Ornguze Alom V. Peter Amenger (1997)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

T

he appellant was the plaintiff before the Grade I Area Court of Tombo sitting at Buruku, Benue State. He claimed against the respondent as the defendant the ownership of a farmland at Mbaya Tombo and also for an injunction. Parties are hereinafter referred to as ‘plaintiff’ and’ defendant’ which is the same description they bore before the trial court.

The defendant pleaded not liable to the claim of the plaintiff. He claimed that the farmland in dispute was his own. The parties testified and called their witnesses. The trial court visited the land in dispute took further evidence from ‘elders’. On 20/5/87, it gave its judgment wherein plaintiff’s case was dismissed.

The plaintiff brought an appeal against the judgment on only one ground of appeal which reads:-

‘The decision of the trial Area Court is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence adduced before it.”

On 22 February, 1989, the Benue State High Court (coram: Ogebe and Ogbole JJ) in its appellate jurisdiction, sitting at Gboko heard the appeal. It gave its judgment immediately after hearing the appeal on 22/2/89. The judgment is brief. I reproduce it in full:

“The appellant sued the respondent in the Grade 1 Area Court Buruku claiming a piece of land lost. (sic) Against that decision the appellant has appealed on, the general ground and the learned counsel for the appellant has been at pains to show that the decision is unreasonable.

We have read the trial court’s record and we do not need to listen to respondent’s counsel. Nothing has been shown to cause us to disturb the decision of the trial court. It is our view that the judgment of the trial court has not been shown to be perverse, we have no business interfering with it. We see no merit whatsoever in this appeal and it is hereby dismissed.”

Against the above judgment of the lower court, the plaintiff has brought a further appeal to this court on four grounds of appeal. The respondent has filed a notice of preliminary objection challenging the competence of all the grounds of appeal. It is therefore necessary that I re-produce in full the grounds of appeal.

They read:

GROUNDS OF APPEAL

1. The decision is against the weight of evidence
2. The lower court misdirected itself in law and on the facts in upholding the decision of the trial Area Court which was based on materially conflicting pieces of evidence.

PARTICULARS OF MISDIRECTION BOTH IN LAW AND ON THE FACTS

(a) The respondent as defendant in the court of trial swore that “…where I erected a house is an old settlement of one Anakyo the same sub-kindred with me ..” while at the locus in quo he stated that “The old settlement shown by plaintiff as being that of Akper Angwe belongs to my sister named Akaahembe and that’s why I erected a house there also ..” where plaintiff is currently erecting a house is the old settlement of my consanguine brother named Awaikyo. The place I built a house in the south belongs to my consanguine brother’s old settlement – Emberga.”

(b) The respondent stated that he was from Mbatee sub-kindred while 1st and 2nd elders to the respondent swore that the respondent was from MBAKUNDU sub-kindred.

(c) The Benue State Appellate High Court upheld the finding made by the trial Area Court that the land in dispute is situate in MBAKUNDU sub-kindred.

(d) DW1 for the respondent swore that one UCHAGH the consanguine brother of the respondent gave the appellant the land to farm on, while the 2nd elder to the respondent maintained that the appellant forcibly entered onto the said land to farm and build houses therein.

(e) DW2 for the respondent testified that the father of the respondent was buried at MBAGEN while 2nd elder to the respondent swore that the late father of the respondent was buried on the land in dispute.

(f) The Benue State appellate High Court still upheld that judgment of the trial Area Court that the respondent’s case was “cogent, realistic and corroborative.”

3. It was an error in law for the Benue State High Court of Appeal to have upheld the judgment of the trial Area Court in the face of the arbitrary boundary demarcation made by it regarding the disputed piece of land.

PARTICULARS OF ERROR

(a) The respondent as defendant in the court of trial stated both at the locus in quo and in the evidence for and on his behalf that the common boundary of the land in dispute is at KPANKWASE stream.

(b) The Benue State High Court of Appeal however upheld the judgment of the trial Area Court which made a finding that the respondent’s land was in the middle or centre of KPANKWASE and NGO streams.

(c) The Benue State High Court of Appeal ought not to have upheld the arbitrary demarcation of the disputed land as made by the trial Area Court.

4. The Benue State appellate High Court erred in law in upholding the decision of the trial Area Court which lacked the jurisdiction to hear and determine the claim of the appellant.

PARTICULARS OF ERROR

(a) The substance of the claim before the trial Area Court was for declaration of title or claim of title to a piece of farmland.

(b) Jurisdiction in Land Matters is governed by Section 41 of the Land Use Act, 1978 which is a Federal Law or Enactment.

(c) Section 250 of the Constitution of the Federal Republic of Nigeria, 1979 empowers only court presided over by legal practitioners from adjudicating on federal causes.

(d) The trial Area Court was empannelled in this case by Hon. D.P.A. GOJI and Hon. J.T. ORAFAGA who are not legal practitioners and this rendered the trial before it a nullity.

(e) The Benue State appellate High Court should not have upheld the judgment of the trial Area Court on grounds of incompetence in the qualification of its membership.”

In the appellant’s brief filed, the issues for determination were identified as the following:

“(a) Whether the appellate lower court was right when it confirmed the decision of the trial lower court which found for the respondent when from the evidence respondent did not prove title to the disputed land nor sought for a declaration of title to the said parcel of land.

(b) Whether there was jurisdiction in the trial lower court to adjudicate respect (sic) of land which is a federal cause?

(c) Whether the appellate lower court was right when it confirmed the demarcation of the trial lower court?”

The respondent in his brief identified one issue as arising for determination thus:

“(a) Whether the appellate lower court was right in confirming the judgment of the trial Area court having regards to the evidence before the Honourable court.”

It is necessary that the preliminary objection raised by the respondent be first considered and disposed of. It is the contention of the respondent that all the grounds of appeal raise issues of fact or of mixed law and fact and that the appellant ought first to have obtained the leave of the lower court or this court before he could raise the grounds since the lower court had taken the appeal in its appellate jurisdiction.

Further, it was argued that the 2nd ground of appeal alleges at the same time a misdirection in law and on the facts. It was submitted that a ground of appeal which alleges misdirection in law and on the facts is incompetent -Nwako v. Governor of Rivers State (1989) 2 NWLR (Pt. 104) 470 at 479; Ladoke v. Olobayo (1992) 8 NWLR (Pt. 261) 605 at 631. Counsel urged us to strike out the ground of appeal: Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285.

With respect to the 3rd and 4th grounds of appeal, it was contended that these grounds were not argued before the lower court and that they could only be argued before this court with leave. As no leave was obtained, the grounds of appeal are incompetent. The respondent, with reference to the 4th ground of appeal conceded that the issue of jurisdiction could be raised at any stage. Nevertheless, it was argued that as the issue of jurisdiction raised in this matter would necessitate the calling of fresh evidence to determine whether or not the judges of the trial court who heard the case were legal practitioners, it ought not to be entertained: Fadiora v. Gbadebo (1978) 1 LRN 97 at 108 – 109.

Appellant’s counsel did not file a reply brief in reaction to the arguments of the respondent’s counsel in support of the preliminary objection. Nor did he put up any oral arguments in opposition to respondent’s argument’s when the appeal was heard. The result is that I am to decide the issue of the competence of some of the grounds of appeal without the benefit of an input from appellant’s counsel.

The appellant, was on 6/2/90 granted leave to appeal and the time to appeal was extended by 14 days. The Notice of appeal was filed on 15/2/90. The objection that the appellant has appealed on grounds of fact or mixed law and fact would appear to be untenable. With respect to the argument that ground 2 is incompetent for the reason that it alleges at the same time a misdirection in law and on the facts, I can do no better than to refer to the views of the Supreme Court on the point. In Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 744 the Supreme Court per Nnaemeka-Agu J.S.C observed:

“Let me pause here to observe that a ground of appeal cannot be an error in law and a misdirection at the same time, as the appellant’s grounds clearly postulate. By their very nature one ground of appeal cannot be the two. For the word “misdirection” originated from the legal and constitutional right of every party to a trial by jury to have the case which he had made either in pursuit or in defence, fairly submitted to the consideration of the tribunal. (See Bray v. Ford (1895) AC 44 at p. 49). In our system in which the judge is judge and jury, a misdirection occurs when the judge misconceives the issues, whether of facts or of law, or summarizes the evidence inadequately or incorrectly. See Chidiak v. Laguda (1964) 1 NMLR 123 at p.125. He may commit a misdirection by a positive act or by non-direction. But when his error relates to his finding it cannot properly be called a misdirection: it could be an error in law.”

In the instant case, the appellant has in one and in the same ground of appeal alleged two things: (1) Misdirection in law and (2) Misdirection on the facts. A misdirection in law may occur when the judge has misapplied the law to a set of facts. This will result in injustice to the party complaining because the result would be that the true law applicable to the facts he has brought forward has not been applied to his case. Put in another way, a misdirection in law is a complaint that the judge or court has misunderstood the applicable law. A misdirection on the facts on the other hand is a complaint that the court or judge has misconstrued the true import of the facts placed before him to such an extent that it can be said that the judge has not really understood the case placed before him.

It seems to me therefore that a complaint that a judge has misdirected himself in law cannot be the same thing as a complaint that the judge has misdirected himself on the facts. One self same error cannot at the same time amount to both. An appellant who has identified two errors – one amounting to a misdirection in law and the other a misdirection on the facts – must file two separate grounds of appeal identifying with precision the errors complained of. A ground of appeal which describes the same error made by a judge as a misdirection in law and a misdirection on the facts is vague and liable to be struck out. See Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 296. Further Order 3 Rule 2(4) of the Court of Appeal Rules provide:-

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

I would and do strike out the 2nd ground of appeal as vague and disclosing no reasonable ground of appeal. The 3rd ground of appeal is a complaint that the lower court ought not to have upheld the judgment of the trial Area Court “in the face of the arbitrary boundary demarcation made by it regarding the disputed piece of land.” I observed earlier in this judgment that the plaintiff/appellant had only brought an appeal before the lower court on the omnibus ground of appeal. I also set out the said ground of appeal. It was not the appellant’s ground of appeal before the lower court that the respondent had not established the identity of the land in dispute. Indeed, the respondent could not have done so since the respondent was the defendant before the trial court, not the plaintiff, and he had not brought a counter-claim. The appellant in any case had neither sought nor obtained the leave to raise on appeal a fresh issue as to the identity of the land in dispute which had not been raised before the lower court. This court derives its jurisdiction to hear appeals from the High Court under the Constitution of Nigeria, 1979. We have no jurisdiction to hear appeals directly from a Grade 1 Area Court. Points not canvassed before the High Court cannot therefore be raised before this court except with leave. See Emaphil Ltd v. Odili (1987) 4 NWLR (Pt.67) 915 CA. Ground 3 is therefore incompetent. It is struck out.

The 4th ground of appeal is a complaint that the trial court was without jurisdiction to adjudicate on this dispute for the reason that the judges of the trial court who were not legal practitioners could not adjudicate over a federal cause.

It is my view that the ground of appeal, being a matter concerning the jurisdiction of the trial court could be raised at any stage. Whether or not the issue of jurisdiction depending on the stage at which it is raised could succeed is a matter different from saying that it could not be raised at all.

I shall now consider the appeal on the surviving issues in the light of my decision striking out the 2nd and 3rd grounds of appeal. The case of the plaintiff (appellant) before the trial court is that the land in dispute belonged to him. He testified thus:

“The disputed piece of land belongs to me because my late fathers namely, Ago Alom were tilling it to the kur road. One Shember also have same boundary and share it with my fathers. Kosho and Shember did not cross that road, likewise at the present generation, there was no interference.”

The plaintiff did not testify as to how his late fathers had come to be in possession of the land in dispute. It is clear therefore that the plaintiff, had not, before the trial court relied on the traditional history as the source of his ownership of the land in dispute. The best that could be said for plaintiff was that he relied on evidence of acts of possession and ownership of his fathers and himself on the land in dispute.

The defendant on the other hand claimed that the land in dispute belonged to him. He testified.

“I was not at home and when I returned I noticed that plaintiff has occupied my land. I then reported to the clan head and he resolved in my favour. Kpankwase stream is our usual boundary between us plaintiff. There is old settlement of my sister there, where I erected a house is an old settlement of one Anakyo the same sub-kindred with me. Mbabundu Akosen Nyambe old settlement is also there but the school has been removed.”

The defendant did not testify as to how the land in dispute become his. However, a perusal of the evidence of parties, reveals that this was a boundary dispute. The plaintiff was claiming that a particular road was the boundary between his land and the defendant’s land. The defendant on the other hand was asserting that his boundary with plaintiff’s land was Kpanwase stream.

The trial court after hearing evidence in court visited the land in dispute and took further evidence. It has made its observations. In its judgment, the trial court said:-

“We also found it as a fact that plaintiff is a squatter for he left his land south of Kpankwase stream and settled in the land of the defendant while the defendant was in Gboko.

As to the defence we believe with the defendant that the plaintiff with his people have occupied his piece of land at the time eh was in Gboko.

It is also an established fact that the boundary between the plaintiff and the defendant is at Kpankwase stream. There is evidence from D.W.1 and D.W.2 that the disputed land belongs to defendant’s forefathers who dwelt therein and have been tilling it for long without interference. There is no doubt in our view that the defendant was in Gboko and ipso facto plaintiff had ample chance to encroach into his land. We fond it proved also that Kpankwase stream marks the boundary between plaintiff and the defendant. The old settlement of defendant’s late father, his brother and that of defendant’s grand sister has been seen in that land. Plaintiff also laid claim over these old settlement falsely. We do not agree with him. The evidence of defendant and that of his witnesses is cogent, realistic and corroborative and is in line with what transpired on that land.”

This was the judgment of the trial court. It was a native court. It identified correctly the issue in dispute as the boundary between plaintiff’s and defendant’s lands. It made a definitive pronouncement on the issue. The trial court had listened to the parties and their witnesses. It saw them testify and formed its impression of their evidence. Neither the court below nor this court has that advantage. It is settled law that a court of appeal would not easily disturb the findings of fact of a trial judge who had the singular opportunity of listening to the witnesses and watching their performances. The exception is where it can be shown that the facts as found are wrongly applied to the circumstances of the case, or where the inferences drawn from those facts are erroneous or where the findings fact are not justified or are not supported by the evidence. See Fabumiyi & Anor v. Obaje & Anor (1968) NMLR 242 at 247 and Wo/uchem & Ors v. Simon Gudi (1981) 5 S.C. 291 at 326.

In Emarieru v. Ovirie (1977) 2 S.C. 31, the Supreme Court discussing the nature of adjudication by a customary court said:

“Suffice it to say that in our view the customary court showed proper and sufficient appreciation of the issues in controversy between the parties, which issues may accurately be described as peculiarly within its knowledge and its judgment in such matters should not have been disturbed. Indeed that was the view long ago expressed by the Privy Council in Abakah Nthah v.Bennieh 2 WACA 1, when their lordships said at page 3:

“It appears to their lordships that decisions of Native Tribunals on such matters which are peculiarly within their knowledge arrived at after fair hearing of relevant evidence should not be disturbed without very clear proof that they are wrong.”

It is my view that the lower court was correct in its refusal to disturb the judgment of the trial court. I affirm the decision of the lower court.

Finally is the issue of the jurisdiction of the lower court. The argument of the appellant is that only legally trained persons i.e. legal practitioners should adjudicate in a federal cause. This argument is anchored on the pre-assumption that the dispute between the parties in this case over the ownership of farmland in a remote part of Benue State. Now Section 250(2) of the 1979 Constitution provides:

“(2) Nothing in the provisions of this section shall be construed, except in so far as other provisions have been made by the operation of section 263 and 264 of this constitution, as conferring jurisdiction as respect federal causes or federal offences upon a court presided over by a person who is not or has not been qualified to practice as a legal practitioner in Nigeria.

(3) In this section, unless the context otherwise requires “cause” includes matter; “Federal cause” means civil or criminal cause relating to any matter with respect to which the National Assembly has power to make laws; and “Federal offence” means an offence contrary to the provisions of an Act of the National Assembly or any law having effect as if so enacted.”

It is my view upon a close perusal of the Constitution of Federal Republic of Nigeria 1979 and in particular the Exclusive Legislative list in the second Schedule of the said Constitution that the dispute about the ownership of a farmland in Benue State which is the subject-matter of this dispute is not a Federal cause. In any case, I do not have any evidence before me that the Judges of the trial court are not persons qualified to practise as legal practitioners.

In the final result, this appeal fails. It is dismissed with N750.00 costs in favour of the respondent.

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Other Citations: (1997)LCN/0314(CA)

Watanmal (Singapore) Pte Ltd V. Liz Olofin and Company Plc. (1997)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A.

In the High Court of Lagos State in the Lagos Judicial Division and in Suit No. LD/1902/91, the plaintiff Watanmal (Singapore) PTE Ltd which is a foreign company incorporated under the Laws of Singapore claimed against the Defendant Liz Olofin and Company PLC, a company registered in Nigeria, the sum of US Dollars 1,096,493.31 plus interest being the value of goods sold and delivered to the defendant at the defendant’s request. The writ was accompanied with a Statement of claim. The defendant entered a conditional appearance. It protested the jurisdiction of the court to entertain the matter on the grounds that the plaintiff is a foreign company resident and carrying on business outside the territorial jurisdiction of the court.

Subsequently and pursuant to Order 22 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 1972 and on the inherent jurisdiction of the Court, the defendant brought an application praying the Court for the following prayers:-

“1. Striking out or dismissing this suit herein on the ground of lack of jurisdiction of this Honourable Court as the plaintiff herein is a foreign company resident and carrying on business in Singapore (in China?) Sic outside the territorial jurisdiction of Nigerian Courts; and consequently, it has no locus standi to institute this action;

AND

2. Such further or other order or orders as this Honourable Court may deem fit to make in the circumstances.”

The affidavit in support averred that the plaintiff a foreign company was not registered with Corporate Affairs Commission and nor was it given any Certificate of Exemption by the appropriate authority. It is further averred that the Court has no jurisdiction to entertain the claims brought by the Plaintiff. Arguments for counsel were heard by Olugbani J., who on the 8th day of December, 1993, delivered his Ruling whereby he ruled at the tail end of his judgment thus:-

“I hold that the claim of the plaintiff is incompetent. I hold that there is no reasonable cause of action before the Court as the Plaintiff herein is non-existent.

The defendant/applicant is entitled to bring this application under Order 22 Rules 3 and 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 and the claim herein is accordingly dismissed as there is no reasonable cause of action before the Court.”

“I hereby award the sum of N3, 000.00k in favour of the defendant/applicant in this application.”

The plaintiff naturally felt unhappy with the turn of events and has appealed to this Court. The Notice of appeal contains three grounds of appeal and they read thus:

1. The learned trial Judge erred in law in his interpretation of Section 54(1) of CAMA 1990 when he held the plaintiff, a foreign company registered abroad, is a non juristic person unknown to the Nigerian law and incompetent to sue in Nigeria.

Particulars of Error

(a) Section 54(1) of CAMA 1990 do not determine or erode the juristic personality of a foreign company registered abroad nor provides for companies which can sue or be sued in their corporate names.

(b) Section 54(1) of CAMA 1990 prescribes without more the conditions that must be fulfilled by a foreign company seeking to do business in Nigeria.

(c) The learned trial Judge fails to appreciate purport of private international law which permits a foreign company registered abroad to sue in another jurisdiction, creating a basis for reciprocity in international relations.

(d) The pleadings before the learned trial Judge showed that the plaintiff is a company registered abroad and carries on its business in Singapore.

(II) The learned trial Judge erred in law and on the facts when

he held that the plaintiff has no reasonable cause of action

against the defendant.

Particulars of Error

(a) The Writ of Summons and the Statement of claim showed, prima facie, a valid and sustainable claim in law against the defendant.

(b) The learned trial Judge wrongly held that since the plaintiff was a non-juristic person there was no reasonable cause of action against the defendant.

(III) The learned trial Judge misdirected himself in law in dismissing the plaintiff’s suit on the ground that the plaintiff is non existent in law.

Particulars of Error

(a) There was no trial on the merits.

(b) The dismissal of the suit presupposes a trial on the merits which puts end to the dispute between the parties.”

The plaintiff shall hereinafter be referred to as the appellant while the defendant as the respondent. The Notice of Appeal was served on the respondent through counsel, similarly, all the other processes were so served. The appellant’s brief was served on the respondent on 27th of June 1995. On the 8/11/1995, the appellant filed an application for leave to hear the appeal inspite of the absence and the failure of the respondent to file the respondent’s brief. Leave was given. At the hearing of the appeal, when we satisfied ourselves that the respondent had been served with all the necessary papers including the hearing notice, and has failed to appear or file brief, this court invoked its powers under Order 6 Rule 10 of the Court of Appeal Rules 1981 as amended and decided to hear the appeal on the basis of the appellant’s brief only.

Before the consideration of the issues arising for the determination of the appeal, it is appropriate to place the background facts. The appellant is a foreign company registered under the Laws of Singapore. Sometime in 1981, the respondent, a company registered in Nigeria, bought and took delivery of various goods from the appellant. The total price of the goods was 396,600 US Dollars.

In the purported settlement of the cost price of the items, the respondent accepted 16 bills of exchange for payment when due through its bank in Lagos. Each of the bills was dishonoured when due. The parties met to sort out the respondent’s difficulties as a result of which the respondent made a part payment of 10,360 US dollars. It was also a term of the contract that any unpaid bill upon maturity will incur an interest of 18% per annum until payment. The total amount due plus interest at the time of the writ was 1,096,493.31 US dollars. As mentioned above, the respondent entered appearance under protest and filed an application to strike out the claims of the appellant on the grounds that the appellant is a foreign company and has no capacity to sue in the Nigerian Courts.

Now, in his brief for the appellant, the learned counsel has formulated and identified four issues arising for the determination of the appeal. These issues read:-

“(a) Whether a foreign company incorporated abroad can sue in Nigeria for services rendered or goods supplied to a Nigerian.

(b) Whether the Writ of Summons and the Statement of claim disclosed a reasonable cause of action against the respondent.

(c) Whether the appellant by instituting this action, without more, is in contravention of Section 54(1) of the Act and its action becomes void under Section 54(2) of the Act.

(d) What is the proper order to make where a court holds that it lacks the jurisdiction to entertain a suit.”

The learned counsel took issues (a) and (c) together. It is argued that the appellant’s company can sue and be sued in Nigeria without being registered when it has no intention for carrying on any business in Nigeria. It is submitted that Section 54(1) of CAMA merely stipulates the conditions that a foreign company must satisfy before it is competent to engage in any business in Nigeria; and does not determine the legal personality of Foreign Companies. Since the appellant is merely attempting to collect its dues from the respondent, the action it took could not be said to be void by Section 54(2) of CAMA. In support of these propositions the learned counsel referred to Olaogun Enterprises Ltd v. Saeby Jernstoberi and Maskinfabrik (1992) 4 NWLR (Pt. 235) 361; Staines Catering Equipment International Ltd. v. Kitchen Equip West Africa (1982) FHLR 59; Bank for Commerce and Industry Ltd v. Europa Traders UK Ltd. (1990) 6 NWLR (Pt. 154) 36.

Now the learned trial Judge had held that Section 54 (1) of CAMA makes the appellant a non existent juristic person. I am of the view that the decision of the learned trial Judge is not an exercise of a proper interpretation of Section 54(1) which reads:-

“Subject to sections 56 to 59 of this Act, every foreign company which, before or after the commencement of this Act, was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria shall take all steps necessary to obtain incorporation as a separate entity in Nigeria for that purpose, but until so incorporated, the foreign company shall not carryon business in Nigeria or exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes in Nigeria for any purpose other than the receipt of notices and other documents as matters preliminary to incorporation under this Act..”

(2) Any act of the company in contravention of subsection (1) of this section shall be void.

(3)…

Subsection exempts certain companies of these provisions.

It seems to me that the learned trial Judge construed Section 54(1) very widely.

It is trite that clear and unambiguous words contained in a Statute should be given their natural and ordinary meaning. The fundamental issue is that a company registered abroad that intends to do business in Nigeria must be registered in Nigeria and any action done by that company is void except under the situations mentioned in subsection 3. The appellants merely sued to recover the cost of the goods, the respondent took delivery from them. The court should give effect to the clear words used in a statute and must not import any extraneous or add to words used in the Statute. See Egbe v. Alhaji (1990) 1 NWLR (pt. 128) 546. The intent and meaning of the provisions of Section 54 of CAMA is clear precise and unambiguous. It is only to prohibit a foreign company from running business in Nigeria without first going through the process of registration or after obtaining an exemption certificate. The section did not deal with the question of the legal personality of a foreign company. The learned trial Judge was obviously in error to hold that a foreign company not registered in Nigeria lacks juristic personality to sue or be sued. See Section 60 (b) of CAMA which provides:-

“60. For the avoidance of doubt, it is hereby declared that-

(a)…

(b) nothing in this Chapter shall be construed as affecting the rights or liability of a foreign company to sue or to be sued in its name or in the name of its agent.”

It is accordingly manifestly clear that the appellant as a foreign company has the statutory authority to sue or be sued in our courts. The appellant is accordingly a legal person and has the capacity to sue or be sued in Nigerian Courts.

So, without much ado, I resolve both issues (a) and (c) in favour of the applicant.

I now turn to issue (b). This is to do with the Question whether the Statement of Claim reveals any cause of action. As mentioned above, the respondent did not file any pleading in which as a defendant he raised the issue of law suggesting that the Statement of claim ought to be struck out for failure to reveal a reasonable cause of action. On an examination of Order 22 of the High Court of Lagos State (Civil Procedure) Rules 1972 demurrer shall not be allowed.

A defendant who wishes to rely on a point of law must first raise it in his Statement of Defence and the Judge may allow the issue taken as a preliminary point. Where no Statement of Defence has been filed, a defendant is not entitled to proceed under Order 22. See Nigeria Always Ltd v. Lapite (1990) 7 NWLR (Pt. 163) 392.

The issues that can be raised under Order 22 rules (3) and (4) had been exhaustively discussed in the case of Dada v. Ogunsanya (1992) 3 NWLR (Pt 232) 754. The issue of locus standi – the juristic personality of the appellant is not issues that can be proceeded upon under Order 22.

Be that as it may, does the Statement reveal any reasonable cause of action? The learned trial Judge failed to examine the cause of action itself but reached his decision that there was no reasonable cause of action because the appellant is not a juristic personality, it is non existent. Having held above that by virtue of Section 60 of CAMA, the appellant is competent to sue and therefore recognised under our laws as a legal entity, I shall have to consider whether a reasonable cause was revealed by the Statement of claim. A cause of action is an entire set of circumstances giving rise to a legally enforceable claim, it is any act or conduct of a defendant giving rise to a justiciable claim. It is a matter or state of affairs, consisting of facts or combination of facts conferring on a party a right to judicial relief. The facts averred here clearly suggested, that the respondent at his own request took delivery of goods with a promise to pay. He failed to pay, it is a mystery to me that the appellant cannot go to Court to assert his right or obtain judicial relief. I am of the firm view that the Statement of Claim in the instant case reveals a prima facie cause of action. See Sodipo v. Lemminkainen (1992) 8 NWLR (Pt.258) 229. See also Dada v. Ogunsanya (supra). I accordingly find issue (b) in favour of the appellant.

Issue (c) now complained on the dismissal of the appellant’s case rather than striking it out. It is a straight forward matter and need not detain us. The learned trial Judge held that the appellant was incompetent to sue, it had no locus standi, he did not hear the matter on the merits, in my view, he cannot dismiss it. He held that he had no jurisdiction to entertain the matter consequently he had no right to terminate the matter in limine he could only strike it out. Accordingly, I resolve the issue also in favour of the appellant.

In the result this appeal succeeds in toto and I hereby allow it. I set aside the Ruling of Olugbani J. delivered in this matter on the 8/12/1993 and in its place, I strike out the respondent’s application. I order that the matter be tried de novo before another Judge. I set aside the order for costs and I order that the appellant be entitled to costs both in the Court below and in this Court assessed at N2,000.00k and N3,500.00k respectively.

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Other Citations: (1997)LCN/0313(CA)

Alhaji Auwalu Etokhana V. Progress Bank of Nigeria Plc. (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

By a writ of summons issued on 18/10/90 under the undefended list procedure which was, later transferred to the Ordinary Cause, the respondent in this appeal as plaintiff instituted an action before the High Court of Justice Kano State at Kano and in the statement of claim, claimed the sum of N557,483,65 and interest at the rate of 35.5% from 30th August 1990 until judgment and thereafter interest at the rate of 10% until the judgment is liquidated against the appellant and one other as defendants, The amount claimed in the action was loan to overdraft facilities granted to the defendants by the plaintiff. Before the undefended suit came up for hearing, the defendants duly filed their notice of intention to defend the suit and the suit was consequently transferred to the Ordinary Cause List for hearing and pleadings ordered on 19/4/91. After suffering a number of adjournments, the case ultimately came before Abdu Aboki J., for hearing on 27/7/94, the date fixed with the agreement of counsel to the parties. However, learned counsel to the defendants failed to turn up on that date and the case proceeded to hearing and judgment was delivered on the same date. The learned trial Judge in his judgment found for the plaintiff and granted all its reliefs. The defendants’ attempt to have the judgment against them set aside by the learned trial Judge failed when their application was dismissed on 22/10/94. Aggrieved by the judgment of the learned trial Judge of 27/7/94 and his ruling of 22/10/94 refusing to set aside his judgment, the 1st defendant now appellant had appealed to this court on two separate notices of appeal containing identical grounds of appeal.

Briefs of arguments were duly filed and served in compliance with the rules of this court. The following 2 issues were formulated by the appellant in his brief of argument filed with the leave of this court on 18/1/96.

“1. Whether the respondent Bank was estopped from pursuing its claim in court after agreeing with the appellant on how the claim would be repaid, and the defendant had acted on the basis of the new agreement.

2. Whether the learned trial Judge rightly exercised his discretion in entering judgment for the plaintiff/respondent by virtue of Order 37 rule 4 of the Kano High Court (Civil Procedure) Edict 1988, and thus visited the sin of the defendants’ counsel, who was not in court after having taken a date for hearing on the defendant/appellant?”

The respondent while adopting the two issues as identified in the appellant’s brief for determination, reframed its issue No.1 to read as follows:-

“1. Whether the respondent was estopped from pursuing its claim in court as a result of the conditions agreed upon by the parties for the grant of subsequent loan.”

On the first issue, it was submitted for the appellant that the respondent was estopped from continuing with the claims at the lower court after reaching agreement with the appellant on how the indebtedness was to be settled after the outcome of the cases the appellant was prosecuting in the Lagos High Court. That the conduct of the respondent of granting the appellant additional loan and the new terms introduced by the respondent, gave the appellant the impression that the respondent was no longer pursuing its claim at the lower court. Citing the cases of Greenwood v. Marlins Bank Ltd. (1933) AC 5 and Union Bank of Nigeria v. Ozigi (1994) 3 NWLR (Pt. 333) 385; (1994) 3 SCNJ 42 learned counsel for the appellant argued that the learned trial Judge was in error in refusing to set aside the judgment to allow the appellant to defend the action.

Learned counsel to the respondent however contended that having regard to a number of decisions of the superior courts including the case of Ondo State University v. Folayan (1994) 7 NWLR (Pt. 354) 1; (1994) 7 – 8 SCNJ 186 at 205, the issue of estoppel did not arise at all in this case to warrant its application by the lower court against the respondent. The respondent pointed out that the case at the lower court in respect of which judgment was given related to the loan granted to the appellant in 1985 while the transaction on the additional loan of N25,000.00 granted to the appellant in 1992 is entirely a separate transaction which was not before the lower court for determination. That in the absence of any agreement between the parties to stay proceedings in the lower court, the appellant had no explanation for staying away from the lower court on the date fixed for the hearing of the case.

This issue no doubt centered principally on the defence of estoppel by conduct which derives its source from section 151 of the Evidence Act Cap 112 of the Laws of the Federation 1990 which states:-

“151. When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.”

By this provision which has received several judicial pronouncements of the Supreme Court of this Country in a number of cases, if a man either in express terms or by conduct makes a representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, and it be acted upon in that way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts. See Joe Iga & Ors. v. Amakiri & Ors. (1976) 11 S.C. 1 at 12 and Ondo State Universally v. Folayan (1994) 7-8 SCNJ 186 at 205; (1994) 7 NWLR (Pt. 354) 1. What is in contention in the present appeal is whether by agreeing to grant the appellant additional loan of N25,000.00 to enable the appellant to pursue the civil cases he was prosecuting in the Lagos High Court and the security demanded by the respondent for the loan in terms of submission of title documents of the appellants, Fiat Trucks and the undertaking by the appellants’ counsel handling the cases in the Lagos High Court to pay any proceeds of judgment debts to be recovered in those cases to the respondent, amounted to estoppel preventing the respondent from proceeding with the case against the appellant at the lower court. It is quite plain that the respondent in the transaction in 1992 by which it granted the second or additional loan to the appellant, did not by any declaration, act or omission and intentionally give the appellant even by remote impression that it was no longer pursuing its case at the lower court. Even the appellant by his conduct of filing his statement of defence out of time with the leave of the lower court eight months after that transaction and his counsel agreeing to the date fixed for the hearing of the case on 27/7/94, shows quite clearly that even the appellant himself did not have that belief that the respondent was not going to pursue the case at the lower court after granting him the loan in 1992. The learned trial Judge was therefore right when he refused to regard the issue of estoppel as a defence in his ruling refusing to set aside his judgment of 27/7/94 against the appellant. In fact the very fact that no defence of estoppel which by law must be specifically pleaded, was pleaded by the appellant in his statement of defence filed at the lower court prior to the hearing of the case, shows that the issue of estoppel now being raised in this appeal has no basis whatsoever.

The second issue is whether the learned trial Judge exercised his discretion judicially and judiciously in favour of the plaintiff in entering judgment for it by virtue of order 37 rule 4 of the Kano High Court (Civil Procedure) Edict 1988 and thus visited the sin of defendant’s counsel, who did not appear in court on the defendant/appellant. Learned counsel to the appellant after making extensive reference to the provisions of rules 2, 4 & 5 of order 37 of the rules of the Kano High Court, had submitted that by proceeding to hear the case on 27/7/94 and delivering judgment in the absence of the appellant and his counsel, the learned trial Judge had clearly visited the sin of the appellant’s defaulting counsel on the appellant. That for this reason, relying on the case of Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909 at 918 – 919,the learned trial Judge cannot be said to have exercised his discretion judicially and judiciously in entering judgment in the absence of the appellant and his counsel. On the refusal of the learned trial Judge to set aside the judgment against the appellant in his ruling of 22/11/94, it was argued for the appellant that in view of the Supreme Court decision in Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145, and having regard to the facts deposed in support of the appellant’s application to set aside the judgment, the learned trial Judge did not exercise his discretion judicially and judiciously when he refused the application.

However, it was the contention of the respondent on this issue that the learned trial Judge exercised his powers correctly under order 37 rules 2 & 4 of the rules of the lower court by entering judgment for the respondent and that the appellant did not satisfy any of the conditions under the law to justify setting aside the judgment obtained against him. The same case of Williams & Ors. v. Hope Rising Voluntary Funds Society (supra) cited and relied upon by the appellant and the case of W.A.P.I.N. v. Nigerian Tobacco Co Ltd. & Anor. (1987) 2 NWLR (Pt.56) 299 at 306, were cited by the respondent in support of this argument. Learned counsel to the respondent observed that the affidavit in support of the appellant’s application to set aside the judgment did not give any reason for his failure to be in court on the date the case was heard. That the application was not also filed within 6 days after the judgment or such longer time as allowed by court apart from the fact that the appellant’s case was manifestly unsupportable. Learned counsel concluded by submitting that the conduct of the appellant throughout the proceedings at the lower court was such that his application was not worthy of sympathetic consideration to justify exercising the discretion of the lower court in his favour.

There is no doubt whatsoever that the trial court was vested with powers under order 37 rules 2 – 5 of the Kano State High Court (Civil Procedure) Rules 1988 when a defendant fails to appear on the date fixed for the hearing of a case, the plaintiff may be allowed to proceed and prove his case and obtain judgment Such a judgment in default may however be set aside at the discretion of the trial court on the application by the defendant where he has good cause for being absent. Order 37 rules 2 & 4 which are relevant in this respect state as follows:-

“2. If, when a trial is called and the plaintiff appears and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him.”

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4. Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.”

The record of this appeal at page to shows quite clearly that on 6/6/94 both parties to this appeal were before the lower court duly represented by their learned counsel both of whom specifically requested the lower court to fix a date for the hearing of the case. In answer to their request, the learned trial Judge fixed 27/7/94 as the date for the hearing of the case. However, on this date, although the learned counsel to the plaintiff/respondent was in court, the defendant/appellant was not only absent but that he was also not represented by counsel. In the absence of any explanation for the absence of the defendant/appellant and his counsel, the learned trial Judge allowed the plaintiff/respondent to lead evidence and prove its case. Having been satisfied that the burden of proof was discharged, judgment was accordingly entered against the defendant/appellant on the same date 27/7/94. I have no doubt at all in my mind that from these facts which are not disputed even by the appellant himself, the discretion exercised by the learned trial Judge in allowing the respondent to call evidence to prove his case and the subsequent entering of judgment in favour of the respondent, was in accordance with the rules of the lower court. Thus, the discretion was therefore exercised judicially and judiciously.

On whether or not the learned trial Judge exercised his discretion judicially and judiciously in refusing to set aside his judgment of 27/7/94 on the application by the appellant, what I now have to resolve is whether the appellant had satisfied all the conditions necessary to justify the lower court exercising its discretion in his favour. These conditions or considerations were fully set out by Idigbe J. (as he then was of the blessed memory) in Ugwu & Ors. v. Aba & Ors. (1961) 1 All NLR 438 and restated by him in the Supreme Court in the case cited and relied upon by both parties to this appeal, Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1 All NLR (Pt.1) 1 at 5 as follows:-

“Among other things the court must consider-

1. The reasons for the applicants’ failure to appear at the hearing or trial of the case in which judgment was given in his absence.
2. Whether there had been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists.
3. Whether the latter party (i.e. in whose favour the judgment subsists) would be prejudiced or embarrassed upon an order for re-hearing of the suit being made; so as to render such a course inequitable.
4. Whether the applicants’ case is manifestly unsupportable; and
5. That the applicant’s conduct throughout the proceedings, i.e. from the service of the writ upon him to the date of judgment has been such as to make his application worthy of sympathetic consideration.” From the events which I have earlier stated and the facts as found by the learned trial Judge, it is manifest that none of the considerations or conditions stated above can be resolved in favour of the appellant. In fact the learned trial Judge in his well considered ruling of 22/11/94 extensively considered each of the requirements before coming to the conclusion that the appellant did not satisfy any of them to warrant the discretion of the lower court being exercised in his favour. Indeed I have no reason at all to disagree with the learned trial Judge. It is quite clear from the appellant’s statement of defence dated 28/5/91 that the appellant did not plead any facts in support of the alleged defence of estoppel on the basis of which the appellant wanted the judgment set aside. The appellant’s case is therefore manifestly unsupportable. The appellant also did not give any reason for his failure to be in court on 27/7/94, nor did he give any excuse for the delay in filing the application which was filed well after 6 days from the decision contrary to rule 4 of order 37 and no extension of time was given to the appellant to cure this defect in the application. Indeed learned counsel to the appellant raised heavy storm in his arguments that the learned trial Judge visited the sin of the appellant’s counsel on the appellant by refusing to exercise discretion in favour of the appellant. Let me observe here that the failure to appear at the hearing was undoubtedly due to the fault of the appellant’s counsel who was in court and took the date for hearing. However, as Idigbe J.S.C. (as he then was of the blessed memory) said in the case of Williams & Ors. v. Hope Rising Voluntary Funds Society (supra) all the 5 considerations or conditions must be resolved in favour of the appellant before the judgment should be set aside. It is just not enough that some of them can be resolved in favour of the appellant.

The two issues raised in this appeal centered on the exercise of discretion by the learned trial Judge in entering judgment for the respondent in the absence of the appellant and in refusing to set aside that judgment on the application by the appellant. It is well settled that if judicial discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower court, the general rule is that an appeal court will not ordinarily interfere. The guiding principle in this respect is that the discretion, being judicial, must at all time be exercised not only judicially but also judiciously on sufficient materials: Saffieddine v. C.O.P. (1965) 1 All NLR 54 at 56; Ugboma v. Olise (1971) 1 All NLR 8 and University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 at 148. Having regard to all the circumstances of this case, I do not think the exercise of discretion by the learned trial Judge in the present case was improperly made, or that it affected the justice of the case to justify any interference by this court. I therefore hold that the learned trial Judge in the instant case indeed had exercised his discretion judicially and judiciously not only in entering judgment for the respondent but also in refusing to set aside that judgment on the application by the appellant.

For the various reasons I have given in resolving the two issues raised in this appeal, I have come to the conclusion that there is no merit at all in this appeal.

Accordingly the appeal is hereby dismissed.

The respondent is entitled to costs assessed at N1,500.00 (one thousand, five hundred naira only).

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Other Citations: (1997)LCN/O312(CA)

Hussaini Dandume V. Alhaji Adamu & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

MUNTAKA COOMASSIE, J.C.A. 

This is an appeal against the judgment of the Katsina State Sharia Court of Appeal holden at Funtua delivered on 26/6/93.

The facts of this appeal could be briefly stated thus:

That the appellant herein as plaintiff, sued the respondent and 59 others at Dandume Area Court hereinafter called trial Area Court to recover his father’s grazing places at the outskirt of Dandume Village being in unlawful possession of those 60 defendants. The defendants through their acclaimed representatives denied the appellant’s claim and insisted that the said grazing places belong to them jointly and severally. They have been in their respective possession of the land in dispute for over 50 years. (The least possession is 20 years) the longest possession is 53 years.

The appellant as plaintiff called witnesses who testified. Also the defendants called witnesses who gave evidence in their favour. At the end of the proceedings the trial Area Court was of the view that the appellant could not establish, by evidence, his case. The case of the appellant was then dismissed and the matter in dispute was declared the property of the defendants now respondents.

Aggrieved by the decision of the trial Area Court the appellant herein unsuccessfully appealed to the Upper Area Court Funtua now U.A.C.

The appellant further appealed to the Katsina State Sharia Court of Appeal.

The proceedings before the trial Area Court was clear that the matter was before that court in representative capacity. Five witnesses were called by the appellant but none of the witnesses testified clearly in favour of the appellant. Some of them went to the extent of saying that they had never seen the appellant or his father working on the disputed land.

Therefore there is no established possession in favour of the appellant. The 3rd and 4th witnesses called by the appellant testified to the effect that they don’t know anything about the disputed land. Infact the fourth witness further testified that the land in dispute never belonged to Alhaji Danboji the father of the appellant. The fifth and the last witness called by the appellant, a 65 year-old lady told the court although the place in dispute belongs to the grand father of the appellant neither the appellant’s grand father nor the appellant’s father ever farmed or worked on the place in dispute.

The respondents, as defendants, called four witnesses who testified unanimously that the farmland in dispute belonged to the defendants severally. They have been in such a possession for up to 54 years to 60 years ago. These witnesses consistently testified that neither the appellant’s grand father nor his father ever owned the places. The appellant was given an opportunity to impeach any or all the witnesses but failed to do so. That court then held that the appellant could not prove his claim and dismissed same.

In the UAC the record of proceedings of the trial court was thoroughly scrutinized and analyzed. In conclusion the UAC held that after going through the record of proceedings it found that the appellant failed to call witness or witnesses that will prove his claim. None of the witnesses called by the appellant told the court that the places in dispute belonged to the grand father or father of the appellant; and none of his parents ever possessed the disputed land let alone worked on same. Infact the appellant himself on page 3 line 6 of the record testified to the effect that his father Alhaji Danboji never worked on the disputed places. On the other hand, each and every defendant/respondent explained to the trial court how each one of them got the portion of the disputed land. Some got their own 38 years ago, some 55 years, others 60 years, there are others also who got their own 65 years ago. The appellant was present when the above witnesses testified and he did not even attempt to challenge their evidence by way of impeachment (Tajrech). The UAC then affirmed the decision of the trial area court and dismissed the appellant’s appeal before it.

After reviewing the two records of proceedings of the lower courts the Katsina State Sharia Court of Appeal, hereinafter called court below, held that the appellant failed to call witnesses who will testify in proof of his claim. The evidence of the witnesses called by him neither supports the ownership of the disputed places nor establishes possession of same by him or any of his parents. Infact some of the witnesses called by the appellant told the court that they did not even know his grandfather from whom the appellant was claiming the disputed places. The court below added that assuming, without conceding, that the disputed land belonged to the appellant’s grandfather or his father it was left for a long time.

The appellant must have forfeited his right over the places. The defendants, the court below further held, acquired ownership by prescription popularly known as Hauzi in Islamic Law. They were in possession for more than 10 years. In that situation the claim of the appellant even if proved cannot be granted. Hauzi principle will defeat such a claim. Based on the above reasons the court below affirmed both decisions of the UAC and the trial Area Court and dismissed the appeal of the appellant thereby.

Dissatisfied with the above judgments the appellant appealed to this court and filed a notice of appeal containing an omnibus ground which reads thus:-

“The decision of the trial Sharia Court of Appeal (sic) is unreasonable and unwarranted having regards to the weight of evidence.”

Parties in this appeal were not represented by counsel and they indicated their wish to rely on the records of proceedings of the three lower courts.

Considering the sole ground of appeal filed by the appellant, the records of proceedings relied upon by the parties and the prevailing law, I am of the candid view that the only issue that can be discerned and distilled therefrom is whether or not proper procedure has been followed by the trial and UAC courts to enable the court below affirm their decisions.

After reviewing the records of proceedings of the trial Area Court I discover that correct Islamic Law Procedure has been applied in the trial of the case. It is correct, as followed by the trial Area Court that he who asserts has the burden of proof of his claim. In Islamic Law the plaintiff/claimant is not allowed to testify in his case. Unlike the position in English Law where the plaintiff can testify in proof of his claim and in some cases the court can rely on his evidence if such evidence can establish his case on the balance of probability.

In Islamic Law the plaintiff cannot do that. He is only required to call the required number of witnesses to come to court and testify in favour of the plaintiff. His evidence is clearly in-admissible in law. If the plaintiff or claimant fails to discharge the burden of proof or he relies on his evidence where it was erroneously allowed by the court, then, in a proper situation, the defendant shall be asked to subscribe to an oath of rebuttal.

In this appeal it is clear that the trial Area Court first asked the plaintiff to call his witnesses if any in proof of his claim. After such exercise it was necessary to hear the defendants in defence. The court then allowed the defendants/respondents to call their witnesses to show that they are the owners of the disputed places and not the appellant.

After hearing both sides and after applying an Iz’ar in a most appropriate time, i.e. before judgment, the said court gave its reasons in dismissing the claim of the appellant and awarding the respondents their places. Ihkammul Ahkam, short commentary on Tuhfatul-Hukkaim p14.

In the circumstances of this case where the witnesses of the appellant gave divergent evidence on the ownership and possession of the disputed places it is correct for the court to allow the defendants/respondents to call their witnesses instead of offering them with oath.

I am therefore of the view that the court below was perfectly right in upholding the decision of the UAC Funtua which affirmed the decision of the trial Area Court. The position taken by the trial Area Court and the two subsequent lower courts is not perverse. I have therefore no reason to disturb such a finding.

On the principle of Hauzi introduced by the court below, I wish to state that even though it was not clearly thrashed out in the trial Area Court the principle is correctly stated by the Sharia Court of Appeal i.e court below.

Both in the Holy tradition of the Prophet Muhammed (P.U.H.) and the analysis of jurists it is agreed that whoever cleared a piece of land became its owner. In other words, where a place could be regarded as Bona vacantia any person who first cultivated it can claim its ownership. So also where a person found a place abandoned and cultivated same and has been using the place as his own for upward 10 years, he acquires title to such land or place by Hauzi. For that reason if the true owner later emerged and claimed ownership of such a land his claim cannot be heard and must be dismissed. Unless and until he can show that the occupants are his relations, trustees or inlaws et cetera.

It has since been trite in Islamic Law that where a person has been in an undisturbed possession of a landed property for a period of ten years or more, while the true owner, who is not related to him by blood and so on, stands by and does nothing to redeem his property (or claim back his property), the person in possession acquires title by prescription, popularly known in Sharia as Hauzi. Abubakar Gidan Kada v. Salihu Gidan Yawa 1 (1961)-(1989) SLRNP. 243; Bahaja, Commentary on Tuhfatul-Hukkam, Volume 2, 1991 Ed. p. 476; Jawahirul-Iklil Commentary on Mukhtasar Khalil volume 2; See Tabsiratul-Hukkam Ibn Farhun, 1st Ed.

It cannot be right for any appellate court to unnecessarily disturb the correct findings of facts of the lower court. On the whole the Sharia Court of Appeal treated all the issues placed before it and correctly discussed the issue of Hauzi in Sharia and resolved same in favour of the respondents. The appeal fails. It is dismissed. The decision of the court below, Katsina State Sharia Court of Appeal is faultless and un-assailable and is hereby upheld. N800 costs to the respondents against the appellant.

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Other Citations: (1997)LCN/0311(CA)

Otuokere Nwagboso & Ors. V. Ekwem Ejiogu (1997)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A.

This is a motion brought by the appellants/applicants pursuant to Order 3(3) and 4(1) of the Court of Appeal Rules, 1981 – praying this Court for

“(a) an order enlarging the time within which the defendants/appellants/applicants shall apply for a stay of the execution of the Judgment and Orders of the High Court of Imo State sitting at Nkwerre delivered and made on June 12, 1996 pending the determination of the Appeal against the said Judgment and Orders;

(b) an Order deeming as properly filed and served the defendants/appellants/applicants motion for stay of execution filed in this Court on 19/8/96 and fixed for hearing on 30/10/96.”

The motion is supported by an affidavit of twelve paragraphs deposed to by one John Enerenwa – a litigation clerk in the chambers of Chief Bon Nwakanma (SAN) who are solicitors to the applicants. The learned Senior Advocate for the applicants relies on all the paragraphs of the affidavit. Reference was made in particular to paragraphs 8 and 11 of the affidavit in support. The learned counsel for the applicants submitted that they got the Ruling of the Court below on 1st August, 1996. It was submitted also that it is not enough for the respondent to say in his counter-affidavit that the averments in the affidavit of the applicants are not true. It is the contention of the learned counsel for the applicants that the averments in their own affidavit have not been traversed by the counter-affidavit.

Mr. Egonu (SAN) for the respondent in his reply submitted that they filed a counter-affidavit of four paragraphs and they are relying on the counter-affidavit. It was stated that the Ruling dismissing the application in the lower court was delivered on 10/7/96. Reference was made to pages 1 and 10 of Exhibit ‘D’ and also paragraph 4 of the affidavit in support of this application. It was contended that by Order 3 Rule 3(3) of the Court of Appeal Rules, the application should be brought within 15days. It was submitted that the application was filed 25 days late and not four days as submitted by the Learned Senior Advocate for the applicants. It was also submitted that uncertainty is the beginning of falsehood. It was argued that Exhibit ‘D’ was certified on 19/7/96 and therefore, the date of certification determines the date of the receipt of Exhibit ‘D’. It is the contention of the Learned Senior Advocate for the respondent that the present application of the applicants for extension was filed on 24/9/96 and they did not satisfy the necessary conditions. Reference was made to the cases of N.A. Williams & Ors. v. Hope Rising Voluntary Society (1982) 1 & 2 S.C.145 and Chief Chukwuemeka Odumegwu Ojukwu v. Miss Stella Onyeador (1991) 7 NWLR (Pt. 203) 286. It was argued that the exercise of discretion of the court must be on fixed principles and must be justifiable. Reliance was placed on the case of U.B.A. Ltd. v. Stanhlban GMBH & Co KG. (1989) 3 NWLR (Pt. 110) 374. It was submitted that where a party has given reason for his delay in doing something it is not open to the adjudication to put in additional reasons. Reference was made to the case of Lasisi Bello Ogunlowo v. Prince O.A. Ogundare & Ors. (1993) 7 NWLR (Pt. 307) 610; Madam Fumike Ojo-Osagie vs. Sunday Adonri (1994) 6 NWLR (Pt. 349) 131 at 154. It was submitted that this Court should not be carried away by sentiments. Reference was made to the cases of Ezeugo v. Ohanyere (1978) 6-7 SC. 171 at 184; Omole & Sons Ltd. v. Sanusi Alake Adeyemo & Ors. (1994) 4 NWLR (Pt. 336) 48 at 71.

Chief Nwanma (SAN) made a further submission that the whole of the submissions of the learned counsel for the respondent are hanging in the air as they have not traversed paragraphs 8 and 11 of their averments. He made reference to the cases of Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94 – 113 – 114; Ogunola v. Eiyekole (1990) 4 NWLR (Pt. 146) 632 at 646. He therefore urged this Court to discountenance what is not in the counter-affidavit of the respondent. I consider paragraphs 8 and 11 of the affidavit in support of this application to be very germane. They read:-

“8. That I was only able to get a copy of the said Ruling by the 1st week of August 1996 due to administrative difficulties.

11. That the delay in filing the said motion for stay of execution out of time was as a result of the delay in getting a copy of the said Ruling of July 10th 1996 delivered by the learned trial Judge.” In concomitant with the above paragraphs is paragraph 2 of the counter-affidavit of four paragraphs deposed to by Ekwem Ejiogu. Paragraph 2 reads:-

“2. That paragraphs 8, 11 and 12 of the affidavit of John Enerenwa sworn to at the Court of Appeal Registry, Port Harcourt, on the 24th day of September, 1996, in the above matter are completely untrue.”

My task in this matter is very simple as the application is based solely on affidavit evidence. I have taken a hard look at the counter-affidavit of the respondent and I am satisfied that the crucial averments in paragraphs 8 and 11 of the affidavit of the applicants have not been traversed by the counter-affidavit of the respondent. It is the law that paragraphs of affidavit not specifically denied are deemed to be admitted. See Nwosu v. Imo State Environmental Sanitation Authority & Ors. (1990) 2 NWLR (Pt. 135) 688.

I therefore take it that the respondent has admitted the facts deposed to in paragraphs 8 and 11 in the affidavit in support of this application.

It must be said also that facts contained in an affidavit form part of the documentary evidence before the court. I should like to repeat again that where an affidavit is filed deposing to certain facts and the other party does not file a counter-affidavit or a reply to a counter-affidavit, the facts deposed to in the affidavit would be deemed unchallenged and undisputed. See Adekola Alagbe v. Abimbola & 2 Ors. (1978) 2 SC. 39; Badejo v. Federal Minister of Education & Ors. (1996) 91 – 10 MAC page 118. The learned Senior Advocate for the respondent, instead of filing a further and better counter-affidavit to counter the averments in paragraphs 8 and 11 of the affidavit in support of the application, decided to make oral submissions to vary the contents of an affidavit. In doing so, he cited a legion of cases which are inapplicable and irrelevant to the subject matter of how to counter facts deposed to in an affidavit. What the Learned Senior Advocate for the respondent did amounted to an exercise in futility to change the law governing affidavit evidence.

As by his conduct the respondent has admitted the crucial facts deposed to in paragraphs 8 and 11 of the affidavit in support of this application there is no reason therefore that should stop this Court from granting the reliefs sought by the applicants in their motion dated 23rd day of September, 1996 and filed on 24th September, 1996.

The said Motion of the Applicants is therefore granted as prayed. I therefore grant an extension of fourteen’ days within which the defendants/appellants/applicants shall apply for a stay of the execution of the judgment and Orders of the High Court of Imo Stale sitting at Nkwerre delivered and made on June 12, 1996 pending the determination of the Appeal against the said Judgment and Orders. 1 also make an order deeming as properly filed and served the defendants/appellants/ applicants’ motion for stay of execution filed in this Court on 19/8/96 and dated 8/8/96. I make no order as to costs.

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Other Citations: (1997)LCN/0310(CA)

Finunion Limited V. The M.v. Briz & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

UWAIFO, J.C.A.

The plaintiff/appellant took out an action in rem against the defendants/respondents for an alleged damage done to a cargo of consignment of 9334 cartons of frozen fish (Horse Mackerel) shipped per the 1st defendant (The M. V. Briz) to the order of the plaintiff/appellant. The vessel sailed from Namibia to Port Harcourt and Apapa Ports and the cargo was delivered on or about the month of December, 1991. The plaintiff claimed that on delivery the cargo was found to be damaged. It therefore sued for its full value of US$700,000 (stated in the claim as USD 393,354 and N4,241,770.61). There is no dispute that the value of the cargo is US$700,000.

The vessel had sailed from Port Harcourt at the time the action was brought and was at the Apapa Port. The action had to be brought at the Federal High Court, Lagos. The Plaintiff by motion ex-parte applied for the arrest and detention of the vessel as security for its claim pending the determination of the suit or “Until the defendants shall show good, reasonable and sufficient cause for its release” or until further order by the court. The application was granted by Jinadu J. on 21 May, 1992 and the vessel was accordingly arrested by the Admiralty Marshal of the court.

On 8 July, 1992, the defendants applied by motion on notice to have the vessel released upon security of US$100,000. The further affidavit sworn on 15 July 1992 in support of the motion contained allegations that the consignment had been examined by the plaintiff on arrival at the Apapa Wharf and that only a small part of it was found bad. I shall reproduce those paragraphs of the said further affidavit which I consider relevant for this appeal:

“3. That the total consignment of fish carried by the Vessel on the relevant trip was 2800 tons.

4. That 1395 tons of fish were discharged, examined and received by the plaintiff at Port Harcourt on 23rd December, 1991 after delaying the Vessel for 17 days.
5. That the plaintiff did not complain about the condition of the consignment of fish it examined and received at Port Harcourt.
6. I verily believe that the fish on board the vessel were inspected by the Nigerian Health Authorities in Port Harcourt and accepted by them to be in good condition.
7. That at Apapa Wharf the plaintiff examined and received 1031.26 tons of fish without raising any objection as to their condition.
8. That at Apapa Wharf the plaintiff examined and rejected 373.74 tons of fish on board as being bad.
9. That the vessel was fully discharged on 10th January, 1992 less the 373.74 tons of fish rejected by the plaintiff after the plaintiff had delayed the vessel for another 4 days.
10. That the Vessel has 4 hatches all of which worked in Port Harcourt until when the vessel got to Apapa Wharf, Lagos where the fish in hatch 4 (373.74 tons) developed complain.
11. That I verily believe that the plaintiff has sold all the 2426.26 tons of fish it examined and took delivery of at Port Harcourt and Apapa Wharf respectively.
12. That I verily believe that the plaintiff is responsible for the 373.74 tons of fish going bad because of their delay in discharging the fish from the Vessel.
13. That I verily believe that if the plaintiff sustained any loss at all from the sales of the 2426.26 tons of fish it took delivery of it must be due to a combination of other factors like unstable market prices and the plaintiff’s faulty cold store rented from Frozen Foods Nigeria Limited 57 Trans Amadi (Industrial Estate) Port Harcourt where they stored (1395 tons) of the total consignment of fish they examined and accepted.
14. Now shown to me and marked Exhibit ‘D’ is a copy of the letter written by the plaintiff dated 1/6/92 to the Administrator of Frozen Foods Nigeria Limited complaining about their faulty cold store.”

In an affidavit in reply to the said further affidavit, sworn on 21 July, 1992, the plaintiff, in one out of five paragraphs of that affidavit, said: “That I deny all the facts therein as if the same were set out herein and separately denied.” The learned trial Judge held that this was not adequate denial as it was not specific enough. There was another paragraph which said: “That I am informed by counsel in charge of this matter Dolapo Akinrele Esq. and I verily believe that the plaintiff has not substantiated its averments encapsulated in paragraphs 3 to 22 of the further affidavit.” The respondents now contend that this amounts to argument and conclusion, and I think they are justified in that criticism: See Nigerian LNG Ltd. v. African Development Insurance Co. Ltd. (1995) 8 NWLR (Pt. 416) 677 at 696 – 702.

After considering arguments on the defendants’ motion, the learned trial Judge ordered the release of the vessel from arrest and detention upon the defendants furnishing a guarantee in the sum of US$200,000, The plaintiff complains that that amount is not adequate security for its claim of USS700,000 as contained in the writ of summons and appeals that the decision was one arrived at erroneously by the learned trial Judge. Although four issues were set down in the appellant’s brief for determination, learned counsel for the appellant in oral argument on 23 April, 1997 before this court reduced them to only one, namely:

“Whether there was sufficient material before the lower court to enable it to reduce the amount of guarantee.”

The learned trial Judge gave two reasons for reaching a decision to reduce the guarantee to be provided by the defendants. First, he said that the plaintiff’s claim did not, to use his words, “categorically state what number of cartons of fish were lost and what number were damaged so that the court can see at a glance how the total claim of US$700,000,00 damages was arrived at.” Looking at the plaintiffs claim, what the learned trial Judge said, with due respect to him, was a complete misconception, The plaintiff did not claim that some consignment of the fish was lost and some damaged, What it claimed was that the entire consignment was damaged and that the value was US$700,000,00.

The second reason given by the learned trial Judge, again to use his words, was that “there are these substantial averments of facts contained in paragraphs 4 – 11 of the further affidavit that the plaintiff examined and received a total of 2,800 tons of fish less 373,74 tons.” He was of the opinion that these facts should have been specifically denied. It is true that in the affidavit in reply to that further affidavit as I have already pointed out in the course of this judgment, the plaintiff simply denied the truth of all the relevant paragraphs. But in view of the earlier affidavit of the plaintiff sworn on 21 May, 1992 by one Felix Olatunji Hughes, the Group Personnel and Administrative Manager of the plaintiff, which was an affidavit of urgency in support of the motion to arrest the vessel, the position of the plaintiff was clear, Paragraphs 3, 4, 5 and 6 read: “3, That sometime in November 1991, 9334 Cartons of frozen Horse Mackerel were consigned to the order of the plaintiff company at ex the M.V. BRIZ.

4. That the vessel aforesaid arrived Nigeria on or about the month of December, 1991 laden with the consignment aforementioned.
5. That upon discharge of the consignment aforesaid from the vessel, it was certified by the Socicte Generale De Surveillance, a Government approved inspection Company that the consignment was in a damaged condition.
6. That as a result of the state of the consignment, the plaintiff company could no longer sell them and as such has been put to great loss.”

In view of this direct assertion as to what happened to the entire consignment and that a government sponsored inspection company had certified the condition thereof, it became unnecessary even for the plaintiff to respond to any further affidavit by the defendants unsupported by credible facts and/or documents. It would mean either that the plaintiff was telling untruth or the defendants were. That would remain an issue to be decided in the substantive case.” But at the moment, on the face value of the affidavit evidence before the court, the following can legitimately be allowed to influence the decision on the amount of guarantee that is appropriate. First, the contention of the plaintiff that it could not sell the fish because it had been damaged resulting in great loss ought to be considered against the background that it places reliance on a positive deposition as to what a Government approved inspection company was alleged to have provided as evidence of the damaged condition of the fish. Second, as against that positive deposition by the plaintiff is the mere deposition of belief (not supported by any facts or source of information) by the defendants that the fish were inspected. On board the vessel by the Nigeria Health Authorities in Port Harcourt (the particular health authorities not having been mentioned).

In the circumstances of this case, the further affidavit by the defendants although later in time would not appeal strong enough on the point as to the condition of the consignment of fish as to require the plaintiff to supply further facts or to make specific denial. The later affidavit cannot and ought not therefore to have any decisive effect in the circumstances on the issue arising as to make the court throw itself upon it in acceptance of the facts therein contained simply because it was later in time and not countered. As said by the Supreme Court per Irikefe J.S.C. in National Bank Ltd. v. Are Brothers (1977) 6 S.C. 97 at 108;

“It would not be open to the court as it did here, to accept the last affidavit in point of time as the true position of matters, merely because the other side had failed to lodge a counter-affidavit.” The learned trial Judge limited himself to the facts contained in paragraphs 4 to 11 of the further affidavit as to what he said the plaintiff failed to deny specifically. I shall not bother about other facts not so considered by him since there is no appeal against what he failed to consider in that further affidavit. Having regard to the facts he considered and the reasons given by him to put the guarantee at USS200,000. I think the learned trial Judge acted on a wrong premises and therefore fell into the error of denying the plaintiff its entitlement to sufficient security to cover the amount of its claim with interest and costs on the basis of its reasonable arguable best case, which is the principle upon which the matter or security or guarantee to get an arrested ship released or bailed is considered; See The “Moschanthy” (1971) 1 Lloyd’s Rep. 37 at 44. The other way of stating the principle is that in the absence of a strong contrary evidence the amount of bail or guarantee should be sufficient to cover the plaintiffs claim together with interest thereon and the costs of the action: See Halsbury’s Laws of England Vol. 1, 4th ed. paragraph 380; M/V “Da Qing Shan” v. Pan Asiatic Commodities Plc. Ltd. (1991) 8 NWLR (Pt. 209) 354 at 367. The plaintiff appears to have put forward an arguable case at this stage of demanding a guarantee in these interlocutory proceedings as to the value of the loss suffered by it and the general rule is that the court cannot and ought not at that stage to take a position that would adversely prejudice its claim by so severally reducing the value stated therein unless a very clear case justifying that course had been made out by the defendants. As Brandon J put it in The “Moschanthy” (supra) at page 45;

“….these are interlocutory proceedings and the Court cannot try the case in them. It may be that the plaintiff could, at a trial, produce independent evidence to corroborate his figure, and the fact that he has not done so at this stage ought not to result in his being denied the opportunity later.”

I am satisfied that there is merit in this appeal. I therefore allow it and set aside the order of the lower court given on 27 July, 1992. It is ordered that the bank guarantee to support the release of the Vessel M.V. Briz shall be US$700,000.00 not US$200,000.00. I award costs of N2,000.00 to the appellant.

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Other Citations: (1997)LCN/0309(CA)

Mr. Toyin Akanbi & Anor. V. Alhaji Shuaib Kasandubu (1997)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

Alhaji Shuaib Kasandubu now deceased sued the appellants and two others before an Ilorin High Court for trespass to his land and injunction to restrain them from further trespass. Para. 18 of the respondent’s amended statement of claim summarized his claim as follows:-

“18. The plaintiff says that the defendants are the sole authority administering the school called Ilorin Grammar School in Ilorin Kwara State of Nigeria.

Whereof the plaintiff claim against the defendants is a permanent injunction restraining the defendants and their agents, privies and servants from entering or trespassing or doing anything whatsoever at the plaintiffs land at Asa Dam behind Geri Alimi Hospital Ilorin.”

The two appellants filed a statement of defence denying the claim. The respondent gave evidence on his own behalf that he bought a piece of land in 1972. He tendered an agreement which evidenced the sale and transfer of the land as Exh. 1 and a permit to alienate the land granted by the Local Government as Exh. 2 and a site plan of the land attached to Exh. 2 as Exhibit 2A. He said that he bought the land from one Basharu Asunnera who gave evidence as P.W.1 confirming the sale of the piece of land to the respondent. According to the plaintiff in the court below, trouble started when the appellants encroached upon his land and started building a wall thereon.

The appellants called one Dr. Amuda Aluko as a witness, D.W.1. He is the proprietor of Geri Alimi Hospital Ilorin. He gave evidence that he bought a piece of land from one Iya Agba Ajika in 1973 but when he started to develop the land the authorities of Ilorin Grammar School told him that the land was theirs and that they had a certificate of occupancy over it. He then took permission from them to build his hospital. He admitted that the respondent came to discuss with him and he told him that the land behind the hospital belonged to him but he was not interested in the business.

The 1st appellant who was the principal of Ilorin Grammar School gave evidence that the disputed land belonged to Ilorin Grammar School as absolute owner. He tendered records of disputes on the land before between the school and one Saudatu Lawal which went as far as the Supreme Court and Ilorin Grammar School won all along.

Under cross examination the 1st appellant stated as follows:

‘The land in dispute is between Tipper Owners Association Structure and Dr. Aluko’s Geri Alimi Hospital.”

The court visited the locus in quo where it was shown the disputed land. Thereafter counsel on either side addressed the court, and in a reserved judgment, the trial judge Gbadeyan J. gave judgment in favour of the respondent and granted the injunction sought.

Dissatisfied with that judgment the appellants appealed to this court on 5 grounds of appeal. In accordance with the Rules of this court the appellants filed a brief of argument and identified 4 issues for determination as follows:-

“1. Whether considering the totality of evidence before the trial court that court was right to give judgment to the plaintiff/respondent (Ground 1).

2. Whether the trial High Court was right in laying the onus of proof on the defendants/appellants on the land facing Asa Dam Road from NUT Secretariat up to back of Gari Alimi Hospital which form part of the land claimed by the plaintiff/respondent. (Ground 2).
3. Whether the land awarded to the plaintiff/respondent is certain, definite and identifiable and that the perpetual injunction thereon imposed on the defendants/appellants was proper. (Ground 5).
4. Whether the land shown to the court at the locus in quo inspection is the same land as contained in Exhibits 1, 2 and 2A and the same land awarded to the plaintiff/respondent.” (Grounds 3 and 4).

The plaintiff in the court below died and was replaced by his son Ibrahim Kasandubu who is now the respondent to this appeal. The respondent filed a brief of argument and identified two issues for determination:-

“1. Whether on the totality of the evidence before the court the plaintiff justified the allegation of trespass made against the defendants/appellants. (Grounds 1 and 2).

2. Whether the issue of definitive certainty of the land in dispute call for determination in this suit.” (Grounds 3 – 5).

The respondent in his brief raised preliminary objection to grounds 2, 3 and 4 of the grounds of appeal as being incompetent and contrary to Order 3 rule 2(2)(4) Court of Appeal Rules 1981.

During the course of oral argument the learned Senior Advocate for the respondent conceded that he did not give a notice of preliminary objection in accordance with the Rules of Court before raising the preliminary objection in his brief of argument. I was therefore not minded to deal with the objection as it was not properly raised. However both sides had argued on the point. While the Senior Advocate for the appellants submitted that the grounds were in order the learned Senior Advocate for the respondent submitted otherwise.

I have taken the trouble to look at grounds 2, 3 and 4 of the grounds of appeal to satisfy myself whether they are proper or not. Without their particulars they read as follows:-

“Ground 2. The learned High Court Omu-Aran erred in law and on facts when in its judgment held as follows:-

‘On the contrary, the stretch of land directly facing the Asa Dam Road from NUT Secretariat stretching up to the back yard of Geri Alimi Hospital, has not been shown to be in the school possession or has it any title to it.’

“Ground 3. The learned trial Judge erred in law and on facts when in his judgment on page 12 he stated as follows:

‘The identity of the land disputed is very important. The plaintiff was not in any doubt at all about his own land. This he showed at the inspection of the locus. He showed structures erected with his permission. He showed the encroachment. He was able to establish that on both sides of the Asa Dam Road, he allocated lands to people (sic) who have built houses and he gave the root of his title on the land described in Exhibit 2 and 2A to P.W.1′

Ground 4. The learned trial Judge erred in law and on facts when he award land that lacks definitive certainty to the plaintiff.”

They are grounds of mixed law and facts and are proper in my respectful view.

On the 1st issue the learned Senior Advocate for the appellants submitted that there were many conflicts between the evidence of the respondent and his pleadings. For example he claimed as at March 1986 that he bought the land over 20 years previously but in his evidence he said that he bought the land in 1972. He highlighted some of these conflicts and submitted that the respondent failed woefully to prove his case and the trial Judge was wrong to have given judgment in his favour.

In reply to this the learned Senior counsel for the respondent submitted that the respondent pleaded his right of title to the land in dispute from his purchase of the land from P.W.1. He pleaded the agreement of sale, alienation permit and site plan Exhibits 1, 2 and 2A. He led evidence in proof of this and P.W.1 confirmed the sale. He said that the appellants did not discredit the respondent’s evidence and that of the witness. The trial Judge was therefore right in giving judgment for the respondent.

Where a plaintiff claims for trespass and injunction and the defendant acknowledges that the land belongs to him, the plaintiff in order to succeed has to prove not only that he was in possession of the land when the trespass was committed, but also that his own title to the land in dispute is better than that of the defendant. See the case of Idesoh v. Ordia (1997) 3 NWLR (Pt.491) P. 17. In the present case the respondent tendered documents to show that he bought the land in dispute. He called P.W.1 who sold the land to him and P.W.1 who confirmed the sale. On the other hand the appellants barely stated that the land belonged to them and that they had a certificate of occupancy over it but did not tender the certificate of occupancy. As between the respondent and the appellants, the appellants clearly showed a better title. I am unable to see any serious conflicts between the pleadings and the evidence given that would warrant my interfering with the facts as found by the learned trial Judge with regard to title.

On the 2nd issue the learned Senior Advocate for the appellants submitted that the trial Judge was wrong in laying the onus of proof on the defendants/appellants on the land facing Asam Dam Road from NUT Secretariat up to the back of Geri Alimi Hospital which forms part of the land claimed by the respondent. He said that in a civil matter the burden of proof is squarely on the plaintiff to prove his case to the satisfaction of the court. He cannot rely on the weakness of the defence. He referred to the case of Achibong v. Ita 14 WACA 520 at P. 522.

In reply to this the learned Senior Advocate for the respondent submitted that while it is true that in a civil claim the burden of proof lies on the claimant, this however may shift when the claimant leads evidence that is admissible in law, credible and acceptable to the court, the other side has to prove averments made in defence in order to demolish the evidence given by the claimant. He referred to sections 137 and 139 of the Evidence Act.

It is clear from sections 137 and 139 of the Evidence Act, which I do not intend to reproduce in this judgment that the burden of proof in a civil matter is not static. Sometimes it moves from side to side. If a claimant proves certain facts which would give a judgment to him, the defendant has a burden of proving facts that would establish otherwise. The trial Judge at pages 86 to 87 of the record considered the hopelessness of the appellants’ defence. Two of the defendants before that court, namely, Kwara State Education Management Board and the Commissioner for Education Kwara State who were 3rd and 4th defendants did not defend the action at all even though they were represented by counsel. The witnesses who gave evidence on behalf of the appellants did not show any particular knowledge of the extent of the College land. The trial Judge then weighed this evidence against that of the respondent and his witness and came to the conclusion that the respondent had proved his claim. It is certainly neater and more usual for a trial Judge to evaluate the case of a claimant before that of a defendant. Be that as it may, the procedure adopted by the trial Judge in considering the hopelessness of the appellants’ defence first does not mean that he shifted the burden of proof on the appellants. From the record he considered both sides before coming to the conclusion that the respondent proved a better title to the disputed land.

On the 3rd issue the learned Senior Advocate submitted that the land awarded to the plaintiff/respondent is uncertain and indefinite. He said that a court should not do anything which is likely to worsen the situation already created. Therefore in the declaration of title to land and an application for injunction, it is necessary to have the land in dispute properly identified with certainty. He referred to the following cases: -Kwadzo v. Adjei 10 WACA 274; Nwose v. Mbaekwe (1973) 3 ECSLR (Pt.1) 136 and Ajide Arebe v. Ogunbiyi Asanlu (1980) 5-7 S.C. 78.

In reply to this the learned Senior Advocate for the respondent submitted that the identity of the land in dispute was not an issue before the lower court as both sides knew the land in dispute. He relied on the cases of Chief Ibuluya & Ors. v. Dikibo & Ors. (1976) 6 S.C. 97 and Nwoke v. Okere (1994) 5 NWLR (Pt.343) 159 at 170.

It is trite law that where the parties to an action in respect of land in dispute know precisely what area is in dispute a plan is not absolutely necessary for maintaining an action for trespass and injunction in respect of that land. See the cases of Nwoke v. Okere (supra) and Motanya v. Elinwa (1994) 7 NWLR (Pt.356) 252. From the pleadings and evidence adduced in the court below, the identity of the disputed land was not an issue. Both sides clearly knew the extent of the land in dispute. In fact, the 1st appellant put it thus in his cross examination:-

“The land in dispute is between Tippers Owners Association Structure and Dr. Aluko’s Geri Alimi Hospital.”

It therefore followed that the need to establish the boundaries of the disputed land with definitive certainty does not arise in the situation of this case. An injunction can also lie in respect of the disputed land as both parties know it.”

On the 4th issue the learned Senior Advocate for the appellants submitted that the certainty of the land in dispute is unknown both to the trial court and the respondent and as it was not shown to the court through the visit to the locus in quo, the extent of the measurement of the land. He said that it is trite law that where evidence as to boundaries of a piece of land on which the declaration is claimed is inconclusive declaration should be refused. He referred to the case of Oke v. Eke (1982) 12 S.C. 218 at P. 247 and the case of Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182.

In reply to this the learned Senior Advocate for the respondent submitted that where there is a claim of trespass without a claim for declaration of title or where the land in dispute is well-known to the parties, the tendering of a survey plan can be dispensed with. Recited in support the case of Motanya v. Elinwa (supra) where the Supreme Court held that where parties to a land in dispute know the boundaries of the land and unmistakenly admitted that in their pleadings, there is no need for a trial court to make findings of facts of the boundaries of the land.

I agree with the submission of the learned counsel for the respondent that in a case where the identity of the land in dispute is clear to both parties from the pleadings, the question of making findings of fact of the boundaries with certainty does not arise. See the case of Mark Ugbo v. Anthony Aburime (1994) 9 SCNJ 23; (1993) 2 NWLR (Pt.273) 101.

From the facts of this case it is clear that both parties knew the disputed land and both parties were laying claim to the disputed land. The trial Judge held that the respondent proved a better title. The claim of the respondent was not for a declaration of title. It was for trespass and injunction and the trial Judge accordingly granted the injunction sought I see no cause to interfere with the order of injunction made as I am of the view that it was correctly made.

From all I have said in this appeal, I am of the firm view that it is lacking in merit. Accordingly, I hereby dismiss the appeal with costs of N1,500 in favour of the respondent.

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Other Citations: (1997)LCN/0308(CA)

Alhaji Idris Adamu & Ors V. Hajiya Jummai Bashiru & Ors (1997)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

In a motion on notice, the applicants herein, prayed for:

“(a) An order of stay of proceedings in this case pending the determination of the applicants appeal to the Court of Appeal.

(b) And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.”

The application was brought pursuant to Order 3 rules 1 and 3 of the Court of Appeal Rules. It was supported by a nine paragraph affidavit. A further and better affidavit of six paragraphs was also filed by the applicants. The respondents on their part filed a six paragraph counter-affidavit. Some annextures were also exhibited.

In moving the motion, learned counsel for the applicants relied on all the paragraphs of the affidavit in support, the further and better affidavit and the annextures exhibited therein. He made copious submission that the main grouse of the applicants was that at the trial Area Court Nassarawa Gwong, Jos, where the suit was initiated, the trial court made distribution of the estate left by one Alhaji Garba Adama, the deceased. The parties before the trial Area Court, he contended further, indicated their agreement to the distribution made by the trial court. On the appeal before the lower court, learned counsel submitted that there were no appellants before the lower court as the case was reported to the lower court by inspectorate of the Area Court Division and as the lower court, by its proceeding of 25/6/96 had terminated the appeal before it. There was therefore no competent appeal. Learned counsel filed a motion on 23/10/96 so that the lower court could strike out the appeal but his application was refused on the 9/12/96.

Learned counsel submitted further that he filed another motion for stay of proceeding but was equally refused on 29/1/97.

It was the contention of learned counsel for the applicants that they filed their appeal in time and by virtue of the provision of section 223(1) of the 1979 Constitution; their appeal was competent as the section did not differentiate between an interlocutory appeal or an appeal on a final decision of a court. Learned counsel for the applicants finally adumbrated on the general principles which govern the grant of an application for a stay of proceedings. It was his view also that there is no distinction between the principles governing a stay of execution or proceeding under the Common Law and those under Islamic Law. He urged this court to grant the application.

Learned counsel for the respondents in his submission relied on the paragraphs of the counter-affidavit. In opposing the application, learned counsel formulated two issues:

(a) Whether there is a valid appeal filed at the Sharia Court of Appeal or Court of Appeal.

(b) If answer to (a) above is in the affirmative whether the applicants have satisfied the laid down conditions for the grant of stay of proceeding under the Sharia.

Learned counsel argued that by the combined effect of section 223(1) of the 1979 Constitution and Section 25 (2) of the Court of Appeal Act, 1976 (as amended) an appellant shall enter an appeal to the Court of Appeal on final decisions within 3 months whereas same shall be entered within 14 days if interlocutory from the date of delivery. The applicants, he contended, had a duty to explain why they were unable to appeal within the stipulated period. It was his view that as the ruling sought to be appealed against was delivered on 9/12/96 and appeal entered on 20/1/97, There was a delay of 3 days. Thus, as appellants did not seek for leave and enlargement of time to appeal, the Notice of appeal filed was invalid. There was therefore no competent and subsisting appeal before this court.

On the second issue, learned counsel for the respondents tried to draw distinctions between the principles for Stay under Islamic Law and the Common Law. He argued that the applicants have failed to show in their affidavits where the decision of the lower court has gone contrary to any NASS (text). It was argued for the respondents that what was before the lower court was an issue of distribution of estate of a deceased person. Learned counsel argued further that what delayed the matter at the lower court was that the applicants admitted that they had sold most of the properties left by the deceased person and that they settled his debts. Applicants promised to render an account of the estate of the deceased before the lower court but failed to fulfill their promise. He submitted that the issue of indebtedness of the deceased was paramount and as a first charge on the estate of the deceased that had to be determined before any distribution of the whole estate could be embarked upon. It will not therefore, be in the interest of Sharia to stay the proceeding before the lower court. As the ruling of the lower court was declaratory, it cannot be stayed. Learned counsel for the respondents cited some authorities from Siraj al alik Sharh Ashal Al-.masaliki Vol. 1, by Ibn Husnaini; Al-Mawarith fi al-Shariat al Islamiyau ‘Ala Dhau’ i Al-Kitabi Wai Sunnati, by Al Sabuni, A. Al-Mawarith fi al Shariati Al Islamiyati; 4th edition by Makhluf, M: figh Al-Sunnah, Vol. 3 by Sabiq, S. He finally urged the court to refuse and dismiss the application.

In treating this application I think it is very necessary to determine some preliminary but important issues, that is to say; whether there is a subsisting appeal before the lower court as well as before this court, before an order for stay of proceeding can be granted or refused. Let me start with the appeal before the lower court and I will start with the ruling of 9/12/96. In that ruling, the learned kadis of the lower court stated:-

“To our mind the said proceeding of 25/6/96 entirely from beginning to the end of it does not in any way terminates (sic) the appeal before this Hon. Court having regards to the Report of the Inspector of Area Courts to the Sharia Court of Appeal of 11/9/96.”

In their counter-affidavit, the respondents averred in paragraphs 3 (g) as follows:

“That the Quaranic heirs being dissatisfied filed an appeal at the Sharia Court of Appeal, Jos sometimes in 1991”

By the provisions of section 2(3) of the Sharia Court of Appeal Rules, 1960 (the Rules) an appeal to the Shaira Court of Appeal is deemed properly entered if it is filed through any of the following three ways:

(a) In the form of a petition in writing presented by the appellant or some person duly authorized to do so on his behalf; or

(b) With the permission of the court, by the appellant dictating his prayer to the Registrar or other Officer of the Court; or

(c) By the appellant stating orally his prayer to the court and the appellant shall, unless the court otherwise directs, attach to the petition or produce to the Registrar or the court as the case may be, a copy of the order or decision appealed against. (Italics supplied).

There was no dispute that there was some sharing of the estate left by the deceased conducted by the trial court. Some members of the deceased’s family were dissatisfied with the sharing by the Area Court. They petitioned the Director of Area Courts. This was admitted by the applicants in their further and better affidavit;

“3(g) That the sharing done by the Area Court was acceptable to the respondents except two of them i.e. Hajiya Jummai Bashiru and Hajiya Yelwa Yusufu who then applied to the Director of Area Courts to review the case.”

In exercise of powers conferred on him, the Director of Area Courts, after reviewing the case, wrote and submitted a report to the lower court. Based on that report, the lower court commenced hearing of the appeal on 25/6/96. Now, considering the above circumstances, I am of the firm view that there was a valid and subsisting appeal before the lower court. This is because from whichever angle one looks at the issue, one is bound to come to the conclusion that there was a subsisting appeal before the lower court. There is no doubt that the Director of Area Courts did not form one of the parties before the trial court. But from the provision of section 50(1) of the Area Courts Edict, 1968, the inspector of an Area Court (Director) has been conferred with such power of making report to an appeal court. The section stated:

“50(1) An inspector, if in his opinion there has been miscarriage of Justice in any case before an Area court to which he has access under the provisions of section 47, may of his own motion or in his absolute discretion on the application of any person concerned, report that case to the court to which an appeal in such case would lie.”

In the absence of anything to the contrary, I hold that there was a valid and subsisting appeal before the lower court.

Another vital point is that once the lower court is seized of an appeal it has the power to exercise the rules specified by section 7(1) & (2) of the Sharia Court of Appeal Law 1960. This section, especially in paragraph (2) states as follows:

“7(2) The court shall not normally re-hear or re-try the case but if it shall be necessary for the purpose of elucidating or amplifying the record of the court below and arriving at the true facts of the case the court may re-hear or re-try the case in whole or in part and may-

(a) allow or require, witnesses to be called, whether or not they gave evidence before the court below;

(b) order any reference to be made;

(c) call for any document or other exhibits;

(d) inspect any object or place;

(e) call for and examine all original records of the court below;

(f) adjourn the hearing from time to time and place to place;

(g) door order to be done anything which the court below has power to do or order,

(h) generally exercise any of the powers conferred upon it by section 10 of the Law” (Italics supplied)

In view of the above provisions and in addition to the power conferred on the Sharia Court of Appeal by section 242 of the 1979 Constitution of the Federation (as amended) and section 50(3) and (4) of the Area Courts Edict I hold the view that the lower court was quite right in adopting the review procedure of the case on appeal as well as in making of any justifiable order or orders as the Justice of the case would require. Further, it should be noted very well that the law, practice and procedure applicable in the Sharia Court of Appeal of a State are as regulated by the 1979 Constitution (as amended), the Sharia Court of Appeal Law and the Rules; Islamic (Civil) Law both substantive and procedural and the Area Courts Edict of 1968 (as amended in various States), The Lower Court was, in my view, acting within its limits.

On the second preliminary point i.e. whether there is a competent appeal before this court or not, it is necessary to determine this issue as well, as it lays the pivot for this application. The argument of learned counsel for the respondents is that there was no valid appeal before this court as the Notice of Appeal was filed out of time and that no leave for doing so was sought and granted by either the Lower Court or this Court. Leave from any of the two courts, he argued, was very necessary as the appeal was on a ruling of the lower court Learned counsel relied on section 223(1) and (2) of the Constitution and section 25 (2) of the Court of Appeal Act 1976.

In his reply, learned counsel for the applicants submitted that the import of section 223 (1) of the constitution is that an appeal whether on final or interlocutory decision of a Sharia Court of Appeal is appealable as of right without the necessity of asking for leave of court. He argued that both sections 223 (2) and 25(1) of the Constitution and of the Court of Appeal Act respectively, are worded in a general form whereas section 223(1) is specific and by rule of interpretation, the specific provision must prevail.

It appears that learned counsel for the applicants missed the point. The provisions of section 223(1) and (2) of the Constitution and section 25 of the Court of Appeal Act are very clear and unambiguous. Section 223 of the 1979 Constitution (as amended) states:

“223(1) An appeal shall lie from the decisions of the Sharia Court of Appeal of a State to the Federal Court of Appeal as of right in any Civil proceedings before the Sharia Court of Appeal with respect to any question of Islamic Personal Law which the Sharia Court of Appeal is competent to decide.

(2) Any right of appeal to the Federal Court of Appeal from the decision of a Sharia Court of Appeal conferred by this section

(b) Shall be exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. (Italics supplied).

Section 25 of the Court of Appeal Act, 1976 (as amended) States as follows:

“25(1) Where a person desires to appeal to the Court of Appeal he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.”

Sub-section 2 of the section States:

“(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are;-

(a) in an appeal in a civil cause or matter fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”

There is no dispute from any of the parties that the present appeal arose from the ruling of the lower court of 9th December, 1996 (as borne by the record of appeal) exhibited to the application as annexure AI. From the heading and contents of that decision it is an interlocutory ruling. It is thus caught up properly by the above provision of section 25(2) (a) of the Court of Appeal Act. In order to satisfy the requirement of this provision, an applicant has to;

(a) apply for extension of time within which to seek for leave to appeal

(b) get the requisite leave to appeal and

(c) ask for extension of time within which to file his Notice of Appeal.

It was the submission of learned counsel for the respondents that there was no application before the Lower Court or before this Court in fulfilment of any of the above requirements. From the record of this appeal learned counsel’s submission cannot be faulted. It is true that no such application was ever filed by the applicants. The attitude of the Supreme Court and this court on the issue of respect for rules of court is quite clear. Rules of court are meant to be obeyed. see; Ezegbu v. F.A.T.E. Ltd (1992) 1 NWLR (Pt.216) 197, CCB (Nig.) Plc v. A.G. Anambra State (1992) 8 NWLR (Pt.261) 528.

It follows naturally that where an appellant/applicant fails, refuses or neglects to conform with laid down rules of procedure, he should not expect a favourable consideration of his appeal or application by the court. I am quick to add here that learned counsel for the applicants misconceived the import of section 223 especially sub-section (2)(b) which requires compliance with “rules of court for the time being in force regulating the powers, practice and procedure of the Federal Court of Appeal.” The provision of the Court of Appeal Act, 1976 (as amended) embodies the current law pertaining to the mode and manner of appealing to this court. I think it is common knowledge within the legal circle that filing of an appeal within the time stipulated by a statute or where time has been extended by a court for the filing or where leave of court is obtained for doing same, an appeal purported to be filed in violation of the statutory provision amounts to no appeal at all. I find support in the recent Supreme Court decision, per Belgore, JSC in Oruche v. C.O.P. (1997) 4 NWLR (Pt.497) 1 page 5 where it has been stated as follows:

“One of the cardinal principles of our judicial system is the rights to various stages of appeal. Though right of appeal is not always of right, all appeals are to be filed within the periods specified by the various substantive statutes and the constitution. Once a party has failed to appeal within the time stipulated in the statute, he should not be despondent, as he in certain cases can ask for enlargement of time within which to do so. But the court will only accede to this enlargement of time on disclosure of good and substantial reasons why the time specified within which to appeal has not been adhered to. Williams v. Hope Rising Voluntary Society (1982) 1 All NLR 1. The Court’s discretion will only be granted if it is clearly shown that the failure to appeal within time stipulated by law was not due to dilatoriness and deliberate non observance of certain procedure and it was not due to the fault of the appellant. Of course added to these is that the grounds of appeal are substantial and arguable in the light of the facts apparent on the record.”

In the present appeal, the situation is even worse; leave to appeal or extension of time within which to appeal or seek leave to appeal or extension of time to appeal as the case may be, was not obtained from either the lower court or this court. Now, granted that the misconception of learned counsel for the applicants that no leave was required before an interlocutory decision of the lower court be appealed against was correct, then, what stopped the applicants from asking for extension of time within which to file their appeal? That requirement too was not complied with.

Thus, from the sum total of what I have so far said, it is clear to me that there is no valid and subsisting appeal before this court. The practice of tying interlocutory applications to the substantive suits or appeals has for long been respected and applied by the courts. Where prima-facie, there is no competent suit or appeal subsisting, there cannot arise generally, interlocutory applications from the non-existing suit or appeal, see: Section 219 of the Constitution of the Federation 1979; Order 3 Rule 1 of the Court of Appeal Rules, 1981 (as amended) Macfoy v. UAC Ltd. (1961)3 All ER, 1169.

As there is no competent appeal before this court, the present application lacks competence and must collapse. Since the application is incompetent there is no point belabouring the issue of stay of proceeding before the lower court. Accordingly the application is hereby struck out for want of jurisdiction. The respondents are entitled to N1,500 costs.

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Other Citations: (1997)LCN/0307(CA)

Nigeria Merchant Bank Plc V. Aiyedun Investment Limited (1997)

LawGlobal-Hub Lead Judgment Report

AYOOLA, J.C.A.

This is an appeal from the decision of the Lagos High Court (Alabi, J.) giving judgment for the plaintiff in the sum of N4,426,075.00, being as to N1,000,000 refund of money deposited with the defendant by the plaintiff and, as to the balance, interest on the said sum.

The defendant who is the appellant in this appeal is referred to as the ‘defendant’, while the respondent who was the plaintiff at the trial is referred to as the ‘plaintiff in this judgment. This appeal is limited to the award of the sum of N3,426,075 as special damages. The main complaints of the defendant on this appeal are that there were no averments in the pleadings in support of the claim for interest as special damages; and that in any event the plaintiff did not establish its claim for special damages as required by law nor had it established a claim for interest and the quantum of such claim.

The background facts as found by the learned trial judge, were as follows. The plaintiff and one Alfredo Enterprises Limited entered into a joint venture agreement pursuant to which the plaintiff deposited the sum of one million naira into a deposit account with the defendant. The plaintiff and Alfredo Enterprises Ltd (‘Alfredo’) entered into an agreement whereby it was agreed between them that the defendant should ‘hold a lien and exercise the right of set off on our deposit account with Nigeria Merchant Bank … for as long as the company remains indebted to the Bank ….’ The defendant claimed to have exercised the right to set off One Million Naira plus the interest accruing thereon up to 23rd April 1992 on the plaintiff’s deposit account to the loan account of Alfredo. The learned judge found that there was no basis or justification for the defendant to exercise the right of set-off over the deposit of One Million Naira which the plaintiff kept with it, and that the plaintiff was entitled to a refund of that sum. Against that finding there bas been no appeal. As earlier said, this appeal concerns the award of interest.

On the question of interest, the judge was of the opinion that: ‘The fact that the plaintiff is entitled to interest is not in doubt.’ He buttressed this opinion by reference to paragraph 16 of the statement of defence wherein the defendant averred that it transferred the principal sum plus interest up to 23rd April 1992 from the plaintiff s deposit account to the loan account of Alfredo. The obvious inference from that averment is that the plaintiff’ deposit had been attracting interest. The judge relied on the uncontroverted evidence of the plaintiff’s expert witness to fix the rate and quantum of interest.

At the forefront of the argument of counsel for the plaintiff on this appeal is the pleading question. Plaintiff’s counsel submitted that the evidence which was adduced to establish the claim for special damages or interest related to facts which were not pleaded and therefore went to no issue. The plaintiff pleaded in regard to the deposit account which was the basis of his case thus in paragraph 9 of the statement of claim:

“The plaintiff on or about the 29th day of November 1986 deposited a sum of N1, 000,000 (One million Naira) in its name with the defendant, this deposit account in the plaintiff’s name being intended to establish the good faith of the plaintiff.”

Part of the plaintiff’s case on this appeal is that the plaintiff’s pleadings did not justify the admission of evidence of the defendant’s liability to pay interest on the deposit account. It was submitted that the plaintiff should have pleaded the agreement of the parties as regards interest and the terms of such agreement. It has not been denied that there was ample evidence from which it could reasonably be inferred that the deposit account did attract interest.

The letter (Exh. P5) dated 13th October, 1989 written by the defendant to the plaintiff concerning interest on the deposit is one such piece of evidence. However, the defendant now says that that and other pieces of evidence going to liability to pay interest on the deposit and quantum of such go to no issue. The question is: was the defendant right in that contention? Part of the answer, I believe, is to be found in general banking law, If the averment that a deposit account implied a liability to pay interest thereon, the fact that the pleadings did not go further expressly to plead an agreement as to interest would not matter. Where there was a particular agreement as to interest, the party who relies on that agreement should plead it. I do not think that was the position in the present case. I think the point had been well made by this court (Kaduna Division) in the case of Angyu v. Malami (1992) 9 N.W.L.R. (Part 264) 242 at pages 254-255 as follows per Uthman Mohammed, J.C.A. (as he then was) as follows:

“I believe that it has gained notoriety which requires no proof that the advantage that a customer gains by opening a deposit account is that the banker pays interest on sums paid into such account See Chitty on Contracts. Specific Contract, 24th Edition, para. 2586, at page 246. I do not agree that the existence of a deposit account does not per se, involve payment of interest. It is plain without saying so that it does.”

In my view, the averment that the defendant did open a deposit account in the name of the plaintiff implies an obligation to pay the plaintiff interest on the sums in the account. That implication is confirmed by the conduct of the defendant in writing the letter which had been referred to as exhibit P.5 informing the plaintiff of the rates of interest operating from time to time, and in transferring not only the principal sum of N1, 000,000 but also the interests accruing thereon to offset the alleged indebtedness on the account of Alfredo, as pleaded in para. 16 of the statement of defence. I think it is really too late in the day for the defendant now to contend that the evidence as to liability of the defendant to pay interest on the deposit account went to no issue. This is because, the plaintiff is having averred that the account was a deposit account went on to claim interest thereon. If the defendant had wanted to contest the question of its liability to pay interest, it would have denied that liability by its pleadings. I may well observe, in passing, that were it to do so, it would have been had put to explain paragraph 16 of its statement of defence and the letter Exh. P.5. It must be said that the rule that evidence of facts not pleaded goes to no issue is not a technical rule but one that is founded on justice and the principles of fair hearing. Where, therefore, on the totality of the pleadings, the court can come to the conclusion that the defendant knew what the plaintiff was claiming and the facts on which he based his claim, it cannot be said that the demands of fair hearing had not been met merely because the plaintiff had failed to couch his pleadings in a particular manner. The averment in this case that there was a deposit account followed by a claim for interest thereon is sufficient to put the question of liability to pay such interest in issue. I come to the conclusion that the evidence in regard to the question of interest was in conformity with the pleadings.

However, the liability to pay interest would not imply that accrued interest could be claimed as special damages, nor would the averment, whether express or implied, as to the defendant’s liability to pay interest determine the circumstances in which interest could be claimed as damages. In so far as the liability to pay interest is founded on contract, any interest accruing on the deposit account up to the date of the breach by the bank to pay the money due on the deposit account when demanded or due according to the agreement of the parties, should strictly be claimed not as damages but as money due on the contract. The question of damages would arise as a result of any loss, suffered by the customer by reason of the breach.

The failure of the Bank to pay the money due on the deposit account on demand by the plaintiff was a breach of contract: (See President of India v. La Pintada Campania Navigacion S.A. (1985) A.C. 104, 127.) Such breach would justify a claim for compensation. It would not really matter if the compensation claimed is described as interest or as damages, as long as the compensatory nature of the award for loss suffered as a result of withholding money to which the plaintiff is entitled is borne in mind.

In the House of Lords case of Riches v. Westminster Bank Limited (1947) A.C. 390 at p. 400 Lord Wright said:

“… in my opinion … the essence of interest is that it is a payment which becomes due because the creditor has not had his money at the due date. It may be regarded as representing the profit he might have made if he had had the use of the money, or conversely the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation. From that point of view it would seem immaterial whether the money was due to him under a contract express or implied or a statute or whether the money was due for any other reason in law. In either case the money was due to him and was withheld from him by the debtor after the time that the payment should have been made, in breach of his legal rights, and interest was a compensation, whether the compensation was liquidated under an agreement or statute … The essential quality of the claim for compensation is the same and the compensation is described as interest. For reasons that go back far in history the distinction between interest proper as it had been called, that is interest due under a contract, statute or the like, and interest by way of damages, that is, not due under an agreement express or implied has since been recognized in England whether in the ecclesiastical or common law courts.”

In Webster v. British Empire Mutual Life Assurance Co. (1880) 15 Ch. 169, 174 James L.J. said:

“…anything in the nature of interest can only be given, in my view, as damages for the wrongful detention of money which ought to have been paid.”

Notwithstanding that an award of damages in the nature of interest can be given for wrongful detention of money which ought to have been paid, it is nevertheless useful to bear in mind the distinction between contractual interest which is interest agreed as consideration for the creditor conferring upon the debtor (the Bank) the right to use the money lodged in the deposit account, and operative during the contractual period, and other claim in the nature of interest for which the agreement as to interest in respect of the contractual period can no longer be used as basis.

In the present case, the contractual period terminated when the plaintiff by its solicitors wrote to the defendant on 25th July, 1992 making a demand “for the payment of the sum of N1, 847,329.24 … which represents total amount accruing to our clients deposit account with your organisation till date.” (emphasis mine).

That letter was exh. P. 9 at the trial. Any claim resulting from the failure of the defendant to pay the sum demanded and rightly accruing to the plaintiff on the deposit account can only be for compensation for unlawful deprivation of the money. If the amount claimed as compensation is described as interest it could not be interest proper calculated at the contractual rate but damages in the nature of interest, which by its compensatory nature and depending on the circumstances may be equal to the contractual rate or may exceed it or be below it. In this case, the plaintiff’s statement of claim had been silent as to any loss suffered by it by reason of the unlawful deprivation of the money due to it between the date on which Exh. P9 was written and that in which the action was commenced. Although in the relief, claims for interest were set out as’ special damages and the rates included, there were no averments in support of the claim for interest as special damages. The plaintiff should have averred that by reason of its being unlawfully deprived of the money to which it was entitled it had suffered loss that the particular loss was within the contemplation of the parties and the quantum thereof.

In my view there is no reason to belabour the issues raised by the parties in this appeal. I am in agreement with the defendant that the award of special damages was erroneous both because such claim was not properly pleaded and because exhibit P.22 relied on as establishing the quantum of such damages was; first, without factual basis in relation to any loss suffered by the plaintiff; secondly, because the figures mentioned therein is at variance with what the parties agreed to be accrued liability of the defendants up to the determination of the deposit agreement; and, thirdly, if loss suffered was to be on the basis of deprivation of money, the money the plaintiff has been deprived of was N1, 847,329.24 and the date of the withholding of the money in breach of contract was when a demand for its payment was made on 25th July, 1992. The loss suffered by the plaintiff as a result of the deprivation which could be compensated for in damages could only be assessed as from that date. The long and short of it is that the document Exh. P22 relied on by the judge should not have been relied on. Even if the question of special damages had properly arisen the report Exh. P22 is patently defective to be reliable evidence of the plaintiff’s loss. It seems unrelated to the cause of action as it erroneously varied the contractual rate during the currency of the contract and did not advert to the amount which the plaintiff had demanded from the defendant the refusal to pay which was the basis of the claim for special damages.

The learned judge had embraced the report Exh. P22 and used it uncritically in assessing damages. He was in error in so doing. He was also in error in his view that because the ‘plaintiff did not indicate an agreement to a variation of the contractual rate of interest that amounted to a rescission of the agreed rate of interest. The proper views, I think, are that the original rate of interest continued until it is varied by mutual agreement or until the contractual period ended. In this case, on the evidence, the parties are in agreement as to what was due to the plaintiff at the time when the contract came to an end pursuant to the demand by the plaintiff of the payment of the money due on its deposit account. There is no doubt that the plaintiff is entitled to that amount which consisted of principal sum and an accrued interest. Even though he claimed these as special damages, I think one should not insist on a preference for claiming it as money due on the contract. I would give judgment for what the parties have on the evidence agreed that was the money the plaintiff should have been paid in performance of the contract and which had been wrongfully withheld.

Entitlement to special, rather than general damages that is to say, compensation for loss for the unlawful deprivation of that money specially quantifiable and beyond what is the natural consequence of the deprivation of the money has not been pleaded or proved.

Before I part with this appeal, it is pertinent to advert to one pleading question raised in this appeal in regard to the consequence of a party pleading that he would rely on certain unspecified documents at the trial.

The plaintiff contended that such averment made the contents of such document part of the pleadings. In this case, the plaintiff in para. 30 of the statement of claim pleaded thus:

”The plaintiff at the trial will rely on all letters and documents between the parties pertaining to this suit.”

Although the principle is established that “if an agreement in writing is referred to in a pleading, it becomes part of the pleading and it is open to the Court to give the agreement its true legal effect; irrespective of the terms used in the pleading to indicate such effect”, that proposition of law should not be used to cover such averment as shown above which lacks specificity. Besides, a report, such as Exhibit P. 22 in this case, prepared by a witness for the plaintiff and tendered at the trial by the witness, cannot be described as ‘documents between the parties pertaining to the suit. At the appropriate time and when the occasion arises the true ambit of the proposition of law in such cases such as Banque Genevoise v. Spetsai Ltd. (1962) 2 SCNLR 310; (1962) 1 All N.L.R. 570 ought to be defined.

It is also expedient to state that had the plaintiff appealed from the decision denying him general damages he may have had a strong chance on this appeal of being awarded general damages. However, it will not be right for this court suo motu to consider the question of award of general damages which have not been in issue on this appeal.

Be that as it may, for the reasons which I have given in this judgment, I would allow the appeal to the extent only that the judgment of the court below will be varied.

I would set aside the judgment of the High Court entered in favour of the plaintiff in the sum of N4, 426,075.00 and in substitution therefore enter judgment for the plaintiff in the sum of N1, 847,329.24. The award of costs to the plaintiff in the Court below should stand. The defendants are entitled to costs of the Appeal which I assess as N3, 000.

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Other Citations: (1997)LCN/0305(CA)