Cypiacus Nnadozie & 3 Ors V Nze Ogbunelu Mbagwu (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI JSC

This suit was initiated at the Customary Court of Imo State holden at Nnenasa, Isu Local Government Area of Imo State on or about the 9/6/92. The Plaintiff therein is the Respondent in this appeal and shall herein after be simply referred to as the Respondent. While the Defendants therein are the Appellants herein and shall herein after be simply referred to as the Appellants. The Respondent sued for himself and as representing the Mbagwu family of Umuduru Ekwe Isu Local Government Area. The substance of the claim was for a declaration that he and his Mbagwu family were entitled to the Customary Right of Occupancy over the land in dispute. He also claimed for perpetual injunction and Nl,000.00 damages for trespass.

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The trial involved the testimony of a number of witnesses from both parties. The Court also visited the locus in quo. By its judgment on the 30/1/95 the trial Customary Court allowed the claim and granted the declaration and injunction sought and awarded N500.00 costs against the Appellants.

At the trial Customary Court the main issue which fell for determination was whether the Appellants’ holding of the land in dispute was by reason of a customary pledge and which therefore entitled the Respondent to its redemption. On this question of whether there was any customary pledge the Respondent was at pains to prove that by a mutual agreement the parties made recourse to and consulted the Chukwu Oracle which proclaimed in favour of the Respondent. The Appellants vehemently denied the alleged recourse to and proclamation by the Chukwu Oracle. The trial Customary Court accepted the Respondent’s evidence of the parties recourse to the Chukwu Oracle and which indeed formed the kernel of its decision.

The Appellants were aggrieved by the said decision and appealed to the Customary Court of Appeal. By its judgment on the 9th of July 1996 the appeal was allowed. The judgment of the trial Customary Court was declared null and void, set aside and a retrial ordered.

Still not satisfied, the Appellants went on appeal to the Court of Appeal. The appeal was dismissed. This was in the judgment on the 18th September, 2001.

The Appellants are still aggrieved and have come on appeal to this Court. The parties, through their counsel filed and exchanged their briefs of argument. The Appellants’ Brief filed on the 2/4/03 was prepared by Livy Uzoukwu SAN. That of the Respondent filed on the 15/1/04 was prepared by C.A.B. Aparanta & Co.

In the Appellants’ Brief Livy Uzoukwu SAN formulated three issues for determination which he couched as follows:-

(1) Whether the Court of Appeal misconceived the respective cases of the parties?

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(2) Whether the Court of Appeal was right in determining the appeal based on issues raised suo motu by it and in respect of which parties did not address it

(3) Whether the order of retrial made by the Court of Appeal was in law right

On his part C.A.B. Akparanta, SAN identified only one issue for determination. The issue is

“whether the court below was right in confirming and affirming the judgment of the Customary Court of Appeal which set aside the judgment of the Customary Court of first instance given in favour of the Plaintiff/Respondent and instead ordered a retrial of the substantive suit at the Customary Court of first instance.”

In the course of his submissions Learned Senior Counsel for the respondent proffered arguments in response to each of the Appellants’ three issues.

In his argument learned counsel for the Appellants made references to portions of the judgment of the Court of Appeal and submitted that there was a misconception of the cases of both the Appellants and Respondent. Having pleaded pledge, he argued, the Respondent had impliedly admitted the Appellants’ possession of the parcels of land in dispute and had the duty to prove the pledge which he failed to establish. Learned Senior Counsel also referred to the conclusion of the Court below “that the Appellants obtained from the Customary Court of Appeal exactly what they asked for” and argued that the finding showed also a misconception of the Appellants’ case and thus perverse. The misconception of both cases, it was argued, occasioned a miscarriage of justice.

Under the Appellants’ issue two, Learned Senior Counsel referred to the reasoning of the Court below that the Respondent did not go to the trial court to prove anew that there had indeed been a pledge and argued that the Respondent indeed alleged pledge but failed to prove it. He referred also to the finding by the Court below that the Appellants got from the Customary Court of Appeal exactly what they asked for and submitted that the two issues were raised suo motu by the Court and had a duty to hear the parties before giving its decision based thereon.

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For this submission he relied on Udogu v Egwuatu (1994) 3 NWLR (Part 330) 120; Carribean Trading AND Fidelity Corporation v U.N.N.P.C. (1992) 7 N.W.L.R (Part 252) 161. Learned Senior Counsel for the Appellants further submitted that the Court below read into the record what is not there. Under the Appellants’ third issue learned Senior Counsel repeated in greater details the arguments in issues one and two i.e. that the Respondent failed to prove the alleged pledge and that the proper order is one for a dismissal of the case instead of an order of retrial. He urged finally that the appeal be allowed and the claim of the Respondent dismissed.

Chief C.A.B. Akaranta SAN for the Respondent argued as follows: He reiterated the principle that proceedings in Customary Courts are not bound by technical rules and the exactitude used in common law courts and that appellate courts have a duty therefore to look at the claim and evidence to determine the real issues in controversy between the parties. In support of this principle, he cited E.F.I, v Enyinful (1954) 14 WACA 424 and Ekia & Ors v Utong & Ors (1991) 6 NWLR (Part 197) 258 at 276 and 278. He referred to the writ of summons and the evidence led and contended, as found by the Court of Appeal, that the real issues in controversy before the trial Customary Court were whether indeed the Chukwu Oracle was consulted and if so whether the oracle declared in favour of the Plaintiff/Respondent. It was argued that recourse to the Chukwu Oracle was proscribed by law and therefore that the trial Customary Court’s judgment based on the declaration by Chukwu Oracle was null and void. It was the submission of Learned Senior Counsel that the order of retrial was the logical and consequential order following the nullification voiding and setting aside of the judgment. In conclusion he urged that the appeal be dismissed.

I have given due consideration to the facts of the case, the decisions of the trial Customary Court, the Customary Court of Appeal, the Court of Appeal and the submission of learned Senior Counsel for the parties. What appears to be the crucial question is whether, having regard to the peculiar facts and circumstances of this case the order of retrial is the most appropriate. This is the all pervading issue and the whole appeal is dependent on its resolution.

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This leads to a consideration of principles governing an order of retrial, the locus classicus on the point being Yesufu Abodundu & Ors v The Queen (1959) SCLR 162. In that case the following guiding principles in deciding an order of retrial were laid down:-

(a) That there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand the Court is unable to say that there has been no miscarriage of justice.

(b) That, leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant.

(c) That there are no special circumstances as would render it oppressive to put the Appellant on trial a second time.

(d) That the offence or offences of which the Appellant was convicted or the consequences to the Appellant or any other person of the conviction or acquittal of the Appellant are not merely trivial, and

(e) That to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.

Still on the guiding principles, the Federal Supreme Court per Abbott F.J. at page 166 said:

“In formulating these principles we do not regard ourselves as deciding any question of law or as doing more than to lay down the lines on which we propose to exercise a discretionary power. It is impossible to foresee all combinations of circumstances in which the question of ordering a retrial may arise, and it may be that further experience will lead us to formulate additional principles or to modify those we have formulated in this judgment We wish to make it clear that the court will be free to do this without infringing the doctrine of judicial precedent.”

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The above shows that the five guiding principles formulated above on order of retrial are not decisions laying down legal principles binding on lower courts to follow, since the decision whether or not to order a retrial in a given case is discretionary depending on the peculiar facts and circumstances of each case. And since the decision so to order is the result of the Appellate court’s exercise of its discretion, no one decision is a binding precedent on subsequent decisions. It follows therefore that the five principles formulated in ABODUNDU’s case are not exhaustive. On this see Okoduwa v The State (1988) 2 NWLR (Part 76) 333. Thus it has been settled that where appraisal and evaluation of evidence on vital issues has been left undetermined by the trial court and the appeal court is not in a position to adequately embark upon the evaluation from the printed record the proper order to make is one for a retrial. See Olatunji v Adisa (1995) 2 NWLR (Part 376) 107; Chief Asuquo Oko & Ors v Chief James Ntukidem & Ors (1993) 2 NWLR (Part 274) 124. Where however it is manifest from the record that the plaintiffs case has failed in toto and there is no manifest irregularity of a substantial nature, a retrial order which will be tantamount to giving the Plaintiff another bite at the cherry ought not to be made. See Elias v Disu (1962) 1 SCNLR 361; National Bank of Nigeria Ltd v P.B. Olatunde & Co. Nig. Ltd (1994) 3 NWLR (Part 334) 512 at 533, Abilawon Ayisa v. Olaoye Akanji & Ors (1995) 7 NWLR (Part 406) 129 Okeowo v Migliore (1979) 11 SC 138; Awote v. Owodunni (1987) 2 NWLR (Part 57) 366; Sanusi v Ameyogun (1992) 4 NWLR (Part 237) 527.

Now on the question of whether the order of retrial is the most appropriate in the circumstances of this case, let us examine the character of evidence and the procedure adopted by the trial Customary Court in the course of its judgment.

The judgment itself is at pages 61-72 of the record. From page 61 line 29 to page 62 line 26 the trial court gave a summary of the case of the Plaintiff. That summary represents the legal evidence of the Plaintiff in the case. However from page 62 lines 26 to page 64 of the record the Court veered into the controversial issue of the parties’ recourse to the CHUKWU ORACLE which, it thought, was fundamental to the proper determination of the case.

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The court came to the conclusion that the Plaintiff and his four witnesses were consistent on this issue of visit to the CHUKWU ORACLE. The Court reasoned and found as follows:

“Even though they told their stories of the dispute between the Plaintiff and Defendants from various perspectives, they were in perfect agreement on the following fundamental facts:

(1) That the matter was brought before Chief Osuchukwu Nwadike where the question of “chukwu” trip was decided upon;

(2) That the matter went to “obi-Ezi-Okwu” association of Ekwe where the issue of going to chukwu to divine the ownership of the of the land was ratified;

(3) That both the Plaintiff and the Defendants agreed before the entire assembly Umuduru Ekwe people to accept the outcome of the chukwu trip final and to abide by it;

(4) That all parties concerned sent their respective representatives to chukwu and that the chukwu trip was actually undertaken in the interest of justice and fair play;

(5) That the outcome of the chukwu trip was announced to a crowded assembly of Umuduru Ekwe people at their village square in the presence of the Plaintiff and the defendants and all participants in the chukwu trip;

(6) That the “Chukwu” declared the Plaintiff the Mbagu family as the rightful owners of the land in dispute and ordered the Defendants to release the land to them. That the proceeds from the Iroko tree sold was handed over to the Plaintiff as the owner of the land.”

At page 67 lines 5-7 of the record the trial Customary Court made some reference to the submission of learned counsel for the defence to the effect that the Plaintiff failed to discharge the onus on him to prove the alleged pledge which in my view was a powerful submission. Surprisingly the trial Customary Court reacted at page 67 lines 840 in the following terms:

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“Going through the Plaintiffs particulars of claims and his evidence one can observe that the Plaintiff rested his case on the validity of the trip to “Chukwu Oracle”

And at the concluding part of its judgment the trial Customary Court said:

“Having thus evaluated the case for the Plaintiff and that for the Defendants what now remains is the question; is the decision of the Chukwu Oracle binding on the Defendants? The Defendants like the Plaintiff vowed publicly before the Umuduru Ekwepeople before the chukwu trip was undertaken to abide by the outcome of the declaration of chukwu oracle as final solution as to the ownership of the land in dispute. The Court therefore holds that the Defendants are bound by the “chukwu” oracle decision. The Court believes the Plaintiff and his witnesses as witnesses of truth in the testimony on the chukwu trip..”

It is clear from the above that the trial customary court was mainly pre-occupied with ascertaining whether or not the parties had, by agreement, consulted the chukwu oracle and the “decision” of the said oracle. The court believed the evidence of the Plaintiff and his witnesses that the parties by agreement opted to and consulted the chukwu oracle which declared the land to be that of the Plaintiff and held the Defendants/Appellants bound by the chukwu decision. Although the trial customary court embarked upon some appraisal of the legal evidence presented, it nevertheless completely disregarded that evidence and adopted, as it were, the so called decision of “chukwu oracle”

Both sides agree that the procedure was wrong. The Customary Court of Appeal, relying on the prohibition in section 207(2) of Witchcraft and Juju Orders In Council and Section 210(d) of the Criminal Code described the procedure as illegal, nullified the judgment and ordered retrial. The Court of Appeal endorsed the nullification and order of retrial. The pith of the submissions of learned Senior Counsel for the Appellants is that on the printed record the Plaintiff/Respondent failed to prove the alleged pledge and that in the circumstances the proper order should be one for the dismissal of the claim instead of an order for retrial.

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Earlier at the trial Customary Court learned counsel for the Defendants/Appellants proffered submissions to the effect that the Plaintiff/Respondent failed to discharge the burden of proving the alleged pledge. See page 54 of the record. And as I stated earlier the trial customary court noted this submission at page 67 of the record. It is clear that the trial customary court failed totally to evaluate the legal evidence against the background of what I consider to be the powerful submission of defence/appellants’ counsel. I have restated above some guiding principles for an appellate court in the exercise of its discretion to make an order of retrial. In the face of this total failure of evaluation of the legal evidence by the trial Customary Court was the Customary Court of Appeal right to order a retrial?

I am not unmindful of the principle that where a Plaintiff fails totally to establish his case and there is no manifest irregularity committed by the trial court, a retrial order ought not to be made as such an order will amount to giving the Plaintiff another opportunity to prove his case. In this case however the irregularity committed by the trial customary court was substantial. The entire legal evidence before the court on which the dispute would have been determined was disregarded. The contention of learned Senior Counsel for the Defendants/Appellants is that the two appellate courts below and indeed this Court ought to re-evaluate the evidence on the printed record and dismiss the claim. Attractive as the submission is, it failed to take cognisance of the character of the legal evidence on the printed record. The entire evidence is oral, there being no documentary evidence. It is such evidence that may necessarily involve demeanour and the determination of credibility of witnesses. Questions of demeanour and the determination of the credibility of witnesses are exclusively preserved for the trial Court. An appellate court, not having the privilege of watching and hearing the witnesses testify is, by reason of that handicap, not in a position to determine the credibility of witnesses. The result is that the two appellate courts below and indeed this Court are ill equipped to determine the credibility of witnesses. That function belongs properly to the trial customary court.

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Considering all the facts and circumstances of this case, I am firmly of the view that there are sufficient materials for the discretionary order of retrial. Further more, since the discretion as to whether or not to order a retrial in this case is exclusively that of the Customary of Court of Appeal both the court below and this Court would not ordinarily interfere. And so neither the Court of Appeal nor this Court can interfere with that court’s exercise of its discretion unless there is good cause so to do. This is the principle in National Bank of Nigeria Ltd v P.B. Olatunde & Co (Nig.) Ltd (1994) 3 NWLR (Part 334) 512 at 526; Imonikhe v A.G. Bendel State (1992) 6 NWLR (Part 248) 396 at 408 and University of Lagos v. Olaniyan (1985) 1 NWLR (Part 1) 156. In this case there is no manifest good cause for such an interference.

On the whole I resolve this all pervading issue against the Appellant. The appeal fails and is accordingly dismissed.

I assess the costs of this appeal at N10,000.00 in favour of the Respondent.

NIKI TOBI, JSC:

This is yet another land dispute. It is between two families: Mbagwu and Nnadozie Nwanya. The respondent, the plaintiff in the Customary Court, is a representative of the Mbagwu family of Umuduru Ekwe. The appellants, the defendants, are the representatives of the Nnadozie Nwanya family. The land in dispute is Ala Unu Nwaebo.

The case of the respondent is that Ala Unu Nwaebo had been on a long standing pledge to the families of Nnadozie and Obiwuru. The land was split into two parts; one part pledged to each of the families. The two pieces of land which stood side by side are in fact one land split into two for the purposes of the pledge. The late father of the respondent made efforts to redeem the land from the pledgees, Nnadozie and Obiwuru, but to no avail. In an effort to settle the matter traditionally, consultations were made to “Chukwu”, apparently an oracle. The Chukwu declared that the respondent was the rightful owner of the land. The respondent went into the land and planted cassava and other crops. The appellants harvested the crops. That prompted the action in the Customary Court of Isu Local Government Area, Nnenasa.

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The case of the appellants is that the 1st appellant, Cyriacus Nnadozie, inherited the land from his father, Nnadozie, Nnadozie from his father Nwanya, Nwanya from Ofoajoku, Ofoajoku from Duruegbuhuo, Duruegbuhuo from Ofoegbu, Ofoegbu from Duruegbula, etc. The land was never on pledge and there was no consultation to Chukwu.

The respondent, as plaintiff, filed an action at the Customary Court seeking a declaration that the Mbagwu family of Umuduru Ekwe are entitled to customary right of occupancy, perpetual injunction and N1,000 general damages. The respondent gave evidence. He also called four other witnesses. The appellants called three witnesses.

The Customary Court gave judgment to the respondent. The court was satisfied with the evidence on the Chukwu oracle. The court said at page 71 of the Record:

“The Defendants like the Plaintiff vowed publicly before the Umuduru Ekwe people before the Chukwu trip was undertaken to abide by the outcome of the declaration of Chukwu Oracle as final solution as to the ownership of the land dispute. The court therefore holds that the Defendants are bound by the Chukwu oracle decision. The court believes the Plaintiff and his witnesses as witnesses of truth in their testimony on the Chukwu trip. The court further holds that the Plaintiff has proved his case on the preponderance of truth and evidence. According to the evidence adduced at the hearing of this case the court declares that the piece of land held by Cyriacus Nnadozie which he calls Uhu Nwanya and the adjoining piece of land held by Samuel Obiwuru which he calls Uhu Ama Onyeike are one and the same land which the Plaintiff called Uhu Nwaedo hereby stands redeemed.”

On appeal, the Customary Court of Appeal allowed the appeal and ordered a retrial. On a further appeal to the Court of Appeal, that court dismissed the appeal and confirmed the order of the Customary Court of Appeal for a retrial.

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Dissatisfied, the appellants have come to this court As usual, briefs were filed and duly exchanged. The main plank of the submission of the appellants is that the Court of Appeal misconceived the cases of the parties. The brief examined the issue of pledge and submitted that it was clearly an issue in the matter. It questioned the right of the Court of Appeal in determining the appeal on issues raised suo motu by the court. It is the case of the appellants that the order of retrial is wrong.

The respondent, understandably, takes the opposite position. He does not see where the Court of Appeal misconceived the cases of the parties. He justified every bit of the judgment of the Court of Appeal.

When a party alleges that a court of law misconceived the case of a party, he means or should be taken to mean that the court had a wrong conception or wrong idea or understanding of the case of the party as presented in court. By the allegation, the party is attacking the court of grave wrong doing because the court, as a matter of law, must give judgment in the light of the facts as in the proceedings and the submissions of counsel or the parties as the case may be.

The burden is on the party alleging the misconception to prove it on appeal. And the only way to prove is to call the attention of the appellate court to the cold record before it. An appellant cannot move out of the record in search of evidence of misconception because there cannot be such evidence outside the record.

An appellant who alleges misconception has a duty to go into the specific details of the case of the parties and compare same with the evaluations and or conclusions of the court. The duty of an appellant is so specific that a wild-goose, generic or vague approach to the allegation will not be of help to him. An appellant must pin-point where and how the misconception arose.

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I realize that the allegation of misconception is based essentially, if not crowded, on the pledge affair and the Chukwu Oracle and the slant of its illegality. Counsel attacked the following dictum of the Court of Appeal:

“… he (the respondent) did not go before the trial Customary Court to prove anew that there had indeed been a pledge. His case was that the issue of pledge had earlier been investigated by a traditional arbitral panel, whose decision was binding on him and the Defendants, and that the issue had been resolved in his favour. All that he asked the court to do was to determine the validity of this claim.”

Is the above a misconception of the case of the respondent? I think not. On the contrary, the above is an accurate and correct statement of the case of the respondent. In my view, before the parties consulted the Chukwu oracle, the case was predicated on the pledge. After the consultation, the main issue in the case was what the Chukwu oracle said in respect of the pledge. That became the central issue and the pledge issue was relegated to the background.

The evidence of PW1 justifies the position I have taken. Let me quote part of it from pages 8 and 9 of the Record:

“The Chiefs and Nzes of Umuduru asked us if we would accent their decision to find out the actual owner of the land. All of us unanimously agreed, that is, all the parties to this dispute. We performed all the necessary formalities for consulting the juju oracle there and then and our opponents performed theirs too…After all the necessary ceremonies for the Chukwu oracle, the delegation departed… In the presence of all and sundry, the delegates swore by the bag of Nnadozie to show that they were going to say the truth… He told all the congregation that the oracle proclaimed the children of Mbagwu the rightful owners of the land. All the delegates echoed his report as the message from Chukwu oracle to which they were sent. Then the Chiefs and Elders of Umuduru and Ekwe in general called upon Chief Osuchukwu Nwadike to produce the money from the sale of the iroko tree and he did so. On that same day, they handed the money over to us. It was One Thousand Two Hundred Naira (N1.200.00). He asked Umuduru his commission for keeping safe the above amount for a long time and they took One Hundred Naira (N100.00) and gave it to him.

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Then we all dispersed. The oracle ordered us to refund the pledge to them before entering the land (redemption fees) amounting to (a) Two Naira (N2.00) and (b) N2.90) Two Naira ninety kobo respectively. The sums of money lay in the hands of the Chiefs and Elders. Then they ordered us to enter the lands and farm them. We planted cassava on the land. When the cassava was ready, they harvested it. Then I had to sue them to court claiming damages as per writ.”

It is clear to me from the above that the pledge issue was no more a live issue. The customary law arbitration settled it by the refund of the monetary value of the pledge. Thereafter the chiefs and elders asked the respondent to enter the land. The respondent sued when the appellants protested.

I am in complete agreement with the Court of Appeal that the issue of pledge had earlier been investigated by a traditional arbitral panel and all that the respondent asked the court to do was to determine the validity of that claim. There was no misconception by the Court of Appeal of the case of the respondent.

I turn to the submission that the case of the appellants was misconceived. Learned counsel attacked the following dictum of the Court of Appeal at page 180 of the Record:

“Another reason why I think this appeal lacks merit is that the appellants obtained from the Customary Court of Appeal exactly what they asked for and what that court did is not illegal and cannot adversely affect the competence of the court or render its decision defective.”

In response to the above, learned counsel called in aid additional Issue No. 7 formulated in the Court of Appeal where appellants questioned the legality of the decision of Chukwu Oracle. As there is no such issue directly formulated by the appellants in this court, I will not go into the matter of illegality of the Chukwu Oracle. The issue may arise later, probably in respect of Issue No. 3. I think I have done enough on Issue No. 1. It remains for me to say that the issue has no merit. It therefore fails.

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I go to Issue No. 2. Learned counsel for the appellants submitted that the Court of Appeal formulated a new case for the respondent when the court came to the conclusion that the respondent did not go before the trial court to prove anew that there had indeed been a pledge and the appellants obtained from the Customary Court of Appeal exactly what they asked from the court. To learned counsel, the issues were raised suo motu by the Court of Appeal and that court ought to hear the parties before giving its decision.

A new case is a case which was not existing before. A new case is a different case, different from the original case. A new case is a fresh case. A new case is a case which the court is just beginning to know about for the first time in the judicial process. If my definitions are right, and I think they are, where is the new case counsel is talking about? Was the issue of pledge not in existence in the Customary Court? Was the issue of Chukwu Oracle not in existence in the Customary Court?

The duty of a trial Judge is to evaluate the evidence before him to arrive at a decision. The duty of an appellate court, such as the Court of Appeal, is to go into the evidence evaluated by the trial Judge to see whether there was any perversity in the findings. And in the course of carrying out this duty, an appellate court will also go into the evidence and come to a conclusion one way or the other. A conclusion arrived at by an appellate court on the strength of the evidence at the trial court based on analysis of the evaluation of the evidence by the trial court, cannot be said to be a new case. In the course of evaluating evidence, a court of law is entitled to make deductions here and there from the evidence before the court, and deductions which result in conclusions cannot be said to be new case.

The issue of pledge is in paragraph 23 of the Particulars of Claim. It reads:

“3. The Plaintiff and the entire Mbagwu family of Umuduru Ekwe are the rightful owners of the pieces or parcel of land known as and called “Ala Uhu Nwaedo – subject matter of this suit, situate at Umuduru Ekwe within the jurisdiction of this court. Sometime ago, Nwaodo (now late) an uncle to the Plaintiff pledged out portion of this piece of land to late Nwaya Ofoajoku – grand father to… The 1st and 2nd Defendants redeemable at the sum of £1.45 translation in Igbo, “Ego nu ehi no Ogodo ano” i.e. W2.40.

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The remaining portion he pledged to late Onwuka Duruamuka, the grand-father of the 3rd and 4th Defendants redeemable at the sum of £1 -translation in Igbo “Ego nu the”, i.e. N2.40”

The second conclusion complained of by counsel for the appellants is a clear conclusion from the evidence adduced by the parties. In my view, the Court of Appeal did not raise issue or issues suo motu which required response by the appellants. The issue therefore fails.

The third and final issue is the order of re-trial confirmed by the Court of Appeal.

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SC. 249/2002

Chief Amodu Tijani Dada & Ors. V. Mr. Jacob Bankole & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

The original plaintiff at the trial court was Alhaji Bisiriyu Sule, He died whilst the matter was before the court below on appeal. The present appellants were substituted for him by the court below, similarly the original defendants were three, The 2nd and 3rd of them died whilst the case was pending at the trial .court, The subsisting 1st defendant prosecuted the case to conclusion at the High Court. He also died whilst the matter was before the court below. The present respondents were accordingly substituted for him.

The appellants, as the representatives of Ikotun and Matori families of Iyesi Otta, Ogun State brought their suit against the respondent (as defendant) as the representative of Isidana Family of Iyesi, Otta, Ogun State. In their 3rd Further Amended Statement of Claim, the appellants claimed against the respondents the following reliefs:

“1. A declaration that the plaintiff is entitled to a statutory right of occupancy over all that piece or parcel of land situate, lying and being at Iyesi village, Otta, Ogun State which is clearly delineated blue on the survey Plan No. SEW/W/2496/4 dated 8th May, 1984. Annual rent of the said land being N100.00.

2. A declaration that by refusing to pay customary tribute and by claiming ownership of the piece of land which the defendants hold of the plaintiff as customary tenants of the plaintiff, the defendant have (sic) thereby forfeited their interest as customary tenants to the Plaintiff. Annual rent of said land being N100.00
3. Possession of the said parcel of land in dispute.
4. Perpetual injunction to restrain the defendants, their agents or assigns from encroaching on the said parcel of land.”

The parties filed and exchanged pleadings which they amended a number of times. The suit was tried by Oduntan J. of the Ogun State High Court. The Plaintiffs called six witnesses. The defendants called seven witnesses. On 19-12-94, the trial judge in his judgment granted all the four reliefs sought by the plaintiff. The defendant was dissatisfied with the said judgment. He brought an appeal before the Court of Appeal, Ibadan (hereinafter referred to as ‘the Court below’). On 5-7-2007, the Court below in its judgment allowed the appeal. The judgment of the trial court was set aside. Although the court below did not specifically say so, but the implication of the judgment was that the plaintiffs’ claims in their entirely were dismissed.

On 26-11-2001, the court below substituted the present appellants for the original plaintiff who was dead. Similarly, the court on 21-2-02 substituted the present respondents for the original defendant who was also reported dead. The appellants were dissatisfied with the judgment of the court below. They have brought this appeal. In their amended Notice of Appeal dated 22-03-05, they raised fifteen grounds of appeal. From these grounds of appeal, the appellants distilled two issues for determination. The issues are:

“1. Whether having regard to the manner in which the respondents/appellants in the lower courts formulated their 2nd issue for determination and the Court of Appeal having held that their argument on inordinate delay was unmeritorious, the Court of Appeal was right in proceeding to re-evaluate the evidence of both parties at the trial court, set aside findings of fact and make findings of facts thereon and come to the conclusion that the Respondents/appellants in the lower court had failed to discharge the burden of proof on it on the basis that the 2nd issue for determination had a second limb and it covetailed into whether the learned trial judge was right in giving judgment based on evidence adduced before him.

2. Whether the learned trial judge wrongly made use of evidence in previous proceeding and if so whether this was gross enough to vitiate the proceedings and overturn be judgment; whether the failure of the Court of appeal to make a pronouncement on whether or not the purported error of the trial judge is making use of evidence in a previous proceedings is gross enough to vitiate the judgment of the trial court is fatal to the judgment of the Court of Appeal.”

The respondents in the appeal have also formulated two issues for determination. The respondents’ would appear to be a better presentation of the matter in contention between parties. The issues read:

“i. Whether the second issue formulated by the appellants (now respondents) at the Lower court did not dovetail into a complaint against evaluation of evidence by the trial court thus empowering the learned Justices of the Court of Appeal to proceed to re-evaluate the evidence of both parties and make appropriate findings after their Lordships had discerned from the record of appeal that the trial judge had failed to avail himself of the opportunity to conduct a proper evaluation of the facts presented by parties at trial.

ii ‘Whether the learned Justices of the Court of Appeal were not right in holding that the leaned trial judge had m ade a wrong use of evidence in previous proceedings in a gross manner which engendered a miscarriage of justice and thus vitiated the judgment of the learned trial judge.”

I intend to consider together the two issues for determination because both are closely inter-related. But it is helpful to expose briefly the nature of the dispute which was submitted to the trial court for adjudication. The case made by the plaintiff in his 3rd Further Amended Statement of Claim may be summarized thus:

The land in dispute was first settled upon by the Plaintiff s great grandfather by name OLAKORU a hunter who migrated from Ile-Ife. Olakoru named the land lkotun. Following the death of Olakoru, his descendants known as lkotun and Matori families have continuously exercised rights of ownership over his land. In exercise of such right, a portion of the land was given to one Akilodi. The said land was known as Isidana compound. At Akilodi’s death, his land was inherited by his son Owolola. Owolola later brought on the land other persons including the defendant’s predecessor-in-interest as customary tenants. The defendant paid customary tributes in the form of yam and oil to Ikotun and Matori families. When the defendant felled trees on the land, he gave portions thereof to plaintiff’s families. The defendant has since been felling trees without paying the due tributes to the plaintiff s families. He has also laid a claim of ownership to the said Isidana land. The plaintiff therefore brought this suit claiming as earlier stated in this judgment.

The defendant raised his own traditional history which contradicted the plaintiffs. The defendant pleaded that the land was first settled upon by his ancestor named Osidana who migrated from Ile-Ife over two hundred years ago. Osidana was :l hunter. He also cultivated the land. He brought a shrine thereon which was worshipped as a deity. The shrine, known as ‘Amoola” was still regularly worshipped. The descendants of Osidana have through the years exercised acts of ownership over the land and granted portions thereof to diverse persons. The defendant denied that he and his forbears were plaintiffs’ customary tenants.

It was on this state of pleadings that the suit was tried by Oduntan J. at the Ogun State High Court. At the trial, the plaintiff tendered as exhibit ‘A’, a transcript of evidence given by one Isaac Bankole in suit No. OTB/172. CV.71 between Alhaji Bisiriyu Sule (the present plaintiff) and Michael Aina at Ota Grade B Customary Court. The said Isaac Bankole did not testify before the trial court in the current proceedings. Regrettably however, the trial judge, as I shall shortly demonstrate, erroneously made extensive use of the testimony of Isaac Bankole in the earlier case. Indeed the testimony of Isaac Bankole in exhibit’ A’ was used as a benchmark :’or assessing the veracity of the evidence given by other defence witnesses in the current case.

At page 319-320 of the record of proceedings, the trial judge said:

“At page 6 of exhibit’ A’, 1st D.W. stated under cross-examination thus-

‘Ogunsi begat Aina Ota. Aina ota was the son of Osidana. Ogunsi was the son of Osidana.’

It is obvious that 1st D.W. has prevaricate in respect of Ogunsi. In exhibit ‘A’ page 7, 1st defendant’s witness stated that Oyekanmi begat Ogunsi, Ogunsi begat Bankole and Aina Ota Bankole Ota is my own father.

(c) At page 7 of exhibit ‘A’, 1st D.W. stated thus-

‘The road bears Osidana, I do not know whether land is allotted to anyone on lsidana land. I was not told by my great grand father. I did not know any person to whom land was allotted to on the land of Isidana.’

1st Defendant’s Witness Isaac Bankole at page 7 of exhibit A stated under cross examination thus – ‘We have farm on the land in dispute; We did not allot land to anybody on the land in dispute.’

The evidence of 1st defendant’s Witness at page 7 of exhibit’ A’ shows that the defendants are customary tenants of the plaintiffs and that they had no title to the land in dispute. The defendent’s family could not have allotted land to the 3rd D.W. or his father.

At page 7 of exhibit’ A’, the 1st Defendant Witness, Isaac Bankole during cross-examination stated thus-

‘….The first farm my brother cultivated on the land in dispute was seized from him by the father of the plaintiff. The second plaintiff is the on harvesting the Orogbo today because he has the right of ownership…Owolola was the first person to cultivate firm on the land in dispute and he is the descendant of second Plaintiff’s great grand father.’It shoud be noted that Isaac Bankole’s farm is within the area edged green on exhibit ‘O’ claimed by the defendant.”

Section 34(1) of the Evidence Act provides:

“34( 1) Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding or in a later stage of the sarLe judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be fouLd or is incapable of giving evidence or is kept out of the way by the adverse party or when his presence calIDot be obtained without an amount of delay or expense which, in the circumstances of the case the court considers unreasonable:

Provided-

(a) that the proceeding was between the same parties or their representatives in interest;

(b) bat the adverse party in the first proceeding bad the right and opportunity to cross-examine; and

(c) that the questions in issue were substantially the same in the first as in the second proceeding.”

Now exhibit ‘A’ in the current proceeding was tendered by consent. There was therefore no opportunity of testing if its reception in evidence complied with the requirements under section 34(1) above. It is settled law however that such evidence may be used for the purpose of cross-examining as to credit: See Alade v. Aborishade [1960] SCNLR 398; Shonekan v. Smith [1964] 1 All NL.R. 33. It is wrong and improper to treat the evidence given by a witness in a previous proceeding as one of truth in a subsequent or later proceeding, in which he has not given evidence. See Obawole & Anor. v. Coker [1994] 5 NWLR 416, Alade v. Aborishade (supra); Enang & Anor v. Ukanem & Ors. [1962] 1 All N.L.R. 530, and Ariku v. Ajiwogbo [1962] 2 SC NLR 369.

It is apparent from the passage I have reproduced above from the judgment of the trial judge that the court used the evidence given by Isaac Bankole in a previous case as if he had given the evidence in the current case. The evidence given by Isaac Bankole in exhibit’ A’ was used by the trial judge to assess the veracity of the defence witnesses in the current case. The evidence given in the current case which did not conform with that of lsaac Bankole on the previous case was seen as Ultrue. This was a very erroneous approach. The court below in the lead judgment of Onalaja J .C.A. (presiding) reacted to the occurrence in these words:

‘Applying the cases of Ayinde v. Salawu [1989] 3 NWLR (Pt. 109) page 297 at 315; Alade v. Aborisade;(1960)

SCNLR 398 ;[1960J 5 FSC 167 at 172-173; Owoyin v. Omotosho;(1961) 2 SCNLR 57;[1961] 1 All NLR 304 at 308; Ariku v. Ajiwogbo;(1962) 2 SCNLR 369 ;[1962] 1 All NLR 629 at 631-2 all pointed to the rule that evidence given in a previous case can never be accepted as evidence by the court trying a later case except under Section 34( I) Evidence Act, which was not applied by the learned trial judge. Having not complied with Section 34 Evidence Act, exhibit A was inadmissible notwithstanding its admissibility without objection by appellant. As exhibit A was inadmissible this court has power to expunge it from the record of appeal 3.S a trial court was only allowed to admit admissible evidence, so this Court should expunge exhibit A as decided in Ariku v. Ajiwogbo (supra)”

I agree with the reasoning and conclusion of the court below on the point. Now, the present respondent before us was the appellant before the court below. It is more precise whilst discussing this aspect to refer to him as the defendant and the present appellant before us as the plaintiff. The defendant in his appeal to the court below against the judgment of the trial court formulated as his 2nd and 3rd issues for determination in the appeal the following:

“:2. Whether the learned trial judge owing to the inordinate lapse of time between when hearing commenced and the delivery of judgment had not become a complete stranger to the facts of the case and was consequently not in a position to form a proper view of the credibility of the witnesses on the most vital and contested issues. This issue encompasses grounds B, D, E, F, G, I and k of the grounds of appeal.

3. Whether the learned trial judge was right in relying and making use of evidence in another proceeding to demolish the defendant’s case other than as provided by law. This issue arises from ground C of the grounds of appeal.”

In reacting to issue No.2 above, the court below said at pages 469-470 of the record:

“After a careful consideration of the arguments proffer by appellant and respondent on issue 2 in their respective briefs of arguments notwithstanding that I resolved the issue in part on inordinate delay in favour of respondent as there was strict compliance with the provision of Section 294( I) 1999 Constitution on the second limb of issue 2 as to evaluation, ascription and assessment of evidence leading to the burden of proof that as respondent sought declaratory and injunctive orders after an appraisal of the facts and law based on the pleadings I come to the irresistible conclusion that respondent on the balance of probability did not establish the grant of rights of occupancy to him. the grant by the lower court more especially that the burden on appellant who did not set up a counter claim was merely to defend, defended effectively. The judgment entered against appellant was not properly proved against him, his case is cogent and more convincing thereby the second limb of issue 2 is resolved in favour of appellant leading me to allow the appeal. The judgment of the lower court that granted statutory right of occupancy in favour of respondent against appellant was a wrongful exercise of the judicial discretion of the learned trial Judge and thereby setting aside the said grant of statutory right of occupancy relief one of the claims in paragraph 30 of the Statement of Claim is dismissed as the grant of statutory right of occupancy is refused by me.” (italics mine)

It would seem that the approach taken by the court below was to rely on what it described as the second limb of the 2,d issue for determination to arrive at the conclusion that the general evaluation of evidence by the trial court was faulty and unfair to the defendant. It is this aspect of the judgment of the court below that has come under attack and criticism by the plaintiff/appellant. Plaintiff s counsel has argued that it was an error on the part of the court below to have relied on a supposed 2ndpmt of issue No.2 to upset the judgment of the trial court wherein the evidence of witnesses had been fully considered and evaluated. Counsel submitted that the court below was bound to restrict itself to only the issues raised by parties before it and that there was no jurisdiction to enlarge or expand the frontiers of the issues submitted to the court for adjudication. Counsel relied on Olowosago v. Adebanjo [1998] 4 NWLR (Pt. 88) 283 where this court said:

“It is necessary to emphasize the purpose of formulating issues D)r determination in briefs. Like pleadings to a litigation between parties the issues formulated are intended to accentuate the real issue for determination before the court.”

Other cases referred to by appellant’s counsel include F.B.N. (Nig.) Plc. V. M O. Kanu & Company [1999] 9 NWLR (Pt. 619) at 496-497; Rotimi v. Faforiji [1999] 6 NWLR (Pt. 606) 305, Acme Builders Ltd. v. K.S.W.B [1999] 2 NWLR (Pt. 590) 288; Iguebe v. Ezuma [1999] 6 NWLR (Pt 288) 205.

I have no doubt that appellant’s counsel is correct in emphasizing that parties and the court alike must confine themselves to the issues formulated by the parties for determination in the matter before the court. It is only when the court confines itself to the issue submitted to it for determination that it can be said that it is engaged ill an attempt to fulfill its constitutional duty of granting a fair hearing to parties engaged in a dispute. A court which goes outside the issues submitted to it for adjudication is in a true sense only engaged on a frolic of its own and not performing its constitutional role. I cannot therefore fault the argument of counsel on the principle espoused in his argument.

But it would appear that counsel viewed the matter too narrowly. Counsel must have erroneously taken the view that the power exercised by the court below in evaluating the available evidence after the findings of the trial court based on the evidence of a witness in exhibit A who did not testify before the trial court has been excluded was unavailable to it. I reproduced above the 3rd issue for determination raised by the defendant before the court below. In his ground ‘C’ of the Notice of Appeal, the defendant raised the complaint on the impropriety involved in a trial court basing its findings on the testimony of a witness in a previous case when evaluating evidence in the current case. The said ground of appeal reads:

“C. The learned trial Judge erred in law in relying on evidence of witnesses in abortive proceedings in ways otter than those prescribed by law and thereby occasioned a miscarriage of justice.

Particulars of Error

(i) The evidence of one Isaac Bankole contained in Exhibit ‘A’ but who did not give evidence in these proceedings was used against the Defendant.

(ii) Evidence that were not used by Plaintiff’s counsel to contradict DWI were unilateral1y employed by the Court to damage Defendant’s case without the witness being given the opportunity of reacting thereto one way or the other.

(iii) Evidence in earlier or abortive proceedings are generally irrelevant to current proceedings except when deployed to test the veracity of a particular witness in a current case.”

The defendant formulated his 3rd issue on the said ground of appeal ‘C’. At pages 361 to 366 of the record of appeal, the defendant’s counsel copiously argued that the trial court was in error to have relied in the current case on evidence given in a previous case. The plaintiff s counsel similarly canvassed arguments at pages 394-397 of the record to counter the argument of the defendant’s counsel. Clearly therefore this was not a case where the court below responded to an issue not raised before it. The court below was clearly responding to the defendant’s issue 3.

If as the court below found and I agree with it, that the trial court was in a gross error to have relied on the evidence of a witness who did not testify before it in the evaluation of evidence, surely there was a plenitude of power available to the court below to determine whether the evidence available or left on record after the testimony of lsaac Bankole in exhibit ‘A’ has been excised would be sufficient to sustain the judgment given in favour of the plaintiff by the trial court. The court below made the: mistake of arriving at the right decision whilst it purported to be considering the second leg of the 2nd issue whereas it could have come to the same conclusion by simply considering defendant’s issue No.3 which copiously raised the same matter. This was a patent mistake made by the court below which did not derogate from the soundness of the reasoning that a trial court could not in a current case rely on the testimony of a witness in a previous case who has not testified before it.

I observed earlier that the court below by implication dismissed the plaintiff/appellant’s case. Was the court below correct to have done so Ordinarily, the nature of the error made by the trial court would have warranted the court below making an order for a retrial not dismissal of the plaintiff s case. But it seems to me that the court below was right in its conclusion that the trial court completely failed to properly evaluate and assess the impact and effect on plaintiff s case of the findings which the trial court itself made. Indeed, it seems to me that on a close examination of the plaintiffs pleadings alone, his case would fail. Let me start with a consideration of the pleadings. In paragraphs 14 to 24(b) of the 3rd Further Amended Statement of Claim, the plaintiff pleaded:

“14. Iyanda the grandson of Olakoru exercising rights of ownership on behalf of the Ikotun and Matori Families also gave a portion of family land to one Akilodi, who came from Ijaliki

15. The land given to Akilodi was known as Isidana Compound.
16. After Akilodi died, the land was inherited by his son, Owolola.
17. Owolola had four children namely Oketoyinbo, Salami Akineyi, Suberu EJegbede and Sanni Oniyide.
18. Later three other strangers, Aina Ota, Bankile and Alakoye came to Iyesi and were allowed by Owolola to stay with him on the said land inherited by him from Akilodi, his father.
19. The said Aina Oata, Bankole and Alakoye we,re only given shelter by Owolola and they did menial jobs all over Iyesi.
20. When Owolola died, his piece of land was shared out amongst his four children who continued to farm the land as customary tenants.
21. However, after the sharing out of Owolola’s land one of the sons, Suberu Elegbede committed an offence in the town and fled to Konifewo (his mother’s birth place) so as to avoid punishment, abandoning his piece of land.
22. Suberu Elegbede’s land was as a result given by the Ikotun and Matori Families to Jinadu Osaniyibi, brother to Isaac Bankole and one of the sons of Bankole (given shelter by Owolola referred to in paragraphs 18 and 19 above) as customary tenant to farm after he approached the Family.
23. The Defendant, Isaac Bankole and Amusa Bamidele Aina assisted and helped to farm the said piece of land with Jinadu Osaniyibi till the latter died.
24. When Osaniyibi died the Defendants with Isaac Bankole and Amusa Bamidele Aina continued to farm the piece of land as customary tenants.

24b. The Plaintiff avers that the Ikotun and Matori Families gave the Defendants the land in dispute as customary tenants.”

The averments reproduced above show that the plaintiff s Ikotun and Matori families gave the Isidana land in dispute to one Akilodi. When Akilodi died, the land was inherited by his son Owolola. When Owolola died, he was succeeded in interest by his children. It was Owolola who according to Plaintiffs pleading gave Bankole, the defendant’s predecessor-in-interest access to the land. The defendant with one Jinadu Osaniyibi farmed the land as customary tenants. It was the land shared out to Suberu Elegbede, one of Owolola’s sons that was given to Jinadu Osaniyibi, a brother to Isaac Bankole. Isaac Bankole and Amusa Bamidele Aina only assisted Jinadu Osaniyibi to farm the land until the latter died. On these averments, the defendant was portrayed as no more than a farm hand or labourer who did not bdong to either the Akilodi or the OwoJola Family. At the highest, the defendant on the pleading would be no more than a sub-customary tenant since the Ikotun and Matori families did not directly grant him any land. The big question is, hew could the plaintiffs Ikotun and Matori families bring an action to evict a sub-customary tenant without joining to the suit the Akilodi or Owolola family to whom the land was directly granted For this reason alone, the plaintiff’s suit was flawed. At page 68 of the record, the plaintiff who testified as 1st P.W. testified thus:

‘My family has constituted this action against Isidana family. My family gave the Isidana Family the land in dispute as their customary tenants to farm on it.

The lsidana family pays my family customary tributes over the land in dispute.”

On the genealogy pleaded by the plaintiff, the defendant or his family was stated to be a member of the lsidana family. So where is the customary tenancy relationship between the defendant and the plaintiff’s family. The defendant in paragraphs 9 and 14 of their Further Amended Statement of Defence pleaded thus:

“9. The land in dispute marked GREEN in the Survey Plan attached hereto was settled upon by the Defendant’s ancestor OSIDANA when he migrated from ILE-IFE over 200 years ago.

xxxx

14. Osidana also brought from Ile-lfe a deity known as ‘AMOOLA’ which is still worshipped at Iyesi.”

The defendant gave evidence that the land was called Osidana after their ancestor who first settled on the land. The plaintiff agreed that the land was called Isidana which appears to be the corrupted version of Osidana. How did a parcel of land given out under customary law come to bear not the names of the landlords or owners but that of the tenant The court below at page 466 of the record made a remark on this thus:

“The 2nd PW in the underlining alone of his testimony stated that his ancestor did not give name to the land in dispute but the land is being called by the name given it by the appellant although the naming or calling of the land in dispute may be called by one party and named differently by the other party. It is unheard or preposterous to accept to name a land by a person alleged to be a customary tenant. Also though respondent alleged that appellant was a customary tenant yet 2nd PW admitted that they built on the land in dispute and farmed on land in dispute, it is into law that a customary tenant cannot name the land in his own name as against the landlord’s name.”

The trial judge at page 322 of the record appreciated that the defendant had been on the land for a long time when he observed:

“There is no doubt that the defendants family has been in long possession of the land in dispute. As asserted by him, this has been for 200 years. Evidence of long possession without more cannot confer title on them as they have not asserted any right of ownership.”

At page 313, the trial judge also found:

“Both parties to this action have denied the existence of certain facts and which this Court does not believe. For instance, some of the plaintiffs witnesses have denied the existence of idols on the land in dispute but from the evidence of the 7th D.W. and exhibit ‘G’, it is without any doubt that there exists some idols on the land in dispute.”

Section 146 of the evidence Act provides-

“When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

In Veronica Graham & Ors. v. Ilona Esumai & Ors. (l984) 11 SC 123 at 149, this court said:

“The presumption in Section 145 (now S. 146) of Evidence Act is a rebuttable presumption and it is rebutted if on the totality of the evidence led on both sides, the trial judge is not satisfied that the case in hand is a proper case for him to exercise his discretion to grant a declaration. It is perfectly legitimate for a trial judge to hold that the evidence taken as a whole includmg any presumptions in favour of the claimant) does not satisfy him that a case for a declaration has been made out.”

Similarly in Oduaran v. Asarah {l972) 5 S.C. 272 at 285-286, this Court per Elias CJN sad:

“…It is clear that, on the issue of title, where a plaintiff claims that a defendant is his customary tenant on a piece of land, while the defendant on the other hand also claims to own the land, the question before the court, whether the defendant’s possession was by the plaintiff s permission. It is for the plaintiff to show that they pet the defendant there.”

It seems to me that at the end of the day, the central question is whether on the totality of the evidence available, the judgment given by the trial court could be sustained. I think not. In coming to this conclusion, I bear in mind that on plaintiff s own showing there are other persons interested in the land in dispute who were not made parties to the case.

At page 78 of the record, the 2nd P.W. Rasaki Owolola testified thus:

“The lkotun and Matori families gave Owolola family land at lyesi village and part of this land is the one in dispute. I know the Farmland of Isidana. The defendant and Arnusa Bamidele are Farming there. The Owolola family gave the defendant and his brother land to farm at Iyesi because they are strangers and this is part of the farm given by Ikotun and Matori families to Owolola to farm upon and it is known as lsidana farmland. I identify the said Isidana Farmland to our Surveyor Seweje. I know the farmland of Alfa Salisu Fatusi which is part of the lkotun and Matori families land. This is also part of the land in dispute.” (italics mine)

The evidence of 2nd P.W. above conveys that it was part of the land given to Akilodi/Owolola family that the Owolola family gave to the defendant as customary tenant. Remarkably Owolola family is not a party to this case. Further, the evidence suggests that Alfa Salisu Fatusi owns a portion of the land being litigated upon in this case and he has not been made a party. If the plaintiff has not joined OwoloJa and Alfa Salisu Fatusi to the suit, how could a declaration of title be made in plaintiffs favour See Sanyaolu v. Coker [1983] 1 S.C.N.L..R. 170 at 181 and Oduola v. Gbadebo Coker [1981) 5 S.C. 197 at 220.

On the whole I am satisfied that the court below was correct in its decision to dismiss plaintiff’s suit. The plaintiffs woefully failed to establish by evidence the title which asserted against the defendant. I would accordingly dismiss this appeal with N10,000.00 costs against the plaintiffs/appellants in favour of the defendants/respondents.

---

SC.40/2003

Chief Edmund I. Akaninwo & Ors V Chief O. N. Nsirim & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, JSC

In the High Court of Justice of Rivers State sitting at Port-Harcourt, the Plaintiffs for themselves and on behalf of the members of Rumueme Community Village Council instituted their action against the Defendants who were required to defend the action for themselves and on behalf of the other members of the Ogbakor Rumueme Organisation and asked for the following declaratory and injunctive reliefs in paragraph 47 of their amended statement of claim as follows –

“(a) A declaration that the Defendants are not members of the Rumueme Community Village Council in the Port Harcourt Local Government Area of the Rivers State but the descendants of Apara resident in Rumueme, Port Harcourt.

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(b) Perpetual injunction restraining the Defendants, their agents, servants and privies from holding themselves out as, or claiming to be, or parading themselves as members of the said Rumueme Community Village Council.”

The case of the Plaintiffs was heard on their amended statement of claim and the Defendants original statement of defence after the Defendants’ application to also amend their statement of defence was refused by the learned trial judge. In the course of the hearing of the case, the Plaintiffs called two witnesses in support of their claim while the Defendants in their defence called three witnesses. However at the conclusion of the evidence in chief of the Plaintiffs’ second witness and the cross-examination of the witness by the learned Counsel to the Defendants, the Defendants filed their application for leave of the trial Court to amend their statement of defence. This application was heard and refused by the learned trial judge before the hearing of the case was concluded. The learned trial judge in his judgment delivered on 3rd July, 1987, granted the two reliefs sought by the Plaintiffs at pages 245 – 246 of the record of this appeal where the learned trial judge said –

“I am convinced from the facts and circumstances I have so far examined, to hold that the Plaintiffs have proved their case on the preponderance of evidence and are therefore entitled to the reliefs they (sic) seek. I am convinced that the said reliefs if granted will have far reaching consequences to make for peace in Rumueme where both parties will remain to enjoy. I therefore enter judgment in favour of the Plaintiffs by granting them the reliefs sought as follows:

(1) I hereby declare that the Defendants are not members of the Rumueme Community Village Council, otherwise known as Rumueme Village Council in the Port Harcourt Local Government Area of Rivers State, but the descendants of Apara resident in Rumueme, Port Harcourt.

(2) I hereby restrain the Defendants, their agents, servants and privies perpetually from holding themselves as members of the said Rumueme Community Village Council.”

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All the Defendants who were aggrieved by the judgment of the trial High Court, appealed to the Court of Appeal against it. In addition, the Defendants also sought and were granted leave by the Court of Appeal to appeal against the interlocutory ruling of the trial High Court refusing their application to amend their statement of defence. Upon hearing both Defendants’ appeals, the Court of Appeal in its judgment delivered on 15th July, 1997, dismissed the appeals and affirmed the decision of the trial Court in both its Ruling and Judgment. Still dissatisfied with the decision of the Court of Appeal against them, the Defendants are now on a further and final appeal to this Court.

Before the appeal came up for hearing, the Defendants who are now the Appellants in this Court have filed their Appellants’ brief of argument and the Appellants’ reply brief which were duly adopted by their learned Counsel. The Plaintiffs who are now Respondents in this Court also duly filed their Respondents’ brief of argument which was deemed adopted by them in their absence and the absence of their learned Counsel on the day the appeal was heard in accordance with Order 6 Rule 8(6) of the Rules of this Court.

In the Appellants’ brief of argument, three issues were identified for the determination of the appeal. The issues are –

Were the learned Justices of the Court of Appeal right when they upheld the ruling of the learned trial judge dismissing the Defendants application for amendment at a stage when the Plaintiffs were yet to close their case? If answered in the negative has the failure to grant the Defendants’ application for amendment occasioned any miscarriage of justice?

Were the learned Justices of the Court of Appeal right when they held that there was nothing inequitable in granting the reliefs sought by the Plaintiffs?

Were the learned Justices of the Court of Appeal right when they held that Exhibits ‘A’ & ‘B’ were legally admissible in instant proceedings and that they constituted admissions against the Defendants?

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In the Respondent’s brief of argument however, after attacking issue number two in the Appellants’ brief that the issue does not arise from the decision of the Court below by way of a preliminary objection, the Respondents proceeded to formulate the following two issues for the determination:-

Have the Defendants/Appellants shown any ground on which this appellate Court should interfere with the discretion of the trial judge as affirmed by the Court below in refusing their application to amend their statement of defence at that stage of the proceedings where the Respondents have called their last witness.

Whether Exhibits ‘A’ and ‘B’ were admissible in evidence; and if not, whether their admission as Exhibits occasioned a miscarriage of justice.

Although the Respondents in their Respondents’ brief have raised preliminary objection to the second issue in the Appellants’ brief of argument, and taking into consideration that that issue relates to the grounds of appeal arising from the judgment of the trial Court on their substantive case, I shall first treat and dispose of issue number one in both the Appellants’ and the Respondents’ briefs of argument arising from the interlocutory ruling of the trial Court refusing the Defendants’ application to amend their statement of defence. I shall then come back to the issues arising from the judgment of the trial Court affirmed by the Court below on the substantive claims of the Respondents as the case may be.

The nature of the dispute between the parties in this appeal as revealed from the record of appeal is quite simple taking into consideration that the parties have lived together as members of Rumueme Community for many years until 1965 when the Appellants formed Ogbako Rumueme Organisation separate from the Rumueme Village Council to which both parties hitherto-for belong. This development gave rise to the dispute as to whether the Appellants are indigenes of Rumueme Community eligible to participate in the sharing of the farmlands in the area and also benefit from the compensation money paid to the Community by the Government. While the Respondents who

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were the Plaintiffs at the trial Court are claiming to be the only indigenes of Rumueme to the exclusion of the Appellants who were said to be strangers, the Appellants are in turn asserting that they are also indigenes of the area.

Now coming back to the first issue for determination in this appeal, it is whether or not the Court below was right in upholding and affirming the ruling of the trial Court dismissing the Appellants’ application as Defendants to amend their statement of defence. It was pointed out by the learned Counsel to the Appellants that the Defendants/Appellants’ application to amend their statement of defence was refused by the learned trial judge in the course of the proceedings while the second witness to the Plaintiffs/Respondents was being cross-examined; that although the Court below seemed to have agreed with the reasons given by the trial Court for refusing the amendment including causing undue delay of the trial with the resultant injustice to the Respondents, that Court having plainly disagreed with the trial Court that it was too late at the stage of the proceedings to have granted the amendment, the Appellants’ appeal ought to have been allowed by the Court below. Learned Counsel referred and relied on the cases of Adekeye & Anor. v. Ogunbade (1987) 6 S.C. 268 at 280 – 281 and First Bank of Nigeria Plc v. May Medical Clinics and Diagnostic Centre Ltd & Anor. (2001) 9 N.W.L.R. (Pt. 717) 28 at 44, on the principles guiding Courts in deciding whether or not to grant application for amendment of pleadings, and argued that the Court below was wrong in holding that the trial Court was right in refusing the Defendants/Appellants’ application. With regard to one of the reasons given for refusing the application which was affirmed by the Court of Appeal that the affidavit in support of the application was defective having been deposed under the Oaths Law, learned counsel to the Defendants/Appellants stressed that as the affidavit was only defective in form and not in substance, the trial Court was permitted under Section 84 of the Evidence Act and the case of Attorney General of the Federation & 2 Ors. v. Abdullahi Yunusa Bayawo (2000) 7 N.W.L.R. (Pt. 665) 351 at 359, to use the affidavit in arriving at its decision. Learned Counsel finally concluded that the judgment of the Court below affirming the dismissal of the application to amend the Statement of Defence, had occasioned a miscarriage of justice justifying allowing this appeal to set aside that decision and grant the Appellants’ application to amend their statement of defence.

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For the Plaintiffs/Respondents, it was contended that the Defendants/Appellants’ application having been brought at the stage in the proceedings when the learned Counsel to the Plaintiffs/Respondents had told the trial Court that he was not calling any other witness after the testimony of PW2 who was then being cross-examined by learned Counsel to the Defendants/Appellants, the trial Court was right in refusing the application for amendment of the statement of defence on the grounds among others that it would have delayed the hearing of the case and cause hardship to the Plaintiffs/Respondents and for that reason, the Court below was right in affirming that decision. Learned Counsel emphasized that the amendments sought by the Defendants/Appellants which abandoned a number of paragraphs in which some of the facts pleaded in the statement of claim were admitted, with entirely new facts being brought into the case of the Defendants/Appellants, would work hardship on the Plaintiffs/Respondents resulting in filing further amendments and recalling of witnesses. The ground of refusal of such application being matters within the discretion of the trial Court which exercised that discretion not only judicially but also judiciously, the decision of the Court below not to interfere with the exercise of the discretion of the trial Court in refusing the application was’ quite in order, argued the learned Counsel, who called in aid many cases in support of his stand. These cases include University of Lagos & Anor. v. Olaniyan & Ors. (1985) 1 N.W.L.R. (Pt. 1) 156 at 175; University of Lagos v. Aigoro (1985) 1 N.W.L.R. (Pt. 1) 143 at 148 – 149; Enekebe v. Enekebe & Anor. (1964) All N.L.R. 95 at 100; Saffieddine v. C.O.P. (1965) 1 All N.L.R. 545; Odusote v. Odusote (1971) 1 All N.L.R. 219 and Awani v. Erejuwa 11 (1976) 11 S.C. 307.

The circumstances under which a Court may grant or refuse leave to amend pleadings are clearly set out in Order XXXIV of the Rules of the High Court of Justice of Rivers State under which the Defendants/Appellants’ application was filed. It reads:-

“The Court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice,

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embarrass, or delay the trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just.”

In the exercise of the no doubt discretionary powers conferred, the Court must have more regard to substance. In other words as a general rule, an amendment of any proceeding including pleadings under Order XXXIV quoted earlier, will be granted if it is for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties. The law is indeed well settled that an amendment of pleadings should be allowed at any stage of the proceedings unless it will entail injustice to the other side responding to the application. The application should also be granted unless the applicant is acting malafide or by his blunder, the applicant has done some injury to the Respondent which cannot be compensated in terms of costs or otherwise. See Tildesley v. Harper (1878) 10 Ch. D. 393 at 396; Cropper v. Smith (1884) 26 Ch. D. 700 at 710; Shoe Machinery Co. v. Cutlan (1896) 1 Ch. 108 at 112; Amadi v. Thomas Aplin & Co. Ltd. (1970) 1 All N.L.R. 409 and the case of Oguntimehin v. Gubere & Anor. (1964) 1 All N.L.R. 176 at 180 where the Court upheld an amendment of pleadings after the close of evidence of the parties and in so doing the Court observed –

“In the present case either party called his surveyor at the start of the trial, and both parties agreed on what was in issue between them by reference to their plans. In effect they proceeded with the contest as if the Plaintiffs’ pleading had been what it became after the amendment; all that the amendment did was to write down what the Defendant had known all along to be the Plaintiffs’ case. The amendment did not take him by surprise, and he has no just cause for complaint.”

Taking into consideration the principles considered and applied by this Court in Oguntimehin’s case quoted above, it is not difficult to see that in the instant case, the trial judge was in error when he gave as one of his reasons for refusing the application that it was brought too late which even the

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Court below could not agree. In Oguntimehin’s case (supra), the application for amendment of pleadings was brought after the close of evidence on both sides, and the application was granted by the lower Court and upheld on appeal by this Court. Definitely, on the question of the appropriate time for bringing application to amend pleadings in the course of trial, the position in the present case where the Defendants/Appellants brought their application to amend their statement of defence after the conclusion of their cross-examination of second witness for the Plaintiffs, is certainly on a firm ground and the Court below having so found, ought to have allowed the amendment.

Important questions of what an amendment is and when it may be refused were considered and answered by this Court in Chief Adedapo Adekeye & Anor. v. Chief O. B. Akin Olugbae (1987) 6 S.C. 268 at 280 – 281 where Eso J.S.C. said –

“The aim of an amendment is usually to prevent the manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of Counsel. It will certainly be wrong to visit the inadvertence or mistake of Counsel on the litigant. The Courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party. The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.”

Although the guiding principles in granting or refusing amendments to pleadings outlined in Adekeye’s case (supra) are based on the provisions of Order 25 Rule 1 of the High Court of Lagos State Civil Procedure Rules which are not in pari materia with the provisions of Order XXXIV of the Rivers State High Court Civil Procedure Rules now under consideration, the guiding principles applicable to the Rules and the Order in practice, are virtually the same.

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Some of the reasons given by the learned trial judge and endorsed by the Court below for refusing the Defendants/Appellants’ application to amend their statement of defence include that the amendments which affected 10 out of the 23 paragraphs of the statement of defence, amounted to a complete substitution of a new statement of defence. Not only that, the learned trial judge also found that the amendments would have the effect of allowing the Defendants/Appellants to withdraw or abandon paragraphs in which part of the claim of the Plaintiffs/Respondents have been admitted, thereby forcing the Plaintiffs/Respondents to have to file a reply to the new statement of defence with the necessity of having to recall the two witnesses who had already testified. The question is, are these reasons given for refusing the application for amendment justified, most especially taking into consideration of the clear finding of the learned trial judge at page 160 of the record of this appeal? This is what the learned trial judge said:-

“The statement of defence has 23 paragraphs out of which ten (10) are affected by the proposed amendment. It is interesting to note that the ten paragraphs being amended constitutes the main defence of the defendants case.”

Indeed if the amendments being sought by the Defendants/Appellants in their application constitutes their main defence to the case against them by the Plaintiffs/Respondents, that finding alone was enough to have put the trial Court on guard on the need to adhere to the guiding principles in granting or refusing amendments of pleadings. With this findings, both the trial Court and the Court below ought in my opinion, to have found that the amendment being sought was necessary for the purpose of determining the real questions in controversy between the parties and therefore should have been granted in order to prevent manifest injustice to the Defendants/Appellants by allowing them to plead their main defence to the case against them. Since the claims of the Plaintiffs/Respondents in their action was for a declaration that the Defendants/Appellants are not members of the Rumueme Community Village Council and a perpetual injunction restraining the Defendants/Appellants from asserting that they also belong to the same village council, it is quite clear that the amendments being sought in the

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application for amendment revolves around these claims which are the real questions in controversy between the parties.

It is therefore difficult to see how amendment of the statement of defence which even the learned trial judge found to have constituted the main defence of the Defendants/Appellants in the case against them, could possibly prejudice, injure, surprise, over-reach or embarrass or work any injustice to the Plaintiffs/Respondents.

Although in the Respondents’ brief of argument their learned Counsel relied on the statement made by the learned trial judge as part of his reasons in his ruling for refusing the application to amend the statement of defence that the Plaintiffs counsel on 24/9/86 had told the trial Court that PW.2 was his last witness and that the Plaintiffs were not calling any more witnesses, is not supported by the record of the trial Court. This is because from the record at pages 114 – 120 containing the proceedings of the trial Court of 24/9/2986 when both witnesses of the Plaintiffs PW.l and PW 2 testified at the trial Court, the record shows at page 120 that at the end of the evidence in chief of PW.2, the case was adjourned to 8/10/1986 for cross-examination and continuation. There is no statement by the learned Counsel to the Plaintiffs on record that PW.2 was his last witness and that he was not calling any other witness for the Plaintiffs as wrongly attributed to him by the learned trial judge in his Ruling now on further appeal to this Court. This of course means that the discretion exercised by the learned trial judge in dismissing the application to amend the statement of defence in this case, is not supported by the facts relied upon by him in showing that the Plaintiffs would be prejudiced, injured, surprised or over-reached. In this respect, the Court below was wrong in failing to examine these facts in coming to the conclusion that the discretion of the trial Court was exercised judicially and judiciously. In other words a discretion exercised by Court in vacuo, unsupported by the relevant facts cannot pass the “judicial and judicious” test. See Buhari v. Obasanjo (2003) 11 SCM, 89; (2003) 17 N.W.L.R. (Pt. 850) 587 at 660.

Another reason given by the trial Court and endorsed by the Court below for dismissing the application to amend the statement of defence was that granting the amendment would lead to

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allowing the Defendants to withdraw or abandon the admissions to the case of the Plaintiffs they had earlier made thereby prejudicing the Plaintiffs. However, having regard to the fact that the main relief claimed in the Plaintiffs’ action at the trial Court is a declaratory relief which by law is not granted on admission by the Defendants but on proof by evidence to the satisfaction of the trial Court before exercising its discretion of whether or not to grant the relief, the reason given by the learned trial judge that to allow the withdrawal of the admission would have prejudiced the Plaintiffs, is not supported by law. This is because with or without the admission in the statement of defence, the duty on the Plaintiffs to prove their entitlement to the declaratory relief on their own pleading and evidence, would not have changed. This is because the law is well settled that the Court does not make declarations of right either on mere admissions or in default of defence without hearing appropriate evidence and being satisfied with such evidence. See Metzger v. Department of Health & Social Security (1977) 3 All E.R. 444 at 451 where Megarry, V.C. said:-

“The Court does not make declaration just because the parties to litigation have chosen to admit something. The Court declares what it has found to be the law after proper argument not merely after admission by the parties. There are no declarations without arguments, that is quite plain.”

See also Wallensteiner v. Moir (1974) 3 All E.R. 217; Vincent Bello v. Magnus Eweka (1981) 1 S.C 101; Motunwase v. Sorungbe (1988) 4 N.W.L.R. (Pt. 92) 90; Okedare v. Adebara (1994) 6 N.W.L.R. (Pt. 349) 157 at 185; Qua Vadis Hotels and Restaurants Limited v. Commissioner of Lands Midwestern State & Others (1973) 6 SC 71 at 96; Agbaje v. Agboluaje (1970) 1 All N.L.R 21 at 26 and Fabunmi v. Agbe (1985) 1 N.W.L.R. (Pt. 2) 299 at 318 where Obaseki JSC said –

“A claim for declaration of title is not established by admissions as the Plaintiff must satisfy the Court by credible evidence that he is entitled to the declaration. The Court does not grant declaration on admission of parties. It has to be satisfied that the Plaintiff owns the title claimed.”

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In any case, the Court below in its judgment now on appeal agreed with the trial Court that in refusing the application for the amendment of statement of defence, the trial Court had exercised its discretion judicially and judiciously hardly giving any room for interference by the lower Court. However, taking into consideration that the parties are merely disputing over the membership of a Community Village Council and the Plaintiffs were allowed by the trial Court to amend their statement of claim in paragraphs 13 and 34 by substitution of new paragraphs on 24/9/86, while barely less than two months later, the Defendants application filed on 11/11/86 to amend 10 out of 23 paragraphs of their statement of defence was refused by the same trial Court, clearly this same discretion of the learned trial judge can hardly answer the description that it was exercised judicially and judiciously as found by the Court below. In otherwords, in the instant case where it had not been shown that the Plaintiffs would suffer any prejudice by the Defendants’ application to amend their statement of defence after similar application was granted to the Plaintiffs, the fact that the Defendants’ application was made after the cross-examination of the second witness to the Plaintiff was not enough reason to refuse the application because such application by a Defendant may be granted even after the close of the case of the Plaintiffs. See Okolo v. Nwamu (1973) 2 SC. 59 at 68. This is why I cannot agree with the learned Counsel to the Respondents that to allow the amendments sought in the present case would be unjust to the Respondents. Indeed to me, the proposed amendments have raised points which appear to be vital to the case between the parties, and unless they are adjudicated and pronounced upon, the real issues between the parties will be left undecided. I am therefore satisfied that the Plaintiffs/Respondents were not misled or embarrassed by the proposed amendments. In reality, the learned trial judge clearly proceeded on wrong principles in refusing the Defendants/Appellants’ application and the Court below was equally wrong in affirming the decision of the trial Court. I am not in any doubt in this respect that to allow the Ruling of the trial Court as affirmed by the Court below to stand, would result in a real injustice to the Defendants/Appellants.

In the result, this appeal succeeds and the same is hereby allowed on the first issue for determination alone. The judgment of the Court below delivered on 15th July, 1997, dismissing the

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Defendants/Appellants’ appeal and affirming the Ruling and Judgment of the trial Court, is hereby set aside. In place of that judgment set aside, judgment is hereby entered for the Defendants/Appellants granting their application to amend their statement of defence. Consequently, the case between the parties is hereby remitted to the trial High Court of Justice of Rivers State or hearing by another Judge on the pleadings of the parties as amended.

With this conclusion, there is now no need to consider the appeal on the remaining two issues for determination.

I am not making any order on costs.

---

SC. 88/2001

Edward Okwejiminor Vs G. Gbakeji & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, J.S.C.

The suit was commenced at the Ughelli Judicial Division of the High Court of then Bendel State but now of Delta State on or about the 18/3/91. The plaintiff therein is the appellant herein while the defendants are the Respondents herein. The appellant claimed against the respondents jointly and severally as follows:

(a) The sum of N551.00 being medical expenses borne by the plaintiff as a result of the negligent acts of the defendants in bottling and selling a contaminated and poisonous fanta orange drink to the Plaintiff.

(b) The sum of N27.00 being costs of the crate of mineral purchased from the 1st defendant.

(c) The sum of N299,000.00 being loss of business expectation profits or income for the period of the Plaintiff’s treatment and time for recuperation.

(d) The sum of N700,422.00 being general damages for loss of life expectancy.

(e) The sum of N1,000,000.00 being damages for shock pain, agony and discomfort suffered by the Plaintiff as a result of the contaminated fanta drink bottled and sold by the defendant.

Total sum claimed N2,000,000.00.

Pleadings were settled and exchanged. The actual trial itself involved the testimony of five witnesses for the plaintiff and two for the defence. The parties through their counsel addressed the court. By its judgment dated the 23/3/1994 the learned trial Judge, W.A.O. Onoriobe J. allowed the claim of the appellant against the 2nd respondent with costs which he assessed at N2,500.00. He however dismissed the claim against the 1st respondent with N1000.00 costs. Dissatisfied with the said judgment the respondents appealed to the court below. The appellant was also dissatisfied with the award of damages and filed a cross-appeal in respect thereof to the court below. By its judgment on the 23/4/98 the appeal was allowed and cross-appeal dismissed. Dissatisfied, the Appellant has come on appeal to this Court. The original notice of appeal dated the 22nd of June 1998 contained 11 (eleven) grounds of appeal. With the leave of this Court the Appellant was granted the leave of this Court to file and argue four additional grounds of appeal. And the parties through their counsel filed and exchanged their briefs of argument. The Appellant’s brief was prepared by O.J. Oghenejakpor. He also prepared the appellant’s reply brief. They were filed on the 2/8/04 and 11/12/06 respectively. Mr Oluyele Delano prepared the 1st Respondent’s Brief and it was filed on the 7/3/06. The 2nd Rrespondent’s amended brief was prepared by Oluseye Opasanya and same was filed on the 9/3/06.

In his brief, the appellant submitted six issues for determination which are formulated as follows:

1. Whether in the circumstances of this case the Justices of the Court of Appeal were justified in reversing the firm findings of fact of the trial court that contaminated Fanta Orange drink containing a cockroach and a germ called Shigema tendered as exhibit H in this proceeding caused the Plaintiff ailment of stomach ache resulting in vomiting and stooling which led to his hospitalisation
2. Whether the Justices of the Court of Appeal were justified in reversing the findings of the trial court that the Fanta Orange exhibit H which caused the Plaintiff ailment was manufactured and bottled by the 2nd Defendant who sold same to the Plaintiff through the defendant their retailer
3. Whether the Justices of the Court of Appeal were Justified in reversing the findings of the trial court that the 2nd defendant was in breach of duty of care owed to the plaintiff and liable for damages for negligence
4. Whether the learned Justices of the Court of Appeal were right in holding that the 1″ defendant who is the retailer that sold the contaminated fanta orange exhibit “H” which caused plaintiff’s ailment is a mere conduct pipe and hence not liable in negligence for the sale of the defective and contaminated fanta orange Exhibit “H”.
5. Whether the learned Justices of the Court of Appeal were right in holding that there was no modicum of evidence on record to support the claim for damages for pain shock, agony and discomfort and reversing the award of N950,000.00 made by the trial court.

(6) Whether on the totality of the case as borne out by the records of appeal, the learned Justices of the Court of Appeal were justified in reversing the judgment of the trial court and in coming to their judgment in dismissing the plaintiff/appellant’s case.

For the first respondent the following four issues were submitted for determination.

1. Whether the Court of Appeal was right by holding that the plaintiff failed to prove that his illness was caused by drinking contaminated fanta orange drink produced by the defendant
2. Whether the contamination was occasioned by the carelessness of the 2nd defendant in breach of its duty of care to the Plaintiff
3. Whether the plaintiff was in breach of any duty of care to the plaintiff
4. Whether the Court of Appeal was right to set aside the award of N950,000.00 as damages to the Plaintiff against the 1st and 2nd defendants

And on behalf of the 2nd respondent, the following four Issues for determination were also proposed:

1. Whether the evidence adduced by the plaintiff proves that the alleged contaminated fanta drink was manufactured by the 2nd defendant
2. If the answer to issue 1 is in the affirmative, whether the Court of Appeal was right in holding that there was no evidence showing that the drink in question was the cause of the Plaintiff’s ailment.
3. Whether the Justices of the Court of Appeal were justified in deciding that the evidence before the court did not support the claim in negligence
4. Whether the Court of Appeal was right that there is no modicum of evidence on record to support the award by the Court of N950,000.00 damages for pain shock agony and discomfort

First of all, let me react to what appears to be a novel submission of learned counsel for the 1st Respondent. The submission is that “in order to identify the correct issues for determination one has to consider not only the grounds of appeal and the decisions of the lower courts, but also the basic principles laid down in Donoghue’s case. The settled principle of law is that issues for determination in an appeal must relate to the grounds of appeal filed and the judgment appealed against. Such issues should not be framed in the abstract but must relate to the grounds of appeal which represent the questions in controversy in the particular appeal. See Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria (1987) 1 N.W.L.R. (Part 49) 284 at 304; Okonko v. Okolo (1988) 2 N.W.L.R. (Part 179) 632; Olowosago v. Adebanjo (1988) 4 N.W.L.R. (Part 88) 275; Okpala v. Ibeme(1989) 2 NWLR (Part 102) 208 at 220; Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Part 102) 122 at 161. Since the appellant insists by this appeal that the Respondents are liable in negligence for damages, the principles of Donoghue v. Stevenson (1932) AC 562 may be called into play on the question of causation. I do not think that the principles in Donoghue v. Stevenson (supra) falls for consideration on the formulation of issues for determination.

With respect to the issues for determination proposed by counsel for the parties, the appellant’s 6th issue seems to encompass all other issues both of the appellant and the respondents. It is whether on the totality of the case as borne out by the evidence on record the Court of Appeal was justified in reversing the judgment of the trial court and in coming to their judgment dismissing the appellant’s claim. I would therefore adopt the said issue as the main issue for determination. In the course of this judgment, however I shall restate the substance of the arguments of the parties as they are set out in their respective briefs.

Under the appellant’s issue one references were made to the trial court’s findings on Exhibit “H” and the reversal of same by the Court of Appeal and submitted that there was no legal basis for the interference since the findings of the trial court were supported by the evidence and therefore not perverse. Reliance was placed on Sha v. Kwan (2000) 5 7 SC 178 at 194; Akinloye v. Eyiola (1968) NMLR 92 at 95; Lion Building Ltd v. Shadipe (1976) 12 SC 135 at 152; Mogaji v. Odofin (1978) 4 SC 91 at 93; Woluchem v Gudi (1981) 5 SC 291 at 326-330; Ebba v. Ogodo (1984) 4 SC 84;Balogun v. Labiran (1988) 3 NWLR (Part 80) 66; Shell bp Develop. Co. Nig Ltd v. Hiss Highness Pere Cole & Ors (1978) 3 SC 183 at 194. Learned counsel for the Appellant referred to the finding of the trial court at page 82 of the record and submitted that the finding is supported by the pleadings and evidence. He also made reference to the reliance of the Court of Appeal on the issue of Bread and Tea and contended that the question of the Appellant’s breakfast of bread and tea was not made an issue in the pleading, submitting that the Court must restrict itself to the pleadings. The Appellant relied on Niger Construction v. Okungbeni (1987) 4 NWLR (Part 67) 787 at 792; Lewis & Peat Ltd v. Akhimien(1976) 7 SC 157 at 160-162; Nig Engineering Works Ltd v. Denap Ltd & Ors. (1997) 10 NWLR (Part 525) 481 at 591; Igwe v. AICS (1994 8 NWLR Part 363, 459 at 48l.

Learned counsel for the Appellant pointed out that the issue of bread and tea came up only in cross-examination and submitted that evidence in cross-examination on matters not pleaded goes to no issue. He relied on Nsirim v. Onuma Construction Co. Ltd (2001) FWLR (Part 44) 405 at 416 and the reaction of the learned trial judge at pages 81-82 of the record when the issue was raised. Counsel further referred to the question of how well equipped the laboratory at 24 Post Office Road Ughelli was and submitted that the question was not an issue raised in the pleadings and therefore goes to no issue. It was the submission of the appellant that the court below reversed the judgment of the trial court on issue not canvassed by the parties.

Under its issue two learned counsel for the appellant referred to the pleadings of the parties including admissions, the evidence of the parties particularly that of the 1st respondent, exhibits G, H, J and K and argued that the trial courts finding about the 2nd respondent being the manufacturer and bottler of the contaminated fanta orange drink exhibit “H” is unassailable. Arguing the 3rd issue learned counsel for the appellant referred again to the pleadings and the evidence and submitted that the 2nd Respondent owed the Appellant a duty of care which duty it breached and therefore liable in negligence to the appellant and the trial court correctly so found. He argued therefore that the Court of Appeal was wrong in disturbing the finding.

Under his issue four the appellant raised the question of the 1,I respondent’s liability. Both courts below found her not liable.

According to the trial court she was a mere “carrier”. And the Court of Appeal described her as a conduit pipe. It was argued that the 1st Respondent having admitted the sale of exhibit “R” to the appellant for N27.00 and having regard to the established fact that she was one of the sources through which the 2nd Respondent marketed her products there was an implied warranty on her part that the said Exhibit “R” was safe for human consumption. exhibit “J” which had not been opened also contained a fly and same was also sold by the 1st respondent, it was pointed out. It was submitted that as retailer of a defective product she also owed the final consumer including the appellant the duty of care and therefore also liable. Reliance was placed on Nigerian Bottling Co. Ltd. v. Ngonadi (1985) 5 SC 317; Ifeanyi Chukwu Ltd. v. Saleh Boneh (Nig.) Ltd. (2000) FWLR (Part 27 2046 at 2070-2071, Makwe v. Nwukor (2001) FWLR (Part 63) 1 at 16. It was appellant’s submission on this issue that both respondents are jointly liable.

With respect to the 6th issue it was submitted that there was no appeal against the quantum of N950,000.00 damages. Learned counsel referred to the portions of the evidence of the appellant himself the PW2 and PW3 and argued that in view of the stomach pain, vomiting and stooling which resulted in his hospitalisation, the appellant is entitled to to the damages awarded. In conclusion it was urged that the appeal be allowed and the judgment of the Court below set aside.Next is the argument of learned counsel for the 1st Respondent in her brief He concedes some submissions of the appellant which I shall highlight later. Apart from that his submissions centred around the principles of causation as espoused in Donoghue v. Stevenson (1932) AC 562. He pointed out what he regarded as lapses in the evidence of the appellant and his witnesses. He pointed to the evidence of the PW2 under cross-examination to the effect that the stooling and vomiting could have been caused by cholera or typhoid fever or indeed over eating and submitted that the appellant did not exclude by evidence the possibility of his illness having been caused otherwise than by the fanta orange drink. It was submitted therefore that the finding of the Court of Appeal cannot be faulted. It was further argued that the appellant had to prove that the cockroach was present in the bottle at the time the drink left the 2nd respondent’s factory. Counsel referred to Daniel’s and Daniel’s v. White (R) & Sons Ltd.(1938) KBD 258 and Clerk and Lindsell on Tort 16th Edition at page 691 and submitted that where a defendant is able to show that he has taken all reasonable care in his production process he would have successfully rebutted negligence. He argued that although the presence of the cockroach in the fanta orange drink gives rise to the inference of the 2nd respondent’s negligence, it was sufficiently rebutted by the evidence of the DW2 about its reasonable care.

With respect to the 1st Respondent, it was argued that she incurred no liability for negligence as she was only an innocent retailer. The 1st Respondent was just in as good a position as the appellant to detect defect in the fanta orange just by visual examination of the bottle. On the issue of the N950,000.00 damages award learned counsel for the 1st respondent supported the Court of Appeal about there being no modicum of evidence in support of the claim that the appellant suffered any shock pain agony and discomfort as a result of the consumption of the contaminated fanta orange drink. It was his contention that the most persuasive evidence on the point is that of the PW2. He described the ipsit dixit evidence of the appellant and his wife as self serving and of little probative value. And the PW2 gave no evidence of shock pain or agony as claimed by the appellant. In conclusion, he urged that the appeal be dismissed.

On behalf of the 2nd respondent the following represent the substance of the submissions of learned counsel. It was the submission that where the medical evidence fail to conclusively link the contaminated fanta orange Exhibit “H” to the ailment complained of, then 12 the manufacturing company cannot be liable in negligence. He referred to portion of the evidence of the PW2 and PW4 under cross-examination and submitted that there was a total failure to link the 2nd respondent’s fanta orange to the ailment suffered by the appellant He argued that the possibility of ailment having been caused by factors other than exhibit “H” was not excluded. Reliance was placed on Nathaniel Ebenalu v. Guinness Nig. Ltd (1979) 7-9 CCHJ Vol. I. He argued therefore that the Court was right in reversing the judgment of the trial court. The appellant, he argued, failed to prove that the 2nd respondent breach its duty of care to the appellant. With respect to the 1st respondent learned counsel argued that there was no evidence on record against the 1st respondent, she being only an agent to a disclosed principal and who performed within the scope of her agency. For this submission he relied on M.S.L. (Nig) Ltd v N.M.A. (2000) 9 NWLR (Part 672) 391; Niger Progress Ltd. v. N.E.L. Corp.(1989) 3 NWLR (Part 107) 68; Orji v.Anyaso (2000) 2 NWLR (Part 643) 1; Ezeluwa v. Ekong (1999) 11 N.W.L.R. (Part 635) 55.

By way of conclusion learned counsel submitted that in order to succeed the plaintiff/appellant must prove:

1. Duty of Care
2. Breach of Duty of Care and
3. Damage resulting from the breach of duty of care.

He relied on Donoghue v. Stevenson (supra) Merchantile Bank v. Abusomwan (1986) 2 NWLR (Part 22).

In the appellant’s reply brief of argument, learned counsel for the appellant referred to the concessions at page 5 of the 1st respondent’s Brief and submitted that in the light of those concessions, the lower courts reversal of the decision of the trial court cannot be sustained. He reproduced the entire evidence of the PW2 and PW4 and contended that the respondent’s statement of the evidence of these witnesses contained distortions. It was his further submission that the evidence of the PW2 and PW4 under cross-examination on possible other causes of stooling and vomiting was evidence in respect of which there was no pleading and which was therefore inadmissible and cannot therefore be relied upon. Learned counsel referred to the Statement of Lord Macmillan in DONOGHUE v STEVENSON at page 622-623 and described same as a sweeping obiter and urged this court not to be bound by it and that there should be a presumption of negligence and that there should be justification of the maxim res ipsa loquitar.

Let me now deliberate on the case by examining the pleadings, the evidence of the parties, the judgment of the trial court and the judgment of the Court of Appeal to see if the reversal of the trial court’s judgment by the Court of Appeal is justifiable. First is the issue of causation. Was there on the balance of probability, such evidence that linked the 2nd Respondent to the ailment and eventual hospitalisation of the plaintiff/appellant The Court of Appeal carried out some re-evaluation of the evidence for the appellant, particularly the evidence of the appellant himself, the PW2, PW3 and PW4 under cross-examination and at pages 239-240 had this to say:

“The above answers to cross-examination of the PW2, PW3, PW4 and the plaintiff/respondent /cross-appellant have greatly punctured the case for the plaintiff/respondent that the fanta orange drink complained of caused injuries or any injury to the plaintiff/respondent/cross-appellant. These answers do not rule out the possibility that other agents not from the alleged fanta caused the infection the plaintiff/respondent suffered from. There was no evidence from the PW2 and PW4 at the trial that the plaintiff/respondent by taking the alleged contaminated of

fanta orange drink caused the injury pleaded or complained or caused any injury or illness revealed by both the medical practitioner or the laboratory tests. It seems to me that there was a total failure to link the 2nd defendant/appellant’s company with the alleged fanta orange drink in question nor the inference of duty of care. See Ogbimi v. Guinness (Nig.) Ltd. (1981) 1 FNL 67 at 69-70.”

In the first place the evidence elicited under cross-examination on which the Court of Appeal based its findings quoted above was not founded on issues raised in the pleadings. I am therefore persuaded by the submission of learned counsel for the Appellant that they go to no issues for it is settled that evidence obtained in cross-examination but on facts not pleaded is inadmissible. See Dina v. New Nigerian Newspapers Ltd. (1986) 2 NWLR (Part 22) 353, Aguocha v. Aguocha(1986) 4 NWLR (Part 37) 366. On this issue of whether the bread and tea taken by the Appellant in the morning of 13/2/91 could be a possible cause of the appellant’s ailment and eventual hospitalisation the learned trial judge at page 81 of the record reacted as follows:

“With the greatest respect to the learned counsel to the 2nd defendant this submission is unfounded and without merit if considered with the established facts of this case. Firstly, the 2nd Defendant never pleaded the fact that the plaintiff injury was caused by bread and tea taken at breakfast. No bread was tendered before me, nor is there any report showing that the plaintiff suffered injury from any bread tendered before me. Counsel submission was based on unpleaded and speculative evidence and hence goes to no issue …. ”

I agree entirely with the above opinion of the learned trial judge. It embodies the true state of the law on pleadings and evidence.

Still on this issue of causation the learned trial judge embarked upon a reasonably extensive evaluation of the evidence adduced before the Court in the light of the facts pleaded. Specifically, at pages 84-85 he examined paragraphs 12 and 13 of the 2nd respondent’s statement of defence and paragraphs 3 and 7 of the 1st respondent’s statement of defence the testimony of the plaintiff as to the source of exhibits “G” “H” and “K”, the evidence of the 1st respondent and made crucial findings. And after remarking that the 2nd respondent failed to tender any evidence in proof of paragraphs 12 and 13 he made the following findings:

“On the whole I accept the 1st defendant evidence given in support of her pleadings that it was the crate supplied to her by the 2nd Defendant that she sold to the plaintiff on the 13/2/91. I also accept that the 2nd Defendant made the supply of exhibit “G” to the 1st defendant on the 9/2/91 as reflected in exhibit “K”, the Route Card. The plaintiff’s case is that the contaminated fanta drink exhibit “H” is taken from the crate exhibit “G”. There is no contrary evidence to this averment. The crate was tendered before me as exhibit “G”. I saw and examined the crate. The contaminated fanta taken half-way by the plaintiff was also tendered before me as exhibit “H”. I saw the cockroach and other sediments in it. I also saw another unopened fanta orange containing a fly in the same crate (exhibit “G’ ) tendered as exhibit “J” in this proceeding”

Continuing, the learned trial Judge stated as follows:

“I believe the evidence of the plaintiff that the fanta orange exhibit “H” was taken from the crate of minerals exhibit “G” bought from the 1st defendant who is the retailer of the mineral produced and bottled by the 2nd defendant. I found as a fact that the 2nd defendant bottler of the contaminated fanta orange exhibit “H” which the plaintiff bought and consumed on the 13/2/92 and which caused plaintiff stomach pain, vomiting and stooling and led to the plaintiff admission in hospital, I also held that the 2nd defendant is the manufacturer of exhibit “G” including exhibit “H” and “J” … ”

(See pages 85-86 of the record)

The above findings and beliefs are all supported by evidence on record including evidence from the 1st respondent. There was in the circumstances, no basis for any interference with the findings as they were amply supported by the evidence on record.

Still on this issue of causation, while both learned counsel for the respondents placed reliance on the principle in Donoghue v. Stevenson (supra), learned counsel for the appellant advocated a shift from the burden of proof on the injured party as stated in the obiter by Lord Macmillan. Stating the duty of care owed to the ultimate consumer of a product by the manufacturer Lord Atkin at page 599 of the report said:

“By the Scots and English Law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property owes a duty to the consumer to take reasonable care. ”

On his part, Lord Thankerton at page 603 of the report stated the legal relationship between the manufacturer of some type of products and the ultimate consumer in the following terms:-

“That the respondent (manufacturer), in placing his manufactured article of drink upon the market has intentionally so excluded interference with, or examination of the article by any intermediate handler of the goods between himself and the consumer, with the result that the consumer is entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to the consumer. If that contention be sound, the consumer, on her showing that the article has reached her intact and that she has been injured by the harmful nature of the article, owing to the failure of the manufacturer to take reasonable care on its preparation prior to its enclosure in the stated vessel, will be entitled to reparation from the manufacturer. ”

Lord Macmillan spoke in the same vein at page 622 of the report

In this case it is not contested that the fanta orange drink exhibit “R” was manufactured and bottled by the 2nd defendant. It was sealed in such a manner as to exclude interference with or examination by an intermediate handler like the 1st respondent. And the appellant received it in the form in which it was bottled and sealed by the 2nd respondent. In such a situation there is a complied warranty by the 2nd respondent to the ultimate consumer that the contents of Exhibit “R” are safe for human consumption. In such a circumstance, the manufacturer, which in this case is the 2nd respondent owes a duty of care to the appellant. And once it is established that the appellant was injured by the contents of exhibit “R” that duty is breached entitling the appellant to reparation from the 2nd respondent.

On that issue the learned trial Judge at page 87 of the said remarked:

“The plaintiff is the final consumer of the fanta orange drink exhibit “H” manufactured and bottled by the 2nd defendant. Plaintiff is a person closely and directly affected by the act of the 2″d defendant and he owes the consumers including the plaintiff the duty of care or that the drinks manufactured by them should not do damaged to the consumers. ”

I have no cause to fault this reasoning. The consequence therefore is that there was equally no basis for the conclusion of the Court of Appeal at page 241 of the record to the effect that causation was not established.

Next is the question of the damages awarded. At page 244 of the record the Court of Appeal found in respect of the damages awarded by the learned trial judge. The court said:-

“I must say that there is no modicum of evidence to support the claim that the plaintiff/respondent/cross appellant suffered any shock pain agony and discomfort as a result of the consumption of the contaminated fanta orange drink manufactured and bottled by the 2nd defendant/appellant. Thus the above findings of the learned trial judge are not borne out of the evidence adduced before the court by the respondent/cross- appellant. ”

It is clear from the judgment of the Court of Appeal that it was prodded into the above erroneous conclusion because of its heavy reliance on the evidence extracted under cross-examination but which was not in support of any of the issues raised in the pleading. On the issue of the damages awarded the learned trial judge stated at page 91 of the record thus:

“The plaintiff also claimed the sum of NI000,000.00 being damages for shock, pain, agony and discomfort he suffered as a result of the consumption of the contaminated fanta orange drink manufactured and bottled by the 2nd defendant. From the pleading and the evidence in this case and in view of my finding, I hold that the 2nd defendant is liable under this head of claim. I have considered carefully the circumstances and the facts of this case and I come to the conclusion that the plaintiff is entitled to the sum of N950, 000.00 Nine hundred and fifty thousand naira) as damages for the injury suffered by the plaintiff as a result of the consumption of the contaminated fanta orange drink against the 2nd defendant.”

Earlier the learned trial judge had allowed some other heads of claim and dismissed some. With respect to the special damages awarded there is practically no challenge. The only area of some complaint is with respect to the award of N950,000.00 which is in the form of general damages.

The guiding principle is that an appellate court would not ordinarily interfere with the decision of a trial court as to the amount of damages awarded unless it is satisfied that:

(a) the trial court proceeded on a wrong principle of law; or

(b) the amount awarded is so high or so low as to make it an entirely erroneous estimate of damages to which the claim is entitled. See Ogunkoya v.Peters (1954) 14 WACA 504; Soleh Bonelt Overseas (Nig.) Ltd. v.Ayodele (1989) 1 NWLR (Part 199) 549. It is also settled that the award of general damages is essentially that of the trial court’s exercise of discretion and being a discretion an appellate court must ordinarily be circumspect in an invitation to interfere with the amount awarded. In the award of general damages therefore it is not for the appellate court to interfere on the promise that on a balance of opinion that a higher or low amount of award would have been preferred. See His Highness Uyo I v. Egware (1974) 1 All NLR 293 at 295; Nwachwkwu v. Egbuchu (1990) 3 NWLR (Part 139) 435; Bello v. Ringim (1991) 7 NWLR (Part 206) 668 In this case the Court of Appeal formed his opinion on the propriety or otherwise of the amount of N950,000.00 awarded because of its erroneous finding that the claim was not sustainable. I have examined the award made by the learned trial judge and I do not find any strong reason to interfere with the exercise of his discretion in the award. The result is that I would not disturb the award made by the learned trial judge.

On the whole, it is my view that the Court of Appeal was in grave error to interfere with the very reasoned judgment of the learned trial judge. And in view of all I have been saying above I hold that there is merit in the appeal which ought to be and is hereby allowed. The judgment of the Court of Appeal be and is hereby set aside and that of the trial court restored in its entirety. I assess the costs of this appeal at NI0,000.00 in favour of the appellant against the 2nd respondent.

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SC.67/2002

Okon Bassey Ebe Vs Commissioner Of Police (2008)

LAWGLOBAL HUB Lead Judgment Report

O. ADEREMI, J.S.C 

The appeal is against the judgment of the Court of Appeal [Calabar Division] in appeal No. CA/C/77/2002; Okon Bassey Ebe V. Commissioner of Police delivered on the 29th of November 2004 in which the court below had allowed the appeal of the appellant [Commissioner of Police] before it, set aside the decision of the High Court (sitting as an appellate court) demanding for the revalidation of the fiat issued by the Attorney- General of Cross Rivers State and also set aside the order made by the appellate High Court striking out the appeal for failure to comply with the provisions of Order 44 Rule 10 (1) of the Cross River State High Court Civil Procedure Rules, 1987.

Briefly, the facts leading to this appeal are thus: – four persons including the appellant were charged before the Chief Magistrate’s Court, Akpap Okoyong in Odukpani Local Government Area of Cross River State on a four-count charge involving conspiracy to effect unlawful purpose e.g. forcible entry on a parcel of land which was in actual and peaceable possession of one Chief Effiong Offiong Andong, malicious damage and threat with intent to intimidate. Their trial commenced on the 12th of May 2000. As at 27th October 2000, three witnesses had given evidence for the prosecution. On the 12th of January 2001, the trial Chief Magistrate dismissed the charge for want of diligent prosecution, the prosecuting counsel was absent. Dissatisfied with the order dismissing the charge, the appellant (Commissioner of Police) before the appellate High Court appealed therefrom to the High Court, Calabar Judicial Division. On 1st August 2001 when the appeal came up for argument before the appellate High Court, an objection was raised to the appearance of one Ukweni to prosecute the appeal on behalf of the Commissioner of Police on the ground that he had no fiat. The appeal was adjourned from that date to 8th November 2001 presumably to take argument on the objection. There is no record of what transpired in the Court on the 8th of November 2001. But on 8th May 2002, the appearance of Ukweni as a prosecutor in the appeal was disallowed by the appellate High Court until evidence of issuance of fiat to him by the Attorney-General was produced.

Meanwhile, on the same date (8th May, 2002), the learned judge presiding over the High Court sitting on appeal struck out the appeal for non-appearance of the appellant. The Commissioner of Police, as the appellant, being dissatisfied with this judgment, appealed to the court below (the Court of Appeal) which after taking arguments of counsel, which, in a considered judgment delivered on the 29th of November 2004, allowed the appeal of the Commissioner of Police set aside the decision of the High Court, as an appellate court, demanding for the revalidation of the fiat issued by the Attorney-General of Cross River State so also was the order striking out the appeal was set aside. The court below finally pronounced that the appeal was still valid and should be relisted and heard by another judge as the Chief Judge of Cross River State may so assign.

It is the appeal against the said judgment of the court below that is now before us. Both parties filed their respective briefs of argument. In the appellant’s brief of argument filed on the nod of May 2006, only one issue was identified for determination by this court, and as set out in the said brief, it is as follows: –

“Whether the Court of Appeal was right in setting aside the order of the High Court striking out the appeal of the respondent for failure of the respondent to comply with Order 44 Rule 10 (1) of Cross River State High Court Civil Procedure Rules 1987”

While the respondent adopted the only issue raised up by the appellant, he modified same. The modified issue as couched in the brief of the respondent is in the following terms: –

“Whether the learned justices of the Court of Appeal were right in holding that the insistence of the High Court Judge on the personal appearance of the respondent was wrong in law and not in consonance with the relevant provisions of Order 44 Rule 10 (1) and (2); and Order 11 Rule 33 of the High Court of Cross River State (Civil Procedure) Rules, 1987”

When the appeal came to us for argument on the 1st of November 2007, Chief Ogbodu, learned counsel for the appellant referred to, adopted and relied on the appellant’s brief filed on 22nd May 2006 and he urged that the appeal be allowed. Mr. Ukweni, learned counsel for the respondent, for his part, referred to, adopted and relied on the respondent’s brief filed on 20th July 2006; he urged that the appeal be dismissed and the judgment of the court below be affirmed.

The issues raised by the appellant and respondent are materially the same. Before I start the consideration, I am of the view that I should reproduce the provisions of ORDER 44 RULE 10 (1) of the High Court Civil Procedure Rules; they are thus: –

“If on the day of hearing or at any adjournment of the case, the appellant does not appear, the appeal shall be struck out and the decision shall be affirmed unless the court thinks fit, for sufficient cause, to order otherwise.”

The above provisions of the rules of court confer some degree of discretion on the judex; in the instant case, what is conferred is a judicial discretion. This court has said that for a judicial discretion to be properly exercised, it must be founded upon the facts and circumstances presented to the court from which the court must draw a conclusion governed by law and nothing else. The exercise of that discretion must be honest and in the spirit of the statute, otherwise, any act so done will not find a solace in the statute and such a discretionary act must be set aside. See Unilag& Ors v. Olaniyan & Ors . (1985) 1 S.C. 295.

It therefore follows that where a judicial discretion has been exercised bona fide, uninfluenced by any irrelevant considerations and not arbitrarily or illegally, the general rule is that an appellate court, the like of this court, will not ordinarily interfere. See -Saffieddine v. Commissioner of police (1965) 1 ALL NLR 54; Solanke v. Ajibola (1968) I ALL NLR 46 and Mobil Oil v. Federal Board od Island Revenue (1977) 3 S.C. 97. Legal discretion or what is termed in Latin Maxim as “lagalis discretio” requires a court or a judge to administer justice according to prescribed rules of law. In applying the provisions of Order 44 Rule 10 (1) of the High Court Civil Procedure Rules, the judge of the High Court of Cross River State sitting on appeal on the case reasoned thus: –

“Let me on my own introduce or add to the cannon of interpretation the element of commonsense.Applying this principle to that provision, it would make no sense to expect the lawyer to be present at any or all adjournments be they for mention or even interlocutory ruling as well as the final judgment of the appeal. It seems to me that the plausible instances when both the lawyer and the appellant have to appear simultaneously are hearing or argument of the appeal: but the appellant is expected to appear in all other respects. If he fails, then the consequences of the infringement of that provision lies on his door-step personally. I hold that the cup of his absence will immutably be taken by him and will not pass to his lawyer or be shared by both of them…For non- appearance of the appellant on all adjournment dates so far before me, this appeal shall be and is hereby struck-out.”

It should be noted that the appellant before the High Court sitting on appeal is the Commissioner of Police. The court below (Court of Appeal) before whom the appeal against the judgment of the High Court came, on the Issue of non-appearance of the appellant said and I quote: –

“I therefore hold, that the insistence on the personal appearance of the Commissioner of Police, who was the appellant before the lower court was absolutely wrong because a counsel was regularly appearing for the appellant being a criminal appeal…With the cited precedents laid by the apex court, I am sure that the lower court judge, was slavish to Order 44 Rule 10 (1) supra with the intent to scuttle the appeal by striking same on the wrong basis that, the legal practitioner, had no right to announce appearance for the appellant- Commissioner of Police.

In my final analysis, I allow the appeal of the appellant. I set aside, the decision demanding for a revalidation of the fiat issued by the Attorney-General of Cross River State which is still binding and I also set aside the striking out of the appeal… I hold that the appeal is still valid and should be relisted in the court’s cause list for hearing before another judge as the Chief Judge of Cross River State, may assign.”

As I have said above, it is the appeal against the judgment of the court below the extract of which I have reproduced above that is now before us. Let me say that a judge has no discretion in his ruling on the law. But when, having made necessary findings of fact and necessary ruling ‘on law he has to choose between different causes of action, orders, penalties or even remedies, he then exercises discretion. The court below has evaluated the printed evidence and made its inferences from established facts. I cannot fault that exercise. There is no law compelling any party to appear physically in court in the circumstances of the facts of this case. All that is necessary, in the interest of good administration of justice, is that the working of a court of law is not stalled by nonappearance or even the appearance of a party to the court before it. See Kehinde v. Ogunbunmi & Ors (1968) NMLR 37 and Atake v. Afejuku (1994) 9 NWLR (pt.368) 379. As was rightly said by the court below, to expect a Commissioner of Police to be physically present in all cases affecting him in his official capacity is to look for impossibility. Argument deduced from an impossibility always avails in law. Where the law creates a duty or a charge, and the party is disabled to perform it without any default in him and has no remedy over, there the law will, in general, excuse him. I am not unmindful of the principle that impossibility of performance of an obligation which a party has expressly undertaken by contract is, in general, no excuse. But, when the obligation is one implied by law, impossibility of performance by the law affords good excuse. The maxim is impotentia excusat legem. I repeat, it is absolutely impossible for a Commissioner of Police to be physically present in court for every court case affecting his office. And, if it is remembered that the law does not compel the impossible, the judgment of the court below cannot but be upheld. It is for what I have been saying above that I hereby answer each of the only issue raised by the appellant and the respondent in their respective briefs of argument, in the affirmative.

In concluding this appeal, it is my judgment that this appeal is very much unmeritorious. It must be dismissed and I hereby dismiss it. I uphold the judgment of the court below setting aside the decision demanding for a revalidation of the fiat issued by the Attorney-General of Cross River State and also the order setting aside the striking out of the appeal. I also endorse the consequential order of the court below that the appeal is still very much valid and should be relisted in the court’s cause list for hearing before another judge as the Chief Judge of Cross River

State, may assign.

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SC.141/2005

Benjamin Onwughamba Ezenwa Vs Okpara Oko & 2 Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

W.S.N. ONNOGHEN, JSC.

This is an appeal against the judgment of the Court of Appeal, holden at Enugu in appeal NO.CA/E/102/79 delivered on the 11th day of November, 1999 in which the court dismissed the appeal of the appellant against the judgment of the High Court of Imo State holden at Afikpo Division in suit no. HAF/13/78 delivered by that court on the 18th day

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of June, 1979 in which it dismissed the appellant’s claim for statutory right of occupancy, trespass, injunction and specific performance, but awarded the sum of N500.00 (Five Hundred naira) damages in lieu of specific performance.

On the 26th day of May, 1978 the appellant, as plaintiff, caused a writ of summons to be issued against the respondents, as defendants, claiming the following reliefs:-

(i) “A declaration that plaintiff is the person entitled to a statutory right of occupancy to a parcel of land near Eke Market, Afikpo and which is part of a larger area of land situate at Amachi Village, Afikpo in Afikpo Local Government Area of Imo State within Judicial Division, the annual value which is N10.00 (Ten Naira).

(ii) N500.00 (Five Hundred Naira) being general damages for trespass upon the said land.

(iii) Injunction perpetually restraining the defendants, their servants, agents and workmen from further entry upon or interference with the land.

(iv) Specific performance against the defendants in respect of the contract and for lease agreement made on the 26th day of January, 1965 in connection with the renewal of the lease”.

The facts of this case are very simple and straight forward just as they remain undisputed. The original 1st defendant granted a lease of the property in dispute to the appellant on the 26th day of January, 1965 for 10 years as evidenced in Exhibit A. Exhibit A was therefore to expire on 26th day of January, 1975 with an option for renewal. In 1966 appellant took possession of the land and laid foundation for a concrete building thereon up to the floor level before the Nigerian Civil War forced him to flee Afikpo to his home town, Achina from where he returned in 1971 to find motor mechanics in occupation of the property who atoned tenancy to him as appellant continued with the leasehold.

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Sometime in February, 1975 the appellant approached the original 1st defendant/respondent for the renewal of the lease who refused to allow appellant exercise the option and refused to collect further rents from the appellant on the ground that the original 1st defendant/respondent has made a gift of the land in dispute to the 3rd respondent.

On his part, the 3rd defendant/respondent knew of the lease to the appellant and the fact that the mechanics on the land were the sub-tenants of the appellant. In 1978, the 3rd respondent peacefully quitted the mechanics from the land and surveyed same after which the land was formally conveyed to the 3rd respondent by the 1st respondent and he commenced building thereon in April, 1978. In May, 1978 when it finally dawned on the appellant that the 1st respondent had no intention of changing his mind on the option of renewal of the lease, the appellant instituted this action claiming the reliefs earlier reproduced herein.

Learned counsel for the appellant, Chief H. B Onyekwelu in the appellant’s brief filed on 30th day of September, 2007 and adopted and relied upon at the hearing of the appeal on the 29thday of October, 2007, formulated the following issues for the determination of the appeal, to wit:-

3.1 “Whether specific performance of the appellant’s equities cannot be enforced against the 3r respondent whose ostensible interest over the land is that of a mere volunteer, but is the alleged successor in- title of the 1st respondents;

3.2 Whether on the facts of the case, the appellant was guilty of delay at all or such delay as in the circumstances could deprive the appellant, enforcement of specific performance against the 1st respondent or the 3rd respondent or their successors-in-title;

3.3 Whether fraud or unconscionable behaviour should be specifically pleaded as against setting out facts in support thereof;

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3.4 Whether the appellant was not entitled to notice to quit from the land, if so what would be the length of time of the notice, in view of Exhibit A which was a lease for ten years, in the first instance;

3.5 Was the court of appeal right in holding that the 3rd respondent was not liable in trespass on the facts and applicable law in the circumstances; AND that the appellant was not entitled to damages at all in lieu of specific performance? If not whether the appellant is not entitled to the market value of the land and improvement. Thereof by the appellant, of the property so well commercially situated;

3.6 If the supreme court holds that the appellant is entitled to specific performance, is the lease perpetually renewable or merely for another ten years or so;

3.7 Whether the provisions of the land use Act 1978, made it impossible for an order of specific performance to be entered against the 1st and 3rd respondent.”

On the other hand, learned counsel for the respondent, Chief Ebele Nwokoye identified the following issues for determination in the respondent’s brief filed on 18th day of October, 2005:

3.1 “Whether specific performance of this appellant’s equitable interest could not have been ordered by the court below in the circumstances of this case;

3.2 As opposed to appellant’s 2nd issue, whether the appellant has pleaded argued and satisfied the court that the special reasons to interfere with the concurrent findings that appellant did not come to court promptly to claim the equitable relief of specific performance;

3.3 As opposed to appellant’s 3rd issue, whether the appellant pleaded fraud and, if so, why the appellant is at pains to pin-point paragraphs of the statement of claim where he did so;

3.4 As opposed to appellant’s 4th issue, whether the appellant who did not appeal against the finding of the High Court that he was quitted from the disputed land peacefully can now agitate the contrary view, without specific leave to do so and, furthermore, whether the appellant has pleaded, argued and

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satisfied the court on special reasons or circumstances to interfere with the concurrent finding on the issue by the two lower courts;

3.5 Appellant’s 5th issue is hereby adopted for argument;

3.6 Appellant’s 6th issue is hereby opposed on the ground that it is not based on any ground of appeal before the court. Awosile vs Sotumbo (1992) 6 SCNJ182;.

3.7 Appellant’s 7 issue is hereby opposed on the ground that it is not based on any ground of appeal before the court. Awosile vs Sotumbo (1992) 6 SCNJ 182;

3.8 It is further submitted that no issue have been raised on the grounds of appeal numbered (3) (9) (11) and (12) and those grounds are therefore deemed to have been abandoned. David Oguntade vs Ezekiel: Adeleye (1992) 10SCNJ 58.”

It is important to note at this stage that the learned counsel for the appellant filed no reply to the brief of the respondents in answer to the complaints as to whether appellant’s issues 6 and 7 arose from the grounds of appeal before this court and also the abandonment of grounds 3,9,11 and 12 of the grounds of appeal following the non formulation of issues there from.

The above complaints are very germane as it is settled law that whereas ground(s) of appeal must arise from the decision appealed against, issues for determination must be formulated from the said grounds of appeal otherwise they are invalid. In that respect it is my view that appellant’s issues 6th and 7th not having been formulated from any of the grounds of appeal filed in this court, are incompetent and are hereby struck out.

As regards appellant’s issue No.4 I agree with learned counsel for the respondents that appellant never appealed against the concurrent finding by the lower courts that appellant was quitted from the land in dispute peacefully and cannot now turn round to argue the contrary, without leave of the court. To that extent, the argument on appellant’s issue No.4 is hereby discountenanced.

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With respect to grounds 3,9,11,and 12 of the grounds of appeal filed in this court in respect of which no issue(s) has/have been formulated, it is settled law that the said grounds are deemed abandoned by the appellant and liable to be struck out. I hereby order accordingly. Be that as it may, it is unfortunate that from the simple and straight forward facts of this case, which is very much undisputed, so many issues could have been properly raised for determination when the primary issue before the court remains whether having regards to the facts and circumstance of the case, appellant was entitled to a decree or order of specific performance; every other issue remains ancillary if at all relevant.

In arguing issue 1, learned counsel for the appellant submitted that the 3rd respondent, having stepped into the shoes of the 1st respondent in respect of the land, was bound by any equities attached to the land in that before he acquired his supposed interest, the 3rd respondent was a volunteer with full knowledge of the appellant’s equities in the land; that it is trite law that where a purchaser of land or a lessee is in possession of the land and has paid the purchase money to the vendor or has paid the rent to the lessor as the case may be, then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land, for value without notice of the prior equity, relying on the case of Obijuru v. Ozims (1985) 2 NWLR (Pt. 6) 167 at179. Learned counsel also cited and relied on Vol.36, Halsbury’s Laws of England (3rd Ecl.330 Para. 482) which states that “where there is a contract for the sale or demise of property and the property is thereafter transferred to a third party, the general practice is that specific performance may be had against the transferee;

If he is a volunteer, or

Takes with notice of the prior contract, or

iii. Acquired only an equitable title and has no better equity than the purchaser or intended lessee”

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Learned counsel for the appellant argued that the 3rd respondent being a volunteer who also took the land with notice is liable to specifically perform the contract of renewal attached to the land by virtue of Exhibit A, that the lower court was in error when it held that specific performance cannot be ordered against the 3rd respondent because he was not privy to the agreement to renew the lease particularly as that court had earlier held that the 3rd respondent stepped into the shoes of the 1st respondent in relation to the land in dispute; that it is not correct, as held by the lower court, that the original lease had expired before appellant started to ask for renewal as there is evidence to show that appellant started to demand for renewal before 25th January, 1975 when the lease expired; that even if the lease had expired, appellant continued in possession and was collecting rents from his sub-tenants until April, 1978 thereby being led to believe that the 1st respondent was ready or could be persuaded to renew the lease.

On his part, learned counsel for the respondents referred to the holding of the lower court at page 202 of the record to the effect that “I have already held that at the time appellant went to court, the basis of his claim had lawfully ceased to exist. It was the continued existence of his status of a tenant at sufferance that would have made the 1st respondent compellable” meaning that the appellant lost the status of tenant at sufferance or the relationship of tenant and landlord which must exist to qualify him to seek specific performance to compel 1st respondent and that since appellant cannot compel performance against 1st respondent he cannot also do so against the 3rd respondent; that the lower court did find that the appellant’s option for renewal had ceased to be and there was not, for that reason, a cause of action, sealed the fate of the appellant; that appellant did not appeal against this specific finding and should not now be allowed to impugn same; that the issue of privity of contract does not really arise nor have effect on the conclusion judging from the above findings of the lower court which completely took care of the appellant’s case, that the court should refuse the grant of specific performance on the following grounds:-

(a) the trial court refused to exercise its discretion in favour of the appellant and the appellant did not appeal against that refusal;

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(b) the Court of Appeal did not interfere ‘with the exercise of the discretion not to grant specific performance and, indeed, affirmed what the trial court did as appellant has shown no special circumstances to warrant the interference of this court;

(c) the lower courts finding that the appellant’s option to renew had ceased to be and there was not for that reason a cause of action even though complained against in ground 11 of the grounds of appeal before the lower court, the same was abandoned when no issue was raised there from;

(d) the appellant who covenanted to build on the land could not do so after possessing the land for over 13 years and contented himself with a mere concrete foundation up to floor level;

(e) appellant brought action for declaration of title against his former landlord;

(f) that the claim on specific performance is an after thought as the same was not claimed in the writ of summon; that the claim for specific performance as claimed on the statement of claim was never paid for.

I will begin a consideration of the issue in contention between the parties by stating that it is settled law that the statement of claim supercedes the writ of summons and that what is claimed in the writ but omitted in the statement of claimed is deemed abandoned while what is not claimed in the writ but claimed in the statement of claim becomes the claim before the court though subject to the payment of appropriate filing fees where appropriate. In the instant case the additional relief was not for monetary compensation but for specific performance. It is not that appellant never paid for the filing of the statement of claim but that he failed to pay for the additional relief of specific performance. Learned counsel cited and relied on Order VIII Rule 5 of the High Court Rules applicable to Eastern Nigeria Vol. IV Laws of Eastern Nigeria, 1963 which provides as follows:-

“5. The fees prescribed in Part 1 of the second schedule shall be payable by the party prosecuting a proceeding or asking for a service as therein provided in respect of the proceedings or services to which they relate and such fees may afterwards be recovered as costs of cause if so ordered.

Fees may be waived or remitted, by a Judge on the ground of the poverty of the person chargeable therewith where it appears that there are substantial grounds for his taking the proceeding or asking for the service to be rendered: Provided however, that a Judge may, where he thinks fit, order any party to pay any fees so waived or remitted.”

Counsel also relied on item 10 of the Part 1 of the second schedule to the above rules which provides for the payment of the sum of £3.15.0 “For any other relief or assistance not specifically provided for “ as the basis for his submission that appellant ought to have made payment separately for the relief of specific performance. I do not agree with learned counsel for the respondents in that respect particularly as appellant paid for the filing of the statement of claim, in which the relief is claimed and did so after the registrar duly assessed same for payment. I therefore hold the view that the relief of specific performance is properly before the court and that the lower courts were right in considering whether to award same or not.

Having taken care of the preliminary matter, the issue is whether this is a proper case for the court to exercise its equitable jurisdiction by ordering specific performance.

In cases where there is a subsisting contract or agreement for the sale or lease of land, the court, being also a court of equity is always inclined to grant specific performance because the land being sold or leased may have a peculiar value or significance to the purchaser or lessee particularly where it is a choice land in a busy commercial centre of the town, as in the instant case.

Since the grant of an order of specific performance is at the discretion of the court, it is always advisable that the party claiming same should call evidence on damages claimed or suffered in the event that the court, for some reason is unable to grant specific performance.

It is also settled law that the onus is on the person who seeks to enforce his right under a contract to show that he has fulfilled all the conditions precedent, and that he has performed all those terms which ought to have been performed by him. Where the plaintiff fails or defaults in the discharge of his own obligations under the contract, the action must fail – See Balogun vs All -Owe (2000) 3 NWLR (Pt.649) 477 Ezenwa v. Ekong (1999) 11 NWLR (Pt.625) 55.

From the above stated principles, it is very clear that a decree or an order of specific performance is a form of relief that is purely equitable in origin and the fundamental rule is that specific performance will not be decreed or ordered if there is an absolute remedy at law in answer to the plaintiffs claim, for instance, where the plaintiff would be adequately compensated by the common law remedy of damages. The jurisdiction in specific performance is therefore anchored on the inadequacy of the remedy of damages at law – See Afrotec Tech. Serv. (Nig) Ltd v. MA & Sons Ltd (2000) 15NWLR (Pt. 692) 730 at 790, (2001) 1 SCM 1. The question then is, how do the facts of this case fit into the principles guiding the order of specific performance.

It is not disputed that appellant entered into a lease with the 1st respondent in respect of the land in dispute for a term of 10 years which was to expire on 25th January, 1975 with an option to renew same for a further term of years.

The lease duly came to an end by effluxion of time though appellant had, meanwhile put up a foundation on the land up to the floor level before abandoning same following the outbreak of the Nigerian Civil War. It is important to note that the lease ended without the 1st respondent agreeing to renew the lease nor, to accept further rents from the appellant. The lower courts therefore came to the right conclusion when they held that the lease was duly terminated by effluxion of time. However, the action for specific performance appears to be founded on the option to renew contained in the lease between the appellant and 1st respondent.

Learned counsel for the appellant has submitted that the 3rd respondent can be ordered to specifically perform the contract of option to renew particularly as he stepped into the shoes of the 1st respondent and was a volunteer and did take with notice of appellant’s equities – option to renew. By “a volunteer” the law means a person who enters into any transaction of his own free will or a person to which property is transferred without valuable consideration. It is the second meaning that is more relevant to the facts of this case.

We have to bear in mind that the principles of specific performance relate to enforcement of contract entered into between the parties and that a contract involves offer and acceptance of the offer coupled with provision of consideration. One may ask in relation to this case, what is the contract that appellant wants the court to specifically enforce? There is only one lease agreement between the parties which lease expired by effluxion of time. With that expiration any rights arising there from became spent or non-existent and consequently unenforceable or is the appellant talking of the option to renew as constituting the contract he wants specifically enforced? If so is an option to renew a lease a contract enforceable by specific performance particularly where there is no provision in the lease to the effect that the lease is renewable in perpetuity or that the landlord or lessor shall not withhold consent to renew the lease? Even where there is a provision that the lessor shall not unreasonably withhold consent to renew the lease, it still leaves the lessor with the discretion either to renew or not to renew the lease how much more where there is no such provision and the lessor refuses, as in the instant case, to renew the lease. Is he bound to renew the lease?

If the option to renew is considered the contract to be enforced, where is the acceptance of that offer by the lessor 1st respondent, and what, if one may ask, is the consideration so as to make the alleged contract binding and enforceable? I am unable to see the basic constituents of a valid contract existing between appellant and 1st respondent and by extension 3rd respondent which can be said to be amenable to specific performance having regard to the fact that the only valid contract between them had expired without renewal. It is on the above basis that one has to agree with the lower court that “the appellant’s option to renewal had ceased to be and there was not, for that reason, a cause of action”.

It should be noted that the facts of this case is different from the usual factual situations where specific performance is obtainable. Learned counsel for the appellant has cited and relied on the decision in Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167 at 179 where it was held thus:-

“It is trite law that where a purchaser of land or a lessee is in possession of the land and has paid the purchased money to the vendor or has paid the rent to the lessor as the case may be, then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and his equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity” and also Halsbury’s Laws of England (3rd Ed) 330 Para. 482 where it is stated thus:-“ Where there is a contract for the sale or demise of property and the property is thereafter transferred to a third party, the general principle is that specific performance may be had against the transferee,

(i) If he is a volunteer, or

(ii) Takes with notice of the prior contract, or

(iii) Acquired only an equitable title and has no better equity than the purchaser or intended lessee”.

Though the above statements represent the law applicable to the situations described therein, the principles do not apply to the facts of the instant case because primarily, and this is the most important consideration for its applicability, there is no existing valid contract of lease or purchase of land between the parties, the earlier one having expired by effluxion of time so the 3rd respondent cannot be said to have taken the property “with notice of the prior contract” between the appellant and 1st respondent neither has he acquired any further interest in the property in issue by payment of rents particularly as 1st respondent refused to renew the lease or collect further rents from the appellant. I hold the considered view that an option to renew a lease is an offer made to the landlord, the acceptance of which would constitute a valid contract enforceable by specific performance; it remains an offer until accepted. In the instant case, it was never accepted by the 1st respondent so no enforceable contract exists. I therefore resolve the issue against the appellant.

On the second issue which deals with the question as to whether appellant was guilty of any delay in presenting his case for renewal of the lease, like the other issues, it is my view that their consideration will have no meaningful effect on the position of the case particularly as a resolution of issue No.l has rendered the second issue irrelevant. In any event it is not disputed that appellant went to court after three years of the expiration of the lease at which time the 3rd respondent had acquired his interest thereon.

On the third issue which deals with fraud, it is trite law of practice and procedure that for one to rely on fraud in any case he must first and foremost specifically plead same and in addition supply particulars of the alleged fraud so as not to take the other party by surprise – See Order XXXIII Rule 13 of the applicable High Court Rules of Eastern Nigeria, 1963. In conclusion I find no merit in this appeal which is accordingly dismissed with costs which I assess and fix at N10,000.00 (Ten Thousand Naira) against the appellant. Appeal dismissed.

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SC 426/2001

Chief Emmanuel Bello Vs Independent National Electoral Commission & 2 Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The Appellant in this appeal was the Plaintiff at the trial Federal High Court Abuja where by Originating Summons dated 21st February, 2007, he instituted an action against the 1st and 2nd Respondents as the Defendants. By a motion on notice supported by affidavit filed at the Court on 28th February, 2007, the Appellant sought the leave of the Court to amend the Originating Summons by filling an Amended Originating Summons which removed the name of the 2nd Respondent as a Defendant in the action, leaving the 1st Respondent alone to defend the action. The grounds or questions for determination and the relief being sought in the original action were also amended. The parties were duly heard on this application for amendment and the application granted. The Amended Origination Summons in the action between the Appellant as Plaintiff and the 1st Respondent as the Defendant dated 1st March, 2007 was subsequently heard. After hearing the parties, the trial Court delivered its judgment on 4th April, 2007 granting all the three specific relief sought by the Appellant against the 1st Respondent.

However, on 5th June, 2007, by a motion on notice filed at the trial Court, the 2nd Respondent, the name of which was removed from the Appellant’s action as originally filed on the orders of the trial Court, sought for an order to set aside the judgment of the trial Court of 4th April, 2007. The Appellant opposed the application and after hearing the parties, the learned trial Judge came to the conclusion in his ruling delivered on 20th July, 2007, that the judgment of the trial Court given on 4th April, 2007 was a nullity and therefore proceeded to set it aside. The Appellant’s appeal against the setting aside of that judgment was heard and dismissed by the Court of Appeal Abuja Division in its judgment delivered on 17th December, 2008. Not satisfied with the judgment of the Court of Appeal, the Appellant has now appealed against it on four grounds of appeal from which his learned senior Counsel identified two issues for the determination of the appeal as follows:-

“(i.) Whether the judgment of the trial Court delivered on 4th of April, 2007 amount to nullity as a result of non- joinder and therefore liable to be set aside by the same Court at the request of 2nd Respondent (sic) who was the person not joined (Grounds 1, 2 and 3).

(ii) Whether the judgment of the trial Court was a default judgment liable to be set aside at the instance of a person who was not party to the proceedings.”

It is observed that although the 1st Respondent, Independent National Electoral Commission which was the sole Defendant in the proceedings resulting in the judgment of 4th April, 2007, the setting aside of which at the instance of the 2nd Respondent that gave rise to the present appeal was represented by a team of learned Counsel at the hearing of this appeal, no Respondent’s brief was filed on its behalf. Leading Counsel to the 1st Respondent merely told this Court that his client was ready to abide by the out-come of the appeal. However, in the Respondent’s brief of argument filed by the 2nd Respondent, only one issue for determination was formulated from the Appellant’s four grounds of appeal. The issue reads –

“Whether in all the circumstance of this case the lower Court was not justified in upholding the decision of the Federal High Court, Abuja Division setting aside her judgment delivered on 4th day of April, 2007”

In the same vein, the learned senior Counsel for the 3rd Respondent also saw only one issue for determination which was framed thus –

(1.) “Whether the decision of the lower Court is justified in law having regard to the facts and circumstances of the case.”

Since the complaint against the setting aside of the judgment of the trial Court of 4th April, 2007 by the same Court at the instance of the 2nd Respondent is a common factor in the two issue formulated in the Appellant’s brief of argument, I shall take the arguments in support of the two issues together. This is because whether or not the judgment of the trial Court of 4th April, 2007 was set aside on the ground of being a nullity or on the ground of its being a default judgment as stated in the two issues in the Appellants brief, the end result of the setting aside of that judgment is the central issue for determination.

Mr. Rickey Tarfa, learned senior Counsel for the Appellant has observed that it is not in dispute between the parties in this appeal that 2nd Respondent was not a party to suite of the Appellant at the trial Court on the Amended Originating Summons which by law was deemed to have taken effect from date of filling Originating Summons on 21st February, 2007. This view was supported by the cases of Rotimi v. Mcgregor (1964) N.S.C.C. page 542 at 552 line 1 – 16 and Katio v. C.S.N. (1995) 5 S.C.N.J. Page 21 lines 36; that the trial Court and the Court of Appeal appeared to have placed more emphasis on the first Originating Summons in which the 2nd Respondent was a party; that the effect of the order granting the amendment is that the 2nd Respondent had ceased to be a party in the Appellant’s action; that not being a party in the action, the 2nd Respondent could not have availed itself of the provisions of Order 38 Rule 9 of the Federal High Court (Civil Procedure) Rules 2000, to apply to set aside the judgment of 4th April, 2007 not being a party, having regard to the decisions in Green v. Green (1987) N.S.C.C. 115 at 129 and Fawehinmi v. N.B.A. (No. 1) (1989) 2 N.W.L.R. (Pt. 105) 494 at 550. Learned senior Counsel therefore argued that since the 2nd Respondent was not a party to the case that led to the judgment, the only remedy available to it was to appeal against that judgment with the leave of the trial Court or of the Court of Appeal as a party having interest in the case under Section 243(a) and (b) of 1999 Constitution and Order 7 of the Court of Appeal Rules 2007; that even if the 2nd Respondent were a necessary party to the action, failure to join it as a party was not fatal to the case to the extent of rendering the judgment of the trail Court a nullity if the of cases of Ayorinde v. Oni (2000) F.W.L.R. (Pt. 3) 445 at 464 and Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 2 N.S.C.C. 422 at 438, are taken into consideration. Learned senior Counsel concluded by submitting that since the 2nd Respondent was not a party at the trial Court in the action, the judgment of the trial Court of Appeal was in error in its judgment of 17th December, 2008 now on appeal, in affirming the decision of the trial Court setting aside the judgment of 4th April, 2007 and therefore urged this Court to allow the appeal.

It appears from the contents of paragraph 1.2 of the Respondent’s brief of argument filed for the 2nd Respondent; the 2nd Respondent is an unwilling party which had been forced by circumstances of this case to defend the judgment of the Court of Appeal in this Court. Paragraph 1.2 of the Respondent’s brief reads at page 1 –

“Facts on pages 419 – 426 show clearly the unwillingness of the 2nd Respondent to be party to or to continue to be party of the appeal at the lower court because the matter

relates to dispute between her members over nomination. Having been made a party against her desire and a judgment entered in her favour, it becomes necessary and desirable to defend the judgment. No more, no less.”

For the above reasons given in defending the judgment of the Court below in this Court, the learned Counsel for the 2nd Respondent in support of the lone issue for determination as distilled in the 2nd Respondent’s brief of argument explained that since the 2nd Respondent is the party that has the right in law to sponsor its candidate to contest any election, it was a necessary party to the Appellant’s action against the 1st Respondent challenging his substitution as a candidate in the elections; that failure to join the 2nd Respondent in the action clearly robbed the trial Court of its jurisdiction to adjudicate in the matter thereby making the judgment of the trial Court of 4th April, 2007 a nullity; that the judgment being a nullity, the 2nd Respondent has the right to apply to the trial Court to have that judgment set aside as the relief granted to the Appellant were directly against the interest of the 2nd Respondent; that looking at the case from another angle, since the order made by the trial Court of 4th April, 2007 was against a person who was not a party in the Appellant’s case, the judgment was a nullity by virtue of the decisions of this Court in Adenuga v. Odumero (2003) 8 NWLR (Pt. 821) 127 at 188 and Kekerowo v. Lagos State Government (2001) 11 NWLR (pt. 123) 246. Learned counsel relying on the cases of Ifezue v. Nbadugha (1984) 1 SCNLR 247, Odi v. Osafile (1985) 1 NWLR (pt.1) 17, Green v. Green (1987) 3 NWLR (pt. 61) 480 and Eke v. Ogbonda (2006) 18 NWLR (pt. 1012) 526, pointed out that a person who was affected by an order which can be described as a nullity, as the 2nd Respondent in the present case, is entitled ex-debito to justitae, to have the order set aside. Referring to the case of Okoye v. Nigerian Construction and Furniture Company Limited heavily relied upon by the Appellant, learned counsel observed that the case is not applicable in the present case whose facts are different and whose situation calls for need to do justice to the 2nd Respondent are different and whose situation calls for need to do justice to the 2nd Respondent rather than hanging on technicalities to cause a miscarriage of justice. Counsel therefore urged this Court to consider the modern trend in Okoiyo v. Odje (1985) 10 SC 267 and Nwosu v. Imo State Environmental Sanitation Authority & Ors. (1990) 2 NWLR (pt. 135) 688 at 717, and do justice in this case by dismissing this appeal.

For the 3rd Respondent, its learned senior Counsel Mr. D. D. Dodo, is of the view that having regard to the facts and circumstances of this case, the decision of the Court below in affirming the decision of the trial Court setting aside its judgment of 4th April, 2007, is quite justified in law; that where a party who ought to have been joined in a suit but was not joined and an order was made affecting the party, the party so affected by the decision is entitled to ex-debito justitiae to have it set aside as was done in the present case in line with decision in Afric Mining Co. Ltd. v. NIDB Ltd. (2000) 2 NWLR (pt. 646) 626. It was observed by the learned senior Counsel that the original action filed by the Appellant on 21st February 2007, the 2nd Respondent was clearly a party therein; that by withdrawing the case against the 2nd Respondent in the Amended Originating Summons, the 2nd Respondent was deliberately denied a hearing in a matter in which it was a necessary party whose interest were clearly seen in the orders made by the trial Court on 4th April, 2007 thereby justifying the application by the 2nd Respondent to set aside the judgment; that the trial Court has therefore inherent power to set aside that judgment by virtue of many decisions of this Court including Menakaya v. Menakaya (2001) (2001) 16 NWLR (pt. 738) 255, – without resorting to any appeal against the judgment because the judgment or ruling was a nullity. On when a judgment of a superior Court can be declared a nullity, learned senior Counsel referred to Rossek v. ABC Ltd. (1993) 8 NWLR (pt. 312) 437 – 438 and urged this Court to hold that since the 2nd Respondent and 3rd Respondent who were necessary parties in the Appellant’s case were not heard, the Court below was right in law in affirming the decision of the trial Court setting aside the judgment of 4th April, 2007, and therefore urged this Court to dismiss the appeal since the failure of the Appellant to have joined the 2nd and 3rd Respondents as parties to the action, was fatal to the action thereby depriving the trial Court of competence or jurisdiction to have determined the action. A number of cases such as Rossek v. ABC Ltd. (supra); Mozie v. Mbamalu (2006) 7 SCNJ 411 at 423; Adisa v. Oyinwola (2000) 6 SCNJ 322 and Henry Awoniyi v. The Registered Trustees of the Rosicrucian Order of Amorc (Nigeria) (2000) 6 SCNJ 14, were brought to the attention of the Court in support of this submission. In concluding his submissions, learned senior Counsel for 3rd Respondent stressed that the fact that the orders of the trial Court of 4th April, 2007 had affected the rights of the 2nd Respondent, that alone had given the 2nd Respondent the competence to apply and set aside that judgment having regard to decisions in Societe General Bank Nigeria Limited v. Adewumi (2003) 10 NWLR (pt. 829) 526; Delta State Government v. Dr. Okon (2002) 2 NWLR (pt. 752) 682; Edun v. Odan Community (1980) NSCC 279; Emi Trading Services Limited V. Yuriy (1998) 11 NWLR (pt. 573) 284 and Adeniyi v. Police Commission (1967) 1 ALL NLR 67.

As I have earlier observed in this judgment, the main issue calling for determination in this appeal is whether the judgment of the Abuja Division of the Federal High Court or trial Court given on 4th April, 2007 was a default judgment which is also a nullity as affirmed on appeal by the Court of Appeal by virtue of the non service of the originating processes on he 2nd Respondent which was entitled as of right, to apply to the trial Court and have that judgment set aside. The law regarding the position of any judgment or order of Court which is a nullity for any reason whatsoever is that the Court in its inherent jurisdiction is entitled ex-debito justitiae to have that judgment or order set aside on the application of an affected or aggrieved party or even suo-moto. See Ademuluyi & Anor. v. African Continental Bank Ltd. (1965) NWLR 24; Obinmonure v. Erinosho (1966) 1 ALL NLR 250; West African Auto-Mobile & Engineering Co. Ltd. v. Ajanaku (1972) 2 UILR. 335; Skenconsult H. (Nigeria) Ltd. v. Ukey (1981) 1 SC 6 and Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (pt. 109) 250. In other words on the applicable procedure, the Court in exercise of its inherent jurisdiction, can set aside its own judgment or order which is a nullity without necessarily resorting to appealing against that judgment or order by the affected party. What I have to determine in this issue is whether or not the judgment of the trial Court of 4th April, 2007 is truly a nullity as found by the trial Court and affirmed by the Court of Appeal.

In the present case, the grounds upon which the 2nd Respondent went to the trial Court to have the judgment of that Court of 4th April, 2007 set aside, are set out in its application quoted in the Ruling of the trial Court of 20th July, 2007 at pages 155 – 156 of the record where the 2nd Respondents claims are stated –

1) An order extending time within which the Defendant/Applicant may apply to set aside the judgment of the Court dated 4th day of April, 2007

2) An order to Court setting aside the entire proceedings and the judgment of the Court dated 4th day of April, 2007 against the Defendant.

3) Any other order(s) as this Honourable Court may deem fit to make the circumstances.

The prayers were predicted on two (2) grounds:

a) Failure to serve the 2nd Defendant/Applicant the Originating Process or any Processes in this suit.

b) Breach of the Fundamental rights of fair hearing of the Defendant/Applicant.

After hearing the parties on the application, the learned trial judge came to the conclusion that its judgment of 4th April, 2007 was a nullity and therefore proceeded to set it aside on the application of the 2nd Respondent described in the application as a “Defendant/Application.” The relevant part of the ruling of the trial Court at pages 167 – 168 of record reads –

“On the final issue, Order 38 Rule 9 of the Federal High Court Civil Rules 2000 provides:

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

The Court certainly has power to set aside a default judgment. As it is, this is a default judgment that affected the interest of a necessary party who was initially made a party but whose name was withdrawn by the Plaintiff possibly to shield it from the proceedings. The failure to include a necessary party in a suit has been held to be fatal to the case of a plaintiff and robs the court of jurisdiction.

See Ezionwu vs. Ugbo (2006) 5 NWLR party 973 316 at 328 329.

A Court cannot make an order against a non-party.

See Adenuga vs. Odumeru (2002) 8 NWLR party 821 163 at 187 – 188.

On the whole, I uphold the applicants Motion for the reasons stated above. The judgment delivered on the suit of 4th April, 2007 is hereby set aside.

When the Appellant appealed against the ruling of the trial Court to the Court of Appeal, the only issue that was placed before that Court for determination was –

“Whether the trial Judge was not in error when he set aside his judgment of 4th April, 2007 upon an application by persons who were not parties and who did not apply to be joined in the proceedings”.

In resolving the long issue for the determination of the appeal the Court of Appeal agreed with the Respondents that the trial Court was right to have given the 2nd Respondent the right of hearing and setting aside the default judgment particularly when that judgment and the earlier withdrawal, were not served on the party, the 2nd Respondent. The Court below also agreed with the findings of the trial Court on the affidavit evidence before it that the judgment of 4th April, 2007, was ab-initio a nullity which could have been set aside without much ado. Therefore, in dismissing the Appellant’s appeal, the Court below was also of the view that since the judgment of the trial Court was a nullity, the 2nd Respondent, as a party which was affected by the order of the trial Court which order is a nullity, is entitled, ex-debito-justitiae to have that judgment set aside.

The first question for determination in the present appeal from the single issue earlier identified in this judgment is whether the 2nd Respondent was a party to the Appellant’s action and proceedings in the Amended Originating Summons that culminated in the judgment of 4th April, 2007, which is the subject of this appeal. In Green v. Green (1987) NSCC. 115 at 121, Oputa JSC had cause to define parties as –

“Persons whose names appear on the record as Plaintiff or Defendant”.

Similarly, in Fawehinmi v. NBA (No.1) (1989) 2 NWLR (pt. 105) 494 at 550, Oputa JSC again in defining ‘a party’ had this to say –

“A party to an action is a person whose name is designated on record as Plaintiff or Defendant, the term party refers to that person(s) by or against whom a legal suit is sought.

Whether a natural or legal persons but all others who may be affected by the suit indirectly or consequently are persons interested and not parties.

It is quite clear from the record of the trial Court that although the 2nd Respondent was a party to the Appellant’s action in the 1st Originating Summons filed at the trial Court as the 2nd Defendant in the action, the steps taken by the Appellant as the Plaintiff in the action by an application under the rules of the Court to drop the 2nd Respondent as a Defendant in the action, was duly granted by the Court resulting in deeming the Amended Originating Summons with Independent National Electoral Commission as the only Defendant in the action, as duly filed and served. The Amended Originating Summons at pages 46 – 47 of the records clearly reflects the parties in the action as the Appellant’s being the Plaintiff while INEC was the only Defendant. Therefore the 2nd Defendant in the first Originating Summons filed by the Appellant, had by the process of the amendment to the Originating Summons granted by the trial Court on 1st March, 2007, ceased to be a party or a Defendant in the action. The reason given by the Appellant in his affidavit in support of the amendment to the Originating Summons was that having received additional facts in connection with his action, he decided to drop the name of the 2nd Respondent and the claims against it from the action. In other words by the amendment, the Appellant was saying that he had no dispute with his party the 2nd Respondent since the action as framed against the 1st Respondent alone was sufficient for his purpose. The Appellants case in the amended Originating Summons was therefore heard against the 1st Respondent alone as the Defendant. The record of proceedings at the hearing which culminated in the judgment of the trial Court of 4th April, 2007 reflected only the Appellant and the 1st Respondent as parties in the case and no more. In short, the 2nd Respondent was not a party in the action that gave birth to the judgment of the trial Court of 4th April, 2007 which is the subject of the present appeal. It was therefore wrong for the trial Court and the Court below to have approached and treated this case on the basis that the 2nd Respondent was a party in the case at the trial Court which was entitled to have been heard.

In the determination of the question of who were the parties in the action heard on the Amended Originating Summons by the trial Court, it is also relevant to examine the questions asked for determination by the trial Court and the reliefs sought by the Appellant as Plaintiff against INEC as the only Defendant. The question for determination and the reliefs sought as framed are as follows at pages 46 – 47 –

Whether by virtue of Sections 6(6) (b), Section 36, 65, 66 of the 1999 Constitution and Section 32 of the Electoral Act, 2006, the list of indicted persons by EFCC without being found guilty by any Court of law can constitute the basis of disqualification of the Plaintiff or a candidate for the Gombi/Hong Federal Constituency of Adamawa State for the April, 2007 general election, by the Defendant.

1. If the answer to issue 1 is in the negative: Whether the Defendant can insist that any person whose name appear in the said list must be changed or substituted having regard to Section 34(1) (2) of the Electoral Act.

Whereof the Plaintiff seeks the following reliefs:

a. An order setting aside the decision of the Defendant to rely on list of indicted persons which include the Plaintiff as basis of disqualification

b. An order direction the Defendant having first screened and cleared the Plaintiff, to restore the Plaintiff’s name unlawfully and illegally removed by the Defendant.

c. An order of injunction restraining the Defendant, its agents and servants from tempering or doing anything of like nature with the name of the Plaintiff already submitted to the Defendant by his party as the candidate to the Federal House of Representatives for Gombi/Hong Federal Constituency of Adamawa State in the forthcoming April, 2007 general election.

As can be seen from the questions for determination above, all the Appellant wanted to know is whether the 1st Respondent could rely on the list of the alleged indicted persons containing the name of the Appellant, to disqualify him from contesting the election as member of the House of Representatives for Gombi/Hong Federal Constituency of Adamawa State. All the three reliefs sought by the Appellant were against the 1st Respondent namely, to set aside its decision to rely on the EFCC list of indicted persons to disqualify the Appellant, order on the 1st Respondent to restore the Appellant’s name unlawfully and illegally removed by the 1st Respondent, and an injunction restraining the 1st Respondent and its agents from tampering with the name of the Appellant already submitted to the 1st Respondent by his own Political Party the 2nd Respondent to contest the election. Thus, from the questions for determination and the reliefs sought in the action as framed in the Amended Originating Summons heard and determined by the trial Court, the Appellant as the Plaintiff had o quarrel or dispute whatsoever with his Political Party, the 2nd Respondent which forwarded his name to the 1st Respondent that screened and cleared him to contest the election. As no relief was sought directly against the 2nd Respondent which was not a party in the action and as the reliefs granted by the trial Court in its judgment of 4th April, 2007 also did not directly affect the 2nd Respondent coupled with the absence of any evidence on record showing that the 2nd Respondent was no longer in support of the Appellant as its own candidate in the election held on 21st April, 2007 before that election was held, the trial Court and the Court below were clearly in error in regarding the 2nd Respondent as a party in the Appellant’s case. This is because the Amended Originating Summons by law is deemed to have taken effect from the date of filing the first Originating Summons on 21st February, 2007. See Rotimi Mcgregor (1964) NSCC 542 at 552.

The next question for determination is whether or not the 2nd Respondent was right in going to the trial Court to apply for the setting aside of the judgment of 4th April, 2007 in the circumstances of this case. From the motion on notice filed by the 2nd Respondent on 5th June, 2007 at the trial Court asking for the setting aside of the judgment of that Court of the 4th April, 2007, the reliefs sought and the two grounds upon which the application was brought, were as follows:

1) An order extending time within which the Defendant/Applicant may apply to set aside the judgment of the Court dated 4th day of April, 2007

2) An order to Court setting aside the entire proceedings and the judgment of the Court dated 4th day of April, 2007 against the Defendant.

3) Any other order(s) as this Honourable Court may deem fit to make the circumstances.

The two grounds upon which the application was brought are –

a) Failure to serve the 2nd Defendant/Applicant the Originating Process or any Processes in this suit.

b) Breach of the Fundamental rights of fair hearing of the Defendant/Applicant

The records show that at the end of the hearing of this application, the trial Court in its ruling of 20th July, 2007, held that its judgment of 4th April, 2007 was a nullity because it affected the interest of the 2nd Respondent which was not put on notice being a necessary party in the case and that the failure to join the 2nd Respondent in the suit had robbed the trial Court of its jurisdiction. The ruling of the trial Court setting aside its judgment of 4th April, 2007 on the grounds stated by the Court was affirmed on appeal by the Court of Appeal resulting in the present appeal.

The question to be answered now is whether or not the judgment of the trial Court of 4th April, 2007 is a nullity having regard to the circumstances of this case. In the first place the 2nd Respondent which applied to set aside the judgment on the ground that it was a Defendant in the action and that it was not put on notice, is not the correct position from the record of this appeal. The 2nd Respondent was indeed not a party in the case. Not being a party in the action of the Appellant as framed in the Amended Originating Summons, there was no obligation on the part of the trial Court to have put the 2nd Respondent on notice. Consequently, failure to put the 2nd Respondent which was not a Defendant in the action on notice was not fatal to the case of the Appellant at the trial Court to the extent of depriving that Court of its jurisdiction in the case, not to talk of resulting in rendering its decision in the case, a nullity. It was indeed a misconception of the state of the law for the trial Court to have regarded the 2nd Respondent, against which there was no specific relief claimed in the action as a Defendant which ought to have been put on notice. For the same reason, the accusation of the 2nd Respondent that the trial Court denied it its Fundamental Right of fair hearing in an action in which it was not a party, has not basis at all in law.

Learned Counsel to the 2nd Respondent who stated in his brief of argument which was initially unwilling to participate in the Appellant’s action at the trial Court and the appeal at the Court below in an attempt to remain neutral in the dispute between its members on the question of nomination of candidates for the April 21st 2007 election, found itself defending the judgments of the trial Court and the Court below in the present appeal because both judgments were in favour of the 2nd Respondent. That is why the learned Counsel found himself as he explained, agreeing with the Court below that any order made by a Court against a person not a party to a case is a nullity and liable to be set aside upon an application by the person affected. This line of argument seems to agree with the real position of the 2nd Respondent in this case of not being a party to the case but that the judgment affected its interest which gave it the right to apply to the trial Court to have the null judgment of 4th April, 2007 set aside. However, the judgment of the Court below appeared to have gone even further to state that an application by the person affected may not even be necessary before the judgment may be set aside. This is what the Court said in its judgment at page 453 of the record –

“It is unthinkable as postured by the Appellant that the 2nd Respondent, the PDP, that put the name of the Appellant to INEC, the 1st Respondent would not be affected by a judgment and orders concerning that nomination within the 2nd Respondent whose flag would be flown at the election proper. It is for that crucial position that a joinder of 2nd Respondent needs not be applied for nor granted before the judgment without the 2nd Respondent would be set aside”.

With utmost respect, this is not the correct position of the law on the subject where a Court of law gives judgment or order against a person who is not a party in the case. The remedy of such a person lies in availing himself of the provisions of the 1999 Constitution where Section 243(a) and (b) state –

“243. Any right of appeal to the Court of Appeal from the decision of the Federal High Court or a High court conferred by this constitution shall be

a) exercisable in the case of civil proceedings at the instance of a party thereto, or with leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or; subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings at the instance of such other authorities or persons as may be prescribed.

b) Exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”

In the present case, it is not at all in doubt that having regard to the nature of the dispute between the Appellant and the 1st Respondent as contained in the Amended Originating Summons adjudicated upon and determined by the trial Court, the 2nd Respondent being the Political Party that forwarded the name of the Appellant to the 1st Respondent to contest the election before the alleged disqualification and substitution of the Appellant’s name by the 1st Respondent relying on the EFCC list of indicted persons containing the name of the Appellant, indeed qualified as a person having interest in the matter heard and determined by the trial Court in its judgment of 4th April, 2007. As from the date of this judgment, the orders in which were not directly addressed to the 2nd Respondent but specifically beamed at the 1st Respondent which was a party, the 2nd Respondent which was a party to the action, but whose interest is directly in issue, had two options open to it

1) It may stay put and decide to abide by the judgment of the trial Court particularly being responsible in the first place of forwarding the name of Appellant to contest the election as its candidate or,

2) Apply to the same trial Court for leave to appeal to the Court of Appeal within the time prescribed for appealing against the judgment or after the expiration of that time, apply to the Court of Appeal for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal against the judgment as a person having an interest in the matter.

It is apparent from the record of this appeal, particularly the observation of the learned Counsel to the 2nd Respondent in his Respondent’s brief of argument that the 2nd Respondent initially did not want to participate in the case at the trial Court and the Court below, that the 2nd Respondent opted for the first option of staying put by abiding with the judgment of the trial Court. This explains its inaction on the matter until 5th June, 2007 some weeks after the election of 21st April, 2007 to go to Court with the application to set aside the judgment. Whatever, prompted the 2nd Respondent to challenge the judgment of the trial Court of 4th April, 2007 of which it was not a party but a party or a person having interest in the matter, ought to have come properly to join in the case as a party before it could have found the appropriate platform to attack the judgment on appeal which could have yielded the same relief of setting aside of that judgment if the grounds for doing so have been established to justify the Court of Appeal granting the relief:

I may observe at this stage that the misconceived course taken by the 2nd Respondent in this case is similar to the course adopted by the Plaintiffs in the case of Okoye v. Nigerian Construction and Furniture Co. Ltd (1991) 2 NSCC Vol. 22 part 422 also reported in (1991) 6 NWLR (Pt. 199) 501 at 532 where this Court held that failure to join as a party a person who ought to have been joined will render the proceedings a nullity on ground of lack of jurisdiction or competence of the Court. Akpata JSC specifically stated the position as follows:-

“In my view failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, the irregularity may lead to unfairness which may result in setting aside the judgment on appeal. Setting aside a judgment or making an order striking out the action or remitting the action for a retrial in such circumstance that will not be for lack of jurisdiction or the basis of the judgment being a nullity. The trial Court itself is incompetent to review the judgment; more so another Court of co-ordinate jurisdiction.

See also – Laibru Ltd. v. Building & Civil Engineering Contractors (1962) 2 SCNLR 118; Ekpere v. Aforije (1972) 1 All NLR (pt. 1) 220 referred to an applied (pp.530 para. H).

It is quite clear that the whole approach of the 2nd Respondent to the Appellant’s action in which it was not a party resulting in the motion at the trial Court to set aside the judgment and the appeal at the Court of Appeal against the setting aside of the judgment of 4th April, 2007, the 2nd Respondent and unfortunately the two Courts below, laboured under a fundamental misconception of the assumed rights of the 2nd Respondent which regarded itself as a party to the Appellant’s action against the 1st Respondent and as such the 2nd Respondent thought that it was entitled to be put on notice of the case and proceedings thereof claiming that the failure to have done so, should lead to the setting aside of the judgment. The position of the law is well settled that no cause or matter shall be defeated by reason of mis-joinder or non-joinder of parties and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. See Peenock Investment Ltd. v. Hotel Presidential (1982) 12 SC1.

It is also observed that one of the reasons for setting aside the judgment of the trial Court of 4th April, 2007 is that it is a default judgment. It was not only the 2nd Respondent which filed its application to set aside the judgment that regarded it as a default judgment under Order 38 Rule 9 of the Federal High Court (Civil Procedure) Rules, 2000, but that both the trial Court and the Court of Appeal also proceeded on the basis that the judgment is a default judgment. A default judgment is one given in default of appearance or pleadings against a Defendant or a Plaintiff in a cross-action whose names appear as such Defendant or Plaintiff in the record of the trial Court.In the instant case where the Appellant and the 1st Respondent who were the only parties as Plaintiff and Defendant in the action were present or duly represented by their learned Counsel before the trial Court throughout the proceedings up to the point of judgment in question, that judgment cannot be described as a default judgment. It is clearly a judgment on the merit which in law, can only be set aside on appeal. See Alapa v. Sanni (1967) NMLR 397. The Courts below are therefore in error in regarding and treating the judgment of the trial Court of 4th April, 2007 as a default judgment capable of being set aside by the trial Court on the application of the party not heard at the hearing.

Having regard to the circumstances of this case, the appropriate remedy for the 2nd Respondent if it wants to still challenge the candidature of the Appellant in the 21st April, 2007 election, is for it to avail itself of the remedy under section 243(a) and (b) of the 1999 Constitution as a person having interest in the matter. I may wish to observe at this stage that the cases relied upon by the Respondents is in this appeal in support of their submissions that the judgment of the trial Court of 4th April, 2007 was a nullity, are all cases in which persons who were parties to an action and who were therefore entitled to service of the initiating process and other processes or notice of hearing had not been served at all. The cases have no relevance to the present case in which the 2nd Respondent which was not a party in the case was complaining of not being put on notice. In the same vain, the case of Adenuga v. Odumeru (2002) 8 NWLR (pt. 821) 163 also relied up on by the Respondents where this Court decided that a Court of law has no power to make an order against the interest of persons who were not parties before it as such an order is not in law binding on such parties, is also not relevant to the present case as no specific order was made against the interests of the 2nd Respondent in the judgment of the trial Court of 4th April, 2007 as no interest of the 2nd Respondent was made known as at the date of the judgment regarding the nomination of the Appellant to contest the election as the candidate of the 2nd Respondent.

On the whole, taking into consideration that the main ground upon which the 2nd Respondent challenged the judgment of 4th April, 2007 as being a nullity was the failure of the trial Court to put it on notice for the hearing of the matter, as it has been shown quite clearly from the record of this appeal that the 2nd Respondent was infact not a party in the case, the ground for regarding the judgment of the trial Court as being a nullity has been completely swept away thereby justifying the Appellant’s appeal being allowed. The appeal has merit and it is therefore allowed. The Ruling of the trial Court of 20th July, 2007 setting aside the judgment of the trial Court of 4th April, 2007 which decision was affirmed on appeal by the judgment of the Court of Appeal of 17th December, 2008 are hereby set aside. In place of the Ruling and Judgment of the Courts below now set aside there shall be entered an order striking out the 2nd Respondent’s motion filed at the trial Court on 5th June, 2007, asking the trial Court to set aside its judgment of 4th April, 2007, as that Court has no jurisdiction to do so.

I do not regard it as appropriate having regard to the circumstances of this case to make any order on costs.

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SC.330/2008

Madam Abusatu Agbogunleri V John Depo & 3 Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

I .T. MUHAMMAD, J.S.C.

From the pleaded facts of her statement of claim, the plaintiff, one Madam Abusatu Agbogunleri was the head of Agbogunleri family of Agege. She instituted the suit giving rise to this appeal before the Lagos High Court of Justice, on her own behalf and on behalf of the Agbogunleri family making the following claim against the defendants:

1) A declaration that Agbogunleri family is the person entitled to statutory right of occupancy in respect of the land situate, lying and being at No. 17, Old Abeokuta Road, Isale Oja, Agege.

2) Perpetual Injunction Restraining the Defendants jointly and severally from committing further act of trespass on the Plaintiff land.

3) Special and general damages as follows:-

i. Seven thousand 6 x 6 x 18 vibrated cement blocks at N25 = 175,000.00

ii. Six thousand 9×9 x18 vibrated cement blocks at N35 = 210,000.00

iii. Three hundred of cement at N450 per bag = 135,000.00

iv. Three tones of iron rod at N15,000 by tones = 135,000.00

v. Forty lorry loads of graves at N3,000 per load = 120,000.00

vi. Thirty lorry of loads of sharp sand at N1,500 = 45,000.00

vii. Filling sand, twenty lorries load at N800 per load = 16,000.00

viii. One hundred boundless roofing sheets = 200,000.00

ix. Wiring and other electrical materials = 80,000.00

TOTAL = 916,000.00

GRAND DAMAGES = 500,000.00

GRAND TOTAL = 1,416,000.00

Save and except where the defendants specifically admitted, they denied in their statement of defence each and every allegation of facts made in the plaintiff’s statement of claim. The 4th defendant indorsed a counterclaim against the plaintiff as follows:

1. General damages for trespass on the 4th defendant’s land in January 1996, N500,000.00
2. Special damages for vandalizing and demolishing St. John’s Church (Mud) in June, 1996,

N200,000.00

3. For the sum paid to Stevak Enterprises for construction work in advance per receipt

N1,500,000.00

4. The 4th defendant claims the sum of N3,500,000.00 as special above and N500,OOO.00 as general damages.

Total N4,000,000.00 (Four Million Naira).

The plaintiff sought for and was granted extension of time by the trial court to file his reply to the defendant’s statement of defence and the counter-claim set out in it. In that reply plaintiff set out her defence to the counter-claim.

At the trial the plaintiff called three witnesses in support of the plaintiff’s claim. The defendants called six witnesses. In her judgment the learned trial judge Kekere-Ekun, J. dismissed the claims of the plaintiff. The counter-claim of the 4th defendant succeeded and the 4th defendant was awarded the sum of N1,510,000.00 as special damages. Dissatisfied with that decision, the plaintiff appealed to the Court of Appeal, Lagos Division (court below).

In the court below, the appeal was partially allowed. Judgment of the trial court dismissing the plaintiff’s claim was affirmed. The award of N1,510,000.00 as special damages was set aside. N10,000.00 was awarded as damages.

Dissatisfied further, the plaintiff appealed to this court on two grounds of appeal set out in the Notice of Appeal. briefs of arguments were settled by the parties.

In her brief of argument which was adopted by her learned counsel, the plaintiff, now appellant herein, formulated a sole issue for the determination of this court. It reads as follows:

“Whether the Court of Appeal was right in upholding the finding that the appellants are estopped by judgment in 10/199/81 (exhibit DIB at the trial).”

Learned counsel for the defendants but now respondents, initially formulated four issues for determination. On the hearing date however, he sought for and was granted leave to abandon three of the issues which, together with arguments proferred in respect thereof, were struck out accordingly. The subsisting issue for the respondents reads as follows:

“Whether the Court of Appeal was right in upholding the findings of the Court of 1st instance in respect of an earlier SUIT No. 1D/199/81 (Exhibited as 01 at the trial) having regard to the fact that the matter had been adjudicated upon and determined by a Court of competent jurisdiction and as such the Appellant is estopped by the principle of estoppel per rem judicatem from re-litigating on same.”

Some of the points raised by learned counsel for the respondents in respect of which a reply brief was filed by learned counsel for the appellant were conceded by the respondents. The respondents accordingly had such points struck out ego issues 1, 3 and 4 of their brief of argument.

In his submission on the sole issue, learned counsel for the appellant devoted some time in defining and expatiating on the doctrine of estoppel per res judicata. He submitted that both the Court of Appeal as well as the trial court were wrong in holding that the parties were the same on the footing that the parties in the present suit are privies of the parties in the earlier suit. He argued further that as a general rule, no person is to be adversely affected by a Judgment in an action in which he was not a party because of the injustice in deciding a matter against him in his absence unless he is a privy to a party in which he is equally bound as the parties and is estoppel per res judicata or he has so acted to preclude himself from challenging the Judgment in which case he is estopped by conduct. Learned counsel contended that case of the respondent is not that the appellant has conducted herself in any manner that would warrant the coming into play of the doctrine of estoppel by conduct. There is no allegation that appellant was aware of the prosecution of suit 10/199/81 or that she stood by. The respondents case is that the appellant here is the privy of the plaintiff in ID/199/81.

Learned counsel for the appellant stated the classification of privies in general. He submitted that an admission by a predecessor in title binds his successors provided it affects the title and is made during the predecessors interest. The reverse, he argued, cannot be the position. He put his arguments in other words, that an admission by a successor in respect of the title cannot bind his predecessor for the simple reason that the interest of the predecessor must have become spent at the time of such admission by the successor. There is no longer any identity of interest. In the same manner the binding effect of the doctrine of estoppel in relation to privies operates down stream. Judgment against an ancestor in relation to the title will operate to bind his heir, not the other way round.

Learned counsel for the appellant stated further that a privy is a person whose title is derived from and who claims through a party. He cited and relied on the case of Arabio v. Doku Kanga (1932) 1 WACA 253 at 254. Learned counsel went on to explain further what he means. He stated that a judgment against a testator will bind his heir. A judgment against an heir cannot bind a testator. The simple reason being that the testator would have passed out of the scene. Similarly, a judgment against a vendor affecting the property will bind the purchaser. It cannot be the other way round because the vendor would have ceased to have any interest and there would be no identity between the purchaser and the vendor. Cases of Akande v. Alaga (1988) 4 NWLR (Pt.86) 1 SC; Ebuaku v. Amola (1988) 2 NWLR (Pt.75) 128 at 130; were cited in support of that submission.

It was contended for the appellant that the appellant did not derive her title from the party in suit 10/199/81 as the title of Agbogunleri family has long been vested before the institution of suit 10/199/81 and judgment on it cannot operate as an estoppel against the Agbogunleri family. Another reason why that judgment cannot operate as estoppel is that although the land in dispute in the earlier case is the same land in dispute, the issue was completely different. The matter which came directly for decision in the earlier case was as to the ownership between Mr. Moris Obe and the Catholic Church. That issue is quite different from the issue of ownership between Agbogunleri family and the Catholic Church. Mr. Moris Obe could not have been fighting the cause of the plaintiff in this case when he was making a claim for himself. Consequently, the plaintiff could not be accused of allowing someone to fight their battle for them. The direct issue decided in suit 10/199/81 was the ownership between Moris Obe and the Catholic Church mission. Thus the 2nd condition for sustaining estoppel per res judicata could not be fulfilled.

Another condition not fulfilled by the respondents according to respondent’s counsel was that the judgment relied upon must be a final judgment of a competent court. The onus of establishing that rests on the party seeking to rely on the judgment as estoppel. Learned counsel cited the case of Oye v. Olubode & Ors (1974) NSCC (VoI.9) 409 at 413.

Learned counsel argued that as the judgment sought to be relied upon to found estoppel per re – judicata was appealed against there was no credible evidence as to the outcome of the appeal and evidence shows the appeal is still pending. The Judgment, he submitted, could not be said to have decided the issue to finality and the judgment is incapable of being used to estop the plaintiff. This court is finally urged to allow this appeal and give judgment in favour of the plaintiff.

In his submissions, learned counsel for the respondents stated that the appellant has correctly stated the position that the plaintiff in suit No. 10/199/81 are the same as the present plaintiff i.e. appellant before this court and by virtue of the principle of estoppel per rem judicata cannot relitigate the issues afresh. Appellant also correctly identified the situation of the appellant as one of privity by successive interest. The findings of the court in suit No. 10/199/81 bind any successive claim in respect of the same subject matter. Obe the plaintiff in the said suit No. 10/199/81 claimed that he derived his title from the Agbogunleri family, whose claim failed against that of the Church who had acquired their interest from the same family for over 20 years before the (appellant) came on the scene. Thus, judgment against a testator operates downstream as in the earlier judgment in suit No 10/199/81 operating as against the fresh case in respect of the same land by the same parties. Contended further for the respondents is that the parties in the suits are the same, the land is the same and the judgment relied upon i.e. suit No.. 10/199/81 was a final judgment of a competent court i.e. the High Court of Ikeja, Lagos State. Learned counsel cited and relied on several authorities including: Adebayo v. Babalola (1995) 7 NWLR (Pt.408) 383 at 390; Kparsanagi v. Shabako (1993) 5 NWLR (Pt.291) 67 at 70; Chiakpa & Anor v. Nduka & ors’ (2001) 11SCM, 16 at 18. Rossek v. A.C.B & 4 ors (1993) 8 NWLR (pi 312) 382. Learned counsel for the respondents submitted that a privy is a person whose title is derived from and who claims through a party. He went on to categorize privies. He finally urges this court to dismiss the appeal and affirm the concurrent decisions of the two courts below.

Permit me my Lords, to set out the background facts of this appeal, for the sake of clarity, before I embark on any meaningful discussion of the issues raised and argued above by the parties to this appeal.

In her statement of claim, the plaintiff averred that she is the head of Agbogunleri family and institutes this suit and prosecutes it for and on behalf of the Agbogunleri family of Isale Oja, Agege, Lagos state. It was also averred that the land which is the subject matter of the suit is situate, lying and being at 17 old Abeokuta motor Road Isale Oja Agege and formed part of a vast parcel of land owned by Agbogunleri family. It was further averred by the appellant that the land originally belonged to the Ewu family which exercised various rights of ownership thereon including the cultivation of cash crops, gathering of fruits and the cultivation of cocoa and kolanut trees. The Ewu family was said to have sold the piece or parcel of land in dispute to Fadunsi Agbogunleri (The founder of Agbogunleri family and plaintiff’s grand father). He had been In possession of the said parcel of land from 1906 until his death in 1939. Upon the death of Fadunsi Agbogunleri, the land devolved upon his children by native law and custom. Paragraphs 14, 15 and 17 traced the succession to the land by subsequent generations of the Agbogunleri family up to the present plaintiff/appellant.

It was averred by the appellant that one Mr. Obe rented the land in dispute and he used to pay rent regularly to Agbogunleri family and that he was issued with receipts. Averred further is that Mr Obe erected a mud house on the land which he later converted to a church. He continued to pay his rent until the church vacated the land. After the church vacated, Mr Obe began to default in payment of rent that led to the Agbogunleri family to recover power of the land.

The appellant averred as per paragraphs 26 and 27 of the statement of claim that the Agbogunleri family erected a three bedroom structure on the land as family house. Early in 1996, the defendants/respondents began trespassing on the land and destroyed structures which had been put there by the Agbogunleri family.

The defendants joined issues with the plaintiff on most of the averments in the statement of defence. In paragraphs 4 and 5 of the statement of defence, the defendants admitted that the land in dispute originally belonged to Agbogunleri family. It was averred by the defendants that an area measuring 200ft x 200ft was sold to the authority of the Roman Catholic Church in 1936 vide receipt dated 4th of August, 1936 which land became vested by succession (to ecclesiastical) in the 4th defendant since 1934. The 4th defendants predecessor in title had caused the area of the land purchased to be occupied by his church with a mud church built thereon in 1936 and surveyed in 1935. The defendants averred that they were not aware of suit AB/224/56 pleaded by the plaintiffs and that until these proceedings the Agbogunleri family had never challenged nor instituted any legal proceedings against the defendants. The defendants pleaded long possession, acquiescence, standing by and laches. They pleaded also that the land was not let to Mr. Obe by the plaintiff’s predecessor in title but that she purpoted to sell it to him as per the evidence of Mr. Obe in suit ID/199/81 against the 4th defendant and others. That judgment in the suit was entered in favour of the 4th defendant against Mr. Obe and contended that Agbogunleri and Mr. Obe’s vendor are estopped from denying the judgment in that suit. Any land recovered from Mr. Obe by Agbogunleri family cannot be the land in dispute. Defendants/respondents ..averred that some vandals had demolished the mud church and further that after the foundation stone of the plot had been laid, the church discovered that the plaintiff and her thugs had disturbed the workers on the site. That was why the defendants in their counter claim claimed special damages for the vandalisation and demolition of St John’s Church In 1997 and for the amount paid to Contractor for Construction work In advance. The defendants averred further that the plaintiff had no claim or interest on the land in dispute having been divested of all claims and interest since 1936 when the 4th defendant and his predecessors in office and title became the owners thereof by purchase from the plaintiff’s family or in the alternative, by long possession, laches, standing by and acquiescence.

The plaintiff replied to some of the issues raised in the statement of Defence and the counter-claim.

In consideration of the sole issue formulated for the determination of this appeal which is on estoppel by Judgment, it is pertinent for me to state that estoppel, generally, is that doctrine where a party is not allowed to say that a certain statement of fact is untrue, whether in reality it is true or not It is therefore a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability.

Estoppel can be created In several ways. The Common law recognizes three kinds:

1) Estoppel by record or quasi by record

2) Estoppel by deed and

3) Estoppel in pais

The one that concerns us in this appeal is estoppel by record or quasi by record. It is more popularly known as estoppel per rem judicatam. It presupposes that a final decision of a court of competent jurisdiction once pronounced between the parties cannot be contradicted by any of such parties in any subsequent litigation between them respecting the same subject matter.

It arises in the following situations:

1) where an issue of fact has been judicially determined in a final manner between the parties by a court/tribunal having Jurisdiction, concurrent or exclusive, in the matter and the same issue comes directly in question in subsequent proceedings between the same parties. (cause of action estoppel).

2) where the first determination was by a court having exclusive jurisdiction, and the same issue comes incidentally in question In subsequent proceedings between same parties (issue estoppel)

3) in some cases where an issue of fact affecting the status of a person or thing has been necessarily determined in a final manner as a substantive part of a judgment in rem of a court/tribunal having jurisdiction to determine that status and the same issue comes directly in question in subsequent proceedings between any parties whatever.(see paragraphs 952 and 953 of Halbury’s Laws of England Vol. 16, Fourth edition). There is a finding by the learned trial judge that the parties joined issue on whether the Agbogunleri family is bound by the judgment of Desalu, J in suit No. 10/199/81 as privies therein, i.e. whether the doctrine of estoppel per rem judicatam applies. At page 223 of the record, the learned trial judge held as follows:

“I therefore hold that the plaintiff herein is bound by the judgment of Desalu Judge in suit 10/199/81 and is estopped from relitigating the same issue which was conclusively determined in that suit.”

After quoting extensively the holding of the learned trial judge on the reliance placed by the defendants on the judgment in suit No. 10/199/81, as estoppel per res judicata in their favour against the plaintiff, the lower court was of the view that the learned trial judge was right in her conclusion and the plaintiff’s case ought to have failed as it did.

Is the lower court justified in affirming the decision of the trial court especially when both courts below found the plea of res judicata raised by the defendants/respondents valid

To answer this question, there is need for me to go through the full scope of estoppel by record. Where the earlier decision being relied upon by a party to disable the other party from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability, such as in the present appeal, the judgment delivered earlier by Desalu, J; then that decision can create estoppel by record. Such judgments are known as “judgments in personam or inter parties or res judicata. They are those which determine the rights of parties as between one another to or in the subject matter in dispute, whether it be corporeal property of any kind whatever or a liquidated or unliquidated demand, but which do not affect the status of either persons, or things, or make any disposition of property or declare or determine any interest in it except as between the parties in litigation. They include all judgments which are not judgments in REM.

In order to succeed on the plea of estoppel by judgment, it is necessary for the defendant to show:-

1). the subject matter in dispute is the same namely that everything that is in controversy in the second suit as the foundation of the claim for relief was also in controversy or open to controversy in the first suit.

2). it came in question before a court of competent jurisdiction. See Cardoso v. Daniel (1986) 3 NWLR (Pt.20) 1; and

3). the result was conclusive so as to bind every other court. See: Cardoso v. Daniel (supra)

The judgment which was pleaded by the respondents as res judicata against the claim of the appellant is the judgment delivered by Desalu, J. (late). It came about as a result of SUIT NO. 10/199/81. The parties therein were:

Morris Akinola Obe …………………………………….Plaintiff

AND

Parish Council St. John’s……………………………….Defendants

Catholic Church Agege

Archbishop Anthony Olubunmi Okogie

Rev, L. R. J. Hannon S. M. A.

This was in suit No. 10/199/81 which was pleaded and tendered in evidence.

In the suit giving rise to this appeal the parties are:

Madam Abusatu Agbogunleri…………………………….Plaintiff

AND

Mr. John Depo

Mr. Musa Polycarp

Rev. Fr. John Kilbey and

Most Rev. Dr. Anthony Olubunmi Okogie (joined as a defendant by trial court’s order of 20/6/1997).

The various positions or status of the parties mentioned in suit No. 10/199/81 are that the plaintiff, Mr. Obe, instituted the action against the defendants therein seeking declaration that he was the person entitled to the statutory right of occupancy in respect of the land in dispute which was situate, lying and being at Gbogunleri quarters of Agege township along Agege motor road, sworn on plan No. L. & L/C 2669 as Church (mud) edged red, also known as 17 Abeokuta motor road, Agege, by virtue of Deed of Conveyance dated 9/9/65 between himself and Madam Adenrele Gbogunleri, the grandmother of the plaintiff in the second suit. It was in evidence before the first trial court that the land in dispute was purchased by Fadunsi Gbogunleri, (ancestor to plaintiff in the second suit) and that the Gbogunleri family had remained in an undisturbed possession from 1906 till 1996 when the defendants allegedly trespassed on the land. It was also in evidence that succeeding generation of the Agbogunleri family inherited the land and the plaintiff in the second suit is presently the head of the family.

The plaintiff in the first suit claimed title through Aderenle Gbogunleri, the grandmother of the plaintiff in the second suit. The learned trial judge in the second suit found the plaintiff in that suit to be a privy of the plaintiff in the first suit (page 222 of the record) Thus, the learned trial judge concluded in the following words:

“I therefore hold that the parties in the two suit (sic) are the same.”

In both suits Most Rev. Dr. Anthony Olubunmi Okogie was sued, according to the finding of the trial court, in his capacity as the Archbishop of the Roman Catholic Archdiocese of Lagos and as the sole trustee in whom all the lands of the Archdiocese are vested by succession and acquisition. He was joined as a defendant in the second suit by order of court. the other defendants in the first and the second suits were sued as members of St. John’s Catholic Church, Agege. It is because of the contractual relationship that was existing between the plaintiff’s predecessors in title and the defendants that is why the learned trial judge found the appellant to be in privity of the transaction and bound by the judgment in the first suit.

But, who is a privy In Arabio v. Kanga (1932) 1 WACA 253 at p. 254, a privy was defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property.

There are said to be three kinds of privies:

a) privies in blood, such as testator and heir

b) privies in law such as testator and executor or In the case of intestate succession, a successor and administrator.

c) privies in estate, such as vendor and purchasers; lessor and lessee etc. see Nwosu v. Udeaja (1990) 1 NWLR (Pt.125) 188

In Exh. DIB, i.e. the judgment of Desalu, J; which was pleaded and tendered in evidence before the trial court, the learned trial judge in evaluating the evidence before him, made the following findings:-

“The plaintiff admits the land in dispute originally belonged to Gbogunleri,, the fore bear of the vendor of the plaintiff Madam Gbogunleri Adenrele.

The case of the Defendant on the other hand is that the Roman Catholic Mission bought the land in dispute as per the purchase, receipt, EXHIBIT “K” bearing date the 4th day of August, 1936.

The 2nd Defendant contended that the Roman Catholic Church was put in possession of the land

purchased which includes the land in dispute.

It was contended the land so purchased measured 200 feet by 200 feet and that the land in dispute

forms a portion to the North Western portion thereof, see the compilation plan, EXHIBIT “L”.

The 2nd Defendant claims to have bought the land from Gbogunleri, the father of Madam Gbogunleri Adenrele the vendor of the plaintiff. In support, EXHIBIT “K” the purchase receipt was tendered.

No evidence was adduced to invalidate the purchase receipt exhibit “K”. I prefer and believe the testimony of the witnesses for the defence P. W1 and P. W2 that the Roman Catholic Church bought a parcel of land from Gbogunleri the father of Madam Gbogunleri Adenrele

!/IIbel” about the year 1936 I believe that the Roman Catholic Church was put in possession of the land so purchased and exercised diverse acts of ownership thereon from about 1935 without let or hindrance from anyone, I am satisfied that one of the cogent acts of ownership and possession exercised on the land by the Roman Catholic Church, was the erection on the land of St. John’s

Catholic Church, Agege about 1935 exhibit “B”, the deed of conveyance of the plaintiff is dated 9th September, 1965.

There was no evidence that the plaintiff was ever put into possession of the land in dispute by his vendor in 1965 or at any time thereafter.

I am satisfied upon the evidence In this case that Gbogunleri the father of Madam Gbogunleri Adenrele, had sold a parcel of land measuring about 200 feet by 200 feet to the Roman Catholic Church, and that the land in dispute on which the mud Church of St. John’s Catholic Church, Agege was erected forms a small part.

I am satisfied that Gbogunleri had therefore in 1936 divested himself and the entire Gbogunleri familv, of any further proprietary or other interest in the said land. It follows therefore and I hold that the interests of the Gbogunleri family in the land in dispute having been divested in the land in dispute after 1936. It follows also, that some 30 years thereafter, Madam Gbogunleri Adenrele would have no interest in the land in dispute to convey to the plaintiff herein. That being so, I hold that no interest in the land in dispute passed to the plaintiff by virtue of the deed of conveyance, exhibit “B” as nemo dat quod non habet. ” (italics supplied for emphasis)

The learned trial judge in the second suit (now under appeal) based her decision on the privity established between the appellant and his predecessors in the title to hold that she was bound by the decision of Desalu, J. so, the case of the appellant here is privity by successive interest as Mr. Obe, who was the plaintiff in the first suit claimed that he derived his title from the Agbogunleri family, whose claim against the church which acquired its interest from the same family for over 20 years before he came on the scene, failed. Therefore, judgment against a testator operates downstream as the first suit ID/199/81, to operate against any fresh claim in respect of the same hand or property by the same parties. This has been the position of the law for quite sometime. Thus, the general principle of the law relating to privy in title is that in transactions relating to land, any person who derives title from or takes an assignment from, or is let into possession by, or otherwise claims or “comes in” under the actual representor, is bound by the same representation, and consequent estoppel, as that which binds such actual representator. See: Tylor v. Needham (1810) 2 Taunt. 279; Spenser, Bower and Turner in their book: Estoppel by representation, third edition, Butterworth, London, 1977, pages 123 – 124.

There is no way I can brush aside the submission of learned counsel for the respondents and the conclusion reached by the learned trial judge, affirmed by the lower court on the issue of parties, that the parties, on the principle of privity of transactions are from all intents and purposes, the same in both suits. Each of the parties from both sides must bear the consequence of his/its predecessor in title and be bound by it. See: Odua v. Nweze (1934) 2 WACA; 98; Shonekan v. Smith (1964) 1 NLR; 168; Mohafe v. Esekhomo (1993) 8 NWLR (Pt.309) 58. The second requirement in sustaining a plea of estoppel by judgment is that the subject matter in dispute must be the same in the previous suit and the suit in litigation at the time the plea was raised. In the appeal on hand, learned trial judge found from the pleadings of the parties that there was no dispute that the land in dispute was the one situate at 17, Old Abeokuta Motor Road, Isale Oja, Agege (page 192 of the record). She also found and held as follows:

“I am satisfied that the subject matter in both suits are (sic) the same that is the land situate lying and being at No. 17 Old Abeokuta Motor Road, Isale Oja, Agege.”

The lower court agreed with that finding. I have no reason to tamper with the concurrent findings of the two lower courts. I affirm same that the said land is the same land in litigation in both suits, i.e. the land situate, lying and being at No 17 Old Abeokuta Motor Road, Isale Oja, Agege. It was this land that was in real controversy. It has same identity in both suits.

See: Chikwe v. Obiora (1960) SC NLR 566; Ekpoke v. Usilo (1978) 6 – 7 SC 187.

The third requirement for the plea of estoppel by judgment to be sustained is that same issue must have been adjudicated by a court of competent jurisdiction.

A court or tribunal is said to be of competent jurisdiction if it is established by law as against a Kangaroo’s court. it is presided by a person competent in all respect and has the authority to adjudicate disputes in that court. It has for long been settled that a court is said to be competent when: (i) it is properly constituted with respect to the number and qualifications of its members and none of the members is disqualified for any reason, (2) the subject matter of the dispute is within its competence and jurisdiction, (3) the action is initiated by due process of law and not in abuse of the court’s process and,-(4) any condition precedent to the exercise of its jurisdiction has been fulfilled. See: Madukolu v. Nkemdilim (1962) All NLR (Pt.2) 581; Nalsa and Team Ass. v. NNPC (1996) 3 NWLR (Pt439) 621. The first High Court, i.e. the one presided by Desalu, J. came about by constitutional provisions. So also the appointment of Desalu as it’s Judge. Thus, whatever decision is handed by that court is a decision given by a court of competent jurisdiction and remains binding on parties to it The decision in suit 10/199/81 of 3rd June, 1988 must remain binding, on parties to it until set aside by a higher court. I therefore, affirm that the decision in suit 10/199/81 binds the present appellant as he was privy or deemed to be privy to it I say no more on this condition.

The last condition for the application of estoppel by judgment is the conclusive nature of the judgment I readily find answer to that from the trial court’s judgment. The learned trial judge held: “I therefore hold that the plaintiff herein is bound by the judgment of Desalu, judge in suit 10/199/81 and is estopped from litigating the same issue which was conclusively determined in that suit” (italics for emphasis)

The court below affirmed this decision. I too affirm the decision and would not venture to enter into academic rigmarole.

Finally, I find no merit in this appeal and I hereby dismiss same. I affirm the lower court’s decision. The respondents. are entitled to N10,000.00 costs from the appellant.

---

SC.234/2003

Alhaji Atiku Abubakar, G.c.o.n & 2 Ors V Alhaji Umaru Musa Yar’adua & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, JSC

This appeal was argued on Tuesday, 22nd January, 2008 and it was adjourned to today, Friday, 25th January, 2008 for judgment. This was as a result of the urgency involved in the appeal. The parties in this appeal are scheduled to adopt their addresses on Monday, 28th January, 2008 and the outcome of the appeal is very likely to have an impact on the proceedings on 28th January, 2008. In the circumstances, we had to expedite this judgment; not easy, though.

This is a consolidated appeal. Two interlocutory appeals are consolidated. One is against the Ruling of the Court of Appeal refusing leave to the petitioners/appellants to file interrogatories against Professor Maurice Maduakolam Iwu, the 5th respondent, and seek further and better particulars against Alhaji Umaru Musa Yar’Adua and Dr. Goodluck Jonathan, the 1st and 2nd respondents, respectively. The other is against the Ruling of the Court of Appeal granting extension of time to the 4th to 808th respondents to file 213 additional witnesses’ statements on oath. The interlocutory appeals emanate or emerge from the Presidential Election Petition filed by the appellants: Alhaji Atiku Abubakar, Senator Ben Obi and the Action Congress. All the parties to the Presidential Election are involved in this interlocutory appeal.

In the Ruling on the interrogatories, the Court of Appeal said at pages 720 and 721 of Record (Volume E2):

“I have listened to the learned senior counsel on all sides and I thank them for their industry. I am of the view that the answers being required by the interrogatories and particulars sought for in this application can easily be ascertained from witnesses during the hearing of the petition. In an election matter, anything that will impede speedy trial must be avoided. In the circumstances, I refuse the application and it is hereby dismissed.”

In the Ruling to file 213 additional witnesses’ statements on oath, the Court of Appeal said at page 723 of the Record (Volume E2):

“The learned senior counsel for the petitioners/ respondents opposed the motion on the grounds of incompetence of the relief and the failure of the applicants to exhibit the statements on oath of the witnesses in the motion papers.

I have given a very serious thought to the submissions of counsel on all sides and it is clear that the motion paper has some lapses which counsel for the applicants should have corrected before filing the application. For example, what the relief is seeking is actually not amendment of the petition but leave to call more witnesses with their statements on oath.

In a presidential election petition of this magnitude, it is in the interest of justice that parties are given full opportunity to ventilate their cases without due regard to technicalities. Since the list of witnesses and their statements on oath were all filed in the registry of this court on the 17th of August, 2007, they are properly before the court and accordingly I grant leave to the applicants to call additional witnesses whose statements on oath were duly filed on the 17th of August, 2007 and they are deemed properly filed and served today.”

Dissatisfied, the appellants have come to the Supreme Court. Briefs were filed and duly exchanged. The appellants formulated the following two issues for determination:

“2.1Whether the petitioners/Appellants’ motion for leave to administer interrogatories on 5th respondent and further and better particulars from 1st and 2nd respondents were rightly refused by the lower court in the light of the decision of this court cited but ignored in the Ruling? (Grounds 1, 2, 3 and 4) hereinafter referred to as Appeal No. 1.

2.2 Whether the lower court acted without jurisdiction when it granted 4th-808th respondents leave to call additional witnesses notwithstanding that no such prayer was canvassed by the 4th-808th respondents before their Lordships; and the time mandatorily prescribed for such an application was not sought. (Grounds 1, 2 and 3 of the Notice of Appeal) hereinafter referred to as Appeal No. 2.”

The 1st and 2nd respondents also formulated two issues:

“1. Whether the lower court was right in refusing the application for interrogatories and further and better particulars.

2. Whether the lower court was right in granting 4th-808th respondents leave to call additional witnesses for their defence.”

So to the 4th to 808th respondents. The issues read:

“(a) Whether appeal lies as of right or at all from an interlocutory decision of the Court of Appeal made in the course of hearing a presidential election petition and if not whether this Honourable Court can entertain this appeal, filed without leave, either of the Court of Appeal or the Supreme Court.

(b) Whether this appeal has become academic or hypothetical having been rendered nugatory or futile by the proceedings in the court below which have since reached address stage and may soon be adjourned for judgment with the full participation of the Appellants who have since closed their case?”

Learned counsel for the appellants, Professor A. B. Kasunmu, SAN, submitted that the Court of Appeal was wrong in refusing the motion of the appellants for leave to administer interrogatories on Professor Iwu and further and better particulars from Alhaji Umaru Yar’Adua and Dr. Goodluck Jonathan. He said that the court did not give any reason for the decision. He contended that the order the court made is totally at variance with the long established principles which guide the grant of leave to administer interrogatories, or the grant or refusal of further and better particulars.

Learned Senior Advocate pointed out that Professor Iwu, who was sought to be interrogated, did not challenge the facts in support of the application and so the Court of Appeal made no finding against the facts in support of the affidavit. On the undisputed facts of the application, all that was left for the Court of Appeal to do was to apply the applicable law, learned Senior Advocate submitted. He relied on Famuyide v. R. C. Irving and Co. Ltd. (1992) 7 NWLR (Pt. 256) 639 and paragraphs 4, 5, 6, 7 and 8 of the affidavit in support of the application to administer interrogatories. He also relied on the interrogatories attached as Exhibit A to the application at pages 618 to 622 of the Record (Volume E2) and Exhibit B to the application at pages 623 to 628 of the Record (Volume E2).

Learned Senior Advocate submitted that the refusal of interrogatories by the Court of Appeal is irreconcilably against the spirit and intendment of the Election Tribunal and Court Practice Directions No. 1 of 2007 and the Federal High Court (Civil Procedure) Rules 2000 with regards to matters for disposal at the pre-trial of the matter. He cited paragraph 3(7)(f) of the Practice Directions (as amended). He said that it was a serious misdirection in law for the Court of Appeal to have ruled that the facts to be interrogated can … “easily be ascertained from witnesses during the hearing of the petition.” Counsel pointed out that as Professor Iwu was not a listed witness to be called at the trial, the Court of Appeal was wrong in holding that the facts can easily be ascertained from witnesses during the hearing of the petition. Citing Afribank (Nig) Plc v. Akwara (2006) 5 NWLR (Pt. 974) 655, (2006) 1 SCM 17 learned Senior Advocate submitted that the Practice Directions have the full force of law. He also relied on AIC Ltd, v. NNPC (2005) 1 NWLR (Pt. 937) 563 (2005) 6 SCM 1 and Famuyide v. Irvinq and Co. Ltd, (supra). Learned Senior Advocate submitted that the Court of Appeal did not direct itself to the relevant law or facts and consequently reached a decision which prejudiced the justice of the case. He cited Umoru v. Zibiri (2003) 11 NWLR (Pt. 832) 647 at 658, (2003) 10 SCM 137 and Ogolo v. Ogolo (2003) 18 NWLR (Pt. 852) 494 at 521, (2003) 12 SCM 229.

On the further and better particulars, learned Senior Advocate contended that the peremptoriness and misdirection which affected the Ruling of the Court of Appeal on interrogatories also apply with equal force to the court’s refusal to order 1st and 2nd respondents to supply the appellants with further and better particulars. He cited paragraph 17 of the 1st Schedule to the Electoral Act of 2006 and the case of WAB Limited v. Savannah Ventures Ltd. (2002) 10 NWLR (Pt. 775) 401 at 433, (2002) 10 SCM 159

On Issue No. 2, learned Senior Advocate submitted that the application for leave for the 4th to 808th respondents to amend their Reply to the Petition by filing additional list of witnesses and witnesses statements on Oath is grossly incompetent and incurably bad. He argued that the substance of the application is not an amendment of the Reply, rather, it is an attempt by the respondents to surreptitiously bring in statements that should have been filed along with their Reply, but which they failed to do. He argued further that the motion paper was faulty.

Learned Senior Advocate submitted that the Court of Appeal having rightly found that the application was misconceived, and that the respondents defiantly refused to take hint and apply for appropriate remedy, it was a serious misdirection for the court to have proceeded to make out a case for 4th to 808th respondents and grant them reliefs which they ought to seek but elected not to pray for; and which they did not make out on merit or at all. He condemned the injustice done to the appellants. He cited Nnamani v. Nnaji (1999) 7 NWLR (Pt. 610) 313; Olowofoyeku v. Attorney-General of Oyo State (1996) 10 NWLR (Pt. 477) 190 at 210; and Okochukwu v. Emeregwa (1999) 5 NWLR (Pt. 602) 179 at 183 on a court raising a matter suo motu, non-compliance with rules of court, the exercise of discretionary power by the court, a court involving itself in sentiments and the meaning of “shall” in a statute. He urged the court to allow the appeal.

Learned Senior Advocate for the 1st and 2nd respondents, Chief Wole Olanipekun raised a preliminary objection. The grounds of objection read:

“1. Since the ruling in the two motions leading to the two appeals, the Appellants had taken steps by leading witnesses and tendering several thousands of documents in proof of their cases which the Appellants had sought at the lower court. The defence had equally opened and closed those case and written addresses ordered by the court.

It will become a mere academic exercise to determine the two issues arising from the two appeals as copious evidence have been led by both parties relating to this in which parties have been given time to file addresses awaiting adoption on 28/1/08.”

Citing the case of Government of Plateau State v. Attorney-General of the Federation (2006) 3 NWLR (Pt. 967) 436 and 419, learned Senior Advocate submitted that the appeal was academic and should be struck out. He did not say more on the preliminary objection. And so be it.

Taking Issue No. 1, learned Senior Advocate submitted that the Court of Appeal rightly refused the appellants leave to administer interrogatories on the 5th respondent and further and better particulars from the 1st and 2nd respondents. He contended that the Court of Appeal gave sufficient reasons for the refusal of the application. He said that the case of Famuyide v. R. Irvinq and Co. Ltd (supra) cited by counsel for the appellants is inapplicable to this appeal. He contended that it is not the law that once an affidavit is not controverter, it must be believed by the court. Citing National Bank v. Are Brothers (1977) 6 SC 97 at 100, learned Senior Advocate submitted that an applicant must prove his petition; there is no escape route via interrogatories.

Relying on the Practice Directions by the President of the Court of Appeal, learned Senior Advocate submitted that interrogatories are not for fishing expedition; they are expected to be related to the pleadings, as they cannot be issued at large. He referred to Order 33 Rules 1 and 2 of the Federal High Court (Civil Procedure) Rules, 2000. Counsel argued that the interrogatories are not related to or vindicated by the pleadings. He regarded most of the questions as relating to commercial transactions.

On the further and better particulars, counsel submitted that the reason also given above covered the argument. By the nature of the better and further particulars, the appellants were abdicating their case completely and relying on the respondents to prove their case for them.

On Issue No. 2, learned Senior Advocate submitted that the Court of Appeal was right in granting the application of 4th to 808th respondents to file additional list of witnesses, as the court exercised its discretion judiciously and judicially. He cited Abacha v. State (2002) 5 NWLR (Pt. 761) 638 at 653. (2002) 5 SCM 139 Counsel pointed out that filing of additional witnesses is not the same thing as filing a reply to the petition. The list of additional witnesses is material evidence to prove the already filed replies. It is not the case of filing a new reply, counsel argued. He urged the court to dismiss the appeal.

Learned Senior Advocate for the 4th to 808th respondents, Chief Amaechi Nwaiwu, also raised a preliminary objection in the following terms:

“1. No leave of court was sought and obtained before filing the appeals.

The issues in these Appeals have become academic and hypothetical.

These appeals constitute an abuse of judicial process.”

Learned Senior Advocate submitted that an interlocutory appeal to the Supreme Court requires leave of the Court of Appeal or the Supreme Court. He cited section 233(3) of the 1999 Constitution and the cases of Ubani v. Duke (2004) 7 NWLR (Pt. 871) 116 at 138 and Orubu v. NEC (1988) 5 NWLR (Pt. 94) 323. He argued that as the “grounds of appeal at best can be classified as grounds of mixed law and fact, leave was required. He cited Madubuchukwu v. Madubuchukwu (2006) 10 NWLR (Pt. 989) 475 at 494; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Piemen v. Momodu (1983) 1 SCNLR 188; Coker v. Uba (1997) 2 NWLR (Pt. 490) 641; NNSC Ltd. v. Establishment Sima of Vadux (1990) 7 NWLR (Pt. 164) 526; UBN v. Sogunro (2006) 27 NSCQR 182 at 192-193;(2000) 10-11 SCM 393 Inakoju v. Adeleke (2007) 29.2 NSCQR 959 at 1185 and 1186 (2007) 1 SCM 1 and Ukpong v. Comm. for Finance (2006) 28 NSCQR 508 at 529. (2006) 12 (Pt 2) SCM 460

Taking Issue No. 2, learned Senior Advocate submitted that as all the parties have closed their cases and the matter adjourned to 28th January, 2008 for adoption of addresses of counsel, and thereafter for judgment, the appeal is now academic. To learned Senior Advocate, the proceedings in the Court of Appeal cannot now be reopened to enable the appellants serve the interrogatories. He also said that the witnesses called by the appellants cannot now be recalled. He cited Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65 at 99; (2006) 2SCM 95 Baker Marine Ltd, v. Chevron (2006) 26 NSCQR (Pt. 2) 1121 at 1137; (2006) 8-9 SCM 105 Nyah v. Noah (2007) 4 NWLR (Pt. 1024) 320; Abubakar v. Bebeji Oil Ltd. (2007) NSCQR) 1634 (2001) 3 SCM 37 and Agwasim v. Ojichie (2004) 18 NSCQR 359, (2004) 9-12 SCM (Pt. 2) He urged the court to uphold the preliminary objection.

On Issue No. 1, learned Senior Advocate relied on paragraph 2 of the Practice Directions, 2007 and argued that the provision does not stipulate the consequence of failing to attach the written statement on oath at the time of filing the Reply. He contrasted this with the provision of paragraph 1 (2) of the Practice Directions relating to filing of the petition where consequences immediately attend the failure to file the written statements along with the petition. The Court of Appeal did not think fit to impose upon the respondents a limitation or burden which the Practice Directions did not see fit to impose, learned Senior Advocate contended.

Referring to paragraph 7 of the Practice Directions, learned Senior Advocate argued that if further particulars may be given in respect of facts which have been pleaded, there is no reason why witness deposition may not be furnished in respect of facts that have been pleaded. He contended that the appellants have not been able to show that the exercise of the discretion of the Court of Appeal in favour of granting leave to file additional witness depositions occasioned a miscarriage of justice. He cited the unreported case of Eboh v. Akpotu, SC. 167/66. Citing Alsthom SA v. Saraki (2000) 4 NWLR (Pt. 687) 514, learned counsel submitted that the issue was a mere irregularity and urged the court not to follow technicalities but to do substantial justice.

On the issue that the relief granted by the Court of Appeal was not sought by the respondents, learned Senior Advocate contended that the respondents sought leave to amend their reply by listing additional witnesses whose depositions were attached. He argued that the view of the court that it was not an application to amend but merely one to call additional witnesses is supported by all the facts before the court as made out in the affidavit in support of the application; and so the Court of Appeal rightly exercised its discretion in favour of the respondents.

On Issue No. 2, learned Senior Advocate submitted that the Court of Appeal correctly rejected the application for interrogatories. He contended that the premise upon which the leave to administer interrogatories was founded was too weak. He also contended that the character of the information sought related to the internal administration of the 4th respondent which is not relevant to the prosecution or just determination of the petition. The interrogatories represented nothing less than a bold and undisguised attempt on the part of the petitioners to make an issue out of the internal administration of the 4th respondent. The interrogatories related either to pre-election issues or the internal affairs of the 4lh respondent or were merely intended to embarrass or scandalize the respondent. He urged the court to uphold the Rulings of the Court of Appeal.

Let me take the preliminary objection first. I do not agree with the submission of learned Senior Advocate for the 4th to 808th respondents that in all interlocutory appeals leave is necessary. He cited section 233(3) of the Constitution. With respect, the subsection does not say so; not even in the way he has subtracted the contents of section 233(2) from those of section 233(3). Interlocutory appeals come under section 233(2); not under section 233(3). I say this because, in my view, appeal under section 233(2) covers both final and interlocutory appeals. And so I will determine the objection in the light of section 233(2) and (3). If I come to the conclusion that the grounds of appeal come within section 233(2) then the objection fails.

If I come to the conclusion that the appeal falls within the precinct of section 233(3) then it will be upheld.

Let me read the Grounds of Appeal minus the particulars:

“GROUND ONE

The learned Justices of the Court of Appeal misconstrued and erroneously misapplied the principles guiding the grant of leave to administer interrogatories and thereby refused the Petitioners/Appellants application for same by holding thus:

‘I have listened to the learned counsel on all sides and I thank them for their industry. I am of the view that answers being required by the interrogatories and particulars sought in this application can easily be ascertained from witnesses during the hearing of the petition. In an election matter, anything that will impede speedy trial must be avoided. In the circumstances, I refuse the application and it is hereby dismissed.’

GROUND TWO

The refusal of interrogatories by their lordships is irreconcilably against the spirit and intendment of the Election Tribunal and Court Practice Directions No. 1 of 2007, and the Federal High Court (Civil Procedure) Rules, 2000 with regards to matters for disposal at the pretrial, including requirement for cutting down on number of witnesses to be called at the trial as enjoined by Paragraph 3(7)(f) of the Practice Directions (as amended) which provides that at the pre-hearing session:-

‘Tribunal or Court shall consider and take appropriate action in respect of the following as may be necessary or desirable:

(f) Narrowing the field of dispute between certain types of witnesses especially the Commission’s staff and witnesses that officiated at the election, by their participation at pre-hearing session or in any other manner.’

GROUND THREE

The refusal of the interrogatories sought against the 5th Respondent has occasioned a miscarriage of justice, in that the facts sought to be elicited by the interrogatories were within the peculiar knowledge of 5th Respondent, who is not listed or intended to be called as a witness; but has generally and evasively denied same in his Reply to the petition.

GROUND FOUR

The learned Justices of the Court of Appeal erred in law and thus occasioned a miscarriage of justice to the Petitioners/Appellants when they held that it is in the interest of justice to refuse application for further and better particulars of the 1st and 2nd Reply to the petition.”

Grounds 1, 2, and 3 complain about the refusal of the Court of Appeal to administer interrogatories. Interrogatories is a straight and strict aspect or area of law. I do not see any fact or mixed law and fact deserving the leave of court. Appeal on grounds of law alone is as of right. See C.C.B. (Nig) Plc v. Attorney-General of Anambra State (1992) 8 NWLR (Pt. 261) 528. Ground 4 complains about the refusal of the Court of Appeal to ask for further and better particulars from the 1st and 2nd respondents. That could involve mixed law and facts or facts simpliciter. The law is trite that an appeal can be sustained by even one valid ground of appeal. There are three valid grounds of appeal. I am of the view that they can sustain this appeal, and I so hold.

I am almost forgetting the objection on abuse of judicial process. I can forget it for good because there is not much in it, if there is anything in it all. What is in the appeal that constitute an abuse of the judicial process? Is it the application to administer interrogatories? Is it the request for further and better particulars? What is it, I ask? There is nothing in this appeal that constitutes an abuse of the judicial process. Both the process of interrogation and further and better particulars are known to our adjectival law and they cannot therefore constitute an abuse.

That takes me to the preliminary objection of the 1st and 2nd respondents. They are two. The first one is to the effect that the appellants had taken steps by leading witnesses and tendering several thousands of documents in proof of their cases and the defence had equally opened and closed their case and written addresses ordered by the court. The second one is that the appeal is now a mere academic exercise as the parties have led copious evidence and they have been given time to file addresses awaiting for adoption on 28th January, 2008.

Appeal is a constitutional right which cannot be taken away from or denied an appellant. No court of law has the jurisdiction to take away from or deny an appellant his constitutional right to appeal. I cannot deny the appellants their right of appeal based on the two grounds of the preliminary objection. Whether the parties have taken steps in the matter in the Court of Appeal developing into the closure of their cases and awaiting adoption of written addresses, this court is not competent to deny the appellants their constitutional right to file an interlocutory appeal. It does not even appear that learned Senior Advocate argued the first objection in his brief. That is enough for me not to take it. I have taken it with great caution and in the alternative that I am wrong in my conclusion that counsel did not argue it in his brief.

He argued the second ground dealing with academic exercise. He cited the case of Government of Plateau State v. Attorney-General of Federation. supra. I said at page 419 of the Report:

“A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.”

An academic matter in a suit is one which is raised for the purpose of intellectual argument qua reason which cannot in any way affect the determination of the live issues in the matter.

It is merely to satisfy intellectual prowess qua intellect. It is a matter which is theoretical and not related to practical situation. And in the context of this appeal, the practical situation is the application of the outcome of this appeal to the petition in the Court of Appeal. An academic matter could be built on some hypothesis when they are based only on a suggestion that has not been proved or shown to be real because they are imaginary. And an hypothesis is an assumption made, especially in order to test its logical or empirical consequences.

All the parties say that the Court of Appeal has adjourned the case to 28th January, 2008 for them to adopt their addresses. Today is 25th January, 2008, some three days to the date the matter is adjourned for adoption of addresses. I do not think the appeal is merely academic. The parties can make use of the judgment of this court in the Court of Appeal. Accordingly, the objection of the 1st and 2nd respondents also fails.

I go to the appeal. The first issue is on the interrogatories. Interrogatories are a set of series of written questions drawn up for the purpose of being propounded to a party, witness, or other person having information of interest in the case. They are a pretrial discovery device consisting of written questions about the case submitted by one party to the other party or witness. The answers to the interrogatories are usually given under oath, that is, the person answering the questions signs a sworn statement that the answers are true. See Black’s Law Dictionary, Sixth edition, page 819.

Interrogatories are legal questionnaires submitted to an opposing party as part of pretrial discovery. The plural noun “interrogatories” derive from the commonplace or market place expression of interrogation which means trite act or process of questioning in dept or questioning as a form of discourse.

This court dealt with the nature and functions of interrogatories in Famuyide v. Irvinq and Co. Ltd. (1992) 7 NWLR (Pt. 256) 639. Delivering the main judgment of the court, Karibi-Whyte, JSC, said at page 653:

“Order 27 rule 2 of the High Court of Lagos (Civil Procedure) Rules 1972 provides as follows:

‘…. Leave shall be given as to such only of the interrogatories as shall be considered necessary either for disposing fairly of the cause or matter or for saving costs.’

This rule has its origin in the English RSC Order 26 Rule 1(3). The principles governing the application of this rule have been clearly enunciated in several decided cases in Courts in England. These cases have constituted guides to our own Courts where confronted with similar situations. After the pleadings of the parties it is generally allowed to put questions to the opponent for the purpose of extracting information as to the facts material to the questions between them which the party interrogating has to prove on any issue raised between them, or for the purpose of securing admissions as to those facts to avoid delay and save costs. It is also allowed to enable the opponent to find out whether the particular averment in the pleadings of the party interrogating who has the burden of proof are true or untrue, and also to ascertain the case he has to meet. In essence, the interrogatory is aimed at ascertaining the real issue, so as to prevent surprise. It also enables the person interrogating to reveal the case of the person interrogated, or to elicit facts in support of the case of the person interrogating.”

Interrogatories are never at large. They must have a nexus with the matter or matters in issue. They must be related to the matter or matters in issue. This does not mean that the interrogatories are strictly confined to the facts directly in issue, but extend to the existence or non-existence of the facts directly in issue. See Marriot v. Chamberlain (1886) 17 QBD 154 at 163. The answers to the interrogatories need not be conclusive on the issues provided that they have some bearing on them. See Balir v. Haycock Caddie Co. (1917) 34 TLR 39. The main aim of interrogatories is to uphold the case of the party interrogating and destroy that of his opponent. See Plymouth Mutual Corporative Society v. Traders Publishing Association (1967) 1 KB 403 at 416; Hennessy v. Wright (No.2) (1888) 24 QBD 447. Interrogatories elicit admissions from the opponent and admissions are most valuable evidence for determining liability.

Dealing with interrogatories in his Book, Civil Procedure in Nigeria. Nwadialo said at page 618:

“The interrogatories should be directed at obtaining admissions of facts or other pieces of information which are materially important for proving the case of the party administering them. A party may not interrogate to elicit information that has bearing exclusively on the case of his opponent for in such a case, the interrogatories will not assist him in establishing his own case.”

Courts will not allow fishing interrogatories, which are interrogatories completely outside the pleadings. After all, pleadings are the fulcrum and parameters of the case and a plaintiff cannot, under the guise of interrogatories move out of the pleadings. An owner of an aquarium may, but certainly not the court. That will be a fishing expedition and the court will not allow such an expedition. Therefore, interrogatories outside the pleadings will go to no issue, and the opponent has no legal duty to provide answers.

Similarly, a court of law will not allow interrogatories which are oppressive. Oppressive interrogatories are interrogatories which put the party interrogated in an undue burden which is out of all proportion to the benefit to be gained by the interrogating party. See Heaton v. Goldney (1910) 1 KB 653. A party who has unequivocally or categorically denied a fact in his pleadings should not be interrogated on it because he has made his position known in his pleadings. A court will dismiss such an interrogation as a waste of time. Interrogatories must be administered bona fide. They must not be administered male fide. A court will not allow interrogatories administered male fide.

Although interrogatories which meet with positive answers save the burden of proof placed on the plaintiff, a plaintiff.

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SC. 288/2007

Peter Obi V Inec (2008)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, JSC

This is an appeal against the judgment of the Court below given on 22 May 2007. The Court below had affirmed the judgment of the Federal High Court which declined jurisdiction in the matter on the ground that only the Election Tribunal could entertain same.

I have read the proceedings of the two courts below and adverted my mind fully to the nature of the appellant’s case. I have also given consideration to the arguments of counsel in their written brief and their oral argument. It is my firm view that what plaintiff/appellant had sought by his claim was the true interpretation of section 180(2)(a) of the 1999 Constitution. The court under the 1999 Constitution and in particular section 251(l)(q) and (r) has the jurisdiction to interpret any provision of the Constitution or the law. It is therefore my view that the court below was wrong to hold that this was an election matter under section 285 of the 1999 Constitution. I therefore allow the appeal on jurisdiction.

In the interest of justice and having regard to the fact that the relevant facts in this matter are not in dispute, I ought to proceed to exercise the power vested in this Court under section 22 of the Supreme Court Act. Let me reiterate that the only relevant fact is the date when the plaintiff/appellant took his oath of allegiance and oath of office which is 17 March 2006. Happily the said provision is very clear and explicit and all I need do is to apply it. The provision reads:

“180-(2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of a period of four years commencing from the date when –

(a) in the case of a person first elected as Governor under this Constitution, he took the oath of allegiance and oath of office;”

There being no dispute on the fact that plaintiff/appellant took his oath of allegiance and oath of office on 17 March 2006 his term of office will expire on: 17 March 2010.

I now consider the orders to make. The plaintiff/appellant had in his claim before the High Court sought both declaratory and injunctive reliefs directed at protecting his four year term of office . In its effect, the claim is another way that his term of office extends beyond May 29, 2007. However the 1st Respondent inspite of its awareness that the case was still pending in court went on to conduct the purported election.

This court and indeed any court ought not to permit its processes to be treated with disdain. I therefore have the duty to ensure that plaintiff/appellant’s appeal is not rendered nugatory. I therefore make the following declaration and order–

That the office of Governor of Anambra State was not vacant as at 29 May 2007.

It is ordered that the 5th Respondent Dr. Andy Uba should vacate the office of the Governor of Anambra State with immediate effect to enable the plaintiff/appellant Mr. Peter Obi to exhaust his term of office.

I will give my full reasons on 13-7-07.

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SC. 123 / 2007