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Alhaji Musa Ya?u V. Maclean D. M. Dikwa (2000) LLJR-CA

Alhaji Musa Ya?u V. Maclean D. M. Dikwa (2000)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A. 

This is an appeal from the judgment of the High Court of Justice Jos, Plateau State of Nigeria, delivered in suit PLD/J/391/90 on 4th March, 1997, it is an appeal complaining about damages awarded the plaintiff by the learned trial Judge.

The plaintiff in the suit, who is the respondent in this appeal, had, by his writ of summons filed on the 3rd of March, 1990, claimed various sums as special and general damages from the defendant, now the appellant. The plaintiff was said to have suffered damage as a result of defendant’s negligence while driving his vehicle, 504 Peugeot Station wagon Taxi Cab No. PL 1956 JE on 18th December, 1988. For, the defendant caused his vehicle to violently hit the plaintiffs Peugeot saloon car No. PL 565 P, knocking it off the road, into the gutter where it caught fire. The car was completely burnt beyond redemption. The plaintiff was unconscious and was hospitalized.

Parties filed and exchanged pleadings. In the plaintiff’s amended statement of claim, he claimed as follows:-

Particulars of damages

Special damages

(a) i. Cost of 504 Saloon car Reg. No. PL 565 owned by the plaintiff completely burnt down by fire N47,750.0

  1. Value/Cost of items burnt in the vehicle N00.500.00.

(b) General damages:-

Plaintiff suffered physical and mental injuries. He was hospitalized and incurred expenses in getting medical treatment.

Plaintiff lost usage of the vehicle since then and has accordingly

incurred general damages assessed at –           N292,000.00

N338,250.00

The plaintiff shall at the trial of this suit rely on the record of the Barakin Ladi Division of the Nigeria Police, in proving the extent of destruction caused and other matters shown there in:

The plaintiff shall further rely on the valuation report of his vehicle from Osiro Nigeria Ltd. of Plot LX 99T Liberty Dam layout off Maina Hotel Jos, dated 19th, September, 1991 showing the value of the plaintiffs vehicle prior to accident as follows:-

Pre-accident value (P.A.V.)       N47,500

Less Salvage Value                   1,750

Balance             45,750

At the end of the trial, the learned trial Judge gave judgment in favour of the plaintiff and awarded him damages as follows:-

“(a) N45,750.oo value of the car at the time of the accident (special damages as claimed by him).

(b) N180,000.00 general damages.”

The defendant appealed. At the hearing of the appeal, Counsel for the appellant was not in court. This court, with briefs of argument filed on 6/12/99 in accordance with the Rules of court, deemed the appellant’s appeal argued. Counsel for the respondent who was in court was called upon to reply and he simply adopted his brief of argument.

It is clear from the grounds of appeal and appellant’s issues in his Counsel’s brief of argument that the main thrust of his complaint is against the award of these damages.

The appellant had filed 6 grounds of appeal based on which his Counsel identified 6 issues for determination as follows:-

“1. Whether the learned trial Judge was right in awarding the sum of N180,000.00 as general damages to the plaintiff/respondent?.

  1. Whether the learned trial Judge was right in awarding the sum of 45,750.00 as special damages when there was no proof of same before the court?.
  2. Whether having awarded the sum of N45,750.00 as special damages the trial Judge would not be awarding double compensation to the defendant/respondent by awarding another sum of N180,000.00 as general damages?.
  3. Whether the learned trial Judge was right in relying on the evidence of PW3 and Exhibit C, the evidence having been procured after the case was instituted?.
  4. Whether the trial Judge was right in holding that the vehicle in question i.e. Peugeot 504 Station wagon Registration No. PL 565 belonged to the plaintiff?.
  5. Whether the decision of the trial Judge is not against the weight of evidence?.”

Learned Counsel for the respondent on his part, set out in his brief of arguments, his own issues for determination thus

“1. Whether the fact that the defendant/appellant pleaded and relied on contributory negligence he cannot be deemed to have admitted liability vis-a-vis the evidence adduced?.

  1. Whether on the totality of evidence led at the trial the learned trial Judge was wrong when he entered judgment for the plaintiff/respondent?.
  2. Whether once special damages are awarded, awarding general damages again necessarily amounts to double compensation?.”

Indeed, the appellant’s issues are preferable to the respondent’s as they appropriately and clearly hit at each of the six grounds of appeal. I will use them to determine the appeal.

As to issue No.1 which was whether the learned trial Judge was right in awarding general damages of N180,000.00 to the plaintiff/respondent, learned Counsel for the appellant, Mr. Amupitan submitted that it was arbitrary and excessive and that the learned trial Judge applied the wrong principle of law in making the award. He conceded that the court had enormous discretion in the award of general damages in a claim of negligence, but that such discretion must be judicially and judiciously exercised in accordance with laid down principles. He referred to A-G Oyo state v. Fairlakes Hotel Ltd. (1989) 5 NWLR (Pt.121) 255; (1989) 12 SCNJ 1 at 10; ACME Builders Ltd. v Kaduna State Water Board. (1999) 2 NWLR (Pt.190) 288; (1999) 65 LRCN 218 at 242; Ijebu-Ode Local Government v. Balogun (1991) 1 NWLR (Pt.166) 136; (1991) 1 SCNJ 1 at 18 (Per Karibi-Whyte, JSC).

Counsel drew a distinction between general damages which are such that there is no measures for their assessment and special damages as pecuniary losses which “have crystalized before trial.” He cited Issa v. Union Bank of Nigeria Ltd. (1993) 4 NWLR (Pt. 288) 502 at 510 (Per Achike, JCA): Kalu v. Mbuko (1988) 3 NWLR (Pt.80) 86 at 99 (Per Kolawole, JCA); Adelike v. Osoba (1980) OSLR 8; A.N.T.S. v. Atoleye (1993) 6 NWLR (Pt.298) 233 at 257 and Ifeanyichukwu Osundu Co. Ltd. v. Akhigbe (1999) 11 NWLR (Pt.625) 1 (per Uwaifo, JSC).

Learned Counsel for the appellant urged us to review the award since the court has the power to do so, citing Uwa Printers Ltd. v. Investment Trust Ltd. (1988) 5 NWLR (Pt.92) 110 at 122-3. He submitted that any claim for “loss of use” is a specific loss and therefore special damages, which must be specifically proved. He attacked the basis upon which the learned trial Judge made the award of general damages in this case, pointing out that medical expenses and loss of use of the plaintiffs car cannot come under general damages but special damages. He urged us to set aside the award.

Learned Counsel for the respondent, Mr. Kwede in reply, (stating that he was addressing appellants issues 1,2,4,5 and 6 together) submitted that the award of N150,000.00 general damages was not excessive. In his view, the learned trial Judge painstakingly evaluated the evidence before him before awarding the sum as he had discretion to do. He cited the case of Nwachukwu v. Egbuchu (1990) 3 NWLR (Pt.160) 72.

He said the evidence of the plaintiff was not discredited by the defendant and the award was in accordance with the decision in Egbunike v. ACB (1995) 2 NWLR (Pt.375) 34; (1995) 2 SCNJ 58 at 62. Learned Counsel further submitted that the learned trial Judge rightly awarded the items as general damages rather than special damages.

I shall now consider the applicable law along with the various contentions made by learned Counsel for the parties before this court. There can be no doubt that a trial court has the power to award special and general damages in a claim for damages for the tort of negligence.

It is usual to draw a distinction, however between special and general damages because different principles apply to their claim, pleadings relating to them, proof required and to their assessment.

In the case of special damages, the party claiming must set out in his pleadings sufficient facts and particulars of his claim and damage. He must strictly prove them in his evidence in a manner that permit the trial court to quantify or assess them. See Ijebu-Ode Local Government v. Balogun (1991) 1 NWLR (Pt.166) 136; Incar Nigeria Ltd. v. Adegboye (1985) 2 NWLR (Pt. 8) 453 at 460; West African Shipping Agency v. Kalla (1978) 3 SC 21. In the case of general damages on the other hand, it may not be necessary to plead the particulars. Evidence of the injury will be led, but such damages are presumed as the natural consequences of the injury suffered by the plaintiff. A major difference between special and general damages lies in the determination of their measure or quantum. Special damages have measure, general damages have none. After sufficient evidence of the injury is led in the case of general damages the measure is usually seen to be at large and at the discretion of the court. This discretion must however be exercised judicially and judiciously. The award must be within the ambit of the law. The Supreme Court had had cause to define general damages as such damages as may be given when the Judge cannot point out any measure by which they may be assessed, except the opinion and judgment of a reasonable man. See Lar v. Stirling Astaldi (Nig) Ltd. (1977) 11-12 SC 53 at P. 63 (Per Fatayi Williams JSC (as he then was), adopting the decision in Prehn v. Royal Bank of Liverpool (1870) LRS Exh. 92 (Per Martin Bat P. 99 – 100). Put in another way, general damages are the kinds implied by law in every breach of legal rights, its quantification however being a matter for the court.

In the case of A-G Oyo State v. Fairfakes Hotel Ltd. (1989) 5 NWLR (Pt.121) 255; (1989) 12 SCNJ, 1 at P. 16. Agbaje JSC, categorised general damages as being in two classes:-

“1. That in which they (damages) may either be inferred (e.g. in cases of defamation or of personal injury to plaintiff when pain and suffering may be presumed), and;

  1. That in which they will not be inferred but must be proved (for instance damages arising by way of general loss of business following the injury). Even in regard to this later category evidence will not be allowed to be given by a plaintiff of loss of particular transaction or customer (following the injury) with a view of showing specific loss, for that is a matter which falls in the realm of special damages.”

Because of the indeterminate nature of the quantum in general damages, what will be awarded in one case by the trial judge may vary from that awarded by another. The award would naturally differ from individual to individual, being dependent on the trial Judge’s discretion. It is for this reason that when the issue of general damages forms a ground of appeal, the appeal court is careful in considering the quantum of damages awarded as general damages. See: Issa v. Union Bank …. Ltd. 1993) 4 NWLR (Pt.288) 502, at 510.

This appeal court is called upon by the appellant to interfere with the trial court’s award of general damages. In considering the plea of the appellant, it must be borne in mind that an appellate court can interfere with an award of general damages only if the award is made on wrong principles of law or the amount awarded is so high or so low as to make it an entirely erroneous estimate. See the case of Edigbonya v. Dumez (1986) 3 NWLR (Pt. 31) 753; Soleh Boneh Overseas (Nig) Ltd. v. Ayodele (1989) 1 NWLR (Pt. 99) 549 at 464 per Oputa JSC; Strabag Construction (Nig.) Ltd. v. Okpan Oglaarekpe (1991) 1 NWLR (Pt.170) 233.

These principles arise from the nature of general damages which, as I earlier stated is such that there is no measure but is rather at the discretion of the trial Court.

Where an appeal court decides to interfere with the award of general damages, this would be because it is so unreasonable in the circumstances of the case being perhaps too low or manifestly excessive. (See Issa v. Union Bank Ltd. (supra), Obere v. Board of Eku Baptist Hospital (1978) 6-7 SC 15 and Uwa Printers Ltd. v. Investment Trust Ltd. (1988) 5 NWLR (Pt.92) 110 at 122-3 (SC). The appellate court would in doing so be looking at the Judge’s appreciation of the facts on which he based the award and the principles of law which he applied in making the award.

For example, if on the facts of a case an item of specific loss is adjudged general damages, this would be wrong. For such a loss is clearly an item of special damages, which has crystalized before the trial and is required to be strictly proved. A claim for loss of use arising in a suit on negligence, unlawful damage to chattel or property, such as a vehicle, as in this case, is one for special damages. It must be specifically pleaded and strictly proved before an award can be made on it by a trial court.

It is in the light of the foregoing principles, the issues in the appeal will now be considered.

The question arising in issue No.1 emanated from the particulars set out in the pleadings of the plaintiff (supra), the evidence proffered at the trial by the plaintiff and his witnesses and the decision of the learned trial Judge after reviewing the evidence. It is observed that the appellant led no evidence whatsoever on the matter of the damages claimed by the plaintiff in his particulars. In the part of the decision complained of, the learned trial Judge set out the basis of plaintiff’s claim for general damages thus:

“The plaintiff has also claimed N292,000 general damages for physical and mental injuries which led to his being hospitalized where he received medical treatment, and for loss of usage of his vehicle from the time of the accident.

….First, he said at the time of the accident he was unconscious. He was conveyed in a vehicle to B/Ladi Hospital for immediate attention…….

transferred to Plateau Hospital Jos…….that while a principal at Kuru Secondary School, his five children were attending Corona Private School, he had to arrange for commercial vehicle to be conveying the children.

And as the Principal in Pankshin he has (sic) to be transporting himself from Kuru to Pankshin and back …. transferred to the Headquarters in Jos. He had to arrange for his transportation in a commercial vehicle…. he enrolled in the University in Jos … for PHD … the plaintiff had to be going to Kaduna to see his supervisor….. the plaintiff… was a farmer, was also running a shop which if he had his vehicle he would have made over N2,000.00.”

Thereafter, the learned trial Judge quite correctly in my view, stated the principle of law that general damages need not be proved and that where the plaintiff gives circumstances that should entitle him to general damages the court should consider the contention in awarding him general damages. He also correctly stated that general damages are at the discretion of the court but this must be exercised-judicially and judiciously. He then concluded his consideration of the claim for general damages as follows:-

“In the instant case the plaintiff has given a catalogue of instances the court should take into consideration in awarding general damages… Having noted the catalogue of the instance …. and the fact that this is a 1988 case, this court having given due consideration to the facts placed before this court. I hereby award N180.000.00 general damages in favour of the plaintiff….”

In his brief of argument, Mr. Amupitan learned Counsel for the appellant complained about the principles upon which the learned trial Judge awarded the sum of N180.000.00 as general damages. He submitted that, “the catalogue of instances relied on were instances of specific losses, claimable as special damages, the amount awarded was ridiculously high – being four times the value of the lost item and that the Judge relied on facts not pleaded.

These complaints raise those issues which often compel an appeal court to re-examine the principles upon which the court below based its award of general damages. This can be clearly seen from the submission of learned Counsel for the appellant. I have considered the legal definition of general damages from authorities which I have set out above, the difference between general and special damages, and the principles earlier set out, particularly those illustrated in the case of Uwa Printers Ltd. v. Investment Trust Ltd. (supra).

I hold the view that learned Counsel for the appellant is to some extent on firm grounds in his submission, and not so in some others. This will become clear presently. Out of the catalogue of instances relied on by the learned trial Judge is what turns out to be a claim and evidence of loss of use by the plaintiff of his vehicle, arising from its irredeemable state as a result of the negligence of the defendant/appellant. (By the way, before proceeding further, I must observe that the manner in which the grounds of appeal and the argument in appellant’s brief were put up, the issue whether liability for negligence was duly proved, as decided by the court below, does not arise. In my view learned Counsel for the appellant, quite correctly avoided that element, concentrating on the issue of award of damages which is indeed potent).

Returning to the question of loss of use, vis-a-vis general damages, a claim for loss of use is clearly an item of special damage which ought to be clearly pleaded with full particulars and strictly proved as required by law. It is not general damages. A claim for loss of use is an item of specific loss. It falls under special damages. It should therefore not I have been lumped with the rest of the catalogue. To that extent, there is force in the submission of the learned Counsel for the appellant. As there were no pleadings on that head, no particulars and no strict proof by the plaintiff as required by law, no damages should be awarded based on loss of use. The same decision as with “loss of use,” applies to the claim for medical treatment which forms part of the items in the catalogue of damages to which the plaintiff testified. It is an item of specific loss which must come under special damages and be strictly proved.

The award of general damages by the learned trial Judge wrongly included these items. The sum awarded by him was however not based entirely on the claim for loss of use or medical treatment. But, he did not set out in his judgment which item out of the “catalogue of instances” which he had noted which he had take into consideration. He ought to have examined the items and identified those appropriate for general damages. The way he put the matter in his judgment, creates the impression that he took into account all the items, including those which ought to come up as special damages. In the premises, it is rightly presumed that his award of N180,000 for general damages covered those items of special as well as of general damages. This should not have been so. It is to this extent the submission of the appellant’s counsel is upheld.

There are however items in the “catalogue” which clearly pass for items of general damage. The plaintiff claimed N292,000.00 for physical and mental injuries. These emerged from the testimony of the plaintiff and his witnesses, evidence which showed that the plaintiff suffered physical injury and was unconscious following the accident and was hospitalized. There can be no doubt that in the circumstances of the accident both physical and mental injury did occur for which the plaintiff is entitled to general damages. Learned Counsel for the defendant/appellant failed to recognise and address this when he asked this court to set aside the whole award. I am unable to accede to that request.

Where a trial Court in its award of damages, lumps items which should be items of special damages with those of general damages, it seems to me that the prudent approach is to separate the items and deal with each set of items as appropriate, awarding what may be found due for each, and not to set aside the whole award. This I intend to do in due course in this appeal.

Apart from the injuries which the plaintiff suffered, there is the general inconvenience and trauma which made him unconscious and of not having his vehicle to use at the time he required it and pursuing the use of public transport for himself and family. This is also quite apart from the specific financial injury of loss of use and hospital fees. For the injuries, inconveniences as well as trauma, the plaintiff is entitled to general damages.

It is on this account that I have came to the conclusion that the appellant succeeds in part and the respondent in part on the points raised in Issue No. 1 relating to the award of N180,000 for general damages.

What would the plaintiff be entitled to in the premises? It seems to me that the item of loss of use and medical treatment would have weighed heavily on the learned trial Judge more than the physical and mental injury suffered by the plaintiff. There was no evidence, however to show what he could have apportioned to each item having inappropriately lumped them together. The decision therefore now remains at large and in the discretion of this court as to what general damages to award in these circumstances.

I should think it will be just in the exercise of that discretion to split the award of the learned trial Judge, apportioning only N40,000 to the plaintiff for those items which I have adjudged as falling in law under general damages. There can be no doubt that the plaintiff did suffer much trauma, physical and mental agony from this accident, taking all the circumstances of the matter into account. The sum of N40,000.00 is therefore awarded to the plaintiff/respondent as general damages while the rest of the learned trial Judge’s award on general damages is set aside. As to the items now adjudged as special damages lumped with those of general damages. I make no award. For, there are no particulars in the pleadings and no strict proof thereof.

Issues No.2 and No.4

It is to be observed that issues 2 and 4 deal with proof of special damages and the reliance for their proof by the plaintiff/respondent on the evidence of PW3. I shall consider the two issues together. The appellant’s Counsel attacked the award of N45,750.00 as special damages. Learned Counsel submitted that there was no proof of this item, for, special damages must be averred and proved strictly. He cited the case of A.-G, Oyo State v. Fairlakes Hotel Ltd (supra), decided by the Supreme Court, Kalu v. Mbuko (1988) 3 NWLR (Pt.80) 86 at P.99 and Badmus v. Abegunde (1991) 11 NWLR (pt.627) 499; (1999)71 LRCN 2911 at 1961. Duruji v. Azie (1992) 7 NWLR (Pt.256) 688.

After referring to the evidence of the plaintiff and his witness. PW3, he cited the legal principle that where a vehicle, is involved in an accident through the negligence of another and is a total, loss the plaintiff is entitled to damages as to only the pre-accident market value of the vehicle less the value of the vehicle’s scrap plus damages for loss of earnings. He cited Ibeanu v. Ogbeide (1998) 11 NWLR (Pt.576) 1; (1998) 62 LRCN 4880 at 4898.

Counsel further submitted that these damages have to be proved by credible evidence not by speculative and inadmissible evidence. In Counsel’s view, the averment of the plaintiff was that the pre-accident value of the damaged vehicle of the plaintiff was N47,750 but what the plaintiff attempted to prove was N45,750.00

He thought the learned trial Judge applied the wrong principles and that this court must intervene if satisfied that the Judge had applied the wrong principles of law in assessing the damages. For the respondent, his counsel stated that he was addressing the two issues, No.2 and No.4 along with issues 1, 5 and 6. It would have been more appropriate if he had separated them because they are largely distinct. Be that as it may, it has been possible to identify his submission which answer the two issues. He submitted that the learned trial Judge rightly found for the plaintiff/respondent. He pointed out that the defendant-appellant never said anything in his defence in relation to the damages claimed by the plaintiff/respondent throughout the proceedings. He cited the case of Egbunike v. ACS (1995) 2 NWLR (Pt.375) 34; (1995) SCNJ 58 at 62.

He conceded that special damages ought to be specifically pleaded and strictly proved. He quoted the principles in Shell Dev. Co. Ltd. v. Otoko (1990) 6 NWLR (Pt.159) 693, cited by Counsel for the respondent but insisted however, that the plaintiff/respondent pleaded and presented credible facts entitling him to special damages. He cited Maduga v. Bai (1987) 3 NWLR (Pt.62) 663, which shows that:

“where a plaintiff gives evidence of loss … and the price of the car and there is nothing to suggest that he is lying and nothing contradicts him, the court should believe him.”

He drew our attention to the evidence of PW3 at page 25 of the records and plaintiffs at page 24 to show that it was misleading for the appellant’s counsel to ascribe the figure of N45,750.00 to the plaintiff as pre-accident value, when it was that his car was valued at N45,750.00

He stated that in line with the decision of the courts the learned trial Judge who believed the evidence of the expert witness PW3 which had not been discredited was bound to make the deductions which he did to arrive at N45,750.00 which he awarded. He cited S.G.E. (Nig.) Ltd. v. Okpanum (1989) 4 NWLR (Pt.115) 373.

I will deal with his other submissions on these issues later with those of the appellant. I have examined the judgment complained of, which fully reviewed the pleading of the parties and the evidence of the plaintiff and 3rd PW. They form the object of the issues raised for the appellant here, the difference if any or is it discrepancy between the figure of N47,750.00 in the statement of claim and N45,750.00 given in evidence by the plaintiff and PW3 set out in Exhibit C, as alleged by the appellant is insufficient in my view to set aside the award.

I am prepared, to accept the figure as the learned trial Judge did of N45,750.00, contained in the evidence of the plaintiff, and PW3, a trained vehicle Inspection Officer and in Exhibit C, the valuation Report. None of these were either challenged nor controverted by the defence at the trial.

I am also prepared to uphold the learned trial Judge’s finding. The claim of special damages was strictly proved by the plaintiff and his witness, PW3. The purported discrepancy does not detract from the much more substantial truth emanating from the evidence and findings of the court below, that negligence was proved against the defendant, that the plaintiff suffered damage. There is also the legal position that in such circumstances, plaintiff is entitled to damages. For a variety of reasons, I have come to this conclusion that appellant’s idea about the figures N47,500.00 and N45,750.00 in the amended statement of claim on P. 20 of the records and in evidence seems to be a misapprehension from juggling of figures. The arithmetic is clear and does not affect the claim or the proof. It is pertinent to identify that on page 20, when N47,500.00 is added to other figures making up the total claim, they do not add up to N338,250.00, the total also on page 20, being the total claim made by the plaintiff in his evidence. Rather, they add up to N340,250.00. On the other hand, N45,750.00 given in evidence when added to these other heads of claim brings the total to N338,250.00 as claimed. These figures as set out herein show that:-

N47,750.00              N45,750.00

500.00                  500.00

292,000.00               292, 000.00

= = = = = = =             = = = = = = = =

340.250.00                  338.000.00

= = = = = = =             = = = = = = = =

The total of N338.250.00 (and not N340,250.00) in the statement of claim and given in evidence by the plaintiff at page 24 of the records justifies the evidence of N45,750.00 which the lower court set out in his judgment at page 37 of the record of proceedings. It must be recalled that the lower court had rejected the claim of N500.00 for items burnt in the car of plaintiff. Also Exhibit C, the inspection report of Mr. Duke, PW3 bears out the facts – pre-accident value was N47,500.00 less salvage value of N1,750.00, leaves the sum of N45,750 stated in the testimony of the plaintiff.

Another point is that, none of the evidence on quantum of special and general damages tendered at the trial by the plaintiff and PW3 was controverted at all by the defence. When a party to a suit proffers evidence in proof of his claim and the opposite party who had an opportunity fails to cross-examine him or challenge or controvert the evidence, the court is bound to accept, use and act upon such evidence. That is the law as enunciated by the highest courts of our land, in a plethora of cases. To name just a few, see: Odulaja v. Haddad (1973) 11 SC 357, Nigerian Maritime Services Ltd. v. Bello Afolabi (1978) 2 SC 79 at 81 – 82. Adel Boshalli v. Allied Commercial Exporters Ltd. (1961) (1961) 2 SNLR 322; All NLR 917 (per Lord Guest) (Privy Council), Agbaje v. Ibru Sea Food of Ltd. 1972 5 SC 50. Omoregbe v. Lawani (1980) 3-4 SC 108 at 117. Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (pt.361) 124 at 139, (per Iguh, JSC.)

The learned trial Judge accepted the uncontroverted evidence on the issue of special damages and that, rightly, in my respectful view.

The decision of the Supreme Court in Ibeanu v. Ogbeide (1998) 12 NWLR (Pt. 576) 1, clearly underscore the principles applicable in assessing special damages, where a vehicle involved in an accident is a total loss and negligence has been proved. In that case, Mohammed JSC (at P.12) paragraph E – F set out the law thus:

“Normally, where the vehicle which is involved in an accident through the negligence of another is a total loss “or “write-off” the plaintiff is entitled as damages only the vehicle less the value of the vehicle as scrap (if any) plus damages for loss of earnings apart from any specific items of special damage proved. See Armels Transport Ltd. v. Martins (1970) 1 All NLR 27.

The trial Court has thus correctly resolved the issue of special damage in accordance with the law in the sum proved by the plaintiff as the pre-accident value of his vehicle, less the value of the scrap.

No evidence was proffered by the defence to counter this. In our jurisprudence, when a trial Court has performed its primary function of reception of evidence of witnesses who testify before it, including documentary evidence and undertakes proper evaluation of the evidence and makes findings, the appellate court would ordinarily not disturb the findings. The exceptions are where it is shown that the trial court has failed to make proper use of seeing and hearing the witnesses from stated or uncontroverted facts or if inferences are shown lo have been drawn by the trial Court which are wrong or cannot be supported at all by the evidence, then the Court of Appeal would exercise its powers of reviewing the facts and drawing necessary and appropriate inferences therefrom, in the interest of justice- see Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) 35; Okolo v. Uzoka (1978) 4 SC 77.

I find nothing in the records to compel this court to interfere with the lower court’s performance of his judicial function in determining this issue about special damages or to set aside the award of N45,750.00.

Another important legal issue raised by the appellant’s counsel in his brief, under both issue No.2 and Issue No.4 relates to the admissibility of Exhibit C, the valuation report of the motor vehicle inspection officer, PW 3 called as expert. Mr. Amupitan urges us to set aside the award of special damages because according to him Exhibit C, the valuation report made by PW3, on which the award was based, is inadmissible evidence, by virtue of Section 91(3) of the Evidence Act. Exhibit C, was made by PW3 on 19th September, 1991, the accident occurred, and caused damage to the car on 17th December, 1988, and this suit was commenced on 3rd December, 1990. The submission of the teamed defendant/appellant’s Counsel therefore was that the document was made by “a person interested” at a time when these proceedings were pending and its admission in evidence by the lower court contravenes section 91(3). The section provides as follows:-

S.91(3) “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

It is not disputed that Exhibit C was made while the suit was pending at the High Court, as shown by the records and the submission of the respondent’s Counsel.

In reply to the submission of Mr. Amupitan for the appellant, Mr. Akwede for the respondent had submitted as follows:-

“That counsel for the appellant’s interpretation of Section 91(3) which was narrow should not be accepted. He added that to say that once a suit is filed, no other step should be taken to bring material evidence that would assist the court would amount to shifting away….material facts. He said the valuer cannot be said to be a “person interested” in the outcome of the proceedings, as he merely performed a professional duty and no more. He cited Apenu v. Aiyetobi (1989) 1 NWLR (Pt.95) 85 and H.M.S. Ltd. v. First Bank of Nigeria (1991) 1 NWLR (Pt.167) 290 at 29-1-295.

It is my view that, learned Counsel for the respondent was on firm grounds in his submission on this point. Exhibit C is a valuation report made after the inspection of the damaged vehicle was done by an expert vehicle Inspection Officer of 23 years experience. It was tendered in Court by him and admitted in evidence without objection. He was not cross-examined as to his interest in the suit or in producing the document, nor in fact about its contents. His testimony was not at all challenged or controverted by the defence, not to talk of discrediting him in any way.

All that was said in his evidence in-chief by the witness showing how he came to be invited by the plaintiff to value the accident vehicle, is shown at P. 24-25 of the records. PW3 said:

“….I am an Insurance Agent Assessor. I am a general contractor in motor vehicle maintenance and repairs…. I know the plaintiff.

In 1991, a friend introduced me to the plaintiff and I was asked to go and assess his accident vehicle and determine the extent of damage….”

The above is the only testimony showing his connection with this case in which he was only a witness. Is he therefore a “person interested” in the suit in terms of the provisions in Section 91(3)?

I do not think so. He could not by any stretch of imagination be. He was not the vehicle owner, nor party to this suit but a professional, requested to perform this professional examination of the accident vehicle. (See Apena v. Aiyetobi, (1989) 1 NWLR (Pt.95) 85. On what terms he did the valuation, the trial court was never told and nobody now knows. The defence asked no relevant questions to counter him. There is thus nothing on the records to show, that he was a person in any way interested in the suit except as a person who performed a professional duty of inspecting and valuing the damaged vehicle. Whether he did this gratuitously or for a fee, he was not asked, and, it is not known. Justice demands that in order to determine if the maker of a document sought to be tendered is a “person interested … in the litigation,” the circumstances surrounding the making of the document and whether the maker can be said to have an interest of a personal nature, must be examined and ascertained. I have tried to so examine and determine these matter before arriving at the decision that PW3 is not a person so interested in the outcome of the suit.

The Supreme Court has provided some guide which enable our courts determine, who is “a person interested” in a suit, whose statement ought not to be received in evidence under that Section 91 (3), of the Evidence Act. I am guided and bound by them.

The test of interestedness in a number of decisions of the court, shows that a person who is not personally interested in the result of a litigation cannot be described as one “interested” in the proceedings under the provisions of section 91(3). It seems to me that it is this “Personal interest” element in Section 91(3) that excludes documents tendered by such persons as independent contractors or those purely on official assignment, such as policemen, officials or servants without direct interest of a personal nature in the litigation or the result of the litigation. It would also exclude a person whose interest in the litigation cannot be identified, such as where there is no evidence establishing it.

A person who may not be affected, one way or the other, by the result of a particular litigation ought not to be regarded as being “interested” in it, in terms of section 91(3). If on the other hand, the maker of a document is one who will personally suffer some loss, damage or detriment from or as a result of the suit which was pending or was anticipated, his interest could possibly qualify as personal, as opposed to official interest. See the case of:- High Grade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 1 NWLR (Pt.167) 290 at 312-313, per Karibi-Whyte JSC. Anyaebosi v. R. T. Brisco Nig. Ltd. (1997) 3 NWLR (Pt.59) 84 at 88-89 (per Uwais JSC (as he then was), and at 108-109 per Karibi-Whyte, JSC.

In the light of the foregoing I am able to state that PW 3 is not a “person interested” in this suit in terms of section 91(3) of the Evidence Act and therefore that Exhibit C is admissible.

As to the submission relating to whether the witness saw the vehicle before or during the accident or the price indices which he used in his valuation, how he arrived at it, or whether there was deterioration or vandalization since the accident, these are all matters of fact and evidence. If the defence considered them relevant, what question did the defence ask? Where is its evidence in relation thereto? It is no matter for speculation as appellant’s counsel was doing in his written submission.

The witness, PW3 was also not cross-examined on the whole of the evidence, relating to quantum of damages, valuation etc. Nor was evidence led to counter his evidence or to discredit his expert evidence. The case of S.G.E. (Nig.) Ltd. v. Okpanum(1989) 4 NWLR (Pt.115) 173 cited by learned Counsel for the respondent shows that evidence of the pre-accident value of a vehicle is a technical type of evidence that requires expert opinion. This is the kind of evidence which PW3 proffered at the court below in this case.

I must reiterate that expert evidence cannot easily be countered or demolished or set aside as learned Counsel for the appellant seeks to do, by mere rhetorics at the address stage of the proceedings. Rather, it should be attacked during the trial by superior counter-evidence or by discrediting him in cross-examination by the opposite party. See Shell Dev. Co. Ltd. v. Otoko (1990) 6 NWLR (Pt.159) 693.

Even upon a minimal of proof, and where the opposite party fails to challenge the evidence given by his opponent, in spite of the opportunity to do so, as in this case, the trial Court is right to accept the unchallenged, unrebutted and undiscredited evidence. See Odulaja v. Haddad (1973) II SC 357; and Union Bank v. Ogboh (1995) 2 NWLR (Pt.380) 647.

Mr. Amupitan had also submitted that if Exhibit C is rejected, the oral evidence of PW3 and the plaintiff/respondent will, in line with Section 132 of the Evidence Act, not be admissible. According to him Section 132 requires that whenever a fact is contained in a document, the document itself must be the evidence and not any oral evidence. In the first instance, since the evidence in Exhibit C has now not been rejected as I have decided, Mr. Amupitan would I hope, accept that the oral evidence of PW3 and the plaintiff/respondent would be admissible.

Secondly, with respect, it seems to me that the learned Counsel has not clearly appreciated the purport of that section of the Evidence Act. Part VI of the Act under which Section 132 of the Evidence Act comes, though headed thus:

“The exclusion of oral by documentary evidence.” Section 132 specifically applies to evidence of contents of written judgment, judicial or official proceedings, contracts, grants or other disposition of property. It is the contents of these documents, not every document, which when reduced to writing, the section states, must be given in evidence rather than oral evidence thereof. This is clearly brought out by Sub-Section (2) of Section 132 as follows:-

Section 132(2) “Oral Evidence of a transaction is not excluded by the fact that a documentary memorandum of it was made, if such memorandum was not intended to have legal effect as a contract, grant or disposition of property.

Surely Exhibit C, the Valuation Report is not a contract, grant or memorandum evidencing disposition of property. Section 132 is thus in-applicable to it. The submission lacks merit.

In conclusion, in the light of all the foregoing, Issue No.2 and 4 are answered in the affirmative. The sum of N45,750.00 special damages was rightly awarded by the learned trial Judge, and Exhibit C rightly admitted in evidence. In effect grounds 2 and 4 of the grounds of appeal fail.

In Issue No. 3, it was felt on the appellant’s side that the award of N45,750.00 as special damages and N180,000.00 as general damages, amounts to double compensation.

My decision in respect of issues 1 and 2, has virtually answered the questions, under issue 3, I will however further address the issue albeit as concisely as possible, to consider some fresh points in the submissions of Counsel for the parties.

It is correct that the law frowns against double compensation and would not ordinarily allow a party for a specific loss suffered, to claim general damages under that head (of special damages). See Federal College of Education v. Anyanwu (1997) 4 NWLR (Pt.501) 533 at 561.

The reasoning behind this, is that it is wrong to adjudge an item of specific loss as general damages when indeed it is a special damage to be specifically pleaded particularized and strictly proved. To this extent learned counsel for the appellant is correct.

Mr. Amupitan had also submitted that in the present case, the plaintiff claimed N45,750.00 as full value of the cost item i.e. his Peugeot car. Having awarded this as special damages he stated, any further sum under general damages would amount to double compensation. According to him, at best, only nominal damages could be justified. He cited Artra Industries Ltd v NBCI (1997) 1 NWLR (pt.483) 574; (1998) 65/57 LRCN 3255.

In his brief of argument, learned Counsel for the respondent, Mr. Kwede countered appellant’s submission. In his view, when a party proves to the satisfaction of the court both special and general damages, he would be awarded both. He pointed out that in the case of Artra Industries (supra) (also reported in (1997) 1 NWLR (Pt.483) 574 at 578 (SC), the court clearly stated the principles guiding the award of both special and general damages and the guiding principles in double compensations. These do not apply to this case. For, paying the full value of the car cannot amount to general damages. He urged, that it will be wrong to hold that the value of the car will compensate all the hard, difficult and trying moments which the respondent was subjected to. He distinguished the case of Ezeani v. Ejidike (1964) 1 All NLR 402 cited by Mr. Amupitan, from the present case, pointing out that while in that case, the plaintiff was awarded full value of his materials but when he also sought to obtain damages for consequential loss of the same material, the court refused, but it is not so here.

I am in complete agreement with the submission of Mr. Akwede. There is no question of double compensation in the claim by the plaintiff or the award of double compensation by the trial court. In the first instance, as set out earlier in this judgment, in a claim in negligence, the plaintiff is entitled to special and general damages, where negligence is proved and items of special damages are fully pleaded with particulars and are strictly proved. In the case of general damages, evidence identifying the damage will suffice, not the quantum which is in the discretion of the court. See Elochin (Nig) Ltd v. Mbadiwe (1986) NWLR (Pt.14) 47; Sommer v. FHA (1992) 1 NWLR (Pt.219) 548; Obmiami Brick & Stones (Nig) Lid v. ACB (1992) NWLR (Pt.229) 260 at 312.

The law has been clearly stated by our courts in a number of cases to the effect that where a vehicle is involved in an accident through the negligence of another and the same is a total loss, the plaintiff is entitled to damages, being the value of the car at the time of the loss plus loss of earnings and inconveniences of being without a car for a reasonable period capable of acquiring another car. See Ibeanu v. Ogbeide (1998) 12 NWLR (pt. 576)1 at 4; Kerewi v. Odegbesan (1965) 1 All ALR 95 at 99; Ishola v. Kebbi & Kerean (1971)1 NWLR 330; Ubani Ukoma v. Nicon (1962)1 All NLR 105.

In the present case, the plaintiff had lumped certain items which should have been claimed as special damages with those of general damages as I earlier decided. These were claims for loss of use and medicals.

Had the items been placed under the correct head of claim, viz special damages with their particulars and were strictly proved, the plaintiff would have been entitled to compensation on them, in addition to the compensation for the value of his car at the time of the accident, less the value of the scrap and to general damages. In personal injury cases, damages for pain and suffering are claims to which a plaintiff is also entitled as general damages. See The Mediana 1900 AC 113 at 116 – 117; Okpan v. Ogarekpe (1991)1 NWLR (pt.170) 773.

Payment for each of all the above does not ever amount to double compensation. I am referring to value of the lost vehicle at the time of the accident, damages for loss of use, medical expenses, general damages for pain and suffering.

My answer to Issue No.3 is therefore in the negative.

Issue No.4; I reiterate that this issue has been fully addressed along with issue No. 2. The result is that the learned trial judge was right in relying on the evidence of PW3 and Exhibit C for the reasons set out above. Ground 4 of the appeal therefore fails.

Issue No.5 asks whether the trial judge was right in holding that the vehicle in question belonged to the plaintiff. Appellant’s counsel pointed out that the onus of proving ownership of the vehicle lies on the respondent and without proving this with credible evidence, there would be no basis for any award in his favour. He submitted that the oral evidence that the particulars and receipt of the vehicle were burnt with the vehicle was not pleaded. Therefore, according to him, it goes to no issue and should be expunged. Further, in his view, these documents were public documents and must be proved by certified true copy in accordance with Section 97(1) (e) and 2(c) of the Evidence Act, not by the oral evidence of the plaintiff. Certified copies of the documents he said, were not obtained from the Plateau State Motor Licencing Authority and the oral evidence was inadmissible.

Learned respondent’s Counsel replied that the respondent pleaded the burning of the vehicle and other items in paragraph 8 of the statement of claim and reiterated that in his evidence in court on page 22 of the records. It was not in dispute that the respondent was driving the vehicle and all the plaintiff’s and defence witnesses testified to that. It is not shown anywhere in the records that there was any rival claimant to the ownership of the vehicle. He urged this court to hold that the respondent need not present any certified copy or secondary evidence of ownership of the vehicle before being recognised as the owner of the vehicle he was driving and using before it got burnt in the accident in issue, citing Maduga v Bai (1987) 3 NWLR (Pt.62) 635, 636 where the court expressed the view that, though the presumption of law in accident cases were refutable, the court was entitled to draw the inference that the vehicle was being driven by the owner, his servant or agent at the material time.

The first thing that would strike one about this issue No.5 after going through the Record of Proceedings, is that the question of ownership of the vehicle driven by the respondent was not seriously in issue at the trial of this suit at the lower court. The plaintiff pleaded ownership, the defendant pleaded in reply that he was not in a position to say the owner. When the plaintiff led evidence of his ownership, and spoke of “my car” right through the trial, he was not challenged by cross-examination.

The court was bound to believe him on minimal of proof. There was evidence also that at the time of the accident, the plaintiff was the driver of the car. The rebuttable presumption referred to by the respondent’s counsel that a vehicle involved in an accident while being driven, was driven by its owner or his servant or agent at the time of the accident (in Maduga’s case, (supra) stands in favour of the claim of ownership by the plaintiff. That is so, until this presumption is rebutted. It was not rebutted.

As rightly submitted by learned respondent’s counsel, there was no counterclaimant and the court below was bound to recognise the only claimant of the vehicle who was in possession and driving it at the material time. On the submission that the receipt and particulars which were burnt were not pleaded, it is my view that it was enough to plead that the vehicle was burnt and that items in the vehicle were burnt. In paragraph 8 of the statement of claim the plaintiff averred:

“By reason of the matters aforesaid the plaintiff was unconscious, ….and his vehicle got burnt completely …and plaintiff suffered loss and damage. He set out particulars of damage to include:-

(ii) Cost of items burnt in the vehicle”

The learned trial Judge in his review of plaintiffs evidence noted that the plaintiff testified that he had items in the car worth N00.00 (sic) and also that all receipts and particulars of the car were burnt along with the car. He was right. The essence of pleadings in court practice, is to save the opposite party from surprise and embarrassment. In my view, the defence had sufficient facts from the pleadings of the plaintiff not to be taken by surprise by the subsequent details of loss or damages following the complete destruction of the car by fire. Was the respondent not expected to have the particulars of his vehicle in the vehicle while driving it? Any reasonable person would expect him to.

It is to be noted that the plaintiff did not attempt to give oral evidence or details of the receipts or the particulars of the vehicle lost as would invoke Section 95 or 97 of the Evidence Act. Even if he had, by section 97(1) (c) of the Act, he was entitled to give oral evidence since it was clear that the original was destroyed with the vehicle by fire. For by Section 97(2)(a) of the Act, any secondary evidence of the content of such documents so destroyed, is admissible in evidence.

The question whether a receipt of purchase is a public document under Section 109 of the Act, as submitted by Counsel for the appellant, to my mind, is a matter of evidence. It cannot be declared in an address, nor can it be merely presumed by counsel. Without that evidence, the appellant cannot invoke its application.

In the light of above, I am unable to uphold the appellant’s Counsel’s submission that the plaintiff’s evidence relating to the destruction of the receipt and particulars should be expunged from the records. In Issue No.6, learned Counsel for the appellant urged us to hold that the judgment was against the weight of evidence, In this regard. Counsel did not point out any other evidence not evaluated except PW3’s. He only repeated his grouse against the evidence of PW3 which formed the subject of his issues 2 and 4. He said that PW3 saw ashes and assessed and imagined what the vehicle would have been in 1988. In his view, had the trial Court properly evaluated the evidence of PW3, he would have discovered that he contradicted himself when he said that anything not iron, was burnt down and in another breath, that some detachable parts of the vehicle were removed. “By whom,” he asked. Then he complained that the trial court did not bother about these before accepting the evidence and using it to assess the award of special damages. He urged the court to reject the award and the entire judgment.

For the respondent, his Counsel, Mr. Akwede argued that the learned trial Judge painstakingly evaluated the evidence of both parties. He pointed out that the defence never said anything relating to damages claimed by the plaintiff. PW3’s evidence was not shaken and the court was entitled to rely on the uncontradicted evidence. He said the expert valuer need not have seen the vehicle before the accident to be able to give a correct value.

I have in addressing issues 2 and 4 fully taken care of the evidence of PW3 and need not repeat what has been said. The same is adopted for this issue. It was for the appellant to have cross-examined the expert witness with a view to discrediting him. See Shell Dev. Company Ltd v Otoka (1990) 6 NWLR (Pt. 159) 693. He did not do so.

The matters raised by the appellant arose from the failure of the appellant to attack with relevant questions and cross-examination the evidence of PW3 and his conclusions or to lead counter-evidence at the trial. He cannot complain now. For example, let me further address the appellant’s complaint that the trial court failed to evaluate the evidence of PW3. That cannot be correct. For, the learned trial Judge reviewed at length the evidence of the plaintiff and his witness, PW3 in relation to the claim of N45,750.00 special damages. (See page 53 of the records from line 6).

In the course of the review, referring to the evidence of the plaintiff, His Lordship noted that the evidence of the plaintiff was not contradicted in any way. Then further down the page,-after further comments on the evidence of PW3, “the expert witness,” the learned trial Judge stated: “The evidence also was not contradicted in any way.” (See line 30 also on page 53). He then concluded, awarding the sum proved and not challenged.

Also, I see no material contradiction in the evidence of PW3 to persuade me to disregard it. If considered relevant the question as to what were detachable parts of the car, or who removed them, ought to have agitated the mind of Counsel for the appellant during his cross-examination of PW3. It did not appear to do so. I see no merit in the appellant’s complaint in this issue.

Issue No.6 is therefore answered in the negative, in the respondent’s favour. In the final analysis, this appeal succeeds in part and fails in part. It succeeds partly with respect to ground 1, dealt with under issue No.1 only and fails in part of ground 1, and in grounds 2, 3, 4, 5 and 6 treated under issues 1, 2, 3, 4, 5 and 6.

The result is that under issue No.1, the award by the learned Judge of N180,000.00 general damages is hereby set aside. In its place, I award the sum of N40,000.00 general damages against the defendant/appellant in favour of the plaintiff/respondent.

The award by the learned trial Judge of N45,750.00 as special damages is upheld. It therefore stands. On the whole, the respondent shall have a total of N85,750.00 special and general damages. Judgment is therefore entered in that sum in substitution for the judgment of the High Court.

Taking into account all the circumstances of this matter and the fact that the appellant has been partly successful, I hereby award only N4,000.00 costs in favour of the respondent.


Other Citations: (2000)LCN/0909(CA)

Alhaji Lasisi Asalu & Ors V. Fatai Sule Dakan & Ors (2000) LLJR-CA

Alhaji Lasisi Asalu & Ors V. Fatai Sule Dakan & Ors (2000)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A. 

 The applicants were the plaintiffs in an action filed at Abeokuta High Court in Ogun State as suit No. HCL/27/80, while the respondents were the defendants. Judgment was delivered in the suit on 6th November, 1985. The plaintiffs (now applicants) were dissatisfied with the judgment and they filed a notice of appeal against it at the said High Court registry. The appellants thereafter perfected all the conditions of appeal given to them. The respondents however filed a motion in this court dated 14th October, 1994, in which they prayed this court for the plaintiffs/applicants’ appeal be dismissed for want of prosecution.

The applicants opposed the motion and to that end, they filed a counter-affidavit. The application was given suit No. CA/I/108/90 and it was taken and granted by this court on 17th November, 1994. The applicants have now filed the present motion dated 1st February, 1996 and filed on 2nd February, 1996. They are praying the court for the following reliefs:
“(1) An order setting aside the ruling of this Honourable court dated 17th November, 1994, in these proceedings.
(11) An order restoring and/or validating the appeal in suit No.HCL/27/80 between the parties herein, that is, Alhaji Lasisi Asalu & Ors. v. Fatai Sule Dakan & 6 Ors.”

The motion was supported by an 18-paragraph affidavit to which a number of documents were attached as exhibits. It was opposed by the respondents and to that end a 14-paragraph counter-affidavit was filed. Two documents were also attached as exhibits.
The applicants’ case, as set out in the affidavit evidence and in their brief filed in this court, is that as at the time the motion to dismiss the appeal for want of prosecution was filed, argued and granted the record of appeal was yet not ready and as such it was premature to say that the applicants claimed that after perfecting the conditions of appeal given to them, they were yet to be notified by the registry of the lower court that the record of appeal was ready. In fact, it was deposed in paragraphs 14 and 15 of the affidavit in support that the record was yet to be compiled and transmitted to the court as at the time the motion for dismissal of the appeal was taken and granted. It was also averred that the suit No. CA/I/108/90 given to the motion was meant for another appeal, which had been determined by the Court of Appeal.

Among the documents attached to the affidavit in support of the motion, are copies of three letters written by Lateef O. Fagbemi, a legal practitioner, engaged by the applicants, and the replies he received in respect of them. The first two of the letters, dated 30th January, 1995, were written respectively to the Registrar (Litigation), Court of Appeal, Ibadan; and the Registrar, Ogun State High Court, Otta.
In the letter written to the Registrar of this court, the learned Counsel wanted to know if there was any appeal with suit No.CA/I/108/90 with the parties as in the instant case. There was a reply to the said letter. The reply was signed by Mrs. C. A. Macarthy, for Deputy Chief Registrar. It was confirmed in the letter that, “the appeal bearing CA/I/108/90 was a matter that had been previously disposed of since 9th April, 1992. Also, the parties in respect of the appeal No. CA/I/108/90 are different from the parties in suit No.HCL/27/80.” It was also confirmed in the same letter that Suit No. HCL/27/80 is yet to be remitted to this Registry.

The reply received in respect of the letter the learned Counsel wrote to the registrar of the court in Otta was that the trial of the suit took place in Abeokuta before the Otta Judicial Division was created. It was therefore advised that all enquiry about the matter should be directed to Abeokuta High Court.
This led the same Counsel to write a letter to the Registrar of the High Court at Abeokuta. There was a reply from the registrar and it was dated 17th February, 1995.
The letter was signed by an Assistant Chief Registrar, Mr. M.A Quadri. The writer could not confirm if in fact record of appeal in question had been compiled. But it is stated therein that the exhibits tendered at the trial of the case were still with them at Abeokuta and that it was the practice to forward all exhibits to the Court of Appeal along with the record of appeal.

Based on the above facts disclosed by the applicants, it is submitted in the applicants’ brief that there was sufficient evidence to show that as at the time this court entertained that motion to dismiss the appeal for want of prosecution, it was not correct that the applicants in that motion had established that the record of appeal had ever been transmitted to this court.
Reference is made to Order 6 rule 2 of the Court of Appeal Rules, which provides, inter alia, that:
“The appellant shall within sixty days of the receipt of the record of appeal from the court below, file in the court a written brief…”
Also reference is made to Order 6 rule 10 of the same Court of Appeal Rules which provides inter alia that where an appellant fails to file his brief of argument within the time provided for in Order 6 rule 2 or within the time as extended by the court, the respondent may apply to the court for the appeal to be dismissed for want of prosecution.

It is submitted that a condition precedent to the exercise of the power of the Court of Appeal to entertain an application from the respondents herein to dismiss the appeal in suit No.HCL/27/80 had not been met and that this goes to the root of the competence of the court to entertain the application. It is further submitted that since it is clear from the evidence established in the instant case that the record of appeal had been compiled and transmitted to this court or served on the appellant before October, 1994, this court lacked jurisdiction to entertain the application because the condition precedent to the exercise of the court’s power to dismiss the appeal in the said suit No. HCL/27/80 did not exist. The decision of the Supreme Court in Adeigbe & Anor. v. Kusimo & Ors. (1965) 4 NSCC 188 at 19; (1965) 1 All NLR 248 was cited in support of this submission.

The Supreme Court had held, inter alia, in that case that a court is competent to entertain an action when the case comes before the court is initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of the court’s jurisdiction. It is therefore submitted that since the facts now show that the record of appeal in the case in question was transmitted to this court on 25th September, 1996 and the applicants, were served with their copy of the said record on 24th September, 1996, it was wrong of this court to have granted the application to dismiss the appeal made by the respondents.

The motion was opposed by the respondents and to that end; the respondents filed a 14-paragraph counter-affidavit. Two documents were attached to the motion. These are a copy of some pages of the record of proceedings of the case in question (Exh. A); and Ogun State Treasury receipt dated 27th September, 1990, for N304 issued in respect of the said record of appeal in suit No. HCL/27/80; Alhaji L. Asalu & Ors. v. F. S. Dakan & Ors. (Exh. B).

The respondents’ case as set out in the affidavit evidence as well as the respondents’ brief filed in this court, is that the respondents received and paid for their copy of the record of appeal on 27th September, 1990. They were issued with Ogun State Treasury receipt No. B849335 of same date for the N304 they paid for their copy of the record of appeal. They also claimed that from diligent enquiries made by the respondents, they found that the plaintiffs/applicants had collected their copy of the record of appeal sometime in 1990 and that the record had since been transmitted to this court. It was the Chambers of Chief Toye Coker, SAN, that settled the records on behalf of the appellant/applicants as that chambers also represented the applicants at the trial in the High Court.

The respondents brought their application for the dismissal of the appeal for want of prosecution on 14th October, 1994, which was about nine years after the settlement of record at the High Court Registry, Abeokuta; and four years after the respondents had obtained their copy of the record of appeal. The respondents’ motion for the dismissal of the appeal was opposed and a counter-affidavit deposed to by one Jimoh Lawal, a litigation clerk in the chambers of Chief Toye Coker & Co. The man deposed, inter alia, in paragraph 4,5 and 6 of the said counter affidavit as follows;
“4 That when this application dated 14th day of October, 1994 and the hearing notice were served on our chambers on 21st day of October, 1994, we proceeded immediately to make enquiries at the registry of the High Court in both Abeokuta and Otta Judicial Divisions.
5. That one Alhaji Arimi, the registrar in charge of appeal in Otta Judicial Division of the High Court, informed me and I verily believed him that he has not seen any indication to the effect that the appellants have collected the record of appeal.
6. That at the Abeokuta Judicial Division of the lower court, Mrs. Monsuratu Lawal, an officer in the appeal Division also could not see any record to show that the appellants have obtained the record of appeal.”

At the hearing of that motion in this court on 17th November, 1994, the appellants/applicants tried to secure an adjournment of the motion but the request was refused and the court took the motion and dismissed the appeal as prayed in the motion. A subsequent attempt was made by the applicants to get the case restored on the cause list when they brought a motion dated 1st February, 1996 and filed on 2nd February, 1996. They prayed this court in that motion for an order to set aside the ruling of this court. But learned Counsel for the applicant abandoned the attempt when he applied to withdraw the application. The motion was then struck out. The applicants thereafter changed Counsel and eventually brought the present application.

It is submitted on behalf of the respondents that there was only one appeal pending between the parties and it was in respect of the same suit No. HCL/27/80. The contention that there were two appeals with suit No. CA/I/108/90 has nothing to do with the case made out by the respondents. This is because the respondents was given that suit number when they filed their motion. If the registry of this court made an error in the number given to the respondents motion, that should not be made to have any effect on their application and the decision already taken to dismiss the appeal. Reference is made to the provisions of Order 5 rule 3 of Court of Appeal Rules, which prohibits this court from reviewing its judgment once given save to correct any clerical mistake or some error arising from any accidental slip or omission or to vary the judgment or order so as to give effect to its meaning and intention. It is then submitted that as there was no error or slip to be corrected in the said ruling of this court delivered in this case, the need to correct any aspect of it never arose. The decision in Olowu v. Abolore (1993) 5 NWLR (pt.293) 255 where the Supreme Court held that a ruling of dismissal by this court may not be set aside by this court, is cited in support of the contention that this court has no power to set aside its earlier order dismissing the appeal for want of prosecution. This court is therefore urged to dismiss the application.

The facts of this case are not much in dispute. The applicants lost at the lower trial court and they filed an appeal against the judgment. The parties settled record at the High Court Registry and thereafter the appellant did not do anything towards the prosecution of the appeal. The respondents moved the court to have the appeal dismissed for want of prosecution. The application was granted and the appeal was accordingly dismissed by this court for want of prosecution. The applicants first moved this court for that ruling of this court to be set aside. That application was, however, withdrawn and the motion was struck out. The same application has now been made.

The main contention of the applicants is that this court could reverse its earlier decision because the court was incompetent to make the order it made in the matter. The incompetency is said to have arisen from the fact that no record of appeal had been compiled by the lower trial court as at the time the application for dismissal of the appeal for want of prosecution was taken and granted. The decision in Adeigbe & Anor. v. Kusimo & Ors. (supra), was cited and relied upon. In that case, the Supreme Court drew a distinction between jurisdiction and irregularity; between the competence of the court to hear the case and the propriety of a bench who had not heard all the evidence adjudicating on the case. The principle to be followed in respect of any defect in competences as enumerated by the Supreme Court in Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt.4) 587 which is that; any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication. If however, the court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial. In the instant case, the complaint of the applicants is that the record of appeal had not been compiled and transmitted to this court and that the copy could not have been available to the applicants as at the time this court made its order dismissing the appeal for want of prosecution. That allegation can definitely not constitute a defect in jurisdiction which, according to the principle of law declare by the Supreme Court in the Madukolu v. Nkemdilim case (supra), could render that decision a nullity. In other words, while such an allegation, if in fact the facts were established which was not in the instant case, could only amount to the decision not been supported by the evidence led at the trial. At best such could constitute a good reason for an appellate court entertaining an appeal from the decision, allowing such appeal. But it could not render the trial a nullity.

The question which needs to be resolved in the present case therefore is whether this court has the power to review its previous judgment. Order 5 rule 3 of the Court of Appeal Rules, makes provision relating to review of judgment of this court. The rule provides as follows:
“The court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and substantive part of it be varied and a different form substituted.”
There is, however, an exception to the above provision of Order 5 Rule 3 barring this court from reviewing any of its judgment. The exception is provided in Order 3 rule 20 (4) of the Court of Appeal Rules. It is in relation to appeals dismissed under Order 3 rule 20(1) of the said Rules for non-compliance with condition of appeal. The said order 3 rules 20(1) and (4) provides as follows:
“20(1) If the appellant has not complied with any of the requirements of rules 10 and 11 of this Order, the Registrar for the court below shall thereupon order that the appeal be dismissed either with or without costs, and shall cause the appellant and the respondent to be notified or the terms of its order.
(4) An appellant whose appeal has been dismissed under this rule may apply by notice of motion that his appeal be restored and any such application may be made to the court which may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”
The position of the law therefore is that this court lacks the power to review any of its judgment, ruling or order: See Chukwuka & Ors. v. Ezulike (1986) 5 NWLR (Pt.45) 892; and exception to this rule, however, is in respect of appeals dismissed by this court for non-compliance with the condition of appeal under Order 3 rule 20(1). In such cases, this court is allowed under Order 3 rule 20(4), upon a motion by the appellant and for good cause, restore the dismissed case unto the cause list; See Olowo v. Abolore, (supra).

As the appeal in the instant case was not dismissed by this court for non-compliance with the conditions of appeal under Order 3 Rule 20(1) of the Court of Appeal Rules, but that it was dismissed for want of prosecution, the applicants are not entitled to the relief provided in Order 3 Rule 20(4) of the Court of Appeal Rules. In the result, there is totally no merit in the application and I accordingly dismiss it with N3,000.00 costs to the respondents.


Other Citations: (2000)LCN/0908(CA)

Vihishima Igbum V. Alhaji Baba Nyarinya & Anor (2000) LLJR-CA

Vihishima Igbum V. Alhaji Baba Nyarinya & Anor (2000)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.C.A. 

This is an appeal against the judgment of Emmanuel Ogbole J., sitting in the High Court of Benue State, in the Makurdi Judicial Division in suit No.MD/21/86, wherein he dismissed the appellants’ claim. The judgment was delivered on January 13, 1997. Before the court below, the original plaintiff (Nje Igbum) took out a writ of summons dated 10/3/86 against the respondent as defendants claiming the following reliefs:-

“The plaintiff therefore claims:

(a) his right of occupancy from the two defendants;

(b) the ejection of 2nd defendant from the said Plot No. 744 thereby giving possession back to the plaintiff.

(c) An injunction order restraining the defendants their servants and agents from further trespass on the said Plot No.744.”

It does appear that at a subsequent date (not shown in the record) pleadings were ordered. The same were filed and exchanged and later amended by each side with the defendants filing yet some five new paragraphs in addition to the amended statement of defence which learned Counsel tagged “Amended paragraphs 10, 11, 16 and 17 of reply to amended statement of claim by 1st and 2nd defendants.” From the amended statement of claim the plaintiff’s claim was slightly amended in his prayer (b) wherein he claimed as follows:-

“The plaintiff there claims jointly and severally:-

(a) His Certificate of Occupancy No.744 from the two defendants.

(b) The ejection of the 2nd defendant, namely Dan Azumi Yinusa from the said Plot No. 744 thereby giving possession back to the plaintiff.

(c) An injunction order restraining the defendants, their servants and agents from further acts of trespass the said. Plot No. 744, Wadata Ward, Makurdi.”

Before the suit was set for hearing, learned Counsel for the plaintiff, on 4/4/90 filed a motion on notice dated same date praying for the substitution of the appellant herein (Vishima Igbum) in place of the original plaintiff on the ground that the latter was killed by unknown assassins on 24/1/90. That motion was moved and granted on 28/5/90. The suit was accordingly heard at the end of which the learned trial Judge delivered a considered judgment dismissing the plaintiffs claim in its entirety. Not satisfied with the judgment, the plaintiff appealed to this court questioning the judgment on five grounds of appeal as contained in the notice of appeal. I shall where the con admits and for ease of understanding refer to the plaintiff as “appellant” and the defendants as “respondents” respectively.

Before this court, parties filed briefs of argument in due compliance with the rules of court. From the five grounds of appeal, learned Counsel for the appellant identified five issues as arising for determination therefrom. Learned Counsel for the respondents, on his part identified three issues for determination. In order to effectively determine the appeal, I shall consider the five issues framed by the appellant more so that the three issues culled out by the respondents will easily be considered within the framework of the appellant’s issues.

Although no attempt was made in the briefs of argument by either learned Counsel for the appellant or the respondent to consider the background facts giving rise to this appeal whether arising out of oversight or inexperience in the art of brief writing, I think it is important to give a resume of the facts of the case especially as the determination of the appeal will turn out principally on the consideration of evidence by the learned trial Judge and the findings of facts he arrived at.

It was the plaintiffs case (now the appellant’s case having been duly substituted for the former) that he had had relapse of illness which forced him to seek for treatment at the General Hospital, Lafia, as well as herbalist homes each time there was reoccurrence of the fit. That because he was impecunious, he used to pledge his plot of land at No. 744 Wadata Ward, Makurdi. It was in that respect that on 19/4/81 he pledged his said plot of land to the 1st respondent for the sum of N1,600.00 and handed over to him his Certificate of Occupancy covering the plot. That an agreement was entered into by them to evidence the transaction. It was the appellant’s case that on a date not stated the 1st respondent went to the plot in question (where the original plaintiff was living with his family) and pleaded with plaintiffs wife to surrender the latter’s copy of the agreement under the guise that his copy was destroyed by rain water and that he desired to produce a photocopy of it. The woman refused the request but that as she entered her kitchen to prepare food, the 1st respondent sneaked into her bedroom and made away with the agreement “and some documents.”

It was further the appellant’s case that at a later time the 1st respondent called on the plaintiffs wife and hinted her of plans by the Government of Benue State to revoke all title documents over undeveloped lands within the Makurdi metropolis and that in order to safeguard plaintiff’s interest he was going to build a 4-bedroom house on the pledged plot which he would occupy for four years at the end of which period the whole building would revert to the plaintiff. That the plaintiffs wife conceded to the idea wherein the 1st respondent constructed a 4-bedroom house on the land.

Upon return from treatment, the original plaintiff objected to the development he saw on his land and directed the 1st respondent to demolish the building but to no avail. It was the original plaintiff’s case that four years had since passed but the 1st respondent failed and/or refused to vacate the house. At the end of it all, the learnt that the 1st respondent had sold the land together with the building thereon to the 2nd respondent for a consideration of N20,000.00.

The case for the 1st respondent is that the original plaintiff, on 19/4/81 sold to him his plot of land situate at No. 744, Wadata Ward, Makurdi and an agreement to that effect was signed by them. He denied that the transaction was a pledge and further denied stealing any documents from the original plaintiffs wife or ever deceived her in order to build the house he constructed on the land he purchased.

The first issue for determination identified by the appellant is the following:-

“Whether the transaction between the appellant and the 1st respondent was a pledge or sale”.

In considering the above issue, I shall invariably discuss the first issue identified by the respondents namely “whether, the appellant having founded his claim for return of certificate of occupancy, possession and injunction on pledge of the Plot No. 744 to the 1st respondent did prove that Plot No. 744 was actually pledged to the 1st respondent such as to be entitled to judgment”.

As contained in the appellant’s brief of argument which was written in a rather curt style, learned Counsel stressed that appellant’s case before the court below was based on pledge and not sale of his Plot No. 744, Wadata Ward, Makurdi and that evidence was led to show how on previous occasions the appellant pledged the same piece of land. He further pointed out that evidence was led to prove that the 1st respondent stole the agreement from PW1. Further, he noted that the pledge had been redeemed. He urged this court to hold that the appellant had proved that what transpired between him and 1st respondent was a pledge and not an outright sale.

In reaction, learned Counsel for the respondents submitted that the appellant woefully failed to prove his claim that he pledged his landed property to the 1st respondent. Learned Counsel ran through the evidence led by the appellant before the court below. He noted that PW1 said she, it was, who pledged the plot in question but not her late husband. He submitted that that piece of evidence ran contrary to paragraphs 6 and 7 of the amended statement of claim. He further noted that PW2, who PW1 said was present when she pledged the plot of land to the 1st respondent, denied ever witnessing the transaction or the payment of N1,600.00 to the late original plaintiff. He is of the view that the better part of the evidence of PW2 was hearsay and should be discountenanced. He relied on Oguma v. IBWA (1988) 1 NWLR (Pt. 73) 658 at 669 for so submitting.

Continuing, learned Counsel pointed out that whereas PW 1 said she handed over the certificate of occupancy covering the plot in issue after pledging it, PW3 said categorically that the certificate of occupancy was indeed stolen by the 1st respondent. As regards the evidence led by PW3, learned Counsel submitted that it bordered on the commission of crime and should in the circumstance be proved beyond reasonable doubt. He submitted that the learned trial Judge was right in referring to the evidence of PW3 as, “a concocted story.” He finally submitted on this issue that the appellant had failed to prove title to the plot of land in issue.

The complaint of the appellant under this issue largely turns on the finding of fact made by the learned trial Judge. The appellant is of the view that given the evidence on record he had proved the pledge he averred in his amended statement of claim and that in any case he had proved that the pledge has long been redeemed.

PW1 was the wife of the late original plaintiff. In an attempt to prove the fact of pledge, she gave evidence inter alia as follows:”

“I live at Wadata, Makurdi. I am a farmer. I know the 1st defendant. I am in the court to testify to the effect that I pledged my compound to the 1st defendant for N1,600.00, I later refunded the money to him and yet he refused to give back my compound. My husband was not well and so I was looking for money to treat him and that was why I pledged my compound to him to get money for the treatment of my husband. The compound is covered by a Certificate of Occupancy. I gave him the original copy before he gave me the money. When I refunded the money to him he still refused to give me back the C. of O.”

The relevant amended statement of claim she sought to prove are paragraphs 2, 4, 5 and 6. They are couched as follows:-

“2. The 1st defendant was the pledgee of Plot No. 744 from plaintiff, the pledger, for a sum of one thousand six hundred naira (N1,600.00) only.

  1. The plaintiff was at all material times a sickly person whose habit was to pledge out his plot No. 744 Wadata ward, Makurdi, for certain sums of money to enable him get treatment at a General Hospital, Lafia.
  2. Thus, this particular Certificate of Occupancy No. 744, Wadata Ward. Makurdi was formerly pledged out to one Mtsor Adanyi for a sum of one hundred and twenty naira only to enable the plaintiff get treatment at General Hospital, Lafia.
  3. So it happened that on the 19th April, 1981, the plaintiff after he had redeemed his Certificate of Occupancy No. 744, Wadata Ward, Makurdi, from Mtsor Adanyi again pledged it to Alhaji Baba Nyarinyamai Kasuwa when he was once again taken sick to enable him treat himself. This time it was for a sum of one thousand, six hundred naira only (N1,600.00)”.

Clearly therefore, whereas in the pleading the appellant alleged that he pledged his piece of land situate at No.744, Wadata Ward, Makurdi, to the 1st respondent, PW1 (his wife) in her evidence not only claimed that the plot is hers but that it was indeed herself who pledged the plot to the said 1st respondent. Clearly therefore, the evidence on record completely betrayed the averment in the amended statement of claim. The evidence absolutely and unequivocally ran counter to the pleading. To make it beyond doubt that it was PW1 who pledged the land to 1st respondent and not the late original plaintiff, PW 1 said under cross-examination as follows:-

“The compound is situated in Wadata, in Makurdi town. I was the one who pledged the compound as my husband was not well. If my husband were alive he would have testified that I was the one who pledged the compound. Kumu Chave, John Adinya, deceased were present when I pledged the compound. Kumu Chave is in court. Late John Adinya was the one who wrote the agreement.”

Clearly therefore PW 1 not only contended that the plot of land belonged to her and that she was one who pledged it to the 1st respondent thus claiming adverse title inconsistent with the late original plaintiff’s she also woefully failed to advance the cause of the appellant. To make matters worse, PW1 sought to prove that when she pledged to 1st respondent the plot of land in question PW2 was around and witnessed it. But the evidence of PW2 given under cross-examination only confounded her case the more. Said he inter alia:-

“I was not there when the defendant gave the late Nje N1,600.00. When I returned from work, the late Nje told me that the defendant brought the said money. If PW1 said that I was there when the money was given, it is not true. PW1 only told me that the 1st defendant stole papers “belonging to the compound”. What I told the court was what I heard from PW1 and the late Nje.”

The evidence led in proof of the pledge averred in the amended statement of claim is absolutely unhelpful to the appellant. It only sought to put up a completely new case and therefore new cause of action. On the above premises, the learned trial Judge was absolutely right in holding that the appellant had failed to prove his case.

In paragraphs 10 and 11 of the amended statement of claim the appellant averred as follows:-

“10. The plaintiff’s wife refused to bring her husband’s copy but when the woman went into kitchen to cook the 1st defendant sneaked into her room and removed the said agreement.

  1. The plaintiff avers that the 1st defendant was very familiar with his house and knew where he kept his own copy of the agreement.”

In paragraph 9 of the amended statement of defence the respondents denied the allegation of the commission of the crime averred in the said paragraphs 10 and 11 of the amended statement of claim. The paragraph goes as follows:-

“9. The 1st defendant further avers that the averments contained in paragraphs 7, 8, 9, 10 11, 12 and 13 are allegations of fraud and criminal in nature and shall demand the strictest proof of same at the hearing of the suit.”

Clearly an issue has been joined on the theft of the alleged agreement evidencing the pledge and some unspecified documents. The law is trite that where in a civil action there is an allegation of the commission of a crime it must be proved beyond reasonable doubt. See section 138(1) of the Evidence Act. To prove the crime, 1st PW1 said:-

“The 1st defendant instead went and stole the agreement and other documents issued to me by the L.G. from my possession …” (See P. 38 lines 13 and 14 of the record).”

Under cross-examination. 1st PW said inter alia:-

“I am not literate and so I may not be able to identify the C of O. I said 1st defendant stole the agreement and other documents but I did not report the act to the police. I however reported the matter to John Kumun and Vishima Ibu (the present plaintiff). They did not take him to court. Kumu went to him asked him and he admitted that he stole the documents. I went to his house twice to demand for my documents but I did not meet him.”

It should be noted that the other documents allegedly stolen by the 1st respondent remained unknown up to now. Be that as it may, PW3 who said he was in the house and witnessed the stealing gave the following evidence. Viz:-

“On 5/3/86 at about 4 p.m., I went to the house of the plaintiff – Nje Tubum. He was not in. He left his wife named Chabu in the house. When I went there to greet, she went to fetch water and I sat in the round hut. After ten minutes the 1st defendant Alh. Baba Nyariya came.

He told the wife of the plaintiff that he wanted the written agreement and C of O to have the photostat.

The 1st defendant asked the wife to bring out the agreement and of a in that the one they had was drenched by rain. That he needed the original of the C of O and the agreement to photostat. The wife replied that she did not know where he kept it. This discussion was outside the round hut. Later Alh. Baba Nyarinya – 1st defendant came in and found the written agreement and the C of O on the table.

When he saw them, he carried them from the table. Chabu, the wife said that she was not the one who gave the documents to him but that he stole them. I was there and saw things myself.”

Further under cross-examination PW3 said as below quoted at page 45 of the record of appeal:-

“I know the defendant. We always call him “Alhaji”. I know his compound. He sells chairs, standing fans, shoes in Madikpo, Makurdi. Alhaji Baba Nyarinya sold the disputed compound to the 2nd defendant. I was not there when he sold the compound to him but I heard it from Chabu, PW1. I was there when all these things happened. I was sitting in the room when Alh. Baba entered and stole the documents Chabu PW1 was fetching water opposite the house when 1st defendant came. Alh. Baba himself told Chabu that he had found the documents and that he was going to photostat them and return the original. Chabu told him that she was not the one who gave them to him and that he stole them.

What the wife, PW1 said was in my presence and in the presence of the 1st defendant. On the day Alh. came the woman was fetching water and was not in the kitchen cooking. I know the words sneaking into the house,”

What is beyond argument is that whereas the pleadings show that the certificate of occupancy covering the plot of land in issue was handed over to the 1st respondent after the land was pledged (as the respondent contend) PW3 said in his evidence that amongst the documents 1st respondents stole included the certificate of occupancy. 1st PW herself did not say that the certificate of occupancy was among the documents 1st respondent stole. Indeed, even though 1st PW said she had gone to the kitchen to prepare food when 1st respondent stealthily sneaked into her bedroom and stole the documents, PW3 said the 1st PW had indeed gone out to fetch water when the theft was committed. He insisted on what he said inspite of the searching questions learned Counsel worried him with. All these pieces of evidence are given inspite of the fact that 1st PW did not say that PW3 was in her said bedroom when 1st respondent “stole” the documents as PW3 wanted the court to believe. Therefore since PW3 said he actually saw when 1st respondent stole the certificate of occupancy and gave some features of it but the pleadings and the evidence of 1st PW indicate that the certificate of occupancy was handed over to the 1st respondent as early as the date they entered into a transaction, the finding of the learned trial Judge cannot but be correct. The learned trial Judge found as follows:-

  1. “There is no corroboration between the evidence of P.W.1, 2, & 3 as to the commission of the theft of the alleged pledged document and Certificate of Occupancy in respect of plot No. 744. P.W.1 Chabu Nje made a wild allegation of theft of the alleged pledge agreement and other documents in respect of the plaintiff but has failed to substantiate it. She made no report to the Police and neither was 1st defendant prosecuted. Evidence of P.W.2 is hearsay. He was only told of what 1st defendant was alleged to have done. Evidence of P.W.3 is a concocted story and has no lots of truth. There was a factual transaction of sale of the said plot belonging to the plaintiff initially, and after the execution of the agreement, documents relating to the property were only handed over to the 1st defendant (Exh. 1 & 3) and he accordingly took possession of the property and subsequently made some development on it by putting up a four bedroom bungalow on it to the knowledge and in the presence of the plaintiff, Mr. Nje Igbum.”

I entirely endorse the finding of fact of the learned trial Judge. Given the contradictory evidence on record, the appellant absolutely failed to prove the theft of the agreement or the unspecified documents.

From the amended statement of claim there is no averment indicating that the amount of N1,600.00 collected from the 1st respondent was refunded so that the pledge would justifiably be held to have been redeemed. However, 1st PW while giving evidence said she had redeemed the pledge, said she under cross-examination:-

“I later refunded the money to him and yet he refused to give back my compound” (See P. 33 lines 6 and 7).”

The above piece of evidence has been adduced when it was not pleaded. The law is settled that where evidence is adduced or attempted to be adduced on facts not pleaded such evidence should not be allowed to be given and where it had been given, it should be discountenanced or expunged. See Emegokwue v. Okadigbo (1973) 4 S.C. 113; Okafor and Others v. Okutiakpe (1973) 2 S.C. 49; Njoku & Others v. Eme and Others (1973) 3 S.C. 293; Onamade v. A.C.S. Ltd. (1997) 1 NWLR (Pt. 480) 123 SC. Even the bare assertion of 1st PW that she had redeemed the pledge over her plot of land ran foul of the pleading since she is not the plaintiff. I am therefore in complete agreement with the learned trial Judge when he found that, “there is no evidence to support the claim of the plaintiff that the N1,600.0 given for the plot allegedly pledged, was refunded to the defendant” (See page 90 lines 6 to 9 of the record). Evidently, the finding of the learned trial Judge at page 90 of the record is absolutely correct. Said he:-

“On the other hand evidence of PW1, PW2 and PW3 is so overwhelming that the transaction between the plaintiff Nje Igbum and the 1st defendant on 19/4/81 could not be any other thing also but sale of the residuary interest of the late Nje Igbum in respect of the Certificate of Occupancy No. 744. In the circumstances, it is my humble view that the transaction on that day 19/4/81 between the late Nje Igbum and the 1st defendant was a sale and not a pledge as claimed by the plaintiff.”

It is clear that the evidence adduced by the appellant failed to address the pleading he filed. In law facts pleaded but not proved by evidence are deemed abandoned. See Ojikutu v. Fella (1954) 14 WACA 628; Olarewaju v. Bamigboye (1987) 3 NWLR (Pt. 60) 353 at 354; Emegokwue v. Okadigbo (1973) 4 SC 113 at 117 – 118; Egbunike v. A.C.B. Ltd. (1995) 2 NWLR (Pt.375) 34 at 55; Awojugbagbe Light Ind. Ltd. v. Chinukwe (1995) 4 NWLR (pt. 390) 379 at 427.

The first issue identified by the appellant is therefore resolved against him and the answer to it is that the transaction between the appellant and the 1st respondent was an outright sale. In the same vein, the first issue identified by the respondents is answered in the negative.

The second issue identified by the appellant is worded thus:”

Whether PW1 wife to the original plaintiff, cannot inherit his property under Tiv native law and custom.”

The above issue arises from the second ground of appeal. While addressing the issue learned Counsel submitted that Tiv native law and custom with respect to inheritance was neither pleaded nor led in evidence. He continued and argued as follows:

“As the wife of the late Nje Igbum, PW1 has the right to describe her late husband’s property as her property and the respondents did not deny that PW1 is the wife of late Nje Igbum.”

He finally submitted that the learned trial Judge was wrong to have relied on a custom that was neither pleaded nor proved.

The respondents have identified no issue corresponding to the above and therefore argued nothing in that respect. But suffice it to say that the pleadings contain nothing about Tiv native law and custom relating to inheritance. Neither is there evidence on record relating to any such native law and custom, Thus the issue of inheritance under Tiv native law and custom was not called to question in the suit before the court below.

The finding of the learned trial Judge under attack can be found at the last paragraph of page 88 of the first two paragraphs of page 89. The finding is reproduced hereunder:-

“But Exh. 1 Certificate of Occupancy No. 744, in respect of the plot in question bears the name of Nje Igbum as the owner and not Chabu Nje. Although Nje Igbum was her husband she has no right to have claimed the plot to be her own when the husband was still alive and also the fact that she is not the right person to inherit her husband according to Tiv custom. In support of this view that she is not the right person to inherit her husband, she herself said in answer to cross-examination, that:

“‘By Tiv custom it is my son that will inherit my husband. The senior brother of my husband will take care of the property or hold the property for the son. If the court gave me the plot, I shall hand over same to Vishima.

In the circumstances, PW1, has no right and could not have pledged her husband’s property in her own name without the consent of her husband.”

Learned Counsel is absolutely correct when he contended that the question of Tiv native law and custom relating to inheritance was not an issue before the court below. Besides, no evidence was led however wrongly relating to Tiv custom on the rights of a surviving wife upon the death of her husband. In the circumstances, the learned trial Judge was wrong in pronouncing that 1st PW was “not the right person to inherit her husband according to Tiv custom.” That positive though innocuous finding notwithstanding, it has no bearing on the overall findings of the learned trial Judge and the ultimate decision he reached in the suit. Whether 1st PW was not, under Tiv native law and custom entitled to inherit the estate of her deceased husband, the fact remains that the appellant had woefully failed to prove the case he himself presented in his pleading relative to the evidence on record. But for the finding of the learned trial Judge under attack it is beyond argument that it is made Obiter as it is not called to question. Hence, the answer to the second question formulated by the appellant will appear to be neither here nor there. It is simply academic as it appears theoretical since the answer to the question will not address any matter indifference between the parties. See Adeyemi v. Opeyori (1976) 9-10 Sc. 31; Eperokun v. Unilag (1986) 4 NWLR (Pt. 34) 162 at 179 Okulate v. Owosanya (2000) 2 NWLR (Pt. 646) 530 at 550.

The third issue identified by the appellant is, “whether Exhibit 3, the sale agreement is a valid document even though it has no jurat.” This issue appears to relate to ground 4 of the grounds of appeal. This issue too was not discussed by the respondents. Learned Counsel submitted that the exhibit is not valid because it bears no jurat and ought therefore, not to have been admitted in evidence. He continued and argued as follows:-

“Exhibit 3 was interpreted in both Hausa and Tiv languages before the parties made their mark. DW1, DW2 and DW3 testified to that effect that Exhibit 3 was read to them and interpreted to them in Hausa and the parties since (sic) non of them understood English. We therefore submit that since this fact of interpretation which was not reflected on Exhibit 3 as required by the law the purported transaction was null and void and of no effect and therefore Exhibit 3 was wrongly admitted in evidence and we urge the course to so hold.”

The issue at hand questions the validity of Exhibit 3 the sale agreement on the ground that it contains no illiterate jurat. In the course of argument however, learned Counsel added another dimension to the document. It is his view that the document is wrongly admitted. In the first place, is the document a valid one? The objection of learned Counsel against the validity of the document has to do with the absence of any illiterate jurat on it. The law requires documents executed by illiterates to comply with the provisions of the Illiterates Protection Act and such similar laws. Thus the writer of a document which creates legal rights between the parties to the document whether one of the parties is an illiterate or both is mandated to so indicate in the document that he did read and explain to the illiterate person in the language he clearly understands the contents of the document and the latter understood and accepted to be bound by it.

Illiterates Protection Act and such similar Laws primarily aim to protect an illiterate by ensuring that he understands the meaning and effect of the document which he is signing. It is thus a shield at the disposal of the illiterate, who, in the con of the act, is understood to be a person ignorant of letters, unlearned or unable to read the document in the language in which it is couched. I however need not delve into the meaning of the word “illiterate” because the issue under consideration requires only an answer to the question whether the appellant is an illiterate. Looking most meticulously through the amended statement of claim before the court below, there is no averment therein to the effect that the appellant is an illiterate. Throughout the evidence led by the appellant, there is nothing to suggest that he is or was indeed an illiterate. The only suggestion that the appellant was an illiterate came from Mr. Ndefo of counsel while objecting to the admission of the document now in question. So the question of illiteracy of the appellant was not an issue at all. In which event the need to incorporate an illiterate jurat in Exhibit 3 did not arise. Evidently, Exhibit 3 is a valid document as there was no need to incorporate in it a jurat.

Learned Counsel contended that the document was wrongly admitted in evidence on the ground that the explanation the writer made to the parties about its purport and effect was not reflected on the document. As I earlier on pointed out, since neither the appellant’s pleading nor the evidence he adduced indicated that he was an illiterate. the need did not arise for a jurat to be incorporated in the document. The invocation of section 2(a) and (b) of the Illiterates Protection Law, Cap 51 of the Laws of Northern Nigeria, 1963, applicable to Benue State therefore did not arise. At the tale end of the argument of learned Counsel he alluded to one vital issue of law. I shall quote him hereunder:-

“Exhibit 3 is also against S.8(i) of the Land Registration Law, Cap 58, Laws of NN since it is not registered.”

If I understand learned Counsel, his submission is that Exhibit 3 being an agreement for the sale of land is a registrable instrument and that not having been registered it offends the clear provisions of section 8(i) of the Land Registration Law of Northern Nigeria, applicable to Benue State and is to that extent rendered void. I entirely agree with learned counsel on the legal effect of non-registration of a registrable instrument where it is intended to prove title. An instrument which is registrable but not registered cannot be pleaded nor tendered or produced in evidence. See Ossai v. Nwajide (1975) 4 SC. 207; Ojugbele v. Olasoji (1982) 4 SC. 31; Akinlola v. Solano (1986) 4 NWLR (pt.24) 589. But that does not mean that it cannot be tendered and admitted to establish evidence of transaction and to prove payment in respect of the land transaction. See Adeniji v. Onagoruwa (2000) 1 NWLR (Pt.639) 1; Dauda v. Bamidele (2000) 9 NWLR (pt.671) 199 at 212.Given the complete failure of the appellant to prove his pleading, the admission in evidence of Exhibit 3 in no way affected his case. I answer issue 3 in the affirmative.

The fourth issue is framed as hereunder reproduced:-

“Whether there was a valid transaction(s) between the appellant and the 1st respondent and the 2nd respondent without the consent of the Governor.”

The above issue has been identified as arising from the 3rd ground of appeal. Related to the issue is the 2nd issue formulated by learned Counsel for the respondent which is:-

“Whether the respondent’s (sic) assertion that the transaction between the 1st respondent and the late plaintiff was one of sale was made out at the trial court, and if it was, whether the sale was vitiated by lack of consent to sell, assuming in all circumstances of his case the issue of consent was relevant.”

Learned Counsel for the appellant submitted on the issue that the transaction between the 1st respondent and the appellant and that between the 1st respondent and the 2nd respondent require as a precondition that the consent of the Governor would first be sought and obtained as a condition for its validity. He noted that DW1 and DW4 said in evidence that the consent of the Governor was not obtained either before or after the transaction. On the above premise therefore, learned Counsel submitted that the learned trial Judge was in error when he held that there was a valid transaction of sale of the disputed plot of land inspite of his earlier finding that the absence of statutory consent of the Governor rendered the sale null and void. He relied on sections 22 and 26 of the Land Use Act, 1978 and the following cases:-

Alase & Ors. v. Olori Ilu & Ors. (1965) NMLR 66; Oredola Okoya Trading Co. Nig. Ltd. v. A-G, Kwara State and Others (1992) 7 NWLR (Pt.254) 417 (1992) 9 SCNJ 13 at 22 and Savannah Bank v. Ajilo (1989) 1 NWLR (pt.97) 305 (1989) 1 SCNJ 159 at 180.

In reaction, learned Counsel for the respondents stressed that the evidence led for the respondents established the fact of the sale transaction and the hand over of the Certificate of Occupancy covering the plot of land in issue as well as the steps taken in order to effect change of ownership. He therefore submitted that the negotiations that culminated in the sale transaction cannot be vitiated by lack of consent of the Governor. He gave his reasons why the lack of consent would not vitiate the transaction to include the following:-

(a) That no evidence was led before the court below to prove that the land in question is situate in an Urban area so as to make the consent of the Governor an inevitable condition to be had.

(b) That the issue of consent being a special defence must be pleaded before it can be relied upon.

He relied on the following cases for so submitting vide:- Omorhirhi v. Enatevwere (1988) 1 NWLR (Pt.73) 746 at 760; NNSL v. Emenike (1987) 4 NWLR (Pt.63) 77 at 85 and Okunola v. Oduala (1987) 4 NWLR (Pt.64) 141 at 149 – 150.

(c) That even if the defence of lack of consent avails the appellant, it was his duty to obtain the consent to assign. He relied on Anaeze v. Anyaso (1993) 5 NWLR (Pt.291) 1, (1993) 5 SCNJ 151 at 186. He submitted that the appellant cannot rely on his wrongful act to justify an undeserved cause. He cited and relied on Solanke v. Abed (1962) 1 SCNLR 371.

There appears to exist some considerable misconception about the import of S-22 of the Land Use Act, 1978. There are certainly two broad stages culminating into the vesting of title to a purchaser in land transaction. The first stage is the agreement or contract stage. This stages does not require the consent of the Governor under S-22 of the Act. At this stage of entering into a contract for sale of land, no alienation has taken place as envisaged by the said S-22 and therefore the requirement of consent of the Governor does not arise. Up to the point of arriving at a binding contract, no consent of the Governor is required as a legal prerequisite. The second stage involves alienating or transferring the vendor’s right of occupancy and which is done by a conveyance or deed. Because this stage invariably involves the vesting of title in the purchaser, consent of the Governor must, as a legal prerequisite be sought and obtained. Failure to do so will render null and void the whole transaction by virtue of section 26 of the Land Use Act, 1978.

I should perhaps quote extensively the judgment of Uwaifo, JSC. in International ile (Nig.) Ltd. v. Aderemi and 4 Ors. (1999) 8 NWLR (pt.614) 268 at pages 298 to 299 where his Lordship quite admirably, elaborately and clearly discussed the import of sections 22 and 26 of the Act. Said he inter alia:-

“I may here answer briefly an aspect of the argument of the 5th respondent that it was a breach of S-22 of the Act for the appellant to have gone into possession to do some reconstruction of the property and that therefore it cannot rely on it to insist on a contract. I think this is a clear misconception. To permit an act of part performance is simply one modality of contract formation. It does not transfer possession under S-22 of the Act in the sense of alienation. It merely creates a cause for the specific performance of the contract. It must not be presumed that S-22 can operate to do away with the doctrine of part-performance. It cannot, lest it be used as an instrument of fraud which it certainly is not mean for. The transaction under the first stage i.e. the agreement or contract stage does not require the consent of the Governor under S-22 of the Act. This is because when parties enter into a contract for the sale of land, no alienation has taken place as envisaged by the said S-22 which provides.

“22(1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise however, without the consent of the Governor first had and obtained.

(2) The Governor when giving his consent to an assignment, mortgage or sub-lease may require the holder of a statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage or sub-lease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under sub-section (1) of this section may be signified by endorsement thereon”

The position of S-22 of the Act is clearly this. A holder of a right of occupancy may enter into an agreement or contract, with a view to alienating his said right of occupancy. To enter into such an agreement or contract, he does not need the consent of the Governor. He merely operates within the first stage of a “transfer on sale of an estate in land” which stage ends with the formation of a binding contract for a sale constituting an estate contract at best. But when he comes to embark on the next stage of alienating or transferring his right of occupancy which is done by a conveyance or deed culminating in vesting the said right in the ‘purchaser’. He must obtain the consent of the Governor to make the transaction valid. If he fails to, then the transaction is null and void under S.26 of the Act. In my view, it is necessary to bear these two stages clearly in mind.

I think the distinction between an agreement to alienate land and the instrument by which the alienation takes place was sufficiently drawn by this court in Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (Pt.390) 379 in which the Privy Council case of Denning v. Edwardes (1961) AC. 245 on a similar point was approved. Directing his mind to the issue, Iguh, JSC. observed at pages 435 – 436:

“I think it ought to be stressed that the holder of a statutory right of occupancy is certainly not prohibited by section 22(1) of the Act from entering into some form of negotiations which may end with a written agreement for presentation to the Governor for his necessary consent or approval. This is because the Land Use Act does not prohibit a written agreement to transfer or alienate Land. So long as such a written agreement is understood and entered into subject to the consent of the Governor, there will be no contravention of section 22(1) of the Land Use Act by the mere fact that such a written agreement is executed before it is forwarded to the Governor for his consent. I agree entirely with Chief Williams, SAN, that section 22(1) prohibits transactions or instruments whereby the holder of statutory right of occupancy purports to alienate as a complete action, his right of occupancy by assignment, mortgage, transfer of possession, sublease or otherwise, the absence of the relevant consent of the Governor first and obtained notwithstanding:’ (Italics mine).

The issue at hand, questions the validity of the transactions contracted between the appellant and the 1st respondent and that between the 1st respondent and the 2nd respondent on the ground that the consent of the Governor was not sought and obtained. The legal position discussed above is clear that no consent of the Governor is required at the point of negotiations and transactions leading to a binding contract of sale. Thus, the transactions in issue are valid and parties thereto needed no consent of the Governor to arrive at valid agreement for the sale of the landed property. It must be noted that the issue as framed by the appellant is not questioning alienation or transferring title of the landed property in question but the “transactions between the appellant and the 1st respondent and the 1st respondent and the 2nd respondent without the consent of the Governor.” The stage referred to by the appellant understandably needed no consent of the Governor at all.

I further think that learned Counsel for the respondent was right when he submitted that there is no evidence showing that the land in question is situate in an Urban Area. I have gone through the evidence on record but am unable to find any indication that the plot of land in issue falls within an area designated as “urban”. Therefore the question of seeking for the consent of the Governor, even if the stage was reached, did not arise. In any case, even if the question of seeking for the Governor’s consent had arisen, it was the responsibility of the appellant to apply for it. Where he failed to do that, he will not be allowed to rely on his default to seek to nullify the transaction from which he derived monetary benefit. My answer to this issue is that there was indeed valid transaction between the appellant and the 1st respondent and between the 1st respondent and the 2nd respondent respectively even though the consent of the Governor was not obtained.

The last issue framed by learned Counsel for the appellant is:-

“Whether the appellant was caught up by the doctrine of laches and acquiescence when the trial court had earlier declared the entire transaction as null and void.”

The above issue is a variant of the third issue identified by the respondents and both will be considered together. Learned Counsel for the appellant submitted in his brief that the doctrine of laches and acquiescence in no way applied to the case at hand. He stressed that the appellant never neglected in asserting his right over the piece of land in issue. He therefore submitted that; “the learned trial Judge misdirected himself in law when he held that even though the sale was null and void the appellant was caught up by the doctrine of laches and acquiescence.

On his part, learned Counsel for the respondents submitted in his brief of argument that the learned trial Judge was right in applying the doctrine of laches and acquiescence as the same avails his clients. He cited the following cases in support:-

Yusuf v. Dada (1990) 4 NWLR (Pt.146) 657 (1990) 7 SCNJ 68 at 88 and Sosan v. Ademuyiwa (1986) 3 NWLR (pt.27) 241; (1986) 5 SC. 152 at 178 – 179. He urged this court to dismiss the appeal.

I should think that attention must be drawn to the conceptual meaning of the doctrine of laches and acquiescence. Laches and acquiescence as an equitable defence operates to bar a person who has slept over his right for a long period of time from asserting his said right against an innocent party. It derives its origin from the equitable maxim that “equity aids the vigilant and not the indolent.” It obviously discourages stale demands in the interest of peace and orderly society and is thus routed in public policy. Where the doctrine is successfully invoked the original or true owner of the property is made to lose his title over the property. But because the doctrine is only employed as a shield, the party that relies on it cannot get a declaration of title in his favour merely because of the reliance he placed on it. see Maji v. Shaft (1965) NMLR 33; Odutola v. Akande (1960) SCNLR 282, (1960) 5 FSC 142.

Laches and acquiescence it must be stressed does not consist simply in mere lapse of time. Also important is that it must be coupled with the existence of circumstances which make it inequitable for the contesting party to enforce the claim. See Kaiyaoja & On v. Egunla (1974) 1 All NLR 426. Such circumstances include a situation in which there is considerable change in the condition of the land or where expenses had been incurred in developing the land.

But more important is that it is of the essence of the doctrine of laches and acquiescence that the party pleading the defence did not know that the property he improved belongs to another. Of most serious note however is that there cannot be declaration of title in the favour of he who successfully established the plea of laches and acquiescence; Oshodi v. Imoru (1936) WACA 93.

With the above background one can safely consider the complaint of the appellant. The complaint, if I may repeat, is that the learned trial Judge was wrong in his finding that the doctrine of laches and acquiescence was successfully established by the respondent. The doctrine it appears, was employed by the learned trial Judge in two situations. The first situation was when he was considering the doctrine in relation to the reliefs seeking for ejection and injunction.

Let me quote the learned trial Judge at pages 91 to 92 of the record:-

“Issue No. D. Plea of Laches & Acquiescence by 2nd defendant. There is evidence to show that the 1st defendant sold the plot in question which he bought from the plaintiff, to the 2nd defendant for N7,600. The 2nd defendant having purchased the plot put up conditional buildings. All these while the plaintiff and his wife stood watching the both 15th and 2nd defendants put up buildings on the disputed plot without any protest to anybody. There is evidence that the plaintiff was even one of the labourers used to help in the constructions of the building at different intervals. There is also evidence that the plaintiff was employed as a guard for security of the building materials kept at the premises. I have considered the evidence adduced by both parties but of the view that the plaintiff has no reason to later complain by making frivolous allegations of pledge of the property, and accusing the 1st defendant of stealing documents in respect of the property. Against this background, the 2nd defendant has pleaded the doctrine of laches & acquiescence and urged the court to avail him of same, and dismiss the claim of ejection and injunction by the plaintiff.

Laches is defined at p. 787 of Black’s Dictionary 5th Ed. As “doctrine of Laches”, is based upon maxim that equity aids the vigilant and not the one who slumber on their rights.

It is defined as negligent to assert right or claim which, taken together with lapses of time and other circumstances causing prejudice to adverts party, operates as bar in court of equity”.

Acquiescence is defined at p. 22 of the same Black’s Law Dictionary thus:

“Conduct recognising the existence of a transaction, and intended, in some extent at least to carry the transaction, or permit it to be carried into effect. It is some act, not deliberately intended to ratify a former transaction as existing and intended, in some extent at least, to carry it into effect and to obtain or claim the benefits resulting from it and thus differs from confirmation which implies a deliberate act, intended to renew and ratify a transaction known to be voidable”. Having considered the evidence for the defence (and the circumstances of this case), I am of the view that the 2nd defendant has sufficiently proved the doctrine of laches & acquiescence and I hold that same are applicable, to this case. Therefore the claim of ejection and injunction having not being proved cannot stand, but is hereby dismissed.”

Learned trial Judge from the above finding appeared to have used the doctrine to refuse the appellant the reliefs of ejection and injunction which he sought. To that extent therefore, I am of the view that his finding cannot be faulted. He gave quite cogent reasons based on the evidence on record why the defence succeeded. I find no reason to disturb the above finding.

The second situation where the learned trial Judge employed the doctrine to find for the respondents can be found at pages 95 to 96 of the record. The learned trial Judge ruled as follows:-

  1. “However, there was no plea of doctrine of laches and acquiescence before the trial court as a defence. Since there was no consent of the Governor before the same was made the sale of the said plot is rendered null & void pursuant to SS.22 & 26 of the Land Use Act. However, while I concede that the sale of the said plot, basically, has been rendered void ab initio for failure to first obtain the consent of the Governor, the conduct of the plaintiff has shown a lot of lapses over his right.

That is to say after he had sold his plot unlawfully to the 1st defendant, he allowed himself to be used among the labourers to help in the work of construction of the building. He also allowed himself to be employed as a guard for security of the building materials on the premises.

To his knowledge, the 1st defendant put in tenants and later sold the premises to the 2nd defendant who also built another four bedroom bungalow in his presence and to his face without any protest. But after allowing the plot to be developed, he turned round to claim it. By this attitude, it appears to me that the plaintiff wants to bite his cake and have it.

Although the transaction of sale of the plot in dispute has been rendered null and void by virtue of sections 22 and 26 of the Act, since the doctrine of laches and acquiescence has been successfully pleaded and proved against the plaintiff, he is not entitled to this claim.

It would be inequitable to allow him to unjustly benefit from the sweat of the defendants on the alter of technicality. It is trite that equity does not aid the indolent but the vigilant, and he who goes to equity must go with clean hands. Indeed, it is my view that this claim was not brought in good faith. It ought to be dismissed and it is accordingly dismissed.”

From the above, there is no doubting that the learned trial Judge used the doctrine of laches and acquiescence to declare that the appellant had failed to prove his case. The doctrine in my view was wrongly invoked in this situation. Indeed, the finding that “transaction of sale”, is null and void, is in my view wrong having regard to my finding in respect of issue No. 3. The finding of the learned trial Judge that “since there was no consent of the Governor before the sale was made the sale of the said plot is rendered null and void pursuant to SS-22 & 26 of the Land Use Act”, is absolutely wrong. Unquestionably, the learned trial Judge was discussing about “the transaction sale.” That is the first stage in which the agreement or contract was negotiated. As I have said earlier on in this judgment that stage needed no consent of the Governor. See International ile Industries (Nig.) Ltd. v. Aderemi (supra) In as much as the discussion did not relate to the second stage in which alienation or transferring title was involved the need for the Governor’s consent did not arise and the agreement remained valid and enforceable. It was in no way rendered null and void as found by the learned trial Judge.

In the same vein, the invocation of the doctrine of laches and acquiescence by the learned trial Judge which was neither pleaded or solicited is uncalled for. It was wrongly applied to save the respondents from the consequences of the wrong finding that consent of the Governor was required at the agreement or contract stage in relation to the land in issue. I accordingly answer the 5th issue in the negative. The appellant had failed in four out of the five issues identified by him for determination. Grounds 1, 2, 3 & 4 of the grounds of appeal to which the issues are related understandably also fail. The appellant partially succeeds in the 5th issue which related to ground 6 of the grounds of appeal. The success however does nothing to save the appeal. On the whole, the appeal fails. It is accordingly dismissed with costs which I assess at N2,000.00 in the favour of the respondents.


Other Citations: (2000)LCN/0907(CA)

Alhaji M. C. Dahiru and Anor V. Alhaji Bubakare Kamale (2000) LLJR-CA

Alhaji M. C. Dahiru and Anor V. Alhaji Bubakare Kamale (2000)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.C.A.

With the leave of this court granted on 16th March, 1997, the applicants herein appealed against the judgment of the Adamawa State High Court in suit No. ADSY/39/94 (Coram: J.D. Gwam J.) in which the respondent as plaintiff got judgment in his favour wherein the applicants felt aggrieved. Having granted the applicants leave aforesaid, they filed a notice and grounds of appeal containing 9 grounds within time. Parties, by their counsel and in compliance with the rules of this court also filed their respective briefs of argument. However, it was not until each sought for and was granted leave to so file the brief out of time. On 11th November, 1999 the applicants filed the application under consideration seeking for the following orders:-
1. “An order granting leave to the appellants/applicants to amend their notice and grounds of appeal.
2. To deem the amended notice and grounds of appeal annexed hereto as duly filed and served.
3. An order granting leave to the appellant to raise and argue a fresh issue to wit.
‘Whether having received a part payment of N600,000.00 the respondent’s remedy was to sue for the balance if any or nullification of the contract of sale.’
4. An order granting leave to the appellants/applicants to amend the appellant’s brief of argument.”
In support of the application is a 22-paragraph affidavit and two exhibits being the original notice and grounds of appeal and the amended notice and grounds of appeal respectively. The respondent also filed a counter-affidavit of seven paragraphs sworn to by one Jimoh A. Mamman in opposition.

It is apt for me at this point to recapitulate the salient facts of the case which culminated in the filing of the motion on notice now under consideration. The respondent as plaintiff at the court below on 31/5/94 took out a writ of summons against the appellants/applicants (as defendants). The writ, which was accompanied by a statement of claim sought for the following orders:-
(a) “A declaration that no valid contract has been reached to sell the plaintiff’s property to the 1st defendant.
(b) A declaration that any transaction purporting to transfer title to the property by the plaintiff or anybody to the defendant is illegal, null and void as the same offends the Land Use Decree, the consent of the Military Governor not having been first had and obtained.
(c) A declaration that the 1st defendant has no title to the said property but only entitled to the refund of the sum of six hundred thousand naira paid the plaintiff.
(d) An order compelling the defendants to immediately surrender all the documents of title of the plaintiff to the plaintiff.
(e) The sum of four hundred thousand naira jointly and severally against the defendants for trespass into the plaintiff’s house at Mallamre Ward in Jimeta- Yola.
(f) An order of perpetual injunction against the defendants from interfering with the plaintiff’s title to the property at Mallamre ward covered by Statutory Certificate of Occupancy No. GS/6706.”

The two defendants filed separate statements of defence each containing a counter-claim. The 1st defendant, in his counter-claim sought for the following orders:.
1. “An order of specific performance compelling the plaintiff to complete his contract of sale of the property in dispute to the 1st defendant who has substantially altered his position pursuant to the contract.
2. A declaration that the plaintiff cannot approbate and reprobate.
3. A declaration that the 1st defendant is the holder of the certificate of occupancy No. GS/6706 in equity and has possession and title to the said property.
4. A declaration that the plaintiff after fully effecting the transfer of title to the 1st defendant is entitled to only N50,000.00 balance of his contract sum.
5. An order of perpetual injunction restraining the plaintiff from interfering with the 1st defendant’s title to the property covered by Certificate of Occupancy No. GS/6706.
6. The sum of One Million Naira (N1,000,000.00), General damages against the plaintiff for breach of contract.”
On his part, the 2nd defendant prayed for the following orders in his counter-claim:-
(1) “An order of specific performance compelling the plaintiff to conclude his transaction with the 1st defendant as agreed by the parties thereto.
(2) A declaration that the 2nd defendant is entitled to 5% of the purchase price of N650,000.00 as his commission expressly agreed upon with the plaintiff which is N32,500.00.
(3) The sum of N300,000.00 general damages against the plaintiff for breach of contract.”

Behind the controversy is a house of five bedrooms and a Boys’ quarters covered by the Certificate of Occupancy No. GS/6706 situate at Mallamre Ward (Masakare layout) Jimeta- Yola in Adamawa State. The plaintiff, through the 2nd defendant sold the said house to the 1st defendant at the cost of N800,000.00 (Eight hundred thousand naira). A part-payment of N600,000.00 was given to the plaintiff who in response released to the 1st defendant all the documents of title to the house. At a later date, the 1st defendant sent a letter to the plaintiff enclosing therein a cheque of the value of N50,000.00 and some conditions to be fulfilled by the plaintiff in order that title to the house would pass to him. He minced no words in pointing out that the agreed consideration for the sale of the house was N650,000.00

In reaction, the plaintiff wrote to point out that he sold his said house for N800,000.00 and not N650,000.00. The controversy raged on involving prominent sons of Yola and the house in issue became a battle ground for control and possession between the plaintiff and the 1st defendant. In the course of the controversy, the plaintiff after lodging a complaint with the police took out a writ of summons. Pleadings were ordered, settled, filed and exchanged and the matter went to trial. At the end of the trial, judgment was delivered and the plaintiff was successful. As a synopsis the learned trial Judge found that there was no valid contract reached between the parties for the sale of the house. He equally declared any purported attempt at transfering title as illegal, null and void since “the consent of the Military Governor” was not “first had and obtained.” He therefore ordered for the refund of the N600,000.00 earlier advanced to the plaintiff as well as the return of the latter’s documents of title. It is against these findings that the defendants felt aggrieved and as a result of which they filed the present appeal. I shall henceforth refer to the defendants as appellants/applicants and the plaintiff as respondent accordingly.

All along and upto the point of lodging the present appeal as well as filing briefs of argument, the appellants/applicants were represented by J.D. Moze Esq. of counsel. But of late they debriefed the said J.D. Moze and engaged the law firm of G. Ofodile Okafor & Company. It is Mr. G. Ofodile Okafor (SAN) the principal partner of the newly engaged law firm that advised the appellants/applicants to amend the notice and grounds of appeal originally filed by J. D. Moze, “to enable the court determine the real question in controversy.” It is this application which I earlier on reproduced that calls for the consideration of this court now. But because the application has become contentious, it is necessary in my view to give the above background prolix though it may appear.

Be that as it may, when the application was called for oral argument on 5th October, 2000, Mr. Ofodile Okafor (SAN) abandoned the second prayer on his notice of motion namely the one which sought “to deem the amended notice and grounds of appeal annexed,” to the application, “as duly filed and served.” Having withdrawn the prayer, it is hereby accordingly struck out. Learned Senior Counsel placed reliance on the 22 paragraph supporting affidavit and the two exhibits thereto. He stressed that his law Firm took over the prosecution of the appeal from J.D. Moze Esq. of counsel and that he found it expedient to amend the notice and grounds of appeal originally filed.

Continuing, learned senior counsel pointed out that should his application succeed, there would be no need for the calling of fresh evidence since the evidence on record is sufficient and covers the fresh issue he desires to argue. He referred to A.G. Oyo State v. Fairlakes Hotel Ltd. (No.1) (1988) 5 NWLR (Pt.92) 1 at page 16 and 17 on the conditions for granting applications such as the one under consideration. Learned counsel reiterated that no new facts are called to aid in his application and that the following authorities are in his favour. These are Ikeanyi v. A.C.B. Ltd. (1997) 2 NWLR (Pt.489) 509 at 523 and Biyo v. Aku (1996) 1 NWLR (Pt.422) 1 at 31 to 32. He urged us to grant the application since as he contended, no injustice would be occasioned by its grant.
Mr. Umoh of counsel for the respondent vehemently opposed the application. He relied on the 7-paragraph counter-affidavit. Learned counsel made reference to paragraph 4 of the proposed amended notice and grounds of appeal and stressed that the relief sought in paragraph (b) thereto is one that was neither sought for nor canvassed at the court below. He further referred to paragraph 15 of the supporting affidavit in proof of his submission that the said relief (b) was never sought at the court below.

Continuing learned counsel submitted that apart from the fact that the relief sought was not one prayed for at the court below, the application under consideration incorporates no prayer seeking to amend the appellants/applicants’ respective counter-claim. He cited and relied on Igbe v. Eleki (2000) 10 NWLR (pt.674) 221 at 228: and submitted that in view of the above apparent defects, the proposed notice and grounds of appeal is rendered incompetent. He therefore urged us to dismiss the first prayer.

On the third prayer contained in the notice of motion, it is the submission of learned counsel that it introduces a new cause of action. He recalled that the appellants/applicants were consistent at the court below that they have paid the purchase price and that it would amount to a summersault for them in this court to pretend to advise the respondent on what his claim ought to have been in the court below. He maintained that the appellants/applicants have exhibited ambivalence by seeking a relief of specific performance when in their paragraph 15 of the supporting affidavit they averred to the inability of their former learned counsel to seek for that specific relief of part-payment. He finally urged that the application be dismissed as lacking in merit.

The contest in this application is whether the applicants should be granted leave to raise and argue a fresh point on appeal when such a point was not canvassed before the court below.

As a general rule an issue which has not been raised in the court below will not be entertained on appeal. The rationale of the principle is easy to discern. It is not the business of an appellate court to decide disputes by trying cases. That is an exclusive preserve of the trial court. The duty of an appellate court is to see whether trial courts have used correct procedure to arrive at the right decisions. Because the appellate court does not inquire into disputes it is desirable for the court to have the benefit of the opinion of the trial court on every point taken on appeal. See Skencollsult Nig. Ltd. v. Godwin Ukey (1981) 1 SC 6 at 18. As aptly stated by Lord Hudson in United Marketing Co. v. Kara (1963) 1 WLR 523 at 524:-
“Even if the facts were beyond dispute and no further investigation of fact were required, their Lordships would not readily allow a fresh point of law to be argued without the benefit of the judgments of the Judges in the court below.”
See also K.O. Mogaji & ors. v. Cadbury Nig. Ltd. & ors. (1985) 7 SC 59 at 91,(1985) 2 NWLR (Pt.7) 393.

Be that as it may, there are accepted special circumstances or conditions under which points of law not specifically canvassed at the trial court may be allowed to be raised for the first time on appeal. These special circumstances or conditions have been laid down in a plethora of decided cases including: Abinabina v. Enyimadu 12 WACA 171;Shonekan v. Smith (1964) 1 All NLR 168 at 173; Akpene v. Barclays Bank Nig. Ltd. & Anor. (1977) 1 SC 47; Samuel Fadiora & anor. v. Festus Gbadebo & Anor. (1978) 3 SC 219 at 248; Ejiofodomi v. Okonkwo (1982) 11 SC 74 at 93-94; Dweye v. Iyomahan (1983) 2 SCNLR 135 at 138; Niger Progress Ltd. v.NEL Corp. (1989) 3 NWLR (Pt.107) 68 at 100. The conditions that would justify granting leave to raise fresh point of law in the appellate court that was not raised at the trial court are:-
(a) The point of law raised must be substantial;
(b) No further evidence would be adduced which will affect the new point;
(c) The refusal to grant leave to argue the fresh point will occasion miscarriage of justice; or other exceptional circumstance: see Akpene v. Barclays Bank of Nig. (supra); Fadioro v. Gbadebo (supra); Nasco Mgt. Service Ltd. v. Amaku Transport Ltd. (1991) 1 NWLR (Pt.588) 576. It does however appear clear that the court will refuse to grant leave to raise fresh issue where the point sought to be raised for the first time introduces an entirely new case or line of defence different from the issues fought by the parties at the trial court. See Ejiofodomi v. Okonkwo cited supra.
The gravamen of the application at hand hinges on the third prayer. Even at the risk of repetition I shall reproduce it. Viz:-
“3 An order granting leave to the appellant (sic) to raise and argue a fresh issue to wit:-
Whether having received a part-payment of N600,000.00 the respondent’s remedy was to sue for the balance if any or nullification of the contract of sale …”
Learned Senior Advocate argued rather strenuously that the fresh issue he desires to canvass will entail no calling of fresh evidence and that it raises a substantial point of law. Mr. Umoh for the respondent submitted to the contrary. He is of the view that the point the appellants/applicants are seeking leave to argue introduces an entirely new cause of action. The respondent’s case in his statement of claim and the evidence he led before the court below is that there was no valid contract between him and the 1st appellant/applicant regarding the sale of his house because the consensus he reached with the appellants/applicants was that the house was sold for a consideration of N800,000.00 and in response to which he collected N600,OOO.00 from the 1st appellants/applicant. The case for the appellants/applicants was that there was a clear meeting of minds that the respondent had sold his house for the sum of N650,000.00. Parties fought their cases based on their respective stands above. The reliefs sought by the respondent before the court below which have been reproduced earlier on in this ruling contain no prayer for payment of balance of any money to make up for full and agreed consideration after part-payment was collected. Also in both the counter claim raised by the appellants/applicants (reproduced earlier on) the question of part-payment did not present itself and therefore the remedy for payment of balance was neither made an issue nor even prayed for. Thus the parties’ contentions were fought based on their conflicting understanding of what the purchase price was. Indeed as contended by the 1st appellant/applicant in paragraph 3 of his statement of defence and the evidence he led there is no balance remaining to be paid to the respondent by him since he had already paid the outstanding N50,000.00 through the 2nd applicant. Thus neither the reliefs sought by the respondent in his statement of claim nor the reliefs prayed for by the appellants/applicants have anything to do with part-payment or specific performance in the nature of paying balance of the price of the house. Therefore relief(b) contained in paragraph 4 of the proposed amended notice and grounds of appeal is a novel one alien to the issues raised tried and considered at the court below. The said relief(b) is couched thus:-
“(b) An order granting a decree of specific performance on the plaintiff to convey the property covered by C. of O. No. GS/6706 to 1st defendant.
That perhaps explains why the 1st appellant/applicant deposed in his paragraphs 9 and 15 of the supporting affidavit as follows:
“(9) That I am informed by our counsel G. Ofodile Okafor (SAN) whom I verily believe that there is need to raise new issues regarding the part-payment of N600,000.00 I paid to the respondent.”
“(15) That my former counsel settled my counter- claim and it was his duty to make the issue of part-payment a specific relief.”

If, as the 1st appellant/applicant himself said, the issue of part-payment made by him was not sought for as a specific relief before the Court below, it will only remain an old woman’s tale in this court, since this court cannot, indeed will not formulate reliefs for parties. Clearly therefore ground 6 which the appellants/applicants want to introduce finds no support in the reliefs sought before the court below either in the statement of claim or the two sets of statement of defence.

Given the state of things discussed above, it will be expressing the obvious to say that there is going to be a shift in the defence of the appellants/applicants if the new issue is allowed to be introduced in the main appeal. The reliefs sought before the court below either by the respondent or the appellant/applicants will also have to be amended to take care of the fresh issue. The dimension of that in my view obviously calls for fresh evidence since one of the parties must now shift grounds thus calling for further investigation at this stage. To do that will deprive this court of the benefit of the opinion of the court below and making it impossible to arrive at any conceivable relief. The corollary of what I have been saying is that to grant the appellants’/applicants’ leave to argue the fresh point will occasion miscarriage of justice. For the above reasons therefore, I find it impossible to grant prayer III contained in the notice of motion. It is hereby accordingly refused.

The first prayer in the notice of motion seeks:-
“An order granting leave to the appellants/applicants to amend their notice and grounds of appeal.
The fourth prayer on the other hand, seeks for “an order granting leave to the appellants/applicants to amend the appellants’ brief of argument.” These two prayers are predicated on the grant of the third prayer. The only ground of appeal sought to be introduced in the proposed amended notice and grounds of appeal is ground 6 (the fresh issue which has been refused). The dismissal of the relief seeking to introduce a fresh point on appeal has agdecidedly knocked out the bottom upon which prayer 1 and 4 hinged. They are in the circumstance rendered irrelevant. Their grant in my view will be a futile exercise. The 1st appellant/applicant himself deposed in paragraph 18 of the supporting affidavit thus:-
“18 That I am further informed by G. Ofodile Okafor (SAN) whom I verily believe that if the application to amend the notice and Grounds of Appeal is allowed, there is also the need to amend the appellant’s (sic) brief of argument.”

As I have said earlier on, the proposed amended notice and grounds of appeal only sought to introduce in its 6th ground of appeal a new issue. That issue has been refused. Therefore the original notice and grounds of appeal still subsists. Obviously therefore, the need has not arisen for the appellants’ brief of argument to be amended since the proposed amended notice and grounds of appeal to which it has been hinged has not been allowed. Consequently, both prayers must fail. They are accordingly refused.
The application lacks merit and is accordingly dismissed with costs of N2,000.00 in favour of the respondent.


Other Citations: (2000)LCN/0906(CA)

A.O. Mbakwe V. R.M.S. Africa (Rhein Naas) & Anor (2000) LLJR-CA

A.O. Mbakwe V. R.M.S. Africa (Rhein Naas) & Anor (2000)

LawGlobal-Hub Lead Judgment Report

NSOFOR, J.C.A.

By a writ of summons in suit No. FHC/75/92, the plaintiff had claimed the sum of N2,000,000.00 as special and general damages for breach of contract in that the defendants contracted to carry from Iceland to Port Harcourt 1,980 (one thousand, nine hundred and eighty) bags of cod heads with collarbone/backbone in 5 containers on board their ship the “BACO LINER 1” and, to deliver the same in good/sound condition to the plaintiff at Port Harcourt but the defendants have failed, refused and/or neglected to deliver the said goods to the plaintiff.

Alternatively the plaintiff claimed from the defendants jointly and severally N2,500,000.00 (Two million, five hundred thousand Naira) as general damages for negligence.

Following an order for written pleadings, the plaintiff filed a statement of claim dated the 19th March, 1993. Paragraphs 4, 5, 7, 8, 9 10 and 12 thereof forming the principal allegations of facts reads as follows.

“4. The plaintiff ordered from Norfish Limited in Iceland a total of 1,980 (one thousand, nine hundred and eighty) bags of assorted fish heads of the value of USD 147.060. The suppliers sent to the plaintiff Profoma Invoice dated 5/2/92; Import Duty Report (IDR) and Clear Report of Findings (CRF) dated 12/6/92. The consignment was confirmed by Galaxy Enterprises Inc. and the plaintiff would rely on their Invoices and correspondences.

  1. The said goods were to be taken delivery of at Port Harcourt within jurisdiction. On the ship’s arrival at Onne Port Harcourt in July, 1992 it was discovered that some of the bags of fish heads were wet and/rotten.
  2. As a result of the condition of the said bags of fish heads the defendants called for a survey of the consignment on 28/7/92 and SGS Inspection Service (Nigeria) Limited conducted a survey of the consignment in the presence of the parties hereto at the Federal Lighter Terminal, Onne, Port Harcourt and issued a Survey Report No. SGS/SUPT/LOO/17702/JO dated 28/8/92. The plaintiff shall found on the said survey report at the hearing of the above suit.

9(a) By the said survey, it was discovered that out of a total of 1,980 jute bags of fish heads 1207 were in sound condition whilst 773 (seven hundred and seventy three) were wet and/or rotten and infested with in numeral maggots and putrid Odour oozed therefrom. It was further discovered that one of the containers had a hole on its side whilst three of the containers had weak rubbers at the doors through which water sipped onto them from some stagnant water at the floor of the containers.

9(b) From the survey report it became quite clear that some of the containers used to carry the fish heads were too old and unseaworthy to the knowledge of the defendants. As a result of the Odour emitted by the rotten fish heads, the Ministry of Health, Abia State of Nigeria inspected the plaintiff’s warehouse at Aba, found that 773 bags of the fish heads were decayed/rotten, infested with maggots and weevils due to contact with water and thereby declared the 773 bags of the fish-heads unwholesome and unfit for human consumption. The 773 bags of fish heads were therefore publicly destroyed by burning. The loss was total. The plaintiff will at the trial of the above action rely on the certificate of condemnation dated 26th August, 1992 issued by the Ministry of Health, and signed by the Director of Public Health, Mr. Nwobilo.

9(c) The plaintiff sold each sound bag of the fish-heads at N2050 (two thousand and fifty naira).

  1. The plaintiff paid to the Customs and Excise Nigeria, per payment schedule dated 15/7/92 the sum of N137,935.49 as Customs Duty. The plaintiff also paid to SGS Inspection Service (Nigeria) Limited the sum of N5,000 for the survey of the consignment and reporting. By another letter dated 18/8/92 Customs and Excise gave plaintiff Notice of under payment of Import Duty with the result that an additional import duty paid by the plaintiff on the consignment was N140,299.00 thereby making a total of N278,234.57.
  2. WHEREOF the plaintiff has been damnified and has suffered tremendous loss and damage and claims from the defendants jointly and severally as follows:

N2,000,000.00 (two million Naira) being special and general damages for breach of contract in that the defendants contracted with the plaintiff to carry from Iceland to Port Harcourt 1,980 (one thousand nine hundred and eighty) bags of assorted fish-heads with collarbone/backbone in 5 containers on board their ship the “BACO LINER 1″ and deliver the same in good/sound condition to the plaintiff at Port Harcourt but the defendants have failed, refused and/or neglected to deliver the said goods to Port Harcourt as aforesaid in good/sound condition.

Particular of Special Damage:

(a) 773 (seven hundred and seventy three) bags of the said fish-heads are wet and rotten and of no value declared unwholesome and destroyed by burning publicly at the market price in August 1992 at N2050.00 (two thousand and fifty Naira) per bag……… N1,584,650.00

(b) Custom Duty paid: vide payment schedule dated

17/7/92 and Additional payment………. N278,234.57

(c) Survey Fees: vide page 3 No.11 of

Survey Report.. N5,000.00

Total N1,867,884.57

(d) General Damages for breach of

contract …. N132,115.43

———

Total sum claimed: N2,000,000.00

——–

The plaintiff will rely on the Sale Invoice No. 0865 dated 7/9/92 and a receipt No.460 dated 7/9/92 to show the market price of the sound fish-heads to be N2050,00 per bag as at September, 1992.

Alternatively, the plaintiff claims from the defendant jointly and severally the sum of N2,500,000.00 (Two million five hundred Naira) general damages for negligence.”

The defendants did not file any pleadings. Rather they brought an application by way of a motion on notice dated the 19/5/93 pursuant Order 27 of the Federal High Court (Civil Procedure) Rules, 1976 praying for an order:-

“to dismiss/or struck out this action against the said defendants/applicants on the ground that the plaintiff, not having been named as either the consignee or endorse of the relevant bill of Lading on which the claim herein is based, and/or if so named, having endorsed another party, has no locus standi to institute and/or maintain this action as presently constituted and/or such order or further orders as this Honourable Court may deem fit to make in the circumstances. A copy of the relevant bill of lading referred to by the plaintiff in their statement of claim is attached hereto as Exhibit FA1.”

The application came on for hearing before E.O. Sanyaolu, J. He heard the counsel and thereafter reserved the ruling to the 24th of March, 1994. In a considered ruling, copied in pages 32 to 43 of the record of appeal, the learned trial Judge expressed himself at page 41 inter alias, as follows:-

“The Bill of Lading having been endorsed in blank by Norfish Ltd. anybody who comes in possession of the bill Exh. FA1 and writes his name thereon becomes an endorsee in blank. Thus such a party can sue and be sued on the said Bill of Lading, if he does not in turn endorse it to some one else. But the bill of lading, Exh. FA1, was subsequently endorsed to O.C. Sampson Agencies Ltd. in what in my view amounts to a “special endorsement and valid for the purposes of section 375(1) of the Merchant Shipping Act (supra) which section is a verbatim re-enactment of the English Bills of lading Act, 1855. Accordingly the plaintiff has divested itself of the right of suit which hitherto has resided in the plaintiff and same has now been passed to O.C. Sampson Agencies Ltd. who is the only party who can sue and be sued on the said bill of lading. The legal consequences therefore is that the plaintiff no more has the locus standi to sue on the said bill of lading Exh. FA1 and I therefore hold that he cannot institute or continue with the action herein, See the case of Seatrade v. Fiogret (supra) where the Court of Appeal held as follows:-

“xxx”

In the present case, the plaintiff A. O. Mbakwe and sons went through the entire stages envisaged by law. It started off as a “Notify-Party”. It became a bonafide de jure endorsee with right to suit and property in the goods but later lost that right by its “endorsement” of the goods to “O.C. Sampson Agencies Ltd.”

The learned trial Judge thereafter adverted to and considered what appropriate order to make in the circumstance. Concluding, he wrote at page 42 of the Record inter alias:-

“In the final analysis, therefore the present suit ought to and is hereby struck out for lack of locus standi by the plaintiff”.

He made no order as to costs.

The above remained the relative positions of the parties when counsel to the plaintiff brought an application by way of a motion on notice dated the 17th of August, 1994 praying for an order:-

“relisting or replacing the above suit in the cause list for hearing on its merit.

FURTHER TAKE NOTICE also that the ground for bringing this application is that the above suit was struck out per incuriam and without considering the Court of Appeal stand on striking out such suits in limine and without duly or at all considering the provisions of Section 39(1) of the Nigerian Merchant Shipping (Amendment) Decree No. 20 of 1988 now section 375(1) of Merchant Shipping Act, 1990 Cap. 224.”

The quo warranto for the application, as expressed on the notice of a motion, was Order XXIX Rule 6 of the Federal High Court (Civil Procedure) Rules, 1976. As the record shows, the application came on for hearing before E. O. Sanyaolu, J. on the 8th of February, 1995. At the hearing the applicant with the counsel was present in court. The defendants were absent from court. They did not appear through a counsel either. Mr. Ezekwesiri of counsel moved and argued the motion fully.

After hearing the learned counsel, the court delivered an “off the hook” ruling. It wrote, (see page 48 of the record):-

“Court:- Having listened to applicant’s counsel moved in terms of the motion papers. I am of the view that this is not a proper case for me to exercise my discretion to relist as I am now functus officio on the motion. The application is hereby dismissed,”

Dissatisfied and aggrieved with the order dismissing the motion for relistment, the applicant has appealed therefrom to this court. The notice of appeal, copied at pages 49 to 50 of the record of appeal, raised 3 grounds of appeal. Shorn of their respective “PARTICULARS” they read:-

“(1) The learned trial Judge erred in law in refusing to relist or replace in the cause list for hearing on its merits the above suit struck out in limine on the 24th day of March, 1994.

(2) The learned trial Judge erred in law in refusing to relist or replace in the cause list for hearing on its merits the said suit No. PHC/PH/75/92 struck out on 24/3/94 per incuriam.

(3) The learned trial Judge erred in law in refusing or failing to give the plaintiff/applicant fair hearing in the above suit and thereby came to a wrong decision by striking out the plaintiffs suit.”

I shall pause here for a while for a comment to dispose of a point. It arises from the grounds of appeal filed. After examinating the grounds of appeal, three of them; it is clear to me that ground (2) (supra) is repeating ground (1). And with respect to ground (3), one is inclined to ask: does it arise from the decision on the 8/2/95?

A ground of appeal would be directed to and constitute a challenge to the ratio decidendi of the decision. Did the trial Judge refuse to hear the applicant through the counsel? If ground 3 of appeal does not arise from the decision on the 8/2/95, it follows in my view that no issue may be distilled therefrom.

The parties had in compliance with the rules of Court filed their respective briefs of arguments. Therein each party identified the issue for determination. The appellant at page 3 of the appellant’s brief filed on 18/7/96 formulated two issues. These are:-

“1. Whether the learned trial Judge was right in refusing to relist the suit which was struck out in limine although the suit appears to have been struck out per incuriam.

  1. Whether the learned trial Judge was right in refusing to give the appellant a fair hearing and hearing the case on its merits.”

On their part, the counsel for the respondents formulated at page 4 of the respondents’ brief one issue for determination. It is:-

“Whether the learned trial Judge was right in refusing to exercise his discretion in relisting the substantive matter which he had earlier struck out pursuant to a demurrer application on behalf of the respondents herein.”

I shall pause here again for a while for a comment on issue No 2 as formulated by the appellant. I had above held, unless I be wrong, that ground 3 of appeal filed does not arise from or constitute an attack or a challenge to the decision on the 8/2/95. Having not arisen, it follows in my view that no issue may be distilled therefrom. No issue of fair hearing arose in the decision on the 8/2/95. For the above reason, I have disregarded and discountenanced the Issue No. 2 as formulated by the appellant.

At the hearing each counsel adopted his brief of argument. Each made laudably short a speech in amplification of his brief.

Learned counsel for the appellant in page 4.01 of the appellant’s brief had focused on and highlighted the functions of a bill of lading. It was contended that a bill of lading does not constitute evidence of transfer of the property in the goods to an endorsee thereof. The property in the goods covered by the bill of lading remains vested in the consignee of the goods. In the present case on hand, counsel contended that the appellant was such a consignee. It was submitted on that account that the appellant had “locus standi” to institute the suit and prosecute the action against the respondents.

It was the further contention by the counsel in the appellant’s brief that the endorsement of the bill of lading to (O.C. Sampson Agencies (Nigeria) Ltd.) was merely to constitute it (O.C) Sampson Agencies Ltd. then agent of the appellant who alone could maintain the action.

Counsel, then, cited and relied on Abraham Adesanya v. The President of the Federal Republic of Nigeria (1981) 1 All NLR p.1, (1981) 2 NCLR 358 and, Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669 for the meaning of “Locus standi” and, the proper test for whether or not a plaintiff has no locus standi to maintain an action. It was the contention of the counsel in the appellant’s brief that the court had the duty to look beyond a formal endorsement on the bill of lading to ascertain whether or not the property in the goods in the bill of lading “passed upon or by reason of such consignment or endorsement”. Reliance was placed on section 374(1) of Merchant Shipping Act Cap.224 vol. 13 Laws of the Federation of Nigeria, 1990. It was accordingly submitted that the property in the goods does not pass upon the endorsement of the bill of lading but upon the contract in pursuance of which the endorsement was made. And an important consideration whether the property in goods did pass to the endorsee depended on whether or not he gave value for the bill of lading. Learned counsel cited the case of Nigerbras Shipping Line Ltd v. Aliminium Extrusion Industries Ltd (1994) 4 NWLR (Pt. 341) 733 C.A., F. I. Omwadike & Co. Ltd. v. Brawal Shipping Nigeria Ltd. (1996) 1 NWLR (Pt. 422) 65. Concluding, counsel had urged us at page 6 of the appellant’s brief to hold that the appellant had “Locus standi” to maintain the action and so ought to be allowed to prosecute the suit because as counsel further contended, the trial court was in error in refusing to re-list the suit for hearing on the merits.

The gist of the contention by counsel in the respondents’ brief is that the decision by the court below on the 24/3/94 upon the demurrer was a final decision which could be only attacked on an appeal. It was further contended that after that decision, the court below became functus officio. The trial court no longer had the competence to re-list the suit for further hearing. Learned counsel cited a number of decided cases including Olowu v. Abolore (1993) NWLR (Pt.293) 255 at page 270 -271; Thynne v. Thynne (1955) 2 All E.R. 129 per Morris, L.J. at page 145; Minister of Lagos Affairs, Mines & Power v. Akin-Olugbade (1974) 11 SC 1, (1974) 1 All NLR 748 at page 750; Agbeniyi v. Aba (1994) 7 NWLR (Pt.359) 635 at page 748-749.

Before going any further, I shall remind myself that the court is not sitting on appeal over the decision on the demurrer proceedings on the 24/3/94. No. And counsel in the appellant’s brief in paragraph 4.07 thereof, as I pointed out above, urged the court to hold that the appellant had “locus standi” to prosecute his suit. I shall firstly, consider one of the cases cited to us and relied on for what assistance it may offer me.

I shall now deal with F. I. Omwadike & Co. Ltd v. Brawal Shipping (Nig) Ltd (supra). The facts of the F. I. Omwadike & Co Ltd case (supra) are similar to the facts of the substantive suit from which the appeal in hand arose. Shortly put, the facts are these. There was a claim for damages for goods covered by bills of lading arising from carriage by sea. The bills of lading Nos C.116 had been endorsed by the appellant.

The appellant, qua plaintiff, filed a statement of claim. It pleaded the bills of lading. The 1st respondent, qua defendant, did not file any pleadings. Instead it filed a demurrer application pursuant to Order 27 Rule 3 of the Federal High Court (Civil Procedure) Rules, 1976. There was no affidavit evidence in support of the application. The Bills of Lading were marked as Exh. FA1 and Exhibit FA2 respectively.

The relief sought for was an order of court dismissing and/or striking out the suit on the ground that the appellant/plaintiff lacked the “Locus standi” to maintain the action.

The Federal High Court, Port Harcourt (Ojutalayo, J.) heard the application. In its ruling the court allowed the motion and granted the application. It dismissed the action.

The appellant/plaintiff appealed from the decision to Court of Appeal. Now, these cases either by the Supreme Court or the Court of Appeal decide principles; not, Rules. The F.I. Onwadike & Co. Ltd case (supra) was cited to us and counsel persuaded us to follow the decision therein.

But is the principle decided in or by the F.I. Onwadike & Co. Ltd. case (supra) relevant herein or, applicable to the appeal before us? With respect to counsel for the appellant, the F.I. Onwadike & Co, Ltd case(supra) offers us no assistance. Why? Because the Court of Appeal in the F.I. Onwadike & Co, Ltd case (supra) was not dealing with the re-listing for hearing on the merits the suit either struck out or dismissed following a successful demurrer proceeding under Order 27 Rule 3 of the Federal High Court (Civil Procedure) Rules, 1976. And at the risk of a repetition the decision of the court below on the 24/3/94 is not on appeal before us now. The ratio decidendi in the F. I. Onwadike & Co, Ltd case(supra) cannot be invoked in the present appeal case proceeding before us.

Having disposed of the above, the important question arising becomes this, was the court below in error in declining to re-list the suit for hearing on the merit of after it had been struck out on the 24/3/94 for want of standing to prosecute the suit?

Surely, the proper constitution of parties in a suit is a serious matter. There ought to be a competent plaintiff and a competent defendant if the trial court would ever exercise its jurisdiction to determine the suit.

It was however submitted to us by the respondent’s counsel that after the decision on the 24/3/94, the court below became “functus officio” and therefore was right in declining to re-list the suit previously struck out. It was a “final decision”. If that decision by the court below on the 24/3/94 be a final decision then, the counsel for the respondent was right. The remedy of the appellant lay in an appeal as in the F.I. Onwadike & Co, Ltd case (supra). And the courts have jurisdiction to be wrong in law and that is why we sit on appeal over question of law. See Oscroft v. Benabo (1967) 2 All E.R. 548 at page 557.

Now, no difficulty arises agreeing that every judgment or decision on the merits is a final judgment. But it is equally true certainly that not every final judgment is a judgment on the merits. For when as in the suit the radical issue is whether the court has jurisdiction or lacks it to entertain the suitor whether the party has or lacks the locus standi to maintain the action in court. A final decision or judgment can be given which does not affect the rights of the parties or the merits of the case.

Applying the principle above discussed, I am not in doubt that the decision by the trial court on the 24/3/94 (whether or not it was wrong, is not the matter here) was a final decision even when the rights of the parties or the merit of the case was not gone into or determined.

Now, there is the well settled, elementary and fundamental principle of law that a court on disposing of a matter before it renders itself functus officio. It ceases to have legal competence or jurisdiction in respect of such a case. See Ekerete v. Ete (1925) 6 NLR 118; Akinyede v. The Appraiser (1971) 1 All NLR 162. It cannot assume the status of an appellate court over its own decision unless of course, there be a statutory authority to do so. See Fritz v. Hobson (1880) 14 Ch. 542.

Applying the above discussed principle to the appeal before us, my resolution of the issue calling for determination becomes as clear as crystal. I have no doubt but that the issue ought to be resolved in favour of the respondents and, eo ipso, against the appellant. And I do so resolve it.

The appeal, in my view, lacks merit. It ought to be dismissed. I dismiss it accordingly. There shall be costs to the respondents against the appellant assessed at N6,000.00.


Other Citations: (2000)LCN/0905(CA)

James Danbaba V. The State & Ors. (2000) LLJR-CA

James Danbaba V. The State & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal by the 1st accused person against the ruling of Alabi J. dated 10th of May, 2000 wherein the learned Judge refused the application for bail dated the 16th of December, 1999.

I will summarise the facts leading to this application. On the 3rd of February, 1996, one Alex Ibru was shot by gunmen at the Falomo flyover in Lagos. He however survived the attack. The appellant and four other persons were accused and subsequently charged for offences including conspiracy to murder and attempted murder in the information filed by the State and dated the 26th of January, 2000

Meanwhile, the appellant and the four accused persons have been arraigned before Alabi J. Evidence of 1st prosecution has been taken at the trial.

On the 16th of December, 1991, the appellant brought a summons for bail which was supported by a 30-paragraph affidavit and 7 exhibits. The respondent in opposition to bail deposed to a counter-affidavit and further counter-affidavit dated 17th December, 1999 and 21st December, 1999 respectively.

On the 7th of March, 2000, arguments on the application was taken and ruling was delivered on the 10th of May, 2000. The learned trial Judge refused the application for bail and accordingly dismissed it.

Being dissatisfied with the said ruling, the appellant has further appealed to this court on five grounds.

Four issues formulated by the appellant for the determination of this court are as follows:

Issue 1

“Whether the conclusion reached by the learned trial Judge (in refusing the appellant bail, that the appellant will interfere with prosecution witnesses and avoid his trial are backed by evidence.

Issue 2

Whether there are exceptional circumstances arising from the counter-affidavit and further affidavit of the respondent to warrant a denial of bail to the appellant by the trial Judge having regard to the clear provisions of sections 86, 87 and 88 of the Evidence Act.

Issue 3

Whether there are sufficient materials placed before the learned trial Judge upon which he would have exercised his discretion and grant the bail sought.

Issue 4

Whether the appellant is entitled to bail as of right under the 1999 Constitution and the African Charter on Human and Peoples’ Rights”.

The two issues which the respondent formulated for the determination of this court are as follows:

Issue one

“Whether the appellant has adduced cogent argument to move the Court of Appeal to interfere with the exercise of discretion by the trial Judge.

Issue two

Whether by the interpretation of section 35(4) of the 1999 Constitution and Article 6 of the African Charter on Human and Peoples’ Rights the trial Judge is precluded from exercising his discretionary power under section 118 of the Criminal Procedure Law Cap. 33 Laws of Lagos State, 1994”.

While I do not think that the four issues formulated by the appellant’s counsel for determination as distilled from the 5 grounds are proliferated, however, I am of the firm opinion that the two issues formulated by the learned counsel for the respondent are apt, terse and are sufficiently adequate to deal with this appeal.

Accordingly, I shall be so guided by them.

The first point is whether the appellant has adduced cogent argument to move this court to interfere with the exercise of discretion by the learned trial Judge.

The decision to grant the appellant bail or refuse it lies entirely within the discretionary power of the court. The learned trial Judge was faced with the primary consideration as to whether the appellant had discharged the burden placed on him to enable him exercise that discretionary power. The learned trial Judge stated at p.10 of the ruling that the most important consideration in the bail decision is the determination of what criteria a Judge should apply in granting or refusing bail. Having carefully reviewed the surrounding circumstances of the case, he stated that the two criteria that were relevant and weighty in the determination of the application are as follows:

(a) The possibility of interference with prospective prosecution witnesses; and

(b) Availability of the appellant to stand his trial.

The learned trial Judge then proffered some reasons why he believed that the appellant would not appear to stand his trial if released on bail. He stated thus:

“It is common ground in this case that investigations have been concluded. Therefore the possibility of any of the accused persons hindering the investigation is no longer possible. There is however a world of difference between hindering investigation and interfering with witnesses. Incidentally, the interference with witnesses could take any form.

There is no doubt that the second 2nd (sic) accused person is a well known Nigerian of good and enviable reputation and personality.

He has hitherto served this country meritoriously in various capacities and positions. He attained the rank of Commissioner of Police in the Nigerian Police. Indeed, he was Commissioner of Police for Lagos State and Oyo State at different times.”

The learned trial Judge stated further thus:

“By virtue of all the sensitive positions he has had the singular honour and privilege of holding, it cannot be in doubt that the second accused person is very well connected not only socially, politically, economically but also in all spheres of human endeavour.

Consequently, it becomes obvious that by virtue of his being well connected, he has capacity to wield tremendous (sic) influence in the society.”

This is the analysis of the profile of the appellant by the learned trial Judge. He thereafter concluded that the whole trial and everything connected therewith must be an unwarranted irritant to the appellant, and for this reason, it is more realistic to believe that if he was admitted to bail he would want to avoid and evade his trial altogether.

These statements of the trial Judge can be justified when viewed against the background of the status of the appellant, the influence and authority the appellant commanded prior to his arrest and trial. I refer to paragraphs 12-16 of the respondent’s counter-affidavit which reads thus:

“12. That the offence for which the accused/applicant stands charged are grave indeed.

  1. That if the accused/applicant is granted bail it is not likely that he would appear for his trial.
  2. That if the accused/applicant is granted bail there is likelihood that he would intimidate and tamper with witnesses for the prosecution in view of his social status and professional training in security matters.
  3. That there is good and compelling evidence against the accused/applicant for the offence for which he is charged.
  4. That by the statements proposed witnesses attached to the information the accused/applicant procured the weapons used to commit the act constituting the offence”.

In addition, paragraphs 9-17 of further counter-affidavit deposed by Olakunle Ligali, a Legal Officer in the Department of Public Prosecutions Lagos State, further present the following scenario:

“9. That the release of any of the applicants will have serious negative consequences in the prosecution of this and other offences with which the applicants are currently charged.

  1. That all of the witnesses are subordinate by the applicant in the police hierarchy and given the strict authoritarian/hierarchical control in the Police Force there is great likelihood that the applicant will constitute a threat both implicitly and explicitly to the witnesses.
  2. That in considering the status of the applicant and his connection in the Police, security and law enforcement system of the country and seriousness of the charge and the severity of the punishment if convicted, there is a reasonable likelihood that the applicant will tamper with the evidence/witnesses essential to the prosecution of the offences.
  3. That having regard to the fact that the applicant has for the most part of his professional life acquired a high prestige and status in the Nigerian society, and served at the highest level of government, the possibility of conviction for life for the offence of attempted murder is sufficient to cause the applicant to abscond from the country.
  4. That there is strong likelihood that the applicant if released will compromise and intimidate witnesses and investigators by virtue of his former post and status vis-a-vis these witnesses.
  5. That in fact some of the witnesses have expressed great fear on account of threats received through different sources connected with the accused persons both in this trial and that referred to in paragraph 7 above.
  6. That already an intended key witness in this case the armourer of the Lagos State Police Command Insp. Joseph Oboh has been shot dead by assassins.
  7. That neither the car that the Insp. Oboh was driving nor any of his property was removed by the killers.
  8. That the applicant’s release at this stage will be highly prejudicial to the successful prosecution of those cases and have serious security implications for the witnesses and Police investigations.”

It is the contention of the learned counsel for the appellant in the appellant’s brief that two grounds considered by the trial Judge in arriving at his conclusion for refusing the appellant bail were applicable to applications brought under section 341 of the Criminal Procedure Code and not under sections 118 and 123.

I do not see the basis for this submission. Section 118(2) of the Criminal Procedure Law provides that:

“Where a person is charged with any felony other than a felony punishable with death, the court may if it thinks fit admit him to bail (italics supplied for emphasis).

On the other hand, section 341 (2) of the Criminal Procedure Code provides that persons accused of an offence punishable with imprisonment for a term exceeding three years must not ordinarily be released on bail unless by doing so the proper investigation of the offence would not be prejudiced and that no serious risk of the accused escaping from justice would occasion and finally that grounds exist for believing that the accused if released, would commit another offence.

Reading these sections together, it leaves no one in any doubt that Criminal Procedure Act does not provide any criteria to guide the courts in the exercise of its discretion.

The courts in Southern States of Nigeria where the Criminal Procedure Act applies largely have therefore on many occasions resorted to judicial pronouncement on the issue for guidance.

The usual conditions or matters which the court considers in its exercise of the discretion are:

(a) Whether the proper; investigation of the offence would be prejudiced if the accused person is granted bail and whether there is a serious risk of the accused person’s escape from justice by jumping bail;

(b) The nature of the offence or charge which the accused person is facing before the court and the risk of his interference in the prosecution of the case; and

(c) The strength of the evidence against the accused person. See also the following cases: Eyu v. State (1988) 2 NWLR (Pt. 78) 602 at 607, Okpe v. State (1994) 5 NWLR 490 at 499, Chinemelu v. COP (1995) 4 NWLR (pt. 390) 489 at 490.

I have read Abiola v.FRN (1995) 1 NWLR (Pt. 370) 155 at 179 relied upon by the learned counsel for the appellant for his proposition. This is the Court of Appeal decision. It did not state that the conditions prescribed by section 341 of the Criminal Procedure Code were not applicable to applications brought under sections 118 and 123 of the Criminal Procedure Act. In that case, one of the issues for determination was whether the Criminal Procedure Act or Criminal Procedure Code was applicable to an application for bail instituted at the Federal Capital, Abuja. It was in this light that my learned brother Abdullahi JCA (as he then was) made the pronouncement first at p. 177 and at p. 179.

The objection of my learned brother was the reference by the Solicitor-General of the Federation to the bail conditions under the Criminal Procedure Code in his argument when the trial court had ruled that the application was governed by the Criminal Procedure Act.

I have observed that in Okpe v. State (supra) and Chinemelu v. COP (supra) the conditions in section 341 of the Criminal Code were applied, although no reference was made to the Criminal Procedure Code in the judgment.

It is in Oyeyemi v. Irewole Local Govemment (1993) 1 NWLR (Pt. 270) 462 at 477, the Supreme Court succinctly stated that judicial discretion is a science of understanding, to discern between falsity and truth, between wrong and right, between shadow and substance, between colourable glosses and pretences.

It is in exercising this discretion that the Judge is required to weigh all the circumstances of a particular case in the interest of justice. Thus in Echaka Cattle Ranch Ltd. v. NACB Ltd (1998) 4 NWLR (Pt. 547) 526 at 544, Iguh JSC stated thus:

“accordingly, since the circumstances constantly change or are never exactly the same, it is for the trial court to meet the ends of justice and to be fair and just in all the circumstances of each and every case. While it is the law that the exercise of its discretion by the trial court may be reviewed on appeal, an appellate court must not interfere unless it can be shown that such discretion was not exercised judicially and judiciously, that is to say, if the exercise was male fide, arbitrary, illegal either by the consideration of extraneous or irrelevant matters or failure to consider material issues, or otherwise that it was exercised in a manner that was inconsistent with the ends of justice”.

It would appear that the learned trial Judge in considering and exercising this discretion not to grant the appellant bail, he was not only guided by the criteria which had been established by case law over the years, but he also considered the guidelines and criteria for bail set out by Akin Ibidapo Obe and Clement Nwankwo in their research work titled “The Bail Process and Human Rights in Nigeria.” Published by the Constitutional Rights Project in 1992. At page 40 of this book the learned authors stated thus:

“We have noted that the court bail is granted virtually as of right in minor offences in line with the provisions of the Constitution and the Criminal Procedure Laws. However, with regard to more serious offences, the discretionary role of the courts become the significant factors…”

In the preceding pages, the learned authors condemned the attitude of some judicial officers in denying accused persons bail on flimsiest exercise of interfering with witnesses where a charge has political colouration. However, the quotaton at p.40 of that book reproduced above, to my mind, supports the position of the respondent. I am of the view that a charge of conspiracy to murder and attempted murder are not political offences but offences against the state. These offences attract grave penalties and, therefore certainly qualify as serious offences over which the trial Judge has the power to exercise his discretion whether or not to grant bail.

The appellant argued in his brief that paragraphs 12-15 and 18 of the first counter-affidavit and paragraphs 5-17 of the further counter-affidavit of the respondent offend Sections 86-89 of the Evidence Act, and that the said paragraphs should be struck out. It was further submitted that once these paragraphs are struck out there would be no ground by the respondent to oppose the appellant’s bail.

The respondent does not concede that these paragraphs (supra) offend Sections 86-89 of the Evidence Act. I am of the opinion that these paragraphs of the respondent’s counter-affidavit and further counter affidavit do comply substantially with Sections 86-89 of the Evidence Act. Assuming that this humble opinion is adjudged wrong, the appellant would still have to cross the hurdle of convincing or proffering good reasons why the court should exercise its discretion in his favour. Where no counter-affidavit was filed at all by the respondent the trial Judge would still be entitled, based on the circumstances of the case, to exercise his discretion; whilst relying on the affidavit of the appellant.

In Chinemelu’s case (supra) the Court of Appeal per Achike J.C.A. (as he then was) stated thus:

“I must state emphatically that the mere fact that the respondent filed no counter-affidavit nor opposed the application for bail is not conclusive to admit the appellant to bail as a matter of course. The decision to grant or refuse bail lies within the discretionary power of the court which must be exercised judicially and judiciously.

The exercise of that power cannot, in my view, be prejudiced simply by the failure of the respondent to file a counter-affidavit or in fact his failure to oppose the application. Similarly, the fact that the respondent has filed a counter-affidavit or opposed the application for admission to bail does not conclude the matter rather these acts or omissions are mere indices that will assist in exercise of the said discretionary powers of the court in one way or the other”.

The point made from the above statement is that the discretionary power of the Judge will be exercised with or without a counter-affidavit. The affidavits are only to assist in the exercise of that discretion.

The learned trial Judge in refusing the appellant bail has considered the nature of the charge the severity of the punishment and the character of the evidence, These are factors to, my mind, which may show whether the accused is likely to abscond or not.

It is my respectful opinion that the learned trial Judge exercised his discretion bona fide and not mala fide, and completely uninfluenced by irrelevant consideration in not granting bail to the appellant. It is now well settled that where a judicial discretion has been exercised bona fide by a lower court uninfluenced by irrelevant considerations and not arbitrarily or illegally but judicially and judiciously on sufficient materials the general rule is that an appellate court will not ordinarily interfere. See University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; and Okpe v. State (supra).

The second issue is whether by the interpretation of section 35(4) of the 1999 Constitution and Article 6 of the African Charter on Human and Peoples’ Rights the trial Judge is precluded from exercising the discretionary power under section 118 of the Criminal Procedure Law of Lagos State, 1994.

I wish to digress, albeit briefly to mention that African Charter on Human and Peoples’ Rights were ratified and brought into force in Nigeria on 17/3/1983 by African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria, 1990.

Essentially, the Charter provides for those areas which are covered by our own Constitution in its Fundamental Human Rights Provisions in chapter 4 of the 1999 Constitution as well as the same chapter in 1979 Constitution.

Where there is conflict between the provisions of the Charter and those of the Constitution, then those of the Constitution must prevail. The provision of a treaty cannot override the provisions of our Constitution.

This position is even more aptly re-stated in Abacha v. G. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at 315-316 by Achike, J.S.C.

“Both counsel in the appeal hold divergent views on the scope and nature of the local enactment in comparison with the African Charter… It is necessary to get our bearings right. The Constitution is the Supreme Law of the land; it is the grundnorm. Its supremacy has never been called to question in ordinary circumstances.”

Indeed section 1(1) of the 1999 Constitution provides that the Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. If any other law is inconsistent with the provision of the Constitution, the Constitution shall prevail, and the other law shall to the extent of the inconsistency be void. See also section 1(3) (supra).

Since its enactment the African Charter has been accorded legislative force in its section 1.

I find that the provisions of Article 6 of the Charter relied upon by the appellant is the same as that of S. 35(4) of the 1999 Constitution. The section provides that a person’s liberty may be deprived for the purpose of bringing him before a court or upon reasonable suspicion of having committed a criminal offence.

The process of being brought before the court is not the same as the process of the trial when being conducted; up to the conclusion stage. The trial commences from the time a charge is laid against a suspect. The suspect in the case at hand was first taken to court and charged though his plea was not taken on 23/11/99 which is clearly within the constitutional time limit. The application for bail was brought on the 16/12/1999 while the information charging the suspect is dated 9/12/1999. To my mind the constitutional right to pre-trial bail in section 35(4) is applicable where the suspect has not been charged before a court of law within the stipulated time. See COP v. Amalu (1984) 5 NCLR 443. It would appear that the provision does not mean that a suspect must be released on bail if trial is not concluded within 2 or 3 months as the case may be.

The learned counsel for the appellant relied on the authority of the High Court in Obekpa v. COP (1981) 2 NCLR 420 to buttress his argument that for non capital offences, bail is a constitutional right.

An interpretation of section 35(4) suggesting that the Constitution intended an obligatory release, under any circumstances after 2 or 3 months, without giving the trial Judge before whom the application is brought any discretion in the matter cannot be supported. I do not think that the courts have so interpreted the section.

In the case of Eyu v. State (1988) 2 NWLR (Pt. 78) at page 602 my learned brother Oguntade JCA agreed with the view of the appellant’s counsel in that case that a liberal approach should be adopted in the consideration of an accused’s entitlement to bail in non-capital offences having regard to section 32(1) of the 1979 Constitution yet he duly cautioned thus:

“This is of course not laying it down that at all events, bail should be granted. There are cases in which even if the liberal approach is followed, discretion may still indicate it is better to refuse bail.”

Quite a number of judicial pronouncements on question of bail both under the Criminal Procedure Act and under the Criminal Procedure Code is to the effect that the grant of bail is discretionary. As we have seen above the courts have as well set out the criteria to be followed in exercising this discretion.

For the appellant to argue that section 118 of the Criminal Procedure Act is inconsistent with section 35(4) of the 1999 Constitution and that a trial Judge has no discretion to exercise in granting of bail is certainly a narrow and erroneous interpretation of the constitutional provision.

My understanding of section 35(4) of the Constitution is that the real intendment of this provision is that a suspect is entitled to early trial or to be released on bail. In a case where early trial cannot be guaranteed then the suspect should be released on bail.

In this case, the trial has already commenced in earnest and the application for bail was brought while the trial was on. In Anakwe v. C.O.P (1996) 3 NWLR (Pt.436) 320 at 331 Tobi JCA stated thus:

“If the constitutional provision is applied to the letter in the bail decision, then every accused must be released on bail awaiting trial and this will not be in the interest of the enforcement of the criminal process. Such a chaotic situation was never intended by the makers of the Constitution.”

In the final analysis, this appeal fails in its entirely. I cannot grant the appellant bail in the circumstances. The respondent should however ensure speedy trial thereby maintaining the tempo of trial to enable the appellant know his fate soonest.


Other Citations: (2000)LCN/0903(CA)

James Danbaba V. The State & Ors. (2000) LLJR-CA

James Danbaba V. The State & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal by the 1st accused person against the ruling of Alabi J. dated 10th of May, 2000 wherein the learned Judge refused the application for bail dated the 16th of December, 1999.

I will summarise the facts leading to this application. On the 3rd of February, 1996, one Alex Ibru was shot by gunmen at the Falomo flyover in Lagos. He however survived the attack. The appellant and four other persons were accused and subsequently charged for offences including conspiracy to murder and attempted murder in the information filed by the State and dated the 26th of January, 2000

Meanwhile, the appellant and the four accused persons have been arraigned before Alabi J. Evidence of 1st prosecution has been taken at the trial.

On the 16th of December, 1991, the appellant brought a summons for bail which was supported by a 30-paragraph affidavit and 7 exhibits. The respondent in opposition to bail deposed to a counter-affidavit and further counter-affidavit dated 17th December, 1999 and 21st December, 1999 respectively.

On the 7th of March, 2000, arguments on the application was taken and ruling was delivered on the 10th of May, 2000. The learned trial Judge refused the application for bail and accordingly dismissed it.

Being dissatisfied with the said ruling, the appellant has further appealed to this court on five grounds.

Four issues formulated by the appellant for the determination of this court are as follows:

Issue 1

“Whether the conclusion reached by the learned trial Judge (in refusing the appellant bail, that the appellant will interfere with prosecution witnesses and avoid his trial are backed by evidence.

Issue 2

Whether there are exceptional circumstances arising from the counter-affidavit and further affidavit of the respondent to warrant a denial of bail to the appellant by the trial Judge having regard to the clear provisions of sections 86, 87 and 88 of the Evidence Act.

Issue 3

Whether there are sufficient materials placed before the learned trial Judge upon which he would have exercised his discretion and grant the bail sought.

Issue 4

Whether the appellant is entitled to bail as of right under the 1999 Constitution and the African Charter on Human and Peoples’ Rights”.

The two issues which the respondent formulated for the determination of this court are as follows:

Issue one

“Whether the appellant has adduced cogent argument to move the Court of Appeal to interfere with the exercise of discretion by the trial Judge.

Issue two

Whether by the interpretation of section 35(4) of the 1999 Constitution and Article 6 of the African Charter on Human and Peoples’ Rights the trial Judge is precluded from exercising his discretionary power under section 118 of the Criminal Procedure Law Cap. 33 Laws of Lagos State, 1994”.

While I do not think that the four issues formulated by the appellant’s counsel for determination as distilled from the 5 grounds are proliferated, however, I am of the firm opinion that the two issues formulated by the learned counsel for the respondent are apt, terse and are sufficiently adequate to deal with this appeal.

Accordingly, I shall be so guided by them.

The first point is whether the appellant has adduced cogent argument to move this court to interfere with the exercise of discretion by the learned trial Judge.

The decision to grant the appellant bail or refuse it lies entirely within the discretionary power of the court. The learned trial Judge was faced with the primary consideration as to whether the appellant had discharged the burden placed on him to enable him exercise that discretionary power. The learned trial Judge stated at p.10 of the ruling that the most important consideration in the bail decision is the determination of what criteria a Judge should apply in granting or refusing bail. Having carefully reviewed the surrounding circumstances of the case, he stated that the two criteria that were relevant and weighty in the determination of the application are as follows:

(a) The possibility of interference with prospective prosecution witnesses; and

(b) Availability of the appellant to stand his trial.

The learned trial Judge then proffered some reasons why he believed that the appellant would not appear to stand his trial if released on bail. He stated thus:

“It is common ground in this case that investigations have been concluded. Therefore the possibility of any of the accused persons hindering the investigation is no longer possible. There is however a world of difference between hindering investigation and interfering with witnesses. Incidentally, the interference with witnesses could take any form.

There is no doubt that the second 2nd (sic) accused person is a well known Nigerian of good and enviable reputation and personality.

He has hitherto served this country meritoriously in various capacities and positions. He attained the rank of Commissioner of Police in the Nigerian Police. Indeed, he was Commissioner of Police for Lagos State and Oyo State at different times.”

The learned trial Judge stated further thus:

“By virtue of all the sensitive positions he has had the singular honour and privilege of holding, it cannot be in doubt that the second accused person is very well connected not only socially, politically, economically but also in all spheres of human endeavour.

Consequently, it becomes obvious that by virtue of his being well connected, he has capacity to wield tremendous (sic) influence in the society.”

This is the analysis of the profile of the appellant by the learned trial Judge. He thereafter concluded that the whole trial and everything connected therewith must be an unwarranted irritant to the appellant, and for this reason, it is more realistic to believe that if he was admitted to bail he would want to avoid and evade his trial altogether.

These statements of the trial Judge can be justified when viewed against the background of the status of the appellant, the influence and authority the appellant commanded prior to his arrest and trial. I refer to paragraphs 12-16 of the respondent’s counter-affidavit which reads thus:

“12. That the offence for which the accused/applicant stands charged are grave indeed.

  1. That if the accused/applicant is granted bail it is not likely that he would appear for his trial.
  2. That if the accused/applicant is granted bail there is likelihood that he would intimidate and tamper with witnesses for the prosecution in view of his social status and professional training in security matters.
  3. That there is good and compelling evidence against the accused/applicant for the offence for which he is charged.
  4. That by the statements proposed witnesses attached to the information the accused/applicant procured the weapons used to commit the act constituting the offence”.

In addition, paragraphs 9-17 of further counter-affidavit deposed by Olakunle Ligali, a Legal Officer in the Department of Public Prosecutions Lagos State, further present the following scenario:

“9. That the release of any of the applicants will have serious negative consequences in the prosecution of this and other offences with which the applicants are currently charged.

  1. That all of the witnesses are subordinate by the applicant in the police hierarchy and given the strict authoritarian/hierarchical control in the Police Force there is great likelihood that the applicant will constitute a threat both implicitly and explicitly to the witnesses.
  2. That in considering the status of the applicant and his connection in the Police, security and law enforcement system of the country and seriousness of the charge and the severity of the punishment if convicted, there is a reasonable likelihood that the applicant will tamper with the evidence/witnesses essential to the prosecution of the offences.
  3. That having regard to the fact that the applicant has for the most part of his professional life acquired a high prestige and status in the Nigerian society, and served at the highest level of government, the possibility of conviction for life for the offence of attempted murder is sufficient to cause the applicant to abscond from the country.
  4. That there is strong likelihood that the applicant if released will compromise and intimidate witnesses and investigators by virtue of his former post and status vis-a-vis these witnesses.
  5. That in fact some of the witnesses have expressed great fear on account of threats received through different sources connected with the accused persons both in this trial and that referred to in paragraph 7 above.
  6. That already an intended key witness in this case the armourer of the Lagos State Police Command Insp. Joseph Oboh has been shot dead by assassins.
  7. That neither the car that the Insp. Oboh was driving nor any of his property was removed by the killers.
  8. That the applicant’s release at this stage will be highly prejudicial to the successful prosecution of those cases and have serious security implications for the witnesses and Police investigations.”

It is the contention of the learned counsel for the appellant in the appellant’s brief that two grounds considered by the trial Judge in arriving at his conclusion for refusing the appellant bail were applicable to applications brought under section 341 of the Criminal Procedure Code and not under sections 118 and 123.

I do not see the basis for this submission. Section 118(2) of the Criminal Procedure Law provides that:

“Where a person is charged with any felony other than a felony punishable with death, the court may if it thinks fit admit him to bail (italics supplied for emphasis).

On the other hand, section 341 (2) of the Criminal Procedure Code provides that persons accused of an offence punishable with imprisonment for a term exceeding three years must not ordinarily be released on bail unless by doing so the proper investigation of the offence would not be prejudiced and that no serious risk of the accused escaping from justice would occasion and finally that grounds exist for believing that the accused if released, would commit another offence.

Reading these sections together, it leaves no one in any doubt that Criminal Procedure Act does not provide any criteria to guide the courts in the exercise of its discretion.

The courts in Southern States of Nigeria where the Criminal Procedure Act applies largely have therefore on many occasions resorted to judicial pronouncement on the issue for guidance.

The usual conditions or matters which the court considers in its exercise of the discretion are:

(a) Whether the proper; investigation of the offence would be prejudiced if the accused person is granted bail and whether there is a serious risk of the accused person’s escape from justice by jumping bail;

(b) The nature of the offence or charge which the accused person is facing before the court and the risk of his interference in the prosecution of the case; and

(c) The strength of the evidence against the accused person. See also the following cases: Eyu v. State (1988) 2 NWLR (Pt. 78) 602 at 607, Okpe v. State (1994) 5 NWLR 490 at 499, Chinemelu v. COP (1995) 4 NWLR (pt. 390) 489 at 490.

I have read Abiola v.FRN (1995) 1 NWLR (Pt. 370) 155 at 179 relied upon by the learned counsel for the appellant for his proposition. This is the Court of Appeal decision. It did not state that the conditions prescribed by section 341 of the Criminal Procedure Code were not applicable to applications brought under sections 118 and 123 of the Criminal Procedure Act. In that case, one of the issues for determination was whether the Criminal Procedure Act or Criminal Procedure Code was applicable to an application for bail instituted at the Federal Capital, Abuja. It was in this light that my learned brother Abdullahi JCA (as he then was) made the pronouncement first at p. 177 and at p. 179.

The objection of my learned brother was the reference by the Solicitor-General of the Federation to the bail conditions under the Criminal Procedure Code in his argument when the trial court had ruled that the application was governed by the Criminal Procedure Act.

I have observed that in Okpe v. State (supra) and Chinemelu v. COP (supra) the conditions in section 341 of the Criminal Code were applied, although no reference was made to the Criminal Procedure Code in the judgment.

It is in Oyeyemi v. Irewole Local Govemment (1993) 1 NWLR (Pt. 270) 462 at 477, the Supreme Court succinctly stated that judicial discretion is a science of understanding, to discern between falsity and truth, between wrong and right, between shadow and substance, between colourable glosses and pretences.

It is in exercising this discretion that the Judge is required to weigh all the circumstances of a particular case in the interest of justice. Thus in Echaka Cattle Ranch Ltd. v. NACB Ltd (1998) 4 NWLR (Pt. 547) 526 at 544, Iguh JSC stated thus:

“accordingly, since the circumstances constantly change or are never exactly the same, it is for the trial court to meet the ends of justice and to be fair and just in all the circumstances of each and every case. While it is the law that the exercise of its discretion by the trial court may be reviewed on appeal, an appellate court must not interfere unless it can be shown that such discretion was not exercised judicially and judiciously, that is to say, if the exercise was male fide, arbitrary, illegal either by the consideration of extraneous or irrelevant matters or failure to consider material issues, or otherwise that it was exercised in a manner that was inconsistent with the ends of justice”.

It would appear that the learned trial Judge in considering and exercising this discretion not to grant the appellant bail, he was not only guided by the criteria which had been established by case law over the years, but he also considered the guidelines and criteria for bail set out by Akin Ibidapo Obe and Clement Nwankwo in their research work titled “The Bail Process and Human Rights in Nigeria.” Published by the Constitutional Rights Project in 1992. At page 40 of this book the learned authors stated thus:

“We have noted that the court bail is granted virtually as of right in minor offences in line with the provisions of the Constitution and the Criminal Procedure Laws. However, with regard to more serious offences, the discretionary role of the courts become the significant factors…”

In the preceding pages, the learned authors condemned the attitude of some judicial officers in denying accused persons bail on flimsiest exercise of interfering with witnesses where a charge has political colouration. However, the quotaton at p.40 of that book reproduced above, to my mind, supports the position of the respondent. I am of the view that a charge of conspiracy to murder and attempted murder are not political offences but offences against the state. These offences attract grave penalties and, therefore certainly qualify as serious offences over which the trial Judge has the power to exercise his discretion whether or not to grant bail.

The appellant argued in his brief that paragraphs 12-15 and 18 of the first counter-affidavit and paragraphs 5-17 of the further counter-affidavit of the respondent offend Sections 86-89 of the Evidence Act, and that the said paragraphs should be struck out. It was further submitted that once these paragraphs are struck out there would be no ground by the respondent to oppose the appellant’s bail.

The respondent does not concede that these paragraphs (supra) offend Sections 86-89 of the Evidence Act. I am of the opinion that these paragraphs of the respondent’s counter-affidavit and further counter affidavit do comply substantially with Sections 86-89 of the Evidence Act. Assuming that this humble opinion is adjudged wrong, the appellant would still have to cross the hurdle of convincing or proffering good reasons why the court should exercise its discretion in his favour. Where no counter-affidavit was filed at all by the respondent the trial Judge would still be entitled, based on the circumstances of the case, to exercise his discretion; whilst relying on the affidavit of the appellant.

In Chinemelu’s case (supra) the Court of Appeal per Achike J.C.A. (as he then was) stated thus:

“I must state emphatically that the mere fact that the respondent filed no counter-affidavit nor opposed the application for bail is not conclusive to admit the appellant to bail as a matter of course. The decision to grant or refuse bail lies within the discretionary power of the court which must be exercised judicially and judiciously.

The exercise of that power cannot, in my view, be prejudiced simply by the failure of the respondent to file a counter-affidavit or in fact his failure to oppose the application. Similarly, the fact that the respondent has filed a counter-affidavit or opposed the application for admission to bail does not conclude the matter rather these acts or omissions are mere indices that will assist in exercise of the said discretionary powers of the court in one way or the other”.

The point made from the above statement is that the discretionary power of the Judge will be exercised with or without a counter-affidavit. The affidavits are only to assist in the exercise of that discretion.

The learned trial Judge in refusing the appellant bail has considered the nature of the charge the severity of the punishment and the character of the evidence, These are factors to, my mind, which may show whether the accused is likely to abscond or not.

It is my respectful opinion that the learned trial Judge exercised his discretion bona fide and not mala fide, and completely uninfluenced by irrelevant consideration in not granting bail to the appellant. It is now well settled that where a judicial discretion has been exercised bona fide by a lower court uninfluenced by irrelevant considerations and not arbitrarily or illegally but judicially and judiciously on sufficient materials the general rule is that an appellate court will not ordinarily interfere. See University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; and Okpe v. State (supra).

The second issue is whether by the interpretation of section 35(4) of the 1999 Constitution and Article 6 of the African Charter on Human and Peoples’ Rights the trial Judge is precluded from exercising the discretionary power under section 118 of the Criminal Procedure Law of Lagos State, 1994.

I wish to digress, albeit briefly to mention that African Charter on Human and Peoples’ Rights were ratified and brought into force in Nigeria on 17/3/1983 by African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria, 1990.

Essentially, the Charter provides for those areas which are covered by our own Constitution in its Fundamental Human Rights Provisions in chapter 4 of the 1999 Constitution as well as the same chapter in 1979 Constitution.

Where there is conflict between the provisions of the Charter and those of the Constitution, then those of the Constitution must prevail. The provision of a treaty cannot override the provisions of our Constitution.

This position is even more aptly re-stated in Abacha v. G. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at 315-316 by Achike, J.S.C.

“Both counsel in the appeal hold divergent views on the scope and nature of the local enactment in comparison with the African Charter… It is necessary to get our bearings right. The Constitution is the Supreme Law of the land; it is the grundnorm. Its supremacy has never been called to question in ordinary circumstances.”

Indeed section 1(1) of the 1999 Constitution provides that the Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. If any other law is inconsistent with the provision of the Constitution, the Constitution shall prevail, and the other law shall to the extent of the inconsistency be void. See also section 1(3) (supra).

Since its enactment the African Charter has been accorded legislative force in its section 1.

I find that the provisions of Article 6 of the Charter relied upon by the appellant is the same as that of S. 35(4) of the 1999 Constitution. The section provides that a person’s liberty may be deprived for the purpose of bringing him before a court or upon reasonable suspicion of having committed a criminal offence.

The process of being brought before the court is not the same as the process of the trial when being conducted; up to the conclusion stage. The trial commences from the time a charge is laid against a suspect. The suspect in the case at hand was first taken to court and charged though his plea was not taken on 23/11/99 which is clearly within the constitutional time limit. The application for bail was brought on the 16/12/1999 while the information charging the suspect is dated 9/12/1999. To my mind the constitutional right to pre-trial bail in section 35(4) is applicable where the suspect has not been charged before a court of law within the stipulated time. See COP v. Amalu (1984) 5 NCLR 443. It would appear that the provision does not mean that a suspect must be released on bail if trial is not concluded within 2 or 3 months as the case may be.

The learned counsel for the appellant relied on the authority of the High Court in Obekpa v. COP (1981) 2 NCLR 420 to buttress his argument that for non capital offences, bail is a constitutional right.

An interpretation of section 35(4) suggesting that the Constitution intended an obligatory release, under any circumstances after 2 or 3 months, without giving the trial Judge before whom the application is brought any discretion in the matter cannot be supported. I do not think that the courts have so interpreted the section.

In the case of Eyu v. State (1988) 2 NWLR (Pt. 78) at page 602 my learned brother Oguntade JCA agreed with the view of the appellant’s counsel in that case that a liberal approach should be adopted in the consideration of an accused’s entitlement to bail in non-capital offences having regard to section 32(1) of the 1979 Constitution yet he duly cautioned thus:

“This is of course not laying it down that at all events, bail should be granted. There are cases in which even if the liberal approach is followed, discretion may still indicate it is better to refuse bail.”

Quite a number of judicial pronouncements on question of bail both under the Criminal Procedure Act and under the Criminal Procedure Code is to the effect that the grant of bail is discretionary. As we have seen above the courts have as well set out the criteria to be followed in exercising this discretion.

For the appellant to argue that section 118 of the Criminal Procedure Act is inconsistent with section 35(4) of the 1999 Constitution and that a trial Judge has no discretion to exercise in granting of bail is certainly a narrow and erroneous interpretation of the constitutional provision.

My understanding of section 35(4) of the Constitution is that the real intendment of this provision is that a suspect is entitled to early trial or to be released on bail. In a case where early trial cannot be guaranteed then the suspect should be released on bail.

In this case, the trial has already commenced in earnest and the application for bail was brought while the trial was on. In Anakwe v. C.O.P (1996) 3 NWLR (Pt.436) 320 at 331 Tobi JCA stated thus:

“If the constitutional provision is applied to the letter in the bail decision, then every accused must be released on bail awaiting trial and this will not be in the interest of the enforcement of the criminal process. Such a chaotic situation was never intended by the makers of the Constitution.”

In the final analysis, this appeal fails in its entirely. I cannot grant the appellant bail in the circumstances. The respondent should however ensure speedy trial thereby maintaining the tempo of trial to enable the appellant know his fate soonest.


Other Citations: (2000)LCN/0902(CA)

Yadis Nigeria Limited V. Great Nigeria Insurance Company Limited (2000) LLJR-CA

Yadis Nigeria Limited V. Great Nigeria Insurance Company Limited (2000)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A. 

The Appellant who was the plaintiff in the Court below per paragraph 17 of the statement of claim, claimed from the Respondent who was the defendant the following:-

(a) The sum of N3,003,610.00 (three million, three thousand six hundred and ten naira) being the amount due and payable as at 11th January, 1993 to the plaintiffs as a claim due on Fire Policy No. FBP/1012369/L from the defendant on account of fire accident that completely destroyed its insured goods during the night of 10th and 11th January, 1993.

(b) The plaintiff also claims interest on the said sum of N3,003,610.00 at the rate of 30% per annum from 11th January, 1993 until judgment and final liquidation of the whole debt.

Briefly, the Appellant’s case as could be gleaned from its statement of claim, is that by virtue of its being a member of Group of Companies to wit: Messrs Yisa Afolabi and Brothers, it (the appellant) and their Chairman/Managing Director one Chief Yisa Afolabi have been having insurance policies with the defendant since 1983. On 6th October, 1992, by virtue of Fire Policy No.FBP/1012369/L, the Appellant and the Respondent entered into an insurance contract whereby the Appellant’s goods consisting of tyres of various sizes and contained in the sale shop which is an integral part of a business premises situate at 32, Enu Owa Street. Lagos were insured in the sum of N3,500,000.00 (three million five hundred, thousand Naira). Following the invasion in October and November, 1992 of Lagos Island (which embraces 32, Enu Owa Street, Lagos) by vandals, thieves and hooligans, the appellant had to move it’s stock from 32 Enu Owa Street, Lagos to the company’s new warehouse site at Block 3, Ijegun Road. Ikotun Egbe in the Lagos State. The Appellant informed the Respondent, in writing, of the movement. The Appellant’s stock got burnt out completely in fire incident which occurred during the night of 10th and 11th January, 1993. The appellant immediately informed the Respondent of the incident on 11th January, 1993, in writing. The Respondent’s reaction to the Appellant’s letter of notification of the incident was through its letter dated 13th January, 1993 wherein it contended that its investigation conducted through its Surveyor and claims Manager revealed that no fire incident occurred at 32, Enu Owa Street, Lagos and thus there was no loss under the policy. The Respondent through another letter dated 3rd February, 1993 maintained that the policy only covered stock at 32, Enu Owa Street, Lagos and further denied the receipt of the letter notifying it of the change in location. The Appellant replied, in writing, contending that the Respondent received the letter addressed by it notifying the Respondent of the change in location. The total of the balance in stock of the Appellant at 3 Ijegun Road, Ikotun, Egbe at the time of the fire incident was N3,003,610.00.

The defendant/respondent’s case as stated in its statement of defence is that the appellant on 21st September, 1992 made a proposal to the Respondent to take out a fire policy insuring its goods at 32, Enu Owa Street, Lagos. Being satisfied as to the location where the goods were to be warehoused and the goods themselves, the Respondent issued out a fire policy effective from 21st September, 1992 to cover the goods; thus concluding a contract of insurance with the Appellant. Sequel to the sealing of the contract, the Respondent was notified, in writing that there was a fire incident which gutted the goods of the appellant. The respondent promptly caused the insured premises to be inspected by its surveyor. The inspection revealed that there was no fire incident at 32, Enu Owa Street, Lagos, the place insured with the Respondent. This was communicated to the Appellant. The Respondent further averred that it was surprised to receive a letter dated 15th January, 1993 from the Appellant which stated that it (appellant) had changed its business address to Block 3, Ijegun Road, Ikotun Egbe, Lagos contending that it appellant had earlier informed the Respondent of the change of business address by a letter dated 2nd November, 1992. The Respondent further contended that the photocopy of the said letter of 2nd November, 1992 was the first notification to it by the Appellant of the change in the business address. The Respondent refused all entreaties by the appellant to get it to settle the claim. Its refusal was predicated on the fact, as found by it, that there was no fire incident at 32, Enu Owa Street, Lagos. After all efforts to get the defendant/respondent settle the claim failed, the matter proceeded to trial before Obadina, J.(as he then was) who after taking evidence on both sides and the addresses of Counsel on both sides, in a considered judgment, dismissed the plaintiff/appellant’s claim in toto. In the course of the judgment the learned trial Judge held inter alia:-

“From the pleadings, the evidence led by the parties and the addresses of Counsel to the parties, it is common ground that the Fire Policy No. FBP/1012369/L dated 8th October, 1992 – Exhibit C, the parties entered into an insurance contract, whereby the defendant company insured the plaintiff’s stocks and materials in trade consisting of tyres of various sizes stocked at the plaintiff’s shop 32, Enu Owa Street, Lagos.

It is also not in dispute that by a letter dated 11th January, 1993, the plaintiff informed the defendant that fire incident occurred at the plaintiff’s warehouse during the night of 10th and 11th January, 1993…

Since the defendant had made an issue of the receipt of the said document – the original of Exhibit D, I think the plaintiff has a duty to prove that the original existed and it was actually delivered to the defendant. Honestly, I do not think the plaintiff has discharged that duty by merely tendering Exhibit D. I think the cloudy air about the existence and delivery of the alleged original of Exh D could have been cleared by the person who delivered the document to the office of the defendant.

Since the person was not called to give evidence and the delivery hook used by the plaintiff/specifying the particulars of the letter and clearly showing that it was received and by who, I find it very difficult to hold and I am unable to hold that the original of Exhibit ‘D’ was received by the defendant that the plaintiff had removed the insured goods from 32, Enu Owa to Block 3, Ijegun Road, Ikotun Egbe…I do not think that the stamp, print of the defendant’s company on Exhibit D ipse dixit, established that the original Exhibit D was received by the defendant company…

In that regard, it is my view that in so far as the sanction of the defendant in respect of the removal of the insured goods is not endorsed upon the policy – document Exhibit C before the occurrence of the alleged fire incident, the insurance has ceased to attach to the insured goods. Accordingly, the loss or damage is not covered by the policy.

I am perfectly in agreement with the learned counsel that the defendant has failed to prove forgery on the part of the plaintiff with respect to Exh. D – the letter alleged to have been sent to the defendant by the plaintiff…

On the evidence, it is my view that the plaintiff is in breach of the documentary evidence warranty contained in the policy Exh. C.

On the totality of the evidence, it is my view that the loss in this case is not covered by the policy.

Consequently, the plaintiff’s claim fails and it is hereby dismissed.”

Dissatisfied with the judgment the plaintiff/appellant filed an amended notice of appeal that carries six grounds of appeal. Distilled from the said grounds of appeal and set-out in the appellant’s brief of argument are six issues for determination and they are as follows:-

(1) Whether the learned Judge was in error to have held that the stamp print of the defendant/company on Exhibit D did not establish the ipse dixit that the original Exh. D was delivered by the plaintiff/company to the defendant/company?.

(2) Whether the learned trial Judge made a correct approach in law by applying section 91 of the Evidence Act in determining whether or not the original Exh. D was delivered to the Respondent/company and the weight to attach to it?.

(3) Whether the learned trial Judge on the proper evaluation of evidence led in this case erred in holding that the insurance contract ceased to attach as regards the property insured once the property insured is removed to any building or place other than that in which it is in the policy stated to be insured unless the sanction of the defendant/company is obtained?.

(4) Whether the learned trial Judge erred in holding that the original of Exhibit D was not delivered to the defendant/company when the said defendant/company failed to prove that Exh. D was a forgery?.

(5) Whether in the circumstances of this case it was the case of the defendant/respondent at the trial that the plaintiff/appellant breached the documentary evidence of warranty contained in the policy – Exhibit C?.

(6) Whether the learned trial Judge properly discharged his duty of dispassionately evaluating all the evidence adduced in this case and arrived at the correct decision?.

For its part, the defendant/respondent identified two issues for determination: and as set out in its brief they are:-

(1) did the plaintiff discharge the burden of proof on him in the action?.

(2) was it right for the learned trial Judge to dismiss the plaintiff’s action?.

When this appeal came before us on the 25th of September, 2000, for argument Chief Aribisala, learned Counsel for the plaintiff/appellant adopted the appellant’s brief filed on 29th December, 1999 and the reply brief filed on the 27th April, 2000 and urged that the appeal be allowed. Chief Dotun Akinkugbe, learned Counsel for the Respondent also adopted the Respondent’s brief filed on 3rd April, 2000 and urged that the appeal be dismissed.

I have had a very careful study of the issues formulated by the two parties for determination. It is my view that all the issues can be summarized into one cardinal issue or point, that is whether the plaintiff/appellant could be said, on the evidence before the court below, to have notified the defendant/respondent of the relocation of the insured stock from 32, Enu Owa Street, Lagos to 3 Ijegun Road, Ikotun Egbe and obtained the sanction of the defendant/company, the respondent in this appeal, which sanction is signified by endorsement on the policy document by or on behalf of the company, This is very crucial of section 8 (c) of the conditions appartenant to the Policy. Exhibits C and C would not be seen to have been breached. Section 8(c) of the conditions provides:

“Under any of the following circumstances the insurance ceases to attach as regards the property affected unless the insured, before the occurrence of any loss or damage, obtains the sanction of the company signified by the endorsement upon the policy, by or an behalf of the company…if property insured be removed to any building or place other than that in which it is herein stated to be insured.”

The parties, it should be observed from the insurance agreement, the policy, which they signed agreed that the insured property shall be kept at 32, Enu Owa Street, Lagos, I now pause a bit to examine the law on the burden of proof in insurance contract. Judicial authorities are agreeable that ordinarily it is for the underwriter (the insurer) who will stand to benefit from the occurrence of breach of warranty or condition in a policy of insurance to prove the breach of such condition or warranty where it (insurer) is contending that the policy is void on the ground that there has been a breach of condition precedent to the formation of the policy. This principle, in my view, is founded on equity, for a breach of warranty or condition provides the insurer with a solid defence to any claim brought in respect of a time subsequent to the breach. See (1) The Northern Assurance Co. Ltd. v. Wuraola (1969) NMLR 1, (2) Bond Air Services Ltd. v. Hill (1955) 2 All ER 476. However, as was observed by Lord Goddard C.J. (England) in the BOND case, it is always open to the parties to insert express words to shift the burden of proof, but such words must be very clear to alter this established principle of insurance law since the decision by Parke B in Barrett v. Jenny (1849) 3 Ex. 535. Again, I wish to say that once the assured has proved that the loss was caused by the general peril insured against the onus then shifts on the insurer to bring himself within any exception in the policy on which he relies.

However, it has always been a difficult matter of construction to decide whether the insurance agreement affords a limited cover or a general cover subject to exceptions. Where it is very clear that the policy confers only a limited cover it is still for the assured to bring himself within the terms of the policy to enable him pursue his claim successfully. It is in the realisation of those difficulties that Bailhache, J. laid down certain general rules as to the onus of proof in insurance cases in his judgment in Munro Brice & Co. v. War Risks Association Ltd. (1918) 2 KB 78; the rules are as follows:

(1) the assured must prove that the loss or damage was caused by the operation of general risk insured against;

(2) if the general risk is qualified by the exception of specific risks, which but for the exception would fall within the general risk, and some part of the general risks is left unqualified the burden is on the insurer to prove facts which bring the case within the exception relied on;

(3) if there is a qualification of the general risk which covers its whole scope so that there is no unqualified risk left, the burden is on the insured to prove facts which bring the case within the general risk as qualified;

(4) whether a qualification of the general risk is in the nature of an exception or a qualification of the whole risk is in every case a question of construction of the policy as a whole,

(5) in construing a policy it must be borne in mind that a general risk with exceptions can generally be turned by an alteration of phraseology into a general risk with a qualification covering its whole scope.

Rule 3 seems to me to be relevant here. I say this because in my view, condition (c) of the Insurance Policy quoted supra by interpretation provides, in substance, that, in the event of a breach of the warranty, the policy shall be void, and the insurer (defendant)/respondent) shall reserve the right to avoid the policy. This, again, will be so if the subject-matter of the warranty or condition breached by the assured (the plaintiff/appellant) was within his control the (assured) shall not be able to dictate to the insurer whether to exercise the right to avoid the contract or not, rather it is left to the insurer to decide whether to hold itself to be still bound by the contract or not.

In the instant case, the subject-matter of the insurance were within the absolute control of the assured (plaintiff/appellant). Although, the decision of Bailhache J. was upturned on appeal by the Court of Appeal (England) on an inference of fact, the five rules laid down by him on the onus of proof in insurance cases were approved. See Munro, Brice & Co v. Martell (1920) 3 KB 94. Indeed, the rules were followed in Greaves v. Drysdale (1935) 53 Lloyd’s List Law Report 16 and (2) Eagle Star Insurance Co. v. Willey (1956) 1 South African Law Report 330. I have, above, described the effect of the breach of condition 8(c) – the breach is to render the policy void. To obviate this, the plaintiff/appellant has to prove facts which bring the case within the general risk as qualified. In short the plaintiff/appellant has to prove that before the occurrence of the complete destruction, by fire, of his commodities, he had obtained the sanction of the respondent signifying the endorsement on the policy by the defendant/respondent. This then brings me to the issue, whether the appellant served the defendant/respondent with Exhibit D – the letter notifying the defendant/respondent of the removal by the plaintiff/appellant of his insured stock, from 32, Enu Owa Street, Lagos to Block 3, Ijegun Road, Ikotun Egbe. The plaintiff/appellant in its brief submitted that the original of Exhibit D – the letter notifying the insurer of the change in the position or place where the stocks were stored was delivered to the defendant/respondent, the copy which is Exhibit D tendered in the Court below without any objection bears the stamp print of the Respondent. One Olawuyi agreed by both sides to be a member of staff of the defendant, according to the plaintiff/appellant, received the original of Exhibit D, the defendant/respondent denied the assertion. Olawuyi was not called as a witness but the appellant reasoned that it was the duty of the respondent to call Olawuyi as a witness on the issue. The appellant further reasoned that since objection was not taken to the admissibility of the original of Exhibit D, it was no longer necessary to prove the delivery of that original, conclusion which the trial Judge should have reached from the evidence before him, was that the defendant/respondent received the notice of relocation of the insured stock to 3 Ijegun Road, Ikotun Egbe. For the Respondent to now deny the receipt of the original of Exhibit D will tantamount to constructive fraud and a Court of law should not allow that; the case of Trenco (Nig.) Ltd. v. African Real Estates and Investment Ent. Co. Ltd. & Anor. (1978) 4 SC 9; (1978) 11 NSCC 220 at 229, (1978) 4 SC 9 was prayed in aid. And since a limited liability company, the like of the Respondent, acts through human agents, the fraud, negligence or carelessness of the human agents is attributable to the limited liability company, it further contended while citing Aeroftot Soviet Airlines v. UBA Ltd. (1986) 1 NSCC 698, (1986) 3 NWLR (pt.27) 188 and ACB Ltd. v. Agbanyim (1960) 1 NSCC 12, (1960) SCNLR 57. On the other hand, the defendant/respondent contended in its brief of argument that since the plaintiff’s/appellant’s case was that it removed the stocks insured from 32, Enu Owa Street, Lagos which was the location stated in Exhibit C to Block 3, Ijegun Road, Ikotun Egbe, the burden of proving compliance with condition 8(c) of Exhibit C was on the plaintiff. That duty was not discharged it contended. As I have pointed out above, condition 8(c) is a qualification of the general scope such that there is no unqualified risk left once it is seen to have been reached. Again, I have held somewhere in this judgment that the subject-matter (the stock) of the warranty or condition was within the absolute control of the plaintiff/respondent. That absolute control was such that the plaintiff did not have to get permission before it removed the stock from 32, Enu Owa Street, Lagos to Block 3 Ijegun Road, Ikotun Egbe. It is after the movement and to bring itself into compliance with the provisions of the insurance contract to enable it claim compensation that it needed to notify the defendant/respondent. Since the plaintiff/appellant had the absolute control of the stocks, the notification to the defendant of the change in the position of the stocks from the place indicated in the policy Exhibit C – to another place and the receipt of the consent of the defendant/respondent is a sina qua non to making a successful claim for compensation. The absence of notification and the consent of the respondent are fatal to the claim of the appellant for compensation. In civil cases, the like of the present case, the onus of proof always rests on the party who would fail if no evidence at all, or no more evidence, as the case may be, were given on either side. It may shift from plaintiff to defendant and vice versa from time to time as the case progresses. See Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 SC 79. The onus of prove that the notification was served on the defendant/respondent rests squarely on the plaintiff/appellant. This is so particularly having regard to the fact that the subject matter of the policy the stocks – were under the absolute control of the plaintiff/appellant. I reject the contention of the plaintiff/appellant, in its brief of argument that the onus is on the defendant/respondent. The only evidence adduced in proof of the delivery of original of Exhibit D to the defendant/respondent by the plaintiff/appellant is that assertion that Exhibit D the copy of the letter bore the stamp of the defendant/company but it was not signed nor dated by the person who received it. The defendant/respondent being a corporate body is a mere legal fiction that exists only in the eye of the law. It acts through the biological persons who run it. It follows that the signature of a designated official of the defendant/company is of vital importance to prove that the original was received. Again, the credible evidence which can fix the defendant/respondent with the knowledge of the contents of the original is the signature of the designated official of the company. The law remains sacrosanct, that in the absence of fraud, duress or plea of non est factum the signature of a person on a document is evidence of the fact that he is either the author of contents of all that are above his signature or that the contents have been brought to his attention; it does not matter that he did not read the contents of the document before signing it.Merely affixing the stamp of the company on Exhibit D will not be a substitute for the signature. If Exhibit D had been signed by the official of the defendant/respondent that would have sufficed for proof that the original was delivered and the mere fact that the defendant/respondent later failed or refused to sanction the re-location of the stocks by endorsing the policy to that effect will not avail it. Acquiescence of a party who might take advantage of an error obviates the effect of that error. The maxim is, he who does not disapprove approves. I am therefore satisfied with the finding of the court below that, on the evidence before him, the plaintiff/appellant is in breach of the condition of the Insurance Policy, the loss sustained by it is therefore not covered by the policy.

In the final analysis, this appeal is, in my judgment, unmeritorious and it is accordingly dismissed with N5,000.00 cost to the defendant/respondent.


Other Citations: (2000)LCN/0901(CA)

Bolaji Babatunde Akinkunmi & Anor V. Alhaji Rasaq Olanrewaju Sadiq (2000) LLJR-CA

Bolaji Babatunde Akinkunmi & Anor V. Alhaji Rasaq Olanrewaju Sadiq (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

The Respondent as plaintiff took out a writ of summons in the High Court Lagos State claiming as follows:

“1. A declaration that the property in dispute comprising a shop and two rooms at 25, Alli Street, Lagos belongs to the plaintiff Alhaji Rasaq Olanrewaju under Yoruba Native law and Custom.

  1. An order of perpetual injunction restraining the 1st defendant from collecting rents in any form or manner in respect of the shop and two rooms at 25 Alli Street, Lagos.
  2. Possession of the shop and two rooms,
  3. Mesne profit at the rate of N500 for the shop and N250.00 for each room per month respectively from 1st June, 1990 until judgment.”

On 4/3/98, plaintiff’s writ was amended praying the court to dismiss the 1st defendant’s action as being statute-barred. In the same vein on 22/1/98, the appellant as the 1st defendant by a summons on notice brought an application at the lower court under Order 23 rules 2 and 3 of the High Court of Lagos State (Civil Procedure) Rules, 1994, praying for the determination of preliminary issues of law and mixed facts and law raised in paragraphs 10- 20 in the statement of claim and paragraphs 2 – 5 of the reply to the statement of defence of the appellant and paragraphs 26 – 29 of the reply to the statement of defence; and whether he has disclosed good defence in law to all claims and causes of action pleaded by the plaintiff in his writ of summons and statement of claim.

Other preliminary issue presented for determination by the appellant was whether the action of the respondent was statute-barred pursuant to section 16(2) (a) and 33(1) (2) Limitation Law, Cap. 118, Laws of Lagos State (supra) having regard to the following facts:

(1) that Madam Nimota Ajiwun, the predecessor-in-title who was in possession died on 28/6/1969 and

(2) that the 1st defendant herein has since then for a period of over 27 years been in possession of the property in dispute consisting of one shop and two rooms at No.25, Alli Street, Lagos, exercising maximum acts of ownership including putting in and ejecting tenants there from, the 2nd defendant being his tenant presently in occupation without let or hindrance or disturbance of any kind.

The learned trial Judge took arguments from the parties and in his ruling dismissed the appellant’s action as being statute-barred under sections 16(2) (a) 19(1),21,33(1) (2) of Limitation Laws Cap. 118 of Laws of Lagos State vol.5 1994.

Dissatisfied, the Appellant appealed to this Court on three grounds.

Learned Counsel on behalf of the parties filed and exchanged briefs of argument. In the Appellant’s brief two issues were formulated for the determination of this court as follows:

“(1) Whether for the operation of Limitation Law probate action instituted in 1974 and concluded in 1995 between same parties can have effect on them in a claim for declaration, perpetual injunction, possession and mesne profit instituted in 1996 by one of the said same parties against the other?.

(2) Whether for the operation of limitation in trial of preliminary point of law raised in the pleading the defendant who pleaded that, he is the owner of the land in dispute and has been in possession for over 20 years need to establish again to be in adverse possession against plaintiff just claiming to be entitled to the land in dispute under Yoruba Law and Custom?.”

The respondent filed one single issue for determination thus:

“Whether the cause of action in the suit herein accrued on 29/5/95 when the Court of Appeal in suit No.CA/L/228/93 finally determined that the Will of the late Madam Nimota Ajiwun in which she devised the 2 rooms and a shop, the property in dispute to the defendant was void, or in 1973 when Nimota Ajiwun died?.”

Before I go into the issues formulated by the parties, I must comment briefly on the manner the briefs were written, particularly that of the appellant. The Supreme Court and indeed this court all have cause to emphasise the importance of good brief writing. There is need to make a brief legible, readable in appearance and attractive in form and presentation, Above all it should not be unnecessarily lengthy and repetitive, In appellant’s brief, grounds of law are muddled up with grounds of fact. Facts have been included in the brief which have no bearing on the issues for determination. In arguing the first issue, the learned Counsel has gone extra mile to reproduce all the notice and grounds of appeal, and their particulars and the statement of claim and defence and reply to the statement of defence, What you find here is real confusion and what our learned author of manual of brief writing, Phillip Nnaemeka-Agu, J.S.C. would refer to as “unsettled mind” in the course of drafting of a brief. What I have here are semblance of a brief.

The learned Counsel has not grasped the rudiments of brief writing, He was perhaps grappling with the art when he was much younger at the Bar. He must have improved by now! My wise counsel to both counsels is that they should be ready to learn from their senior colleagues the intricacies of brief writing. They should be ready to do so, if they had not done so, See Alice K. Okesuji v. F.A Lawal CA/L/249/84 (unreported) of 3/9/1985 (1986) 2 NWLR (Pt. 22) 417 and recent exhortations of the courts in Universal Vulcanizing (Nig,) Ltd, v. Ijesha Trading & Transport Co, Ltd, (1992) 9 NWLR (Pt.266) 388; Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643; Elendu v. Ekwoaba (1998) 12 NWLR (Pt.578) 320, Raimi Tumo v. Sakibu Murana (2000) 12 NWLR (Pt.681) p, 370; Francis Ejiogu v. Nide CA/L/484/99 (unreported) of 23/10/2000.

Now coming to the issues for determination. The learned Counsel for the Appellant argued grounds ‘A’ and ‘B’ together in issue No. 1. He did not argue the issue as formulated. It is the issue that is argued on appeal not the grounds of appeal. When counsel argues an appeal he should rely on the issues formulated rather than the grounds of appeal because it is on the basis of the issues that the parties found their contentions: See Innocent Ozims v. Anoruo (1999) 3 NWLR (Pt.81) p. 571 at 579, Bamgboye v. Olanrewaju (1991) 4 NWLR (Pt.184) 132 at p. 152; and Macaulay v. NAL Merchant Bank Ltd, (1990) 4 NWLR (Pt.144) 283 at 321. Consequently, I must discountenance the arguments as proffered based on the grounds of appeal.

With respect to the second issue formulated by the appellant, I find that lone issue of the respondent aptly covers this ground and I will be so guided by it. This ground is crucial to this appeal. It is the contention of the respondent’s counsel that the appellant was not in any adverse possession of the two rooms and a shop the subject-matter in this suit between 1974 and 29/5/95, It is also submitted that the cause of action accrued on 29/5/95 when the Court of Appeal in suit No.CA/L/288/93 declared the will of the late Madam Nimota Ajiwun and the devise of the two rooms and a shop void.

In determining this issue, I need to reproduce paragraphs 16-19 of the Respondent’s statement of claim and paragraphs 2-5 of the reply to the statement of defence.

First, paragraphs 16 – 19 read thus:

Paragraph 16

“Nimota Ajiwun died childless on the 28th September, 1973, She had nonetheless on the 28th June, 1969 at Lagos executed a will by which she proposed to devise the property in dispute i.e. 25, Alli Street, Lagos to her nephew Bolaji Akinkunmi the 1st defendant in this suit”.

Paragraph 17

“On the lodgment of the said will at the probate registry of the Lagos High Court by the 1st defendant, the plaintiff and his mother Riyanatu entered a caveat against the admission of same to probate in Solemn Form.” See page 4 of the record.

Paragraph 18

“In the resultant probate action of suit No.LD/1030/74 instituted by the 1st defendant against the plaintiff and his mother (now deceased) the High Court of Lagos in the judgment delivered on the 26th February, 1993 held that the will of Madam Nimota Ajiwun was void and accordingly dismissed the suit. The plaintiff will rely on the judgment at the trial of this suit.”

Paragraph 19

“Dissatisfied with the said judgment the plaintiff (the defendant herein) filed an appeal at the Court of Appeal vide No.CA/L/288/93. In the final determination of the appeal, the court on the 29th May, 1995 upheld the decision of the Lagos High Court that the will of the late Madam Nimota Ajiwun is void and in so far as it related to 25, Alli Street, Lagos even though the court held further that the will could be admitted to probate as it affects other properties excluding 25, Alli Street, Lagos.” – See Page 4 of the record Paragraph 2 of the reply to the defence of the 1st defendant reads as follows:

Paragraph 2

“The plaintiff avers that in 1974 the 1st defendant in suit No.LD/1030/74: Bolaji Babatunde Akinkunmi v. Alhaji Rasaq O. Sadiq & anor claimed against the plaintiff herein and another that he was the sole executor and beneficiary in the will of Madam Nimota Ajiwun includes the 2 rooms and a shop at No. 25, Alli Street, Lagos, the subject-matter of this case.” See 27 of the record.

Paragraph 3

“The plaintiff avers that on the 26th February, 1993, the High Court Lagos dismissed the said action in suit No.LD/1030/74”.

Paragraph 4

“The 1st defendant herein filed an appeal against the said judgment and the Court of Appeal in suit No. CA/L/288/93 dismissed the appeal in favour of the plaintiff herein on the 29th May, 1995.” See page 27 of the record.

Paragraph 5

“the issue and to the ownership of the said 2 rooms and one shop and the issue as to whom probate of the said will of Madam Nimota Ajiwun was to be granted raged on between 1974 and 1995.” See page 27 of the record.”

What has struck my mind when I perused these paragraphs above is that the 1st defendant who is the appellant now was constantly claiming the property in dispute from 1974 to 1995 when in that year this court in Appeal No. CA/L/288/93 gave judgment that the will of the late Madam Nimota Ajiwun in which she devised the rooms and a shop; the subject-matter of the suit herein was void. One can see the frustration faced by the respondent between this period. He could not have instituted an action and indeed the suit herein between 1974 and 1995 against the appellant, simply because facts which are necessary and which he needed to rely to prove, if traversed to support his right to judgment had not occurred. Between this period the High Court of Lagos State and this Court of Appeal were still adjudicating on the validity of the will of the said late Madam Nimota Ajiwun and the devise of the two rooms and the shop.

My respectful view is that the facts which the respondent had to prove had not occurred between this period. These facts emerged in 1995; when the late Madam Nimota Ajiwun and the devise of the two rooms and a shop were declared void; See Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1 SC.

The general principle of law is that where the law provides for the bringing of an action within a prescribed period in respect of a cause of action, accruing to the plaintiff proceedings shall not be brought after the period prescribed by the statute. An action which is not brought within the prescribed period offends the provision of the law and does not give rise to a cause of action: See FBN Plc v. Associated Motors Co. Ltd. (1998) 10 NWLR (Pt.570) 441 at 480; Obiefuna v. Okoye (1961) 1 SCNLR 144.

What a cause of action is, has been defined as a bundle of aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought.

When every fact which is material to be proved to entitle the plaintiff to succeed or all those things necessary to give a right to a relief in law, equity have occurred, a cause of action is said to have accrued to the plaintiff:

To ascertain when an action is statute-barred the following enquiries must be made:

(a) Seek to know when the cause of action accrued to the plaintiff.

(b) Check from the writ of summons when the suit was instituted and; then

(c) Ascertain from the statute in question what period of time it prescribed to bring the action.

Section 16(2) of the Lagos State Limitation Law 1994, provides:

“The following provisions shall apply to an action by a person to recover land –

(a) Subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action occurred to the person bringing it or, if it first accrued to some person through whom he claims, to that person.”

I reiterate my earlier view that the cause of action occurred in 1995 when the suit brought by the Respondent could be effectively prosecuted by the respondent. This action having been filed on 1/4/96, I am of the opinion that the learned trial Judge was perfectly right to rule that the action was not statute-barred.

The learned Counsel for the appellant has contended that the appellant has been in exclusive possession on the premises in dispute since the death of Nimota Ajiwun on 28/9/1973.

The Appellant also claimed that he had been in adverse possession of the premises in dispute. I do not think so. Section 19 (1) of Limitation Law, Cap. 118, (supra) reads as follows:

“19(1). No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.”

“Adverse possession” is defined in Jowitt’s Dictionary of English Law (2nd Edition p.60) as an occupation of realty in-consistent with the right of the true owner. The Appellant in suit No. LD/1030/74 and appeal No. CA/L/228/93 claimed to be the true owner of the premises in dispute. He cannot at the same time claim to be in adverse possession of it. I agree with the learned trial Judge that the appellant was not in adverse possession of the property in dispute between 1974 and 1995.

It is for the above reasons I therefore conclude that this appeal lacks merit. It is accordingly dismissed with N3000 costs in favour of the Respondent.


Other Citations: (2000)LCN/0900(CA)

Mrs. Slyvia Salau & Ors V. Alhaja Kudiratu Para-koyi (2000) LLJR-CA

Mrs. Slyvia Salau & Ors V. Alhaja Kudiratu Para-koyi (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A. 

This is an appeal against the ruling of Honponu-Wusu J. of the Lagos State High Court, Lagos Judicial Division delivered on 25th October, 1996 refusing to set aside the ex-parte Order of interim injunction restraining the appellant from allocating altering, leasing, renting, selling or dealing with all the assets and or properties of the estate particularly the property situated and lying at No.2 Lalupon Close, S.W. Ikoyi Lagos pending the determination of the motion on notice dated and filed by the respondent on 20/3/95.

The factual background relevant to this appeal is that the respondent as plaintiff claimed at the lower Court in Suit No. LD/4239/94 as follows:

“1. A declaration that Dr. Godwin Olatunji Balogun and Chief Odutola Balogun are not entitled to be co-administrators to the Estate of late Dr. H.O.O. Salau

2 A declaration that (1) Jareg Olufunmilayo Ekundayo Salau (male) (2) Miss Adetutu Salau (3) Miss Marian Omolara Salau and (4) Miss Omolabake Salau are the legitimate beneficiaries to the estate of Late Dr. H.O.O. Salau.

  1. An order directing the 4th defendant to issue an amended letter of administration with (1) Mrs. Abosede Salau (2) Mrs. Sylvia Salau and Alhaja Kudiratu Parakoyi as co-administrators of the Estate of late Dr. H. O. O. Salau.
  2. An order that Dr. Olatunji Balogun, Chief Tunde Odutola Balogun, Mr. Abosede Salau and Mrs. Sylvia Salau do render account of their stewardship or administration of the Estate of Late Dr. H.O.O. Salau and pay the proceeds if satisfied with that decision any accruing thereof to the beneficiaries of the said Estate”.

On 27/2/95 the lower Court entered trial Judgment against the appellants granting all the reliefs sought by the respondent. Dissan the appellants in their amended notice of appeal filed 5 grounds of appeal from which they formulated 5 issues in their brief of argument as follows:

2.1. Whether the Lower Court was functus officio on 27th February 1995 in suit No.LD/4239/4 before granting the Ex-parte order of interim injunction dated 18/4/95 restraining the appellant from leasing, renting etc. 2. Lalupon Close, Ikoyi subject of the contempt proceedings?.

2.2 Whether it is proper for the Lower Court to grant ex-parte Order of interim injunction restraining the appellants from leasing, renting 2 Lalupon Close, Ikoyi that was not specifically claimed on the writ of summons?.

2.3 Whether the contempt proceedings (including form 48 and 49 initiated against the appellant were steps taken to enforce the judgment of the lower court dated 27/2/95?.

2.4 Whether judgment in suit No.LD/802/92 constitutes res judicata ousting the jurisdiction of the lower Court in making ex-parte order of interim injunction in suit No. LD/4239/94?

2.5 Whether the appellants can be tried for contempt for alleged disobedience of the said ex-parte Order of interim injunction?.”

The respondent on the other hand formulated a single issue for determination which reads thus:

“1 Whether the learned trial Judge was in error by entering judgment for the respondent and granting the remedies as contained in the writ of summons and statement of claim in default of pleadings and without taking evidence?.”

The respondent did not specifically respond or react to each of the issue raised in the appellant’s brief of argument but based on the argument and reasons on this solitary issue formulated, urged that the appeal be allowed. Although it is conceded by the respondent that this appeal be allowed generally, I am bound by the Rules of this Court to carefully consider all the issues raised by the appellants so as to arrive at just determination of this appeal.

The first issue for determination raises the question whether the lower court was functus officio on 27th February, 1995 in suit No.LD/4239/94 before granting the ex-parte Order of interim injunction dated 18/4/95 restraining the appellants from leasing, renting etc 2 Lalupon Close, Ikoyi subject of the contempt proceedings.

The final declaratory judgment entered in suit No. LD/4239/94 in favour of the respondent on 27/2/95 had not been set aside. It is trite that once a competent court had decided on an issue and the decision of that court is truly embodied in the same judgment or order that has been effective, then the Court cannot re-open the matter and cannot substitute a different decision in place of the one which has been duly recorded. To do that, it would seem, is the business of an appellate court. See A.T Bakare v. T. S. Apena (1986) 4 NWLR (Pt. 33) P. 26 and Minister of Lagos State Affairs, Mines and Power v. Akin Olugbade (1974) 1 All NLR (Pt. 2) 226. There is an exception to this principle. That is, where the statute or any written law empowers the court to grant either a stay or execution under judgment enforcement rules or vary judgment to enable judgment debtor pay by instalment. See Sanusi v. Ayoola (1992) 9 NWLR (pt. 265) p. 292-293.

With the greatest respect the learned trial Judge did not consider these cases in arriving at his decision.

I think that Order 39 rules 1 and 4 of the High Court of Lagos State Civil Procedure Rules, 1972 under which the respondent brought the ex-parte application for interim injunction, do not give the lower Court powers to grant injunction when final judgment has been entered. The rules to my mind contemplates a pending action.

It is on account of this that the order of the lower Court made on 18/4/95 is a nullity. The lower Court order of that date was not made as a means of enforcing the judgment of court dated 27/12/95.

With respect to the second issue, there is nothing on the respondent’s writ of summons and the statement of claim to the effect that the respondent requested for an interim injunction restraining the appellants from leasing 2, Lalupon Close as a specific relief. Interlocutory application ought to be based on specific reliefs sought in substantive action. The ex-parte order of interim injunction was not requested for. For the lower court to grant a relief that was not claimed is to make such relief incompetent, null and void.

It is my strong view that the order of 18/4/95 is inconsistent with the reliefs specifically claimed on the writ of summons (reproduced above), and it is incompetent. It is made without jurisdiction. To grant a relief that was not requested for is like making a fresh case different from the existing cause of action. I must say that such grant offends the basis and fundamental principles of administration of justice. It does not give notice to the appellants by affording them the opportunity to be heard. Nnemeka-Agu, J.S.C. in Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350 aptly stated these words which have come down the ages that:

“It has been said times without number that a court ought not to play the role of Father Christmas which can go round granting parties relief which they have not asked for. See Nwanya v. Nwanya 454 Nigerian Weekly Law Reports 15 January, 2001 (1987) 3 NWLR (Pt. 62) 697. In our adversary system, a court makes orders on the lis or issues raised by the parties. Where a court grants to a party a relief which it did not seek, it has made the order on a lis not raised by the party. This will be an order made without jurisdiction and therefore a nullity. See Umemweluaku v. Ezeana (1972) 5 SC 343; Western Steel Works Ltd v. Iron & Steel Workers Union (1986) 3 NWLR (Pt. 30) 617, 618”.

See also the following cases: Ladoke v. Olobayo (1992) NWLR 8 (Pt. 261) P. 605; Okoya v Santilli (1991) 7 NWLR (Pt. 206) P. 753; Akapo v. Hakeem-Habeeb (1992) 6 NWLR (pt. 247) P. 266 para D-G; Fabunmi v. Agbe (1985) 1 NWLR (pt. 2) P. 299.

The learned trial Judge relied on Order 39 rule 12 of the High Court Civil Procedure Rules, 1972. Before the lower Court grants injunction after judgment such injunctive relief must have been claimed on the writ of summons. The respondent cannot hide under the cloak of Order 39 rule 12 to obtain a fresh, unclaimed and unproven relief. To do so would amount to denial of fair hearing as enshrined under S. 33(1) of the 1979 Constitution then applicable. Moreover, this order will be in conflict with the said S. 33 (1) of the 1979 Constitution now S.36(1) of 1999 Constitution, which by virtue of S.1(1) of the said 1979 Constitution or S.1 (3) of 1999 Constitution renders void Order 39 rule 12 to the extent of its inconsistency.

To allow Order 39 rule 12 protect unclaimed and unproven relief is not only to breach the cardinal principle of audi alteram partem but to sacrifice this latin maxim on the alter of exigencies.

When the appellant who are entitled to be heard before the order of 16/4/95 was made and were not all heard, then by operation of section 36(1) of 1999 Constitution they cannot be bound by that order. Here it does not matter and it is irrelevant that the same decision would have been reached if the appellants had been heard. The decision must be set aside, because in effect, it is null and void. See the following cases: Anakwenze v. Tapp. Industry Ltd (1991) 7 NWLR (pt. 202) P. 177.; Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt. 106) 652; Adigun V. A.-Gen. Oyo State (1987) 1 NWLR (Pt. 53) 678.

The third issue deals with the question of whether the contempt proceedings initiated against the appellants were steps taken to enforce the judgment of the lower court of 27/2/95.

The lower Court in dismissing the appellant’s application to set aside the exparte order of 18/4/95, ruled that Form 48 and 49 were issued as steps taken to enforce the judgment of the court of 27/2/95. I am yet to find from the record where the respondent had filed formal application for the enforcement of the judgment of the lower Court.

This apart, the judgment of the lower Court of 27/2/95 would appear to be declaratory reliefs.

Could it be said that Form 48 and 49 were issued as a way of enforcing judgment of 2712/95? No, it was clearly for the alleged disobedience of ex-parte order of interim injunction of 18/4/95 which did not form part of the judgment of 27/2/95. It would seem to me that the reasoning of the lower Court in its ruling is misconceived as the wordings of Form 48 and 49 are very clear. They are not ambiguous. This apart, the judgment of 27/2/95 does not contain any relief restraining the appellant from leasing No.2 Lalupon Close, Ikoyi as claimed by the trial Judge. There is no injunctive relief in the judgment of 27/2/95. The learned trial Judge, with due respect must have therefore contradicted himself. He has not convinced me that the order of interim injunction was granted to restrain the appellants from disobeying the judgment of 27/2/95.

The forth issue is related to ground five of the ground of appeal. The learned Counsel for the appellants have submitted in their brief that the judgment in suit No. LD/802/92 constituted estoppel res judicata between the appellants and the respondent in respect of No. 2 Lalupon Close, Ikoyi. Here, I must avoid the pitfall set to entrap the wisdom of this Court. To decide this issue in favour of the appellant is to say the least that the suit No. LD/4239/94 has been tried on the merit. The issue of estoppel res judicata is not at all open to the appellants. It is premature.

With respect to the fifth issue, I must say that since the lower Court was functus officio before making the ex-parte order that resulted in the contempt proceedings, and the relief was not claimed on the writ of summons, I will as well say that the order was made in want of jurisdiction. The entire contempt proceedings should be set aside. A court that has no jurisdiction over a matter cannot validly exercise any judicial power thereon. See State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 Yoye Olubode (1974) 1 All NLR (Pt.2) P. 118

For the reasons stated above, this appeal therefore succeeds and it is allowed. The ruling of the lower Court of 27/2/95 is hereby set aside. The case is remitted to the Chief Judge of Lagos State Judiciary, for re-assignment to another Judge of the Lagos State High Court for trial of the suit No.LD/4239/94 on the merit. I award no costs to parties.


Other Citations: (2000)LCN/0899(CA)