Lawal Magaji Mohammed V. Umar Barau & Ors. (1997)

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ATINUKE OMOBONIKE IGE J.C.A. 

There was a Nation wide Local Govt. Election conducted by NECON on 15th day of March 1997. The UNCP and DPN are two of, the five registered political parties. The petitioner in this case contested the said election on the platform of the UNCP as Chairman while the 1st and 2nd Respondents contested on the platform of the DPN as candidates for Chairmanship and vice chairmanship respectively:

After collating the results of the election, NECON declared 1st and 2nd Respondents as winners in the election.

The petitioner being dissatisfied with the decision of NECON challenged the said decision before the Kaduna election tribunal on a no of grounds including the following:

1. That the 1st respondent was wrongly returned at the said election.
2. That the 1st and 2nd Respondents were at the time of the election not qualified and or disqualified from being elected as Chairman and Vice Chairman of Igabi Local Govt. Area.
3. That the election was void by corrupt practices, irregularities and electoral offences.

The petitioner sued the 1st and 2nd Respondents and 63 others challenging the results. After looking into the merits of the petition the Lower Election Tribunal dismissed the petition and confirmed NECON’S decision that 1st and 2nd Respondents were the winners as chairman and vice chairman of Igabi Local Govt. Area.

The petitioner still dissatisfied appealed to the election Appeal Tribunal and formulated the following 4 issues for determination:-

1. Whether the refusal of the petitioner’s application for production of documents in the custody of Respondents and the probing and searching questions put to PW2 by the Lower Tribunal occasioned a miscarriage of justice.
2. Whether the petitioner discharged the onus of proving their case as required by law.
3. Whether the Lower Tribunal admitted and evaluated all the admissible evidence led at the trial and ascribed appropriate weight to the admissible evidence.
4. Whether the findings and holdings of the Lower Tribunal is supported by evidence or legally admissible evidence.

The appeal Tribunal after reviewing the entire case including arguments advanced by parties Counsel, dismissed the appeal and confirmed the decision of the lower Tribunal.

Still dissatisfied the petitioner under the umbrella of his party the UNCP further petitioned the office of the Attorney General for a review of the judgment of the election Appeal Tribunal. The Attorney General looked into the issues involved and came to the conclusion that the judgment of the Appeal Tribunal was right and recommended same.

Besides the brief of the Attorney General, the counsel for the 1st and 2nd and 65th Respondents filed a brief urging us to dismiss the petition as lacking in merit on the grounds inter alia that the petitioners have not been able to prove that 1st and 2nd Respondents are still in the employment of the Federation or state or Local Government or that they are disqualified on grounds of age or invalid nomination and that the election was voided by corrupt practices. I have examined carefully the various briefs and submissions of parties in this petition and also the evidence offered by the petitioners to challenge NECON’S Return and decisions of both Lower Tribunal and Appeal Tribunal. I am of the view that the petition of the petitioners lacks merit and was rightly dismissed on the onset.

The petitioners failed to substantiate their claims that 1st and 2nd Respondents were under age. They also failed to prove that 1st and 2nd Respondents were still in public office at the time of the election. Exhibits P1 and P2 disproved their allegation.

The law is very clear that he who asserts a claim must prove it. See the Case of Anyanwu v. Bara 1992 5 NWLR (Pt 242) 386. This, the petitioners have failed to do hence the Lower Tribunal was right in dismissing the petition as lacking in merit.

This body has no reason whatsoever to disturb the decision of the Lower Tribunal which was affirmed by the Election Appeal Tribunal. We also confirm their decisions. The sum total is that the petition of the petitioners was rightly dismissed as lacking in merit.

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Other Citations: (1997)LCN/0298(CA)

Cletus I. Ilomuanya V. Lobi Bank of Nigeria Limited (1997)

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MUSDAPHER, J.C.A. In the High Court of Lagos State of Nigeria holden at Ikeja and in Suit No. ID/560/88, the respondent herein took out a specially endorsed writ accompanied with a Statement of claim against the appellant as the defendant in the following terms:-

“The plaintiffs claim against the defendant is for the sum of N95,927.02 being overdraft granted to the defendant by the plaintiff at defendant’s request; and also interest at 17% per annum from 24th of July, 1987 till judgment, and at 6% per annum with effect from the date of judgment until the whole debt is fully liquidated.”

The appellant entered appearance after which the respondents filed summons for judgment in accordance with the procedure set out under Order 10 of the High Court of Lagos State Civil Procedure Rules 1972. The appellant made an affidavit purportedly showing cause why summary judgment should not be entered. The summons for judgment filed on the 7th day of June 1988 was moved and argued. In the Ruling delivered by the trial Judge on the Summons for judgment, the learned trial Judge upheld the motion and held amongst other issues thus:

“The defendant is not saying that he has paid the debt. The amount being claimed is a debit in his account though it may have gotten there through the influence of someone else. He is not putting up any legal defense which even if the defendant’s allegations are true would preclude the plaintiff from succeeding in his claim.

In the event, the application to sign a final judgment from the amount claimed succeeds.

There will be judgment for the plaintiff for the sum of N95,972.02 plus interest at the rate of 17% per annum from 24th July, 1987 till this day and thereafter at the rate of 4% per annum until the judgment debt is finally liquidated”.

Dissatisfied with the judgment, the appellant filed a Notice of Appeal containing the following grounds of appeal:-

(1) That the learned trial judge erred in law in giving judgment for the plaintiff when:-

(i) The application for judgment did not specify the amount of judgment demanded.

(ii) The application was not verified on oath as to:-

(a) cause of action

(b) the amount claimed as required by Order 10 rule 1(a) of the High Court of Lagos State (Civil Procedure) Rules, 1972.

(2) That the learned trial Judge erred in law entering the judgment for the plaintiff under Order 10 rule 1(a) of the High Court of Lagos State (Civil Procedure) Rules 1972 without taking into account the defendant’s affidavit dated 13/5/1988 setting out in full the nature of defence to the action.”

The aforementioned Notice of Appeal was filed on the 26/7/1988. Additional grounds of appeal were also filed on 1/8/1988. The additional grounds read:-

“1. That the learned trial judge erred in law in failing to give the defendant a chance to join the said Godfrey Okoro Manager of the plaintiff’s Bank who was accused by the defendant as having created the loan and received it for his own purpose as provided under Order 13 Rule 22 of the High Court of Lagos (Civil Procedure) Rules 1972 and thereby failed to give the defendant a fair hearing on the allegations raised in his affidavit contrary to Section 33 of the Constitution of the Federal Republic of Nigeria.

2. The learned trial judge erred in law in failing to consider the effect of:-

(1) The irregular payment of 2 cheques in one day amounting to N76,000.00k by the said Manager, Godfrey Okoro in excess of N50,000.00k lending power of a branch manager as contained in the counter-affidavit.

(2) The irregular payment of the sums of N8,000.00k and N2,000.00k separately by the said manager, Mr. Godfrey Okoro, to the accounts of the defendant without his knowledge and authority as contained in the counter-affidavit as tending to establish the defendant’s allegation that the money in question was created and received by the said manager, Godfrey Okoro for his own benefit in fraud of his employers.

(3) The learned trial judge erred in law in failing to call for oral evidence to resolve the allegations and counter allegations contained in the two opposing affidavits before the court.

(4) The learned trial judge erred in law in failing to consider that the affidavit, evidence of Godfrey Okoro, a person accused by the defendant of taking the money in question, is a statement by a person interested and particularly paragraph 10 of the counter-affidavit, and therefore inadmissible under section 90(3), of the Evidence Law”.

In compliance with the provisions of Order 6 of the Court of Appeal Rules, briefs of argument were filed and exchanged and at the hearing of the appeal in this Court both learned counsel proffered oral submissions. Before dealing with the grounds of appeal and the issues raised for the determination of the appeal, it is expedient to set out the background facts.

There is no dispute that there existed a bank and customer relationship between the respondent and the appellant. The appellant maintained Account No.020352 with the respondent. On the 17th day of June, 1987, three cheques for the sums of N36,000.00k, N40,000.00k and N20,000.00k were issued against the account. There is no dispute that the appellant issued the cheques which were duly cashed and money was taken out. On the same date a cheque in the sum of N130,000.00k was paid into the account – as it turned out, that cheque was not honoured. The respondent alleged that the amount of N96,000.00k covered by those cheques was an overdraft granted to the appellant at his request while the cheque of N130,000.00 paid into the account was a guarantee for the overdraft. It is not disputed that cheque of N130,000.00k paid into the appellant’s account was not honoured and also that the overdraft was not paid. When the respondent demanded the payment of the overdraft and interest, the appellant in his letter admitted the claim and prayed for time within which to pay. It was when he failed to pay that the respondent took this action.

In his affidavit in opposition to the application by the respondent to enter final judgment under the procedure under Order 10 of the Lagos State High Court (Civil Procedure Rules 1972, the appellant did not deny the transaction but alleged it was Mr. Okoro, the acting Manager of the respondent, who used his Account to take the money out for his own use. He also alleged that the letter of admission was drafted by Mr. Okoro, he merely signed it. As mentioned above the learned trial Judge held that even if it is true that Mr. Okoro influenced the transaction the respondent is entitled to judgment against the appellant who knowingly allowed his account to be fraudulently used.

Now the learned counsel has formulated three issues for the determination of the appeal. The issues are:-

“1. Is Godfrey Okoro a person who can swear positively to the facts verifying the cause of action and the amount claimed and stating that in his belief there is no defense to the action as required by Order 10 rule 1 (a)?

2. Has the appellant put up a defence which is a triable issue to the plaintiffs claim on the strength of his affidavit?
3. Is the judge competent at that stage to determine the issues raised in the conflicting affidavits of Godfrey Okoro and Cletus Ilomuanya without calling for oral evidence?”

On the first issue the learned counsel for the appellant contended that Mr. Godfrey Okoro was not qualified “to positively swear to the facts verifying the cause of action and the amount claimed and stating in his belief there was no defense to the action” as he was a person interested at the time he swore the affidavit. He was on suspension for granting this loan irregularly. Mr. Okoro was accused by the appellant in his affidavit that –

“(1) He unlawfully used the appellant’s account to withdraw N96,000.00 for his own benefit.

(2) He drafted t1ie letter written by the appellant admitting the loan.

(3) He paid in the sum of N10,000.00k to the appellant’s account in order to reduce the loan.

Accordingly, Mr. Okoro is a person interested in the manner and therefore not qualified to swear to the affidavit. Vide section 90 (3) of the Evidence Act. Learned counsel also referred to the case Anyeabosi V. R.T. Briscoe Nigeria Ltd. (1987) 3 NWLR (Pt. 59) at 84.

For the respondent, it argued firstly that the issue and the relevance of Section 90(3) is a fresh point which did not arise for adjudication in the Court below and no leave has been sought and granted to raise the issue on appeal. Secondly, it is irrelevant to the facts of this case or the procedure under Order 10 of the Lagos State High Court (Civil Procedure) Rules. The case of Anyeabosi cited is not applicable as it was dealing with the admissibility of documents and the document was in any event admitted notwithstanding the fact that it was an employee of the plaintiffs who prepared and tendered it.

I respectfully agree with the views of the learned counsel for the respondent. It is now settled law that an appellant will not be allowed to raise on appeal a question which was not raised or considered by the Court below. But where the question involves substantial points of law substantive or procedural and it is plain that no further evidence would be necessary, the court may allow the question to be raised and the point of law taken in order to prevent an obvious miscarriage of justice. See Akpene v. Barclays Bank of Nigeria (1977) 1 S.C. 47, Usman v. Kareem (1995) 2 NWLR (Pt. 379) 537. Where a new issue is raised on appeal without leave of the Appellate Court such issue may be struck out as incompetent. See Egbunike v. A.C.B. Ltd (1995) 2 NWLR (Pt. 375) 34. It is now firmly established that no point substantial or otherwise that has not been taken and adjudicated upon by the trial Court will be allowed to be raised for the first time on appeal except special circumstances are shown.

I am also in agreement with the learned counsel for the respondent, that under the provisions of Order 10 Rule 1(a) of the Lagos State Civil Procedure Rules Section 90(3) of the Evidence Act does not apply. There is nothing in the rules of the Lagos State High Court suggesting the quality of a deponent to the verifying affidavit. What is required is an affidavit which may be made by any person who can swear positively to the facts and stating his belief that there is no defence to the action. There is no other requirement. The deponent may be a party or some other person. See FSB Int. Bank Ltd v. Imano (Nig) Ltd. (1995) 2 NWLR (Pt. 377) 295.

I accordingly reject the appellant’s contention in the first issue.

The second issue can conveniently be dealt with the third issue. The points raised question the decision of the learned trial Judge that the appellant did not put up any triable argument sufficient enough to allow him defend the action. It is further contended that there is conflict in the affidavit of Mr. Okoro verifying the claim and that of the appellant resisting the claim. It is submitted that where conflict arises in the two competing affidavits, the appellant ought to have been allowed to defend the action and that the conflicts be resolved by oral evidence. For the appellant it is argued that he raised these triable issues in his affidavit-

(a) He never applied for the overdraft and Mr. Okoro said he applied for the loan orally.

(b) That the sum of N96,000.00k covered by the three cheques were all issued in same day so as to enable Mr. Okoro as the Acting Manager, the authority to allow the cheques as his limit was only N50,000.00k. Therefore it was a ruse to cheat the bank.

(c) That due to the side tracking the banks regulations on this loan, the respondent bank suspended Mr. Okoro thus giving clear indication that the respondents were not happy with the conduct of Mr. Okoro, and

(d) That Mr. Okoro paid into the appellant’s N8,000.00k and N2,500.00 in October, 1987, this amounted to an admission on the part of Mr. Okoro. It is submitted that these pieces of evidence, would entitle the appellant to defend the action within Order 10 Rule 3. Learned counsel relied upon the case of Nishizawa Ltd v. Jethwani (1984) 12 SC 234.

For the respondent it is contended, that an application for a loan or overdraft can be made orally or where a customer raises a cheque in excess of the actual balance in his Account, once the bank honours the cheque, the customer becomes a borrower. All the other points do not really derogate from this fact, that the appellant had issued cheques against his Account which were honoured by the bank. Whatever private arrangement the appellant had with Mr. Okoro does not affect the liability of the appellant to the bank. He knowingly agreed to the transaction. He allowed his account to be used by signing cheques at his peril.

Now the procedure under order 10 of the Civil Procedure Rules of Lagos State High Court is designed to enable a plaintiff to obtain summary judgment without trial where the case is patently clear unassailable and the defence put forward by the defendant does in law avail the defendant. See FSB International Case (supra). See also Iron Products Ltd. v. S.A.C. Ltd. (1992) 4 NWLR (Pt.238) 734.

The purpose of Summary Judgment under Order 10 procedure is for the expeditious disposal of claims which are virtually incontestable in the sense that the defendant clearly has no valid defence in such a situation the plaintiff is entitled to an early judgment without having to go to a full trial. The defendant must show if he wants to be allowed to defend the action, a valid defence and not a sham defence. Whatever be the facts the defendant puts forward must amount to a legal defence. See Nishizawa case (supra), Macaulay v. Nal Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283. The affidavit opposing the application for judgment must show a legal defence, the fact that some other party may be liable is not enough. In the instant case, there is no contest that it was the appellant who issued the cheques against his account, it is not disputable that he knew of the consequences of issuing the cheques and writing the letter admitting the claim of the respondent. As between the appellant and the respondent, the facts are clearly unambiguous that the appellant took the loan. If he has any claim against Mr. Okoro as to what happened to the money after be cashed the cheques, it is a matter clearly between the appellant and Mr. Okoro. See Peter Tiwell (MG) Ltd v. Inland Bank (Nig) Ltd. (1997) 3 NWLR (Pt 494) 408. I am of the firm view that as between the appellant and the respondent, the appellant’s affidavit did not disclose any triable issue. It is now settled law that if a customer to a bank draws a cheque for a sum in excess of the amount standing to the credit of his account, it is really a request for a loan and if the cheque is honoured the legal effect is that the customer has borrowed the money. See A.C.B. v. Egbunike (1988) 4 NWLR (Pt. 88) 350, See also Desalu v. Akapo (1967) 1 All NLR 201. The appellant did not claim to have repaid the money and did not show any reason why the respondent should be precluded from getting the summary judgment

The final point is the question of the alleged conflict in the affidavits. From the undisputed facts, I am of the view that there are no material conflicts in the two affidavits. The fundamental issue which is not disputed is the overdraft which had remained unpaid up to the time of filing the action. The position of the law is that generally where affidavit evidence is in conflict, a trial Judge should call for oral evidence to reconcile the conflict, but where there is documentary evidence before him which will assist him to resolve the conflict; there is no need to call the oral evidence. In the instant case, there is a letter signed by the appellant admitting the respondent’s claim. The fact that the letter was drafted by Mr. Okoro is of no moment. See A.G. of Enugu State v. Avop Plc. (1995) 6 NWLR (Pt. 399) 90. Bob-Manuelv. Briggs (1995) 7 NWLR (Pt. 409) 537. The facts of this case do not call for any resolution of any conflict in the affidavit evidence. All the points raised are not substantial and they do not affect the facts deposed to by the respondent. They deal with matter entirely between the appellant and Mr. Okoro. Thus all issues raised in this appeal are decidedly resolved against the appellant. This appeal is bound to fail and I hereby dismiss it. I affirm the judgment of the Court below. The respondent is entitled to the costs of this appeal which I assess at N3,000.00k.

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Other Citations: (1997)LCN/0297(CA)

Alhaji Oloyede Ishola V. Memuda Ajiboye (1997)

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MUHAMMAD, J.C.A.

This appeal had a chequered history. It had its vicissitudes. It was first instituted in Area Court Grade I, Ajasa – Ipo Kwara State. There was an appeal from that court to Upper Area Court No. 1 Ilorin, and then to High Court of Kwara State holden at Ilorin. The High Court ordered a retrial before the Upper Area Court No.2, Ilorin. Following an application by one of the parties, the High Court varied the order of retrial and ordered that the retrial be heard by the Upper Area Court, Omu-Aran. After a decision by the Upper Area Court Omu-Aran, there was an appeal to the High Court, Ilorin and further the Court of Appeal Kaduna Division and lastly to the Supreme Court.

Brief facts of this appeal reveal that at the Upper Area Court Omu-Aran, on the 17th of December, 1985, the plaintiff as respondent herein, claimed ownership of a parcel of land of about eight square kilometres situate at Oke Maro, Amoyo for and on behalf of himself and Abidoye family of Oke Maro. The appellant was the defendant. Each side relied on history, traditional evidence and acts of possession. The parties called witnesses. The Upper Area Court conducted a visit to locus-inquo of the land in dispute. Finally, after reviewing the evidence available before it, it dismissed the respondent’s claim.

Aggrieved by that decision, the respondent appealed to the Omu-Aran High Court (sitting in its appellate session) on only the omnibus ground. The High Court (now the lower court) after reviewing the proceedings of the Omu-Aran Upper Area Court (the trial court) reversed the decision of the trial court and awarded the disputed land to the respondent. Dissatisfied, the appellant sought and had leave of this court granted on 19th day of January, 1995, to appeal against the decision of the lower court. The appellant set out seven grounds of appeal in his Notice of Appeal. He sought by way of relief that this court should dismiss the claim of the respondent to the disputed land and grant him ownership of the said land.

In compliance with the rules of this court the appellant filed and served his brief of argument in time. The respondent by leave of court, granted on 30/1/96, filed and served his brief of argument out of time. The brief of the respondent contained a Notice of respondent’s intention to rely upon preliminary objection. He argued the grounds upon which he based the preliminary objection, in the brief. By way of a reply brief, the appellant responded to the preliminary objection raised.

I shall deal with the preliminary objection firstly.

The main grouse of the preliminary objection is that the appellant’s appeal before this court is incompetent on the ground that:-

(i) This court lacks jurisdiction to determine same in the light of the judgment of the Supreme Court in suit No. SC/281/1990 delivered on 1st day of July, 1994 and reported in (1994) 7-8 SCNJ (Pt. 1) 1-118 between the parties hereto and in respect of the same subject matter.

(ii) Ground 1 of the grounds of appeal is incompetent, in that it violates the decision in Idika v. Erisi (1988) 5 SCNJ 208; (1988) 2 NWLR (Pt. 78) 563.

It was learned counsel for the respondent’s submission that this court lacks jurisdiction to determine the present appeal because the same court, on the 28th day of June, 1989, delivered a Judgment on appeal No. CA/K/156/87 which was between same parties and subject matter and it ordered the non suit of the parties. This decision was appealed against by both parties to the Supreme Court. It was learned counsel’s contention that this court determined the said appeal on its merits and where the court has so decided a matter, it cannot sit on appeal on its own judgment except for effecting clerical correction under the slip rule. He further argued that the Supreme Court did not order for the retrial of the case. As same issues were earlier on argued by same party, allowing the appellant to re-argue same will tantamount to having a second bite at the cherry. Thus, this appeal, he submitted further is caught up by the doctrine of res-judicata. He supported his submission with among others, the cases of Yusuf v. Co-operative Bank Ltd (1994) 7 NWLR (Pt.359) 676; (1994) 9 SCNJ 67 at 77; Oyeyipo v. Oyinloye (1987) 2 SCNJ 52 at 61; (1987) 1 NWLR (Pt.50) 356. On the 2nd ground, learned counsel for the respondent submitted that grounds of appeal are formulated based essentially on the findings of a lower court and not, from the decision of a court. He cited the case of Idika v. Erisi (1988) 5 SCNJ 208; (1988) 2 NWLR (Pt 78) 563.

Learned counsel for the appellant argued that the Court of Appeal has jurisdiction to hear the appeal as the Supreme Court’s decision in suit No. 281/1990 did not determine the rights of the parties in dispute nor did it consider on merit issues submitted by the parties to the court in the suit. He argued that the appellant had a right to present his case for adjudication by the court. Learned counsel relied on the cases of: Omonuwa v. Oshodin & another (1985) 2 NWLR (Pt. 10) 924; (1985) 2SC 1; Akinsanya v. UBA Ltd. (1986) 4 NWLR (Pt.35) 273. On the incompetence of the ground of appeal, learned counsel submitted and relied on the case of Emmanuel Nwobosi v. African Continental Bank Ltd. (1995) 6 NWLR (Pt.404) 658; (1995) 7 SCNJ 92, as an additional authority.

The well settled principle of the law for a respondent who raised preliminary objection principally premised on the operation of the doctrine of res-judicata to succeed, such a respondent must satisfy the court that:-

(i) The parties to the proceedings both previous and present must be the same.

(ii) The subject matter litigated upon and issues arising therefrom must he the same in the previous and present proceedings.

(iii) There must he a valid subsisting judgment of a court of competent jurisdiction.

See the case of: Ogbesusi Aro v. Fabolude (1983) 2 SC 75 at page 84; Cardoso v. Bankole Daniel & Ors. (1986) 2 NWLR (Pt.20) 1; (1986) 2SC. 91; Toriola & Ors. V. Mrs. Williams (1982) 7 SC 27 at page 52; Samuel Idowu Banire & Ors. v. Folake Balogun (1986) 4 NWLR (Pt 38) 746; (1986) C.A. 6 (Pt. 11) 240 at page 248; John Ameh & Anor v. John Ochede (1986) C.A. 6 (Pt. 1) 66 at page 81.

The genesis of the preliminary objection raised by the respondent dates back to the 28th day of June, 1989 when this Division of the Court of Appeal, Per Usman Mohammed. J.D. Ogundere (JJCA as they both were) and Okay Achike, J.C.A. delivered a unanimous judgment on appeal No. CA/K/156/87 between the present parties as appellant and respondent. The subject matter and issues were all the same. The panel had to determine a preliminary objection raised by the respondent that the appeal was incompetent as leave to appeal required under section 221(1) of the Constitution of the Federation 1979 was granted by a single Judge of the Kwara State High Court sitting on appeal. The learned Justices of the Court of Appeal overruled the respondent and dismissed his preliminary objection. The panel of the Justice went ahead and considered the appeal on its merit. The appeal was allowed in part in that the judgment for the plaintiff by the High Court was set aside and an order of non-suit was entered instead. Both parties were dissatisfied with the decisions of our Kaduna Division. They appealed to the Supreme Court. The appellant appealed against the order of non-suit. The respondent appealed against the dismissal of his preliminary objection to the competence of the appeal and that the order of non-suit should be affirmed. In a majority decision judgment of 6:1, in the Supreme Court Case Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506; (1994) 18 SCNJ (Pt.1) 1-118 the majority judgment led by Ogundare JSC and M. Bello CJN: I.K. Kutigi, E.O. Ogwuegbu; J.O. Adio and A.I. Iguh JJSC declared the appeal before the Court of Appeal incompetent, null and void. M.L. Uwais (JSC as he then was) now CJN, dissented.

I think what is relevant to this appeal from the above majority pronouncement of the Supreme Court and as it relates to the instant preliminary objection is the decision that the appeal filed before the Court of Appeal i.e. appeal No. CA/K/156/87 was incompetent and the decision of the Court of Appeal thereon null and void. Below is what Ogundare, J.S.C. Stated in the lead judgment:-

“I have examined the five grounds of appeal in defendant’s Notice of Appeal to the Court of Appeal, the grounds raised issues of mixed law and fact. Under section 221 (1) of the Constitution, leave to appeal was required. The leave to appeal granted by the High Court of Kwara State was granted by a single Judge sitting alone. He had no jurisdiction to grant such leave under section 63(1) of the High Court Law. The order granting the leave was invalid and void. And as no valid leave of either the High Court or the Court of Appeal was obtained before the defendant appealed against the decision of the Ilorin High Court given in Suit No. KWS/OM/6A/1986 on 9th July, 1987, the appeal was incompetent and the decision of the Court of Appeal therein is null and void.” (Italics supplied by me).

The submission of learned counsel for the respondent is that since the Court of Appeal decided the appeal before it on merit, it was not open for the court to sit on appeal on its decision. This is a correct statement of claim. But in the light of the above decision of the Supreme Court, can it be said that the Court of Appeal as at the time it decided the appeal, had jurisdiction? My answer is a categoric no. This is simply because the necessary leave required by law to me the said appeal was granted by the lower court, without jurisdiction. Hence, there was no appeal filed at all and the appeal had no substratum. The law is that something cannot be built on nothing. This was the ratio decidendi in the case of Macfoy v. UAC. Ltd (1962) A.C.152.

It is my view that when an act or a decision is declared “incompetent” the declaring authority is only stating in other words, that such an act or decision lacks the legal qualification or fitness to discharge the required duty. And where an act or a decision is declared “null and void”, it is meant to say that that act or decision binds no one and is incapable of giving rise to any rights or obligation under any circumstance. See Ogbu v. State 53 Misc. 2d 740, Oputa JSC (as he then was) commented, inter alia:

“When as in this case a trial is declared a nullity, it does not mean that the factum of trial did not exist. There was a de -facto ex trial, call it a purported trial if you please, witnesses were called on both sides, counsel for either side addressed the court and finally the trial court evaluated the evidence made its findings and returned its verdict. But because there was a failure to observe the legal and constitutional rules relating to arraignment and the taking of plea of the appellant this court declared that de Jure that in the contemplation of law, the trial amounted to a no trial.”

In the instant appeal, the preliminary objection premised on res judicata cannot succeed because the Supreme Court declared the earlier judgment of this Court in Appeal no. CA/K/156/86 a nullity. I cannot therefore do otherwise than to hold that there was no valid judgment of this court subsisting between the parties on the same subject matter.

Accordingly I find no merit in Ground No. 1 of the preliminary objection raised by the respondent and it is hereby dismissed.

On ground No. 2 of the preliminary objection which challenges the competence of ground 1 of the Grounds of Appeal filed, I consider it relevant before coming to what I will regard to be a direct answer to the ground raised to State that a ground of appeal is the sum total of the reason(s) why the decision being appealed against is considered wrong by the aggrieved party. The purpose the ground alleged is to accentuate and isolate for attack the basis of the reason of the decision challenged. It therefore follows that grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio decidendi of the decision reached by the trial court. See: Metal Construction (WA.) Ltd v. Migliore: In Re-Ogundare (1990) 1 NWLR (Pt. 126) 299; Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546. I had the opportunity of studying the case of Idika v. Erisi (1988) 2 NWLR (pt. 78) 563; (1988) 5 SCNJ 208 as cited by learned counsel for the respondent. This case, as well as many others brings out clearly the format, so to say, of setting out grounds of appeal. Ground one of the grounds of appeal complained of error in law and particulars thereof were supplied. I cannot fault that ground, neither have I found anything to support learned counsel for the respondent’s contention on the incompetence of the ground in the case cited by him: Idika v. Erisi (supra). This second ground of the objection has no merit and is accordingly overruled. Respondent’s preliminary objection has no merit and is hereby dismissed.

I shall now proceed to determine the appeal on its own merit. I must however make it clear this time around that leave to file this appeal was sought by the appellant through Motion on Notice No. CA/K/140/M/94 dated the 19th day of January, 1995 and same was granted by this court. By that virtue, the appeal is now properly before this court. The issues formulated by the appellant in his brief are as follows:

“1. Whether the High Court at its appellate session could embark on a fresh appraisal of the same evidence which the trial court had properly evaluated.

2. Whether the High Court could reverse the decision of the trial court based on findings of fact, including inspection of the locus in quo which decision was not perverse.
3. Whether having regard to the cogent and credible evidence of the defendant, the High Court was right in giving credibility to the testimonies of the plaintiff and its witnesses:
4. Whether an appeal solely on omnibus ground could succeed when there are ample evidence to support the findings of fact, and decision of the trial Upper Area Court.
5. Whether the High Court in its appellate jurisdiction was not in error when it based its decision to reverse the verdict of the trial court on matters that were not admissible in law?

The respondent formulated only one issue, i.e.:

“Whether there is justifying reason(s) for the High Court, Omu-Aran to have disturbed the finding of fact of the Upper Area Court Omu-Aran and reversed the decision of the said trial court”.

In arguing the appeal in his brief, learned counsel for the appellant narrowed down the argument and lumped issues 1-4 and argued them simultaneously. He argued issue No.5 separately.

It is the submission of learned counsel for the appellant that all the issues and findings identified and made by the trial court were supported by evidence. The appellate High Court panel that heard the appeal was in error to have embarked on fresh appraisal of same evidence which the trial court had properly evaluated. He relied on Obodo v. Ogbo (1987) 2 NWLR (Pt.54) 1; (1987) 3 SCNJ 82. Learned counsel argued further that the learned High Court Judges on appeal attacked only the case of the defendant/appellant ascribing weaknesses to the defendant/respondent’s case which was contrary to the known law that a claimant must succeed on the strength of his own case and not on the weakness of the defence. He cited Kodilinye v. Odu 2 WACA 336 at 337. On the probative value of evidence called by the parties, learned counsel for the appellant submitted that the High Court while silting in its appellate jurisdiction was not competent to ascribe probative value to the evidence of witnesses as sufficiency or otherwise of evidence was a question for the trial court that saw, heard and determined the case.

He relied on Odofin v. Ayoola (1984) 11 SC 72 at 87 and 115. The appeal court, he argued, should not usurp the function of the trial court. He cited Woluchem v. Gudi (1981) 5 SC 291 at 326-330. It was submitted further that the lower court did not establish wrongful admission or rejection of evidence nor wrongful inferences or conclusion from the evidence admitted by the trial Court Learned counsel referred to Ogboda v. Adulugba (1971) 1 All NLR 68 at P. 71. Further, since the traditional history, upon which the plaintiff based his claim was rejected by the lower court while the trial court found that the plaintiff was not in possession, it was bound as it did to dismiss the claim. Odofin v. Ayoola (supra).

In respect of acts of ownership, it was submitted that there were numerous acts which proved that the appellant was in exclusive ownership of the land in dispute and that this fact was known to the respondent and members of his family for many years and nobody challenged the appellant on that. Learned counsel finally on this issue submitted that the established law is that possession cannot defeat title. He cited among others, Isiba and Ors. v. Hanson and Anor. (1968) NMLR 76; Kuma v. Kuma 5 WACA 4 at 9.

I shall adopt the same manner the issues were treated by the learned counsel for the appellant, that is to say, I shall treat issues No. 1-4 simultaneously. The law has fairly long been settled that where a trial court has based its findings on credible evidence, an appeal court cannot substitute the trial court’s finding with its own findings except where the decision of the Trial court is perverse. See Woluchem & Ors. v. Gudi & Ors. (1981) 5 SC 291 at 294-295. Lawal v. Dawodu (1972) 1 All NLR (Pt.2) 270 at 276.

Now looking at the facts as presented in the record of the appeal, it is evident that the trial Upper Area Court considered elaborately all the issues set out and canvassed before it along with the evidence made available. Firstly, the Trial court found that the plaintiff’s family in its evidence installed seven out of the eleven Bales. And on accepting the evidence of D.W. 2 Head of the Kingmakers that the land and leadership belonged to the defendant’s family and that Ijoho Oye, the defendant’s founder and his descendants ruled Amoyo in succession since the village was found. Hence, the Trial court found defendant’s evidence superior to that of the plaintiff. Secondly, on the issues of title, long possession, user and control of the land, the Trial Upper Area Court found that D.W.1, D.W.2, P.W.2, P.W.5, had acknowledged plaintiffs grant of part of the land to them and that P.W.6 had plucked locust beans on the land for several years. The Trial court made far reaching findings on issues of title, user and control. At the end, the Trial court found the evidence of the defendant more reliable. The requirement of the law on land matters is that it is the plaintiff who shall prove its case by preponderance of evidence and not to rely on the weaknesses of the defendant See Kodilinye v. Odu (1935) 2 WACA 336 at 337-8; Dung v. Chollom (1992) 1 NWLR (Pt.220) 738 at 743; Sections 135 and 136 Evidence Act, LFN 1990.

This burden has not been discharged to the satisfaction of the trial court and as imposed by the Law. There was a total failure from the plaintiff to prove his case.

In considering issue No.5 formulated by the appellant it is clear that the trial court did not attach any probative value to the evidence adduced by the plaintiff. That was why it dismissed the case. Issue No.5 is based on “matters that were not admissible in law”. In his argument, learned counsel for the appellant cited instances such as where the lower court permitted counsel for the plaintiff to argue and address it that the respondent as the Bale of Amoyo was only acting in official capacity when dealing with land and not as the sole or exclusive owner when this point was not in issue nor on the grounds of appeal. I think there is need to draw the attention of learned counsel for the appellant that argument or address of counsel to a party, however brilliant, cannot form or be valued as evidence in favour of the party. See: Chukujekwu v. Olalere (1992) 2NWLR (Pt.221) 86 at 93; Bello v. N.B.N. (1992) 6 NWLR (Pt.246) 206 at 214.

I do not think the lower court gave so much weight in its consideration of the appeal on such issues the appellant considered “not admissible.” In my view the fundamental question in the appeal has been resolved and that is the probative value of the evidence adduced by the parties.

Based on that therefore, I do not consider it worth to be labour the issue further. The lower court as an appeal court, except on special situations, had no power to re-evaluate the evidence already evaluated by the trial court. Accordingly this appeal succeeds and it is hereby allowed. The decision of the lower court is hereby set aside whereas that of the trial Upper Area Court which dismissed plaintiff’s suit is hereby restored and affirmed. N1,500.00 costs in favour of the appellants.

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Other Citations: (1997)LCN/0296(CA)

Albert Igbine V. The State (1997)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE, J.C.A. 

In the Yola High Court Adamawa State of Nigeria, the accused person, who is now the appellant was arraigned before Thomas, J. charged with raping one Patience Essien a seven year old girl. At the end of the prosecution’s case, herein called the respondent, the appellant was convicted on 9th January, 1996 for rape of a teenage girl under section 282(1)(e) of the Penal Code Law Cap 89 Laws of Northern Nigeria as applicable in Adamawa State. He was consequently sentenced to five years imprisonment without option of fine. In addition he was fined N5,000.00 or two years imprisonment in default all under Section 283 of the same law. Thomas J, has this to say:-

“In the judicial analysis, I hold the view that the defence of the accused person is so hallow (sic) as the prosecution’s evidence is so overwhelming against the accused person and I am satisfied that the charge of rape has been established beyond reasonable doubt. I find you guilty of rape of teenage girl contrary to Section 282(1)(e) of the Penal Code which is punishable under Section 283 of the Penal Code.”

Being dissatisfied with the judgment handed down by the High Court hereinafter referred to as trial court the appellant went on appeal before us and supported it with four grounds of appeal as follows:

1. The conviction of the appellant is unreasonable and unwarranted and cannot be supported having regard to the evidence.
2. The learned trial Judge erred in law when he found in his judgment at page 39 lines 24-27 and consequently reached a wrong conclusion.

“I am satisfied that the evidence of PW5 and her contemporaneous recording of her observations in exhibit 1 is sufficient corroboration of rape as described by the prosecutrix in her evidence before me.” Particulars supplied.

3. The learned trial Judge erred in law when he convicted the appellant despite the material contradictions in the evidence of the prosecution witnesses and when he proceeded to use his personal knowledge to resolve the contradiction.

Particulars of Error supplied.

4. The appellant had no fair hearing and there was miscarriage of justice going by certain pronouncements and actions of the trial Judge and in view of the lengthy period between the times of final addresses by counsel and the time the judgment was finally delivered.

Pursuant to the rules of this court, the parties, through their counsel, filed and exchanged their Briefs of argument. The appellant formulated four issues for determination of this court as follows:-

(i) Did the prosecution adduce sufficient legal evidence to warrant the conviction of the appellant for rape?

(ii) Did the medical evidence adduced by the prosecution meet the standard of corroborative evidence required to convict the appellant of rape in all the circumstances of the case?

(iii) Was there material contradiction in the evidence of the prosecution and if there was, was the learned trial Judge right in using his own personal knowledge to resolve the contradiction?

(iv) Did the appellant have a fair hearing and a fair trial having regard to the length of time between final addresses and the date of judgment and also by some of the trial Judge’s pronouncements and actions against the appellant in the course of trial?

The respondent, as prosecutor, for their own part adopts the issues for determination as set out by the appellant with the exception of issue (ii) there of. In its place the respondent formulated its own to be:-

(ii) Whether the medical evidence has satisfied the statutory provisions for corroboration, and if not are there other material evidence providing corroboration to warrant conviction of the appellant.

I have thoroughly examined these issues formulated by learned counsel in their respective briefs of argument. I will consider the issues as formulated by the appellant along with issue (ii) added by the respondent supra. I must also state that at the oral hearing of the appeal, learned counsel for the appellant Oloronmuhunle Esq. merely adopted his briefs filed on 15/2/96 and appellant’s reply brief filed on 18/4/96. He relied on both briefs and urged this court to allow the appeal set aside the decision of the trial court and quash same. He then urged this court to discharge and acquit the appellant. It is manifest that the respondent filed his respondent’s brief on 22/3/96. The respondent’s learned counsel Christopher Cromwell (Senior State Counsel Attorney-General’ s Chambers, Ministry of Justice, Yola, Adamawa State) who settled the respondent’s brief of argument, was absent in court although duly served with hearing notice in respect of the appeal. Accordingly this court proceeded with the hearing of the appeal Ex parte pursuant to the relevant Rules and Orders of this court on the briefs filed by both parties.

The first issue raised by the appellant is whether the prosecution adduced sufficient legal evidence to warrant the conviction of the appellant for rape? It was submitted by learned counsel for the appellant that the evidence of the prosecution falls far short of the standard required to sustain the appellant’s conviction.

The facts of this appeal, which are not in serious conflict, could be tersely set out thus: The appellant was convicted of nasty indecent assault called rape under the Penal Code. He was found guilty of raping a seven year old girl. The prosecutrix as PW3 gave unsworn evidence of the incident. Her father also testified as PW 1 while the mother of the victim gave evidence in court as PW4. The senior brother of the victim, Ubasing Udo Essien, also testified as PW2. Though the evidence of both victim and PW2 directly implicated the appellant they are both children of tender age. The evidence of a medical doctor in a private hospital and that of a doctor in the government hospital were all available to the trial court. The defence of the appellant was that of alibi and that there was no proper corroborative evidence to support the unsworn testimony of the two children. The appellant gave evidence in his own defence and called two other witnesses, including a laboratory technologist with the Government Specialist Hospital (DW1).

Learned counsel then contended that even if the evidence of PWs 2, 3, and 5 put together are considered that without more does not prove the alleged offence of rape beyond reasonable doubt. There must be an independent evidence to sustain the evidence of the prosecutrix who is a child. The un-sworn evidence of another child cannot corroborate that of another child. R. v. Omisade (1964) NMLR 67/68 and Odofin Bello v. State (1967) NMLR p1.

He emphasized the fact that the evidence of PWs 2 and 3 needed corroboration under Section 183(3) of the Evidence Act. That corroborative evidence must go further and implicate the appellant, either directly or circumstantially.

Learned counsel then referred to the evidence of PW5 the doctor from Specialist Hospital Yola. And described same as either non-existent or useless. The said evidence was discredited by the worthless laboratory report. He then submitted that such evidence cannot qualify as corroborative evidence required under Section 183(3) of the Evidence Law since there is no where such evidence implicated the appellant. He relies on the Supreme Court’s decision in:

Sambo v. State (1993) 7 (Pt.1) SCNJ 128 at p 130 – 139 per Omo JSC.

I think it is not out of place if one discusses the content of rape under Penal Code Law, Cap. 89 as applicable in Adamawa State. Rape is defined by section 282(1) of the Penal Code thus:-

“Aman is said to commit rape who, save in the case referred to in Subsection 2, has sexual intercourse with a woman in any of the following circumstances-

(a) against her will;

(b) without her consent;

(c) with her consent, when the man knows that he is not her husband and that her consent, when she is under fourteen years of age or of unsound mind.”

The most crucial issue in this appeal is the question of corroboration of the evidence of the victim of the rape. This type of corroboration is certainly, not the ordinary corroboration, it goes further than that. It demands such corroboration to clearly implicate the accused here appellant. See S. 183(3) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990.

“A person shall not be liable to be convicted of the offence unless the testimony admitted by virtue of this section and given on behalf of the prosecution is corroborated by some other material evidence in support thereof implicating the accused.”

It is interesting to note that ordinarily in a plain language corroboration is confirmation, ratification, verification or validation of an existing evidence coming from another independent witness or witnesses. S. 179 of the Evidence Act Cap 112 provides:-

“(1) Except as provided in this Section, no particular number of witnesses shall in any case be required for the proof of any fact.

(2)(a) No person charged with treason or with any of the following mentioned in Sections 40, 41 and 42 of the Criminal Code can be convicted, except on his own plea of guilty, or on the evidence in open court of two witnesses at the least to one overt act of the kind of treason’ or felony alleged, or the evidence of one witness, to one overt act and one other witness to another overt act of he same kind of treason or felony.

(b) This Subsection does not apply to cases in which the overt act of treason alleged is the killing of the president, or in a direct attempt to endanger the life or injure the person of the president.

(3) A person shall not be convicted of committing perjury, or of counselling or procuring the commission of perjury, upon the uncorroborated testimony of one witness, contradicting the oath on which perjury is assigned, unless circumstances are proved which corroborate such witness.

(4) A person charged under the Road Traffic Law of a State with driving at a speed greater than the allowed maximum shall not be convicted solely on the evidence of one witness that in his opinion he was driving at such speed.

(5) A person shall not be convicted of the offences mentioned in paragraph (b) of Subsection (1 of Section 51 or in Section 218, 221, 223 or 224 of the Criminal Code upon the uncorroborated testimony of one witness”.

Specifically corroboration is required in the following circumstances:-

(a) In actions of breach of promise of marriage under S. 177 of the Evidence Act which says:-

“No plaintiff in any action for breach of promise of marriage can recover a verdict, unless his or her testimony is corroborated by some other material evidence in support of such promise; and the fact that the defendant did not answer letters affirming that he had promised to marry the plaintiff is not such corroboration.

(b) Accomplice before or after the fact and particepis criminis. Section 179 of Evidence Act.

(c) Treason and treasonable offences and charge of perjury Section 179(1)(2)(a) and (b), (3), (4) and (5) Evidence Act, and

(d) Exceeding speed limit, sedition and sexual offences”.

A piece of evidence therefore which verifies and validates or reinforces another piece of evidence of the same facts is a corroboration of the other existing one. Where a piece or pieces of evidence require corroboration, the corroborative evidence should consist of any independent testimony which must confirm in some material particulars the evidence in need of corroboration; and in criminal cases implicates the accused. R. v. Baskerville (1916) 2 K.B. 658; and Jatau v. Danladi (1995) 8 NWLR (Pt.415) 592/614 – 615 per Orah JCA.

In the appeal at hand the victim a 7-year old girl gave unsworn testimony in which she vividly implicated the appellant. But no reasonable tribunal can convict solely on her evidence. That evidence needs corroboration to convict. The senior brother of the prosecutrix, a child, testified as PW2. He too gave unsworn testimony. His evidence clearly cannot supply the required corroboration. It is the law that evidence of accomplice and that of a child requires corroboration. R v. Omisade (1964) NMLR 67/88; and Odofin Bello v. State (1967) NMLR 1.

In the English case of R. v. Baskerville supra it was stated that corroborated evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed, but that it was committed by the accused. It is trite law that any evidence that will serve as corroboration must not be flawed, doubtful or discredited per Onu JSC in Sambo v. State (1993) 7 (Pt.1) SCNJ 128/130 and 139.(1993) 6 NWLR (Pt.300) 399.

It is clear therefore that the evidence of the victim (PW3) is in dire need of corroboration and the unsworn testimony of her senior brother (PW2) cannot corroborate her testimony. It was stated in Halsbury’s Law of England 4th Edition p.286 at paras 474-480 that there is an absolute prohibition to a conviction by virtue of the unsworn evidence of a person of tender age unless the evidence be corroborated. See also R. v. Jones (1939) 27 Criminal Appeal Reports p.33 at 34.

It is also the law that in criminal cases corroboration must come from the prosecution and never from the defence. Therefore even if the appellant lied in his defence of alibi which was never proved that without more cannot supply the required corroboration. See the case of Okafor v. Police (1964) 1 All NLR 302. That being the case the prosecution in this appeal must supply the required corroboration before conviction can stand. In the case of:

Olaleye v. The State (1970) 1 All NLR 300; (1969-1970) Vol. 6 NSCC p.250 it was held that both under S.182(3) and s.178(5) of the Evidence Law, the unsworn evidence of the complaintant must be corroborated.

Assuming without conceding that in this appeal the medical report amounts to corroboration of the act of the rape as narrated by the victim the same report does not in any way corroborate her story that it was the appellant who had raped her. It was not a situation where evidence shows that both the victim and rapist have general infection. Olaleye v. The State supra once there was no independent corroborative evidence coming from the prosecution medical report alone cannot serve as the required corroboration under S.182(3) of the Evidence Act. That medical report must go further and state that it was infact the appellant that raped the victim. R. v. Knight (1966) 1 All E.R p.647; Francis Okpanefe v. State (1969) 1 All NLR 420; (1969) Vol. 6 NSCC p.382.

Having considered the evidence before the trial court coupled with the submission of both counsel in their respective briefs I realised that the evidence of the prosecutrix (PW3) was damning against the appellant. Going by her evidence it was the appellant who had that nasty indecent assault on her. The evidence of her senior brother (PW2) a child under 14 years of age cannot possibly corroborate her own testimony. Both made unsworn testimony. Unsworn evidence of a child cannot corroborate another unsworn testimony of another child, The fact that the appellant unsuccessfully put up a defence of alibi cannot in law serve as a corroborative evidence even though it may strengthen the prosecution evidence. The medical evidence though heavily attacked by the defence shows somehow that there was an act of rape but nothing in the evidence linked or tried to link the appellant with the commission of that offence called rape. That is where, with due respect, the learned trial Judge went wrong in convicting the appellant on the ground that the required corroborative evidence was available. Corroborative evidence must be evidence which confirms in some material particular not only that the crime has been committed but also that it was the appellant who committed it.

My Lords, in the appeal before us there was no sufficient corroboration. Agreed that the evidence (unsworn) of the victim and her brother directly implicated the appellant. ,These pieces of evidence if believed and corroborated are sufficient to justify the conviction of the appellant. It was clearly believed by the trial court. But it was wrong for the trial court to hold that there was a sufficient corroborative evidence The corroboration required under S.182(3) of the Evidence Act is not, as held in R. v. Ibe 4 WACA P.131:

“Corroboration of the detail of the crime ….., but some independent testimony which affects the accused by tending to connect them with the crime ” See also Mbele v. State (1990) 4 NWLR (Pt. 145) 484 at 500 per Agbaje JSC.

That being the case, this appeal is meritorious and is therefore allowed. The judgment, conviction and sentences of the trial court are hereby set aside. In substitution therefore the appellant is hereby discharged and acquitted.

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Other Citations: (1997)LCN/0295(CA)

Ekwenugo Okugo & Ors. V. Nweke Nwokedi & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

EJIWUNMI, J.C.A. 

This appeal is against the ruling of Amaizu J in suit No. OT/25/89 wherein the plaintiffs commenced this proceedings against the defendants jointly and severally for the sum of N20,000.00 as general damages for the defendants’ trespass to the plaintiffs’ land known and called Achutu in the possession of the plaintiffs and for an injunction restraining the defendants, their servants or agents from further trespass to the said land. Pleadings were subsequently ordered and exchanged.

By the pleadings so filed the plaintiffs and the defendants joined issue on several paragraphs of their respective pleadings on the traditional evidence of ownership and possession of the disputed land. In order to identify how they joined issues in that regard, the relevant paragraphs of their pleadings would be reproduced. But before then it is clear from the pleadings that though the defendants have denied in paragraph 3 of their statement of defence that the land in dispute is called Achutu as pleaded by the plaintiffs, but they have admitted in paragraph 4 of their statement of defence that “The land claimed by the plaintiffs in dispute is shown verged pink on Plan NLS/N290/89 filed with the statement of claim but deny the boundaries, features and names indicated therein. The defendants assert that the correct features, names and boundaries are as indicated in the defendants’ plan No. NG/AN543/84 filed with this statement of defence.”

Beyond that admission of the disputed land and the consequential denial of the features of the land pleaded by the plaintiffs, the defendants denied paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34 of the statement of claim. In view of that position of the defendants, the pleadings of the plaintiffs in those paragraphs are hereby reproduced. They read:

6. The land in dispute originally belonged to the plaintiffs’ ancestor called Nsugbe, together with other pieces of land that went to make up what is now known as Nsugbe Town. He was the first man to live there.
7. The land in dispute descended by way of inheritance from Nsugbe to the plaintiffs, through generations of the plaintiffs’ ancestors, who were the descendants of the said Nsugbe.
8. Nsugbe was a son of Eri.
9. Eri was an Igala man who was a hunter and a native doctor and he hunted along the Anambra River and settled at a place called Aguleri Igbo. There he begat five sons whose names were Aguleri, Nsugbe, Igbariam, Nteje and Amanuke. He also begat one daughter whose name was Igwedo.
10. Igwedo for her part married a succession of men for whom she begat issues, and her offspring form the communities known today as Umuleri, Awkuzu and Nando.
11. The five sons of Eri grew up and were settled on the lands which today bear their respective names by their father Eri, before he left the Anambra River area and went to settle further inland at a place now called Nri town.
12. The place where he settled Nsugbe is the place now called Nsugbe town. It was virgin land, and Nsugbe was the first man to live there.
13. Nsugbe had nine sons, namely, (1) Enugu, (2) Ofianta, (3) Abba, (4) Amumu (5) Amagu, (6) Agbalagbo (7) Akpalagu, (8) Ogwari, and (9) Amaofu.
14. On the death of Nsugbe these nine sons divided their father’s lands and Ofianta took a share which included the land now in dispute.
15. Offianta, in turn, begat four sons, namely, Ikokpa, Ara, Irudigwe, and Agbudu.
16. On the death of Ofianta these four sons of his did not share his lands but enjoyed them in common.
17. The lands left by Ofianta for his sons were Atusa, Ojibilu, Owelle and Achutu.
18. It was on Achutu that Ofianta made his home, and it was there that he lived and died.
19. On his death, his sons and their descendants continued to live on Achutu and to farm it and the other lands Atusa, Ojilibu, and Owelle, in common.
20. Within Achutu was a market-place called Otu, because it was at the waterside. This market was a popular market while the Ofianta people lived on Achutu, and people came there to buy and sell from distant places.
21. Through the cover of the diversity of peoples who came to the Otu market, kidnappers also appeared, and several children of the Ofianta people got missing. For this reason the marker was nicknamed “Otu-Onya”, meaning “Trap-market” that is to say, a market was like a trap for Ofianta’s children.
22. When the kidnappers were not content to steal individual children but resorted to raiding the homes of Ofianta villagers near the waterside, the Ofianta people decided to leave Achutu entirely, and to move further inland. They accordingly abandoned Achutu (including the famous “Otu-Onya” market) as a place of habitation, and went to settle at their Owelle land – where they have lived up till today.
23. “Otu-Onya” market is shown with a YELLOW verge on the plaintiffs’ said plan No. NLS/AN 290/84, and the ruins of the habitation of the Ofianta people near Otu-Onya are also shown on that plan.
24. When the Ofianta people (the plaintiffs) were living on Achutu land they had their home around Otu-Onya market, where they formed a village. The ruins of their houses are shown on the plaintiffs’ plan.
25. The Offianta people also had juju shrines on the land in dispute which they worshipped. The most important juju was Achutu itself, whose shrine was a grove of akpu, ebenebe and other trees. They still “worship this juju, and its priest is Onuorah Mgbataogu, one of their people. The Achutu shrine is shown on the plaintiffs’ plan.
26. The second most important idol is juju which the Ofianta people worshipped on the land in dispute, and still worship up till today, is Ada Achutu. Its shrine is an ancient heap of stones which is within a very thick juju bush right in the middle of Achutu. Its priest is Onuorah Mgbataogu.
27. There are other idols whose shrines are as shown on the plaintiffs’ plan and whose chief priest is the same Onuora Mgbataogu of the plaintiff’s people.
28. When the Ofianta people moved their village from Achutu and went to live in their Owelle land, they still came to make sacrifices to their jujus on the land in dispute and to worship them, and to use the land as owners.
29. The plaintiffs also continued, up till today, to farm the whole land of Achutu.
30. When the Ofianta people, the plaintiffs, were living on Achutu, they frequently gave portions of land to other people to farm as customary tenants on yearly basis and on payment of the customary tribute. They even permitted some of their tenants to build houses on Achutu where they stayed when they came to farm on the land. But these tenants’ houses have now fallen into ruins: the ruins are shown on plaintiffs’ plan.
31. Even though they left Achutu as a place of residence, the plaintiffs have continued to exercise, up till today, maximum acts of ownership over the land, by farming the land, worshipping their idols on the land, giving portions of the land to customary tenants to farm on payment of tribute, reaping the fruits of the economic trees on the land-such as palm trees, mango trees and udala trees, and cutting the timber of other trees such as ebenebe, akpu and so on, all such trees as are shown on the plaintiffs’ plan. They also plant new ones.
32. The plaintiffs also built farm huts on the land in dispute which they use when they come to work in the farms, and they built yam barns for storing their crops. They also fished without interference in all the ponds within the land.
33. Many years ago there was a man of Nneyi village of Umuleri called Irunze. He married a daughter of Iloonyeokpa, first son of Ofianta, called Nwakume. This Irunze wanted a place to farm and was shown a portion of Achutu and he farmed it on payment of a tribute of a cock and forty seed yams, paid at harvest time. For some years he was shown different places to farm on Achutu land on payment of same tribute.
34. On lrunze’s death, his sons followed his footsteps, and each time they were shown portions of Achutu to farm on payment of the customary tribute. Lateran, other Umuleri people from Nneyi who ….. of land at Achutu.

And as the defendants also contend with the plaintiffs in respect of paragraphs 36, 37, 38, 39 & 40 of the statement of claim, those paragraphs are also reproduced hereunder beginning with paragraph 35.-

35. It was when these new people began to refuse to pay customary tribute of one person a cock and forty seed yams that the plaintiffs’ people began to refuse to show them land. Then they went to farm by force.
36. Because of this, the plaintiffs’ people sued those who thus trespassed into their land by force to the courts.
37. The first case was in 1907. Obi Chukwura, representing the plaintiffs’ family, sued Itugha of Umuleri, representing the defendants’ people, in respect of Achutu land and Otuonya – the former waterside market. Judgment was given in favour of the plaintiffs’ people as being owners of Achutu, including Otuonya. This case, No. 66 of 1907, of the Native Council Court of Onitsha will be relied upon as res judicata.
38. Again in case No. 890 in the same Native Council Court of Onitsha, a member of the defendant’91s family was charged with criminal trespass to the said Achutu land and Otuonya already awarded to the plaintiffs’91 people and was fined ?2. This was on 28/11/07, and this case will also be relied upon as res judicata.
39. After these cases the defendants’ people ceased trespassing into Achutu land (or into its Otuonya area) until 1947 when they made new incursions into the land and the plaintiffs stoutly resisted them and they left.
40. At all material times the plaintiffs were in possession of the land in dispute.
41. Then in the months of April, 1983, the defendants again came into the land in dispute without the permission or consent of the plaintiffs, farmed a small portions of it, and to reinforce themselves, brought in Abba people whom they showed areas to farm: they also secretly quarried stones from the land in dispute and carried same away. But the plaintiffs did not allow them, or their allies to stay long on the land but drove them out therefrom, and then took the instant action.

As I have already observed the defendants by their statement of defence, gave a qualified admission to the averment of the plaintiffs with regard to the location and description of the disputed land. But they pleaded further in the following paragraphs of the statement of defence as follows:-

5. The defendants deny paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, of the statement of claim.
6. The answer to paragraphs 36, 37, 38, 39, and 40 of the statement of claim the defendants assert as follows:-

(i) The cases therein referred to were all reviewed among other cases in the High Court case 0/73/57 between the same parties, to wit, Osili Nnacho & Others for Offianta Nsugbe v. Onuora Mechie for Akwuete Nneyi’97Umuleri in respect of the same portion of land as in this case and judgment was entered for the present defendants in that case dismissing the present plaintiffs’91 claims for a declaration of title to the land in dispute, ?40.00 damages for trespass ?300; ’97 for mesne profits, recovery of possession and injunction. This judgment which is hereby pleaded will be founded upon.

(ii) Defendants assert that they have from time immemorial been owners in possession of a vast area of land including the land in dispute and verged blue on their said plan No. MC/AN.543/84. They have their homesteads (original villages) therein.

(iii) As owners in possession the defendants had exercised maximum acts of ownership and possession not only in respect of land in dispute verged pink on their said plan and verged pink on the plaintiffs’ plan but also in respect of surrounding lands within the area verged blue on the said defendants’ plan acts of ownership and possession including having their homestead thereon, farming thereon, letting out portions to tenants and utilizing economic trees thereon. Within the area verged pink on both plans the defendants in 1898 granted the portion of the land in dispute verged brown to the Royal Niger Company by agreement dated 25th June, 1898 and registered as No. 109 in Volume 2 of the Niger Lands Agreement lodged in the Lands Registry, Lagos, This grant will be founded upon. The defendants also made a grant of the portion of land verged green on their said plan No. MC/AN.543/84 to Anambra State Government for Federal Aluminium Smelter Project (Reference Public Notice 51 of 17th March, 1983 and acquisition is to be paid to the defendants.

7. The defendants have always protected their title to and interest in the land in dispute and have defended and successfully resisted all plaintiffs’ claims to the land in dispute especially in Suits 0/32/1947 and appeals thereon and 0/75/57 which are hereby pleaded.
8. In consequence of the facts pleaded in paragraphs (6) and (7) of the statement of defence the plaintiffs are estopped from asserting ownership and possession of the land in dispute and/or from pursuing their present claims and will rely on the law of estoppel by res judicata.
9. The defendants deny that the plaintiffs are entitled as claimed or at all and hereby plead as follows –

(i) Ownership before the Land Use Decree 1978 and long possession

(ii) Estoppel by res judicata

(iii) Delay and acquiescence.

However before the suit could be heard on the pleadings, the defendants by their counsel applied by a motion on notice dated 17th September, 1985, for an order dismissing the whole suit and/or proceedings in this case on grounds of (i) res judicata and/or (ii) Abuse of process of the court and for such further order or orders as the Court may deem fit to make in the circumstances. The motion which was supported by an eight paragraphed affidavit sworn to by one Vincent Nwasi of Akwuete Quarter of Nnenyi village of Umuleri Town. The contents of the affidavit being a recapitulation of the defendants’ averments in their statement of defence, already reproduced above. But attached also, to the said affidavit, are exhibits marked’ A’ and’ A1′ being certified copies of the judgment and orders made in suit 0/73/57.

The plaintiffs responded to the defendants’ motion by filing, through one Uyammadu Oguguo of Ofianta Village, Nsugbe, an eight paragraphed counter affidavit. Apart from repeating certain of the averments made in their statement of claim he deposed in paragraphs 5, 6, & 7 of the said counter affidavit thus:-

“5. That the cases of 1907 were between the defendants and us over the same land.

6. That by reason of the cases stated above the plaintiffs say that the defendants are estopped per res judicata from contesting the above suit. The plaintiffs will also contend that any other case inconsistent with case No. 66 of 1907 is null and void and of no effect.
7. That I exhibit and mark as Exhibit ‘A’ a copy of the said judgment of 1907 aforesaid.

With that motion, the affidavit and counter affidavit filed by the parties the stage was set for the hearing of the said motion. At the hearing, however, and before addresses by learned counsel, leave was granted by the lower court for the parties to call witnesses. For the defendant’s applicants two witnesses were called. The first was Asst. Chief Registrar of the Otuocha High Court who tendered documents tendered in Suit 0/73/57. between Osili Nnacha & Ors. for Ofianta Nsugbe v. Onuora Machie & Ors. for Awete Nneyi Umuleri. These include Plan No. 19/46 marked Exh. 1; Plan No. MEC/197/65 marked Exh. 2; Plan No. EC 12/48, marked Exhibit 3; Plan No. SE44/61. Exh 4 and certified copy of the judgment and order thereon in the suit, dated 22/5/67 marked Exhibit 5. The next witness was Godfrey Chukwuma Odumodu, a licensed surveyor who tendered the composite plan No. MG/AN543/84 Exhibit 6, which he produced from old plans tendered in suits 0/34/47 and 0/73/57. The plaintiffs also called a witness, Pius ikweoke who inter alia, tendered as Exhibit 7, the judgment of the Native Court in 1907, and as Exhibit 8, a copy of the Survey Plan No. MLS/AN.290/84 filed with the statement of claim in the main suit.

The learned trial judge, thereafter listened to addresses by learned counsel for the parties. Thereafter he delivered a considered ruling in which he rejected the application of the defendants that the suit be dismissed upon their plea of res judicata. The defendants being very dissatisfied with this ruling have appealed to this court. Pursuant thereto the defendants have appealed to this court upon seven grounds of appeal in their original notice of appeal. But with the leave of this court, the defendants, now appellants filed and served an amended notice of appeal and grounds of appeal dated 22nd August, 1994. Based upon this amended notice of appeal, the appellants filed their brief which they served on the plaintiffs, now respondents.

At the hearing before us, the learned counsel appearing for the parties adopted and placed reliance on their respective briefs of argument. They also addressed the court further on the arguments canvassed in their briefs.

Mr. Chike Ofofile learned Senior Advocate of Nigeria in the appellants’ brief identified two issues for the determination of the appeal. They read:-

(i) What is the legal effect of suit No. 0/73/57 Osili Nnacho & Ors. v. Onuora Mechie & Ors on Suit No. 66 of 1907 vis-a-vis the defendants/appellants plea of res judicata?

(ii) Whether on the totality of the materials placed before the court, the defendants/appellants made out a case of res judicata (arising from Suit No. 0/73/57 – Osili Nnacho & Ors. v. Onuora Mechie & Ors) over any part of the land in dispute in the instant suit.

From a perusal of these two issues, it seems clear that the case for the appellants is that their plea of res judicata was wrongly dismissed by the lower court. It is also contended for the appellants that the lower court having wrongly overruled this plea, their claim to the disputed land or part of same was wrongly refused. In support of this contention, it is submitted that the whole ambit. Scope and legal effect of suit No. 66 of 1907 has become issue estoppel as per the parties to the instant suit. It is therefore argued for the appellants that the respondents are for that reason precluded from raising in this proceedings the fact of the suit no. 66 of 1907 as a document likely to give them any right to the land in dispute vis-a -vis the appellants. For that submission, the following cases are cited – Toriola v. Williams (1982) 7 S.C. 27; Esi v. Chief Secretary (1973) 11 SC 189, Fadiora v. Gbadebo (1978) 3 S.C. 219.

It is also the submission of Chike Ofodile SAN that another effect of suit No. 0/73/57 on the 1907 suit is that suit No. 0/73/57 is last in time. For that reason, he contends that the law is that once there are two conflicting judgments of courts, the later in time operates as a bar and constitutes res judicata. Cites Makanjuola v. Khalil (1958) WRNLR 32, (1958) SCNLR 193; Seriki v. Solaru (1965) NMLR 1; Ikeakwu v. Nwamkpa (1967) NMLR 224.

It is, I think, convenient to also set down the arguments of the appellants in respect of issue 2. This is whether on the totality of the materials placed before the court, the appellants made out a case of res judicata arising from suit No 0/73/57 – Osili Nnacho & Ors. v. Onuora Mechie & Ors over any part of the land in the instant suit. It is therefore contended first, for the appellants that the land in dispute is the area of land verged orange in survey plan No..MG/AN.543/84 admitted as Exhibit in Suit No. 0/73/57. It is further contended for the appellants that in suit No 0/73/57; that plan Exhibit 6 was that which was identified and pronounced upon by H.U. Kaine J. in the course of his judgment in that suit.

This judgment, in suit No. 0/73/57 was therefore pleaded in the instant case in paragraphs 6,7 and 8 of their statement of defence. These paragraphs were repeated in paragraphs 4 & 5 of the affidavit in support of the motion to dismiss the suit. In suit 0/73/57 the reliefs are as follows –

(i) Declaration of title to Achutu land

(ii) ?400 damages for trespass and

(iii) Recovery of possession and injunction.

In order to justify their contention that they have established that they are entitled to have the action dismissed upon the doctrine of res judicata, they referred to the ingredients of res judicata. These are as follows – (i) The parties are the same; (ii) the subject matter is the same and (iii) the same issue or cause of action is being litigated. In support, reference was made to (i) Peter Olahiyi & Anor v. Sule Abiona (1955-56) WRNRL. 126; (ii) Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523 – 525; On the first ingredient, namely, whether the parties are the same, their learned counsel Chike Ofodile SAN contends in their brief, that they are the same. He submits that the plaintiffs respondents in suit No. 0/73/57 sued on behalf of the people of Offianta Nsugbe and sued the defendants/appellants where they were described as the people of Akwuete Quarter of Nneyi Umuleri town. In the instant suit OT/25/89 also the appellants contend that the parties are as specified in the earlier suit No. 0/73/57. The fact that the parties in the two suits namely 0/73/57 and OT/25/89 are the same was according to the appellants accepted by the lower court at page 59 lines 14-16 of the Records. On whether the subject matter in the two actions are the same, reliance is placed on the survey plan Exhibit 6, tendered by their surveyor, Chief Odumodu in the course of the trial in the lower court. They also contended that the evidence was neither challenged nor contradicted by the respondents.

Moreover as the respondents did not deem it fit to call their surveyor at the trial it was wholly wrong of the learned trial Judge to refuse the plea of res judicata on the ground that he would want them to call their surveyor as a witness. It is further submitted that where as in the instant case, the evidence of a witness remained unchallenged and uncontradicted, the duty of the court is to accept such evidence. For this submission reference was made to Siesmograph Ltd. v. Ogbeni (1976) 4 SC 85 at 5.

The appellants also draw support from the judgment of Kaine J in suit No. 0/73/57 who it is claimed made the following findings –

(a) That suit No. 0/32/47 was between the same parties as the instant one. That suit went from the High Court to the West African Court of Appeal from where it was sent for retrial. Hurley J., retried the suit, but on further appeal to the Supreme Court a non-suit was ordered. The lands involved were Achutu and Otuonya.

(b) That the learned Judge refused as untenable the conflicting plans tendered before him concerning the boundaries of Achutu and Otuonya lands.

(c) That the appellants made a grant of a portion of the land to the Royal Niger Company. It is also claimed that the learned judge held that the appellants were found by the Royal Niger Company to have been on the land since 1898.

(d) That the plaintiffs/respondents despite three opportunities have failed to prove their case in order to give effect to Exhibit ‘C’ (i.e case No. 66 of 1907) hence their claim in suit No. 0/73/57 was dismissed.

In conclusion it is submitted that with the issues in this appeal and suit No. 0/73/57 being the same, the appellants are entitled to the order of res judicata. It is also their submission that title to the disputed land is also in issue. That being the consequence of a claim for trespass coupled with injunction. In support, the following cases are cited, Okorie v. Udom (1960) 5 FSC 162, 1960 SCNLR 326; Obijuru v. Ozims (1985) 2 NWLR (Pt. 167).

For the respondents their learned counsel G.N.A. Okafor recognising that the issue in the appeal rests upon the doctrine of res judicata invited attention to the following cases Basil v. Hanger, 14 WACA 569 at 572; Ezenwa v. Kazeem (1990) 3 NWLR (Pt. 138) 258 at page 266; Coker v. Sanyaolu (1976) 9 & 10 SC 203 at 220.

Bearing in mind the ingredients for the plea of res judicata to succeed as per the above cases, learned counsel for the respondents conceded that the parties in suit No. 0/73/57 and the parties in the instant appeal are the same. He also concedes it that the adjudication in the previous cases was by a court of competent jurisdiction. That in the view of learned counsel for the respondents ends the similarities between the two suits. It is his submission that the issues and subject matter in the two suits are not the same. It is his argument that while in the previous suit the claims were for a declaration of title, trespass, mesne profits, recovery of possession and injunction, the claims in the present suit are for trespass and injunction. He therefore contends against the argument of the appellants that having joined a claim for trespass and injunction, the claimant had put title in issue. Though he concedes it, he however, submits that in the instant appeal title is merely incidental, and not directly in issue. With regard to the subject matter, it is the contention of the respondents that the land in dispute is not also the same in the two suits. It is argued that the evidence of the appellants’ surveyor, Mr. G.C. Odumodu and the plan Exhibit 6 which he tendered in support of this view. It is claimed that the survey plan, though superimposed upon another plan did not coincide with regard to the submission boundaries of the land. Also a piece of land, which is now in dispute, which was never in dispute above. The surveyor it is argued could not estimate the size of that piece of land. The learned counsel for the respondents has therefore submitted that the plea of res judicata was rightly rejected by the lower court. He submits on the principle stated in Aro v. Fobolude (1983) 1 SCNLR 58 (1983) 2 SC 75 at 84-88 that where any of three matters is missing in the new case a plea of res judicata will ordinarily fail. And as the judgment of 1967 in (the 1957 case) does not satisfy conditions laid down by the Supreme Court in Ezenwa v. Kazeem case (supra) the appeal must fail.

From the argument of counsel reviewed above it is manifest that the central issue for determination is whether the plea of res judicata raised before the lower court should have been upheld. For the appellants their plea rests upon the judgment in suit No. 0/73/57. See paragraphs 6, 7 & 8 of the appellant’s statement of claim, and which have been reproduced above.

It is I think desirable that the principles that ought to govern the court in determining whether a plea of res judicata was established or not are not obscure as this Court and the Supreme Court have in various cases made pronouncement on them. The Supreme Court in the lead judgment of Ogundare in the case of Ogbogu v. Ndiribe (1992) 6 NWLR (Pt. 245) 40 referred to and quoted with approval in the case of Alade Fadiora v. Gbadebo & Anor. (1978) 3 SC 219 where at pages 228 – 230- Idigbe JSC, formulated the applicable principles thus:-

“Now, there are two kinds of estoppel by record, inter partes or per rem judicatam, as it is generally known. The first is usually referred to as “cause of action is merged in the judgment, that is, Transit in rem judicatam (see King v. Hoare (1844) 13 M&W 495 at 504). Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter) there is an end of the matter. They are precluded from re-litigating the same cause of action. There is, however. a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, “issue estoppel” arises. This is based on the principle of law that a party is not allowed to (i.e he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. (See Cutram v. Morewood (1803) 3 East 346). Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law.

However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter parties or per rem judicatam must apply, that. (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon in support of the plea of issue estoppel must be final (3) the parties must be the same(which means that parties involved in both proceedings must be the same) (per se or by their privies). Dealing with the issue of “Finality” of judgment for the purpose of establishing successfully a plea of res judicata, the learned authors of Spencer Bower & Turner on the Doctrine of Res Judicata (1969) Ed) in Art. 164 p. 134 states as follows: “A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter in order to render it effective and capable of execution, and is absolute, complete and certain, and when it is not lawfully subject to subsequent decision review or modification by the tribunal which pronounced it… ..” Again, in Article 168 at p. 135 the same learned authors in the same book observe:

“No finding of the court or of a jury of a trial which has proved abortive, a new trial having directed, will give rise to a valid plea of estoppel. And a decision of the court setting aside the verdict of a jury or setting aside a judgment entered pursuant thereto, and directing a new trial, will not result in either party being estopped per rem judicatam by anything held on the facts in the judgment in which the new trial is ordered, for the judgment must be read as deciding no more than, that the first trial being unsatisfactory, the issues tried therein should be resubmitted to the court for fresh consideration.” (Italics by the Court)

It is therefore settled that where a court of competent jurisdiction has settled, by a final decision the matters in dispute between the parties neither party or his privy may relitigate that issue again by bringing a fresh action. The situation thus reached between the parties is referred to as res judicata. It is also evident that there are two kinds of estoppel. They are classified as cause of action estoppel and the other is known as issue estoppel.

On the 1st issue, the appellants want to know the legal effect of suit No. 0/73/57- Osili Nnacho & Ors v. Onuora Mechie in suit No. 66 of 1907 vis-a-vis the defendants/appellants” plea of res judicata. For the appellants it is submitted first that the whole ambit, scope and legal effect of suit No. 66 of 1907 has become issue estoppel as per the parties to the instant suit. The plaintiffs are as such precluded from raising this issue proceeding the fact of suit No. 66 of 1907 as a document likely to give them any right to the land in dispute vis-a-vis the defendants. In support of that submission, the following cases are cited. Toriola v. Williams (1982) 7 SC.27, Esi v. Chief Seeretary 1973 11 S.C. 189, Fadiora v. Gbadebo (1978) 3 SC 219.

It is also submitted for the appellants that another effect of suit No. 0/73/57 on the 1907 suit is that suit No 0/73/57 is last in time. That in the view of the law that once there are two conflicting judgments of courts, the later in time operates as a bar and constitutes res judicata. See Makanjuola v. Khalil (1958) WRNLR. 82 (1958) SCNLR 193: Seriki v. Solam (1965) NMLR. 1, Ikeokwu v. Nwamkpa (1967) NMLR 224. I must add here that in making this second submission the appellants did not concede it that the two judgments they have raised the question in this issue are conflicting. If that is their view then there is no reason why this submission should receive further consideration. A court is not to decide issues upon hypothesis. If that question needs to be considered by the court then counsel ought to address (he question and assist the court with reasoned arguments. I will therefore not consider this aspect of issue 1.

With regard to their submission for the appellants on whether issue estoppel was established in respect of suit No. 66 of 1907 and suit No. 0/73/57, copious references were made to the judgment of Kaine J in that case. Also brought to our attention are cases relevant to the consideration of whether or when issue estoppel could be said to have been established between parties in respect of two parties. But I must with due respect say that my search in the brief in support of the submission that issue estoppel was established between the parties was in vain. The respondents for their part do not subscribe to the proposition that issue estoppel was created between the two parties as a result of the two suits.

Though I have referred to the principles governing the creation of issue estoppel, I would for ease of reference refer to them again. Issue estoppel occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties or their privies. This is based on the principle of law that a party is not allowed to (i.e precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue has been certainly and solemnly been determined against him.

It is common ground between the parties that the two parties in the suit No. 66 of 1907 and 0/73/57 are the same. In the first case one Chukwura for the respondents sued Ifugha for the appellants claiming recovery of possession of (a) Achutu land (b) Otuonya land. In that case the defendant who was from the defendants’91 family said that Achutu land belonged to the plaintiffs and Otuonya land to the defendants. There was no description of the boundary of Achutu land and Otuonya land in that case. The court in its judgments simply said ’97 Recovery of land for the plaintiff. In the 1957 case the plaintiffs claimed for (a) declaration of title to the piece and parcel of land called Achutu. (b) ?400 damages for trespass (c) ?300 mesne profits (d) recovery of possession (e) injunction. This was the case that came before Kanie J who upon a review of earlier cases before the parties dismissed the claim of the plaintiff by saying that “in a nutshell that I am not satisfied that the boundary shown on the plan Exhibit ’91A’91 was the boundary of Achutu land and Otuonya land if the two parcels of land had any boundary”.

The respondents in their brief have however argued that the learned trial judge in the 1957 case could not have reviewed the judgment in the 1907 case. They contend that all, that happened was that the judgment in the 1907 case with its plan to illustrate the correctness or otherwise of the plan filed by the plaintiff/respondent in this appeal. In any event it is submitted for (he respondents that the judgment in suit No. 66 of 1907 is still subsisting. Cites Ogiamen v. Ogiamen (1967) 1 NMLR 245 at 249.

They further contend that as far as that judgment goes the respondents have been adjudged the owners of Achutu land. That the judgment in which their claim was dismissed in suit No.0/73/1957 was not decided on its merit. The appellants have also argued that the judgment of the court in suit No. 66/1907 was a judgment in personam whilst the judgment in suit No. 0/73/1957 was a judgment in rem. Be that as it may it is clear from the records that the lower court in this appeal only decided that the judgment in suit No. 66 of 1907 was not appeal before the court in suit No. 0/73/1957. It is also the view of that court and 1 agree with that submission that the judgment in suit No. 66 of 1907 is still subsisting.

However what is clear in this appeal is that the appellants rested their prayer for res judicata on the suit still pending in the lower court suit No. OT/25/89 and Suit No. 0/73/1957. It was upon that prayer that the court came to its conclusion.

I have before now referred to the pleadings. In the application made by the appellants that led to the ruling of the lower court, the prayer of the appellants was simply for an order that the whole suit be dismissed on grounds of (1) res judicata and (2) abuse of process of the court. Upon the basis of this application the learned Judge refused to accede to this prayer. The reason given by the learned Judge of the lower court reads –

“It is common ground in the present application that the parties in Exhibits 5 and 5(i) are the same as parties in the present suit. G.C. Odumodu, the surveyor called by the applicants testified to the effect that, the land in the present suit claimed by the plaintiffs is less in depth than the land described in suit 0/73/57. He went further to say that a little part of the land now claimed by the plaintiffs is outside the land claimed by them in 1975. It is trite in my view, that in terms of interpreting a survey plan only a qualified surveyor, as an expert, can accurately superimpose one plan on another Ouwujuba v. Obienu (1991) 4 NWLR (Pt. 183) 16.”

Following that finding the learned trial Judge after referring to paragraph 4 of the statement of claim wherein the respondents pleaded their survey plan No. NLS/AN/290/84 Exh. 8, observed that he considered it wise that the surveyor of the respondents be called to give evidence on the matter. The learned Judge thereafter dismissed the application. From the above finding, it would appear that the learned trial Judge felt that the area of the land which is in dispute between the parties was established to compel that court to make an order of res judicata in favour of the appellants.

In this regard it must be borne in mind that for an order of res judicata to be made, i.e. cause of action estoppel, it must be shown that the parties, the cause of action and the res (subject matter) are the same in the earlier as well as the later proceedings in which the plea is raised. See Ex Parte Chief Salami Adeshina (1996) 4 NWLR (Pt. 442) 254, (1996) 3 – 4 MAC 284 at 288; Nwaneri & Ors. v. Oriuwo & Ors. (1959) SCNLR 316, (1959) 4 FSC 132.

The learned Judge is in the circumstances following the classical principles enunciated in several of the authorities dealing with the doctrine of res judicata. The Supreme Court so held in Nwaneri v. Oriuwo (1959) SCNLR 316 and also recently in Olukoga v. Fatune (1996) 4 2 LRCN 1704. (1996) 7 NWLR (Pt. 462) 516.

The respondents in their argument do not and cannot challenge the decision on principle, but have argued that for the appellants to succeed they must establish that the area of land which is now being claimed is now the same as that in the previous suit between the parties. On this crucial issue it is not disputed that the area of land claimed in the instant action is less than that claimed in suit No. 0/73/57. Upon that premise it is argued for the appellants that they could be entitled to their respect of the lesser area. To sustain that argument attention was drawn to the case of Okonkwo v. Kpajie (1992) 2 NWLR (Pt. 226) 633 at 658.

In that case it was held that the judgment could be entered for a party for that part of this claim which was proved.

In the instant case, the evidence is manifest that the parties are the same. It is clear that both parties know the land in dispute. The only difference is the extent of the land in dispute. The appellants have clearly by their pleadings and the plan tendered established their claim for res judicata to the extent of the evidence before the court. It must be noted that the learned trial Judge also found as a fact that in this suit appellants’ claim is less in depth than the land described in suit 0/73/57. And there has been no appeal on either side against this finding. Upon those facts as found the lower court, it is urged, ought to have made an order to the extent of the area of land as established.

It is that order that the appellants are now seeking to be made in this appeal. I think that having regard to the authorities to which I have referred to above, there is no reason why an order of res judicata should not be made in respect of the area of land which is not in dispute between the parties. Particularly, where, here the parties are the same and the subject matter though less than that previously claimed by the parties is part of the land formerly in dispute between the parties. In the result, the order of res judicata is hereby made to the extent of the land claimed by the appellants. The dispute with regard to the remaining land in dispute between the parties is hereby remitted to the lower court for trial by another judge within jurisdiction.

The appeal having succeeded to that extent, the appellants are awarded costs in the sum of N2,000.00 only.

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Other Citations: (1997)LCN/0294(CA)

Arch Daniel Obaro V. Dantata & Sawoe Construction Company Ltd. (1997)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A. 

This is an appeal against the reserved and considered ruling of Bage, J., delivered on 19th October, 1995 granting an order for a conditional stay of execution of the judgment delivered on 20th July, 1995 ill the Federal Capital Territory High Court. The appellant herein who was incidentally the plaintiff in the court below per his final amended statement of claim claimed against the respondent herein a total sum of N417,500.00 being special and general damages arising from negligence of the respondent. After hearing of the case, the learned trial Judge awarded to appellant a sum of N165,000.00 as special and general damages together with costs assessed at N2,000.00. The respondent herein being unhappy with the judgment filed a notice and grounds of appeal against the decision on 24th July, 1995. On the same day, he filed a motion on notice praying for stay of execution of the judgment which application was argued or canvassed on 14th September, 1995. The plaintiff is dissatisfied with the ruling of 19th October, 1995, staying the execution of the judgment delivered on 20th July, 1995. In the notice of appeal, learned counsel for appellant adumbrated three grounds of appeal. The grounds read as follows:-

1. The lower court erred in law in making an order directing the defendant/judgment debtor/Applicant to pay the judgment debt and costs to the Chief Registrar of the court within one month, or at all, when:

(a) there was no such prayer before him;

(b) in law, the court, not being a father Christmas, cannot grant a relief not sought by either party before him;

(c) he did not give the parties a hearing in respect thereof; and

(d) order 46 rule 2(2) of the High Court Rules on which he relied is no authority for arbitrary and capricious exercise of judicial discretion; by reason of that error deprived the plaintiff/judgment creditor/respondent (the appellant herein) of the fruit of his victory in the case.

2. The lower court erred in law in failing to exercise his discretion to grant an order for stay of execution (albeit conditionally) judiciously and judicially, in that:

(a) the court having held that the affidavit in support of the application offends the provisions of the Evidence Act and therefore useless, there was no material whatsoever before him on the basis of which he could judiciously and judicially exercise any discretion to grant the application (whether conditionally or otherwise);

(b) in law the court can only exercise its judicial discretion on the basis of material properly placed before him and not capriciously or arbitrarily.

(c) the only ground for the application for stay of execution was that “the grounds of appeal (filed) raise substantial and arguable points of law”; which grounds of appeal the learned trial judge held did not raise any “serious or recondite issue of law.”

(d) it was never alleged that if the judgment debt and cost were paid to the judgment creditor/respondent (appellant herein) it might be difficult or impossible to recover same from him if the appeal succeeded; and

(e) indeed the appellant (herein) categorically asserted in his counter affidavit that he would have no difficulty in refunding the judgment debt and cost in the unlikely event of the appeal being successful; which assertion was never refuted by the respondent herein.

3. The judgment is against the weight of the evidence.”

The learned counsel for both parties in compliance with the provisions of order 6 of the Court of Appeal Rules filed and exchanged briefs of argument. In the respective briefs, issues calling for determination were identified. The only issue framed in the appellant’s brief read as follows –

“Having regard to the relief sought in the application for stay of execution, the affidavit evidence before the court and the findings of the learned trial Judge, whether the learned trial Judge properly exercised his judicial discretion in granting the application for stay of execution, albeit conditionally?”

The respondent who was the applicant in the court below identified the issue set out immediately here under in its brief –

“whether the trial court in this case exercised its discretion properly by granting a conditional Stay of execution of its judgment.”

At the hearing of the appeal, learned counsel for appellant adopted and relied on the appellant’s brief. He further elucidated on the brief. Similarly the respondent’s brief was adopted and relied upon by its counsel who also briefly replied to oral submissions of learned counsel for appellant.

Both counsel in the respective briefs recognized that the ruling of the learned trial Judge granting a conditional Stay of execution is an exercise of discretion by the court which should exercise it judiciously as well as judicially and not capriciously. See Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77; Arojoye v. United Bank for Africa Limited (1986) 2 NWLR (Pt.20) 101, 111. It is equally true that exercise of discretion by the lower court would not be set aside on appeal except it is demonstrated that it has been exercised arbitrarily or illegally; without due regard to all necessary considerations or with regard to unnecessary factors; or in bad faith or relying upon wrong principles. See National Bank of Nigeria Limited v. Guthrie Nigeria Limited (1993) 3 NWLR (Pt. 284) 643, cited in the respondent’s brief of argument.

It is pertinent, at this stage to consider whether the court below in exercise of its discretion acted in an arbitrary manner or relied upon wrong principles as was being contended by the learned counsel for appellant both in his oral and written submissions before us. In this connection, learned counsel for appellant cited the case of S.T. Fakoya & others v. Adeniyi Taiwo (1991) 8 NWLR (Pt.413) 374. He commends to us the judgment as laying down the principles which should guide a court in its consideration and determination of an application for a stay of execution. At pages 380-1 this court per Salami, J.C.A., said-

“The principles governing granting of a stay of execution or injunction pending appeal are very well settled in the locus classicus case of Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S.C. 77 where Coker, J.S.C., set down the principles as follows at page 81 of the report-

“When the order or judgment of a lower court is not manifestly illegal or wrong, it is right for a Court of Appeal to presume that the order or Judgment appealed against is correct or rightly made until the contrary be proved or established and for this reason the Court of Appeal and indeed any court, will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances (see in this connection the observations of Bowen, LJ., in The Annot Lyle (1886) 11 P.114 at 116). When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject-matter of the proceedings or foist upon the court especially the Court of Appeal a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyze, in one way or the other, the exercise by the litigant of his constitutional right of appeal, or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo.” (Italics mine)

At page 535 paragraphs 4-29 of the first edition of Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria the learned author, Dr. Aguda noted a number of applicable principles governing granting of a stay of execution. The principles read as follows –

“(a) The chances of the applicant on appeal: if the chances are virtually nil, then a stay may be refused: Vaswani Trading Co. v. Savalakh and Co. (1972) 12 S.C. 77; Olusesan Shoge v. Latifu Musa (1975) 1 NMLR 133; W.A.C.A. and Odufuye v. Fatoke (1975) 1 NMLR 222.

(b) The nature of the subject matter in dispute whether maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case: Dr. T.O. Dada v. The University of Lagos & others (1971) 1 U.I.L.R. 344 and Utilgas Nigeria & Overseas Co. Ltd. v. Pan African Bank Ltd. (1974) 10 S.C. 105.

(c) Whether if the appeal succeeds the applicant will not be able to reap the benefit of the judgment or appeal. See Wilson v. Church (No.2) (1879) 12 Ch.D. 454

(d) Where the judgment is in respect of money and costs whether there is a reasonable probability of recovering these back from the respondent if the appeal succeeds: Lawrence Ogbobogu Ebegbuna v. Janet Omotunde Ebegbuna (1974) 3 WACA 23.

(e) Poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the appellant of the means of prosecuting his appeal: Nwajekwu Emejisi and others v. Michael Mbanugwo and others (1970-71) 1 E.C.S.L.R. 100.”

The instances given by the learned author is by no means exhaustive. Another instance when an application for a stay of execution can be granted is when the ground of appeal raises a substantial point of law which warrants the issue and the parties abiding the determination of the legal issues. In Vaswani’ s case (supra) the Supreme Court opined that it would consider granting a stay of execution where the grounds of appeal filed do raise vital issue of law and there are substantial issues to be argued on them”. Also in Balogun v. Balogun (1969) 1 All N.L.R. 349, 351 the Supreme Court held that where a ground exist raising a substantial issue of law is to be determined on appeal in area in which the law is to some extent recondite and where either side could have judgment in his favour a stay of execution must be granted. There was an attempt to confine this exceptional circumstance to matrimonial causes in the case of Okafor v. Naife (1987) 4 NWLR (Pt.64) 129, 130. But the departure from the case of Balogun v. Balogun (supra) in the case of Okafor v. Naife was short lived because the Supreme Court seized the advantage of the case of Martins v. Nicannar Food Co. Limited (1988) 2 NWLR (Pt.74) 75 to explain off the departure. Nnamani, J.S.C., at page 84 of the reports further restored the authority of Balogun’s case when he said:-

“……………. I think this court was swayed in Nnaife’s case by the fact of that case which involved continuous acts of trespass. In a case in which a substantial point of law, such as on jurisdiction, does arise Balogun’s case would still have full force. These cases have been followed by myriads of cases in this court and other courts. See Utilgas v. P.A.B. (1974) 10 S.C. 105; Kigo Nig. Ltd. v. Holman Brothers Ltd. (1980) 5-7 S.C. 60 and El Khalil v. Oredein (1985) 3 NWLR (Pt.12) 371 C.A…” (Italics mine)

It is necessary now to examine the case made out by the respondent to justify the discretion of the court being exercised in its favour. The exceptional circumstance established or excuse proffered by the respondent in its quest for a stay of execution can be found in paragraphs 5 and 6 of the affidavit in support of the motion. It was averred on behalf of the applicant by one John Ambi, litigation secretary, in the firm of Cosmic Chambers, Solicitors to the respondent herein that it had appealed the decision giving rise to the application for a stay of execution. Exhibited to the affidavit are the copies of the receipt issued to the respondent on filing the notice and grounds of appeal as well as the notice and grounds of appeal. Paragraph 6 of the said affidavit reads thus –

“That I was informed by Valentine Ogar Esq. counsel to the applicant and I verily believe him that the grounds of appeal raised substantial and arguable points of law.”

The excuse put forward for grant of stay of execution is based on substantial point of law as in the case of Balogun. The only excuse advanced for seeking the relief was considered by the learned trial Judge who was clearly not impressed by the reason advanced by the respondent. The learned trial Judge, therefore, had no difficulty in rejecting the case after properly directing himself in the following terms-

“The court on its own part has examined the submission of counsel on both sides. The issue of grant of a stay of execution of judgment of the court is a discretionary power given to the Judge. As to how the court is to exercise the said discretion, this position has been carefully set down by Nnamani. J.S.C., of blessed memory in the case of Martins v. Nicannar Foods Co. Ltd. supra referred to by both counsel. My Lord said:

“The court’s discretion to grant stay of execution must be exercised judiciously and it would be so exercised where it is shown that the appeal involves substantial points of law necessitating that the parties and issues being in status quo until the legal issues are resolved.”

I have looked at the application before (sic) the grounds of appeal thereto. I have not seen where it involves a substantial point of law. There is also no serious and recondite issue of law in the grounds of appeal attached to the affidavit in support of the motion.”

The respondent has not appealed against this finding therefore it subsists. The learned trial court having found as set out in the above passage ought to have refused the application for stay of execution because the finding tantamounts to the parties and issue not being in status quo ante bellum to warrant the issue abiding the outcome of the legal issues. Inspite of this startling finding in respect of the respondent’s only excuse the learned trial Judge went ahead to find as follows-

“Having placed the defect of the affidavit in support of the application as a background, and also considering the fact that the right of appeal is fundamental and short comings on the part of counsel should not ordinarily constitute a bar to such an exercise by applicant. The court considered justice must be done to the case. Justice is a two edged sword. It should be done to both parties. The court has decided by virtue of Order 46 rule (2) of the HCCPR FCT 1991 to allow the condition that the judgment debt plus all the costs shall be paid by the applicant to the Chief Registrar of this High Court who shall pay it into an interest yielding account”

Clearly, the learned trial Judge, respectfully did not only quibbled but also blunder. Order 46 rule 2 sub-rule (2) of the High Court of the Federal Capital Territory (Civil Procedure) Rules No. 56 of 1989 does not set out the exceptional circumstances or grounds under which a stay of execution can be granted. The order cited in support of the decision of the court stipulates the procedure for bringing an application for stay of execution and court discretion to either grant or refuse same and where court is mindful of granting a stay of execution the nature of stay it could grant, whether conditional or otherwise. Order 46 rule 2 sub-rule (2) reads as follows –

“(2) An order for stay may be made subject to such conditions, as shall appear just, including the deposit in court of any money adjudged due to any party in the judgment appealed from”

The learned trial Judge, in the circumstance of this case, would appreciate that it is not just to lock up the fund to which the appellant is prima facie entitled to after he had carefully weighed the competing interests of the parties and found that the only ground on which the appellant’s case rested crumbled like a pack of cards. The discretion of the court would be exercised in favour of respondent herein only where there is exceptional circumstance justifying the exercise of the power because a successful litigant is entitled to the fruits of his victory and a stay of execution would not be granted if the result of granting it would operate to deny or deprive such a party of the fruits of his success. That is the justice of this case any other thing is arbitrary or unjust. The respondent woefully failed to show that it was entitled to a stay of execution. I agree with learned counsel for appellant that the court can only exercise its discretion on materials properly placed before the court. See Williams v. Hope Rising Voluntary Society (1982) 2 S.C. 145, 152 where Idigbe, LS.C. quoted with approval the dictum of Edmond Davies LJ., in the case of Revici v. Prentice Hall Incorporated & others (1969) 1 All E.R. 772, 774 that-

“Prima facie if no excuse is offered no indulgence should be granted.”

It is apt, at this stage, to commend to the learned trial Judge the admonition of Eso, J.S.C., that-

“a stay of execution is never to be used as substitute for obtaining the judgment which the trial court has denied him,.” See Nnaife’s case (supra) at 138.

The respondent herein did not contend in the trial court that the appellant is impecunious and he would be unable to refund the judgment debt in event of the appeal succeeding. Notwithstanding the appellant copiously showing that as an architect often year standing and in an unlikely event of the appeal succeeding he would have no difficulty in refunding the proceeds of the judgment of the court below, the question of impecuniosity was not an issue before the court below. That court rightly, in my view, did not decide the issue apparently because parties did not join issue on it before it. This court is primarily a court of appeal and not a court of first instance it can, therefore, not express an opinion on a matter the trial court carefully avoided however attractive the matter may appear to be. In the circumstance, that question is not capable of forming an issue in this court consequently all the argument canvassed thereon in the briefs are hereby discountenanced by me.

I disagree with the submission of learned counsel for appellant that the court is not father christmas and cannot grant or award a relief that was not asked for. The argument is not only irrelevant it is equally not apt. The conditional order of stay of execution made by the trial court, is supported by the provisions of order 46 rule 2(2) of the trial court’s civil procedure rules recited earlier in this judgment. It is clear from the enactment that the trial court in its absolute discretion can order a conditional or unconditional stay once it is satisfied with the excuse or exceptional circumstance canvassed by the applicant. In other words, in my respectful opinion, an applicant for a stay of execution does not have to ask for the variants of the relief separately.

The appeal succeeds and it is allowed by me. The decision of the court below in respect of the stay is hereby set aside hence the respondent’s application is hereby dismissed. The judgment debt and costs invested in an interest yielding account by the Chief Registrar of the court below should be withdrawn and paid to the appellant. There is an order as to costs which is assessed at N800.00 in favour of appellant.

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Other Citations: (1997)LCN/0293(CA)

Tiwani Limited V. Citi Trust Merchant Bank Ltd. (1997)

LawGlobal-Hub Lead Judgment Report

KATSINA-ALU, J.CA.

This is an appeal against the decision of Sanyaolu. J. of the Federal High Court, Port Harcourt delivered on 21 July. 1995.

The respondent as plaintiff claimed against the defendant as follows:

1. An order of possession of the said vessel;
2. The liquidated sum of N6,933,871.88k, being unpaid rental arrears, and over-draft granted to the defendant by the plaintiff at the defendant’s request, with interest thereon at the plaintiff’s current prime lending rate from time to time from 1st January. 1994 till judgment and thereafter total liquidation of the sum;
3. An order of specific performance of the contractual obligation to obtain all requisite approvals; and
4. Damages for breach of contract, loss of profit, as may be assessed; or in the alternative.
5. The liquidated sum of N22,355,783.78k plus interest thereon at the plaintiff’s current prime lending rate from time to time from 1st January 1994 till total liquidation of the debt being the outstanding amount of lease rentals and overdraft.

Pleadings were duly ordered. The plaintiff filed its Statement of Claim to which the defendant filed its statement of defence. The Statement of Defence also includes a counter-claim. Accordingly the plaintiff filed a reply and defence to the counter-claim. On 5th March 1995 the defendant filed a reply to the defence to counter-claim.

Upon the agreement of both counsel on 14/12/94 the learned trial Judge fixed hearing of the substantive case for 23 and 24 January, 1995. Unfortunately, the court did not sit on 23/1/95 though both counsels were in court, so on the prodding of both counsel, trial was further fixed for 15/12/95.

However, for inexplicable reasons, counsel for the defendant did not show up in court for trial on 15/2/95, neither was the defendant represented by any of its officers. Moreover the defendant and its counsel did not deem it necessary to excuse their absence. This being the situation counsel for the plaintiff urged the trial court to commence trial. Thus trial commenced on 15/12/95. P.W.1 Kunle Ajeigbe gave evidence for the plaintiff and the case was adjourned to 24/2/95 for continuation of hearing.

On 24/2/95 both parties were represented by counsel and Mr. Leyimu, of counsel for the defendant sought an adjournment to bring necessary applications to regularize his defence. The application was granted and the case was subsequently adjourned to 28/2/95 for continuation of hearing.

On 28/2/95 defendant’s counsel got the court to regularize defendant’s statement of defence. He then sought an adjournment of further hearing which the trial court rejected. Accordingly hearing of the evidence of P.W.1 continued. Nevertheless P.W.1 could not finish and so his evidence was further adjourned to 16/3/95 with leave to the defendant to file and serve a reply to the defence to counter-claim. if any.

On 16/3/95 the defendant was neither in court nor represented. P.W.1 however continued with his evidence which he concluded on that day. P.W.2 Alfred Soma Jeminimiema also gave evidence on the same day. The case then stood adjourned to the 7/4/95 for address.

On 7/4/95 the defendant’s counsel was again absent in court. Also no representative of the defendant was in court. Plaintiff’s counsel addressed the court and thereupon the learned trial Judge reserved judgment till 16/5/95.

On 16/5/95 the defendant and its counsel in a surprise move served on the court an ex-parte order of Ojutalayo, J., of the Federal High Court. Lagos restraining the learned trial Judge from delivering his judgment. In compliance with that order the learned trial Judge adjourned to 21/6/95 for judgment.

The parties were again in court on 26/5/95. On that day, the present counsel to the defendant made his first appearance. At his instance the matter was adjourned to 6/6/95. Meanwhile the defendant filed a motion dated 25/5/95 on 26/5/95 praying for the following reliefs:

a) An order striking out claims 1.2 to 1.5 of the plaintiffs’ Particulars of Claim on the ground that this Honourable Court has no jurisdiction to entertain them.

b) An order arresting the judgment of this Honourable Court herein fixed for 26th May, 1995 with a consequent order re-opening the case for further trial.

c) An order permitting the defendant’s counsel to cross-examine the plaintiff’s witnesses and to allow the defendant to call evidence in support of its case.

d) Leave to conduct a search of the records of this Honourable Court in this case and make copies of any relevant documents upon payment of the relevant fees for the purpose of assisting the defendant to prepare its defence.

e) An order allowing E.O. Leyimu’s Chambers to cease acting for the defendant herein and allowing Ayanlaja, Adesanya & Co to act as legal Practitioners for the defendant.

That motion was eventually heard on 6/6/95. The learned trial Judge delivered its ruling on 21/7/95. By the said ruling the learned trial Judge granted prayers (d) and (e) above, refused prayers (a) and (b) and allowed prayer (c) only to the extent that the defendant was permitted to call evidence in support of its case. In effect the learned trial Judge refused the application for leave to cross-examine the two witnesses that had earlier on given evidence for the plaintiff.

It is against the part of the ruling aforesaid refusing defendant’s counsel leave to cross-examine the witnesses for the plaintiff that the defendant has now appealed to this court.

The two grounds of Appeal filed in this case are as follows:-

(i) ERROR IN LAW

The learned trial Judge exercised his discretion wrongly by not granting the defendant leave to cross-examine the witnesses for the plaintiff:

PARTICULARS

a) The trial Judge did not give any or sufficient weight to the defendant’s constitutional right to fair hearing which includes the plaintiff’s (sic) right to put its case to the defendant’s (sic) witnesses and test their veracity by cross-examining them.

b) Having granted the defendant leave to lead evidence in support of its case, to ensure that the case is fully heard on its merits, the learned trial Judge should also have allowed the defendant to cross-examine the plaintiffs’ witnesses.

c) The learned trial Judge placed undue emphasis on the fact that the defendant and its counsel were absent when the plaintiff’s witnesses gave evidence, when such absence had adequately been explained off in the defendant’s affidavit.

d) The Lower Court had a duty to ensure that the end of justice was served by allowing the defendant’s witnesses to state their case, not only by giving evidence on their own behalf, but by putting their case to the plaintiff’s witnesses and cross-examining them on their testimonies.

ii) ERROR IN LAW

Having held that it was in the interest of Justice that the case be heard on its merits, and that the defendant was granted leave to lead evidence in support of its case, the learned trial Judge erred in law in not (in the same token), granting the defendant leave to cross-examine the plaintiff’s witnesses.

The defendant formulated a lone issue for determination in this appeal which reads:

“Taking into consideration all the circumstances of the case, did the learned trial Judge exercise his discretion properly in refusing the appellant leave to cross-examine the witnesses for the respondent who had earlier on given evidence in its absence’?”

The plaintiff for its part adopts the sole issue formulated by the defendant in this appeal.

Both counsel adopted their briefs of argument at the hearing of this appeal. The portion of the ruling of the court below relevant to this appeal is set out at page 56 lines 28-36 to page 57 lines 1-9. It reads as follows:

“The question which arises now is whether having regard to the circumstances of this case, it will be in the interest of justice to permit the defendant/applicant herein to recall the plaintiff’s witnesses for cross-examination after the defendant/applicant had failed to turn up in court on the hearing date. A judge must be bound by rules, accepted rules made under the law of the land in order not to leave the populace in fear of saucy dreams of a Judge – See Eso. J.S.C; in Willoughby v. I.M.B. Ltd (supra).

The first constraint in the exercise of the discretion in the instant case is that it is not in the interest of justice to permit the defendant/applicant to do so, after he had been given an opportunity to attend at the trial and to cross-examine the plaintiff’s witnesses which opportunity he failed to utilize on the excuse that he was never informed of the hearing date by his counsel, and as there is nothing to clear by this court in the evidence already given before this court this relief is hereby refused.”

It has been held in a long line of cases decided by the Supreme Court and this court that an appellate court would not generally question the exercise of discretion by the trial Judge merely because they would have exercised this discretion in a different way if they had been in the position of the trial Judge. However, such exercise of discretion would be questioned or interfered with in any of the following cases:-

a) Where the lower court acted upon a misconception of law.

b) Where the lower court acted under a misapprehension of fact in that it gave weight to irrelevant or unproved matters.

c) Where the lower court omitted to take into account matters that are relevant.

d) Where the lower court exercised or failed to exercise the discretion on wrong or inadequate material.

e) Where it is in the interest of justice to interfere.

See University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143; Nsirim v. Onuna Construction Co. Ltd. (1994) 1 NWLR (Pt.318) 1 at 22; Ndukwe v. Baronci (1994) 9 NWLR (Pt.367) 241; Odutola v. Kayode (1994) 2 NWLR (Pt.324) 1.

In the present case, it has been said that though in reviewing the case of both parties the learned trial Judge adverted his mind to the principles of fair hearing as entrenched in Section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria, he regrettably did not apply the principles. It was said that the rules formulated to ensure that justice is done to the parties as regards the conduct of trials include the examination-in-chief, cross-examination and re-examination of witnesses. It was pointed out that due to the absence of the defendant and its counsel in court, the defendant could not cross-examine the plaintiff’s witnesses. And if the ruling of the trial court is allowed to stand, it means that the whole of the plaintiff’s case would have been admitted in evidence without any challenge.

Another ground canvassed by learned counsel for the defendant is on account of the fact that the learned trial Judge took into consideration and placed undue emphasis on the absence of the defendant and its counsel in court to the detriment of the need to hear matters fully on their merits in the overall interest of justice. It was said that the learned trial Judge had before him uncontroverted evidence of E.O. Leyimu and defendant’s Managing Director Dotun Lofinmakin stating why neither of them was in court on the relevant days. It was argued that since Lofinmakin’s affidavit evidence was not rejected by the trial court. it should have acted on same before exercising its discretion. It was contended that had it done so it would have been clearly established that counsel. Mr. Leyimu did not inform his client that trial was to commence. It was submitted that it was not the fault of Mr. Lofinmakin that he was absent in court on the material days. It was therefore wrong for the trial Judge to hold o as he did that an opportunity was given to the defendant to cross-examine the plaintiffs witnesses and he failed to utilize same. It was submitted that it is trite law that courts are slow to visit the sins of counsel on litigants. Counsel relied on the case Nigeria Hotels v. Nzekwe (1990) 5 NWLR (Pt. 149) 187 at 195. We were therefore urged not to visit Leyimu’s sin on the appellant.

For the plaintiff it was conceded that the trial Judge has the discretionary power to allow the defendant to recall for cross-examination witnesses called by the plaintiff after the plaintiff had closed its case. See Willoughby v. IMB (1987) 1 NWLR (Pt. 48) 105; Omoregbe v. Lawani (1980) 3-4 S.C. 108. It was however submitted that it is well settled that the power of court to recall a witness will be exercised with great care and only in exceptional circumstances. Counsel relied on Ogbodu v. Odogha & Anor (1967) NMLR 221; Tabaa v. Lababedi & Anor (1974) All NLR (Pt. 1) 400 at 408. In other words the discretion is not exercised lightly or as a matter of routine but rather on hard facts and in exceptional circumstances. It was submitted that a party applying to recall a witness must supply the trial court with sufficient facts relating to why he wants the witness recalled and the questions he intended to put to the witness. Reliance was placed on the case of Willoughby v. I.M.B. (supra). Counsel pointed out the grounds for the application of the defendant are contained in the two affidavits of E.O. Leyimu and Dotun Lofinmakin both of which say nothing on either why the defendant wants the witnesses to be recalled or the sort of questions the defendant intends to put to the witnesses. It was therefore submitted that the defendant’s application fell short of what the law requires of the defendant and therefore not sufficient to ground the application.

It was stressed for the plaintiff that the exercise of the power to recall witnesses is not at large. It is used to assist the court in arriving at the truth of matters under investigation. See Omoregbe v. Lawani (supra). It was submitted that in considering this appeal this court should pay little attention to the reason why the defendant was not in court on the day the witnesses sought to be recalled gave evidence as that is irrelevant to the subject on appeal. Rather, what is germane is the purpose which the recall of the witnesses would serve in resolving the dispute before the court. It was further submitted that the exercise of the court’s power in this case will not serve any useful purpose. If it were otherwise the defendant would have so stated in the supporting affidavit to its application.

On the issue of negligence of counsel it was the submission of counsel on behalf of the plaintiff that the alter ego of the defendant admitted on oath that he was advised by counsel when trial was about to commence to lay back: “….. so as to allow me to be able to carry out the crowded day to day administration (sic) duties of the defendant in Lagos.” The complaint of the defendant is that it did not receive a feedback on the court proceedings not that it was not aware that trial was going to begin. The plaintiff does not agree that the conduct of counsel smacks of negligence or any sin. If there was any negligence at all, it is that of the defendants and not its counsel. It was contended that since the evidence before the trial court did not suggest negligence on the part of counsel, there is no justification for the argument that sin of counsel should not be visited on litigant.

It is now well settled that the power of a Judge to recall a witness should be exercised with great care and only in exceptional circumstances. See Oghodu v. Odogha & Anor (supra) where the Supreme Court per Coker, J.S.C. made this point very clear. He said:

“Undoubtedly the discretion to recall a witness by a Judge is one which should be exercised with great care regard being had to the interest of justice and the desirability of remaining an impartial arbiter between the parties …”

Therefore the discretion is not exercised lightly or as a matter of routine. A party who seeks to have a witness recalled has an enormous burden to discharge before the Judge will be in a position to exercise his discretion one way or the other. See Willollghby v. IMB. (supra) where the Supreme Court per Oputa, J.S.C. said:

“…… a party applying to recall a witness must supply the trial Judge with sufficient facts relating to why he wants the witness recalled and what he intends to put to the witness. It is an these facts that the trial Judge will decide on whether or not the justice of the case obliges him to exercise his discretion one way or the other.”

It should be clearly understood that the exercise of the power to recall a witness is not at large. It is used to assist the court in arriving at the truth of matters under investigation before it. In Omoreghe v. Lawani (supra) the Supreme Court per Coker, J.S.C. said:

“It is ….. a very important power to be used by a court in arriving at the truth of matters under investigation before it. And this important principle of evidence so far as concerns civil cases, has never been doubted.”

It is for this reason that I do not think that the reason why the defendant was not in court on the day the witnesses sought to be recalled gave evidence is very helpful to the matter on appeal. Rather, what is of importance is the purpose which the recall of the witnesses would serve in resolving the dispute before the court. The exercise of the court’s power in favour of the defendant will not serve any useful purpose for obvious reasons. Having had the benefit of examining the evidence laid before the lower court by the plaintiff, the defendant ought to have disclosed in its affidavit evidence the adverse consequences its inability to cross-examine the plaintiff’s witnesses would occasion to its case. The defendant’s two affidavits say nothing on why the defendant wants the witnesses of the plaintiff to be recalled or the sort of questions the defendant intends to put to the witnesses.

It must be stated clearly here that the plaintiff’s claim in the court below is rooted in a written contract the terms of which neither of the parties has the right to contradict by way of oral evidence. Having regard to the facts of this case, I think the defendant has a duty to bring to the fore the particular aspects of the evidence led which necessitated its application. This duty the defendant failed to discharge.

One last point, deposing to facts on the attendant adverse consequences as to the plaintiff would, in my view, have amounted to be labouring what was already known to the trial court. First, it was clear to the court that the case required urgent treatment since it was an admiralty matter. It was also known to the court that the vessel involved in this case had been under arrest since 23rd March 1994 just as the fact that the defendant had failed to fulfil the conditions for the release of the vessel from detention as ordered on 24th June 1994 on the application of the defendant. It was equally in evidence before the court that the plaintiff had been responsible for the upkeep of the vessel. Evidence of all these and more disadvantages had already been adduced by the plaintiff through the witnesses sought to be recalled.

I now came to the issue of fair hearing. So much has been said about this by the defendant in its brief of argument. It is my firm view that this issue did not arise in this case. The lack of cross-examination in the present case does not constitute denial of fair hearing for very obvious reasons. The defendant was provided opportunity through his counsel to cross-examine but he failed to avail himself of the opportunity given. The defendant cannot now complain. It is an elementary rule of practice that parties act through their counsel. In the case of Kuusu v. Udom (1990) 1 NWLR (Pt. 127) 421 the Supreme Court said:

“…… fair hearing is not a technical doctrine. Rather it is a rule of substance. Whenever it is raised against a hearing, the decisive question is always whether, having regard to all the circumstances of the particular case, the hearing was conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties to the proceedings.”

Earlier on, the Supreme Court held:

“I agree with the Court of Appeal that the fact that witnesses were not cross-examined per se will not constitute non-compliance with rules of natural justice. As long as the parties were heard and there was opportunity to cross-examine, the failure of a party to take advantage of the opportunity does not in my opinion constitute noncompliance with the rules of natural justice.”

It must be observed that the interest of justice does not mean just the interest of the applicant. It also includes the interest of the respondent and the court. See NPA v. Construzioni Gererali (1974) 12 SC 81.

As regards the negligence of counsel it is instructive to note that the alterego of the defendant, Mr. Dotun Lofinmakin in his affidavit in support of the defendant’s motion deposed as follows: ”

5. That Mr. Leyimu further informed me that he would require my presence in court as representative of the defendant only when it is the turn of the defendant to give evidence so as to allow me to be able to carry out the crowded day to day administration (sic) duties of the defendant in Lagos.
6. That Mr. Leyimu further informed me that it would not be necessary for me and indeed any other official of the defendant to be present in court unless he so requires or the court so orders.”

The picture created is very clear. The defendant was aware that the trial was about to begin or had begun, It kept away from court on the advice of its counsel. The defendant’s complaint should be that it did not receive a feedback on the court proceedings, not that it was not aware that the trial had begun. The absence from court of any of its officers in a case of this magnitude smacks of carelessness and indifference on the part of the defendant.

In the circumstances of this case I am unable to see any evidence before the trial court which suggests negligence on the part of counsel. The defendant was sued. It engaged a counsel. Its duty did not end there. It also had a duty to appoint one of its officers to represent it in court throughout the hearing. It did not discharge this duty on the excuse that it was advised by its counsel not to attend, In my view it cannot now begin to sulk and complain as if the trial court had no right to do its duty. Because that is what it did its duty. There must be a line drawn between the fault of a party’s counsel and the fault of the party himself. The case of Nigeria Hotels v. Nzekwe (1990) 5 NWLR (Pt. 149) 187 at 195 relied upon by the defendant is not applicable to the facts of the present case. In that case the 1st respondent filed an ex parte application at the High Court, Jos for an order to attach the money accruing from the appellant (garnishee) to the 2nd respondent (judgment debtor) in order to satisfy a judgment debt and costs therein in a suit in which the 1st respondent had obtained judgment against the 2nd respondent in the tune of N63,751.10. In a supporting affidavit filed by the 1st respondent it was averred that the appellant was indebted to the judgment debtor in the sum of N200.000.00.

On 24th June, 1987, the trial court heard the 1st respondent alone and granted the order as prayed. The appellant was thereafter ordered to appear in court on 6/7/87 to show cause as to why an order should not be made upon it for the payment to the 1st respondent of the debt due and owing to him. On 6/7/87, the appellant, though represented by counsel, was absent. On 20/7/87, when the case further came up, both the appellant and its counsel were absent. The trial Judge thereupon, and on the application of the 1st respondent, granted leave to the latter to levy execution on the appellant’s property in satisfaction of the said judgment debt and costs.

On 10/8/87, the appellant brought an application to set aside the ruling of 24/6/87 granting the ex parte application for the order of the garnishee and the subsequent order of 20/7/87 granting leave to the 1st respondent to attach the appellant’s property. The application to set aside the ruling and order aforesaid was however dismissed. Dissatisfied, the appellant appealed to this court. It was in these circumstances that this court allowed the appeal.

In the light of the foregoing, this appeal fails and is dismissed. The ruling of Sanyaolu, J., is hereby affirmed. The plaintiff/respondent is entitled to costs of this appeal which I assess at N3.000.00 against the defendant/appellant.

---

Other Citations: (1997)LCN/0292(CA)

Global Medical Care (Uk) Ltd. & Ors. V. Medicair (West Africa) Ltd. & Anor. (1997)(1997)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A. 

On 14th day of May, 1997, an aircraft – an air ambulance which was to be used to carry a patient with kidney trouble was arrested by the order of the court below made ex parte. This court on an application, granted interim relief by way of lifting the arrest order temporarily pending the determination of the motion on notice filed on 21/5/97. The motion of 21/5/95 seeks for a prayer vacating the arrest of the Aircraft with Reg. No. N155AV now under arrest at the Domestic wing of Murtala Mohammed Airport, Ikeja.

The pertinent order of the court below which bothered the applicants reads as follows:

1. That the defendants, whether by themselves, their servants, agents privies or otherwise whatsoever from removing from the jurisdiction, disposing of and/or dealing with their assets within the jurisdiction of this honourable court and in particular that aircraft model/type lock head jetstar 73 with registration/callsign No. N155AV which bears the name of the first defendant and is said to be operated by the second defendant and which said aircraft is presently parked and located at the General Aviation Terminal (Terminal 2) of the Domestic Wing of Murtala Mohammed Airport in Ikeja, Lagos State until determination of this suit or further orders of this honourable court.

In their affidavit of urgency the applicants averred as follows in paragraphs 5, 6 and 11:

(5) That at about 10.30 a.m. on 19/5/97 a patient with acute kidney stone problem who needed to be evacuated abroad could not be evacuated owing to the pending court order and which order I have been informed by Dr. Braithwaite (whom I believe) is a nullity.

Now annexed as exhibit OG5 is a copy of the form (First Call Sheet) ruled by the patient in question and his family.

(6) That this urgent instance was brought to the attention of the court below on 19/5/97 but the court below refused to attach due weight to the said urgency.

(7) That the continuous grounding of the air ambulance makes the difference between life and death to make the difference between life and death to many terminally ill persons who urgently need to be evacuated abroad.

At paragraph 14 of the main affidavit in support, the deponent averred thus:

14. That the air ambulance under arrest is a foreign registered aircraft used solely and exclusively for the evacuation to overseas of seriously ill patients in crisis and terminally ill patients. Now annexed as exhibit is a copy of the certificate of registration of the said aircraft.

From the certificate one can easily discover that the aircraft was registered in US by the Department of Transportation – Federal Aviation Administration. In an earlier motion in the court below when the applicant made a bid to have the aircraft released (which application was turned down), the applicants had deposed thus at paragraph 13 of the affidavit in support:

Paragraph 13:

“That there is no sustainable claim whatsoever against the air ambulance or its lawful owners nor against the 2nd, 3rd, 4th, 5th and 6th defendants in the process filed by the plaintiffs to justify a continued injunction on the aircraft”.

The argument of the applicants is that the order of arrest was pervasive in that its language of operation was couched in the widest possible terms. The order of arrest was to continue until the final determination of the suit. The applicant felt very much ill at ease at the seeming unjustifiable way a mere interim order was converted at the whims of the court to an interlocutory order. Ex parte order by its very nature is interim in nature meant to last for a very short time.

Onagbola in reply stated that the applicants are now trying to convince the court of the true owners of the aircraft a matter they failed to raise in the court below. In their counter affidavit the Respondents exhibited the proceedings that took place in the court below presided by Gumel, J. It is to be observed from the proceedings of 16/5/97 the presiding Judge even then refused to lift the order of arrest which he surprisingly described in that proceeding as an “interim order”. There are different kinds of injunctions. They are ex-parte interim injunction, interlocutory injunction, perpetual injunction, mareva injunction and Anton Piller injunctions. Apart from interlocutory injunction the rest have limited application and are conceived of being of extremely short duration. To my mind the objectionable parts of the order made ex-parte are:

(i) the length of time the interim order was meant to last, and

(ii) the choice of the Res

A clear construction impresses me that it was intended to block or foreclose any attempt to have it set aside and that it should so remain detained under arrest orders until the case is finally disposed of.

In our characteristically slow pace of adjudication no one could state with any certainly how long the process of trial will take before the final determination. Within this period the aircraft would remain at the tarmac. Might some of the parts not get rotten and fall in a state of disrepair and in all probability the respondents would have done themselves an incredible amount of harm by literally destroying the only substantive object that they could lay hands upon if they should succeed in the action. The answer to the seizure of the aircraft by the averment in para 24 of the counter affidavit does not provide a veritable reason for allowing the seized aircraft to be left unused.

In para 24 referred to the respondents are saying that in the brochure of the 1st appellant it claimed it could provide a back-up aircraft at any time. I believe this is being taken out of its context. The reference to back-up aircraft is in case of any eventuality such as the aircraft being out of condition. The brochure states:

“Our associate office in Johannesburg provides … the facility to charter back-up aircraft and provide medical teams and equipment …”

It is important to make a clear distinction between an interim and interlocutory injunction. Interim injunction is a temporary preservative order usually limited to such time as the motion on notice in same subject matter is determined. On the other hand, interlocutory injunction is a prohibitive order the duration of which by its singular nature may be conceived to last till the determination of the matter in the court seised with the proceedings. In Kotoye v C.B.N. (1989) 1 NWLR (Pt. 98) 419 at 450, Nnaemeka Agu, J.S.C. stated as follows on the dangers of ex-parte orders;

“Above all, this Court ought to take notice of the numerous cases of abuse of ex-parte injunctions that have come up in recent times. The operation of a bank has halted on an ex parte order of injunction, granted to a person who had been removed as a director of the bank. Installation ceremonies of chiefs have been halted in the same way even though the dispute had been dragging on for years. The convocation ceremony of University has been halted on an ex parte application by two students who failed their examinations. As the courts cannot prevent such applicants from exercising their constitutional rights by stopping such applications, they can, and ought at least see that justice is done to the victims of such ex parte applications and orders by ensuring that the applicant fully undertakes to pay any damages that may be occasioned by any such order which may turn frivolous or improper in the end.”

In that same judgment, Karibi-Whyte, J.S.C. said at page 465:

“Thus an ex parte application is one made and could be granted without notice to the party affected by the order sought in the application. An application for injunction made after the commencement of the suit and before judgment is undoubtedly interlocutory and comes within the purview of order XXXIII. Such application can be made ex parte. Although an ex parte application for injunction can be made, the court may refuse to make the order sought where the interest of justice demands that the other party to be affected ought to be put on notice, or it will be contrary to the general provisions of the law or inconsistent with the interest of justice.”

See also 7up Bottling Co. Ltd. v Abiola and Sons (Nig.) Ltd. (1989) 3 NWLR (Pt.83) page 257. Ex parte order is made for a short duration and in making it the court should exercise great care in not granting the applicant a favour that would turn out to be a great injustice to the respondent. That is why the order is short being interim in nature. In Beese v. Woodhouse (1970) 1 A.E.R. 769 at 773, it was held that where an interim injunction is sought, it is a question for the court to consider what is the right order to make on the balance of convenience and where the major risk of damages lies and in particular whether there would be any irreparable damage.

It is difficult for this court to comment seriously on grounds 2 and 4 of the application as we are not afforded the benefit of the Statement of Claim. It must be stated that when an ex parte application is couched in a widely expressed language that it becomes all embracing, prudence and justice of the case demand that the court in approaching such a matter should be very cautious in granting the prayer sought. The court must bear in mind that the other party is not in court to be heard and it must balance the need of the applicant with the provision of section 33 of the Constitution of the Republic to see that true unadulterated justice is done. There are in my view certain steps that could have been taken by the applicant to hold the respondent in tow such as asking them to deposit a security but then such an application will of necessity be by motion on notice. To my mind the language of the arrest order made by the court is too wide. No consideration from human point of view (considering the health of the patient with kidney trouble and other like patients) was given by the court in making the order. The order appears to me to be too harsh.

Accordingly the order of arrest made is wrong as the court below converted an interim order sought for into an interlocutory one. The order of arrest is set aside.

The aircraft is hereby released. Costs of N2.000.00 to the applicant.

---

Other Citations: (1997)LCN/0291(CA)

Olayiwola Samuel V. Mr. Adewale Adedeji (1997)

LawGlobal-Hub Lead Judgment Report

AYOOLA, J.C.A. 

This appeal is from the decision of the High Court of Lagos State whereby the learned judge (Ilori J, as he then was) entered judgment for the plaintiff, and granted him a declaration of entitlement to the issuance of a statutory certificate of occupancy in respect of land situate, lying and being at 5A Onipede Street, Surulere, in Lagos State (hereinafter referred to as “the land”); awarded him general damages for trespass and restrained the defendant, from going on the land. The appellant and the respondent in this appeal were respectively the defendant and the plaintiff at the trial. They are now referred in this judgment as plaintiff and defendant.

The background facts are that the plaintiff bought the land from the Onitire family sometime in 1966 and obtained a deed of conveyance dated 29th April, 1966 from that family. It transpired that the Daniel family was adjudged in a series of actions culminating in a decision of the Supreme Court to be owners of the land. It thus became obvious that the title obtained from the Onitire family by the respondent had become worthless. The plaintiff’s case at the High Court was that consequent upon the court declaring the Daniel family to be the owners of the land, he approached that family and repurchased from that family the land on which he had in 1967 commenced a building which he had completed up to the ground floor in 1979. The action which gave rise to this appeal was brought about by the entry of the defendant on the land. The plaintiff alleged that the defendant had forcibly taken over the land and the building thereon.

The defendant’s case at the trial in summary, was that he purchased the land from the Daniel family in April 1975 and on payment of the purchase price was put in possession thereof in 1975. He alleged that he completed the ground floor in May 1976 and moved into the house in June 1976.

Rightly, the learned judge identified as the central issue in the case, the question to whom did the Daniel family sell the land in dispute?; and as subsidiary issues, the question of possession of and erection of building on the land, there being a conflict of evidence on those subsidiary questions. After a thorough and painstaking review of the evidence he made finding of fact which can be summarised thus: The plaintiff was one of the persons who bought land from the Onitire family and obtained a conveyance from that family. His neighbour, one Alhaji Onipede also bought two plots from the same family. Those plots were adjacent to the plaintiff’s plot. The plaintiff took possession of the land in 1966. At that time the land was vacant and bushy. The plaintiff prepared a building plan for the erection of a one storey house on the land. That plan was approved in August 1977. The house designed by the plaintiff for the first floor in the said plan was identical in all respects with the accommodation shown by evidence of both the plaintiff and the defendant to be on the first floor of the house now in dispute. The plaintiff completed the building up to first floor in 1979. After defeat of the Onitire family in their claim of title to the land the plaintiff among others who had bought plots of land from Onitire family negotiated for and repurchased the land in dispute through the chambers of Akin Sikuade, Solicitors, sometime in 1978. At the material time and up till the time of her death in 1985, one Madam Serafena Daniel was the head of the Daniel family.

The learned judge rejected the defendant’s evidence that the land was virgin land in 1975. He found that the defendant took over the plaintiff’s land as at that time and the existing structure thereon which he started to build on despite warnings and entreaties to leave the plaintiff’s development alone. Defendant’s entry on the land was found to have taken place sometime in 1986. The learned judge further held in regard to the title relied on by the defendant that Omotayo Daniel who purportedly sold the land to him was at the material time not the head of the Daniel family and that even if he had been so found to be, the sale would still have been void ab initio because Omotayo Daniel did not purport to sell the land as representative of the Daniel family. On these findings it was manifest that the defendant was without title whatsoever.

Consequent upon these findings, the learned judge filed that the plaintiff being in exclusive possession of the land before the entry thereon by the defendant, was entitled to succeed in trespass. Reliance was placed, rightly in my view, on the case of Amakor v. Obiefuna (1974) 1 All NLR (Pt.1) 119. He also held that the plaintiff having succeeded on the issue of trespass was entitled to an injunction against the defendant. As to the declaration of entitlement to issuance of a certificate of occupancy granted to the plaintiff by the judge, he reasoned thus:-

“….where a person is in possession of developed land over a long period of time and where the true owner of the land has granted a right to him to remain in possession the property will be sufficiently vested in him for the purpose of the Land Use Act.”

In the result, the learned judge gave the decision earlier stated which the defendant, dissatisfied with, has now appealed from.

On this appeal, the defendant had formulated seven issues for determination, but it is evident that the principal questions for determination are whether the learned trial judge had properly evaluated the evidence and had properly directed himself on the burden of proof.

In summary, the argument advanced by counsel for the defendant is that:

(1) Since the plaintiff had no document, such as purchase receipt or deed of conveyance from the Daniel family to back his claim the learned judge, notwithstanding the evidence of Mr. Sikuade in regard to the sale should not have held the plaintiff to be owner.

(2) There was no proof of purchase of land from the Onitire family.

(3) There was no evidence of who put the plaintiff in possession of the land.

(4) There were inconsistencies in the pleadings and in the evidence as to the number of rooms, shops and parlours in the building on the land and the court should have held that the plaintiff and his witnesses had lied in their evidence.

(5) The onus is on the plaintiff to show better title against the defendant who was at the time of the institution of the action in possession of the land even if his possession had been that of a trespasser.

(6) The judge should not have held that the dealings by Omotayo Daniel in respect of the land was in his personal capacity.

(7) Omotayo Daniel’s headships of the family was unchallenged and could not be challenged by the claim that his mother was head of the family.

(8) Finally, the plaintiff’s case ought to have failed because he did not call a surveyor to testify that the land on which he built was the one he allegedly bought from the Onitire family.

The plaintiff’s counsel met these arguments with somewhat meticulous care. It is not necessary to rehash the argument proferred by the respondent.

In my opinion, it is well to bear in mind that the learned trial judge had the advantage of seeing the witnesses who testified, whereas this court did not have that advantage. It is trite that where the issues of fact turn on the credibility of witnesses the appellate court should approach such findings of fact by the lower court with deference unless such findings are patently perverse or could evidently not have been a result of a proper evaluation of the evidence. The findings by the learned trial judge in this case that the plaintiff took possessing of the land in 1966 and built up to ground floor level a house thereon between 1966 and 1979, and that the plaintiff negotiated and repurchased the land from the Daniel family through the chambers of Akin Sikuade, solicitors are such findings. So also is the finding that the defendant entered the land in 1980 and proceeded to build on the structure already erected there by the plaintiff.

These findings are amply supported by the evidence which the learned trial judge was prepared to accept. It will be tedious to rehash such evidence, but it is pertinent to mention the evidence of the plaintiff himself who gave evidence of most of the facts found by the learned judge and whose evidence was in material particulars supported by that of his witnesses. His evidence of the purchase of the land from the Onitire family was supported by the deed of conveyance – Exhibit PW1-A. His evidence of the erection of a building thereon from 1867 to 1979 was substantially supported by that of his second witness. Mr. Odelola and the artisans who worked on the building, namely the 5th and 6th plaintiff witnesses respectively Kadiri and Aremu and his neighbour the 4th plaintiff witness. Furthermore, several plaintiff witnesses testified to the repurchase of the land from the Daniel family. Principal of these is Mr. Sikuade, the 3rd plaintiff witness, whose evidence the learned judge accepted and whose credibility be justifiably acknowledged having regard to the evidence of the defendant’s witness, Omotayo Daniel, who testified that Mr. Sikuade, “continued to act in all the cases after my father’s death. I changed from him because of this case.” Concerning the trespassers on the Daniel family land he said:-

“They were paying for their land, during the lifetime of my mother, she said, they – the trespasser should be paying to Akin Sikuade. I took them to Akin Sikuade myself. In all these matters of sale of land and payment by trespassers Akin Sikuade was acting for us.”

As rightly observed by the learned judge, the inference from the above passage is that up till 1981 Mr. Sikuade was empowered by the family to act on their behalf as stated in the evidence quoted above.

The suggestion in the argument advanced on behalf of the defendant on this appeal that the learned judge should not have believed the evidence of the plaintiff and his witnesses because of alleged contradictions in their evidence is one without substance. The only alleged inconsistency fastened on was the alleged contradiction in the descriptions of the apartments in the building on the land. It would have been surprising if the witnesses- artisans and neighbours – had been able to describe the nature of the apartments in the building terms. What is significant is that they are all agreed that there were eight apartments in the building. Whether an apartment was described by one witness as a parlour while it was described as a room by another is trivial and immaterial. Contradiction which would cast doubt on the credibility of witnesses must be to a material fact. Similarly the difference in the evidence of the plaintiff and his 6th plaintiff witness as to when the building was completed was not irreconcilable and was in any event not a material contradiction even if it can be described as a contradiction.

It will be inexpedient now to rehash the evidence which the learned trial judge had considered with meticulous care. It suffices to say that nothing has been usefully urged in this appeal to fault the findings of fact which he had made.

While not contesting the reasoning of the learned judge as to the meaning of “vest” in section 34(2) of the Land Use Act which was the basis on which he had granted a declaration of entitlement to a certificate of occupancy to the plaintiff, counsel on behalf of the defendant proceeded to argue on this appeal that there being no document of title or document in writing produced by the plaintiff, the plaintiff had not proved any title. This argument is in my judgment misconceived. On the evidence accepted by the judge, as between the plaintiff and the Daniel family, the plaintiff was as much in the position of a purchaser in possession of the title. Where a possessor of land negotiates with the true owner of the land and the parties have agreed on the sale of the land to the possessor and have thus agreed not to disturb his possession of the land as between the possessor of the land and the true owner, the possessor is in practical terms the owner of the land. It is when the true owner has transferred legal interest in the land to a third party that the putative title of the possessor may be in jeopardy. In this case, on the finding made by the trial judge that the defendant had no title whatsoever, the grant of a declaration to the plaintiff as contained in the judgment of the High Court cannot be faulted.

However, the defendant contends that the judgment of the High Court should not stand because the learned judge had misplaced the burden of proving title. In view of the clear findings made by the learned judge it cannot be doubted that the plaintiff had proved a right to remain in possession of the land at the time when the defendant came thereon. His position was even thus stronger than that envisaged in the passage from the judgment in the case of Amakor v. Obiefuna (1974) 1 All NLR (Pt.1) 119, 126 cited by the learned judge, where Fatayi-Williams JSC (as he then was) said:-

“It is trite law that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers except a person who could establish a better title. Therefore anyone other than the true owner, who disturbs his possession of the land can be sued in trespass and in such an action it is no answer for the defendant to show. (as the defendant/respondent had sought to show in paragraph 7 of his statement of defence, although he gave no evidence in support of this averment), that the title to the land is in another person. To resist the plaintiffs claim, a defendant must show either that he is the one in actual possession or that he has a right to possession.”

In this case the plaintiff could not at the time of the entry on the land by the defendant be described as a trespasser as he had regularized his possession of the land. It is instructive to note that the passage in the judgment in Egwuh v. Ogunkitan (SC.529/66 decided on 28th February, 1969 relied on by the counsel for the defendant was referred to by Fatayi-Williams, J.S.C. in the Amakor case Notwithstanding what was said in that case Fatayi-Williams JSC in the Amakor case (ibid) at p.127 said:-

“…an original trespasser, as against everyone but the true owner, can, if he is in exclusive possession of the land maintain an action in trespass against a later trespasser whose possession, whether taken by force or not, would be clearly adverse to that of the original trespasser.”

Where an exclusive possession of land is disturbed by an entry on the land the cause of action in trespass arises from such entry. It is for the person who has entered the land to justify such entry. He can do so by showing that he is the owner or that he has entered by the authority of the owner. The responsibility of the person entering the land to show that he is not a trespasser does not disappear merely because he has persisted and continued his trespass. There is no substance in the submission that the learned judge had misplaced the burden of proof.

On the evidence of Omotayo Daniel from whom the defendant claimed to have bought the land, it is manifest that at the material time Omotayo Daniel’s mother was the head of the Daniel family. Although Omotayo Daniel in his evidence in chief claimed to be “head of the family as regards the management of family property” his admission under cross-examination that his mother was the head of family and his further evidence that his mother in her life time gave directions as to how payment by “trespasser” should be made, exposed the fallacy of his claim to be the head of family. The notion that headships of family could be split – one for the purpose of management of land and another for other purposes is to say the least outrageous. The issue as to whether Madam Daniel could or could not under customary law be head of family had not been raised in the court below and is not an issue which can now be taken on this appeal. It is a question of custom which has to be proved as a fact after the applicable customary law would have been ascertained. It is not right to assume that the applicable law to determine the headship of Daniel family is the customary law of Lagos.

Omotayo Daniel from the receipts (Exh. DW1A, 8B) tendered in evidence by the defendant purported to be dealing with the land as his property. For this reason also the defendant’s claim to title to the land is also faulty. Whichever way the matter is looked at, the defendant was purely a trespasser without a title or right to interfere with the plaintiff’s possession of the land.

One final point, the argument that the plaintiff should have called a surveyor to say whether or not the land he built upon was the one he bought from the Onitire family is to say the least, ludicrous. There was ample evidence on record to show that it was and there was no need for a surveyor to testify to that fact.

I feel no hesitation in coming to the conclusion that the conclusion of fact and law arrived at by Ilori J, (as he then was) after a careful consideration of the evidence and of the applicable legal principles, cannot be faulted.

In the result, this appeal is without merit and I would dismiss it.

I award N5000 as costs of the appeal to the plaintiff.

---

Other Citations: (1997)LCN/0290(CA)

Global Medical Care (Uk) Ltd. & Ors. V. Medicair (West Africa) Ltd. & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A. 

On 14th day of May, 1997, an aircraft – an air ambulance which was to be used to carry a patient with kidney trouble was arrested by the order of the court below made ex parte. This court on an application, granted interim relief by way of lifting the arrest order temporarily pending the determination of the motion on notice filed on 21/5/97. The motion of 21/5/95 seeks for a prayer vacating the arrest of the Aircraft with Reg. No. N155AV now under arrest at the Domestic wing of Murtala Mohammed Airport, Ikeja.

The pertinent order of the court below which bothered the applicants reads as follows:

1. That the defendants, whether by themselves, their servants, agents privies or otherwise whatsoever from removing from the jurisdiction, disposing of and/or dealing with their assets within the jurisdiction of this honourable court and in particular that aircraft model/type lock head jetstar 73 with registration/callsign No. N155AV which bears the name of the first defendant and is said to be operated by the second defendant and which said aircraft is presently parked and located at the General Aviation Terminal (Terminal 2) of the Domestic Wing of Murtala Mohammed Airport in Ikeja, Lagos State until determination of this suit or further orders of this honourable court.

In their affidavit of urgency the applicants averred as follows in paragraphs 5, 6 and 11:

(5) That at about 10.30 a.m. on 19/5/97 a patient with acute kidney stone problem who needed to be evacuated abroad could not be evacuated owing to the pending court order and which order I have been informed by Dr. Braithwaite (whom I believe) is a nullity.

Now annexed as exhibit OG5 is a copy of the form (First Call Sheet) ruled by the patient in question and his family.

(6) That this urgent instance was brought to the attention of the court below on 19/5/97 but the court below refused to attach due weight to the said urgency.

(7) That the continuous grounding of the air ambulance makes the difference between life and death to make the difference between life and death to many terminally ill persons who urgently need to be evacuated abroad.

At paragraph 14 of the main affidavit in support, the deponent averred thus:

14. That the air ambulance under arrest is a foreign registered aircraft used solely and exclusively for the evacuation to overseas of seriously ill patients in crisis and terminally ill patients. Now annexed as exhibit is a copy of the certificate of registration of the said aircraft.

From the certificate one can easily discover that the aircraft was registered in US by the Department of Transportation – Federal Aviation Administration. In an earlier motion in the court below when the applicant made a bid to have the aircraft released (which application was turned down), the applicants had deposed thus at paragraph 13 of the affidavit in support:

Paragraph 13:

“That there is no sustainable claim whatsoever against the air ambulance or its lawful owners nor against the 2nd, 3rd, 4th, 5th and 6th defendants in the process filed by the plaintiffs to justify a continued injunction on the aircraft”.

The argument of the applicants is that the order of arrest was pervasive in that its language of operation was couched in the widest possible terms. The order of arrest was to continue until the final determination of the suit. The applicant felt very much ill at ease at the seeming unjustifiable way a mere interim order was converted at the whims of the court to an interlocutory order. Ex parte order by its very nature is interim in nature meant to last for a very short time.

Onagbola in reply stated that the applicants are now trying to convince the court of the true owners of the aircraft a matter they failed to raise in the court below. In their counter affidavit the Respondents exhibited the proceedings that took place in the court below presided by Gumel, J. It is to be observed from the proceedings of 16/5/97 the presiding Judge even then refused to lift the order of arrest which he surprisingly described in that proceeding as an “interim order”. There are different kinds of injunctions. They are ex-parte interim injunction, interlocutory injunction, perpetual injunction, mareva injunction and Anton Piller injunctions. Apart from interlocutory injunction the rest have limited application and are conceived of being of extremely short duration. To my mind the objectionable parts of the order made ex-parte are:

(i) the length of time the interim order was meant to last, and

(ii) the choice of the Res

A clear construction impresses me that it was intended to block or foreclose any attempt to have it set aside and that it should so remain detained under arrest orders until the case is finally disposed of.

In our characteristically slow pace of adjudication no one could state with any certainly how long the process of trial will take before the final determination. Within this period the aircraft would remain at the tarmac. Might some of the parts not get rotten and fall in a state of disrepair and in all probability the respondents would have done themselves an incredible amount of harm by literally destroying the only substantive object that they could lay hands upon if they should succeed in the action. The answer to the seizure of the aircraft by the averment in para 24 of the counter affidavit does not provide a veritable reason for allowing the seized aircraft to be left unused.

In para 24 referred to the respondents are saying that in the brochure of the 1st appellant it claimed it could provide a back-up aircraft at any time. I believe this is being taken out of its context. The reference to back-up aircraft is in case of any eventuality such as the aircraft being out of condition. The brochure states:

“Our associate office in Johannesburg provides … the facility to charter back-up aircraft and provide medical teams and equipment …”

It is important to make a clear distinction between an interim and interlocutory injunction. Interim injunction is a temporary preservative order usually limited to such time as the motion on notice in same subject matter is determined. On the other hand, interlocutory injunction is a prohibitive order the duration of which by its singular nature may be conceived to last till the determination of the matter in the court seised with the proceedings. In Kotoye v C.B.N. (1989) 1 NWLR (Pt. 98) 419 at 450, Nnaemeka Agu, J.S.C. stated as follows on the dangers of ex-parte orders;

“Above all, this Court ought to take notice of the numerous cases of abuse of ex-parte injunctions that have come up in recent times. The operation of a bank has halted on an ex parte order of injunction, granted to a person who had been removed as a director of the bank. Installation ceremonies of chiefs have been halted in the same way even though the dispute had been dragging on for years. The convocation ceremony of University has been halted on an ex parte application by two students who failed their examinations. As the courts cannot prevent such applicants from exercising their constitutional rights by stopping such applications, they can, and ought at least see that justice is done to the victims of such ex parte applications and orders by ensuring that the applicant fully undertakes to pay any damages that may be occasioned by any such order which may turn frivolous or improper in the end.”

In that same judgment, Karibi-Whyte, J.S.C. said at page 465:

“Thus an ex parte application is one made and could be granted without notice to the party affected by the order sought in the application. An application for injunction made after the commencement of the suit and before judgment is undoubtedly interlocutory and comes within the purview of order XXXIII. Such application can be made ex parte. Although an ex parte application for injunction can be made, the court may refuse to make the order sought where the interest of justice demands that the other party to be affected ought to be put on notice, or it will be contrary to the general provisions of the law or inconsistent with the interest of justice.”

See also 7up Bottling Co. Ltd. v Abiola and Sons (Nig.) Ltd. (1989) 3 NWLR (Pt.83) page 257. Ex parte order is made for a short duration and in making it the court should exercise great care in not granting the applicant a favour that would turn out to be a great injustice to the respondent. That is why the order is short being interim in nature. In Beese v. Woodhouse (1970) 1 A.E.R. 769 at 773, it was held that where an interim injunction is sought, it is a question for the court to consider what is the right order to make on the balance of convenience and where the major risk of damages lies and in particular whether there would be any irreparable damage.

It is difficult for this court to comment seriously on grounds 2 and 4 of the application as we are not afforded the benefit of the Statement of Claim. It must be stated that when an ex parte application is couched in a widely expressed language that it becomes all embracing, prudence and justice of the case demand that the court in approaching such a matter should be very cautious in granting the prayer sought. The court must bear in mind that the other party is not in court to be heard and it must balance the need of the applicant with the provision of section 33 of the Constitution of the Republic to see that true unadulterated justice is done. There are in my view certain steps that could have been taken by the applicant to hold the respondent in tow such as asking them to deposit a security but then such an application will of necessity be by motion on notice. To my mind the language of the arrest order made by the court is too wide. No consideration from human point of view (considering the health of the patient with kidney trouble and other like patients) was given by the court in making the order. The order appears to me to be too harsh.

Accordingly the order of arrest made is wrong as the court below converted an interim order sought for into an interlocutory one. The order of arrest is set aside.

The aircraft is hereby released. Costs of N2.000.00 to the applicant.

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Other Citations: (1997)LCN/0289(CA)