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

LawGlobal-Hub Lead Judgment Report

EJIWUNMI, J.C.A. 

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

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

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

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

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

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

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

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

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

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

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

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

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

(ii) Estoppel by res judicata

(iii) Delay and acquiescence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i) Declaration of title to Achutu land

(ii) ?400 damages for trespass and

(iii) Recovery of possession and injunction.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

---

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

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

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A. 

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

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

(a) there was no such prayer before him;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LawGlobal-Hub Lead Judgment Report

KATSINA-ALU, J.CA.

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

The respondent as plaintiff claimed against the defendant as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i) ERROR IN LAW

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

PARTICULARS

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

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

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

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

ii) ERROR IN LAW

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Earlier on, the Supreme Court held:

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

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

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

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

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

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

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

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

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

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

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

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A. 

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

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

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

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

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

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

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

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

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

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

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

Paragraph 13:

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

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

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

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

(ii) the choice of the Res

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

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

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

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

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

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

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

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

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

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

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

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

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

Olayiwola Samuel V. Mr. Adewale Adedeji (1997)

LawGlobal-Hub Lead Judgment Report

AYOOLA, J.C.A. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A. 

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

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

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

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

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

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

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

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

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

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

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

Paragraph 13:

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

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

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

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

(ii) the choice of the Res

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

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

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

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

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

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

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

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

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

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

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

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

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

Umma & Anor. V. Alhaji Iliya Bafullace (1997)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against the judgment of the Katsina State Sharia Court of Appeal holden at Funtua delivered in Appeal No. K73/SCA/FT/136/91 on 18/2/92 whereby the appeal from the Upper Area Court was dismissed.

The facts of this case briefly put were as follows:-

“The appellants herein, as plaintiffs, sued M. Yusufu their Uncle and the respondent as defendants at the Dandume Area Court claiming the farmland which their deceased father left in the possession of M. Yusufu but which they saw in the possession of the respondent. The 1st defendant admitted that the farmland belonged to the deceased father of the appellants but claimed that the appellants gave him the farmland which he sold to the respondent at the cost of N180.00 but collected only N80.00.

The appellants called 2 witnesses, Yarbaba their stepmother and one Alhaji Ya’u. After hearing the evidence of the 2 witnesses, the trial area court gave judgment in favour of the appellants.

Dissatisfied with the judgment of trial Area Court, 2nd defendant/respondent appealed to the Upper Area Court Funtua. After listening to the parties and having gone through the records of proceedings, the Upper Area Court allowed the respondent to call a witness and re-called P.W.2 who acted as D.W.2 and who gave evidence in contradiction of his earlier evidence at the trial court. At the end of the day the Upper Area Court offered oath to the appellants which they declined to take. When the appellants declined to take the oath the Upper Area Court set aside the judgment of the trial Area Court and gave judgment for the respondent.

Dissatisfied with the judgment of the Upper Area Court the appellants appealed to the Sharia Court of Appeal. After listening to the parties and going through the records, the Sharia Court of Appeal affirmed the judgment of the Upper Area Court and dismissed tile appeal. Dissatisfied with this judgment of the Sharia Court of Appeal, the appellants have appealed to this court on the omnibus ground which was with the leave of this court granted on 4/6/97, substituted with three grounds. From the three grounds of appeal, the appellants have formulated three issues for determination in this appeal, viz:

1. Whether the procedure adopted by the Upper Area Court sitting on appeal was right in law?
2. Whether taking all the circumstances of the suit into consideration, a valid gift of the farmland can be said to have been made.
3. Whether there is a valid sale of the farmland in dispute to the respondent.

The respondent also formulated three issues which though couched in a different style and language boil down to the above three issues raised by the appellants in the appellants’ brief. Both parties have filed their respective briefs. Both learned counsel to the parties adopted these briefs filed herein on behalf of their respective clients and went further to address us viva voce to highlight some points. Learned counsel to the appellants Mr. Garba Shehu, after adopting the appellants’ brief deemed filed on 4/6/96 submitted on issue 1, that it was not shown that the evidence was not available at the time evidence was given at the trial area court. Learned counsel urged the court to allow the appeal. By way of reply, learned counsel to the respondent Mr. A.D. Garba after adopting to the respondent’s brief deemed filed on 17/6/97 urged the court to dismiss the appeal.

I have considered the submissions of both learned counsel to the parties on the issues raised for determination vis-a-vis the records and the prevailing law. It is intended to give my views on the points raised and canvassed by counsel to both parties. From the submissions of both learned counsel to the parties made orally as well as in their briefs, it appears that their arguments boil down to the three basic issues formulated supra by the appellants. I shall consider the issues as set out by the appellants.

Issue I which I regard as the basic issue in this appeal deals with whether the procedure adopted by the Upper Area Court on appeal in entering judgment in favour of the respondent and confirmed by the Sharia Court of Appeal (hereinafter referred to as the SCA) was in accordance with Islamic Law? On this issue learned counsel to the appellants by way of summary at page 5 of the appellants’ brief submitted that the procedure adopted by the Upper Area Court (hereinafter referred to as the UAC) sitting on appeal is contrary to the rules of procedure and natural justice. Learned counsel further submitted that the Upper Area Court ought not to have allowed the calling of new or additional evidence as the circumstances of the case do not warrant same. By way of reply, learned counsel to the respondent by way of summary at page 8 of the respondent’s brief on Issue I submitted that the UAC adopted a proper procedure in calling additional witnesses since the issue is not clearly comprehended and proved at the trial Area Court. Learned Counsel further submitted that on the finding from the additional evidence that the appellants denied being given part of the proceeds of the sale as given by the witnesses recalled, the court offered oath to the appellants which they declined to take, the UAC was right in entering judgment in favour of the respondent. Learned Counsel also contended that this procedure adopted by the UAC and confirmed by the SCA was in accord with Islamic Law Principles.

I have considered the submissions of both learned counsel to the parties on this basic issue vis-a-vis the records and the prevailing law. Their arguments boil down to:

“1. Whether the Upper Area Court was right in law in calling additional witnesses and recalling P.W.2.

2. Whether the Upper Area Court was right in offering oath to the appellants on their denial with respect to being given part of the proceeds of the sale.
3. Whether the above procedure adopted by the Upper Area Court confirmed by the Sharia Court of Appeal was in line with Islamic Law?

On the 1st sub issue as to whether the Upper Area Court was right in law in calling additional witnesses and recalling P.W. 2, I have considered the submissions and both learned counsel to the parties vis-a-vis the records and the prevailing law. This sub issue had been resolved by S.5(a)2 of the Kaduna Area Court Edict as amended applicable in Katsina State which provides thus:-

“In the exercise of its power under this section a court may hear such additional evidence as it considers necessary for the just disposal of the case.”

The question has been asked by the parties as to whether or not the additional evidence adduced was not available at the trial Area Court, page 25 line 30 of the Upper Area Court record answers this in the negative. It can also be seen that there is nowhere in the record of the trial Area Court where it is indicated that Mairuwa gave evidence. In the circumstance, it is clear that the law supports the action of the Upper Area Court in calling additional witnesses. As to whether the recalling of P.W.2 was justified in Islamic law particularly when he gave evidence in favour of the respondent, I have considered the arguments of both sides on this matter. The position under Islamic Law is very clear on this point This has been clearly stated in Maliki Law by Ruxton on page 297 Rule 1536 to the effect that it is permissible under Islamic Law for a witness to give evidence in the same case in favour of one another. The question to answer now is whether the additional and recalled evidence are necessary for the just disposal of the instant case. To answer this question, it is necessary to have a short recourse to the records. The facts of this case relating to the additional and recalled witnesses are that they – Alhaji Yau (P.W.2 recalled as D.W.2) Mairuwa and Yanbuja all testified and confirmed to the Upper Area Court that the balance of N100 the balance of the proceeds of sale of the disputed land was shared among the appellants, Halima the deceased’s mother, Yarbaba the wife of the deceased. Their testimony was not challenged by the appellants or any of the other beneficiaries. On the basis of this piece of evidence both appellants were requested by the Upper Area Court to take oath on the Holy Quran that they were not aware of the sale nor shared part of the proceeds and they declined so to do. The important thing to note here is that both the additional and recalled evidence reviewed supra are necessary for the just disposal of the instant case and I so hold. Consequently, I am of the view that both the calling of the additional witnesses and the recalling of P.W.2 by the Upper Area Court as confirmed by the Sharia Court of Appeal follow the laid down principles of the law and I so hold.

On whether the oath given to the appellants by the Upper Area Court was in line with Islamic Law? It needs to be stressed here that the parties no longer contest the ownership of the disputed farmland but they have shifted their controversy on whether the proceeds of the sale of their deceased father’s property was shared among the appellants and other heirs. The evidence of P.W.2 who was recalled as D.W.2 was clear and conclusive on this issue on the two occasions he testified. Thus at page 25 line 20 of the Upper Area Court record he stated thus:

“It was Ahmadu who shared it to them (referring to the appellants).”

This evidence was materially corroborated by Mairuwa at page 25 line 30 of the Upper Area Court records. The question raised by this piece of evidence is that the allegation of both appellants that they were not aware of the sale of the disputed farmland and their denial of sharing from the proceeds of sales of same had been punctured by this evidence as well as the refusal of both appellants to take the oath. Under Islamic Law, it is necessary for the appellants to take the oath moreso when the respondent has called two witnesses. It is clear that the oath was offered on the ground that the appellants denied being given part of the proceeds of the sale as well as having knowledge of the sale. Refusal to take the oath is detrimental to the case of the appellants. See Ruxton. Maliki Law, page 308 Rule 1693. It needs to be stressed once and again that the significance of the oath offered here is merely to confirm that the sale transaction was not conducted in secret and that it took place with the knowledge of the appellants. In the sum, I resolve this basic issue, in favour of the respondent.

Having dealt with the basic issue, I shall now take issues 2 & 3 together since the substance of the complaint in both issues as gathered from the submission of the appellants made orally as well in their brief was that the disputed farmland formed part of the estate of their deceased father which were not distributed among the appellants as heirs and which was sold without their knowledge and consent. The contention of learned counsel to the appellants was that such sale was void and that both the Upper Area Court and the Sharia Court of Appeal were wrong in law to enter judgment in favour of the respondent by offering oath to him. The learned counsel to the respondent argued that since the appellants were aware of the sale and they did not challenge same, they are deemed to have waived this right in that direction and the sale is valid. I have considered the arguments of both sides on both issues vis-a-vis the records and the prevailing law. The arguments boil down to whether under Islamic Law if the property of another person is sold in his presence or to his knowledge without any objection from him, can such a sale be presumed valid? This issue has come for consideration and determination in the Sharia appellate Bench of the Court of Appeal in this country to the effect that under Islamic Law, if a person sells property belonging to another and that other person was around and was fully aware of the transaction or came to know about it but stood by and did not take any action to recover his property or have the sale set aside and kept silent for up to one year, then he forfeits his rights to recover both his property and the purchase price. See Sarkin Makarfi Abdullahi v. Alhaji Garba Gimi (1961-1989) 1 SLRN 308 P.316. This statement of the Sharia took its root from the Islamic Law doctrine of “Bal’ ul contained in pages 176-177 of the book of Ihkamul Ihkam where the learned author stated thus:

“If the property of another person is sold in his presence and he does not object to the sale without any justifiable reason, the sale is valid. Also if he is absent and afterwards knows about it and the period exceeds one year the sale is valid.

In the instant case, as put by the Sharia Court of Appeal at page 36 of the records with which I agree:

“Even if the gift was not confirmed between them about this land his (P.W.2) confessional statement he made that they (i.e the appellants) were aware that the farmland was sold 5 years ago before they took the matter to court means they lost their rights let alone there were witnesses who confirmed that the balance of N100.00 was collected and distributed to them.”

The above finding of fact by the Sharia Court of Appeal summed up the position in this case. The appellants having been aware of the sale of their farmland waited for five years before challenging the sale transaction in court, they are under the Islamic jurisprudence deemed to have forfeited their right to recover their own share or its monetary equivalent. In the instant case the appellants were even given part of the proceeds of sale and they refused to swear to that effect. In the circumstance, there is a valid sale of the disputed farmland to the respondent as they had impliedly given their consent and I so hold.

The position under Islamic Law is that with their knowledge of the sale transaction they could have had the sale nullified if they had raised objection to same within a period of one year of such knowledge. This they had failed to do in the instant case. Having abandoned their right, they cannot come now to deny the sale. In the circumstance both issues 2 and 3 are also resolved in favour of the respondent.

In sum, the appeal fails and it is hereby dismissed with N500 costs to the respondent.

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Other Citations: (1997)LCN/0288(CA)

Alhaji Isola Are Ogele V. Alhaji Banni Gaa Budo Nuhu (1997)

LawGlobal-Hub Lead Judgment Report

ABDULLAHI, J.C.A. 

The appellant in this appeal was a plaintiff before the trial Upper Area Court Ilorin, claiming a piece of land. At the end of the trial after hearing evidence from both parties, the Upper Area Court dismissed the appellant’s claim.

The appellant was not happy with the judgment of the Upper Area Court and he appealed to the High Court of Kwara State. The appellant initially filed eight grounds of appeal before the High Court.

All necessary steps and processes for the hearing of the appeal were completed and the appeal was fixed for hearing when the appellant sought leave of the High Court by way of motion on notice to file and argue an additional ground of appeal as ground number nine.

The motion was moved. It was opposed by the present respondent. In opposing the motion, the respondent filed two counter affidavits in answer to two affidavits filed in support of the motion.

At the end of the day, the motion was granted by the High Court and the appellant was given leave to file and argue the additional ground of appeal.

It so happened that the additional ground of appeal raised a constitutional issue which goes to the jurisdiction of the trial Upper Area Court. In the light of that the learned senior counsel for appellant decided to argue that lone additional ground, without touching any of the eight original grounds filed.

The learned counsel for respondent, vehemently objected to the method adopted by the learned senior counsel, but the High Court in a short ruling overruled the objection of the learned counsel for respondent and agreed to hear the learned senior counsel’s argument on the additional ground only.

It may well be necessary to reproduce this short ruling of the High Court on this issue because it is a subject of a cross-appeal by the respondent. It reads thus:

“Court There is no doubt that the issue whether the decision of the UAC is nullity is fundamental and its decision on it (sic) is capable of disposing of the entire appeal.

It will not make sense to hear the entire appeal and only write judgment in respect of only one ground.

We would rather confine ourselves to the additional ground and consider the same, one way or the other.

Mr. Akintoye, Jr, is hereby overruled and should proceed to respond to the learned SAN’s argument.

So, that was what happened, arguments on the additional ground were advanced by both parties. At the end of the day, in a reserved judgment delivered on 16/5/96 by the High Court, Ibiwoye, Belgore JJ, the court dismissed the ground of appeal as lacking in merit. The last portion of the judgment reads as follows:-

“By the present position we are unable to agree with the learned senior advocate that the challenge of a court record may be through an affidavit. Rather we are in full agreement with the submission of the learned counsel for the defendant/respondent that it will be ultra vires for the appellate court to look outside the record of proceedings of the lower court to make a decision in the absentee of a challenge of the court record. It is our considered view therefore that the proceedings of the lower court on the day of its judgment is as recorded on pages 48 to 64 of the court record.

For the foregoing reasons we find that this ground of appeal has no merit and it is hereby accordingly dismissed.”

Their Lordships made no further mention of the fate of the original 8 grounds of appeal filed and also made no further order as to the fate of the decision of the trial Upper Area Court. They left everything at large.

The appellant was not happy with the decision and he appealed to this court. As, I mentioned earlier, the respondent was also not happy with an earlier ruling of the High Court, he also cross-appealed on that issue.

The parties filed their briefs of argument as well as reply briefs for both the main appeal and the cross-appeal.

Some preliminary objections were raised by both sides. The appellant’s preliminary objection was centred on the grounds of appeal as well as issues for determination formulated by the respondents, while the respondent’s objection was to the effect that no prior leave of court was sought and granted to adopt the unknown procedure adopted by the appellant to argue the appeal before the High Court.

I considered both preliminary objections and I found no substance in them. None of them was grounded on any good ground and I overrule both of them.

Now for the appeal and the cross-appeal.

The appellant formulated one over loaded issue for the determination of the appeal.

It reads as follows:-

“Considering the clear and mandatory provisions or section 33(3) of the Constitution of the Federal Republic of Nigeria 1979 which remains unamended and unaltered, section 29 of the Area Courts Edict of 1967 coupled with the clear averments in the affidavits of the appellant and the unequivocal admissions of the averments in the counter-affidavits of the respondent to the effect that the trial Upper Area Court delivered its judgment in chambers on 23/1/96, whether the lower court was right in dismissing the additional ground of appeal on the ground that the record of the lower court was not challenged.”

For his part, the respondent formulated 3 issues for the determination of the appeal. They read as follows:-

“1. Whether by the conduct of the appellant and in the absence of a specific challenge, an appellate court can rely on facts and evidence outside those contained in the compiled record of proceedings before it in its determination of an appeal and thereof declare unconstitutional the delivery in chambers the judgment of the Upper Area Court.

2. Assuming that the Upper Area Court, Ilorin delivered its judgment in chambers but considering the circumstances and antecedents of this case would the lower court be right to nullify such judgment of a native court (not of record) in the interest of doing substantial justice?
3. What is the effect of refusing to argue some grounds of appeal in the course of hearing and determining a substantive appeal.”

I think I can start with the cross-appeal. It arose from a ruling delivered earlier in time than the judgment on which the main appeal arose.

In his submission on this issue, the learned counsel for respondent/cross-appellant pointed out that originally eight grounds of appeal were filed that leave was granted to the appellant to file and argue an additional ground of appeal, thus making nine grounds of appeal to be argued. That the learned counsel for appellant argued only the additional 9th ground of appeal. That he raised objection to this approach but was overruled by the court and was called upon to reply. Learned counsel submitted that in the light of this situation the action of the learned senior counsel should be regarded as unilateral and since he decided not to canvass and adduce any argument on the remaining eight grounds, then the appellant should have been regarded or deemed to have abandoned the remaining 8 grounds of appeal.

Learned counsel went on to draw parallels between the position of pleadings in a trial and grounds of appeal in the determination of an appeal and submitted that the same consequent effect would arise if a party at a trial adduces evidence but left untouched some paragraphs of his pleadings. Legally the untouched paragraphs of the pleadings would be regarded as having been abandoned. That the same position would arise if a party advanced no arguments on grounds of appeal filed. The grounds of appeal would be regarded as having been abandoned.

Learned counsel cited the cases of Adesanya v. Otuewu (1993) 1 SCNL 77 at 88; (1993) 1 NWLR (Pt.270) 414; Ndiwe v. Okocha (1992) 7 SCNJ 355; (1992) 7 NWLR (Pt.252) 129; Ehalor v. Osayande (1992) 7 SCNJ 217; (1992) 6 NWLR (Pt.249) 524 in support.

Learned counsel submitted that the lower court was in error to allow the learned senior counsel to argue only the additional ground of appeal, thus condoning the approach of the learned senior counsel. He urged that the cross-appeal be allowed and the whole appeal both before the lower court and this court be dismissed.

In his response, the learned senior counsel for appellant submitted that the decision of the lower court on this issue is in accord with the decisions of this court and the Supreme Court. He cited in support the cases of Achineku v. Ishagba (1988) 4 NWLR (Pt.89) 411; Oviasu v. Oviasu (1973) NSCC 502; (1973) 11 S.C. 315; Nigeria Arab Bank Ltd. v. Barri Eng. Nig. Ltd. (1995) 8 NWLR (Pt.413) 257; N.B.N. Ltd. v. Alakija (1978) 9 – 10 S.C. 59. Learned senior counsel maintained that this has been the trend in all appellate courts, particularly when an order of retrial of a case is to be made.

It is noteworthy to refer to the decision of the Supreme Court in the case of N.B.N. Ltd. v. Alakija (1978) 9 – 10 S.C. 59. In this case twenty (20) original grounds of appeal were filed and an additional ground as 20(a) was later filed which challenged the propriety or otherwise of commencing the suit by way of originating summons in view of the hostile nature of the proceedings. The Supreme Court picked the arguments on ground 20(a) and confined its judgment on it. The court at page 79 had this to say:

“It follows that ground 20(a) of the ground of appeal must succeed. We have already stated that the appellant asked for a retrial on this ground. Having regard to the order we intend to make, we do not think it would be wise to pronounce the other grounds of appeal notwithstanding so much learning brought by both learned counsel into the argument as this may prove to inhibit the trial court on the issues raised in the grounds which may be the issues he might have to decide.”

Before I finish with the cross-appeal, I must also observe that despite the position taken by the lower court on this issue at the time it allowed the appellant to file and argue the additional ground 9, it is clear that at the end of the day, the lower court reversed its position on the issue by dismissing the ground, thereby giving judgment so to speak in favour of the cross-appellant. This in my view had rendered the cross-appeal a mere academic exercise. For these reasons, I find no merit in the cross-appeal and accordingly dismiss it.

Now for the main appeal, as I mentioned earlier only one issue was formulated by the appellant which in effect is whether the judgment of the Upper Area Court delivered in chambers on 23/1/96 in contravention of the provisions of section 33(3) of the 1979 Constitution as amended as well as section 29 of the Kwara State Area Courts Edict 1967 is a nullity.

It is the decision of the lower court, that the record of proceedings of the trial Upper Area Court on the day of the delivery of the judgment did not prima facie show that the judgment was infact delivered in chambers. This point was gallantly conceded to by the learned senior counsel for appellant.

The lower court also decided that no formal challenge of the record of proceedings was made by the appellant; therefore it would be wrong for it to go outside the unchallenged record of the Upper Area Court to reach its decision.

Now, it will be instructive to reproduce relevant portions of the proceedings in question on 23/1/96. The opening of the proceedings for the day started as follows:-

“The above case No. CVF/23/91 re-opens today for delivery of judgment No change in the membership of the court. The plaintiff and his counsel are absent The defendant is present and counsel Biola Adimula (Mrs) appears for him, holding brief of counsel Akin Akintoye (Jnr) for the defendant Court: – Anything known about the plaintiff?

Court Clerk Bolanle Ijaodola: – The plaintiffs Counsel Dele Ogundele was here this morning and promised of coming back but he is not yet to come back up till now.

Counsel Biola:- The plaintiffs counsel was here this morning and even told me he was coming back but he is yet to be here, Counsel Dele Ogundele.

Court:- The court would proceed to deliver its judgment. A formal order shall be issued and served on the plaintiff on this judgment.”

After reading the judgment of the court. The following follows:”

RIGHT OF APPEAL:

There is right of appeal to the High Court of Justice, Ilorin within 30 days.

(SGD) M.N. Idris (SGD)-Abu Olarewaju (SGD)-J.S. Kolade

Member Judge Member

23/1/96 23/1/96 23/1/96

Counsel Biola: We are grateful for the well considered judgment. The defendant has spent N221.00k out of pocket expenses. Apart from that we have made 31 appearances in this matter. We ask for N5,000.00 cost

Court: We award N500.00 cost in favour of the defendant.

Right of appeal: There is right of appeal to the High Court of Justice, Ilorin within 30 days.

(Sd) – M.N. Idris (Sgd)-Abu Olarewaju (Sgd) – J.S. Kolade

Member Judge Member

23/1/96 23/1/96 23/1/96

Now, clearly on the face of this record reproduced, there is nothing to show or even suggest that the delivery of judgment and the other proceedings were done in chambers.

But, there are other authentic documents which brought out a totally different picture. These are the two affidavits and two counter affidavits, filed by the parties in a motion on notice to file and argue an additional ground of appeal; which the lower court considered and granted and as a result ground No.9 came into being. This additional ground No.9 is the one that challenged the legality of the proceedings of the Upper Area Court, having been conducted in chambers in contravention of the provisions of section 33(3) of the 1979 constitution as well as section 29 of the Kwara State Area Courts Edict 1967.

I think to get the record straight it will help if I setout the relevant paragraphs of both the affidavits and the counter affidavits.

Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the affidavit No. I in support of the application reads as follows:-

“(4) That throughout the trial of this case I always followed the said Alhaji Are Ogele to the Upper Area Court, Ilorin.

(5) In particular, I followed the said Alhaji Are Ogele to Upper Area Court on 23/1/96 when the judgment of the said court was purportedly delivered.

(6) That the said Alhaji Are Ogele and myself were in the courtroom together with Dele Ogundele of counsel between 9.00a.m. and 11.00am.

(7) That when the court did not sit as at 11.00am., both Alhaji Ishola Are Ogele and Dele Ogundele of counsel left the court premises.

(8) That Alhaji Ishola Are Ogele and Dele Ogundele gave us specific instruction to stay within the court-room in case another date would be given for the judgment.

(9) That I remained inside the courtroom of the lower court and to the best of my knowledge that the court did no sit in the open court throughout.

(10) That when it was past noon on the said 23/1/96, I noticed the defendant going to and entering the chambers of the Judges of the lower court.

(11) That later in the day, I saw the defendant coming out of the chambers and rejoicing.

(12) That I also heard the defendant saying that judgment had been delivered in his favour by the lower court.

(13) That I was surprised to see the defendant rejoicing and proclaiming that judgment was given in his favour since the court did not sit in the open.”

Paragraphs 5, 6, 7, 8, 9, 10 and 11 of affidavit No.2 in support of the application read as follows:-

“(5) That I was in court together with the appellant and one Saidu Aremu on 23/1/96 when judgment was to be delivered.

(6) That I, the appellant and the said Saidu Aremu got to the lower court around 9.00a.m. on the 23/1/96 and remained in the court-room/premises until around 11.00a.m.

(7) That when the court did not sit at about 11.00a.m., I decided to leave the court premises as I had to travel to Lagos that day to attend to a case the following day at the High Court.

(8) That the appellant told me and I verily believed that he too had an urgent family matter to attend to, thereby leaving the court premises.

(9) That it was my belief that the court would not sit on that day and that judgment would be adjourned as usual.

(10) That the appellant and myself instructed Saidu Aremu to remain within the court-room so as to take the date of adjournment and bring same to our chambers and the appellant.

(11) That I was surprised when Saidu Aremu told me on or about 25/1/96 and I verily believed that the lower court did not sit in the open court throughout 23/1/96 but that judgment was delivered in the judges’ chambers.”

Then paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of counter affidavit No.1 read as follows:

“(1) That I am the defendant/respondent in this case.

(2) That by virtue of this I am very conversant with the facts of this case.

(3) That on 23/1/96 I was at the Upper Area Court Ilorin for the judgment of the court in this case.

(4) That when I got to court, I saw the plaintiff and his counsel and some of his followers in court.

(5) That the court did not sit until 11.00a.m. on the said day.

(6) That the court Registrar informed us and the plaintiff and all other people in the court that the court will be sitting at 11.00a.m. because the presiding Judge went to hospital that morning.

(7) That at 11.00a.m. the court Registrar called me and my counsel and all parties interested in the case to come into the Judges’ chambers for the judgment.

(8) That by that time the plaintiff, his counselor any of his followers were nowhere to be found.

(9) That the court decided to stand down the case to enable the Registrar look around for the plaintiff.

(10) The Registrar and myself looked all round the court premises for more than one hour in search of the plaintiff or any of his followers but they were nowhere to be found.

(11) That the Judgment had already been adjourned for about three times before the said 23/1/96 and the court did not want to adjourn the judgment any further.

(12) That one of the Judges used to come from Saare and this was one of the days he was around.

(13) That when the plaintiff did not turn up after more than one hour, the judgment was delivered.

Then paragraphs (i) (ii) (iii) (iv) (v) and (vi) of counter affidavit No.2 read as follows:-

“(i) On the said 23/1/96 the court did not sit on time.

(ii) That she was Mr. Dele Ogundele, counsel to the appellant and the appellant himself with some of his followers in court.

(iii) That at about 11.00a.m. the court started sitting in chambers

(iv) That the court as was then constituted could not sit in the open because the presiding Judge was indisposed.

(v) That all the matters listed for that day and previous days were being heard in the chambers.

(vi) That if the judgment had not been delivered by the court as was then constituted, the ease would have to be started de novo.”

These are the affidavits and counter affidavits, the appellant claimed had clearly brought out the true record of what actually transpired on that day of 23/1/96 and not what was reflected in the record of proceedings. It is further the submission of the learned senior counsel that from the depositions in the affidavits of the parties, there is a consensus ad idem on the facts that the trial Upper Area Court sat in chambers on 23/1/96. In any case, there is a clear admission by the respondent in the counter-affidavits that the Upper Area Court sat in chambers on 23/1/96 and it required no futher proof. Learned counsel cited the case of Ajuwon v. Akanni (1993) 9 NWLR (Pt.316) 182.

It is the contention of the learned counsel that the lower court was in error to hold that the record of proceedings should have been challenged inspite of the admitted facts before it.

Learned senior counsel maintained further that admissions in the counter-affidavits constitute an admission against interest and should be regarded as evidence of facts against the respondent. The case of Anason Farms Ltd. v. NAL Merchant Bank (1994) 3 NWLR (Pt.331) 241. On the other hand, the learned counsel for respondent maintained that the lower court was correct for refusing to go outside the record of the Upper Area Court, and that it was bound to decide the appeal on the record before it. Learned counsel still maintained that there are no sufficient facts or materials convincing enough to justify the allegation that judgment of the Upper Area Court was given in chambers.

Learned counsel referred to the decision of the Supreme Court in the ease of Ibero v. Ume-Ohana (1993) 2 SCNJ 156 at 171 – 172; (1993) 2 NWLR (Pt.277) 510 where Nnaemeka-Agu J.S.C. said:-

“It is of course a rule of great antiquity that the only proof of the content of a court’s proceeding in writing is the proceeding itself, or where permissible, a certified true copy thereof, produced.”

It is further the submission of the learned counsel for respondent that there is a presumption of regularity and genuiness in every record of proceedings produced and that in this case the assumption that the court conducted its affairs in open court and in public as stipulated in section 33(3) of the 1979 Constitution and section 29(1) of the Kwara State Area Courts Edict, 1967 are satisfied. That to rebut this presumption, certain steps must be taken which should come by way of challenge; which also must be backed up by facts which must be cogent, direct and convincing and properly presented.

I agree with the learned counsel that the authenticity of record of proceedings of a court should be given the necessary regularity it deserves. But presumption of regularity however is not absolute. It can be rebutted with facts which are cogent, direct and convincing.

In this case both the appellant and the respondent filed and heavily relied on affidavits and counter-affidavits in the motion argued before the lower court for leave to file additional ground of appeal. The lower court used and relied on the same documents to grant the application. I can not understand the philosophy of the lower court to turn round again to say that these documents it relied upon and used in the course of hearing the appeal before it are not relevant documents again. I think that view is perverse. A record of appeal generally is what is compiled by the appellant normally or in some cases what both parties settled and agreed as the record of appeal. This can be the whole proceedings of the trial court including any other relevant documents filed before the appellate court in the process of the determination of the appeal.

In this case, the additional ground of appeal filed by necessity became part of the record of appeal so was all other documents filed and used to facilitate the ruing of the additional ground of appeal, which includes the supporting affidavits and the counter-affidavits.

There is no gainsaying the fact that the contents of the affidavits and the counter-affidavits disclosed cogent and direct facts to beat down the integrity and genuiness of the proceedings of the Upper Area Court on 23/1/96 to its lowest level. Not only that the contents of the affidavits brought out clearly that the judgment of the court and other proceedings for that day were conducted in chambers, but worst of all the record was manipulated by showing that the presiding judge Abu Olarewaju was present and participated; while in actual fact he was indisposed as clearly stated by the respondent himself in his affidavit. I wonder what more challenge of the record the lower court and the learned counsel for respondent want in this case.

In the circumstances, I have no doubt in my mind that the delivery of the judgment and other proceedings of 23/1/96 were conducted in chambers by the Upper Area Court. I also have no doubt that the record of proceedings for that day was manipulated by showing on the face of the record that the presiding Judge Abu Olarewaju sat on that day with the other two members, when in fact he was not even around. The next point to be considered is the effect of this sitting in chambers to deliver the judgment.

The learned senior counsel for appellant maintained that the action of the Upper Area Court was in violation of section 33(3) of the 1979 constitution as well as section 29(1) of the Kwara State Area Courts Edict 1967, the judgment is therefore null and void.

Section 33(3) of the 1979 Constitution as amended reads as follows:

“The proceedings of a court or the proceedings of any Tribunal relating to the matters mentioned in sub section 1 of this section (including the announcement of the decisions of court or Tribunal) shall be held in public.”

Section 29(1) of the Kwara State Area Courts Edict 1967 provides as follows:

The room or place in which an Area Court shall sit to hear and determine any proceedings shall be an open and public court to which the members of the public shall have a right of access while they shall be of good behaviour to the extent to which the capacity of the court shall allow.”

These provisions are very clear and need no further elucidatives.

Learned senior counsel also referred to a number of decided authorities by the Supreme Court including Oviasu v. Oviasu (1973) 8 NSCC 502; (1973) 11 S.C. 315; NAB. Ltd. v. Barri Eng. Nig. Ltd. (1995) 8 NWLR (Pt.413) 257 in support.

The learned counsel for respondent expended a lot of energy and scholarship to show that the provision of section 33(3) of the constitution does not apply to Area Courts, which according to him are not courts of record. I think this argument is completely misconceived.

Area Courts are courts of record like any other court, otherwise, why have we been talking about record of proceedings and challenge to the record. Area Courts, particularly Upper Area Courts have jurisdiction to adjudicate on civil and criminal matters and have powers to impose fines and sentences as well as order the confiscation of properties. They are also vested with jurisdiction to execute their own judgments as well as judgments of superior courts. See sections 18, 22, 38, 39, 40 and 41 of Area Courts Edict 1968.

There is also no gainsaying the fact that Area Courts are creatures of statute. To crown it all, Area Courts are recognized as existing courts by the 1979 Constitution. See section 6(5)(h) which provides as follows;

“6(i) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.

(5) This section relates to-

(h) Such other courts as may be authorized by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.”

I can not also accept the arguments of the learned counsel for respondent that a breach of the provision of section 29 of the Kwara State Area Courts Edict amounts to procedural breach and not substantive. The provision of this section forms part of a substantive law per se and is not made pursuant to the rules of Court.

At this stage, I may refer to one or two decisions of the Supreme Court on this point.

In the case of Oviasu v. Oviasu (1973) 8 NSCC 502 at 508; (1973) 11 S.C. 315, the Supreme Court held;

“The hearing of this divorce case in the chambers of the learned trial court Judge was not made a specific issue in the Grounds of Appeal filed before us. During the arguments however, our attention was drawn to it by the counsel for the appellant as being irregular. As the counsel for the respondent did not apply for the hearing of the case in chambers there was nothing he could say…….. We regard the irregularity as being fundamental; which touches the legality of the whole proceedings including the judgment and the incidental orders made thereafter. We therefore hold that all that happened in the Judge’s chambers did not constitute a regular hearing of an action in a court. In view of the conclusion we have reached, we do not think any useful purpose will be served in determining the points canvassed before us. The trial held in the chambers of the Judge is not in accordance with the law and we shall therefore set aside the judgment and orders made by the trial Judge.”

There is also the case of NAB. Ltd. v. Barri Eng. Nig. Ltd. (1995) (Pt.413) 257 at 276 per Ogundare, J.S.C.

“A Judge’s chambers is not one of the regular courtrooms nor is it a place to which the public have right to ingress and egress as of right except on invitation by or with permission of the Judge …………………………………….

The facts before us show that counsel for the parties were already seated in the regular court-room waiting for the Judge to sit to deliver judgment when they were called into chambers and the judgment was delivered by the learned trial Judge. There is in this case a clear breach of the mandatory provisions of section 33(3) of the 1979 Constitution and Order 36 Rule I of the High Court Rules of Lagos State ………………..

To suggest that because the hearing was in open court, the delivery of judgment in chambers is a technicality as no miscarriage of justice was occasioned thereby is to beg the issue. The delivery of judgment is, in my respective view part of the hearing of a cause or matter.”

With the clear statement of the law expounded in these two decisions, I am left in no doubt that the irregularity committed by the Upper Area Court being fundamental, which touches the legality of the whole proceedings of 23/1/96 including the judgment and the incidental orders made thereafter did not constitute a regular hearing and are liable to be set aside.

In the circumstances, the lower court was in grave error in dismissing the additional ground of appeal as it did. The lower court should have declared the proceedings of the Upper Area Court dated 23/1/96 including the judgment a nullity.

In the circumstances of this case and by virtue of the provision of section 16 of the Court of Appeal Act, I allow the appeal and set aside the decision of the High Court including the order for costs. I also declare the proceedings of the Upper Area Court including the judgment a nullity. I order a retrial of the case before another Upper Area Court of Kwara State differently constituted. I award the sum of N1000 as costs to the appellant.

I must commend both learned counsel in this appeal for the hard work and thoroughness they exhibited in the preparation of their briefs and oral presentation.

---

Other Citations: (1997)LCN/0287(CA)

Ibrahim Khaleel & Anor. V. The State (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

The appellants in this appeal are brothers of the same parents. They were tried and convicted by Rowland J. (as he then was) of the High Court of Justice of Kano State sitting at Kano, of the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code and sentenced to death by hanging in a reserved judgment delivered on 10/4/92. The charge under which the appellants were tried at the lower court reads:”

That you Ibrahim Khaleel and Abubakar Khaleel on 15th August, 1987 at about 03.00 hours at Gamatudu Quarters Kano within the Kano Judicial Division did commit culpable homicide punishable with death by doing an act to wit: pouring petrol on the person of one Dauda Abdullahi (now deceased), his wife and all over his room and thereafter throwing a lit match thereby setting him, his wife and the whole room on fire, whereof the said Dauda Abdullahi died days later in hospital while on admission as a result of the severe fire burns he suffered and that the above acts were done with the knowledge that death would be the probable consequence of your act and you thereby committed an offence under Section 221(b) of the penal code.”

The events that led to this charge of culpable homicide against the appellants as can gathered from the evidence adduced at the trial arose from a fire incident that took place in the room of one Dauda Abdullahi at Gama Tudu Quarters in Kano in the early hours of 15/8/87. On that date, the deceased Dauda Abdullahi who was a casual friend of the 1st appellant and whose wife Sabuwa Dauda was also a former girl friend of the 1st appellant, were sleeping in their room. At about 2 a.m, the appellants came to the open window of the deceased’s room with a container of petrol and emptied its contents on the deceased, his wife and the properties contained in the room before throwing a lit match into the room thereby setting it ablaze. The deceased and his wife who knew the appellants before this date saw and identified them through the window before the room was set on fire which destroyed the properties in the room and also caused severe burns on the deceased and his wife Sabuwa. As the result of the injuries received from the fire incident, the deceased and his wife Sabuwa were admitted at the hospital for treatment. While Sabuwa was lucky to survive from the severe burns which left scars on her body, her husband the deceased was not as lucky as he died on the 40th day of his admission in the hospital from his wounds which became septic.

At the trial which lasted nearly five years between 1987 and 1992, the prosecution called 5 witnesses and tendered the statements of the appellants under caution with the negatives and photographs of the scene of the fire incident, and of the victims in order to prove its case. The appellants who were the accused persons at the trial each testified in his own defence. While the 1st appellant called two other witnesses who testified in support of his own defence, the 2nd appellant called only one other witness his own elder sister who testified in support of his own defence. At the end of the trial, in a considered judgment, the learned trial judge found both appellants guilty of the offence of culpable homicide under S.221(b) of the Penal Code as charged and convicted them accordingly. The appellants were sentenced to death by hanging. Aggrieved by their conviction and sentence by the lower court, the appellants have now appealed to this court each on a notice of appeal containing the omnibus ground. Two additional grounds of appeal were filed on behalf of each of the appellants with the leave of this court by their learned counsel.

Mallam Ibrahim Buba learned counsel for the appellants has in the appellant’s brief of argument submitted the following 3 issues for the determination of the appeal.

1. “Whether there are sufficient legal evidence (whether direct or circumstantial) before the court to sustain the charge of culpable homicide punishable with death against the appellants.
2. What is the effect of the omission by a witness to mention the name or names of person or persons seen committing an offence at the earliest opportunity.
3. Whether having regard to the evidence adduced at the trial there exists a nexus or link between the cause of death and the appellants.”

These issues were also adopted in the respondent’s brief of argument.

Arguing issue No. 1 which arose from the omnibus ground of appeal. Mallam Buba for the appellants had observed that in the course of the trial, the only evidence that pointed to the circumstances surrounding the death of the deceased were those of his wife PW2, his brother PW3 and his mother PW4. He pointed out that the evidence of PW2 relied upon heavily by the learned trial judge in convicting the appellants was to the effect that 1st appellant was her former boy friend who first came to their house on 14th-15th August, 1987 in a Volkswagen car but left. That later that night the appellants came back while the deceased and PW2 were asleep and poured petrol on them in the room through the window before throwing a lit match which resulted in setting the deceased, PW2 and the contents of their room on fire. Learned counsel then referred to the evidence of PW3 who on 15/8/87 was awaken by the fire in the room of the deceased who was shouting that he had been set ablaze. That the witness testified mainly on how the children of other people in the house were rescued from the fire. He also recalled a misunderstanding between the deceased and the 1st appellant in 1986 which was resolved at the Gwagwarwa Police Station. As for the evidence of PW4, learned counsel to the appellants pointed out that she related the story which the deceased told her of having met the 1st appellant at a wedding party where the appellants threatened the deceased with death and that resulted in the deceased returning home early that night. That PW4 also said she saw two persons in a car that night who drove away on seeing her. Later that night she saw fire in the room of the deceased who was also burning and shouting in Hausa that the appellants Ibrahim Khaleel and Abubakar Khaleel had killed him. It is the submission of the learned counsel to the appellants that there is virtually nothing in the evidence of the 3 witnesses PW2, PW3 and PW4 that either directly or circumstantially linked the events, that led to the death of the deceased to the act of the appellants to justify their conviction. On the evidence of PW2 in particular, appellant’s counsel had submitted that PW2 having admitted under cross examination that they were sleeping when the accused persons poured petrol through the window before she woke up, her evidence did not directly link the appellants with the acts of pouring the petrol and setting the room on fire since the witness could not have been asleep and at the same time see the appellants committing the offence. Relying on a number of cases the most recent of which is Nwanze v. The Stare (1996) 2 NWLR (Pt.428) 1 on the quality of circumstantial evidence required to prove an offence, learned counsel argued that in the instant case, the circumstantial evidence relied upon by the lower court in convicting the appellants did not congently, irresistably, positively, unequivocally, unmistakenly and conclusively point to the appellants as the perpetrators of the offence alleged to have been committed to the exclusion of any other person to justify their conviction.

On the need for prosecution to prove the offence against the appellants beyond reasonable doubt, learned counsel referred to the evidence of PW2, PW3 & PW4 and observed that their evidence has raised serious doubt as to the guilt of the appellants. Citing the cases of Amusa v. The State (1986) 3 NWLR (Pt. 30) 536 and Musa v. The State (1996) 8 NWLR (Pt.468) 610 at 618-619, the appellants’ counsel urged this court to resolve the doubt in the present case in favour of the appellants whose identification by ‘PW2 in the circumstances described by that witness is doubtful according to counsel who also observed that there were material contradictions in the evidence of the star witness PW2 in her evidence in-chief, under cross examination and at the locus in quo on the identification of the appellants. Citing and relying on the decision of this court in Ajilare v. The State (1993) 4 NWLR (Pt.289) 572, the appellants’ counsel concluded that since the conviction of the appellants was based on the evidence of PW2 on the visual identification of the appellants at the locus in quo and whose identity was in dispute and that as the evidence of PW2 was not corroborated in material particular implicating the appellants, their appeal should be allowed and their conviction and sentence set aside.

Mallam M.L. Ibrahim, learned Director of Public Prosecution Kano State leading two other counsel for the respondent had contended that the prosecution at the lower court had discharged the onus placed on it in proving its case against the two appellants beyond reasonable doubt as required by law. Learned counsel argued that there was direct and circumstantial evidence linking the appellants with the unlawful acts that led to the death of the deceased to justify their conviction. He stressed that the evidence of PW2 on the identification of the appellants as being responsible for the acts that led to the death of the deceased particularly at the visit to the locus in quo which was accepted and relied upon by the lower court in convicting the appellants was in fact direct evidence. That the evidence of PW2 was also corroborated by the evidence of PW1, PW3, PW4 and PW5. Dismissing the wrong notion held by the appellants’ counsel that they were convicted only on circumstantial evidence, learned counsel to respondent pointed out that there was also direct evidence of PW2 supporting the conviction of the appellants apart from the circumstantial evidence which he also said was enough to sustain the conviction of the appellants having regard to the case of Kim v. The State (1991) 2 NWLR (Pt. 175) 622. Concluding his submissions on this issue, the learned DPP referred to the cases of Eze v. The State (1976) 1 SC 125 and Sugh v. The State (1988) 2 NWLR (Pt.77) 475 and urged this court not to disturb the findings of the lower court based on the credibility of the witnesses who testified at the lower court.

In a charge of murder or culpable homicide punishable with death, the burden is always on the prosecution to prove that:-

(a) the deceased had died;

(b) the death of the deceased Was caused by the accused; and

(c) the act or omission of the accused which caused the death of the deceased was intentional or with the knowledge that death or grievous badly hurt was its probable consequence.

See: Ogba v. The State (1992) 2 NWLR (Pt. 222) 164 and Abagede v. The State (1996) 5 NWLR (Pt.448) 270. It is also the law that the evidence relied upon may be direct or circumstantial or both. However in practice, where there is direct evidence of an eye witness or witnesses in support of the charge, it is hardly necessary to also rely on circumstantial evidence. What is important is that whether the evidence is direct, circumstantial or both, the evidence must establish the guilt of the accused beyond reasonable doubt as required by S.138(1) of the Evidence Act Cap 112 of the Laws of the Federation, 1990. The onus, in this connection, on the prosecution as a general rule never shifts and a misdirection on the question of onus of proof is fatal unless it can be shown that on a proper direction the result will be same. See: Aruna v. The State (1990) 6 NWLR (Pt. 155) 125 and Ozaki v. The State (1990) 1 NWLR (Pt.124) 92. It is also the law that the credibility of evidence adduced in a criminal trial for culpable homicide does not ordinarily depend on the number of witnesses that have testified. Evidence of a single credible witness if accepted and believed by the trial court is sufficient to justify or support a conviction. See: Ali v. The State (1988) 1 NWLR (Pt. 68) 1.

However, if there is inconsistency in the case of the prosecution such as to cast doubt on the guilt of the accused, the law requires that the accused should be given the benefit of such doubt to entitle him to acquittal and discharge. Onubogu v. The Stale (1974) 9 SC 1; Nwabueze v. The State (1983) 3 NWLR (Pt.86) 16; Kalu v. The State (1988) 4 NWLR (Pt.90) 503 and Nwanze v. The State (1996) 2 NWLR (Pt.428) at 11.

In the instant case, Sabuwa Dauda, the wife of the deceased who testified as PW2 was an eye witness to the fire incident which caused severe burns to the deceased which led to the death of the deceased 40 days later. The witness gave direct evidence that it was the appellants that came to their house on the night in question, poured some quantity of petrol through the window on the deceased, the witness and the contents of their room before setting them ablaze. The witness who knew the appellants before the night of the incident as the 1st appellant was her former boy friend, was quite emphatic in her evidence in-chief in court and at the house of the deceased and under cross examination that it was the appellants she saw and identified that night setting the deceased, herself and the contents of their room ablaze. The witness also testified that the deceased and herself were severely burnt as the result of the fire and were admitted for treatment at the Kano hospital where she was treated while the deceased died at the hospital. The learned trial Judge after a careful appraisal of the evidence of this witness, came to the conclusion that she was a very reliable witness and therefore accepted and relied on her evidence in convicting the appellants as charged. The learned trial Judge after appraising the evidence of the remaining prosecution witness along with the evidence of PW2, came to the following conclusion –

“I must say that the evidence that point to the guilt of the accused persons in this case is cumulative in nature. It is therefore my well considered view that from the direct and strong circumstantial evidence against the accused persons in this case. I have no hesitation in holding that the case for the prosecution has been proved beyond reasonable doubt against them as required by the provisions of Section 137(1) of the Evidence Act. I therefore find them guilty as charged and I convict them accordingly.”

The credibility of evidence does not ordinarily depend on the number of witnesses that testify on a particular point. The question is whether the evidence of one credible witness, on a particular point, is believed and accepted. If the answer is in the affirmative, it is sufficient to support a conviction. See: Ali v. The State (1988) 1 NWLR (Pt.68) 1. The evidence of PW2 on the identity of the appellants as the perpetrators of the criminal acts that caused the deceased to sustain serious burns that ultimately led to his death had not been shaken even under prolonged and rigorous cross examination. That evidence was believed and accepted by the trial court. By sprinkling petrol on the deceased and setting him on fire, it could be properly inferred that the appellants knew or had reason to know that death of the deceased would be the probable consequence of their act. It is trite that the assessment of credibility of a witness is a matter within the province of the trial court, as it is only that court that has the advantage of seeing, watching and observing the witness in the witness box. That court also has the liberty and privilege of believing him and accepting his evidence in preference to the evidence adduced by the defence. In Adelumola v. The State (1988) 1 NWLR (Pt.73) 683 at 690, Oputa, J.S.C. (as he then was) stated the rule more convincingly when he said “…belief can only be questioned on appeal if it is obviously against the logical drift of the evidence considered as a whole or against the impact of the wave of probabilities disclosed by the evidence.”

In the instant case, the evidence which induced the belief of the evidence of the prosecution witnesses particularly PW2 by the learned trial judge was the fact that they were all eye witnesses to the fire incident and also some of them knew the appellants before the night of the fire incident. The witnesses testified on what each of them saw, heard and did in the circumstances that led to the death of the deceased. The learned trial Judge was therefore right in believing the witnesses in convicting the appellants. I see no reason to disturb the findings of the learned trial Judge in this respect.

On proof by circumstantial evidence what will meet the requirement of onus of proof in criminal trials, is the evidence that fixes the accused to the crime with sufficient congency and which excludes the possibility that someone else had committed the offence. See: Fatoyinbo v. Attorney-General, Western Nigeria (1966) WNLR 4. In other words once circumstantial evidence conclusively points to the accused as the perpetrator of the offence and the same has been adequately scrutinized, believed and accepted by the trial court, the onus shifts to the accused to rebut the presumption of guilt or to cast a reasonable doubt on the prosecution’s case even though by preponderance of probabilities. See: Onakpoya v. Queen (1959) SCNLR 384 and Kalil v. The State (1993) 6 NWLR (Pt. 300) 385. In the present case, apart from the circumstantial evidence of PW1, PW3, PW4 & PW5 scrutinized, believed and accepted by the learned trial Judge, the direct evidence of PW2 also analyzed, believed and accepted by the same learned trial Judge had clearly fixed the appellants to the acts that led to the death of the deceased with sufficient congency thereby excluding the possibility that someone else other than the appellants had committed the offence. The evidence adduced by the appellants and their witnesses had not rebutted the presumption on their guilt. In resolving this issue, I entirely agree with the learned D.P.P. for the respondent that the evidence adduced by the prosecution which was appraised and accepted by the lower court is enough to sustain the conviction of the appellants of the offence of culpable homicide punishable with death under S.221(b) of the Penal Code.

The second issue for determination is what is the effect of the omission by a witness to mention the name or names of person or persons seen committing an offence at the earliest opportunity. This issue as framed has clearly raised only an academic question the answer to which may not affect the appeal one way or the other. For the issue to be relevant, it has to relate to the present case on appeal by specifically naming the witness who had failed to name the persons seen committing an offence at the earliest opportunity. All the same, being a criminal appeal, I shall treat the issue in the interest of justice as there was no objection to the validity of the issue by the respondent.

It was argued by the appellants’ counsel that the evidence of PW2 on which the lower court relied heavily in convicting the appellants also shows that the witness did not mention the names of the appellants as the perpetrators of the heinous act of house burning which occasioned the death of the deceased to the police in the course of investigation of the circumstances surrounding the incident. Counsel referred to the record of the lower court and submitted that since the trial Judge had accepted or agreed that PW2 did not mention the names of the appellants to the police as being responsible for the fire incident, the learned trial judge should have found inconsistency in the evidence of PW2 to justify his rejection of the evidence. Counsel referred to Abudu v. The State (1985) 1 NWLR (Pt.1) 55 and Duru v. The State (1993) 3 NWLR (Pt.281) 283 and submitted that in the circumstances of this case, based on the inconsistency in the evidence of PW2, her evidence became unreliable and should have been ignored by the learned trial judge and this should have led to the discharge and acquittal of the appellants.

The learned DPP for the respondent on the other hand had observed that having regard to the cases cited and relied upon by the appellants in support of this issue, the learned trial judge was only required to be careful in accepting the evidence of PW2 without sufficient explanation of why PW2 did not mention the names of the appellants to the police. Counsel submitted that it is clear from the findings of the lower court on the evidence of PW2 that the court in fact had exercised the required caution before accepting the evidence. In addition, counsel pointed out that the facts in the cases cited and relied upon by the appellants are not the same as the facts in the present case. That the visit of the lower court to the locus in quo and the corroborative evidence of PW3, PW4 & PW5 were some of the factors that influenced the lower court in accepting the evidence of PW2, concluded the learned counsel to the respondent who cited the case of Ogoala v. The State (1991) 2 NWLR (Pt.175) 509 and maintained that the act of PW2 in not mentioning the names of the appellants to the police did not amount to any contradiction to warrant rejecting her evidence by the trial court. That all that happened in the present case is that the evidence of PW2 before the trial court contained a little more than what she told the Police and that this did not amount to contradiction in law.

In resolving this issue, it is not in dispute that in her evidence in-chief which PW2 gave on 12/5/88, she clearly identified the appellants as follows at page 4:-

I know the accused persons in the dock. The first accused is by name Ibrahim Khaleel and was my former boy friend. The second accused is a junior brother to the first accused. His name is Abubakar Khaleel.”

In the course of her evidence in-chief at page 5 of the record, PW2 also explained the circumstances under which she was able to identify the appellants on the night of the fire incident when she said –

“In the night of 14th to 15th August, 1987, I was sleeping together with the deceased in his room when the first accused came with a V/Wagon beetle car. The deceased peeped through the window and saw the first accused with his friend. The deceased was about to go out to meet them but I refused to allow him to go out. I also saw the people through the window. Although it was night there was electric light there so I could see them.” (italics supplied).

However, under vigorous cross examination by the learned counsel to the appellants whose aim no doubt was to destroy her evidence particularly as it related to the identification of the appellants, all the same PW2 appeared to have even improved on the quality of her evidence. She said at page 6 as follows:-

“The deceased and the first accused were friends and they lived in the same vicinity. I saw the two accused persons when they came to the house in late hours of the morning of 15/8/87. The two accused persons were the persons that came to our house and set us on fire after pouring petrol in the room. I made one statement to the police.

When I first made statement to the police I did not say that I saw the two accused persons in the night of that day in question. I saw the two accused persons on that day. The two accused were the two persons that came to our house. I did not mention their names when I made my statement to the police but I know them very well. The two accused were the ones who came by our window and my late husband even showed them to me through our window. I was asleep when the accused persons poured petrol through our window and I immediately wake up. The two accused persons came in a V/wagon car of pink colour. The first time the first accused came that night he came with his friend called Husaini. I saw the two accused persons that night. I am prepared to show our house from where we saw the accused persons.” (italics mine).

It is quite plain from the evidence of PW2 under cross examination that although she did not tell the police the names of the appellants when she made her statement to the police, she was quite sure on the identification of the appellants whom she had known very well before the date of the incident. In other words the fact that PW2 knew the appellants very well, the 1st appellant being her former boy friend and also a friend to her husband the deceased, while the 2nd appellant is a brother to her former boy friend whom she also knew very well before the light of the fire incident, I am of the firm view that in the circumstances of this case the possibility of a mistaken identity of the appellants by PW2 is completely ruled out. In any case it is not clear from the record when her alleged statement to the police was made. It is also not clear whether the statement was oral or in writing. It is therefore not easy to determine the earliest opportunity PW2 had in mentioning the names of the appellants as being responsible for the fire incident in the house of the deceased. In any case the evidence on record shows that it was the deceased himself who told the police the names of the appellants in the course of the investigation.

It is indeed true that the fact that PW2 did not mention the names of the appellants in her statement to the police while in her evidence in-chief she identified them by their names shows a discrepancy between her statement to the police and her evidence. However, this shortcoming cannot be described as contradiction to warrant rejecting her evidence. See: Gabriel v. The State (1989) 5 NWLR (Pt.122) 457 and Ogoala v. The State (1991) 2 NWLR (Pt.175) 509 at 525-526. In the present case such minor discrepancies are in fact quite glaring in the evidence of PW2 in-chief and under cross examination. For example in her evidence in-chief at page 5 of the record, PW2 said the 1st accused came to their house with a V/wagon beetle car. However under cross examination she improved the quality of her evidence by not only stating the type of car the first accused came to their house with, but also the colour of the car namely – “a V/Wagon car of pink colour.” Similarly, in her evidence in-chief, PW2 said the 1st accused came to their house in the first instance with a friend whose name she did not mention. In her evidence under cross examination however, PW2 clearly said the 1st accused came to their house in the first instance with his friend Husaini. Surely these discrepancies in the evidence of PW2 in-chief and under cross examination cannot be termed serious contradictions capable of rendering her evidence in this respect unreliable. See: Nasamu v. The State (1979) 6-9 SC 153; Ndike v. The State (1994) 8 NWLR (Pt.360) 33; (1994) 9 SCNJ 46 at 54 where Ogwuegbu, J.S.C. said

“It is not all contradictions in the testimony of the prosecution witnesses that are fatal to its case. For any conflict on contradiction to be fatal, it must be substantial and fundamental to the main issue in question before the court. What is material depends on the facts of each case.”

Although learned counsel to the appellants in his oral submission before this court also attacked the action of the learned trial judge in exercising his power under S.237(1) of the Criminal Procedure Code of Kano State to recall PW2 to testify at the locus in quo where the witness further demonstrated to the court the circumstances under which she was able to identify the appellants, it is quite clear that there is no ground of appeal challenging that conduct or decision of the learned trial judge which he said was done in the interest of justice. The arguments of the learned counsel for the appellants which questioned the right of the learned trial judge to suo motu conduct the visit to the locus in quo on recalling PW2 under S. 237(1) of C.P.C. cannot in my view be covered under the omnibus ground of appeal. In any case, there is no doubt whatsoever that S. 237(1) & (5) OF THE C.P.C., have clearly given the lower court the power to call or recall any witness if his evidence appears to the court to be essential to the just decision of the case.

The circumstances that led to the visit to the locus in quo are quite clear from the record of the trial court. At the end of her evidence in-chief at page 6 of the record PW2 said-

“I saw the two accused persons that night. I am prepared to show our house from where we saw the accused persons.”

There and then learned counsel to the accused persons now appellants Mr. Augbogu said at page 7 –

“I am making an application for the court to visit the locus in quo.”

His application was granted by the learned trial judge who ruled as follows;-

“Case adjourned to 21/6/88 for continuation of hearing. On that day the court will visit the house where the incident happened.”

However on the day the visit to the locus in quo was to be undertaken, the appellants counsel said to the lower court – “Mr. Anigbogu: This case is for continuation of the hearing and we are to visit the locus in quo today but I have just a question to ask PW2 before we go.”

The one question turned out to be a further cross examination of PW2 on how she was able to identify the appellants on the night of the fire incident. The evidence of PW2 under this further cross examination reads.

“The two accused persons peeped through the window. The two accused persons came near the window but it was the first accused that peeped through the window. The window is made of iron. The window was opened but the door was closed. I saw the two accused persons on that day. When the first accused came to the house the first time he came with his friend called Husaini. The second time the first accused did not come with Husaini. When the first accused came back the second time he came in a car. I do not know whether Husaini was in the car. When the police arrived they asked me of the incident that happened on that day. When the two accused persons came they poured petrol on us through the window. When myself and my husband woke up we saw the two accused clearly before they threw match fire into the house.” (Italics supplied)

Then for undisclosed reason, the appellants’ counsel decided to withdraw his earlier application for the court to visit the house of the deceased in order to observe the conditions under which PW2 was able to identify the appellants. As the application was not opposed, it was granted by the lower court and the visit to the locus was called off. However, since it was PW2 herself who offered in her evidence in-chief to show the court their house from where she was able to identify the appellants on the night of the fire incident, I am of the view that the power of the lower court under S.237(1) & (5) of the C.P.C. was correctly exercised in the interest of justice as the visual identification of objects at the deceased’s house by PW2 particularly the location of the security lights at the scene and the distance of only 10 feet from the deceased’s house to the road are in my view essential for the determination or just decision of the case because the pieces of evidence have no doubt thrown more light to the evidence of PW2 on the identification of the appellants on the night of the fire incident. The visit to the locus in quo had no doubt removed the possibility of the appellants’ counsel raising any doubt in his final address on the correct identification of the appellants particularly when the counsel himself did not raise any objection to the visit and in fact duly cross examined PW2 at the locus in quo. This issue is therefore resolved against the appellants.

The last issue for determination in this appeal is whether having regard to the evidence adduced at the trial there exists a nexus or link between the cause of death and the appellants. It was submitted for the appellants that there was only a charge under S.221(b) of the Penal Code against the appellants that there was no charge of conspiracy. Referring to the evidence on record, appellants’ counsel observed that there was no evidence on record as to who poured the petrol on the deceased’s house or who did the lighting of the match that followed the pouring of petrol which set the house on fire and the subsequent burning of the deceased leading to his death. That as there is no clear evidence from the evidence of PW2 as to who among the two appellants did what, there was the possibility that other persons might have been responsible for the acts and not the appellants. That as PW2 was sleeping at the time the appellants were alleged to have visited the deceased’s house, it was not possible for the witness to have identified’ the appellants. Learned counsel further contended that none of the evidence of the remaining prosecution witnesses, 1, 3, 4 & 5 really linked the appellants with the commission of the offence for which they were charged and convicted. Relying on a number of cases particularly Onah v. The State (1985) 3 NWLR (Pt.12) 236, learned counsel to the appellants argued that since the appellants have not been linked by credible evidence to the acts that caused the death of the deceased, they are entitled to acquittal and discharge.

It was the contention of the learned DPP for the respondent that the evidence of PW2, PW3, PW5 and PW1 had clearly linked the appellants with the acts that caused the death of the deceased. That PW1’s testified that the deceased died of septic shock secondary to infected burn wounds, while the remaining PW2, PW3, PW4 & PW5 all testified on how the deceased was burnt and admitted to the hospital. Learned counsel therefore pointed out that there is strong, direct and circumstantial evidence in the case linking the appellants with the death of the deceased as rightly found by the learned trial judge.

What has been raised in this issue is only a question qf whether or not the prosecution in this case had proved its case beyond reasonable doubt as required by law against the appellants. This question has already been clearly covered adequately in the resolution of Issues Nos. 1 & 2 in this appeal which had firmly through direct and circumstantial evidence closely scrutinized, appraised, accepted and relied upon by the learned trial judge, fixed the appellants as having caused the death of the deceased under circumstances justifying their conviction under S.221(b) of the Penal Code. It is indeed true that in her evidence, PW2 did not say who among the appellants poured the petrol and who among them threw the match light into the room to set it on fire. The answer of course is simple. PW2 testified on what she was able to see that night. The fact that the appellants were standing at the window and only peeped through it to carry out their acts of pouring petrol and setting the room on fire, the fact that she did not see who specifically did the two acts among the appellants is not fatal to the case of the prosecution as the appellants were jointly charged for the pouring of the petrol and the throwing of the match light into the deceased’s room to set it on fire. What is important and relevant in this respect to the case of the prosecution, is the fact that PW2 was quite sure that it was the appellants she saw that night through the window committing the criminal acts that set the room ablaze which resulted in the deceased sustaining serious burns that caused his death.

It is trite law that where the entire appeal revolved around issues of fact and there is nothing on the record to show that the findings of the trial court is demonstrably erroneous or perverse, it ought not to be interfered with or disturbed by the Court of Appeal. Sugh v. The State (1988) 2 NWLR (Pt.77) 475 at 489; Babuga v. The State (1996) 7 NWLR (Pt.460) 279 at 293. Undoubtedly the gravamen of this appeal centred principally on the identity of the appellants as the perpetrators of the acts that were responsible for the fire incident that gutted the room of the deceased which in turn resulted in the deceased sustaining serious burn wounds that ultimately caused his death. It is indeed the law that where the quality of the evidence of identification of the accused is poor, the trial judge should return a verdict of not guilty unless there is other evidence which goes to support the correctness of the identification. In a recent decision of the Supreme Court in Chukwu v. The State (1996) 7 NWLR (Pt.463) 686. Belgore, J.S.C. had this to say at page 702 on the duty of court to exercise care on the evidence of identification of an accused person –

“Where the quality of identification evidence is poor the judge should return a verdict of not guilty unless there is other evidence which goes to support the correctness of the identification. The evidence of identification can be poor even though it is given by number of witnesses. The witnesses may only have had the opportunity of a glance or a longer observation made in difficult conditions.”

In the present case, the quality of the identification evidence of the appellants by PW2 is far from being poor and did not arise from a glance of the appellants or a longer observation made in difficult conditions. The appellants were known to PW2 before the night of the incident and that she saw and identified them by means of security lights which were seen on the day the court visited the house of the deceased. In fact the quality of the identification evidence of PW2 could not be shaken or put in doubt even under persistent cross examination, as the witness was cross examined three times on the issue, namely, after her evidence in-chief, on the day the appellants’ counsel withdrew his application for the visit to the locus in quo and finally at the locus in quo. The finding of the learned trial judge on the correctness of the identification of the appellants by PW2 in the circumstances of this case, in my view, is quite in order.

In conclusion, I do not find any merit in this appeal. The case against the appellants was proved beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. See: Miller v. The Minister of Pensions (1947) 2 All ER 372 and Akalezi v. The State (1993) 2 NWLR (pt. 273) 1 at 13 and NDIKE V. THE STATE (1994) 9 SCNJ 46 at 57; (1994) 8 NWLR (Pt.360) 33. It must be stated that the learned trial judge had meticulously reviewed the evidence adduced by the 5 witnesses called by the prosecution and the evidence of the appellant and their 3 defence witnesses before coming to the conclusion that the appellants were guilty of the offence charged under S.221(b) of the Penal Code. As nothing has been advanced in this appeal succeeded in changing the fate of this case, I do not see any justification in disturbing the verdict and sentence of the learned trial judge in convicting the appellants of culpable homicide punishable with death and sentencing them to death.

The appeal is accordingly hereby dismissed. The conviction and sentence of the appellants by ‘the trial court under S.221(b) of the Penal Code are hereby affirmed.

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Other Citations: (1997)LCN/0286(CA)

Cyril C. Okehi V. International Equitable Association (Industrial and Commercial) Limited (1997)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A. 

Plaintiff now respondent in the interlocutory appeal brought an application in this court by way of preliminary objection requesting this court to strike out this appeal for lack of jurisdiction as no competent appeal is pending in this court, he is hereinafter referred to in this ruling as the applicant. The motion was on notice to the defendant now appellant in the interlocutory appeal but now respondent on notice of the interlocutory motion to strike out the interlocutory appeal, henceforth the defendant/appellant is referred to in this ruling as respondent. Owing to the nature of the application, parties were directed to submit written submissions and each party filed written submission on 28th January, 1977 and 14th February, 1997 respectively.

Applicant claimed in conclusion of his statement of claim as follows:

“WHEREFORE the plaintiff’s claims is for:-

(a) The sum of twenty-one Million Naira (N21,000,000.00) being special damages in that the defendant for several years up to and including the time material to this claim in 1991 negligently discharged industrial waste alkaline effluent into the open gutters of Nicholas Avenue, ABA which waste damaged the sub-soil of the premises of the plaintiff, undermined and destroyed the foundation of the plaintiffs executive mansion beyond tenantable repairs and therefore unfit for human habitation.

(b) Eight million Naira (N8,000,000.000 being general damages for the total damage of the plaintiffs premises at No. 16, NICHOLAS AVENUE, ABA.

(c) Perpetual injunction restraining the defendant by himself, servants, agents and workmen from continuing the discharge of its industrial waste alkaline effluent into the open gutter along Nicholas Avenue Aba.”

Respondent was served with the statement of claim. Learned counsel for the respondent entered appearance for the respondent on 10th March 1993 and filed the statement of defence as shown in pages 8-14 of the bundle of papers used as the record of appeal in this appeal. At page 14 by the endorsement for filing and by treasury receipt dated 11th May 1993 the statement of defence is deemed to have been filed in the high court registry, on 11th May, 1993.

At page 15 of the record dated 22nd June 1993 fixed for hearing on 30th June, 1993 was a motion on notice for an accelerated hearing of this suit. Page 17 of the record of appeal is reply to the statement of defence of the Respondent dated 29th September, 1994 filed on 14th October, 1994.

On the 20th of May, 1996 the matter came before Aba High Court with coram as Hon. Justice I.F. Ogbuagu. The record of proceedings as to what transpired that day are recorded at pages 24-25 and the imbroglio was as to the validity of the reply to the statement of defence. The learned trial Judge is recorded as follows:

“This court is a very busy one. The case will be adjourned to enable Mr. Anyanwu find out from the Registry the date of service on him or his client of the defendants’ statement of defence. He may then consider bringing a formal application for extension of time as the court does not grant such motions as a matter of course.

Although the purpose of granting accelerated hearing of Ibis case is defeated, but issues of law are not one which the court will brush aside on the ground of expediency. It is adjourned to 17th, 23rd and 25th July 1996 for hearing. It shall be called up first on any of these dates as soon as the court starts sitting.”

The Respondent being dissatisfied with what transpired at the High Court of Abia High Court holden at Aba on 20th May 1996 filed a notice of appeal in this court wherein in paragraph 3 of the notice of appeal raised two grounds of appeal and furnished the particulars. The grounds of appeal without their particulars are set below.

“3 GROUNDS OF APPEAL

(a) The learned trial Judge erred in law by failing to duly infer by virtue of Section 74 (1)(m) of the Evidence Act Cap 112, Laws of the Federation of Nigeria 1990 whether or not the Respondent compiled with Order 25 Rule 3 sub section 4 of the Imo State High Court Rules of 1988 applicable in Abia State after it was raised by the appellant counsel on date Ibis suit was slated for hearing.

PARTICULARS OF ERROR

(b) The learned trial Judge refused to deliver a decision as required by Section 277(1) of the Constitution of the Federal Republic of Nigeria, 1979 as amended after hearing counsel in the suit.

PARTICULARS OF ERROR

The applicant filed an application on notice in Ibis court wherein he brought the application under section 220(1)(b) of the 1979 Constitution for striking out the appeal for the following reasons:-

“(1) In so far as the argument in the lower court has not been completed and or determination made in relation thereto this honourable court lacks jurisdiction to entertain the appeal on the issue.

(2) In so far as the appeal and grounds of appeal in the said appeal offered against the provisions of the Constitution of the Federal Republic of Nigeria 1979 and in particular, Section 220(1)(b) of the said constitution the said appeal is incompetent”

In his written submission at page 4 paragraph 2, applicant raised the issues for determination in this motion thus:-

“2. ISSUES FOR DETERMINATION IN THIS MOTION

(a) Whether argument had been completed on the issue raised in the lower court to enable that court to resolve the said issue.

(b) Whether there is proper appeal within the meaning of section 220(1)(b) of the 1979 Constitution of the Federal Republic of Nigeria to enable this honourable court to assume jurisdiction.”

Whilst Respondent in its own written submission at page 3 paragraph 3 submitted the issues for determination as follows:

“3.0 QUESTIONS FOR DETERMINATION BY THIS HONOURABLE COURT

3.1 The defendant/Appellant/Respondent most respectfully contends that the following questions arise at this stage for determination by this honourable court namely:-

(1) to determine whether or not the learned trial Judge pronounced on the 20th May, 1996 the propriety of the Plaintiff/Respondent/Applicant’s Reply to the Statement of Defence filed on 14th October, 1996 which is the subject of the Defendant/Appellant/Respondent’s Appeal.

(ii) Whether the notice of appeal lodged by the Defendant Appellant/Respondent on 3rd June 1996 is predicated on section 220(1)(b) of the 1979 Constitution of Federal Republic of Nigeria as AMENDED or otherwise and

(iii) If the answer to question 3(i)(ii) herein is in the affirmative, can this Honourable Court assume jurisdiction to entertain the Defendant/Appellant/Respondent’s appeal.”

As stated above in this ruling, what transpired on 20th May, 1996 was intentionally and advisedly stated as what transpired as to whether or not a decision within section 277 of the 1979 Constitution was the outcome of what took place and falls within definition of decision as defined in Section 277 of 1979 Constitution aforesaid. This is the Crux of the appeal.

In the arguments of the parties, each party contends whether or not what occurred at the Aba High Court on 20th May, 1996 amounted or not to a decision. This is the bone of contention in ground 2 of the substantive appeal and issue 1 raised in Respondent’s issue or question for determination in this application. My understanding of the present interlocutory notice of preliminary objection though couched or under the guise of jurisdiction is for this court to decide the issue in the substantive appeal in the interlocutory appeal. With respect what this court is being called upon now is the common adage of putting the cart before the horse. It is trite law that this court should be cautious not to decided in the interlocutory appeal the issue to be decided in the substantive appeal.

It was held in S.C.C. Nigeria Ltd & Anor (By his next friend Friday Ukanwoke) v. Our Line Ltd v. Universal Insurance Co. Ltd (1995) 5 NWLR (Pt 395) 364 by Court of Appeal wherein it was held:-

“9. A court of law should not unwittingly decide the very same matter which is yet to be dealt with in the substantive case before it at the interlocutory stage. In the instant case, no matter how careful the Court of Appeal may be it is unable to appreciate how the crucial jurisdiction issue raised by the elevation of the trial Judge to the Supreme Court bench, can be decided one way or the other without going into the merits of the appeal.”

Also in Icon Limited (Merchant Bankers) v. FBN (Merchant Bankers) Ltd (1995) 6 NWLR (Pt.401) page 370 at 377 it was held that:-

“8 At the interlocutory stage issues that would at the appeal stage ought not to be heard argued by counsel and decisively commented upon by the court. The court has to concern itself as to whether there exist favourable conditions that would enable it to grant the application if not, to refuse it.”

applied and followed in unreported rulings delivered on 12th June, 1996 in CA/PH/94M/97 Chief Reginald F.P. Abbey Hart & 4 Ors v. TSKJ Nig. Ltd & Ors. CA/PH/70M/97 (1997) 7 NWLR (Pt. 517) 424; Shell Petroleum Development Co. (Nig.) Ltd. v. Chief Tigbara Edamkue & 5 Ors. and Chief Nwoke Nwikunee & 4 Ors.; Brown v. Brown (1994) 7 NWLR (Pt.355) 217 CA

Applying the above authorities to the instant appeal, there is no way in the consideration without deciding whether what transpired on 20/5/96 amounted or resulted in a decision within the meaning and intendment of Section 277 of 1979 Constitution of Nigeria as a decision or not a decision thereby unwittingly deciding at this interlocutory stage the issue to be decided in the substantive appeal. For this reason, I advisedly made no comments on the merits or demerits of this application and to re-emphasize the description of what transpired in court and not to tread on the issue whether it was a decision or not. In the consideration section 220(1) of the Constitution is bound to be considered which is also an issue raised in the substantive appeal because if there was no decision this court lacks competency and jurisdiction to entertain the appeal as competency goes to jurisdiction Madukolu v. Nkemdilim (1962) 2 SC NLR page 341. Adigun v. Governor of Osun State (1995) 3 NWLR (Pt.385) page 513 SC.

For the foregoing reasons and with caution this application is refused as it shall involve this court at this interlocutory objection to decide the issue raised in the substantive interlocutory appeal which is not a right step for this court to take. The application having been refused is hereby struck out The Respondent is entitled to the cost which acting judicially and judiciously is fixed at N1,500.00 in favour of Respondent against the Applicant

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Other Citations: (1997)LCN/0285(CA)