compliance was intentional having regard to the peculiar nature of the rules and the circumstances they are enacted to operate within. He therefore submitted that the reliance placed on Order 20 rule 3 of the High Court Rules was completely wrong. Learned counsel also submitted that Order 20 rule 3 is inapplicable in circumstances where a written law or common law has prescribed a definite period for an originating process.

Learned Senior Advocate argued that since the learned trial Judge had no jurisdiction to proceed in the way she did, the entire hearing of the substantive ‘Motion on Notice’ and the consequent award of damages was without the requisite jurisdiction and therefore a nullity. He relied on Ogwuche & Ors. v. Mba (1994) 4 NWLR (Pt. 336) 75.

It was the submission of learned Senior Advocate that the provisions of sections 30, 31, 32, 34 and 40 under which the application was brought were neither infringed nor “any likelihood of same being breached” as no such threats were ever alleged in the application. Counsel argued that before any of the provisions can be activated, the primary questions for consideration should be: (a) Do the complaints of infringement fall within the purview of the Fundamental Rights guaranteed by the Constitution? and (b) Has there been established any infringement of those rights?

Learned Senior Advocate itemized or enumerated at page 7 of the brief what he regarded as the complaints of the 1st respondent and submitted that on the express showing of the applicant through the depositions in his affidavit, none of the said conducts or acts alleged, even if proved, can amount to the breach of the section relied on. Relying on Sadiq v. State (1982) 2 NCR 142; Adefunmilayo v. Oduntan (1958) WNLR 31; Gbajor v. Ogunburegui (1961) All NLR 853 and Christie v. Leachinsky (1947) 1 All ER 567 at 581, learned Senior Advocate submitted that there was no arrest of the 1st respondent.

Even if it is true that the 1st respondent was arrested, detained and charged for a non existent offence, it is only when the appellant did any of those acts that the burden will be shifted on him to justify his conducts, learned Senior Advocate argued. He submitted that the reliance by the court on the case of COP Ondo State v. Obolo (1989) 5 NWLR (Pt.120) 130 was completely unjustified, as there was in that case arrest/detention of the applicant against the named respondent.

With regard to the second set of events complained of in the application, learned Senior Advocate submitted that even if mere boasts by a private citizen without more can constitute an infringement of the type contemplated by the Constitution, those allegations were vehemently denied by the appellant in the counter-affidavit. In that setting the duty of the court. was firstly to receive evidence as will put it in a position to resolve the clear conflict in the opposing assertions. To learned counsel no such thing was done. “yet the court was able to coast comfortably to the unsustainable conclusion, to both prefer the version of the applicant on those issues and thereof believe that there were threats from the appellant as alleged by the applicant”. He relied on Asonye v. Registered Trustees CACN (1995) 2 NWLR (Pt.379) 623.

On the specific findings of the learned trial Judge that the appellant breached the constitutional rights of the 1st respondent, learned Senior Advocate submitted that the findings were not borne out from the affidavit before the court. It was the contention of counsel that the case against each respondent in the lower court was meant to and should only affect each personally, especially when in law there is no valid nexus in terms of agency or warranty of authority between the appellant shown to be a private citizen and the 2nd respondent, a Police Officer.

Learned Senior Advocate contended that the learned trial Judge wrongly equated the thrust of the burden of proof in malicious prosecution actions with the issues in this case, a situation which resulted in the decision. To counsel, the case against each person ought to succeed or fail on the basis of the conducts alleged against each, leaving no room whatsoever for any finding of collusion, conspiracy, common intention or concertion between the two. He relied on Barau v. Chaba (1995) 1 NWLR (Pt.371) 359 and Adefumilayo v. Oduntan supra.

Learned Senior Advocate urged the court to allow the appeal.

Learned counsel for the 1st respondent Mr. K.O. Iloh, dealing with Issue No. 1, submitted that since the appellant failed to appeal against the 16th October, 1989 ruling of the lower court extending time within which to file the motion on notice, he cannot challenge the legitimacy of the judgment delivered on 2nd December, 1994. He relied on Aladegbami v. Fosanmade (1988) 3 NWLR (Pt.81) 129 at 155 and UBA Plc v. Onagoruwa (1996) 3 NWLR (Pt.439) 700 and submitted that Ground 1 of the grounds of appeal is incompetent.

On Issue No.2 learned counsel submitted that the learned trial Judge was right in the conclusion that the appellant and the 2nd respondent breached the 1st respondent’s fundamental rights and proceeded to make attendant orders. He relied on the affidavit evidence before the court, including the counter-affidavit. Counsel claimed that the appellant admitted in the counter-affidavit that he played a role in the unjustified arrest but said that he was assisting the policeman who came to arrest for a reason he did not know. To learned counsel, the explanation was not sufficient and that the appellant ought not to have acted as a pointer in relation to an alleged offence he claimed not to know anything about.

Counsel referred the court to specific depositions in the affidavits and submitted that the imputations of the learned trial Judge based on the depositions were rightly made. He relied on Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 773; Commissioner of Police Ondo State v. Obolo (1989) 5 NWLR (Pt. 120) 130 at 137 and section 42 of the 1979 Constitution.

On Issue No.3 learned counsel submitted that by the provisions of section 42 of the Constitution the 1st respondent is entitled to redress. He also submitted that an injured party is entitled to redress and monetary compensation in application of this nature. He relied on Candide-Johnson v. Edigin (1990) 1 NWLR (Pt.129) 659 and urged the court to hold that Ground 2 is not established. Learned counsel finally urged the court to dismiss the appeal. There was also a heated argument on Order 2 rule (1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979.

Let me first take the submission of learned counsel for the respondent that Ground 1 of the grounds of appeal is incompetent. Ground 1 reads:

“That the learned trial Judge erred in law when she continued to hear the case and determined same despite non-compliance with Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules which said non-compliance affected the competence and jurisdiction to go on with the full trial of the case.”

It seems to me that learned counsel based his submission on the fact that the appellant failed to appeal against the 16th October, 1989 ruling of the lower court. While I agree with him that a trial Judge is competent to make use of its own decisions which has not been set aside by an appellate court, I do not agree that an aggrieved party must invariably appeal against an interlocutory decision of a trial court. An appellant can appeal against a ruling of a trial Judge together with the final decision of the court. As a matter of fact, appellate courts encourage the procedure and discourage parties appealing against interlocutory decision which will not dispose of the entire matter. In the latter situation, so much litigation time is wasted and for no valid reason.

In Chief Bakare v. African Continental Bank Limited (1986) 3 NWLR (Pt.26) 47, Aniagolu, J.S.C. opined at pages 58 and 59, and I quote him in some length:

“Although I have already stated at the beginning of this judgment that the issue involved in this appeal is profound and therefore the bringing of the appeal is justified, yet it is desirable that I take this opportunity to call attention to the habit of some litigants in Lagos especially, of rushing to the Court of Appeal and thence to this court to test and challenge the ruling of the High Court on the smallest issues which arise in the course of the trial of cases. Many a time this entails the suspension of the trial by the judge and an adjournment of the case sine die. Sometimes, many years go by before the conclusion of the appeal proceedings – a fact contributing to the much discussed delay of cases in our courts. One, of course, would not say that in appropriate cases such appeals should not be undertaken, but this must be limited to serious matters. It should not be embarked upon on trifling legal issues which can be taken up generally with the substantive appeal at the conclusion of hearing. Lawyers may enjoy the splitting of hairs on obtuse legal points but that extravagant exercise has the result of weighing heavily on the pockets of litigants and unnecessarily exhausting the energies of the appeal courts.”

A party who fails in a ruling before a trial Judge may decide to take a gamble by waiting for the final decision of the court, hoping that he succeeds at the end. If he does, then the Ruling against him is spent and he need not do anything about it. And this strategy is useful in two ways. First, it saves time and second, it saves money. I cannot fault counsel who advises his client to wait for the final decision of the court to appeal both on the ruling and the judgment, in relevant circumstances. As long as the ruling is on the matter, time will start to run after the final decision and so the party does not suffer any reverse by way of the ‘time’ provisions in the Rules of Court. Such a counsel, in my view, is clearly on the side of prudence and good judgment I do not therefore see anything wrong in waiting for the final decision of the trial court before appealing both on the ruling and on the entire judgment. And what is more, I do not see the incompetence of the ground as submitted by learned counsel. In my humble view, the ground is competent and I so hold.

And that takes me to the 14 days rule provided for in Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. The rule reads:

“The motion or summons must be entered for hearing within fourteen days after such leave has been granted.”

The words “such leave” refer to the earlier rules providing for the application for leave to apply for an order to enforce fundamental rights. And they are Order 1 rules 2 and 3 and Order 2 rule 1. Of direct relevance is Order 2 rule 1(1). By the rule, when leave has been granted to apply for the order being asked for the application for such order must be made by notice of motion or by originating summons to the appropriate court. Unless the court or Judge granting leave has otherwise directed, there must be at least eight clear days between the service of the motion or summons and the day named therein for the hearing. By the sub-rule the Court or Judge has a discretionary power in respect of the eight days period. That is the essence of the words, “has otherwise directed”

As it is, Order 2 rule 1(1) does not deal with the hearing of the application. It deals with the making of the application and service. The statutory period between the service of the motion or summons and the day named therein for the hearing must be at least eight clear days. Although the court or Judge has a discretionary power in respect of the eight days, it does not appear to me that the Court or Judge can reduce the days. I say so because the word “there must be at least” would appear to restrict the power of the Court or Judge from reducing the days. However, by the words “otherwise directs”, the Court or Judge has the power to increase the days. In extending the days, the Court or Judge has not the freedom of the air to go that far. While the Court or Judge will be guided by the particular circumstances of the case, it is important to realize the speed element in the hearing of applications for the enforcement of the rights.

Order 2 rule 1(2), which I have reproduced above is very much related to Order 2 rule 1(1), in terms of the time element in both rules, vis-a-vis, the entering of the motion or summons for hearing. By a community interpretation of Rules 1(1) and 1(2), that period is 22 days. This is arrived at by a simple arithmetical calculation of adding the 8 days period in Rule 1(1) to the 14 days period in Rule 1(2).

Assuming that the Court or Judge does not exercise the discretionary power under Rule 1(1), the motion or summons flowing from the rule must be entered for hearing within 22 days; 8 days for Rule 1(1) and 14 days for Rule 1(2). Let me take a hypothetical case to make myself clearer. Assuming that the Court or Judge extends the period in Rule 1(1) by a day, then the motion or summons flowing from the rule must be entered for hearing within 23 days; 9 days for Rule 1(1) and 14 days for Rule 1(2).

Normally, the construction of Order 2 rule 1(1) is not really necessary in this appeal but I have taken it because of the rather serious and long oral argument, most of it tested the patience of the court. As a matter of law, it is Order 2 rule 1(2) that is directly relevant in this appeal.

Let me now take the rule. The one sentence rule is precise and specific. It uses the peremptory expression, “must”. Apart from the fact that the expression means an essential or a necessity; it also means a thing that should not be missed or neglected. Although the expression also includes the mandatory “shall” it goes beyond it in terms of strength and sanctity, when the courts at times interpret the word “shall” to mean “may”. I should pause here to recall what one of my brothers said during the oral argument of the appeal. He said that it is possibly to avoid the occasional interpretation of the word “shall” as “may” that the draftsman decided to use the word “must”. That is a very beautiful one, which I can buy. He is correct. In the context of rule 1(2), the effect of the expression is that failure to enter the motion or summons for hearing within 14 days is a breach of the rule, and I so hold.

The Jos Division of this court had occasion to interpret the rule in Ogwuche & Ors v. Mba & Ors. (1994) 4 NWLR (Pt.336) 75. On 24th July, 1983, the respondents, as applicants in the High Court, filed a motion ex parte for the enforcement of their fundamental rights against the appellants, as respondents in that court. The motion ex parte was argued on 27th July, 1989 and leave was granted to the respondents to enforce their fundamental rights. The learned trial Judge then fixed the return date for the hearing of the motion on notice to 7th September, 1989, a period of more than 40 days after leave was granted pursuant to the argument on the motion ex parte. The learned trial Judge delivered a reserved Ruling on 9th December, 1989.

Allowing the appeal, the Court held inter alia. (a) “must” is a word of absolute obligation and occurs in a section which is concerned with a Fundamental principle of justice. It is not merely directory. It is naturally primafacie imperative and admits of no discretion. (b) The word “must” used in Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 to the effect that the motion or summons must be entered for hearing within 14 days after leave has been granted, is mandatory. Effect must be given to it. Therefore, the court must fix hearing of the motion on notice within 14 days of the grant of leave to enforce the fundamental right.

In the instant appeal, the motion ex parte was granted on 26th April, 1989 to enable the applicant to file motion on notice. That was not done until 16th June, 1989, a period of about fifty-one days. That is certainly a breach of Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. The learned trial Judge at the material time, Ekwerekwe, J., in his 16th October, 1989 ruling, however granted the application. He relied not on Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules 1979, but on Order 20 rule 3 of the High Court Rules, 1988. He said at page 39 of the Record:

“The 1979 Rules made by the Chief Justice of Nigeria pursuant to section 42(3) of the 1979 Constitution being silent for noncompliance with Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 there should be extension of time. That being the case, the appropriate High Court Rules, 1979, will apply to remedy the position. I therefore hold the view that extension of time will be granted to the applicant in the circumstances. In the result, the motion on notice is hereby allowed. By Order 20 rule 3 of the High Court Rules, 1988, the applicant is given two days extension of time to file a motion on notice. Having therefore filed the motion on notice in Court and served same on the respondents on payment of the prescribed fees, the motion on notice is deemed as properly filed and served.”

Was the learned trial Judge right in falling back on the High Court Rules in the light of the specific provisions of Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979? I think not. It is the law that where there are two enabling laws, one specific and the other general, the court should invoke the specific provision. This is because the court is entitled to presume that the draftsman intended the specific law to govern the matter. And in that respect, the specific law that governs the matter is Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979.

In invoking the High Court Rules, the learned trial Judge relied on the case of Major Ladejobi v. The Attorney-General of the Federation (1982) 3 NCLR 563, where Balogun, J. held that in so far as the Fundamental Rights (Enforcement Procedure) Rules, 1979 are deficient in any manner (being silent or not full enough on any particular point of procedure) the rules of court of the appropriate High Court would apply and be available for enforcement of fundamental rights. The Judge therefore held in that case that the alternative mode of procedure adopted by the applicant, by way of judicial review, was proper in the circumstances.

In my humble view, the case is not applicable in this appeal. Major Ladejobi’s case had to do with filing an action on a completely different procedure of judicial review which is not available under the Fundamental Rights (Enforcement Procedure) Rules, 1979. And the decision of Balogun, J., should be read in that context, and is therefore not available to the respondent in this matter.

There is yet another aspect of the matter. Was the learned trial Judge right in holding that the 1979 Rules are silent on non-compliance with Order 2 rule 1(2)? Legal draftsmen adopt two ways. In some rules of court, they specifically provide for effect of non-compliance with the rules contained therein. Beginning from our home like ‘charity’, I cite Order 7 of the Court of Appeal Rules, 1981 as amended, but now 1990 Rules. That is a clear example of specific provision on noncompliance with the Rules. Even at that, the Order does not cover all instances of non-compliance with all the Rules, in which case, the court must invoke its interpretative jurisdiction. That is one way. The other way is found in the Fundamental Right (Enforcement Procedure) Rules, 1979 where no specific provision, like the Order 7 type, on the effect of non-compliance with the Rules. But that does not mean that the court will embark on an unguarded voyage of discovery in search of greener pastures for the applicant. On the contrary, a Judge must confine himself to the enabling provisions of the Rules and interpret same in the light of the factual position of the matter.

And here, Order 2 rule 1(2) is not as helpless as Ekwerekwe, J. thinks. He ought to have invoked his interpretative jurisdiction in respect of Order 2 rule 1(2). If he had done so in the way I have construed it above, he should have found no need to fall back on the High Court Rules, 1988.

The mere fact that Rules of Court do not specifically provide that noncompliance with them will attract a specific or particular procedural sanction does not necessarily mean that they are silent on non-compliance. It is not so. A trial Judge in the construction he places on the Rules may arrive at such conclusion of effect of non-compliance. Order 2 rule 1(2) is clearly one such rule.

It is clear from the decision of Ogwuche & Ors. v. Mba & Ors supra, that non-compliance with Order 2 rule 1(2) renders the proceedings a nullity. That is very good law and so I agree entirely with the judgment. In the circumstances, Nzeako, J., lacked jurisdiction to hear the matter.

It is also good law that where a court ab initio lacked jurisdiction in a matter, the subsequent proceedings however ably conducted, will be a nullity. The principle of nihilo nihil fit will apply. Accordingly, I hereby declare the proceedings of the court presided over by Nzeako, J., including the judgment of 13th October, 1994 delivered by the learned trial Judge as a nullity.

Assuming that I am wrong, I take the issue of the trial Judge accepting the proof of facts in affidavits which are in conflict without hearing evidence to reconcile them. Learned Senior Advocate quoted what I said in Asonye v. Registered Trustees CAC, supra at page 634:

‘The applicant deposed to bias or likelihood of bias on the part of the trial Judge. Of course the depositions have been denied and contradicted by Mr. M.N. Ogbanufe, Records Officer and Attorney of the respondent. The court has no jurisdiction to reconcile conflicting affidavit suo motu or prefer one version of the deposition to the other without oral evidence, unless on clear issues where the court can take judicial notice. I shall therefore not make any efforts to reconcile the conflicting depositions because there is really no need for that type of exercise.”

In Okotie & Ors. v. Olughor & Ors. (1995) 4 NWLR (Pt.392) 655, Iguh, J.S.C., said at page 670: “Turning now to the issue in controversy, it is a well established principle of law that when a court is faced with affidavits which are irreconcilably in conflict, the court in order to resolve such conflict properly should first hear oral evidence from the deponents and their witnesses, if any. See: Joseph Falobi v. Elizabeth Falobi (1976) 9 and 10 SC 1; Akinsete v. Akindutire (1966) 1 All NLR 147; Eboh & Ors. v. Oki & Ors. (1974) 1 SC 179 at 189; Olu-Ibukun & Anor v. Olu-Ibukun (1974) 2 SC 41 at 48 and Uku & Ors. v. Okumagba & Ors. (1974) 3 SC 35 at 56.”

In Ajewole v. Adetimo & Ors. (1996) 2 NWLR (Pt.431) 391, Mohammed, J.S.C., also said at page 398:

“In support of the application the appellant filed an affidavit and a further affidavit disclosing facts on which the grounds for application were based. The respondents filed a counter-affidavit….. It is plain from the affidavits that the conflict must be resolved. It is trite and a matter of practice that when a court is faced with affidavits which are irreconcilably in conflict, the judge hearing the case should first hear oral evidence from the deponents or such other witnesses as the parties may call so that the oral evidence would enable him test the affidavit evidence and thereby resolve such conflicts arising from the affidavit evidence. See: Government of Ashanti v. Adjuah Korkor & Ors. 4 WACA 83 and Uku v. Okuimagba (1974) 3 SC 35.”

The above is clearly the position of the law and the case law is in great proliferation. See: Okere & Ors. v. Nlem & Ors. (1992) 4 NWLR (Pt.234) 132; Onagoruwa & Anor. v. Alhaja Adeniji (1993) 5 NWLR (Pt.293) 317; Mbadugha v. Nwosu & Anor (1993) 9 NWLR (Pt.315) 110; The Nigerian Union of Journalists & Ors. v. The Military Governor of Lagos State & Ors. (1995) 3 NWLR (Pt.385) 603; Ojimba & Ors. v. Ojimba & Ors. (1996) 4 NWLR (Pt.440) 32.

On 16th June, 1989 the 1st respondent, as applicant, swore to a 37 paragraph affidavit in support of his application. On 7th July, 1989, the appellant as 1st respondent swore to a 20 paragraph counter-affidavit. In paragraph 3 of the counter-affidavit, the 1st respondent in the lower court, now appellant, deposed as follows:

“That paragraphs 1, 2, 3, 6, 7, 10, 11 and 18 of the affidavit are true while the rest of the paragraphs are false.”

This means that of the 37 paragraphs, only 8 paragraphs were admitted by the appellant. He denied 19 paragraphs, including paragraphs 8, 15, 16, 17, 18 and 28 which directly affected the appellant. It should be mentioned that there are specific averments of denial by the appellant of some of the paragraphs of the affidavit in support.

The learned trial Judge, Nzeako, J., did not see the necessity of ordering that oral evidence be led by the parties to reconcile the conflicting affidavit evidence. At page 74 of the Record, the learned trial Judge said:

“The respondent admitted that this meeting took place but gave a different version of the object and events. This I will come back to later in this judgment.”

It is clear from the above that the affidavit evidence of the parties was in conflict on the issue of “the object and events” of the meeting. I expected the learned trial Judge to order oral evidence to clear the conflict. She had no jurisdiction to “come back later” to the issue in the judgment, to reconcile it suo motu.

In sumrnarizing the affidavit evidence, the learned trial Judge said at page 77:

“As to paragraph 8 of the applicant’s affidavit, 1st respondent denied calling him armed robber to the police but admitted going to Adazi-Enu with the police and identifying the applicant to the police man.”

The relevant paragraph of the counter-affidavit is paragraph 7. It reads:

“That the role I played in his arrest was to identify him to the police as directed by the President of the Neni Town Union whom the policemen asked for assistance in identifying the eighteen persons of Neni origin whose names they the police came with from Enugu.

I did not call the applicant a robber.”

Again, I expected the learned trial Judge to order oral evidence on the vital issue of calling or not calling the applicant a robber. That she decided not to do so or probably did not remember to do so, is unfortunate.

The 2nd respondent (the police constable) in the lower court did not file a counter-affidavit. The learned trial Judge reacted at pages 75 and 76:

“The law is that where facts deposed to in an affidavit have not been controverted, they must be taken as true or proved in the case of the 2nd respondent therefore, this court is bound to accept and hereby accepts all the allegations made against him, which are as follows… That it was the 1st respondent who gave the name of the applicant that led to the applicant’s arrest and seizure of his goods,”

There is a problem here and it arises from the last sentence. The sentence is certainly an allegation not against the 2nd respondent, but against the 1st respondent, who is the appellant in this court. Therefore, the learned trial Judge was, with the greatest respect, in grave error in concluding that the court is bound to accept all the allegations made against the 2nd respondent, including the last sentence which is directly against the appellant. And what is more, the learned trial Judge was not competent to so hold without calling oral evidence, particularly in the light of paragraphs 7, 14 and 15 of the counter-affidavit.

There are quite a number of other areas of conflict. I do not want to go into them. The above areas are enough to make the point, and it is that the learned trial Judge was wrong in reconciling the conflicting affidavit evidence suo motu and giving judgment, without calling for oral evidence. In view of the fact that the findings of the learned trial Judge which led to the judgment are crucial to the live issues before the court, the judgment cannot stand. It is a nullity and i so declare. See Ojimha & Ors. v. Ojimha & Ors. (1996) 4 NWLR (Pt.440) 32.

Again, assuming that I am wrong, I proceed to take the live issues of the matter. And that takes me to the conduct of the appellant in the light of the rights held to be infringed by the learned trial Judge. They are right to life, right to the dignity of the applicant’s person, right to personal liberty, right to private and family life and the right to the enjoyment of property. These were the rights claimed by the 1st respondent, which gave rise to the judgment of the learned trial Judge.

I will take them seriatim:

Right to life

Section 30(1) of the 1979 Constitution provides that every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty. This constitutional right ends the moment its owner is killed or murdered because he is no longer alive to enforce the right. Accordingly, the right is not enforceable under the first two limbs of Order 1 rule 2(1), which are similar to the first two sectors of section 42(1) of the 1979 Constitution. The position is analogous to the offence of suicide in relation to the deceased. The difference however is that in the case of section 30 of the Constitution, there is no person to enforce the right but in the case of the suicide, there is no person to punish.

Since the section 30 fundamental right is not enforceable under the first two limbs of Order 1 rule 2(1) which provide for the enforcement of the right that “has been” or “is being” infringed, the right is enforceable only under the third limb. By the third limb, an applicant can enforce the section 30 right if the right is “likely to be infringed” When is a right likely to be infringed? The Court of Appeal (Enugu Division) provided an answer in Chief Uzoukwu & Ors. v. Ezeonu II & Ors. (1991) 6 NWLR (Pt.200) 708. 1 said at page 784:

“In the third limb, there is likelihood that the respondent will contravene the fundamental right or rights of the plaintiff…. by the third limb, a plaintiff or applicant need not wait for the last act of contravention. It might be too late to salvage the already damaged condition. Therefore the third limb gives him the power to move to court to seek for redress immediately he senses some move on the part of the respondent to contravene his fundamental rights. But before a plaintiff or applicant invokes the third limb, he must be sure that there are enough acts on the part of the respondent aimed essentially and unequivocally towards the contravention of his rights. A mere speculative conduct on the part of the respondent without more, cannot ground an action under the third limb.”

I endorse the above statement. In order to succeed in an action under section 30 of the Constitution, and in the context of the third limb of Order 1 rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, an applicant must prove that the respondent threatened to kill him. And here, mere oral threat on the part of the respondent to kill the applicant is not enough to sustain an action. The threat should be backed up with some overt act of an attempt to kill or exhibition of weapons or materials capable of effecting the murder or killing of the applicant. A mere vulgar threat of an oral nature without more cannot sustain a section 30 action.

Was there any such evidence before the learned trial Judge? Averments as to boastings and threats are made in paragraphs 15 to 21 of the 1st respondent’s affidavit as applicant. Let me reproduce them here:

“15. That to my utter surprise and dismay, as soon as I got home to resume my job, the 1st respondent started boasting openly that he will never rest nor spare his money until I am either executed as an armed robber or incarcerated indefinitely.

16. That when I learnt of the 1st respondent’s boastings, I went to his house in the company of my brother Dr. Thomas Maduka (Dean Linguistics Department. University of Port Harcourt) and my mother Mrs. Benedeth Maduka to plead with the 1st respondent to allow me to exist since I did no wrong to him.
17. That when the 1st respondent was confronted about his utterances, he confirmed them and made a firm promise that unless he no longer had money or died, I will surely see how he will perfect his boastings.
18. That this meeting referred to in paragraph 17 took place in the 1st respondent’s village home at Ezi-Nneni on the 28th day of December, 1988 in the presence of two relations of the 1st respondent in addition to the other persons aforesaid.
19. That we pleaded passionately with the 1st respondent to allow me a poor man to exist along with him the affluent but he held to his boastings.
20. That given the above confrontation we had with the 1st respondent, our Towns people advised me that I should now ignore the threats since the 1st respondent would not dare to carry out the threat and I verily believed them to my detriment and ruin.
21. That on the 18th day of March, 1989, the 2nd respondent swooped upon my house and arrested me again.”

I do not see in the above paragraphs and indeed in any other paragraphs of the affidavit evidence justifying the enforcement of the section 30 right to life. It is clear from paragraphs 20 and 21 that the alleged threat in paragraph 20 resulted in an arrest and that arrest was made not by the appellant but by the 2nd respondent.

Right to dignity of the person

This is a section 31 right. By the section, every individual is entitled to respect for the dignity of his person. This means that (a) no person shall be subjected to torture or to inhuman or degrading treatment; (b) no person shall be held in slavery or servitude; and (c) no person shall be required to perform forced labour or compulsory labour. I have carefully gone through the affidavit of the 1st respondent and there is no averment near or close to the section 31 right.

Right to personal liberty

This is a section 32 right. The section provides for specific instances where a person will be deprived of his liberty. Of special importance in this section is the arrest, detention and subsequent release on bail.

In paragraph 8 of the 1st respondent’s affidavit, he deposed:

“That on the 13th day of August, 1988 while I was moulding blocks at Adazi-Enu for one Mr. Joseph Ezekunle, Mr. Boniface Ezeadikwa came to the place with one Police Officer and when I was spotted at work the 1st respondent pointed me out to the policeman saying here is the robber, arrest him.”

That is the only ‘evidence’ from the 1st respondent connecting the appellant with this arrest. At pages 62 and 63 of the Record, the following submission was made by Mr. lfeanyi Ukoh, learned counsel for the appellant at the trial court, who was the 1st respondent there:

“Applicant has not made out a case that can make the court grant his prayer on the following grounds: Both in the affidavit in support of his motion and the further affidavit, applicant never mentioned that the 1st respondent was responsible for his arrest. The only place where it can be inferred that 1st respondent was responsible was in paragraph 8 of the affidavit… …. In none of these affidavits was 1st respondent mentioned … ”

Reacting to the above, the learned trial Judge said at pages 82 and 83 of the Record:

“First, there is no substance in the submission of his counsel that the applicant did not mention that it was the respondent who was responsible for his arrest and detention. One is bound to ask the 1st respondent what then this application is for. He was named therein. Why is he made a party? Why did he depose in his affidavit, facts which deny that he was responsible for the acts complained of and justified himself by saying that he only acted as a pointer etc? The clear inference to be drawn from the foregoing and the averments in paragraphs 8 to 13 of the applicant’s affidavit and his Exhibits ‘F’ and ‘G’ which are the proceedings of the Magistrate’s Court and the High Court, point to no other fact than that the applicant is accusing the 1st respondent of masterminding and procuring his arrest, detention and subsequent trumped up charge.”

The learned trial Judge also said at page 84:

“This court has a duty to determine who was responsible for the arrest, detention and prosecution of the applicant on a non-existent offence of armed robbery. It cannot discharge that duty as well as the duty to find if there was good ground for doing so. unless there is sufficient evidence produced by the party upon whom the onus lies. That is the 1st respondent, identified by the applicant as masterminding or at least having from 1st respondent’s own evidence, a hand in his arrest.”

With respect, the point raised by Mr. Ifeanyi Ukoh is not as simple as the learned trial Judge has put it. In my humble view. the submission is sound and healthy. It is clear from the affidavit of the 1st respondent that the appellant “was responsible for his arrest” and subsequent detention. While I agree entirely with both Mr. Ifeanyi Ukoh and the learned trial Judge that inference could be drawn from paragraph 8 or the affidavit, that is not enough in an area of the law of arrest which clearly states laid down stages to enforce the criminal procedure. See: Christie v Leachinsky (1947) AC 573; Inspector-General of Police v. Oghomo (1957) WRNLR 200; Ikonne v. Commissionnr of Police & Anor (1986) 4 NWLR (Pt.36) 473. In order to succeed in an action, an arrestee must prove to the smallest detail that the arrest was unlawful in the sense that the laid down procedure was not followed by the person effecting the arrest.

A trial Judge cannot draw inference in vacuo or in a vaccum but in relation to facts which justify such inference. And since an inference is an act of deducing or drawing a conclusion from existing premises by way of facts, the facts upon which the inference is deduced or drawn must be in proximity or intimacy with the inference. Where an inference is at large, it cannot perform inferential function of drawing a conclusion from premises.

Let me pause here to recall the submission of learned Senior Advocate, Mr. Okolo that apart from paragraph 8 of the affidavit in support of the application. “there is no assertion anywhere of the actual person who arrested and detained him at various places in the state, at least no direct reference was made to the 1st respondent/appellant herein in that regard.” This submission vindicates the earlier submission Mr. Ukoh made at the trial court which the learned trial Judge appears to have trivialised.

The learned trial Judge used two fairly strong and telling words in the course of evaluating’ the conflicting affidavits suo motu. They are “masterminding” and “procuring”. The words in their docile content are strong and powerful but they are stronger and more powerful when used in the context of the arrest, detention and the charge. To mastermind a matter goes beyond mere influence or instigation of a matter. It is the origination of it; not a mere propeller. To procure means to contrive to obtain or bring about or bring upon someone. The noun variant of procurement also carries the connotation of inducement. And so when these two large, strong and powerful words are used by the learned trial Judge against the appellant in the context of the arrest, detention and charges, without evidence in support, the appellant will certainly feel hurt. And here, I hold that neither paragraphs 8 to 13 of the 1st respondent’s affidavit, nor Exhibits ‘F’ and ‘G’ support the conclusion of the learned trial Judge.

Let me take further the issue of arrest in paragraph 8 of the affidavit of the 1st respondent as applicant and here I will concern myself with the significant words “… here is the robber, arrest him” In his counter-affidavit, the appellant as 1st respondent deposed in paragraphs 7 and 8 thereof:

“7. That the role I played in his arrest was to identify him to the police as directed by the President of the Neni Town Union whom the policeman asked for assistance in identifying the eighteen persons of Neni origin whose name they the police came with from Enugu. I did not call the applicant a robber”

8. That I did not call the applicant a robber while identifying him as he alleged since the policeman who came for his arrest never discussed why they were being sought for.”

There is a clear conflict between paragraph 8 of the affidavit in support and paragraph 7 of the counter-affidavit, amplified by paragraph 8 thereof. Following the law which I have examined above, I expected the learned trial Judge to order oral evidence to resolve the conflict. Instead of doing that, the learned trial Judge held the appellant liable for the arrest.

Unfortunately the Judge did not see the necessity for oral evidence and went on to say at page 83 of the Record:

“Secondly, I believe the applicant made a reasonable case against the 1st respondent. For if one relied on the 1st respondent’s version of the story that he was only acting as a pointer, having been directed by the President of Neni Town Union, the question could be asked why was it, him of all the Neni people who was picked out to go and identify the applicant at Adazu-Ani? It was only him, who knew that the applicant, a former apprentice of his, whom he sacked for fraud since 1975 and who had become a block moulder since 1980, was at his work site at Adazi-Enu, another town at that material time when the police came from Enugu with a list which included applicant’s name…….. The name of the President of Neni Town Union has not been given by the 1st respondent, nor was his evidence produced nor was the police called by him to help him discharge the onus on him. The law is that in an action for false imprisonment or detention in breach of fundamental rights, the onus is on the defendant to prove the legality or constitutionality of the arrest and detention of the plaintiff.”

So much is involved in the above statement. What was the “reasonable case” made by the 1st respondent against the appellant in the light of the conflicting affidavits. Can a Judge, in law, accept only affidavit in support and neglect a counter-affidavit and come to the conclusion that a reasonable case has been made in the affidavit in support? Can that be justice? I think not. The position taken by the learned trial Judge could be likened to a trial Judge giving judgment to a plaintiff based only on the statement of claim without due reference and consideration of the statement of defence. That is not justice. That is clear injustice. It offends all the tenets of audi alteram partem and the principles of fair hearing.

The learned trial Judge pointed out that the name of the President of the Union was not given, and that his evidence was not produced. She also pointed out that the appellant did not call the police “to help him discharge the onus on him.”

The President of the Union and the police could have come before the court to give evidence if the learned trial Judge so ordered. They could not have come to court on their own. And that is the whole essence of the order by the learned trial Judge that in the light of the conflicting affidavit evidence the parties should call oral evidence. And that order, the learned trial Judge, failed to make before deciding the case. By failing to give the parties an opportunity to give oral evidence in amplification or vindication of their affidavits, the court denied them justice, and I so hold. The appellant could not discharge the onus the trial Judge mentioned because she did not give him the opportunity to do so. With the greatest respect, she was clearly in error.

In Ojimba & Ors. v. Ojimba & Ors. supra, the Court of Appeal held that in proceedings conducted on affidavits filed by both parties, where the facts deposed to in the affidavits are irreconciliably in conflict, oral evidence should be called to resolve the conflict. This procedure is mandatory on the court. In such a situation, the law enjoins the court to opt for taking oral evidence even where the parties did not apply to it to take oral evidence to resolve the conflict.

Right to private and family life

This is a section 34 right. It guarantees the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications. I do not see any paragraph of the affidavit of the 1st respondent who was the applicant in the lower court, on the violation of the right by the appellant. It is deposed in paragraph 8 of the affidavit in support of the application by the 1st respondent that the appellant and a police officer came to him where he was moulding blocks. He did not depose that place was his home. That apart, there is no deposition to the effect that the appellant went to his home. I therefore hold that there is no evidence to prove the violation of the right.

Right to Property

The relief sought is “the right to the enjoyment of property.” This appears to be a section 40 right. I say “appears to be” because the section does not specifically provide for right to property, like the sections I have examined in relation to the specific fundamental rights. That aspect is not important. It is merely academic and I will not go into it. For our purpose, I should mention paragraph 22 of the affidavit in support in which the 1st respondent as applicant deposed that the 2nd respondent (the policeman) and his team removed a wall clock and a cooking pot (property of the 1st respondent) from the house on the allegation that he did not produce the receipts for them. Also removed, according to paragraph 22, were the particulars of a motor-cycle. The appellant was never mentioned in the paragraph or in any other paragraph of the affidavit on the issue of property.

The learned trial Judge relied heavily on Balogun v. Amubikanhun (1989) 4 SCNJ 248; (1989) 3 NWLR (Pt.107) 18 when she said at page 8:

“On the authority of Balogun v. Amubikanhun….. I hold that the 1st respondent would be deemed to have prosecuted or caused the prosecution of the applicant. In that case, the Supreme Court held that where a party causes a judicial act to be set in motion for the arrest and subsequent prosecution to the prejudice of the plaintiff, even though the party may not technically be said to be the prosecutor; he will be liable to malicious prosecution.”

The facts are quite distant from those of this appeal. In view of the heavy reliance placed on the case, i will reproduce the facts of that case. The appellant is a legal practitioner. He had a land dispute with the respondent. While the case was still pending in court, the appellant lodged a complaint in the police station that the respondent has employed a woman to kill him and steal his dresses and transistor radio. It was alleged that the woman, who was accused of being a witch, gained entry into the appellant’s house and actually removed a transistor radio and some dresses before she was caught. She confessed to the police that she was sent on a mission by the respondent to kill the appellant. The appellant took the woman to the police station. It was already dark. The appellant got the woman locked up at the police station. Thereafter, he took the police to the house of the respondent and got him arrested, though he claimed later that he only acted as a pointer and offered police a lift in his car to effect the arrest of the respondent. At the police station, the respondent was locked up, the appellant making his presence felt at that place and was scaring away those ready to stand surety for the respondent so that he might be released on police bail. He told one of such persons that the respondent was a murderer and that nobody should risk standing surety for him. The respondent thus slept in the police cell that night and was only released on bail the following day. The respondent and the woman were discharged and acquitted by a Chief Magistrate Court.

It is very clear that the appellant played a serious role in the arrest and detention decision. But that is not the situation in this appeal. There is no evidence that the appellant played similar role or any role at all near that in Balogun v. Amubikahun. And so, the case is inapposite.

In the more recent case of Onyedinma v. Nnite (1997) 3 NWLR (Pt.493) 333, this court held that an action for false imprisonment does not lie only against a party who physically commits the tort. An action lies against a party who is directly or actively instrumental to the commission of the tort. Therefore to succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in selling the law in motion against him. See: also Mandilas and Karaheris Ltd. v. Apena (1969) NMLR 199. Dismissing the appeal. Ubaezonu, J.C.A. made the fine distinction at page 345:

“In this case on appeal, the evidence of the plaintiff and his witnesses and believed by the court is that the appellant said to the two policemen that the respondent was the thief that stole his car and that they should arrest him. The policemen acted under the instruction and direction of the appellant. It would have been a different matter if the appellant had lodged his complaint and left it to the police to investigate and come to their own conclusion. In fact, if the policemen had asked him if he suspected any person and in answer to such a question he mentioned the respondent’s name, he would still not be liable as he is merely expressing an opinion rather than leaving the police to embark on a wild goose chase.”

There are four sentences in the above statement of my learned brother. The fine distinction is the third sentence, strengthened by the fourth. There is even no evidence that the appellant in this matter come within the third sentence. I do not see such evidence in the affidavit in support. The only evidence which should have comes within the fourth sentence is paragraph 8 of the affidavit in support, but not quite. Even if appellant come within the third and fourth sentences of my learned brother, Ubaezonu, J.CA., he would not be liable for false imprisonment. That is the decision in Onyedinma v. Nnite, supra. In that case, the appellant made a report to the police and brought two policemen who arrested the respondent. There was no such evidence in this appeal. Paragraph 8 of the affidavit in support did not go that far. I have taken Onyedinma v. Nnite, supra this far in order to show that this court is not departing from its previous decision. The facts are not consistent but we are consistent.

In Adefunmilayo v. Oduntan (1958) WNLR 31, it was held that liability does not attach to a private citizen who merely names a suspect. In Gbajor v. Ogunburegui (1961) All NLR 853, it was held that the act of indicating to the police a person whom one suspects of having committed an offence, is not itself-sufficient to make one liable for false imprisonment, should the police decide on their initiative to arrest that person.

Let me pause here to deal briefly with the following pronouncement of the learned trial Judge at page 89 of the Record:

“Although, it is true that 1st respondent’s Exh. ‘A’, his written statement to the police, shows that he did not name anyone or the appellant therein as suspect. We are still left with the uncontroverted facts linking the 1st respondent with the 2nd respondent. Evidence is still required to disprove that the respondents did not together set the machinery of arresting the applicant and unlawfully seizing his goods in motion. The failure of 2nd respondent to fill that gap is detrimental not only to him but to the 1st respondent. They have not discharged the onus on them.”

With respect, the learned trial Judge is not correct in coming to the conclusion that the facts linking the 1st and 2nd respondents are uncontroverted. There is so much controversy, some of which I have pointed out above. I need not repeat myself. The impression is given by the learned trial Judge that the two respondents must stand or fall together. Even Siamese twins do not stand or fall together. Why the respondents? I will return to this when I deal with the final orders of the learned trial Judge.

I should recall here the reaction of learned Senior Advocate to the above pronouncement. I do not think I like to paraphrase what he said. Let me quote him at page 12 of the appellant’s brief: “Secondly, it would appear that the Court had led itself to the mistaken view that the 1st and 2nd respondents were in the application being cited for conspiracy to commit crimes against the applicant, which was just not true. The case against each respondent was meant to and should only affect each personally, especially when in law there is no valid nexus in terms of agency or warranty of authority between the appellant shown to be a private citizen and the 2nd respondent, a police officer.”

And this reminds me of the deposition in paragraph 32 of the affidavit in support:

“That with the type of power display by the 2nd respondent who is acting as the 1st respondent’s agent, I no longer feel safe for my life, liberty and property.”

It is most elementary law that there cannot be agency relationship between a private citizen and a police officer in the performance of his police duties under section 4 of the Police Act, Cap. 20, Laws of the Federation of Nigeria, 1990 or any other enabling law to the same effect. The transient relationship between a complainant and a police officer in the course of arresting, investigating and prosecuting a case does not, in law, ripen into an agency relationship. Paragraph 32 is therefore not a correct representation of the law of agency, and I so hold.

I have the feeling that the appellant had to pay dearly for the failure or should I say, refusal of the 2nd respondent to swear to a counter-affidavit. I say this because the learned trial Judge did not see the necessity to distinguish the case of the appellant and that of the 2nd respondent. That clearly underscores the pronouncement that the “failure of 2nd respondent to fill that gap is detrimental not only to him but to the 1st respondent. They have not discharged the onus on them.”

But then the learned trial Judge, with respect, contradicted herself when she gave her final order as to who should pay what amount. Let me read the order in full:

“Respondents, as well as their servants, agents or privies are therefore hereby restrained from further infringing the applicant’s fundamental rights by various acts which include threatening, harassment, arrest, detention, seizure of goods etc.

I will award exemplary damages of N15,000.00 and general damages of N10,000.00 against the 1st respondent alone in respect of the first arrest,’ detention and trumped up charge of armed robbery and general damages of N15,000.00 jointly and severally against the 1st and 2nd respondents in respect of the second arrest and seizure of applicant’s goods.”

So much is wrong with the above order. First, an order of a court must be precise, succinct and to the minutest detail. An order of a court must also be complete. Parties should not be exposed to speculations as to the real content of the order. The abbreviation etc means et cetera. It is a Latin phrase meaning “and the rest” and something in addition. A judge should never make an order wearing a cognomen of “etc”. It is too vague, lacking restraint and therefore not useful in an order of a court. I can say that much in respect of what the learned trial Judge referred to as the “first arrest” and the “second arrest”. She ought to have identified the two arrests by their dates as in the affidavit in support. The first arrest was on 13th August, 1988 and the second arrest was on 18th March, 1989. Second, and this is the area of contradiction. The learned trial Judge did not continue with her pronouncement of the unity of the two respondents in her court. She saw the need to separate the two at the stage of apportioning financial liability. Why? That is not consistent.

Third, by the order the appellant has to pay more. In addition to the two of them sharing N15,000.00 the appellant has to pay N25,000.00. Again, why? What is the legal basis? I do not see any. If at all liability has to be apportioned in the light of the affidavit in support, it has to go more against the 2nd respondent, the police officer. In the first arrest, and going by the evidence of the 1st respondent, all that the appellant did was to identify him to the police as the robber. In the second arrest, the appellant was not present. It was the 2nd respondent who conducted the arrest and took away the kettle, wall clock, cooking pot and particulars of a motor-cycle. That is what paragraph 22 of the affidavit deposed to. I have no way of assessing the veracity of the deposition.

By way of recapitulation, I should say that I have dealt with this matter in the alternative. twice. I held that since the application was not filed in compliance with Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure Rules) 1979 in respect of the 14 days rule, the entire proceedings is a nullity. Assuming that I am wrong, I dealt with the issue of the learned trial Judge’s failure to order oral evidence to resolve the conflicting affidavits. I also held that in the circumstances, the entire proceedings is a nullity. I then dealt with the merits of the appeal, again on the assumption that I am wrong. I have also come to the conclusion that even on the merits, the leamed trial Judge was wrong in holding the appellant liable and making monetary awards against him.

It now remains for me to give the last order and it is that the judgment of the learned trial Judge dated 2nd December, 1994 is hereby set aside. The appeal is accordingly allowed and I do so by awarding N2,000.00 costs in favour of the appellant.

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Other Citations: (1997)LCN/0328(CA)