J. A. Aderigbigbe & Anor. V. Tiamiyu Abidoye (2009)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C

The claim of the respondent herein, as plaintiff before the High Court of Justice, Ilorin (trial court) was as follows:

“Whereby the plaintiff claims as follows:

1. for the following Declarations:-

(a) that the cash receipt No. 001 of 14th August 1973 for the sum of N2,000.00 purportedly being compensation for Transfer of ownership of land by the plaintiff to defendant could not and did not confer any title in respect of the land described therein on the first defendant.

(b) that the Cash Receipt No. 001 of 14th August, 1973 for the sum of N2,000.00 purportedly being compensation for Transfer of ownership of land by the plaintiff to the defendant is null and void and of no legal effect as it was not duly stamped.

(c) That the said cash Receipt No.001 of 14th August, 1973 for the said sum of N2,000.00 purportedly being compensation for transfer of ownership of land by the plaintiff to the defendant did not comply with the provisions of sections 2, 7 and 8 of the illiterates Protection Law and is thereby null and void and of no legal effect.

(d) That the said cash Receipt No 001 of 14th August, 1973 for the sum of N2,000.00 purportedly being compensation for transfer of ownership of land by the plaintiff to the defendant is a fraud upon the plaintiff and is therefore null and void and no legal effect.

(e) That the application for a permit to Alienate land dated 10th August, 1973 and signed by the plaintiff was obtained by fraud and is therefore null and void and no legal effect, and did not comply with sections 2, 7, and 8 of the Illiterate Protection Law Chapter 51.

(f) That the Customary Right of Occupancy No. OLGA/W/131/6/73 of 10th August, 1973 granted to the defendant by the Osun Local Government Authority based on the said application referred to in paragraph (e) above, is null and void and of no effect.

(g) That the land described in the said Customary Right of Occupancy No. OLGA/W/131/6/73 of

10th August, 1973 is and remains the property of the plaintiff and has never passed to the defendant.

PARTICULARS OF SPECIAL DAMAGES

[i] N1000.00 for the 583 Kola nuts destroyed.

[ii] N500.00 for the 50 oil palm trees destroyed.

[iii] N200.00 for the 213 Coffee destroyed.

[iv] N100.00 for the 10,300 Cassava plants.

[v] N100.00 for the 62 Oranges destroyed.

[vi] N150.00 for the 27 Cashew trees destroyed.

[c] GENERAL DAMAGES

[i] N50,000.00 for unlawful exploitation.

[ii] N10,000.00 for the aggravated trespass.

[iii] N10,000.00 for the fraud.

Pending the determination of this suit, an injunction to restrain the 1st defendant from doing or causing the doing of any act on the land or performing any act of claiming any right of ownership or possession on, or waste, alienate or cultivate the said land. And the plaintiff claims the said sum of N72,950.00 from the defendants jointly end severally.”

The appellants herein, as defendants at the trial court joined issues with respondent on all the salient averments in the statement of claim. After a protracted trial which lasted for over a decade, the trial court dismissed the claim of the respondent in its entirety. The respondent was dissatisfied and filed an appeal to the Court of Appeal, Kaduna, division (court below). The appeal was allowed on the issue of lack of jurisdiction founded on ground 8 of the additional grounds of appeal. Accordingly, suit No. KWS/146/77 was struck out. The appellants were dissatisfied with the decision of the court below and they appealed to this court on six grounds of appeal vide a Notice of Appeal dated 19th of October, 1993 and filed on the same day. The respondent was equally dissatisfied with the decision of the court below. He therefore, filed a Notice of cross-appeal dated 27th of October, 1993.

For the purposes of clarity in this appeal, I think there is need to point out that the respondent had at the lower court, as appellant, filed two original grounds of appeal including the omnibus ground. Later on and in the course of the proceedings in the court below, the respondent sought leave of that court to file and in fact, did file seven additional grounds of appeal. Thus, there were nine grounds of appeal before the court below as filed by the respondent. The appellants as respondents in the court below in their brief of argument gave a notice of preliminary objection against all the grounds of appeal filed by the respondent on the ground of incompetence. The arguments on the preliminary objection were incorporated into the appellants’ brief of argument. There was no reply brief filed by the respondent. By an application dated 7th of April, 1993, the respondent sought leave of the court below to amend the Notice of Appeal by filing an additional ground 8. The application was granted by the court below on the 25th of April, 1993. Again, briefs of argument were filed and exchanged in respect of the additional ground of appeal filed by the respondent. The appellants raised a preliminary objection to the competence of the additional ground of appeal which objection and argument thereon were incorporated in the respondent’s brief of argument in answer to appellants additional brief of argument.

The court below in its judgment upheld the preliminary objections of the appellants and held that all the grounds of appeal filed by the respondent, save the additional ground 8 were incompetent and struck them out accordingly. On the omnibus ground, the court below found that no issue was formulated to cover it and was deemed abandoned and struck it out. On the additional ground 8, the court below held that the objection of learned counsel for the appellants on that ground lacked merit and it dismissed same. The court below went ahead to consider the appeal based on additional ground 8. The court below found in favour of the respondent on this additional ground and allowed the appeal. In his brief of argument, the learned SAN for the appellants formulated two issues as follows:

1. “Whether the Court of Appeal was not wrong in considering the argument Based upon additional ground 8 of the respondent’s grounds of appeal when there was no valid notice of appeal before the court upon which the purported additional ground 8 could have been predicated and more so, when the said additional ground 8 was not filed in accordance with well established principles of law and the rules of court.
2. Whether the Court of Appeal was right in the manner it misconstrued and misapplied the provisions of section 17(1) of the High Court Law, Cap 49, Laws of N. N. 1963 and section 41 (2) and (3) of the Land Tenure Law, Cap 59, Laws of N. N. 1963 when there was no ground of appeal challenging the trial court’s finding on the matter and there were insufficient materials on record to sustain the application of the provisions of the laws aforesaid to the case. ”

Two issues were as well formulated by learned counsel for the respondent. They are as follows: “[a] Whether the lower court was right in allowing the appeal before it against the judgment of the trial court based on additional ground 8 challenging the jurisdiction of the trial court to entertain the claim before it.

[b] Whether the lower court properly construed and applied the provisions of section 17 (1) of the High Court of Northern Nigeria, 1963 and section 41 (2) and (3) of the Law of Tenure Law, Cap 59, Law of Northern Nigeria Law 1993 before arriving at the decision that the trial court had no jurisdiction to entertain the suit before it.”

Learned counsel for the appellants argued the issues seriatim so also the learned counsel for the respondent. Issues for the appellants cover issues for the respondent. This appeal will be considered on the appellants’ issues for determination.

The learned counsel for the appellants after giving a summary of the facts giving rise to this appeal submitted that the law is now firmly settled that a notice of appeal is the foundation upon which an appeal is based. It is, he said, the originating process which sets the ball rolling for the proper, valid and lawful, commencement of an appeal. Where the notice of appeal is found to be defective or invalid for whatever reason, the appeal falls to the ground and must be struck out. He referred to the following cases: Cooperative Bank (E.N) Ltd. v. Ogwum (1991) 1 NWLR (pt.168) at 467; Enag v. Obetan (1997) 11 NWLR (pt. 528) 255 at 265 – 266.

Learned counsel submitted further that for a notice of appeal to be valid, it must contain valid or competent grounds of appeal. Where the grounds of appeal are held incompetent and are struck out, the notice of appeal and the whole appeal must be dismissed by the court. The court below, learned counsel contended, was in error in holding that additional ground 8 of the respondent was valid and arguable, after having found that the original grounds of appeal, including the omnibus ground were incompetent and struck out same and there was no longer any valid notice of appeal before the court below on which additional ground 8 could have been hinged. The cases of Dahuwa v. Adeniran (1986) 4 NWLR (pt. 34) 268 and A.C.B. Plc v. Obmilami Brick & Stone (No.2) 1993 5 NWLR (pt.294) 399 were cited. Learned counsel argued that the defect in the notice of appeal could not be cured by an application for amendments of the notice of appeal by filing an additional ground of appeal or other additional grounds. It then follows that there was no valid nor competent notice of appeal on which additional ground 8 could be predicated. Learned counsel urges this court to hold that the court below was in error to have based it’s decision on additional ground 8 of the respondent’s grounds of appeal and that this court should declare that decision to be a nullity.

On the issue of jurisdiction relating to issue No.1, the learned counsel for the appellants submitted that the issue of lack of jurisdiction of the trial court was raised in paragraph 23 of the amended statement of defence of the 1st defendant. There was no reply to that effect filed by the respondent. No issue was thus joined by the parties on the issue of lack of original jurisdiction of the trial court to entertain the claims. Learned counsel submitted that the issue of lack of original jurisdiction of the trial court was a fresh point which was raised by the respondent for the first time in the court below. There was need therefore, for the respondent to seek leave of the court below before he could raise and argue the fresh issue of jurisdiction. He relied on the cases of Agbaje v. Adigun (1993) 1 NWLR (pt.269) 261 at 270 – 271; Uor v. Loko (1988) 2 NWLR (pt.77) 430. Learned counsel argued that the court below was in error in allowing additional ground 8 to be filed and argued by respondent when no leave had been sought and granted by that court. He however, conceded later that an issue of jurisdiction, because of its fundamental nature, can be raised at any stage of the proceedings and even for the first time at the Supreme Court. Learned counsel urged this court to answer issue No.1 in the positive and allow grounds 1, 2, 3, and 4 on which the issue is premised.

Learned counsel for the respondent, on the other hand, submitted that on issue of jurisdiction, no leave of court is required to raise it. He cited the cases of Management Enterprises Ltd. v. Edunsanya (1987) 1 NSCC, P.577 at 583; Soffekun v. Akinyemi & Ors. (1980) 5 – 7 SC 1 at pp 86-87. The submission of learned counsel for the appellants, he argued, was misconceived. He cited the case of Obiakor v. The State (2002) 10 NWLR (pt.776) 612 at 626. Learned counsel for the respondent added that being a civil appeal, the omnibus ground of appeal is competent and it is the bedrock upon which additional ground of the notice of appeal is predicated.

Let me express my displeasure in the manner the record of appeal was compiled. Reference was made particularly by the learned counsel for the appellants to “Vol. II” of the compiled record. Speaking for myself, I could not see any “Vol. II” for this appeal. It was totally misleading. Secondly, there is no consistency in the pagination of the only record made available to me. The pagination was done at random and sporadically. This is quite unacceptable. It makes following of the record in relation to the arguments proffered by the learned counsel very difficult, tasking and absurd. I think, it is important to reiterate that records of appeal, whether compiled by the court’s registry from where the appeal originates or by a party who was granted leave by way of departure from the Rules of that court to so compile, should represent a neat/tidy, complete and properly pagination and certified bound copies of all the necessary documents required by the Rules of that court which shall form the record of appeal. Anything less is not helping the appeal court in the quick dispensation of justice. The parties to an appeal, especially the appellant, have a responsibility to ensure that a whole packaged record of appeal which is really worth that name is the only one made available to the appeal court.

Let me observe again that there is said to be a cross-appeal by the respondent in this matter. Learned counsel for the appellants made reference to that and he said:

“The respondent was equally dissatisfied with the decision of the lower court and filed a cross- appeal dated 27th October, 1993. The Notice of Cross-Appeal is at pages 97 – 99 of Vol. 11 of the record of proceedings. ”

In the only record of appeal before me, I have noticed two pages bearing “97” one in the proceedings of the trial court which bears an affidavit in support while the other page is immediately after the notice of Appeal filed by the appellants. The latter, though not titled as Notice of Cross-Appeal, appears to be the one filed by the respondent as it was signed by learned counsel Mr. Oshe, appellant’s counsel in the Cross-Appeal. Ground No.1 of the cross-appeal challenged the holding of the court below that the appellant (cross-appellant) abandoned his omnibus ground of appeal on the alleged reason that no issue was formulated on it. From the record of this appeal, I could not trace any brief of argument filed by the cross-appellant to cover his grounds of appeal as set out in the Notice of the Cross-Appeal. I must take it that the cross-appellant decided to abandon the cross-appeal. The law is settled that where no brief of argument has been filed in respect of an appeal by the appellant which includes a cross-appellant, that appeal is deemed abandoned and must be struck out. See: Akibu & Ors. v. Oduntan & Ors. (2000) 7 SCNJ 189; Sparkling Breweries Ltd. & Ors v. Union Bank of Nig. Ltd. (2001) 7 SCNJ 321; Cornelius Ltd. & Ors. v. Ezenwa (1996) 4 SCNJ 123; Nkedo & Ors. v. Obi eno & Anori (1997) 5 SCNJ 33. Accordingly, the Notice of cross-appeal which covers pages 97 – 99 of the record of appeal is hereby struck out.

Now turning to issue No. 1 of the main appeal as formulated by the learned counsel for the appellants, it is pertinent to state at the risk of repetition, some of the salient facts of the appeal. The respondent in this court was the appellant in the court below. He was dissatisfied with the decision of the trial court. He filed his notice of appeal to the court below. That Notice of Appeal is contained in pages 235 – 236 of the record of appeal. It bears two original grounds of appeal including the omnibus ground. Later on, and in the course of the proceedings in the court below, the respondent sought leave of the court below to file some additional grounds of appeal. The motion to that effect was moved and granted by the court below on the 24th October, 1990. This is on unnumbered page of the record but the motion was heard and granted by Achike, Mukhtar and Adio, JJCA (as they then were) in application No, CA/K/14M/89. Thus, the total number of the grounds of appeal rose to 7 in the Notice of Appeal. Meanwhile, briefs were settled by the parties. Before hearing of the appeal, however, another motion on notice was filed on the 5th of April, 1993, praying, among others, for leave to be granted to the applicant/appellant to further amend the Notice of Appeal by adding Ground Eight which was annexed to the affidavit as Exhibit ‘B’ and to deem same as duly filed and served. The said motion contained a prayer for enlargement of time within which to file additional brief of argument annexed as Exhibit ‘C’ to the affidavit in support and to deem same also as duly filed and served. The motion was taken and granted by the court below on the 25th day of April, 1993. By granting the reliefs sought, the number of grounds of appeal in the Notice of Appeal has now risen to eight.

The appeal was heard on that 25th day of April, 1993 and judgment was reserved. Judgment was subsequently delivered on the 28th day of July, 1993, whereby the appeal was allowed on the issue of jurisdiction formed on ground 8 of the additional grounds of appeal and suit NO.KWS/146/77: Yusuf Olabisi v. J. A. Aderigbe & Anor was struck out.

Appellants’ issue No. 1 questions the propriety and validity of the court below’s holding that additional ground No. 8 was valid and arguable when it is the same court that held that the two original grounds of appeal and the other (7) additional grounds filed by the respondent were incompetent and struck same out The holding of the court below in respect of the preliminary objections raised by the appellants as respondents reads as follows:

“I think it is apposite before attempting to go into the issues for resolution to deal first with the preliminary objections which are two parts embodied in the respondents’ briefs of argument filed on the 22nd of October, 1990 and 22nd of April, 1993 respectively. The former concerns two original grounds of appeal and seven additional grounds of appeal while the latter relates only to the 8th additional ground of appeal deemed to have been filed on 28th of April, 1993 and if they succeed, that much will brevi manu dispose the appeal wholly or for as much as may be, that is pro-tanto.

Leaving the omnibus ground which is ground (1) of the original grounds of appeal at the moment, the objection to ground 2 of the original ground(s) of appeal is simply that neither the nature nor the particulars of the errors and misdirection alleged have been specified in the said ground.

I must say with dismay even though I realize that the briefs have changed hands in this case that in my over three decades of combined experience at the Bar and Bench I have never seen any ground of appeal, be it that of error or misdirection so vague and meaningless as ground (2) above. The purported particulars given under this vague ground of appeal are in their bare form no more than quotations in the judgment of the learned trial judge at pages 230 – 231 and 232 respectively of the printed record. it is trite law that a ground of appeal containing mere quotations from passages of a judgment without specifying the nature of the error in law or misdirection is incompetent and ought to be struck out suo motu by the court or on the application of a respondent……….”‘

The attack on all the additional grounds of appeal save ground 8 with which I shall deal with later in this judgment centred on the nature of the misdirection or error alleged in each of the said grounds of appeal and the particulars of which were neither specified nor fully or substantially given.

I have with great care and concern gone through all the said additional grounds of appeal supra and besides quoting substantially or stating passages where the alleged errors and/or misdirection have occurred nothing else as regards the real nature of such errors or misdirections are specified and in some particulars are not supplied………………..

Alas! Such is the case as far as these additional grounds of appeal stated supra are concerned. They are therefore incompetent.

Now coming back to the omnibus ground which the respondents’ learned counsel contended is of no…… there being no issue formulated on it by the appellant, I entirely agree with this submission. Authorities also ….. that an issue in an appeal has to be raised from the grounds of appeal. See:……………….

At this juncture I think it is germane in addition to my finding above on all the grounds filed by the appellant save ground 8 of the additional grounds of appeal that lumping together grounds of appeal alleging errors and misdirection also make such grounds defective and therefore incompetent and ought to be struck out……………

Also by reason of the lumping together ground of error and misdirection as expatiated above all the additional grounds of appeal are equally defective and therefore incompetent. ”

Towards the tail end of the judgment, Oduwole, JCA, concluded as follows:

“In conclusion the two original grounds of appeal as well as all the additional grounds of appeal save ground 8 (additional) are struck out.”

On additional ground No.8 the court below observed:

”This takes me to the 8th additional ground of appeal filed with leave of court only few months ago by the appellant and to which the respondents had taken serious objection by filling Notice of Preliminary Objection which was incorporated in their brief of argument to appellants additional brief of argument.”

The court below, after some analysis of some points of law overruled the objection raised by learned counsel for the appellants and went on to consider the issue formulated on additional ground 8 of the appeal. The court below allowed the appeal. It stated in its words:

“The appeal succeeds and it is allowed on the issue of lack of jurisdiction founded on ground 8 of the additional grounds of appeal. Accordingly, suit NO.KWS/146/77 Yusuf Olabisi and J.A. Aderigbe and another is accordingly struck out. ”

I think the fundamental legal question put by learned counsel for the appellants is whether an additional ground can be sustained where the original ground of appeal has been found to be incompetent and struck out. I think, too, the whole question has to do with the validity and subsistence of a Notice of Appeal. A Notice of Appeal is the spinal cord of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. Where the Notice of Appeal is defective, no proper appeal can stand. It will certainly collapse. See: Oketie v. Olughor (1995) 5 SCNJ 217; Thor Ltd. v. First City Monument Bank Ltd. (2002) 2 SCNJ 85. Ebokam v. Ekwenibe & Sons Trading Co. Ltd. (1999) 7 SCNJ 77. A Notice of appeal can be competent and valid if it contains at least one valid ground of appeal. See section 233(2) of the Constitution of the Federal Republic of Nigeria, 1999; Erisi & Ors v. Idika & Ors (1987) 3 NWLR (pt.66) 503 at page 516. A bare notice of appeal without any ground or grounds of appeal is valueless and incompetent. See: Akeredolu & Ors. v. Akinremi & Ors. (1986) 4 SC 325 at page 372. It is incurably bad. The defect cannot be cured by amendment. See: Global Transport Oceanic Co. SA & Anor V. Fixe Enterprises Nig. Ltd. (2001) 2 SCNJ 224.

In this appeal, both original grounds 1 and 2 were struck out by the court below having found same to be incompetent. (See the concluding part of judgment of Oduwole, JCA, no exact page number to cite). The same result affected all the additional grounds of appeal save additional ground No.8. In allowing additional ground 8 to scale through, the learned justices of the court, particularly the judgment of Oduwole, JCA, relied on two points as adumbrated by learned counsel for the appellant/respondent in his reply brief. Below is what the Honourable Justice said:

“The first is that the issue of jurisdiction was not being raised for the first time in this court as it was earlier raised at the trial court by the respondents in their pleadings and later orally at the trial and consequent on which the learned trial judge held inter alia in his judgment that he had jurisdiction. The second is that this issue of jurisdiction is an issue of law which can always be raised without leave. ”

I totally agree with the learned justice of the court below who delivered the leading judgment that, that is the correct position of the law. I will even go further to say that where a ground of appeal raises a question of law alone that ground can be filed and argued without any leave of court first sought and obtained. See: Comptroller, Nigerian Prisons Services, Ikoyi, Lagos. & Ors. v. Dr. Femi Adekanye & Ors. (2002) 7 SCNJ 399; Obatoyinbo v. Oshatoba (1996) 5 SCNJ 1. Even counsel for the appellants conceded to that in his brief of argument. He stated:

“It is conceded that an issue of jurisdiction because of its fundamental nature can be raised at any stage of the proceedings and even for the first time at the Supreme Court.”

Ground No. 8 which was titled” ADDITIONAL GROUND EIGHT” as contained in Exhibit ‘8’ annexed to the affidavit in support of the motion reads, (shorn of its particulars) as follows:

“The trial High Court erred in law in exercising original jurisdiction in the present case which raises an issue as to title to land, the subject of a statutory right of occupancy granted by a Local Government.”

I am in total agreement here also, with the court below that the issue of jurisdiction was not being raised for the first time at the court below as it was earlier raised at the trial court by the defendants in their pleadings and later orally at the trial and consequent upon which the learned trial judge held that he had jurisdiction. (Refer paragraphs 22 and 23 of the 1st defendant’s amended statement of defence – page 180 of the record). Thus, additional ground No.8 was purely on jurisdiction. The court below, I would say, was right to some extent in overruling the objection of the learned counsel for the respondents/appellants in that regard.

My difficulty with the decision of the court below is where it appears that the same court blew both hot and cold. It rather, approbated and reprobated. This is what I mean: The court below found two original grounds incompetent as it struck out same. It also found all the additional grounds of appeal save ground No.8 as incompetent and struck out same. It is clear from this scenario that from the very moment the original grounds of appeal were found to be incompetent and struck out as a result, there was no more valid Notice of Appeal. The act of striking out the incompetent grounds of appeal rendered the notice of appeal to be bare. And, it is the law that a bare notice of appeal is valueless and incompetent. See: Akeredolu v. Akinremi (Supra). It is incurably defective and the defect cannot be cured by amendment. See: Global Transport Oceanic Co. S. A. & Anor V. Free Enterprises Nig. Ltd. (Supra). Nwaigwe & 2 Ors. v. Okere (2008) 5 – 6 SC (pt.11) 93 at page 115. Thus, granting leave to file an additional ground or grounds to original grounds which are already incompetent cannot cure the vice which has incurably infected the original grounds. Thus, in the present situation, there was no subsisting notice of appeal upon which to place additional ground No. 8.

And hence it has been tagged “additional” the connotation is that there must be a valid and subsisting ground(s) of appeal before the court. It is to be noted in this case that when the court below granted the reliefs in the motion which brought about additional ground No.8 into existence, the applicant therein prayed for leave to amend the Notice of Appeal by adding Ground Eight. It is not that he asked for leave or extension of time within which to appeal. So, where there exists no valid appeal before the court below, the additional grounds filed, including additional ground No.8, even though within time extended, all became naught. The law is that one cannot build something on nothing and expect it to stand. It will certainly collapse. See: Mackfoy v. U.A.C Ltd. (1962) A.C. 152.

The argument by learned counsel for the respondent in his brief of argument that ground one of the respondent’s notice of appeal being a civil appeal, and as omnibus ground is competent and it is the bed rock upon which additional ground of the notice of appeal is predicated upon, cannot in my view be of any assistance to him. I say so because: Ground one of the grounds of appeal, though omnibus, was struck out by the lower court. There is no cross appeal by the respondent. The law is settled that where a respondent did not cross-appeal on a point he cannot be allowed to raise that point on appeal as of right. See: United Marketing Co. v. Kara (1963) 1 WLR 523 at 524; Ahamath v. Ummah (1931) AC 799, 802 – 803; Singh V. Singh (1907) IR 34 Ind. App- 164 (Privy Council ). It has been pointed out earlier that the cross-appeal filed was abandoned by the cross-appellant. Further, several authorities abound that where original notice of appeal is defective, no additional ground(s) could be hung on it. I will cite few instances:

In the case of Awohunawhi & Anor v. Oteri & Ors (1984) 5 SC 38 at 42, this court, per Nnamani, JSC, (of blessed memory) had this to say:

“However, if the original notice of appeal was defective, no additional grounds could be hung on it…….. in view that there was no appeal before the Court of Appeal and the proceedings there were null and void.”

Again, in the case of Orakosim v. Menkiti (2001) 5 SCNJ 1 at page 10, Ogundare, JSC, held as follows:

“All the four grounds contained in the Notice of Appeal being incompetent, the appeal itself is also incompetent. And being incompetent, the additional ground will have no appeal to be anchored on.”

Thus, it was wrong of the court below to have based its decision on non-existing appeal. They lacked jurisdiction to embark upon that exercise.

Finally, this appeal succeeds and it is allowed by me on this issue alone. There is no need for me to consider the other issue formulated on the merit of the case. Accordingly, I set aside the decision of the court below being a nullity and make an order striking out the appeal before the court below.

Each party to bear its own costs in this appeal.

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SC.236/2002

Savannah Bank Of (Nigeria) Ltd V. Starite Industries Overseas Corporation (2009)

LAWGLOBAL HUB Lead Judgment Report

O. OGEBE, J.S.C. 

This is an appeal brought by the Savannah Bank Nigeria Limited which was the appellant in the Court of Appeal Lagos Division which dismissed its appeal on the 29th of June 2000. The claim before the High Court of Lagos State Ikeja was for the sum of N884,609.25, the equivalent of 172,921.85 dollars being the amount due and owed to the plaintiff from the defendants. The 3rd defendant now appellant acted as a collector of the plaintiff but failed to remit the dollar equivalent to the plaintiff. The trial court on the 28th of January, 1993 gave judgment against the 3rd defendant now appellant in the sum of One million, seven hundred thousand eight hundred and eighty-one naira five kobo (N1,700,881.05).

Before this court, the learned counsel for the appellant raised two issues for determination as follows:

“(1) Whether there was a breach of s.285 (1) of the constitution of the Federal Republic 1979 and if so what are the consequences.

(2) Whether the miscarriage of justice referred to in the amendment to s.258 (1) of the constitution 1979 known as s.258 (4) is determined by the peculiar circumstances of each case and must invariably be the result of the delay in delivering judgment.”

These questions are hypothetical in nature and do not seriously address the real issue in this appeal which is whether or not there is evidence in the record to show that the High Court delivered its judgment outside the 3 months periods stipulated in the 1979 constitution and caused a miscarriage of justice to the appellant as a result.

The learned counsel for the respondent also filed a brief of argument and formulated three issues for determination as follows:

“(i) Did the judgment of Hon. Justice S.O. Ilori (as he then was) delivered on 28th day of January, 1993 after the close of counsels address on 1st December, 1992 a period of 2 months less 3 days or 59 days not comply with the provisions of section 258 (1) of the 1979 constitution and the modification amendment decree no. 17 of 1985.

(ii) Is the ground of appeal based on facts as to period between the time of addresses and judgment not one for which an order of the Supreme Court is needed and is a ground of law and misdirection competent

(iii) Would the Supreme Court not grant an amendment to meet the Justice of a case in the Supreme Court in accordance with the principle in Adekeye v. Akin Olugbade (1987) 1 NSCC 865.”

Only the first issue is relevant for the determination of this appeal. The 2nd and 1st issues are not in any way related to the grounds of appeal. The main argument of the learned counsel for the appellant is that the trial court completed the hearing of evidence and final addresses on the 22nd of May, 1992 and gave its judgment on the 28th January, 1993, contrary to section 258 (1) of the 1979 constitution. He submitted that the Court of Appeal was wrong in its view that addresses were concluded on the 1st December, 1992 and not on the 22nd of May, 1992

The learned counsel for the respondents on the other hand submitted that the trial court inadvertently omitted to take a motion for amendment of the plaintiff’s claim which was in the court’s file since January 1992 when it concluded the hearing on the 22nd of May, 1992 and reserved the case for judgment. Subsequently a motion to arrest the judgment was brought before the trial court so that the motion for amendment of the claim would be taken before judgment would be delivered. These two motions were taken on the 1st of December, 1992 and judgment was reserved and delivered on the 28th of January, 1993.

Section 258 (1) of the 1979 constitution stipulates that every court established by the constitution shall deliver its decision in writing not more than three months after the conclusion of evidence and final addresses.This meant that any judgment delivered outside three months of the conclusion of evidence and final address was automatically a nullity. See UTIH V. Onyivwe (1991) NSCC Vol. 22 Pt. 1, 42. Obadiaro V. UYIGUE (1986) NSCC Vol. 17 Pt. 1,439.

However, with the amendment of the constitution by the constitution (suspension and modification) amendment decree 1985, a new subsection 4 was added as follows:-

“258 (4), the decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof”

With this amendment, the current position of the law is that judgment given outside the 3 months stipulated can be saved by the court exercising jurisdiction by way of appeal or review if it is satisfied that the party complaining of such non compliance has not suffered any miscarriage of justice as a result. See the classical case of Ojokobolo & Others v. Alamu & Another (1987) 2 NSCC Vol. 18, Pt. 2 at p.991. It is clear therefore that for a party to impugn a judgment delivered after 3 months of final addresses must show that he has suffered a miscarriage of justice as a result. In the present appeal,the appellant has not made any attempt to show that it suffered any miscarriage of justice as a result of the alleged delay in the delivery of judgment. From the record, it is clear that the conclusion of evidence and final addresses on the 22nd of May, 1992 was a false one because a motion to amend the claim which was filed on the 28th January, 1992 was yet to be taken. This inadvertence was brought to the attention of the trial court which then took that motion and the motion to arrest the judgment on the 1st of December, 1992 and reserved judgment to the 28th of January, 1993. The learned counsel for the appellant Agbamuche Esq. was in court and objected to the grant of the two applications. He urged the court to dismiss them and give a date for judgment (see page 167 of the printed record). This was an admission on the part of the learned counsel that the judgment was not due until the pending applications were taken, therefore, agree with the decision of the Court of Appeal that the case before the High Court was not concluded on the 22nd of May, 1992 but was finally concluded on the 1st of December, 1992 in readiness for judgment. In other words, the 3 months period started counting from the 1st of December, 1992 and the judgment delivered on the 28th January, 1993 was not in breach of section 258 (1) of the 1979 constitution. I see no merit in this appeal and I hereby dismiss it and affirm the judgment of the court below with costs of N50,000.00 in favour of the respondent.

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SC.161/2002

Mallam Yusuf Olagunju V. Chief E. O. Adesoye & Anor (2009)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C 

This is an appeal against the Judgment of the Court of Appeal Ilorin Division, herein after referred to as Court below. The Judgment was given on 22/01/2003 in which the appellant’s appeal against the Judgment of the trial court delivered on 9/05/2002, by Oyeyipo C.J was dismissed and the trial court’s decision affirmed.

I think the facts of this case are straightforward and brief. It is a land matter. The 1st respondent, Chief E. O. Adesoye, applied for a grant of certificate of Occupancy from the Kwara State Government for the construction of a Secondary School, which application was granted Vide Exhibit Im herewith reproduced as follows:-

MGO LSPO

Telephone Ilorin

031-22173

Telegrams

Ref. No LAN/ARO/COMM/IV: 117/115

Military Governors Office

Dept. of Lands, Surveys & Physical Development

Private Mailbag 1425

Ilorin

Kwara State.

Chief E. O. Adesoye,

18A Sultan Road,

P. O. Box 510,

Kaduna.

Dear Sir,

RE: EXTENSION OF LAND AREA TO ADESOYE COLLEGE R. OF O. NO KW/56/56

I am directed to acknowledge the receipt of your letter dated 22nd February, 1989 in connection with the above subject matter and to inform you that your request herein therefore considered.

2. Having seen the developments carried out so far Government highly appreciate (sic) your effort in contributing your own quota towards the improvement of the educational standard in Nigeria. However due to scarcity of land in Oyun Local Government Area and considering protection of your own interest in making sure that you do not run into conflict with other communities, Government has decided to allocate you an additional 25 Hectares on the following conditions:

i) That the name on the title to be granted should read ADESOYE COLLEGE

ii) That the 25 Hectares offered as extension should be limited to the existing side of the College,

iii) That all compensation payable to the affected people should be settled.

iv) That the rift between you and Mr. R. A. Shofoshonlu be resolved.

v) The compensation of the Alhaji Saka Oyebole on the existing site should be paid.

If the above conditions are acceptable to you please indicate in writing and link up with Lands Division to show the location of the extension would be sited. Please do this soonest to enable me process your papers for issuance of necessary title documents.

Yours faithfully

Signed

“G. O. Pada”

Ostensibly the 1st Respondent complied with the conditions of the letter and started work on the land, It was at this juncture that the appellant appeared and claimed the ownership of the land. As a result, the 1st respondent instituted an action before the Kwara State High Court, in Suit No KWS/OF/19/94. On the other hand, the appellant’s instituted another action against the 1st respondent in Suit No KWS/OF/21/94. Both Suits were later consolidated and heard together.

The 1st respondent in his writ of summons claimed against the appellant as follows:

“A. A DECLARATION that the Certificate of Occupancy No KW 5676 dated 4/8/86, registered as No, 247 at page 247 in Volume XVI at the Land Registry, Ilorin and subsequently extended by Certificate of Occupancy No KW 5676 and registered as 230 at page 230 in volume XVII was validly issued.

B. A DECLARATION that the Plaintiff is entitled to the grant of certificate of Occupancy No. KW 5676 and entitled to quiet enjoyment.

C. A DECLARATION that the plaintiff having paid all the holders compensation for improvements and economic trees is entitled to undisturbed possession, and

D. PERPETUAL injunction restraining the Defendant, his agents, Servants and Privies from further acts of trespass on the plaintiff’s land covered by certificate of Occupancy No KW 5676”.

The Appellant in his own Amended Statement of claim claimed against the 1st respondent as follows:-

“a. A declaration that the plaintiff’s family known as Ojomu-Doyin family of Offa is the exclusive owner of a large parcel of land situate and being along Igosun Road, Offa covering an area of about 222,500 square metres and covered by an Alienation permit and that the Plaintiff’s family is exclusively entitled to a certificate of occupancy thereon.

b. An order setting aside and declaring as irregular, wrongful, null and void the purported certificate of occupancy No. KW5676 of 23rd April, 1988 or any other certificate or title document(s) whatsoever unlawfully obtained by 1st Defendant over Plaintiff’s family land.

c. A mandatory order of court Restraining the 1st Defendant to the area of land already developed and occupied by Adesoye College covering about 500 plots of land and to keep within same upon paying the monetary value herein demanded.

d. An order of perpetual injunction restraining the Defendants, their Servants, Agents or privies from committing any further act of trespass on Plaintiff’s family land.

e. N25,250,000 (Twenty-Five Million, Two Hundred and Fifty Thousand Naira) being special and General Damages from 1stDefendant as follows:

SPECIAL DAMAGES AND PARTICULARS:-

i. N25,000,000 (Twenty-Five Million Naira) being the value of the 500 plots of Plaintiff’s family land used and occupied by Adesoye College at N50,000 per plot.

ii. N500,000 being the value of Cash Crop Trees to wit: 11 palm trees, 13 locus beans, 9 heads of banana, 2 kola nut trees. 13 cashew trees, 300 heaps of cassava, and 2 acres of rice belonging to members of the Plaintiff’s family destroyed by the 1st Defendantlhis Agents and Servants.

iii. 200,000 as General Damages for acts of trespass on Plaintiff’s family land’.

All parties filed and exchanged pleadings and called witnesses in proof of their case. PW1 was called to produce documents i.e. file No. LAN/ARO/COMM/10.117, certified True copy of plan No ILRC. 49 of 12/5/56 and plan No. URS/OF/IC Designation of Urban Area 1978 and T.P.O plan 119 OFFA which were all admitted as Exhibits 1,2,3, 4, 5, and 6 respectively.

PW2, a principal land officer in the Ministry of Land, testified that the 1st respondent was allocated plots of land at the G.R.A Offa for the construction of a Secondary School, subject to the payment of compensation on any unexhausted improvement on the land. Government carried out assessment of compensation payable on the unexhausted improvement on the land which the 1st respondent paid all the beneficiaries and there was no complaint. (See Exhibit 6). After the payment of compensation, the government issued a certificate of occupancy to the 1st respondent. The 1st respondent thereafter applied for an extension of the initial grant which was granted subject to same conditions, and the 1st respondent again effected payment of compensation for the unexhausted developments on the land; and he was given a new Certificate of Occupancy covering the whole land i.e Exhibit Im. He stated that the land granted to the 1st respondent has been under the control of Government as far back as 1956. He stated that all the processes for the Issuance of certificate of occupancy were followed. This witness stated that by exhibit 4 the land was designated as Urban Area since 1998. He stated that some members of the appellant’s family recollected compensations.

The 1st respondent gave evidence and stated that he applied for land in G.R.A as he did not want any contest with any person. That after approval the Kwara State Government gave him the comprehensive list of all those entitled to compensation for the unexhausted development on the land and he paid all of them including members of the appellant’s family. After the initial grant, he applied for an extension which was also granted and he was asked to pay compensation for the unexhausted development which he did. He stated that at the time he was put in possession neither the appellant nor any other person was in possession. It was in 1994 that the appellant came to the site with cutlasses and guns laying blocks for the mosque.

The appellant called Kadim Bello as DW1 who stated that the land in dispute belongs to the appellant’s forefathers. His ancestral father came from Oyo and the name is Bashorun, who was friendly to Olofa Olatoni, the founder of Offa. They both came from Oyo. When they got to Offa, the Oloffa told Bashorun to stay at Oke-Agba. Bashorun was then put in control of that piece of land at Oke-Agba and the land in dispute now is part of that land which Oloffa Olalomo gave to their ancestor Bashorun, with authority to control. The land was given as an outright gift to Bashorun who later became Ojomo on arrival at Offa. He stated that in 1977 when one Oguntade wanted to establish a saw-mill Ojomo gave him a portion with the consent of Oloffa. He tendered an application for permit and a plan as Exhibits D11 and D12 and the land in dispute is within Exhibits DII and D12. He stated further that part of the land has been given to some other people, including the police for the construction of a Police Station. The witness then tendered Seven (7) certificates of land allocation from Ojomo-Doyin family as exhibit D14.

He also stated that in 1976 they started to build a Mosque on the land and the foundation is still on the land till date. He knew that the 1st respondent has a school on the land. He could not remember when he built the school but he or his family members did not stop him when he was constructing the school because they were happy that the school being built would do good to Offa. He also stated that the land did not belong to the Government but to his family from time immemorial. This witness admitted that they do not have power to allocate land. It is only the government but anybody who wants land from them must apply.

Appellant also called one Alhaji Murtala Oleyinji as DW2 who testified that he is an Ojomu-Doyin. He saw their ancestor who accompanied Oloffa from Oyo who was called Osinrolabum. There are three owning families in Ojomu family. They are the owners of the land in dispute; if anybody needs land he would apply. Ojomu was settled by Oloffa. He did not know the entire history of Ojomu family at Offa except his own part of the family. Under cross examination he admitted that he did not know whether or not the 1st Ojomu was Ojomu Gedegbe or not.

Appellant’s DW3 was one Chief Ganiyu Adesina Olagunju. He testified that when the first respondent started constructing the school, his father and the Appellant called a family meeting and he was mandated to invite the 1st respondent, this is because the first respondent’s sister married in their compound. He states that their families are farming on the land and there was no time they were stopped farming on the land. Whereas they planted cash crops and they also allocated some plots to some other people. He tendered a survey plan in evidence as Exhibit D21. He said that he did not want the college built on the land removed. But he wants the certificate issued to the 1st respondent revoked. Under cross-examination he admitted that they started construction of Mosque on the land in 1994. He agreed that Exhibit D20 was not signed by Surveyor General nor signed by a surveyor.

The Appellant’s DW4 was one Raimi Ademola Shogo who testified that he had a fish pond and piggery fann along Igosun Road on Ojomu family land which he started in 1970 and he was given additional plot in 1952 by Ojomu Doyin family. His fishery farm was destroyed by the 1st respondent as a result of which he lodged complaint to his lawyer; and he was paid a compensation of N118:00 by the 1st respondent. He admitted executing some contract for the 1st respondent on the land in dispute.

2nd Respondent called one Ayo Opadokun as DW1. But his evidence was expunged from the records by the reason of the trial court’s ruling dated 21/11/2001. Thereafter one Mohammed Olaitan Adedayo was called as DW2. A Civil Servant and an Acting Director of lands in the State Ministry of Lands and Housing and was the Area Land Officer at Offa between 1984 – 1990. He stated that the 1st respondent applied for land on which to erect Adesoye College which application was granted by the Kwara State Government. About 81.3 hectares was initially granted. This was in 1985. Again he applied for an extension, as a result of which the Original C of 0 was withdrawn and a fresh one issued to him to cover the entire 130.5 hectares by the Government. On instruction from his office he got the land surveyed at Offa G.R.A. In the Course of the Survey he saw cash crops on the land and announcement was made for the owners of the cash crops to report to the site. The people concerned reported and an assessment was done and sent to the headquarters. The 1st respondent made payment to all affected people through his office at Offa. All the beneficiaries signed indemnity certificates and he counter-signed _ Exhibits 5 and 6. Until 1990 when he left Offa nobody made any complaint to him. Immediately the grant was made to the 1st respondent he took possession and started the construction of the school. He stated that before the creation of Kwara State the land in dispute had been designated G.R.A and a

Police Barracks was located on the part of the land in 1953, by Exhibit 3 the whole land falls within the G.R.A. In 1978 some four areas were designated Urban Areas within Oyun Local Government, and Offa G.R.A is one of the centres so designated as Urban Areas in 1978. Under cross-examination he admitted that the total land granted to the 1st respondent was 130.3 hectares. He carried out the survey of the total land showing fish pond where it was overlapping the land granted to the 1st respondent, and he wrote to the Ministry of land. He further stated that there was no foundation of any mosque as at 1985 or 1987 when he surveyed the land.

Under re-examination the witness said that the Police Station is built on the G.R.A Offa and not on the appellant’s land.

One Olayiwola Amos Dipe gave evidence as the Second witness for the 2nd respondent. He is a surveyor in the Ministry ofland and Housing.

He Identified exhibit 2 as the plans of G.R.A Offa with the beacons bounding the extent of G.R.A. Some of the beacons are PBI.2683. PBI. 2693, PBI, 2680 which show the extent of G.R.A Offa. He identified Exhibit 4 as Oyun Urban Area, designated area, I key number I, 2, 3 and 4. The first is the proposed commercial layout, the second is Oyun Industrial layout I with the heading as TPO 146 A comprising Kwara Breweries, the third is TPO 119 layout and the fourth is Commercial Industrial Layout 2. He also identified Exhibit 1m as the certificate of Occupancy which is extracted from TPO 119, it is the land granted to the 1st respondent the beacons in Exhibit 1m are reflected on TPO 119 as BP I, 2693. BPI, 2696 and BPI 2697. Under cross-examination this witness admitted that he was one of the surveyors who worked on Exhibits 2, 3 and 4. He further stated that Exhibit D12 with no coordinating beacons. It does not show the distance between the locations of the main town to the location of the land and it is difficult to determine the exact location of the land. He also stated that exhibit D2 is not a survey plan as it gives no vivid description of the land it covers.

After both parties have closed their respective case, written addresses were filed and exchanged. The learned trial Judge Oyeyipo C.J, thereafter delivered his considered Judgment in which he dismissed the Appellant’s claim and gave Judgment for the 1st respondent. The learned trial Judge Oyeyipo CJ on pp 280 – 281 of the Record of Proceedings stated as follows:-.

“In the light of all that I have said above, I have come to the

conclusion that the 1st defendant Mallam Yusuf Olagunju has failed to sustain his claim for a declaration of title to the land in dispute. I accordingly resolve the 5th formulated issue against him. In the result I feel no hesitation that the plaintiff Chief E. O. Adesoye (vide suit No. KWS/OF/19/94) has amply established his case before me on the preponderance of evidence. He is entitled to judgment in his favor against the lst defendant for all the reliefs he claimed in paragraph 23 of his amended statement of claim. Accordingly the plaintiff (sic) case succeeds and all the reliefs claimed as per paragraph 23 of his amended statement of claim are hereby granted in their entirety. On the other hand the claim of Mallam Yusuf Olagunju (vide suit No. KWS/OF/21/94) for and on behalf of his Ojomu Doyin against the 1st and 2nd defendants herein fail and is hereby dismissed in its entirety”. It is against this decision that the Appellant had unsuccessfully appealed to the lower court. The lower court in its unanimous Judgment dated 22/01/03 affirmed the decision of the trial High Court and dismissed the Appellant’s appeal.

Although the learned Justice of the court below Onnoghen, JCA (as he then was) has slightly castigated the learned trial Judge in not fully evaluating the evidence adduced by the appellant. He nonetheless also arrived at the same conclusion with that of the learned Chief Judge. On page 500 of the Record Onnoghen JCA, (as he then was) has this to say:-

“I have gone through the judgment of the lower court and I confirm that though the learned trial Chief Judge did summarise the evidence of the appellant he did not fully evaluate same, particularly the exhibits tendered by the appellant. That being the case and applying the principles of law on evaluation of evidence stated Supra; I am of the view that this is a proper case for this court, being an appellate court to interfere by properly evaluating the evidence adduced before the lower court”.

The learned justice then embarked on proper evaluation of the evidence adduced. The learned Justice who delivered the lead Judgment in the court below equally condemned the attitude of the learned counsel for the Appellant in accusing the learned Chief Judge Oyeyipo C.J of bias or partiality ….. see pages 514 and 515 of the record. The conclusion of the court below is as contained in the lead judgment of Walter Onnoghen JCA, (as he then was) thus;-

“…..I have gone through the record of proceedings and the judgment of the lower court and I agree with the learned counsel for the 1st respondent that the findings of the learned trial Chief Judge flow naturally from the evidence before him and from his observation of the witnesses when they testified before him, which is his primary constituency, I find no trace of bias or a real likelihood of bias in support of the charge of impartiality levelled against the Chief Judge in the issue under consideration. A man who behaves the way Shogo did in view of the facts can best be described as one who decides to run with the hare while hunting with the hound. I therefore resolve the issue against the appellant”.

In conclusion, I am of the considered view that there are no merits in this appeal which is accordingly dismissed.

The Judgment of the lower court in Suit No KWS/OF/21/94 delivered on 9th May, 2002 by Hon. Justice T. A. Oyeyipo Chief Judge of Kwara State is hereby affirmed”.

It is against the above judgment that the appellant has appealed to this court, and filed 15 grounds of appeal. (See pp 521 – 526).

With the leave of the lower court, the 1st respondent also filed a cross-appeal against part of the Judgment of the lower court. The Sole ground of appeal as contained in the cross appeal is herewith reproduced as follows:-

The learned Justices of the court below erred in law and on the facts when they held in the course of the judgment as follows:-

“However when one looks at the evidence, one agrees with the learned counsel for the appellant that contrary to the view of the learned Chief Judge there is evidence before the court to show how the land in dispute devolved from Bashorun to the appellant”. And this occasioned miscarriage of Justice”.

In accordance with the provisions of the rules of this court, all the parties filed and exchanged their respective brief of argument. The Appellant in his appellant’s amended brief of argument formulated five issues for determination as follows:-

(1) Whether the appellant’s family is dispossessed of the land in dispute by the operation of the Natives Rights Ordinance of 1916 and the Land Use Act, and /or whether Government compulsorily acquired the land in dispute in accordance with the relevant laws (Grounds 1, 6, & 7).

(2) Whether 2nd respondent, by his pleadings and evidence led thereon proved that the land in dispute was government land either through compulsory acquisition “taken over by the Government” by operation of law, designation as G.R.A. Or Urban Area (Grounds 3 & 4)

(3) Whether evidence led by the appellant at the trial court is at variance with his pleadings (Grounds 2 & 8).

(4) Whether the court below was right when, after holding that the appellant proved how the land in dispute devolved from Bashorun to the appellant and that the trial court failed to fully evaluate appellant’s evidence, it still held that the appellant did not prove his title to the land in dispute. (Grounds 10, 11, 12, 13 and 14).

(5) Whether the court below was right in failing to consider other methods of proving title to land pleaded and proved by the appellant and other substantial issues of law raised and argued in appellant’s brief and whether the failure has not occasioned miscarriage of Justice (Grounds 8, 9, & 15)”

The 1st respondent in turn formulated four (4) issues as arising for determination in this appeal as follows:-

i) Whether the land in dispute was vested in the 2nd respondent at the time it granted Certificate of occupancy over it in favour of the 1st respondent – (Grounds 1, 3, 4, 6 and 7).

ii) Whether the 1st respondent satisfied the requirements for the issuance of the certificate of occupancy over the land in dispute to him (Ground 5)

iii) Whether on the face of the pleadings of the appellant and the evidence adduced by him and on his behalf, he established title to the land in dispute (Grounds 2, 8, 9, 10, 11, 12 (13) (sic) and 14).

iv) Whether the court below considered all the issues raised before it and (if the answer is no) whether there was any miscarriage of Justice occasioned thereby. (Ground 15)

While in the cross-appeal, the 1st respondent distilled the sole issue for determination as follows:-

Whether the court below was right when it held that the learned trial Chief Judge was wrong in his conclusion that the appellant did not devolved (sic) from Bashorun to him” The 2nd respondent in turn, formulated three issues as arising for determination in the appeal as follows:-

(1) Whether the evidence led by the appellant at the trial court is sufficient to warrant the grant of declaration of the title to the land in dispute in his favour (Grounds 2, 8, 9, 10, 11, 12, 13 and 14)

(2) Whether or not the 2nd respondent pleaded or led sufficient evidence at the trial court to show that the land in question was government land (Grounds 1, 4, 6 and 7)

(3) Whether the lower court properly considered all methods of proving title to land and other substantial issues of law raised as alleged by the appellant or not (Grounds 5, 9 and 15).

The appellant in reply to the cross-appeal filed an appellant/cross respondent’s brief in which he adopted the sole issue formulated by the 1st respondent in respect of the cross appeal.

At the hearing, the learned counsel to the appellant adopted his brief of argument and urged this court to allow the appeal. In respect of the first issue formulated by the appellant it was submitted that the relevant law at the material time the land in dispute was alleged designated as G.R.A in 1956 was the Land and Native Rights Ordinance 1916. It was the learned counsel’s contention that the trial High Court did not specifically mention the section of the ordinance which the land in dispute was designated G.R.A in 1956. The court only referred to the Native Authority (control of settlement Regulation 1949 (not of 1950). While the Court of Appeal held that Section 4 of the 1916 Ordinance vested the title of the land in the Governor of former Northern Nigeria, it was submitted that the court below affirmed that the land in dispute was not compulsorily acquired by government and that the appellant proved by evidence how the land devolved from his ancestor centuries ago to the appellant. It is therefore established that the appellant was in occupation and use of the land in dispute prior to the time the Government allegedly took over the land in 1956 via designation of same as G.R.A, or when it became vested by the operation of law. It was therefore submitted that the Government could not acquire the land except in accordance with the relevant law i.e. Section 4 of the Land and Native Rights Ordinance of 1916. Cases of:-

A-G Bendel State Vs Aideyan (1989) 9 SCNJ 80, Alhaji Gani Kyari V Alh. Chiroma &Ors (2001) 5 SCNJ 421; and Ogunloye V Oni (1990) 4 SCNJ 65 at 83 were cited.

Learned Counsel also submitted that at the material time the land was allegedly taken over there was also, in operation, the public lands Acquisition (ordinance) as amended by No 18 of 1918 cap 167 Laws of the Federation 1951 which co-existed with the land and Native Rights Ordinance of 1916. He referred to sections 3, 5, 8 and 9 of the Public Lands Acquisition Ordinance of 1918, and submitted that it spelt out the procedure to be followed for acquisition of land for public purpose or use by the government which required Notice to be given to the owner and payment of compensation to the owners, but none of these was followed in the instant case. Also he submitted that sections 3 and 4 of the Land and Native Rights Ordinance of 1916 do not intend to dispossess occupiers of land of their rights and interest in such land. The cases of Savannah Bank Ltd & Anor Vs Ajilo (1989) 1 SCNJ 169 at 183, Abioye Vs Yakubu (1991) 5 NWLR (pt 190) 130 at 146; 1 Rabor Oniague Vs Integral Robber Production Nigeria Ltd & Anor (1997)3 SCNJ 39 at 42 were cited. Learned counsel further submitted that the interpretation of Section 1 of the Land Use Act by the lower court as having barred the appellant of claiming declaration of title since the Section vest all the land in the State or the State Governor is wrong and cannot be correct. The case of Garuba Abioye Vs Yakubu (1991) 5 NWLR (pt 190) 130 at 305, and Eyo Ogboni & Ors Vs ChiefOja Ojah (1996) 6 SCNJ 140 at 158 were cited. He therefore submits that though Section 1 of the Land Use Act vests all land in the State or Governor of the State it does not bar the appellant from seeking declaration of title to the land in dispute within the permissible limit allowed by the Act, that the word “exclusive” use in the claim was against the 1st respondent.

On the 2nd issue, it was contended that the grant to the 1st respondent could only be valid if the Kwara State Government has good title or prove ownership of the land. He then submitted that the burden is on the Kwara State Government to prove that it owns the land. The 2nd respondent did not plead any acquisition or takeover of the land in dispute and neither was it pleaded that the land in dispute belongs to the Government by the operation of law. Only that the land in dispute was designated G.R.A in 1956 and Urban Area in 1978. That the 2nd respondent did not join issue on the appellant’s claim to possession, except for the general traverse which he submitted could not without more amount to an admission of the appellant’s case. He cited the case of Lewis Peat Vs Akhimien (1976) 1 All NLR 460 at 465; Egbunike Vs ACB (1995) 2 SCNJ 58 at 70 and Oseni V Dawodu & Ors (1994) 4 SCNJ 197. He therefore submitted that the burden of proof placed on the appellant is discharged upon the 2nd Respondent’s admission that the appellant was in possession. He referred to sections 27 and 75 of the Evidence Act, ACB V Egbunike (1988) 4 NWLR (pt 88) 350 at 365. Learned counsel further submitted that the 2nd did not prove that the land in dispute was designated as G.R.A in 1956 and later as Urban Area in 1978.

On Issues Nos 3 and 4, the appellant submits that evidence led by him and his witnesses are not at variance with its pleading but they were not properly evaluated and applied by the lower court. It was submitted that the lower court was in grave error to have accepted the conclusion of the trial court that the appellant failed to prove its title to the land in dispute even after debunking the main reason proferred by the trial court that the appellant did not show by evidence how the land in dispute devolved from Bashorun to the appellant. It was submitted that there was no conflict whatsoever in the evidence of 1 DW1 and 1 DW2 concerning the names of their ancestor.

On the evaluation of evidence adduced by the appellant learned counsel submitted that the court below predetermined his case without assessing his evidence on record when it held that by operation of law, that is, Section 4 of the Land and Native Rights Ordinance of 1916 and section I of the Land Use Act, the land in dispute had become vested in the Government and appellant cannot legally seek a declaration of title to same. Even though the lower court subsequently evaluated the appellant’s evidence it was not properly done. It was also his contention that the lower court did not consider two other methods of proving ownership which was pleaded i.e proof of Long Possession and enjoyment and proof by acts of ownership over the land in dispute; and thereby occasioned miscarriage of justice. He cites in support Onwugbufor Vs Okoye (Supra).

On the issue No 5, the learned counsel submits that this is a proper case worthy of interference by this Honourable Court; this is so because the lower court failed to consider substantial issues of law raised by the appellant. Such issues as designated and acquisition under the Land Use Act, acquiescence why the grant to the 1st respondent should be declared null and void, and the Government acquisition and taking over Land for public use and grant same to a private individual.

The 1st respondent’s Senior Counsel adopted his Brief of argument and urged the court to dismiss the appeal. On the 1st issue, it was the learned counsel’s submission that the court below was right when it held that the 1st respondent based his claim Or origin of his title on the Land use Act; he referred to the evidence of the 1st respondent on how he applied for government land and the evidence of PW1. He submits that the totality of the evidence shows conclusively that the land in dispute forms part of the land vested in the defunct Northern Region Government and subsequently the Kwara State Government by operation of law. He referred to Sections 3 and 4 of the Land and Native Rights Ordinance 1916 and sections 2 and 3 of the Land Use Act. It was the counsel submission that the issue of “takeover of land” did not arise in the pleading as irrelevant. None of the parties pleaded that Government took over the land from anybody hence the appellant’s argument on this issue in his Brief is misconceived, at any rate the concurrent findings of the two lower courts in that the appellant did not prove his title to the land in dispute is clearly there and stated.

It was also the submission of the learned counsel that all the submissions made by the appellant on the Public Land Acquisition Ordinance No 18 of 1918 are misconceived because Section 2 of the said Public Land Acquisition Ordinance excludes native land from its application. Whereas the designation of Native Lands in land and Native Rights Ordinance covers the land in dispute. Thus the provisions of the Public Lands Acquisition Ordinance does not apply to the land in dispute. The learned Senior Counsel pointed out that the decision of this court in Abioye V Yakubu (Supra) was misquoted by the appellant, that the Land Use Act……. land in excess of half hectare is vested in the State Governor. It was submitted that the 1st respondent in paragraph 5, 7 and 8 of the amended statement of defence pleaded the facts of the regulations and the designation of the land as G.R.A, in 1956 and as Urban Area in 1978.

The 2nd respondent also tendered exhibits 2, 3 and 4 and led evidence to show that the land in dispute falls within the area designated as G.R.A and later Urban Area. The learned Senior Counsel submitted that the 1st and 2nd respondent’s are not required to tender regulations made Gazetted pursuant to a statute. It is subsidiary legislation and the court is enjoined to take judicial notice of same by virtue of the provisions of Section 74 of the evidence Act. The cases of Adetipe V Amodu (1969) NMLR 62 at 69. Benson Vs Ashim (1967) ANLR 195 at 200 and Finnih Vs 1made (1992) I NWLR (pt 219) 511 at 542 were cited. It was submitted that the 2nd respondent joined issue with the appellant on the ownership of the land; counsel referred to paragraphs 4, 12, 13 and 16 of the 2nd respondent’s amended statement of defence. It is pleaded and proved by the 1st respondent that the 2nd respondent had been in possession of the land since the early 20th century. It is therefore the submission of counsel that this court should not disturb the concurrent finding of the two lower courts since same have not occasioned miscarriage of Justice. He relies on the following cases:-

(i) Samuel Odeniji Vs Adeyemo (1996) 7 NWLR (pt 557) 174;

(ii) U.A.C. NIG. LTD Vs FASHEYITAN & Anor (1998) 11 NWLR (pt 573) 179.

The counsel further submitted that the mere preparation and the fixing of beacons on the land in 1956 is sufficient evidence of possession by the 2nd respondent, the cases of:- Ajada Vs Olanrawaju (1969) ANLR 374 at 380. Lydia Thompson Vs Arowolo (2003) 7 NWLR (pt 818) 163 at 232 were cited in support.

On issue No 2 the learned Senior Counsel submitted that this court is always loathe at re-evaluation or interference with the concurrent finding of the two lower courts without clear proof that the findings were patently perverse, and a result of improper exercise of judicial discretion. Cases of Abideye Vs Alawode (2001) 6 NWLR (pt 709) 463 at 473; and Re – Adewunmi (1988) 1 NWLR (pt 83) 483 were cited. Thus the findings of the two lower courts that the 1st respondent properly applied and was validly granted statutory right of occupancy could not be faulted as the findings were based on the evidence placed before the court. Counsel referred to Section 5 of the Land Use Act and submits that it is manifest that the prerogative to issue a statutory right of occupancy is in the Governor. The prerogative to impose any condition or waive same vested in the Governor to whom the power to administer all land in Urban Areas is vested. It is therefore not within the province of the appellant to complain about the alleged non-compliance with the conditions listed in exhibit 1m.

On the issue No 3, the learned counsel submitted that since it was the case of the appellant that the family first settled on the land, which is denied, he was duty bound to proffer credible evidence in proof of his averment, and having omitted to call evidence in support of his averment he is deemed to have abandoned the same. See Yusuf Vs Oyetunde (1998) 12 NWLR (pt 579) 483 at 497 – 498. It was the counsel submission that it is not sufficient for a party who relies for proof of original title to land on tradition to merely plead that his predecessors in title had owned and possessed the land in dispute without more.

Material and necessary facts to sustain such a claim must be clearly averred and proved. See Onwugbufor V Okoye (Supra). The evidence of the root of title led by the appellant is clearly unreliable as there is a confusion of who was the 1st Ojomu of Offa. From the appellant’s evidence was it Bashorun Or Osinrolahin. It is not in doubt that no particulars or material facts concerning the original ownership or devolution was ever pleaded. Thus, in the absence of cogent pleading supported by evidence of who founded the land, how he founded the land and particulars of the intervening owners head of family through whom the appellant claims, his action was bound to fail. Cases of Onwugbufor Vs Okoye (Supra) Alade V Awo (1975) 4 SC 215 and Dike V Okoleodo (1999) 10 NWLR (pt 623) 377 were cited in support.

On issue No 4, learned counsel submits that the issue of acquiescence and whether government can acquire land and give same to private individuals are not covered by any grounds of appeal and do not arise from Ground 15 of the grounds of appeal filed by the appellant, and that this court should discountenance it. The case of Alli Vs Aleshinloye [2000] 6 NWLR (pt 660) 177 at 212 B – C. It was the submission of counsel that the decision of the court below is not to the effect that the government of the then Northern Region took over the land in dispute by designating same as G.R.A as erroneously argued by the appellant, but that the land vests in the government by the operation of law. That the issue of compulsory acquisition does not arise and that the Land and Native Rights Ordinance and subsequently the Land Use Act vested the land in the Governor of the Region Or State. That there is no provision in the Land use Act to the effect that there must be first compulsory acquisition of land before the Governor can designate such land as Urban Area.

On the cross – appeal, the learned counsel to the 1st respondent submits that the finding of the court below is that though the cross – respondent pleaded for settlement by his ancestors as his root of title, the evidence he led is contrary to his pleading as it was to the effect that the land was a gift to his ancestors by the founder of Offa Olalomi, thus this evidence, not being supported by the pleading, goes to no issue. Secondly, there is a confusion as to the name of the ancestor of the cross-respondent who was allegedly given the land by Olofa, Olaloni and thus renders his root of title un-reliable and also the cross-respondent did not call anybody from the family of Olofa Olaloni to testify in support of the alleged gift of the land to the cross-respondent’s ancestor. That in spite of these findings, the court below held that the cross-respondent had proved how the land devolved from Bashorun to the appellant. It was the submission of the learned counsel that this finding of the lower court cannot be correct since the court had held that there is no clear evidence as to who the progenitor of the cross-respondent family is; as between Bashorun and Oshinlabun. The same court cannot make a sudden turn around and hold that there is evidence of how the property devolved from Bashorun to the cross-respondent. Therefore since the appellant could not establish his root of title over the land, the issue of devolution of the land from his ancestor to him does not even arise. It is therefore the submission of learned counsel that the court below was wrong to have set aside the finding of the trial court that the appellant had failed to prove his root of title over the land in dispute and how the land devolved on him and substituted its own finding. See Layinka Vs Makinde (2002) 10 NWLR (pt 795) 358; ACMC Builders Ltd Vs K.S.W.B (1999) 2 NWLR (pt. 590) 288 and Uzouchi Vs Onyenwe (1999) 1 NWLR (pt. 587) 339 at 345.

The learned counsel to the 2nd respondent at hearing the appeal adopted his Brief of argument and urged us to dismiss the appeal. On his issue No 1 it was the counsel’s submission that the appellant led evidence which is at variance with his pleading. The ancestor of the appellant was not clear was it Bashorun Or Oshinolabun Since the alleged gift from Olofa Olalomi to his ancestor was not pleaded, the evidence led on it goes to no Issue. See Allied Bank of Nigeria Vs Akubueze (1997) 6 SCNJ 131 – 132. He denied that the 2nd respondent admitted that the appellant was in possession and exercising any right of ownership on the land in dispute. It was submitted that a party laying claim for declaration of title to land on tradition must plead and establish by hard facts:-

(a) Who founded the land

(b) How he founded the land and;

(c) Particulars and names of the intervening owners through whom they claim. See Ewovani (2001) 1 SCNJ 273 at 381.

The appellant, he continues, in this case had failed to prove these facts; hence the lower court was right to hold that the appellant had failed to prove his title to the land in dispute.

On its issue No 2, the learned counsel submitted that the second respondent in its amended statement of defence in paragraph 4, 11 and 12 dated October 2000 pleaded that the land granted to the 1st defendant had since been designated Urban Area by the Governor of Kwara State in 1928 pursuant to the powers conferred on him by the land use Act. Learned counsel referred to paragraphs 4, 5, and 13 of his pleading where issues were joined with the appellant on issues of long possession and ownership. He then submitted that the 2nd respondent pleaded and led sufficient evidence to the effect that the land in dispute is Government land. It was further submitted that the land in dispute has been designated as G. R.A since 1956 pursuant to the Land and Native Right Ordinance 1916. He referred to Exhibit 1. (Plan No I LRC 49 of 2/5/56) which shows that the land allocated to the 1st respondent falls within the area designated as G. R.A Offa. Also Exhibit 3 was referred to i.e plan No. URB/OF/1. Designated of OYIN URBAN AREA, 1978 and Exhibit 4 TPO which, despite the residential layout marked 3 in Exhibit 3. The land allocated to the 1st respondent forms part of that depicted in TPO 113.

On the issue No.3, the learned counsel finally submitted that the lower court considered all the issues placed before it by the parties before it arrived at its decision. The appellant herein also filed a cross-respondent’s Brief in respect of the cross-appeal dated 8/11/07 wherein he submitted that the cross-respondent proved how the land in dispute devolved on Bashorun to the cross-respondent. The cross-respondent cannot correctly be expected to call evidence of gift. Both lower courts were in error to have interpreted the evidence of DW1 as evidence of gift. This evidence ought to have been ignored since it was not pleaded. See Onwuka V. Omogu (1992) 3 SCNJ 98 at 115. The learned counsel finally contended that the name of the appellant’s ancestor was Bashorun Ojomu Osinolohun and that Bashorun and Osinnolohun mean the same thing.

Now, I think the crucial issue that calls for determination in this appeal is whether the appellant proved his title to the land in dispute in this case. This can only be determined by examining the appellant’s pleadings and the evidence adduced in support. The appellant’s root of title is pleaded in paragraphs 4, 5, 7, 8, 11 and 14 of the amended statement of claim as follows;-

4. The plaintiff’s Ancestors migrated from the old Oyo Empire in the present Oyo State centuries ago and settled at Offa.
5. The plaintiff’s Ancestors brought along with them from the old Oyo Empire a shrine known as “Iyemaji-Goddess which is located in a part of the family land which land the first defendant is allegedly laying claim to.
6. The Ojomu-Doyin family land is situate, lying and being along both sides of Igosun Road Ojfa and covers an area of about 222, 560 square metres and is well known to all the people of Offa and beyond.
7. The said Ojom -Doyin family land described at paragraph 7 above is an ancestral land fist inhabited by the Ojomu-Doyin family ancestors and has passed to several generations of the family to date without hinderance or interference.
8. The plaintiff’s family has permitted and still permits many customary tenants to farm on the land who pay to the plaintiff’s family annual rent in cash and kind among them are S. A. Adeneyi, Tiamiyu Ogunlomu, Folorunsho Raji, Bello Elemosho, Lawan Soja, Salawu Ibitoye, kelani Adejanye and many others who still pay annual rent to the plaintiff’s family to date.
9. The plaintiff avers that among various acts of possession and ownership exercised over the land by the family for many years apart from those enumerated at paragraphs 11 and 12 above are the existence on the land assorted crops and cash trees planted by members of Ojomu-Doyin family members of the family also farm and still farm on the land every year”

In support of these averments, the appellant called DW1 and DW2 who stated briefly as follows:-

1. “DW1 – The land in dispute belongs to our fore-fathers. Our ancestors came to possess this land from time immemorial. Our ancestor was Bashorun at Oyo. He was friendly with Oba Olalomi the founder of Offa. He came in company of Olofa from Oyo to Offa. They both arrived Offa. The Olofa Ololomi told my father the Bashorun to stay at Ose-Ogba. Our great ancestor was put in total control of all pieces of land at Okegba. The land now in dispute is part of the land over which Olofa Ololomi gave our ancestor Bashorun who became Ojomu on arrival at Offa”
2. “DW2 – Our forefathers who accompanied Olofa from Oyo is called Osinnulahun. Our forefather came to Offa with YEMUJO while Olofa came with Onumoke….”.

From the above it is clear that these pieces of evidence are not in conflict, they do not also arise from the pleadings. While the Owl stated that their ancestor was Bashorun, 2 DW2 stated that the name of the ancestor was Osinnolohun it is to be noted that the appellant did not specifically plead the name of their first forefather who first came to Offa. Also the fact pleaded was that the appellant’s forefather was the first to settle on the land, while the evidence adduced is to the effect that the land was an outright gift from Oloffa to their ancestor. I have no difficulty whatsoever in holding that these pieces of evidence go to no issue. Though the appellant tried strenuously to convince this court that the name “BASHORUN” is the same as “OSINNOLOHUN”, nowhere in the proceedings was such evidence given or explained. It is trite that the counsels’ address cannot take the place of evidence. On this point the trial Chief Judge found as follows:-

“Further more it has been held that it is not enough for a party to say that the land in dispute belong to his family from time immemorial, must show how the family got to the land from other persons and the authority of succession. If these are not proved satisfactorily, his claim must fail. Dike V. Okoledo (1999) 7 SC (pt. 3) 35 at 41. I have said elsewhere in this judgment, I find a serious flaw in the case of 1st defendant, who as plaintiff is asking for a declaration of title to land

The failure of the 1st defendant’s case to contain credible evidence of his family’s radical title to the land he claimed is fatal to his claim………………………………….In my view, the 1st defendant’s family cannot use long possession which is essentially a weapon more of defence than of offence to establish a claim for declaration of title to land. In my view the 1st defendant Mallam Yusuf Olagunju claim stands or fails on establishing a good title derived from Olofa family. In the light of all that I have said I have come to the conclusion that the 1st defendant Mallam Yusuf Olagunju has failed to sustain his claim for a declaration to the land in dispute”..

Similarly the court of Appeal, herein court below affirmed this finding of the trial High Court when it held as follows:-

“That the burden of establishing the title claimed is on the appellant and that the appellant failed. to discharge the burden as found by the Chief Judge. That Exhibits D11and D12 do not assist the case of the appellant in that Exhibit D11 is an application to alienate land and there is nothing on it to show that it was ever approved by anybody”

These findings are concurrent findings of the two lower courts; it is trite that this court will not ordinarily interfere in a concurrent finding of the two lower courts, unless it is shown that the findings are perverse or not supported by the evidence in the records. See A. G. Lagos State Vs. Eko Hotels (2006) 9 SCNJ 104 at 127; United Bank for Africa Vs. B. T. L. Industries Ltd (2005) 12 SCNJ 217.

With tremendous respect I do not see from these finding could be said to be perverse as they were based on the evidence adduced in the records. With due respect again, I will not disturb these findings of the two lower courts. It is for this reason that I will dismiss this appeal.

However before I am done, the lower court found at page 45 of its judgment thus:-

“It is not in dispute that the appellant never called a member of the family of the original alleged grantor of the land to his progenitor.

…it is my view that having introduced the issue of acquisition of the land in dispute by way of gift from the first Olofa of Offa it was the duty of the appellant to prove that root of title – granted that it was pleaded so as to be entitled to judgment by calling a member of the Olofa’s (sic) family to testify in support of that root of title particularly as the 1st respondent in paragraph j of the Amended State (sic) of Defence specifically denied the relevant paragraphs of the appellant’s pleadings”.

Having so held the lower court surprisingly proceeded to hold that:-

“However, when one looks at the evidence, one agrees with the learned counsel for the appellant that contrary to the view of the learned Chief Judge, there is evidence before the court to show how the land in dispute devolved from Bashorun to the appellant”. My Lords, this finding with respect is not supported by the evidence before the court. The appellant having failed to prove his title has nothing to devolve on him either from Bashorun or Osinnolohun, consequently, this finding is set aside and the cross-appeal is hereby allowed.

Finally, I have no hesitation in holding that the 1st respondent’s claim based on the grant from the Kwara State Governor is well founded. Based on provisions of Land and Native Rights Law and the Land Use Act. This appeal lacks merit and it is hereby dismissed. The cross-appeal is meritorious same is allowed N50,000 costs is awarded in favour of the respondent.

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SC.84/2003

Chief Adesina Jinadu V. Chief Israel Esurombi-aro (2009)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

The respondents were the plaintiffs before the Lagos High Court where they claimed against the appellants (as the defendants) the following reliefs:

“1. A declaration of title under native law and custom to all that parcel of land being part of Ojora Chieftaincy Family land situate at Iganmu, Lagos comprising inter alia Orile Iganmu, Aloko Sarage, Sari, Offa-Offin, Oso-Olodi, Tokosi, Coker, Ajabe, Laniyonu, Tapa Bankole, Imoro and adjourning villages shown on Plan No. AL 641/1974;

2. Forfeiture of the customary tenancy and occupational right of all the defendants and each of them in the land in dispute.
3. Possession of the said lands.”

The parties filed and exchanged pleadings. The suit was heard by Segun C.J. On 13th December, 2000, the trial Chief Judge in his judgment granted the claims of the plaintiffs now respondents. The counter-claims filed by some of the defendants were dismissed. The defendants/appellants were dissatisfied with the judgment of the trial court. They brought an appeal before the Court of Appeal, Lagos (hereinafter referred to as ‘the court below’). The court below, on 8/11/2004 dismissed the appeal. Still dissatisfied, the defendants/appellants have come on a final appeal before this Court. It is necessary that I point out here that the appellants before this Court are in two groups, namely the 1st – 12th appellants and the 13th appellant who was the 24th defendant before the trial court. In the appellants’ brief filed on behalf of the 1st – 12th appellants, the issues for determination in the appeal were identified as the following:

“1. Whether the Court of Appeal was right when it held that the plaintiffs/respondents were entitled to a declaration of title to the land in dispute. Grounds 1,5 and 7.

2. Whether the plaintiffs/respondents can maintain an action for declaration of title to the same land acquired by government even on the admission of the 9th Plaintiffs’ witness Chief Taoreed Lawal-Akapo. Grounds 6 and 9.
3. Whether the Court of Appeal properly considered the issues of admissibility and probative value of the documentary and oral evidence raised by the 1st -12th appellants in the determination of the appeal before them. Grounds 3, 6, 8, 10, 11 and 12.
4. Whether the plaintiffs/respondents proved that the 1st – 12th appellants, the 1st set of defendants/appellants were their customary tenants. Grounds 2 and 4.”

In the appellant’s brief filed by counsel on behalf of the 13th appellant, the issues for determination were stated to be these:

“1. Whether on the state of the pleadings and admissible evidence before the court, the plaintiff could be said to have proved title to the land in dispute .

2. Whether there is evidence that the 24th defendant/13th appellant’s family are customary tenants of the plaintiffs .
3. Whether the evidence in support of the 24th/13th appellant’s case is sufficient to grant the counter-claim…”

It is appropriate that the pleadings of the parties upon which the case was tried be discussed in order to expose the standpoints of the parties on the germane issues in this appeal. The plaintiffs/respondents in paragraphs 2, 3 and 4 of their amended Statement of claim pleaded thus:

“2. The land in dispute forms a portion of a large area of land which belonged to the Ojora Chieftaincy Family absolutely under Yoruba Native Law and Custom.

4. The Ojora Chieftaincy Family is one of the Idejo Land owning Chieftaincy Families of Lagos and its traditional head is the Chief Ojora, a Lagos Idejo White Cap Chief.
5. The whole of the land originally owned by the Ojora Chieftaincy Family (hereinafter referred to as the Ojora Land) were known generally as Iganmu and have been in the possession of the said family (sic) from time immemorial and is bounded on the East by the Lagos Lagoon and part of Lagos Island and Ebute-Metta; on the North by the land of Oloto Chieftaincy Family Abebe Creek, Iguru Swamp and Itire Land; on the West by the land of Amuwo and of Alahun and on the South by the land of the Oluwa Chieftaincy Family, and more particularly shown on a plan dated December 1918 made by Herbert Macaulay (now deceased.)”

The respondents subsequently went on to plead the diverse acts of possession spanning several years and how the ancestors of the defendants/appellants became their customary tenants. In paragraphs 46 to 57, the plaintiffs/respondents pleaded thus:

“46. The Plaintiffs aver that several other villages such as Odi Village, Tinubu Village, Dodoro and several others were occupied by customary tenants of the Plaintiff’s family and they all paid tribute and later rent in the form of cash to the Plaintiff’s family and many of the occupants of such villages still acknowledge the ownership of the Plaintiff’s family.

47. The Plaintiff’s family have exercised maximum accts (sic) of ownership over the land In dispute and other surrounding villages which form part of their land at Iganmu by:-

(i) Placing tenants upon and collecting tribute and rents as aforesaid from the villages hereinbefore mentioned as well as others such as Apata, Oguntayo, Obadiya, Alaiyabiagba Tokosi, Amukoko Ajegunle, Aiyetoro, Mosafejo Alaba Metta, Onikere, Olongo, Layeni, Dodaro,

Agidimo Apapa Elemu (before compulsory acquisition) Tinubu and several others.

(ii) Appointing or approving the appointment of the Bale of each of the said villages where necessary.

(iii) Prosecuting several litigation over the years against trespassers or other claimants to other portions of the Ojora Chieftaincy Family lands such as:-

(a) Suit No. 113/1939 Chief Ojora V. Lawrence Gardozo in respect of land upon which the present Gaskiya College is now built.

(b) Suit No. LD/48175 Chief Lawani Akapo v. Latunde Lawrence in respect of the same land.

(c) Suit No. LD/375/68 Chief A. L. Odunsi Ojora v. Muniratu Ajiwun & Ors. in respect of land at Apata Village.

(d) Litigation against a branch of the Amuwo Odofin Family as to the ownership of land which forms part of the South-Western boundary of Ojora lands aforesaid in HK/94/60 Yaba Lemonu & Ors. v. Ajayi & Ors.

(iv) Granting or dedicating lands to Local Authorities and Local communities for Public use e.g. Markets (Ajegunle) Cemeteries, Local Government Council offices.

48. All the customary tenants of the Plaintiffs originally paid tribute in the form of farm products and homage until 1922 when the customary tribute was converted to small cash payments.
49. The Defendants with many of the other tenants have quite recently formed themselves into a group that now variously described themselves as the ‘Iganmu community’ ‘Iganmu Family & Council’ and ‘The Ilupeju Iganmu United Movement Group’ and have as such claimed to be absolute owners of the land and have been granting leases of the land to strangers and to themselves as absolute owners.
50. The Defendants have set up officers in various parts of the land in dispute and chose several of the other members of their group to the offices and to it (sic) or sell out portions of the land in dispute to strangers.
51. The Plaintiffs further aver that individuals who belong to the said group have also commenced to lease and/or set the Plaintiffs Family land individually and have collectively denied the ownership and overlordship of the Plaintiff.
52. Defendants by their servants and agents have repeatedly prevented the grantees of the Plaintiffs from taking possession of the lands lawfully granted to them by the plaintiffs.
53. The defendants have on several occasions used great violence on the Plaintiffs and their agents and grants and have repeatedly attacked the members of the Plaintiffs Family

on the land and have generally established a reign of terror in the area.

54. In a Public Notice appearing above the name of the 1st Defendant as alleged Bale of Iganmu and published in the issue of the Daily times of the 12th June 1971 the 1st Defendant claimed ownership of the land in dispute for the Defendants-therein described as the Iganmu Community Council.
55. On the 17th of November 1972 the Defendants led by the 1st, 2nd and 11th Defendants and their relations and thugs forcibly entered Ama Li’l’s house declaring that they would kill him for not joining them to claim the land in dispute against the Plaintiff Family.
56. The said Defendants also threatened to attack other tenants of the Plaintiffs who did not join them and who maintained good relations with the Plaintiffs Family.
57. On the 16th of November 1972 the Defendants fully knowing that Monday Ugbogu was the Plaintiff’s Surveyor’s employee engaged in the survey of the land in dispute for the purpose of this case assaulted the said Ugbogu on the land in dispute.”

The 1st – 12th defendants/appellants in paragraphs 5 – 44 of their amended Statement of Defence pleaded thus: “5. Their land (including the site of their original palace) was acquired many years ago by Government.

6. The land so acquired was in Iddo Island and was owned and occupied by the Ojora Family who were paid compensation for the said land.
7. As the entire Family was by this acquisition dispossessed of all their land and following appeals made by them to the then Colonial Government and consequent upon the agreement reached between the Ojora Family and the Government, by a lease dated 19th December 1925 and registered as No. 39 at Page 39 in Volume 195 Lagos, the Government of Nigeria granted a large parcel of land to the Ojora Family ‘in place of the said lands so acquired’.
8. These defendants aver that the Ojora Family built a new Palace for their then Chief Ojora, one Bakare Faro, (otherwise known as Bakare Faro olugbode) on a plot within the land leased to them and two minor palaces for their Chiefs Odofin of Ijora and Aro of Ijora.
9. Plan HU/LA/3400 of the 2nd October 1986 which, inter alia, shows the land originally owned by the Ojora Family and the land on which they were resettled by Government as tenants of Government.
10. These defendants will contend that the Ojora Family never owned any land to the North West or South of the area granted to them by Government and now own no such land.
11. These defendants aver that they have never paid any tribute or terminal dues of any kind to the Ojora Family in their lifetime and that their for bears did not tell them that they had paid any payments as customary tenants to the said Ojora Family.
12. These defendants aver that although about one half of the land subject matter of the plaintiffs claim has been acquired by Government, the plaintiffs family did not put up and has not up to the date hereof put up any claim to compensation for the land so acquired.
13. These defendants aver that the original 1st defendant was late Abudu Gafar Oyewole Bello, Bale of Orile Iganmu who succeeded his father Quadri Bello (Deceased) as Bale in 1964.

13a. These defendants aver that Quadri Bello (deceased) succeeded his father Abudu Bello (dec’d) as Bale of Orile Iganmu in 1944

13b. These defendants aver that late Gafar Oyebowale Bello, the original 1st defendant and his predecessors as Bale of Orile Iganmu never told them that they are tenants of Ojora family on Iganmu land.

14. With regard to Tapa Village, one Abudu Bada, a native of Bida, was the first settler there.
15. Abudu Bada was an itinerant drummer and first reached what is now Orile Iganmu where he met Oke, the first settler at Iganmu.
16. Abudu Bada later moved on and settled at the spot now known as Tapa Village.
17. Bada begat Gbogboji who begat Rufai who begat the 15th defendant.
18. These defendants aver that the plaintiff knows nothing about the several villages mentioned in the Amended Statement of Claim and are now merely scouting for information about them.
19. In this regard these defendants will point out that the genealogy of the Gbogboji Family as presented by the plaintiff is wrong and that Momo Gbogboji had five children, namely, Saka, Rufai, Aminotu, Asana and Yekini.
20. The 15th defendant avers that neither her father nor her grand-father, both of whom she grew up to know, told her that they were customary tenants of the Ojora Family.
21. The 2nd defendant a native of Atoko Village, is aged over 80 years and is very ill and immobile.
22. One Yisa, a Hausaman and catapult hunter arrived in the course of his journeying settled at Aloko Village.
23. Yisa begat Abu and Abu begat the 2nd defendant.
24. These defendants aver that there was no Momoh Aloko at Aloko Village and that the derivation of the name of the Village is ‘Eniti o loko ni ido-Oro’.
25. The 5th defendant is a son of Lawani Ajagbe, whose forbear Ajagbe, a native of Offa, first settled at Ajagbe Village (sic) 100 years ago.
26. The 7th defendant lives in Osho Village, his ancestors has first settled there for over 100 years ago.
27. The 9th defendant avers that his grandfather was one Momoh Tapa (Nupe) who came to meet his kinsman Momodu Gbogboji (sic) what is now Tapa Village.
28. xxxxxxxxxxxxxxxxxxx
29. xxxxxxxxxxxxxxxxxxxx
30. The 3rd and 4th defendants are natives of Savage Village.
31. They are descendants of one Aina Agbenotefon a hunter, who first settled at the spot now known as Savage Village.
32. He begat one Ajayi who begat one Buraimoh Moroun. When Buraimoh was of school age his father agreed to his being called Moroun Savage to facilitate the lad’s admission to a Christian school.
33. When he grew up he lived in the village and the village took his name Savage.
34. One Oke, who hailed from He-Ife; a hunter on a hunting expedition reached Isunba, a place

near the present Kirikiri where he stopped.

35. The area was swampy and he made expeditions from there and on one of such expeditions he

sighed an elephant which he attacked.

36. The elephant travelled a distance and then fell and died; Oke called the spot ‘Egan yi mu’ i.e., this ground is fertile.
37. These defendants aver that the spot up to his day remains the Ojubo of the god of iron at Iganmu.
38. Oke and his people then left the swampy Isunba for his new settlement on hard soil which he

named ‘Egan yi mu’, now Iganmu.

39. Oke was later joined by more people and consequently, among others, the several villages mentioned herein, among others, came into existence under the paramount rule of Oke and his successors as the head of his Family. The 1st defendant is a descendant of Oke.
40. These defendants aver that their traditional history as herein set out is what their fathers and forbears told them and they had no reasons for disbelieving them.
41. These defendants aver that the capacity or capacities in which they are sued is not a juristic person or one known to the law.
42. These defendants aver that each and every one of them holds his or her respective portion of

land in his or her individual capacity and will therefore contend that the plaintiffs claim against them jointly is misconceived and invalid for mis-joinder.

43. These defendants aver that they have not either as individuals or as a body been authorized to

defend this action by anybody.

44. These defendants aver that the plan filed by the plaintiff is vague and bad in law for the purposes of this case as it does not show the portion alleged to have been given to each of these defendants.”

The 24th defendant before the trial court, and now the 13th appellant in his 2nd Further Amended Statement of defence pleaded in paragraphs 4 – 9 thus:

“4. The land in dispute forms portion of a larger area of land owned by Yesufu Adeosi’s family by right of inheritance and consists of IGANMU DISTRICTS made up as follows:

(i) Orile Iganmu with all its villages namely: Coker, Tapa, Aloko, Imoru, Oso-Offin, Tokosi, Savage, Sabisi, Ajagbe, Laniyonu, Aleilo, Oso-Olodo, Sari and Bankole (formerly Fatula).

(ii) (a) Oguru or Eguru otherwise known as Iguru

(b) Ita Mea otherwise known as Tameda with all their villages namely: Aguda, Falohun, Sla, Padumo, Soluade and Suberu.

5. In 1865, Eguru and Tameda were acquired by the said Yesufu Adeosi and his son-in-law Abdul Kadiri Laguda was the first to farm on the land hence the name Aguda Village.

5(a). The defendant denies that Iganmu land is bounded on the north by Iguru swamp as Iguru is part of Iganmu.

6. The said Yesufu Adeosi (deceased) is the grandfather for the defendant and Tesilimi Adewusi who died in 1974, whose son Isiaka Adewusi has now been replaced as 7th defendant to this suit.
7. Yesufu Adeosi (deceased) was born in Iganmu by one Adetona and Adetona was born by Adewuyi and Adewuyi was born by Adewunmi and the said lineal ancestors of the said Yesufu Adeosi had lived and farmed as reputed.
8. Yesufu Adeosi’s ancestors settled in Iganmu at a time when the place was a jungle with no sign of human habitation. Iganmu derives its name from ‘Egan meaning thick bush or farm. ‘Egan Muyiwa’ meaning the farm or bush produces fruits, vegetables, rice, milk from cows, meat and even grass that animals feed upon. Hence the name ‘Egan Muyiwa’ was corrupted to ‘Iganmu’. Iganmu has taken its name before the Tapas came.
9. Several years after the said Yesufu Adeosi’s ancestors’ settlement in Iganmu, people came one after another attempting to settle in Iganmu and its suburbs, but they went back to other places when they discovered that Yesufu family was there.”

It is apparent from a close perusal of the extracts from the parties’ pleadings reproduced above that this case was not fought on strictly the basis of traditional evidence. The plaintiffs/respondents claim of ownership was based on acts of possession spanning several years and the fact that the defendants/appellants’ ancestors were their customary tenants. The 1st- 12th appellants on the other hand anchored their resistance on the fact that whatever land that had previously belonged to the plaintiffs/respondents had been acquired by the Government. They also denied being the customary tenants of the plaintiffs/respondents. The 13th appellant pleaded that the land in dispute had belonged to his ancestor by name Yesufu Adeosi. He pleaded further that his ancestor was the first person to settle on the land in dispute.

Against the background of the issues joined by the parties, I now proceed to consider the issues raised for determination by the 1st to 12th appellants. The four issues raised by them would appear to be different perspectives of the same issue which is whether or not on the totality of the evidence called by the plaintiffs/respondents they were entitled to the judgments given in their favour by the two courts below. It was the contention of the appellants’ counsel in his brief that the plaintiffs/respondents had not before the trial court called evidence as to the specific holding of each of the defendants and further that persons to whom the receipts exhibits E, F, G, G2, J, J1, K, K1, AA3, AA7, M, N, N1, Z and Z2, F1, G1, AA1, AA2, AA4, L1, L2, O, P and Q were issued were not called as witnesses. It was submitted that the receipts amounted to hearsay and were therefore incapable of establishing the ownership asserted by the plaintiffs/respondents. Counsel relied on Umeojiako v. Ezenamuo (1990)1 NWLR (Pt. 126) 253 at 267; Lord St. Leonards v. Ashburner [1870} 2 L.T. 595 at 596 and Omega bank Plc. v. O.B.C. Ltd. (2005) 1 S.C. (Part 1) 49 at 72-74. It was further submitted that the plaintiffs/respondents did not make any attempt to prove the signatures on exhibits E, F, G, G2, J, N, K, K1, AA3, AA7, M, N, Z, Z1 and Z2 as required under Section 100 of the Evidence Act. Counsel argued that the respondents did not prove that they were in exclusive possession of the land in dispute since the 9th P.W. called by them that is, Chief T. A. Lawal Akapo had admitted under cross-examination that a portion of the land in dispute was leased to the plaintiffs’/respondents’ family in 1925 by the colonial Government. Counsel relied on Ogundairo v. Okanlawon (1963) 1 All NLR 358; Faleye v. Otapo (1995) 3 NWLR (Pt. 381) 1 at 32 – 22; Uchendu v. Ogboni (1999) 4 S.C.1 (Part II) and Ekpo v. Ita 11NLR 68.

Now P.W.9 Chief Taoheed Akanni Lawai Akapo, the head of the Plaintiffs/Respondents’ family in the course of his testimony on 19-1-89 under cross-examination said:

“My ancestors had no palace in Orile Iganmu. They were using bamboo at the time to build houses. I do not know anything about shrine at Orile Iganmu. Our land was acquired by the government and they leased a portion of the land to my family at one shilling per year for 999 years. This is the document. Tendered, no objection, admitted and marked exhibit AA5. It is the land given to us by the government. The government did not acquire all the area of land to which we lay claim in 1925. They acquired a portion. I agree to what is in exhibit AA5. We lost a case against Sheteolu. We also lost against Gaskiya College because of laches.”

The above piece of evidence is what the appellants’ counsel has latched on to contend that the respondents did not show that they have been in exclusive possession of the land in dispute.

Appellants’ counsel in his submission referred to the evidence of the 5th Defence Witness Alhaji Tesilimi Aremu Hussain concerning the land acquired from the plaintiffs/respondents’ family by the government. At pages 97-98 of the record of appeal, 5th D.W. testified thus:

“The area verged Red in Exhibit A is the same with the one verged blue in Exhibit AA6. The area verged green in Exhibit AA6 is the original Ijora Settlement acquired by the government. After the acquisition the government gave the plaintiff another area of land within the area coloured Red in Exhibit AA6. The area given to them after the acquisition was not shown in Exhibit A. The land edged Red in Exhibit AA5 is the area coloured Red in Exhibit AA6 and that is the new Ijora Settlement. The area claimed by the plaintiff is marked blue in Exhibit AA6.

The area edged Red in Exhibit A is the same as the area marked blue in Exhibit AA6. The area coloured Red in Exhibit AA6 is within the area verged red in Exhibit A.

In 1958, the Western Region government acquired 5,000 acres of land and this is edged green in Exhibit AA6 (See Notes No.7) and it was published in Western Region Gazette No.28 Vol. 7, Page 223 of 24/4/58. What is edged green is just a portion of the 5,000 acres acquired by the government. After the Lagos State was created, the Western Region Government released part of the acquired land to the Lagos State Government. This falls within the area edged Red in Exhibit A. Lagos/Badagry Road goes across the Land in dispute. Apapa road was not shown in the plan Exhibit A but shown in my own plan exhibit AA6. I was not born in 1918 when Exhibit A was prepared.”

The trial court did not comment in its judgment on the evidence of D.W.5 but the court below at page 58 said:

“It is, therefore, not impossible the Ojora family continued notwithstanding the acquisitions, for inexplicable reason, to exercise their right over the land as customary overlord or landlord. There is nothing in exhibit AA5, AA6 and AA11 coupled with the testimony of the fourth defence witness which could inure to the first set of appellants, if it is remembered that appellants’ occupation, according to the respondents, is that of a customary tenant. The witness also did not touch upon exhibit AA11.

I agree it is puzzling for a person who claims exclusive title to a piece of land shown in exhibit A, and has been exercising right of ownership as per the 1918 survey plan, for 500 years would turn around in 1925 and take a lease of a portion of the land in exhibit A. I have said my bit on this part earlier in this judgment and do not propose to say anything further hence I be charged of speculating and am not given to speculation: or Orhue v. NEPA {l998} 5 SCNJ 128. There is, however, no evidence excluding the possibility of the colonial government providing the respondents with resettlement on their own land. The propriety of the respondents using the remaining land outside the portion given to them in 1925 or otherwise is not in issue in this appeal. It is also not open to the defendants to cry; it is for the acquiring authority to protest. This is because trespassers such as respondents, without so deciding, can maintain an action against the whole world including the appellants except the true owner. See Amakpor v. Obiefuna [1974] 1 All NLR (Pt. 1) 119, [1974] NMLR 331.”

The above views of the court below ought to be considered along with the findings of fact made by the trial court. At pages 228-230 of the record of proceedings the trial court said:

“The first set of defendants – 1st to 5th , 7th to 11th, 15th and 16th defendants forms the group that now describe itself as the ‘Iganmu Community’ and the ‘Ilupeju/Iganmu United Movement Group’ in recent documentation and correspondence which began to surface from about 1965 upwards. From these documents and the evidence of the 8th and 9th plaintiffs, witness, it is clear that the membership of this group consisted of the descendants of customary tenants who had been placed on the land by the Ojora Chieftaincy Family and who had paid tribute in the form of farm produce and later rent, as evidenced by the documentary records of the Ojora Chieftaincy Family dating back some 70 years or more. The documents are Exhibits E, F, F1, G, G1, G2, J, J1,H, HI, K, K1, L, L1, L2, M, N, N1, 0, P, Q, Z, ZI, Z2, AAl, AA@, AA3, AA4, AA7. All that the defendants have said in response to these Exhibits was that they knew nothing about them and their ancestors never told them about them. I accept the evidence of the 9th Plaintiffs’ Witness and other witnesses who belong to the families who were and are still tenants on the land that the Ojora Chieftaincy extracted farm produce from tenants until 1922 when they began to collect cash, and that they issued receipts to them and other tenants. The letter Exhibit 9 written in 1926 to the then Bale of Iganmu, a brother of the original 1st defendant is clear confirmation of the rights of ownership exercised by the Ojora over their lands.

Exhibits R and S, the Minutes of the meeting of the first set of defendants and their letter of apology to Chief Ojora made it abundantly clear that up till 1965 the Iganmu Community’ and the persons describing themselves by other names recognized the ownership rights of the Ojora Chieftaincy Family over Iganmu and recognized the right of Chief Ojora as the consenting authority whenever a Bale is to be chosen over any part of their lands including the land in dispute.

Exhibits R and S constitute a most damning combination of admissions of the overlordship and Ownership rights of the Ojora Chieftaincy Family or the Ojora lands at Iganmu. It is clear to me that the Ojora Chieftaincy has exercised ownership rights over the land in dispute from time immemorial. They were able to produce the supporting evidence of their boundary men in respect of the whole land. The defendants were not even able to suggest to these witnesses 1st Plaintiff Witness, 2nd Plaintiff Witness, 3rd plaintiff Witness, and 7th Plaintiff Witness – that their evidence was untruthful, much less produce evidence of boundary men of their own. It is of course literally true, that they called the 6th Defence Witness to say that the Animashaun families were their boundary men. As I said earlier on, I do not accept his evidence and I consider it a disaster for the defence.

Again, there was evidence of the Laniyonu Family asking for land from the plaintiffs again in recent times. (See Exhibits V and W) which confirms the evidence of the plaintiffs’ witnesses in relation not only to Laniyonu Village but in respect of other villages, that the Ojora Family were exercising acts of ownership over the lands in Iganmu.

It is apparent from the evidence, both oral and documentary, produced at the trial that many tenants of the Ojora Family whose ancestors and themselves had been acknowledged tenants of the plaintiff have, with the sudden economic and industrial development in the area, and the prospect of their making money for themselves, first as land agents of Chief Ojora, turned round (when this prospect vanished with the refusal of Chief Ojora) and claimed to be new land owners, and to deny the overlordship of Chief Ojora. They banded themselves together under a new banner and now claim ownership under the aegis of the family of Oke whom the Ojora sent to Iganmu to help collect rents (but not as Bale) after the passing of Osho Cole (Osho-Offin), the first Bale. That the Ojora refused to approve Gafaru Bello as the next Bale is confirmed by Exhibits R and S”

It is the contention of the appellants’ counsel that exhibits R and S referred to in the judgment of the trial court were not admissible.

I think that the 1st – 12th appellants have merely tried to make a mountain out of a mole hill concerning exhibits R and S. These were documentary evidence tendered by the plaintiffs/respondents to show that the 1st to 12th appellants had held a meeting with the plaintiffs/respondents’ family whereat they acknowledged the overlordship of the family over the

land in disputes. The minutes exhibit ‘R’ were not signed by the maker as they should be. Exhibit’S’ is a letter said to have been written by the 1st – 12th appellants to apologize over their attempt to appoint a Bale for Iganmu village without the concurrence of the plaintiffs/respondents’ family. I do not consider exhibits R and S inadmissible in evidence but being documents not bearing the signatures of the makers, they should attract little or no weight. In reacting to the argument of the 1st to 12th appellants before it, the court below at page 52 of the record observed:

“Exhibits R is the minutes of the meeting between the representatives of first set of appellants and the respondents at which the former requested for favours which tend to acknowledge the over-lordships right of the respondents over the land in dispute. And when they went behind the backs of the respondents to achieve their ambition the latter obstructed their plan to have one of their members appointed Baale of Orile Iganmu. Hence an exhibit S was written conveying the tenants’ apology to the respondents. Exhibits V and W are respectively minutes of meeting between Laniyonu family and the respondents whereby the Laniyonu family was seeking re-grant to them of pieces of land previously granted to their ancestor. It is settled that where there is oral and documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony. See Kimdy v. Military Gongola State (sic) (1988) 2 NWLR (Pt. 77) 445 and Fashanu v. Adekoya (1974) 6SC.83.”

I agree with the reasoning above of the court below. The 1st to 12th appellants have in my view deliberately overlooked the overwhelming evidence against them in support of the plaintiffs/respondents case. There was the evidence called by the plaintiffs/respondents of their boundary owners. There was the fact that the plan of the land in dispute tendered by the plaintiffs/respondent Exhibit’ A’ was made by Herbert Macaulay in 1918. There was the deed Exhibit AA5 which shows that in 1925, the colonial Government acquired a parcel of land from the plaintiffs/respondents which falls within the land depicted in exhibit’ A’. There was the fact that the 17th to 23rd defendants before the trial court agreed that the radical title in the land in dispute was vested in the plaintiffs/respondents’ family. The 17th to 23rd defendants unsuccessfully tried to show that the plaintiffs’ family sold the land to them. As to the tenancy of the 1st- 12th appellants, P.W.9 at pages 59-60 of the record testified thus

“Tokosi family were paying customary rent (Isakole) to my family from time to time. We even issued receipt to them. This is the receipt issued to them when payments are made. (tendered, objection raised by Mr. Dosunmu on the ground that the document is not pleaded. There is no notice to produce the original served on us. Mr. Sofola SAN also objects to the admissibility of the document. Mr. Adamu also objects to the admissibility on the grounds stated by the two counsel. Mrs. Okunola submits that she is tendering counterfoils and do not need to serve any notice to produce. I will however submit that the document be tendered for identification. Mr. Dosunmu objects to it being tendered for identification. Mr. Sofola associates himself with that objection and so is Mr. Adamu. Court: Tendered in and marked ‘Rejected’). Adisa Saidi’s father was a tenant on our land at Said Village. His father was paying customary rent (Isakole) to us. Receipts were issued to them after payments. The counterfoils are kept in our archives. These are the counterfoil receipts issued to them. Mr. Dosunmu objects to the document being tendered as t

was not pleaded. Mr. Sofola submits that he has no objection. Mr. Adamu has no objection. Tendered, marked Exhibits II & III. I know Daniel Savage. He is one of our tenants in Savage Village, Iganmu. I also know the 3rd and 4th defendants. They are descendants of Daniel Savage.

They are all tenants of my family and they were formerly paying Isakole (customary rent). From our archives, I got the counterfoils of the receipt issued to them. This is one of the counterfoils issued to them. Tendered, no objection, admitted and marked Exhibit J. This is also one of the counterfoil receipts. Tendered, no objection, admitted and marked Exhibit n. I also know Lawal. His father was a tenant on our land at Ajegbe Village. They paid rents to us and we keep the counterfoils after issuing receipts to them. This is one of the counterfoils. Tendered, no objection, admitted and marked Exhibit J2. I also know the 16th defendant Alhaji Nurudeen Tokosi (substituted for Nimota Bankole). His grandfather Pa Bankole was a tenant on our land known as Bankole Village (otherwise known as Iyalode). Both of them bought land from us for use. They were husband and wife and they got land from us. They were paying Isakole (customary rent) to our family. We issued receipts to them and we kept the counterfoils. Tendered, no objection, admitted and marked Exhbit K. This is also one of the counterfoils of the receipts issued to the father of the 5th defendant. The father was Lawani Ajagbe.

Tendered, no objection, submitted and admitted as Exhibit K1. I also know Tinubu Village. It is part of…..issued receipts to them. The counterfoils are kept by us. This is one of such counterfoils. Tendered, no objection, admitted and marked Exhibit L. This is also one of the counterfoils of the receipts issued to one of the descendants of Tokosi on our land. Tendered, no objection, admitted and marked Exhibit L1. This is one of the counterfoils of the receipts issued to Rufai Igboboji who is the father of the 15th defendant. Tendered, no objection, admitted and marked Exhibit L2. The land they got from us is at Abule Tapa (Tapa Village). I know the 11th defendant. His father was one of our tenants at Coker Village. The father’s name is Afidipote. The father was paying Isakole to us and when Isakole was abolished he was paying rent to us. This is the counterfoil of the receipt of the rent issued by my family to them. Tendered, no objection, admitted and marked Exhibit K1. This is also one of the counterfoils of the receipts issued to the father of Ganiyu Animashaun. Tendered, no objection, admitted and marked Exhibit N. I know Abu the father of the 2nd defendant. Yinusa Abu. He got land from us and was paying rent and receipts were issued to him. This is one of such receipt issued to him. I mean the counterfoil for the receipt. Tendered, no objection, admitted and marked Exhibit N1. He got land from us at Aloko Village. I also know Lawani Coker. He got land from us at Coker Village. He was paying rent and receipts were being issued to him after Isakole was abolished. This is the counterfoil of the receipt we gave him. Tendered, no objection, admitted and marked Exhibit O. I know Banjoko Oso Olodo. He is the father of Oso Longe. They took land from us at Oso Olodo Village. This is the counterfoil of the receipt issued by us to Banjoko Osho Olodo for rent paid to us by him for our land. Tendered, no objection, admitted and marked Exhibit P. I also know Alaba Cole. He is the father of Oso Cole. They took land from us and were paying us rent after the abolition of Isakole. This is the counterfoil of the receipt issued by us to Aloba Osunofin. Tendered, no objection, admitted and marked Exhibit OQ. I am able to identify the villages on Exhibit A, showing the villages on our land, (Exhibit A shown to the witness and he mentioned the villages.) I can see Tapa Village, Aloko Village, Oshunofm Village, Tokosi Village, Orile Iganmu, Coker Village, Tinubu Village. All these villages are part of the land in dispute and they form part of our land. There is no Bale of Orile Iganmu now. The first Bale was Osho Cole. After Osho Cole was Bello. After Bello was Abudu Bello. My family has to approve the appointment of the Bale and we are the competent authority. The Bale represents Chief Ojora in the village and collects rents from the tenants and pay it to me. During the time of Isakole he does the same thing.”

It ought to be borne in mind that the plaintiffs/respondents’ case was that the 1st to 12th appellants were their customary tenants. The finding of the trial court which was affirmed by the court below was that the 1st to 12th appellants were the customary tenants of the Plaintiffs/respondents. There was adequate evidence on record to support these finding and these being concurrent findings on an issue of fact, this Court will not interfere. In Kale v. Coker [1982] 12 SC.255 at 271, this Court per Obaseki JSC observed: “This Court will not in the absence of special circumstances indicating obvious errors in the concurrent finding of fact by two lower courts allow the question of fact to be re-opened. See Mogo Chinwendu v. Nwanegbo Mbamali & Anor (1980) 3-4 SC. 31 at 75.

Lamai v. Orbih (1980) 5-7 SC.27

Ikpe Ibodo v. Enarofia & Ors. (1980) 5 SC.42 at 4.

Victor Woluchem v. Simon Gudi (1981) 5 Sc. 319 at 326-330.

The appellant has failed to show any special circumstances which establish that it is in the interest of justice to reopen the question. The Supreme Court has repeatedly pointed out that it will interfere only where not to do so will occasion a substantial miscarriage of justice. BarcAkpere v. lays Bank of Nigeria Ltd. & Anor. (1977) 1 S.C.1. The appellant has failed to satisfy me that there has been a miscarriage of justice in this case.”

There was the appellants’ argument that the colonial government acquired from the plaintiffs/respondents’ family a potion of the land in dispute as depicted on Exhibit ‘A’. In Dada v. Ogunremi [1967] NMLR 181, this Court per Coker JSC held that in a claim for declaration of title, where there is evidence before the trial court that the ownership of the land in dispute is in another person who is not a party to the proceedings, the court would refuse to grant a declaration of title. But in this case we have a situation where the evidence accepted by the court indicates that the land in dispute was granted to the 1st to 12th appellants as customary tenants. It is therefore not open to the appellants to argue that the ownership of the land granted to them by the plaintiffs/respondents was in another party not before the court, since the trial court had found that they were customary tenants to the plaintiffs/respondents. That would amount to granting them the license to deny their grantors’ title. They did not derive their possessory rights from the colonial government or any other government. In Anukanti v. Ekwonyease [1978] 1 SC37, this Court held that where a party obtains possession of land from one person, he could not rely on title vested in another to defeat through a plea of jus tertii his grantor’s title. Indeed the argument of the appellants that the land was acquired from the plaintiffs/respondents in 1925 only reinforces the ownership of the plaintiffs/respondents because if the land indeed belongs to the appellants as they contend why did the colonial government acquire the land from the plaintiffs/respondents and not the appellants and why did the appellants not challenge the grant of the land back to the plaintiffs/respondents on tenancy terms. It is my firm view that the appeal of the appellants before the court below was rightly dismissed by that court. On the facts accepted by the two courts below, there could have been no other course open to them other than to uphold the case of the plaintiffs/respondents.

The issues raised by the 13th appellant will be considered together. I observed earlier in the judgment that the 13th appellant pleaded that the land in dispute had belonged to his ancestor Yesufu Adeosi. It was pleaded that Yesufu Adeosi’s ancestors settled in Iganmu at a time when the place was a jungle with no sign of habitation. But there was the evidence which the trial court accepted that the 13th appellant was a member of the group created by all the customary tenants of the plaintiffs/respondents solely for the purpose of revolting against the plaintiffs/respondents by denying the title through which they and their ancestors came on the land. At page 233-234 of the record, the trial court said concerning the 13th appellant:

“Although the 24th defendant has pleaded and told a story different from that of the 1st to 5th, 7th to 11th, 15th and 16th defendants about how his ancestors first settled on the land in dispute, the oral evidence given on behalf of the plaintiffs as well as the documentary evidence show beyond doubt that the original 17th defendant, Tesilimi Adewusi, a descendant of Yesufu Adewusi was not only an ordinary customary tenant of the Ojora Chieftaincy Family like the other defendants, he also joined those defendants in the concerted rebellion of the Ojora tenants by becoming active member of the so called Iganmu Community and the Ilupeju/Iganmu United Movement Group. Exhibits R and S, minutes of the meeting of, and a copy of a letter by this group of new land adventurers at Iganmu have betrayed them as self-confessed tenants of Chief Ojora.

The case of the 24th defendant on the evidence was that his ancestor Adewunmi founded Orile Iganmu. He was the grand-father of Yesufu Adewusi who was born on the land and who settled on it and farmed it alone with two other parcels of land he had acquired at Iguru and Tanmeda. He has since surveyed the land and conveyed it to a company named Laguda Adeosi Housing Estate. The Deed of Conveyance is Exhibit AAS. He claims that his family had, as an act of compassion allotted various portions of the land to Sierra Leonian returnees who have settled thereon and these are now the villages known as Coker, Tapa, Takosi, Sabisi, Osho-Offin, Osho Olodo an Laniyonu Villages. When he was asked how his grandfather inherited the land, he answered that his grandfather had settled on the land when no one was there. This piece of evidence was inconsistent will his pleading that his grandfather had inherited the land from his ancestors.”

The court below, considering the case made by the 13th appellant before the trial court said-

“It is manifestly clear that the 24th defendant, now 13th appellant, while supporting the case of seventh defendant clandestinely brought an action openly seeking a claim of title for the same land and for the family of Yesufu Adeosi. It, therefore, seems to me that there is substance in the submission of Chief Ajayi, SAN that, as Tesilimi Adewusi was an active member of the Ilupeju/Iganmu United Movement, whose activities were referred to in the meetings with Chief Ojora in exhibits R and S their acceptance of overlordship of Chief Ojora was also evidence against 13th appellant, who had closely identified himself with actions of Tesilimi Adewusi, whose interest in the land the 13th appellant admitted as the same as his own. Consequently the finding of the learned trial judge that Tesilimi Adewusi and the other persons represented by the

first set of appellants were customary tenants of the Ojora family was equally a finding against the 13th defendants appellants who admitted attendance of meeting of the group as well as an identity of interest will the original seventh defendant. Twenty-fourth defendant admitted that seventh defendant was consulting him as the head of the family and that he once attended their meeting. A statement oral or written made by a party to civil proceedings and which statement is adverse to his case or interest is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement.

See Seisemograph Service Nigeria Ltd. V. Chief Keke Ogbenekwe Eyaufe (1976) 9-10 SC 135, 146; (1976) F.NR. 162 and Madumure v. Okafor (1996) 3-4 MAC 165.”

I am in agreement with the findings of the two courts below that the 13th appellant was acting in league with 1st to 12th appellants and had merely come into the proceedings to make a case different from the 1st – 12th appellants by way of a hedge in the hope that one of the two would succeed.

I have no reason to interfere with the concurrent findings of the two courts below.

The 13th appellant’s counsel has argued that the plaintiffs/respondents did not plead their traditional history in their Amended Statement of Claim. It seems to me that the 13th appellant’s counsel did not advert his mind to the state of the law as to the ways in which the ownership of land may be proved. In Piaro v. Tenalo [1976) 12 SC31 at 40-41, this court per Obaseki Ag. JSc. observed:

“It is now settled law that there are 5 ways in which ownership of land may be proved and only two of the 5 methods were adopted by the respondents in this case. They are:

1. Proof by traditional evidence. (Abinabina v. Chief Enyimadu (1953) A.C 207 at 215-216); and
2. Proof of acts of ownership. This is normally provided by acts of person or persons claiming the land such as selling, leasing, renting out all or part of the land or farming on it or on a portion of it or otherwise utilizing the land beneficially; all evidence of ownership provided they extended over a sufficient length of time and are numerous and positive enough to warrant the inference that he is the true owner Ekpo v. Ita 11 N.L.R. 68 at 69”

Similarly in Ishola v. Abake (1972) 5 S.C 321 at 329-330, Ademola C.J.N. discussing long possession as a basis of ownership of land said:

“…There is ample evidence of long possession and acts of ownership by the plaintiff and his ancestors before him extending over a sufficient length of time numerous and positive enough to warrant the inference that they (plaintiff and his ancestors) were exclusive owners of the land in dispute to bring the case within the principles laid down in Ekpo v.Ita II NL.R. 68. On this point we are of the opinion that the learned judge had enough facts before him to come to the conclusion that the plaintiff had established his title to the land in dispute.”

See also Idundun v. Okumagba (1976) 9-10 SC.227.

All the appellants made a great play out of the fact that part of the land of the plaintiffs/respondents as depicted in exhibit A (made in 1918) had been acquired by the colonial government vide exhibit AA5. Even on that supposition, the plaintiffs/respondents case is further strengthened because this shows that the land contiguous to the land in dispute has been shown to belong to the plaintiffs/respondents. In Kaiyaoja v. Egunla (1974) 12 S.C. 55, Ibekwe J.S.C. at page 63 said:

“It has been held that, in a claim for the ownership of land, the fact that the land in dispute is contiguous with other lands belonging to the plaintiff is enough to raise a probability (though not presumptuous that the land in dispute also belongs to the plaintiffs.”

Lastly is the contention of the 13th appellant that his counter-claim for declaration of title was wrongly dismissed. This contention in my view is patently unsupportable having regard to the fact that the 13 appellant admitted before the trial court that his family had transferred its interest in the land to a limited liability company which was not a party to this proceedings. At pages 232 – 233 of the record, the trail judge said concerning the 24th defendant now the 13th appellant:

“In paragraph 31 of the 2nd Further Amended Statement of Defence, the 24th defendant averred as follows:

‘In furtherance of the wishes expressed by the testator Yesufu Adeosi in his foresaid Will, the beneficiaries have taken steps to constitute themselves into the limited liability company known as Laguda-Adewusi Housing Estate Ltd. charged with the responsibility of the development of the property into a Housing Estate.’

The 24th defendant in his evidence on the 17th of January 1997 said as follows:

‘We got a conveyance to transfer the land to Laguda Adewusi Housing Estate.’

He produced the said Deed of Conveyance in evidence as Exhibit AAO. Exhibit AA9 is a Deed

executed on 25th November 1976 by the 224th defendant and five others in favour of Laguda Adewusi Housing Estate Ltd. in respect of land at 19anmu, Tanmeda, Oguru and Aguda. Having pleaded and proved that the family of the 24th defendant has divested itself of its beneficial interest in the property it is claiming in this action, can the court now grant him a declaration of title in respect of the same The 24th defendant having on his own pleadings and evidence asserted that his family have disposed of their interest in the land in dispute to third parties by virtue of a Deed of Conveyance, it becomes clear that the 24th defendant is in any case, no longer the owner of the land in dispute, even if it belonged to him. My humble view is that this court cannot therefore grant the defendant a declaration that he is owner of the same land.”

It seems to me that there existed no basis upon which the two courts below could have granted the counter-claim of the 13th appellant when on the plethora of evidence before the trial court, the ownership of the land was vested in the plaintiffs/respondents, and when in any case, the 13th appellant having admitted that the land had been conveyed by his family to a limited liability company had no further interest in the land to protect.

I am satisfied that these appeals by the 1st – 12th and 13th appellants have no merit. They were rightly dismissed by the courts below. I also dismiss them with N50,000.00 costs against each set of appellants in favour of the plaintiffs/respondents.

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SC.54/2005

Vincent U. Egharevba V. Dr Orobor Osagie (2009)

LAWGLOBAL HUB Lead Judgment Report

O. OGEBE, J.S.C

The deceased John A Osagie who has been replaced by his son Dr Orobor Osagie sued the appellant in Benin High Court over a piece of land which he had sold to him. His case was that he was allocated piece of land measuring one hundred feet by two hundred feet by the Oba of Benin in 1963.

In 1976 the appellant him for a transfer of a portion of the land measuring fifty by hundred feet. The appellant prepared a Deed of Conveyance for a portion of the land measuring a hundred by hundred feet which he mistakenly signed before noticing the discrepancy. He signed only a copy which he kept to himself and asked the appellant to go and correct the paper.

He claimed that the appellant never paid any money for the land. The appellant fraudulently prepared an agreement for the sale of the land exhibit ‘F’ and registered it.

The appellant’s case was that on the 24th of February 1976 the respondent transferred part of his land measuring a hundred fed by hundred feet to him. He negotiated the price and he was put in possession. They subsequently went to a lawyer’s office and an paid consideration for the land. The Court of Appeal dismissed the appellant’s cross-appeal without considering the issues raised therein.

The appellant was aggrieved by the decision of the Court of Appeal and appealed to this Court. The respondent was also aggrieved and cross-appealed to this Court.

Both sides exchanged briefs; The learned counsel for the appellant formulated 2 issues for determination as follows:

“(a) Whether the Court of Appeal was right when it held that there is no oral or documentary evidence from the Appellant to show that he offered a clear and conclusive consideration for the purported land he said he purchased from the Respondent

(b) Whether the Court of Appeal was right in not considering the substance of the Cross-Appeal

of the Appellant before dismissing same”

The learned counsel for the respondent formulated 2 issues for determination in the main appeal as follows:

“1. Whether the learned Justices of the Court of Appeal were right when they held that the Appellant failed to discharge the burden of proof placed on him to show that he paid consideration for the land he purportedly purchased from the Respondent

2. whether the non-consideration of the issues raised in the cross-appeal of the Appellant by the learned Justices of the Court of Appeal occasioned any miscarriage of Justice

For the Cross-Appeal he formulated one issue which reads as follows:

“Whether having allowed the Respondent’s appeal, the learned Justice of the Court of Appeal ought to have granted the relief sought by the Respondent/Cross-Appellant in paragraph 53 of the further amended statement of claim No.3 in exercise of their powers contained in Order 1 rule 19(3) and Order 3 Rule 23 of the Court of Appeal Rules, 2007

The learned counsel for the appellant filed what he called appellant’s reply brief to the respondent’s cross-appeal in which he adopted the issue raised in the cross-appellant’s brief. The correct appellation should have been appellant/Cross-Respondent’s brief.

The learned counsel for the appellant submitted that the Court of Appeal was wrong when it took the position that there was no oral or documentary evidence that the appellant offered consideration for the land he purchased from the respondent. He said that exhibit F. the registered conveyance between the parties contained the consideration which the appellant paid for the land.

The learned counsel pointed out that the issue before the Court of Appeal was whether or not the appellant as respondent before that Court proved due execution and validity of the Deed of Transfer he relied upon and not whether or not there was consideration for the sale (“If the land which was erroneously considered by the Court of Appeal.

He relied on the cases of Bamgboye v. Olarenwaju (1991) 4 NWLR (pt.184) 132 & Akanni v. Ajuwon (1993) 9 NWLR (pt.316) 182,

In reply to this the learned counsel for the respondent’s appellant submitted that the pivot of appellant’s defence was the purchase and payment for a part of respondent’s land but the appellant failed completely to lead any evidence in support of his averment relating to payment of consideration, He said that it is settle: law that’ mere averment without evidence in proof of the facts is no proof of the facts unless they are admitted. He referred to the case of Adegbiie v. Ogufeolu (1990) 4 NWLR (pt.146) 578. The learned counsel submitted that the Court of Appeal was right in holdina that consideration was not proved.

The issues canvassed before the Court of Appeal by the respondent who was the appellant in that court are contained at page 219 of the record and are reproduced here-under.

“1. Whether Plaintiff successfully proved his title to the entire piece of land measuring about 100 feet by 200 feet referred to in Exhibit ‘C’ and therefore entitled to the declaration sought

2. Whether Exhibit ‘G’ and ‘F’ were caught by the plea or doctrine NON-EST-FACTUM and what is the effect of the plea or doctrine on the entire transaction
3. Whether the Defendant/Respondent proved due execution and validity of the Deed of Transfer he relied upon to claim title to part of plaintiff/Appellant’s large parcel of land
4. Whether the learned trial Judge was right in holding that the cause of action arose in 1980 instead of 1988
5. Whether the defence of estoppel due to customary arbitration, standing by, laches and acquiescence avail the Defendant/Respondent/Cross-Appellant in the circumstance of this case

It can be seen from the issues above that none of them raised any question of non-payment of consideration for the purchased land.

Issue 3 before the Court of Appeal was on the validity of the deed of transfer which the appellant relied upon to claim part of the land. It follows therefore that the Court of Appeal was in gross error in raising the issue of non-payment of consideration for the purchased land which was not an issue before it as a basis for allowing the appeal. Moreover, in the face of exhibit “F” the Deed of Transfer which had a clause acknowledging receipt of consideration for the purchased land which was signed by all the parties including the respondent/cross-appellant, the Court of Appeal was wrong to say that there was no documentary evidence to prove payment of consideration for the purchased land. It is the law that once an agreement has been committed into writing and executed by the parties it is binding on them and you cannot use parole evidence to alter its terms. Vide EZEMBA V. IBENEME (2004) 14 NWLR (Pt.894) 617

The trial Court meticulously examined exhibit- “F” and the respondent’s signature therein with his admitted signature in other documents before the court and came to the conclusion that there was no difference.

A pertinent question to ask is why the respondent would allow the appellant to build a house on his land in 1980 without paying anything for it and live there until 1988 before he woke up to his rights. The answer is obvious that no reasonable person in his normal faculties would allow that to happen. It is therefore my view that first issue succeeds.

On the second issue of the main appeal the learned counsel for the appellant submitted that the Court of Appeal was wrong in not considering the substance of the issues raised in the cross-appeal before dismissing the cross-appeal.

In reply the learned counsel for the respondent submitted that there was no substance in the cross-appeal and there was therefore no miscarriage of justice in the failure to consider it.

This Court has said it over and over again that any issue properly raised and canvassed before a trial court or an’ appellate court must be given a fear-hearing and considered, This is so in order to avoid a miscarriage of justice, See Ugbodume v. Adiegbe (1991) 8 NWLR (pt.209) 274.

The Court of Appeal ought to have considered the cross-appeal ad given reasons for dismissing it However, since the first issue has been resolved in favour of the appellant this second issue is merely an academic exercise.

On the cross-appeal it is the contention of the learned counsel for the respondent/cross-appellant that the Court of Appeal erred in law when it failed to grant the reliefs sought by him in paragraph 53 of the further, amended statement of claim.

I agree with their submission, The respondent sought some reliefs from the High Court which were denied by the trial court, He went on appeal to the Court of Appeal which reversed that judgment. The respondent’s claim could not be left hanging in the air. The Court of Appeal ought to have made consequential orders granting him any reliefs which it considered were supported by the evidence before the trial court.

It would appear that the Court of Appeal’ did not give enough consideration to the issues before it in its rather hasty and sketchy judgment. However, in view of the fact that I have in this judgment decided that the Court of Appeal was wrong in reversing the judgment of the trial court the cross-appeal before this court is now of no relevance. In other words, it does not serve any useful purpose.

Accordingly the appeal is allowed and the judgment of the Court of Appeal is hereby set aside while the judgment of the trial court is restored. The cross-appeal having lost its significance is hereby dismissed. The respondent/cross-appellant shall pay costs of N50,000.00 to the appellant\cross-respondent.

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SC.266/2003

Mrs. Ethel Onyemaechi David Orji V. Dorji Texiles Mills (Nig) Ltd (2009)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, J.S.C.

The appellant, as applicant, asked for the following reliefs at the Federal High Court, Port Harcourt, in an originating summons:

(i) That an Extraordinary General Meeting of the company and the Board may be convened by the court for the purpose of considering and if thought fit passing the Resolution as set forth in the schedule hereto;

(ii) That the court may give directions as to the manner in which the said meeting is to be called, held and conducted and all such ancillary and consequential directions as it may think expedient.

(iii). That the court may direct that applicant be allowed to attend any general meeting or other meeting of the 1st Respondent and its board and to speak and vote on any resolution before the meeting and to participate in the business and activities of the 1st Respondent company without obstruction, restraint or interference by the 2nd and 3rd respondents, their servants, agents, privies workers howsoever.

(iv) That the court may direct that applicant be allowed right of entry into the offices and premises of 1st respondent to attend meetings and participate in the business, activities and affairs of the 1st respondent company.

(v) That the court may declare that applicant as director and share holder of the 1st Respondent company is entitled to all proprietary rights and profits accruing to the 1st Respondent company.

(vi) That the costs of this application be provided for.”

The appellant swore to a 17-paragraph affidavit in support of the originating summons. The 3rd respondent swore to a counter-affidavit of 10 paragraphs. The appellant also swore to further and better affidavits.She exhibited Particulars of Director shares allotted, Memorandum and Articles of Association and all that. The 3rd respondent also swore to a further counter-affidavit.

The learned trial Judge did not see any merit in the case of the appellant. Dismissing the originating summons, the learned trial Judge said at page 102 of the Record:

“In conclusion, after a careful consideration of all the documentary evidence before me, in the instant case, I hold that the present Application fails on the ground that the Applicant has not satisfactorily proved before this Court that she is a shareholder, member/director of the Respondent Company entitled to seek for the relief claimed in the Originating Summons pursuant to the provision of Sec. 223 of the Companies and Allied Matters Act 1990, It is hereby dismissed.”

Dissatisfied, she appealed to the Court of Appeal. That court also dismissed the appeal. The court in a majority judgment said at page 158 of the Record:

“From all I have said in the judgment, I find the appeal lacking in merit and I hereby dismiss it.”

Still dissatisfied, the appellant has come to this court, Briefs were filed and duly exchanged, The appellant formulated the following issues for determination:

“1. Whether the Court of Appeal (per Ogebe, JCA and Nsofor, JCA) was right in affirming the decision of the Court of first instance that Appellant failed to prove she was a member and shareholder of the two companies in question

2. Whether the Court of Appeal was right in holding that the onus of producing Register of the Companies wrongly placed on the appellant by the Court of first instance, did not affect the substance of the Judge’s conclusion that the Appellant failed to prove she was a member and shareholder of the two Companies”

The respondents adopted the above issues formulated by the appellant. They also gave notice of preliminary objection that “the grounds of appeal are incompetent in that the particulars thereto are mere arguments or narratives contrary to Order 8 Rule 2(3) of the Supreme Court Rules 1985 (as amended). The cases of Adah v. Adah (2001) 5 NWLR (Pt. 705) 1; Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16 and Amadi v. Okoli (1977) 7 SC 57 were cited in support of the preliminary objection. Learned counsel for the appellant also filed a Reply Brief.

Arguing the appeal, learned Senior Advocate for the appellant, Chief Amaechi Nwaiwu, submitted on Issue 1 that the Court of Appeal was wrong in affirming the decision of the court of first instance that the appellant failed to prove that she was a member and shareholder of the two companies. Counsel referred to page 3 of the Record where the appellant averred that she is a member of both companies. He also referred to pages 25 and 71 of the Record for the evidence in proof of the originating summons. Counsel relied on sections 26(1); 79(1); 83(1)(a) of the Companies and Allied Matters Act, 1990; Gower’s Principles of Modern Company Law, 4th edition and the following cases Starcolar v. Adeniji (1972) 1 SC 202 at 210; Ezeonwu v. Onyechi (1996) 3 NWLR (Pt. 438) at pages 503 and 504; Baytrust Holdings Ltd. v. I.R.C. (1971) 1 WLR 1333 at 1355 and Evan’s case (1867) LR 2 CH App. 427. Learned counsel submitted that the respondents admitted that the appellant was gratuitously allotted shares in the companies. He contended that facts admitted need not be proved.

Learned Senior Advocate submitted that the appellant as a member and shareholder of both companies had the legal right and standing to bring the application, the subject matter of the appeal under section 223 of the Companies and Allied Matters Act. Counsel argued that the appellant established that she was a member and also a shareholder of the two companies. He contended that the majority judgment did not advert to the legal position on the proof of membership and shareholding. He commended the minority judgment of the Court.

Learned Senior Advocate urged the court to interfere with and set aside the findings of both the court of first instance and the Court of Appeal. He cited Chikwendu v. Mbamali & Anor. (1980) 3-4 SC 291; Woluchem v. Gudi (1981) 5 SC 291; Ogbechle v. Onachie (1988) 1 NWLR (Pt. 70) 370 at 390-391; Ojomo v. Ajao (1983) 9 SC 22 at 53; Onabruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799 and Ogundipe v. Awe (1988) 1 NWLR (Pt. 68) 118 at 127.

Learned Senior Advocate submitted on Issue 2 that the onus of producing the Register of Companies wrongly placed on the appellant by the court of first Instance actually affected the substance of the Judge’s conclusion that the appellant failed to prove that she was a member, shareholder and director of both companies. Relying on sections 83(1) and 84(1) of the Companies and Allied Matters Act, 1990, section 98(1) of the Evidence Act, 1990; Ezeonwu v. Onyechi (supra) and Iphie v. Plateau Auditing Co. (1957) NRNLR 213, learned Senior Advocate submitted that the onus of producing the Register of Companies was on the respondents who had the duty to produce same. Relying further on section 149(d) of the Evidence Act and the case of Odili v. The State (1977) 4 SC 1, learned Senior Advocate urged the court to hold that the respondents did not produce the Register because had it been produced it would have been unfavourable to the decision of the court of first instance and the Court of Appeal, deprived the appellant of the benefit of the Judge properly applying the law. Counsel urged the court to resolve the issue in favour of the appellant by holding that the Court of Appeal was wrong in holding that the anus of producing the Register of the Companies was on the appellant. He urged the court to allow the appeal.

Learned counsel for the respondents, Chief Donald Udogu, submitted on Issue 1 that the appellant was not a member, director or shareholder of any of the companies. Citing the case of Oil Field Supply Centre Ltd. v. Johnson (1987) 2 NWLR (Pt.58) 625, learned counsel contended that the onus was on the appellant to establish her membership of the companies. Counsel argued that the appellant, as a matter of law, must stand or fall on the strength of her assertion that the shares in the two companies were allotted to her and she paid for them. He cited Emegokwe v. Okadigbo (1977) 4 SC 113.

On the issue of admission on the part of the respondents in respect of the shares by the appellant, learned counsel referred to paragraph 5 of the counter-affidavit where it was deposed that “the consideration for which such shares have been issued is as follows: CASH”. Accordingly, the appellant cannot rely on gratuitous allotment, which is not her case, learned counsel argued. He maintained that it was when the appellant could not pay cash for the shares after allotment that her name was removed as member of the two companies on 23rd March 1993 as per Form C07. He referred to pages 11, 13, 14, 61, 62 and 63 of the Record on the removal of the appellant and contended that she did not challenge her removal and hence stands removed at all times.

On Issue 2, learned counsel quoted what Ogebe, JCA (as he then was) said at page 157 of the Record and submitted that the judgment of the Court of Appeal to the effect that the appellant who was validly removed from the companies on 23rd March, 1993, failed to prove that she was a shareholder, member and director of the two companies. He urged the court to dismiss the appeal.

Learned Senior Advocate in his Reply Brief submitted that the preliminary objection was not well taken as the grounds of appeal and their particulars fully comply with the provisions of Order 8 Rule 2(3) of the Supreme Court Rules (as amended). He cited Osasona v. Ajayi (2004) 14 NWLR (Pt. 894) 545 and Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt. 162) 265.

Learned Senior Advocate submitted that the grounds of appeal and particulars therein in the Notice of Appeal which allege error in law are clearly stated and that there are no arguments or narratives as alleged by the respondents. Counsel urged the court to dismiss the preliminary objection.

On the merits of the Respondents Brief, learned Senior Advocate submitted that counsel for the respondents did not put the case of Oil Field Supply Centre Ltd v. Johnson (supra) in its correct perspective and cited the dictum of Oputa, JSC, in some length. He pointed out that the respondents contradicted themselves when on one hand they admitted to gratuitous allotment of shares to the appellant and on the other hand maintained that the gratuitous allotment was tied to cash payment.

In his reply to Issue 2, learned Senior Advocate submitted that the respondents missed the point in the argument of Issue 2. He tried to re-argue the issue. I do not think he can do that in his Reply Brief.

Counsel urged the court to set aside the concurrent findings of the two courts as the findings resulted in substantial miscarriage of justice. He cited Ezeonwu v. Onyechi (supra); Benmax v. Austin Motor Co. Ltd. (1956) AC 370 and Lion Buildings Ltd. v. Shodipe (1976) 12 SC 135 at 153.

Let me take first the preliminary objection. Order 8 Rule 2(3) of the Supreme Court Rules reads:

“The notice of appeal shall set forth concisely under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”

I have carefully examined the grounds of appeal and I am of the view that the preliminary objection is thoroughly misconceived and misplaced. The grounds of appeal do not offend Order 8, Rule 2(3) of the Supreme Court Rules. I do not see any arguments. I do not also see any narratives. The objection accordingly fails.

The appeal is on the burden of proof in our law of evidence. The main issue is whether the burden of proof is on the appellant or on the respondents. And that takes me to the Evidence Act

Section 137 of the Evidence Act provides for the burden of proof in civil cases. The burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings See section 137(1). If such party adduces evidence which ought reasonably to satisfy a court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively until all the issues in the pleadings have been dealt with. See section 137(2). Where there are conflicting presumptions, the case is the same as if there were conflicting evidence. See section 137(3).

By the section, the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the court will give judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party by virtue of subsection (2). And so the burden changes places almost like a chameleon or the weather cock in climatology until all the issues in the pleadings have been dealt with.

Section 137(1) appears to be an enactment of the common law rule of qui affirmat non ei qui negat incumbit probatio. The rule was invoked by Lord Maugham in Constantine Line v. Imperial Smelting Corporation (1942) AC 154, where the learned Judge said:

“The burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is Ei qui affirmat non ei qui negat incumbit. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reason.”

Phipson justified the rule by saying that it is adopted principally because it is but just that he who invokes the hand of the law should be the first to prove his case; and partly because, in the nature of things a negative is more difficult to establish than an affirmative. See Phipson on Evidence, Sweel and Maxwell (12th Edition) page 36.

The burden is on a plaintiff to show that he is entitled to the reliefs sought. That burden does not shift to the defendant. See Elias v. Disu (1962) 1 All NLR 214; The Nigerian Safety Insurance Co. Ltd v. Zaria Cooperative Credit Marketing Union Ltd. (1978) 1 NCA 1; Echeazu v. Awka Community Council (1980) 7 CA (Part 1) 103; Combined Trade limited v. All States Trust Bank limited (1998) 2 NWLR (Pt.576) 56.

After all, a plaintiff should not rely on the weakness of the case of defendant but rather on the strength of his case as proved in court. See Attorney-General of Anambra State v. Onu Selogun – (1987) 4 NWLR (Pt. 66) 547; Nirnanteks Associates v. Marco Construction Co. Ltd. (1991) 2 NWLR (Pt. 174) 411; Tokirni v. Fagite (1999) 10 NWLR (Pt. 624) 588; Olowu v. Olowu (1985) 3 NWLR (pt. 13) 372. Accordingly, a plaintiff who fails to prove the relief or reliefs sought goes home without victory. There are no two ways about it. Our adjectival law is as constant as that, like the sun rising from the East and setting in the West.

The burden of proof in a case cannot be determined in vacuo but in relation to the issues raised in the pleadings. Where a fact is pleaded and no evidence is adduced to prove the fact pleaded, no onus is cast on the other side to disprove the fact not proved.

So far so good on the law. What is the factual position in the case I have reproduced in this judgment the reliefs sought. I will not repeat myself. All I should say is that the reliefs presuppose appellant’s membership of the 1st respondent company, either as a director or as a shareholder. This is clear from the section of the Companies and Allied Matters Act, 1990 under which the reliefs are sought. It is section 223 of the Act. The section reads:

“(1) If for any reason it is impracticable to call a meeting of a company or of the board of directors in any manner in which meetings of that company or board may be called, to conduct the meeting of the company or board in the manner prescribed by the articles or this Act, the court may, either of its own motion or on the application of any director of the company or of any member of the company who would be entitled to vote at the meeting, in the case of the meeting of the company, and of any director of the company in case of the meeting of the board, order a meeting of the company or board, as the case may be, to be called, held and conducted in such manner as the court thinks fit, and where any, such order is made, may give such ancillary or consequential directions as it thinks expedient.

(2) It is hereby declared that the directions that may be given under subsection (1) of this section shall include a direction that one member of the company present in person or by proxy in the case of a meeting of the company, and one director in the case of the board may, apply to the court for an order to take a decision which shall bind all the members.

(3) Any meeting called, held and conducted in accordance with an order under subsection (1) of this section, shall for all purposes be deemed to be a meeting of the company or of the board of directors duly called, held and conducted.”

It is clear from the above section and totality of the reliefs sought that the appellant claims to be a director and a member of the respondent company. There cannot be any argument about that. Section 223(1) clearly provides that a director or a member of a company can initiate an action in a court of law for the purposes of calling or conducting a meeting.

In view of the fact that the appellant based her action and sought the reliefs under section 223 of the Companies and Allied Matters Act, the section 137(1) burden of proof is on the appellant and not on the respondents. In accordance with section 137(1) of the Evidence Act, I ask the question rhetorically: who or which of the parties will have or obtain judgment in this case if no evidence of directorship, membership or shareholding is given Can that party be the appellant No. Certainly not. Can that party be the respondents Yes, and unequivocally so. After all, the appellant claims to be a director and member of the companies and should prove her dual status in order to obtain judgment. Section 223 clearly provides for the locus standi and the appellant must prove that she has the standing to sue.

Locus standi can only arise from a right conferred on the plaintiff by the enabling law. In other words, the enabling law must confer on the plaintiff the right to sue. The requirement of locus standi is mandatory where the judicial power is constitutionally limited to the determination of a case or controversy or a matter which is defined by reference to criteria which include the legal capacity of the parties to the litigation, See Chief Dr. Thomas v. The Most Rev. Olufosoye (1986) 1 NWLR (Pt. 18) 669.

Section 137(1) and (2) enjoins the court to examine the pleadings in its search for the party on whom the burden of proof lies. See generally Elemo v. Omolade(1968) NMLR 359. As the matter was commenced by originating summons, there are no pleadings. I do not think I will be wrong to look at the affidavit in support of the summons, in the absence of pleadings. In my view, the affidavit in support takes the place of pleadings in this case. I therefore take some paragraphs of the Affidavit in Support.

“1. That I am the applicant herein.

2. That I am a member of the 1st respondent company with RC No. 67,377 having its registered office at Plot B Industrial Layout, Aba.
3. That I am director and shareholder of the 1st respondent company.
4. That the late Managing Director of the 1st respondent company namely Chief David Nwokocha Orji was my husband who died on 20/9/93.
5. That it has been impracticable and impossible to call a meeting of the 1st respondent company or of the board of directors. I have prevailed on the 2nd and 3rd respondents who are directors and shareholders of the 1st respondent several times to arrange to call a meeting of the 1st respondent but all to no avail. A copy of one of my written demands for a meeting of the 1st respondent is hereby exhibited and marked as Exhibit A.
6. That as a director and shareholder of the 1st respondent company I have an interest to speak and vote on any resolution before the meeting of the 1st respondent and its board and to participate in the business and activities of the 1st respondent without obstruction by the 2nd and 3rd respondents, their servants, agents; privies and workers howsoever.
7. That the 2nd and 3rd respondents and their privies, agents and workers have prevented me from entering the offices and premises of the 1st respondent company to transact the business of the 1st respondent.
8. That it is necessary to call a meeting of the 1st respondent company for the purpose of complying with statutory requirements concerning its minimum nominal capital and annual returns, and for deliberating upon the business, activities and affairs of the company.
9. That as a director and shareholder of the 1st respondent company, I am entitled to all proprietary rights and profits accruing to the 1st respondent company hence the need to call for a meeting of the company.
10. That the failure to call a meeting of the 1st respondent company or of the Board of Directors in a manner in which meetings of the 1st respondent company and its board are called have adversely affected my interests and rights as a member, director and shareholder of the 1st respondent company.”

The law is elementary that the burden of proof of any issue rests before evidence is gone into upon the party asserting the affirmative of the issue; but after all the evidence have been completed the burden rests on the party against whom the court at the time in question would give judgment if no further evidence was adduced. See Okechukwu and Sons v. Ndah (1967) NMLR 368.

While I concede that the burden of proof of the case does not invariably lie on the plaintiff, as it is dependent on the pleadings, I know as a matter of our adjectival law that in most cases, the burden falls on the plaintiff.

Let me also examine section 139 of the Evidence Act. It reads:

“The burden of proof as to any particular fact lies, on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in course of a case be shifted from one side to the other; in considering the amount of evidence necessary to shift that burden of proof regard shall be had by the court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively.”

By the above section, the burden can be on either party – the plaintiff or the defendant, depending on the party asserting the particular fact. The particular fact which, in my view, is the material and determining fact in this case is the claim by the appellant that she is a director and member of the 1st respondent company. This, being a particular fact within the knowledge of the appellant which she wants the court to believe in its existence, the burden is unequivocally on her to prove the particular fact. It is after the appellant has discharged the burden on her that it shifts to the respondents. Where the appellant fails to prove the particular facts in section 139 of the Evidence Act, the burden does not shift to the respondents.

Did the appellant satisfy the burden of proof placed on her by the Evidence Act And here, the burden on her is to prove that she was a director and member of the 1st respondent company which made her a director and shareholder. Let me take the evidence of the appellant. In the main affidavit in support of the originating summons of 17 paragraphs, appellant’s only exhibit is the letter she sent to the Secretary of the 1st respondent asking him to summon a meeting of Directors/Shareholders, Is that letter proof that the appellant was a Director or shareholder of the company to justify or vindicate paragraphs 2 and 3 of the Affidavit in Support I think not. A letter calling for a meeting of a company cannot by any way be regarded or taken as document or evidence of being a Director or Shareholder of a company. In other words, a letter requesting for a meeting of a company cannot metamorphose to membership of the company.

That takes me to the further affidavit in support of 6 paragraphs. The appellant exhibited two main documents as Exhibits B and C. Exhibit B, Form CO7 is the Particulars of Directors made pursuant to section 191(4) of CAMA. It indicates the name of the appellant and the number of shares allotted to her which is 10,000 ordinary shares. Exhibit B was made on 13th day of January, 1986. Exhibit C is Form CO7 also shows the number of shares allotted to shareholders, The name of the appellant is also in Exhibit C. It is written in Exhibit C that “The consideration for which such shares have been allotted is as follows: Cash.” In the Remarks column is written as follows:

“Appointed by the authority to the Memorandum and Articles of Association at a meeting held on 13th January, 1986.”

I take the further and better affidavit of the appellant at page 69 of the Record. Exhibit D is deposed to in paragraph 1 of the affidavit and exhibited. Exhibit D is the Memorandum and Articles of Association of the company. All the above documents are on Palm Garden Hotels Limited. And so Exhibits A, B, C and D are the documents relied upon by the appellant for her status in the Palm Garden Hotels Limited. So far so good for the appellant.

I now take the case of the respondents. In the counter-affidavit of 10 paragraphs sworn by the 3rd respondent, the respondents clearly joined issues with the appellant. Let me read paragraphs 1, 3, 4, 6 and 7.

“1. That I am the 3rd respondent in the above application and make this oath with the knowledge and consent of the other respondents and on our behalf.

3. That the applicant has no colour of right and/or interest in the 1st respondent company and is not entitled to any of the reliefs claimed by her and paragraph 15 of her affidavit is false.
4. That the applicant is not a shareholder, member and/or director of the 1st respondent and she is a stranger in respect thereof and is therefore not entitled to participation in the management of the 1st respondent.
5. That as at the death of the former Managing Director of the 1st respondent Chief David Nwokocha Orji, the applicant was not his wife and therefore paragraph 4 of her affidavit is false.
6. That all the members and directors of the 1st respondent have been holding normal meetings and managing the normal day to day business and affairs of the 1st respondent and paragraphs 5, 7, 10, 12 and 13 of the applicant’s affidavit are false.”

In his further counter affidavit at page 59 deposed as follows in paragraphs 4 and 5 thereof:

“4. That paragraphs 1 and 2 of the said affidavit are false, that the true position is that the applicant was gratuitously allotted some shares in the 1st respondent which she never paid for and that was all.

5. That when the applicant could not perform, she was removed on 23rd March 1993 as per Form CO7 which she exhibited to her further affidavit to the originating summons as Exhibit B.” .

The 3rd respondent deposed to and exhibited Exhibit B in paragraph 5 of the further counter affidavit. The Exhibit spreads through pages 61 to 63 of the Record: The exhibit, which is also Particulars of Directors, is dated 23rd day of March, 1993. The following appear in the Remarks column of the exhibit against the appellant:

Removed by the shareholders at an extraordinary general meeting of the company held on 23rd March 1993 effective from 23rd March, 1993.”

The documents relied upon by the appellant in respect of her status as director and shareholder of the company is dated 13th January, 1986. They are the documents which gave birth to the formation of the company. Companies have the legal right to amend, alter or change their memorandum and articles of association. They also have the right to amend, alter and change their Particulars of Directors. This is clearly provided in Form C07 as follow: “Particulars of Directors of any changes therein”. See Yalaju Amaye v. AREC Ltd. (1990) 4 NWLR (pt. 145) 422. If any alteration or change is carried out in accordance with the provisions of the CAMA, a court of law is not competent to hold against the alteration or change. Sections 44 to 48 of CAMA provide for the alteration of the Memorandum and Articles of Association and where a company complies with the provisions, that is the end of the matter. The alteration in the Particulars of Directors was made on 23rd March, 1993; some seven years after the initial documents that gave birth to the companies. It is elementary law that where a document is altered, it no more enjoys any legal life. The document becomes moribund or dead to the ex1ent of the alteration. Accordingly, a party cannot rely on such a document because it is lifeless in law. The existing legal life is transferred to the new document which provides for the alteration. It is in this regard, I come to the conclusion that the documents relied upon by the appellant in all her affidavits are totally spent in law and therefore of no evidential or probative value, and I so hold.

Learned Senior Advocate submitted that the appellant having subscribed to the Memorandum of Association of both companies, she automatically becomes a member and shareholder of the companies by virtue of sections 79 and 83 of CAMA.

Let me briefly examine the two sections. Section 79(1) is relevant and it provides:

“The subscribers of memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration shall be entered as members in its register of members.”

In making the submission, learned Senior Advocate relied on the Memorandum and Articles of Association at pages 20 to 31 of the Record. The documents are dated 27th day of November, 1984. Can these documents still have effect in the light of those relied upon by the respondents in removing the appellant as indicated above This is the crux of the matter and I do not think section 79(1) of the Act can really come to the aid of the appellant. If anything, a close look at the wordings of the provision in the light of the removal documents on the appellant, will go against her.

The operative and telling expression or word in section 79(1) is “deemed”. The present tense of the word is “deem”, it means to treat a thing as being something that it is not or as possessing certain qualities that it does not possess. It is a formal word often used in legislation to create legal fictions. A deeming provision, according to Advanced Law Lexicon, Vol. 2 (3rd edition) is a provision of law which makes supposition. The deeming provision is intended to enlarge the meaning of a particular word or to include matters which otherwise may or may not fall within the main provision. When a person, for example, is deemed to be something, the only meaning possible is that whereas he is not in reality that something, the Act of Parliament requires him to be treated as if he were. I will be more comfortable to read section 79(1) in that con

In my humble view, a deeming provision in a statute is more of a caricature than anything. It is also more of a camouflage than anything. The word, in short, stands in the place of a reality. And a deeming provision in a section of a statute will always operate in the absence of the real provision; it cannot operate side by side with the real provision. In other words, both the real and deemed provisions cannot be in the same section dealing with the same subject matter. In such a situation, a supposed deeming provision will give way to the real provision.

So much of the law. Let me now apply it. Section 79(1) can operate in the absence of any adverse or contrary act against a member by the company. Where, as in this case, the appellant’s name was removed by the shareholders, section 79(1) has no teeth to bite because the deeming provision becomes otiose and dead. It is in this respect, I find section 79() not helpful to the appellant.

I go to section 83. The section provides for the keeping of Register of Members. The section provides in part:

“83(1) Every company shall keep a register of the members and enter in it the following particulars;

(a) the name and addresses of the members and in the case of a company having a share capital, a statement of the shares and class of shares if any, held by each member, distinguishing each share by the number so long as the share has a number, and of the amount paid or agreed to be considered as paid on the shares of each member;

(b) the date on which each person was registered as a member; and

(c) the date on which any person ceased to be a member…..”

Why did learned Senior Advocate place reliance on the section when the Register was not produced in the court Who had the legal duty to produce the Register Is it the company This is the crux of the matter.

In my humble view, proof of being a shareholder of a company is on the party asserting the shareholding and that party, in this case, is the appellant. In Oilfield Supply Centre Ltd. v. Johnson (1971) 18 (Part II) NSCC 725 at 742, this court held that proof of being a shareholder can be by oral or documentary evidence. Disagreeing with Omo-Eboh, JCA, on proof by only documentary evidence, Oputa, JSC, said:

“But the important question is – is it then the only evidence Is there statutory requirement in the Companies Act No. 51 of 1968 limiting proof of shareholding solely and only to documentary evidence If the answer is – No – as it is bound to be, then one with the greatest respect say that the legal position asserted by Omo-Eboh, JCA that ‘in the absence of proof by documentary evidence the person concerned cannot be said to have conclusively, proved that he is a shareholder’ was a bit too narrowly stated. In fact by s.83 prima facie evidence. It is not conclusive evidence. Evidence can be documentary or oral…”

Although the case dealt specifically with the method of proof – whether documentary or orally or both, it is also a clear authority that the burden is on the party alleging being a shareholder. And that party is the appellant.

In view of the fact that the burden of proof of membership or being a shareholder was on the appellant, failure to discharge the burden is inimical to her case and I invoke section 149(d) of the Evidence Act against her.

On the production of the Register, the Court of Appeal said at page 157 of the Record:

“Although the trial Judge was wrong in casting the onus of producing the register of the companies on the appellant as such registers were in the custody of the companies that error did not in any way affect the substance of the Judge’s conclusion that the appellant failed to prove that she was a shareholder, member and director of the Companies.”

With respect, I do not agree entirely with the above. Although the Register is in the custody of the company, the appellant had a duty, in the course of proving her case to call the company as witness to tender the relevant portion or portions of the Register. While it may not be convenient to tender the whole register, certified true copies of the relevant folios should have sufficed. To me, that was clearly a duty of the appellant.

And that takes me to the issue of alleged admission by the respondents. Appellant relied on paragraph 4 of the further counter-affidavit of the 3rd respondent on the issue of admission. The paragraph reads:

“That paragraphs 1 and 2 of the said affidavit are false, that the true position is that the applicant was gratuitously allotted some shares in the 1st respondent which she never paid for and that was all.”

Denying that there was in law an admission on their part, the 3rd respondent relied further on paragraph 5 of the same affidavit:

“That when the applicant could not perform she was removed on 23rd March 1993 as per Form CO7 which she exhibited to her further affidavit to the originating summons as Exhibit B.”

The dictionary meaning of the word “gratuitous” is something which is performed or done freely without reward or payment being expected. The act is done in the office of friendship without consideration and therefore not enforceable in law. It is a voluntary favour by way of gift, most of the time, without force. And so in the con of paragraph 4, it means that the appellant was allotted some shares without expectation of any payment or consideration. Is that the meaning intended to be conveyed by the deponent in paragraph 4 of the further counter-affidavit I think not. The words “which she never paid for” do not convey the meaning of “gratuitous” in the same paragraph. They are clearly in conflict and here I am in entire agreement with learned Senior Advocate when he submitted in the Reply Brief that “the Respondents contradicted themselves when on one hand they admitted to gratuitous allotment of shares to the Appellant and on the other hand maintained that the gratuitous allotment was tied to cash payment.”

The business idea or trend that dominates the whole transaction is that of payment of consideration for the shares allotted to the appellant. That is contained in the second leg of paragraph 4 of the further counter-affidavit. That is also the content of the whole of paragraph 5 thereof. That is not all. The appellant exhibit in paragraph 1 of the Further Affidavit in Support of her originating summons Form CO7 made pursuant to section 53 of Companies and Allied Matters Act, where it is stated in (b) the following: “Number of the shares allotted payable in cash – 200,000”. As the above was exhibited by the appellant in paragraph 1 of the further affidavit in support of the originating summons, the submission of learned Senior Advocate on the apparent contradiction is neither here nor there. I regard Form CO7 exhibited by the appellant as an admission against interest.

Admission, in order to bind the party admitting, must be clear, unequivocal and total. Admission is not a game of chance. It is not a subject of speculation or conjecture. On the contrary; it is a total and comprehensive statement orally made or in writing suggesting a clear and unequivocal inference as to any fact in issue or relevant fact unfavourable to the conclusion contended by the person by whom or in whose behalf the statement is made.

I see in this case a wrong use of word and the word is “gratuitous”. This court cannot because of that come to the conclusion that the shares were gratuitously allotted to the appellant when evidence to the contrary abound. That will be tantamount to pursuing the shadow and neglecting or avoiding the substances. I cannot take such a course because it is too technical for my liking. After all, that is not the case of the appellant and she cannot now rely on the word to procure judgment.

In paragraph 2 of the further and better affidavit in support of the originating summons, the appellant deposed that she paid for the shares allotted” to her. Where is the evidence of payment I expected the evidence by way of document exhibited in the further and better affidavit at page 18 of the Record. Appellant only exhibited as Exhibit D the Memorandum and Articles of Association of one of the companies. They are certainly not the evidence of payment for the shares allotted to her. Could she not have exhibited the document if she really paid for the shares I have the temptation to invoke section 149(d) of the Evidence Act, once again.

Let me also examine some of the authorities cited by learned Senior Advocate on the issue of the legal status of Memorandum and Acticles of Association. In Starcolar v. Adeniji (1972) 1 SC 140, this court interpreted section 26(1) of CAMA, when it was the Companies Decree, 1968 thus:

“Now it is our view that the learned trial Judge gave an interpretation to section 26(1) of the Companies Decree, 1968, that the words there cannot bear. What section 26(1) is dealing with is a subscriber to the memorandum and it provides that such person automatically becomes a member of the company and must be entered in the register accordingly.”

The construction tallies with the provision of section 79(1) of CAMA. As I indicated on the subsection, section 26(1) cannot operate in the light of the removal of the appellant. Section 26(1) deals with the initial stages in the formation of a company and the subsection should be parochially so construed. It does not affect the situation in this appeal where the appellant was duly removed from the company. And so, Starcolar does not apply at all.

In Ezeonwu v. Chief Onyechi (supra), this court similarly held that a person whose name and signature appear in a Memorandum and Articles of Association is prima facie a subscriber to it. Thus where such Memorandum and Articles of Association is tendered in evidence, it shows compliance with section 5 of the Companies Act. 1968 and the burden of introducing evidence in rebuttal is on the party who alleges the contrary. Ezeonwu like Starcolar,never involved removal of appellant and so the decision does not apply here.

Learned Senior Advocate also cited Orojo’s Nigerian Company Law and Practice, page 164. I have read page 164. It does not deal with the issue. It deals with transfer of shares. At page 259 of the Book, the learned author said:

“The subscriber must take and pay for all the shares subscribed by him when calls are duly made and he must take them from the company.”

The above is not helpful to the appellant. If anything, it supports the case of the respondents.

The English case of Baytrust Holdings Ltd. v. Inland Revenue Commissioners, supra, was also cited by learned Senior Advocate. That Case dealt with the transfer of shares and the reconstruction of a company. It has nothing to do with the issue before the court.

This is a case of concurrent findings of the two lower courts: the Federal High Court and the Court of Appeal. The crux or fulcrum of this case is the removal of the appellant from the companies. On that issue, the learned trial Judge said at page 102 of the Record:

“From C07 which contains the particulars of Directors and any changes therein filed in support of the Application as Exhibit B shows that the present applicant has been removed by the shareholders at an extraordinary General Meeting of the company held on 23/3/91 effective from 23rd March 1993.”

Dealing with the same issue, the Court of Appeal said at page 157 of the Record:

“The onus was clearly on the appellant to show that as at the time of the action she was still a shareholder or member of the companies. In respect of Palm Garden Hotels Ltd., page 63 shows that the appellant was removed as Director on the 23rd March 1993. There was also evidence at pages 11-13 that the applicant was removed as Director by an extraordinary General Meeting from the Board of Dorji ile Mills Ltd. with effect from 23rd March, 1993. The appellant produced no evidence to show that she paid cash for shares in the two companies as she claimed and produced no evidence to show that she was not removed, as Director.”

I do not see any perversity in the above concurrent findings of the two courts. They are clearly borne out from the Record and I so hold.

Whether the appellant was removed only as director and not as a shareholder and member of the companies, is neither here nor there. The important point is that she failed to pay for her shares and that means that she is not a member of the companies. I have referred to a plethora of evidence above and so I regard the dichotomy or cleavage in relation to the position she was removed from and the one she retains in law, is mere semantics, verbalism, empty rhetoric and arid legalism which have no place in the realities of this case. This court is not interested in unnecessary hair splitting. On the contrary, this court is only interested in pursuing the substance of a matter and do substantial justice and not a caricature of it.

I expected the appellant to challenge her removal if she thought that it offended due process in that it did not comply with the relevant provisions of the Companies and Allied Matters Act, but she did not. In the absence of such action, appellant cannot succeed in the action she took asking the court to convene an Extraordinary General Meeting. If she was rightly removed as contended by the respondents and agreed by the two courts below and this court, she has no valid action and I so hold.

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SC.62/2003

DiamonF. OGBUAGU, JSCd Bank V. Partnership Investment Co. Ltd (2009)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, JSC

This is an appeal against the decision of the Court of Appeal, Lagos Division (hereinafter called “the court below”) delivered on the 19th December, 2002 dismissing the appeal of the Appellant to it and affirming the Judgment of the trial High Court – per Rhodes-Vivour, J. (as he then was) delivered on 12th April, 2000.

Dissatisfied with the said decision, the Appellant has further appealed to this Court It filed two separate Notices and Grounds of Appeal firstly, on 20th December, 2002 with two Grounds of Appeal and the second one on 8th January, 2003 with three Grounds of Appeal and which without their particulars, read as follows: .

“GROUND 1

The learned Appellate Judges (sic) erred in law and thereby came to a wrong decision when they held at page 12 of the judgment that: “it has been shown that Appellant owed the 1st Respondent a duty of care, it has been shown that Appellant has breached this duty. Damage as a result of the breach had equally been proved. Appellant should not have paid the 2 cheques without the prior confirmation in writing of the 1st Respondent”

GROUND 2

The Court of Appeal erred in law in upholding the judgment of. The trial court on the award of interest when it held at page 13 of the judgment that:

“the writ contains principal sum and the rate of interest for which recovery the (sic) action was commenced. Thus the fact as contained in the writ had become subsumed in the Statement of Claim”.

GROUND 3

The learned Court of Appeal erred in law in holding that the Appellant was negligent”.

The facts of the case briefly stated are that the 1st Respondent, was a Customer of the Appellant and maintained a Current Account with its Marina Branch, Lagos. On 28th December, 1994, the 1st Respondent requested the Appellant, to issue two (2) separate bank cheques otherwise called “Manager’s Cheques” one in the sum of N11,000,000.00 Eleven Million Naira) in favour of Eko Fisheries Ltd. and the other, in the sum of N6,250,000.00 (six Million Two Hundred and Fifty Thousand, Naira) in favour of first Yield Investment Ltd. The said cheques, were subsequently, delivered to the Beneficiaries. The Managing Director of the 1st Respondent (PW1), orally, requested the Manager of the Appellant – (DW3), not to pay the two cheques without a confirmation and clearance from the 1st Respondent. The said Manager, demanded that the request, be reduced in writing and this was done vide its letter dated 29th December, 1994 – (Exhibit C). However, when the cheques were presented for payment by the said Beneficiaries, the Appellant paid the two cheques through the 2nd Respondent in spite of or contrary to the said instructions in Exhibit C. The case of the Appellant or contention, is that the cheques being Certified Bank Drafts, were honoured on presentation. The Appellant pleaded that the value of the cheques, was on purchase, debited against the buyer’s Account thus making the Appellant, the Drawer or the cehques. Therefore, the 1st Respondent, was not in a position to give further instructions regarding the payment In other words, the Appellant alleged that being Bank Drafts, the 1″ Respondent cannot or could not and had no power, to countermand on them or to request the Appellant, to confirm the drafts before payment is/was made, against them. I note that the 2nd Respondent’s case, was that it properly discharged its duty as a “Collecting Bank”. By a Writ of Summons, the 1st Respondent claimed against the Appellant and the 2nd Respondent jointly and severally as follows:

“1 The sum of N6,2S0, 000.00 (Six million, two hundred and fifty thousand naira) being money received by the Defendants in negligently cashing the bank Draft made out by the 1st Defendant for the Plaintiff.

2. The sum of N11,000,000.00 (Eleven Million Naira) against the 1st Defendant only being money negligently paid by it despite the Plaintiffs subsisting countermand and direct instructions not to pay until confirmation is given by the Plaintiff.
3. Interest from the 29th day of December, 1994 at the rate of 21% per annum until date of judgment and at the rate of 6% per annum till final liquidation.
4. Sum of N2,000,000.00 (Two Million Naira) being general damages following (sic) from the said negligently paid and cashed cheque by the Defendant”.

Pleadings were filed and exchanged by the parties. After the hearing,the learned trial Judge, found in favour of the 1st Respondent and entered judgment accordingly. His Lordship, however, refused the claim for general damages and dismissed the case against the 2nd Respondent. Aggrieved, by the said Judgment, the Appellant unsuccessfully, appealed to the court below which dismissed the appeal, hence this instant appeal.

The Appellant has formulated three (3) issues for determination namely:

“(i) Whether the Court of Appeal was right in finding that the 1″Respondent had validly pleaded negligence

(ii) Whether the Appellant owed the 1st Respondent a duty of care in respect of the 2 bank drafts.

(iii) Whether there was sufficient pleadings and proof of interest rate awarded in favour of the 1st Respondent”.

I note that the 1st Respondent, gave Notice of Objection attacking the said Grounds of Appeal in its Brief of Argument which it argued in paragraphs 3.1 to 3.15 thereof. It however, stated in paragraph 3.16 (ibid) that in the unlikely event the Court finds that one of the said grounds; is a ground of law which could sustain the appeal, that the Court, on the authority of Nwadike & 2 ors. v. Ibekwe & 2 ors. (1987) 4 NWLR (Pt.67) 718 @ 732 (it is also reported in (19871 12 S.C: 14) – per Agbaje, JSC, should strike out other offending grounds together with any issues distilled therefrom.

It however, thereafter, formulated two (2) issues for determination, which read as follows:

”4.2.1 Whether in the circumstances of this case, the Court of Appeal was right in finding that the Appellant was liable in negligence .

4.2.2. Whether the pleadings and evidence led thereon was sufficient to sustain the award of interest in favour of the Respondent”.

It had stated that grounds 1 and 3 of the Grounds of Appeal, could be subsumed under one (i) issue in order, according to it, to avoid proliferation of issues.

I note that the Appellant, filed a Reply Brief and when this appeal came up for hearing on 12th October, 2009, Aju, Esqr. – learned counsel for the Appellant, adopted their two Briefs. He urged the Court to allow the appeal after stating that the two lower courts below, treated the two instruments, as normal cheques instead of treating them as Bank drafts.

Agbor (Mrs,) – leading counsel for the 1″ Respondent, adopted their Brief and told the Court that they raised a Preliminary Objection in paragraph 3 of their Brief. He/she urged the Court to dismiss the appeal either on the Objection or on the merits, He/she debunked the assertion of his/her learned friend for the Appellant and stated that it is not true that the two lower courts, treated the instruments as normal cheques instead of bank drafts as also argued in their Brief. Thereafter Judgment was reserved till to-day.

I note that the Appellant in all the grounds of appeal; stated the I note that the Appellant, in its Brief of Argument in paragraph 2.8 stated that the Appellant,

” filed two Notices of Appeal respectively dated 20th December,2002 and 8th january,2003 against the judgement of the Court of Appeal.This is a further Appeal to the Supreme Court against the Judgement of the Lower Court”.

From paragraph 2.02 of its Reply Brief, it appears to me that it relies on the later Notice of Appeal filed on 8th January, 2003. I note that the Brief of the 1st Respondent, is predicated on the said Notice of Appeal. So be it. The 1st Respondent contend or submit that all the three grounds in the said Notice, are grounds other than grounds of pure law requiring that leave of the Court should have been obtained before they could be validly filed and argued. It therefore, prays and urges the Court to strike out all the grounds of appeal.

I note that the Appellant in all the grounds of appeal; stated the particulars of error in law. It is now settled that particulars of error alleged in a ground of appeal, are intended to highlight the complaint against the judgment on appeal. They are the specification of the error or misdirection in order to make it clear, how the complaint, is going to be canvassed in an attempt to demonstrate, the flow in a relevant aspect of the judgment. See the case of Osasona v. Oba A. Ajavi & 3 ors. (2004) 5 SCNJ, 82 – per Uwaifo, JSC.

Generally, where error of law or misdirection is made in a ground of appeal, the particulars of error of law or misdirection, must be given. There is nothing wrong in including the particulars of the error in the error itself. This will accord with justice by allowing the appeal to be determined on its merit See the case of Koya v. United Bank for Africa Ltd. (1997) 4 NWLR (pt. 481) 251 @ 274; (997) 1 SCNJ 1. Afterwards, it is said that the whole purpose of grounds of appeal, is to give to the other side, notice of the case it has to meet in the Appellate Court. The 1st Respondent, has not stated that it is unable to understand or appreciate what the complaint of the Appellant. is all about It never asked for further and better particulars. In my respectful view, this is a straight forward case in which the facts are clear and undisputed. I will prefer with respect, going straight to the merits of the case. I commend the industry of the learned counsel for the 1st Respondent in respect of the Preliminary Objection. But considering objectively the grounds of appeal and the particulars, I hold with respect, that all the grounds, are all grounds of law and no leave is required by the Appellant from this Court It is settled that where facts are not in dispute and the only complaint, is as to the way and manner the lower court has applied the law to those established undisputed facts, (as appears in the instant appeal), the ground of appeal, is one of law. See the case of Metal Construction (W.A.) Ltd. v. Migliore & ors. (1990) 1 NWLR (pt.126) 299 referred to in the Appellant’s’ Reply Brief. (it is also reported in (1990) 2 SCNJ. 20 as Migliore & ars. v. Metal Construction (West Africa) Ltd: In Re Miss C. Ogundare).

Now to the issues of the parties. I will take Issues (i) and (ii) of the Appellant and Issue 4.2.1 of the Respondent more so, as the 1st Respondent, has conceded that Grounds 1 and 3 from which the issues are distilled, could be subsumed under issue 1 of the Appellant.

What is Negligence In Black’s Law Dictionary, 8th Edition at pages 1062 to 1063, twenty eight (28) types or categories of negligence, are stated therein. At page 1061 thereof, negligence is generally defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ rights.

It is settled that negligence, is a question of fact and not of law. So, each case must be decided in the light of the facts pleaded and proved. No one case, is exactly like another. See the case of Alhaji Kalla v. Jarmakani Transport Ltd. (1961) ANLR 778 @ 785 referring to the English. cases of Baker v. Longburst (E) & Sons Ltd. (1933) 2 KB. 461; 102 L.J. KB. 573; 149 L.T. 264; (1932) All E.R. Rep. 102 and Tart v. Chitty (G.W.) & Co. Ltd. (1933) 2 KB. 465; 102 L.J. K.B.568; 149 L.T. 261; (1931) All E.R. Rep. 826 .

I am aware and this is also settled in a number of decided cases by this Court that a Plaintiff, as a matter of law, is required, in an action on negligence, to state or give particulars of negligence alleged and to recover on the negligence pleaded in those particulars. It is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant on a claim of negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed to him by the defendant. See the cases of Aku Nmecha Transport Services (Nia.) Ltd. & anor. v. Atulove (1993) 6.NWLR (pt.298) 233 @ 248 C.A; Kayo y. United Bank For Africa Ltd. (1997) 1 NWLR (pt.481) 251 @ 291; (1997) 1 SCNJ 41 @ 42 – per Iguh, ISC, citing the case of Umudje v. Shell-BP Petroleum Development Co. of Nig. Ltd. (1975) 9-11 S.C. 155 @ 166-167 and Seismograph Services Nig. Ltd. v. Mark (1993) 7 NWLR (Pt.304) 204 CA. cited in the Parties’ Briefs.

In the instant case leading to this appeal, the Appellant, does not dispute the fact that it received Exhibit “C” giving it instructions not to pay without a confirmation and clearance from the 1st Respondent. I note that the DW3- the said Branch Manager, swore and testified from page 66 of the Records. Under cross-examination, he testified inter alia, as follows:

“We drew the cheque on instructions of the Plaintiff It was the plaintiffs money. Plaintiff was our customer we owe him obligation to protect his interest and funds. He can only deal with us by giving us instruction. Before this incident MD of Partnership – ………(meaning the 1st Respondent) had dealt with me .for 2 – 3 years and has built a good customer Banker relationship. I would not like to see him loose (sic) his funds. I am to ensure the does not loose his funds (sic) (meaning I am to ensure he does not lose his funds), are dated 28/12/94 (i.e. the cheques). The letter asking me not to pay is dated 29/1/94. I had not paid out the funds by 29/12/94”.(the underlining mine)

As stated by the court below, the learned trial judge;

“graphically referred to and utilized the testimonies of these vital witnesses in his judgment and after evaluation of the totality of the evidence adduced before him concluded that the Appellant was negligent”.

I cannot agree more. The above is borne out from the Records especially at pages 101 to 103 of the Records. See also pages 272 to 274 of the Records. I cannot, with the greatest respect, fault those findings of facts of the learned trial judge who even referred to, the decision of this Court in the case of U.B.N. Ltd. v. Nwoye (1996) 3 NWLR (Pt.435) 137 (it is also reported in (1996) 2 SCNJ 222) where the following appear inter alia:

“the amount in the draft cheque even if credited to a customers account is not equivalent to cash lodgments. The customer has to wait until after the cheque has been cleared before it could be regarded as cash “.

It is noted by me early in this judgment that the Appellant, regarded itself as the Purchaser of the draft cheque. His Lordship held that the customary period for clearing must also be observed for drafts. As a matter of fact, as noted by the learned trial Judge;

“DW4 – the Deputy Manager in Banking Operations of the 2nd Respondent, testified that if she got similar instructions as that in Exhibit “C”, she would confirm from the customer before she pays. She said:-

“I am duty bound to confirm from the customer”.

The learned trial Judge held inter alia, at pages 101 and 102, as follows

“Since D.W3 knew the legal consequences of a draft he ought not to have advised P.W.1 to put such a request in writing. For what purpose may I ask. By the Bank, Manager telling P.W.1to put it in writing it is implied that he gave an undertaking that he would not pay until P.W.1. authorises him to pay. He has put on an added duty of care which is against the norm”.

He reproduced the said evidence of the DW3 also reproduced by the court below and myself above and found as a fact had held as follows:

“Examining D.W 3’s evidence it becomes clear to me that/here was an unusual rush to pay the cheques. Exhibit A and B and the customary 5 days or’ even 4 days for clearing was not observed in the case of Exhibit A (sic)”.

(the underlining mine)

I agree.

His Lordship, referred to part of the evidence of the DW 3 where he stated that he did not accede to the said request of the 1st Respondent and had the following to say, inter alia:-

“So what did he do, He chose to ignore it. In Negligence as it, relates to banks, the circumstances must be such that it would be prudent for the bank having been put on Notice to take certain steps before paying the cheque and if such steps are not taken or in a satisfactory manner short of negligence will arise.

A prudent banker would never ignore Exhibit C. Negligence implies want of care as would be expected for reasonable man (sic) to exercise in the circumstances. The issue of countermand does not arise in this case. This is case (sic) where clear instructions are given to a Bank Manager on how the customer expects his draft to be handled. The Branch Manager says he received the instructions before action on the drafts. Prudence demands that he ought to have told -the customer that a Draft once issued can no longer be recalled. Rather he kept silent, surely the customer is very much in order to beliefs (sic) that his instructions would be carried out ..

The Plaintiff pleaded that he gave similar instructions to credit Bank and the Bank obeyed his instructions. They did not pay the cheque. Surely it cannot be said that the 1st defendant (i.e. the Appellant) acted bona-fide and without negligence. .

Before concluding the issues, I note that a lot of fuss or heavy weather has been made by the Appellant in its Brief and by its learned leading counsel even at the hearing of the appeal as to the decision in the case of United Bank of Africa Ltd. v. Julius A. Ibhafidon (994) 1 NWLR (Pt.318) 90 CA. to the effect that a Bank Draft, is payable at sight and therefore, cannot be countermanded. That no duty of care can exist when the drafts were not capable of being countermanded.

Firstly, apart from the above case/decision of the Court of Appeal not being binding on this Court, the facts in the case, are not in all fours with the facts and circumstances of the case leading to the instant appeal. The facts in that case, are distinguishable from those in the instant appeal. For the avoidance of doubt and for the records, I will state those facts as appears in the Report.

“One Mr. Ehinola who was introduced to the respondent in this appeal claimed to have a large sum of money in dollars in his domiciliary accounts with the appellant herein. He offered to sell to the respondent at the rate of N4 to one US dollar. The respondent was not willing to take advantage of’ the offer unless he was able to confirm the claim of Mr. Ehinola to ascertain the liquidity position of the account. Mr. Ehinola and the respondent together went to the appellant’s central branch office in Lagos where the said Mr. Ehinola applied to withdraw the sum of $33,643.00 from his account. The Bank official told them to come back the following day. On getting there the following day the respondent was informed by the Bank official that he could proceed with the foreign exchange transaction as Mr, Ehinola has/had sufficient funds to accommodate the amount applied for by Mr. Ehfnola.

The respondent claimed he handed over N134,572.00, the naira equivalent of US$33,643.00 to Mr. Ehinola in the presence of the Bank official concerned and that thereafter the appellant, through one of its official drew up a Bank Draft No. 031069 for US$33,643.00 in his (respondent’s) favour and handed it over to him (respondent). The respondent went with the draft to the appellant’s branch in Benin and was informed that he will be able to encash the sum on the draft. He was advised to open an account with the draft which advise the ‘respondent complied with on 18/11/86 and he was’ allocated with an Account No. FCA/0003 with a teller with which he paid the draft into his account with the Bank The respondent was asked to call back at the Bank after 21 days to collect the proceeds of the draft. At the expiration of the 21 days, the respondent was not 9iven any money but was informed that nothing had been heard from the appellant’s head office in Lagos.

The appellant Bank later wrote’ a letter to the respondent repudiating any payment on the draft. The respondent as plaintiff therefore commenced this action and claimed in his Writ of Summon the sum of US$33,613.00 interest at 15% on the said sum.

The case for the appellant was that the domiciliary account of Mr. Ehinola’s was funded from a forged cheque. It is also contended that the respondent is not entitled to recover the proceeds the draft (sic) as the transaction or arrangement he made with Mr. Ehinola is illegal being in contravention of the Foreign Currency (Domiciliary Accounts) Decrees No. 18 of 1986 which forbids transactions in foreign exchange other than with an unauthorised dealer which the appellant claimed Mr. Ehinola was.

The defendant, not satisfied with the judgment of the trial court appealed to the Court of Appeal.

The following statutory provisions were considered in determination of the Appeal:

Sections 1(1), (2), (3), 2(1), 3(1), (2) (3) (4) (5) (6) (7) (8) and 6(1) of the Foreign Currency (Domiciliary Accounts) Act Cap. 151 Laws of the Federation of Nigeria 1990”.

As a matter of fact, the issues are also not the same. Again, for the avoidance of doubt, I will reproduce the said issues. They read as follows:

“1. Whether the transaction between Mr. Ehinola who is a customer of the appellant Bank which gave rise to the issuance of the Bank Draft by the appellant Bank to the respondent was illegal under the Foreign Currency (Domiciliary Accounts) Decree No.8 of 1986.

2. Whether the alleged subsequent discovery of forgery in the New York City Bank Account of B. J. Ehinola was proved before the trial court and if proved whether such a forgery justified the appellant’s subsequent dishonour of its own verified and certified Bank Draft.
3. Whether the learned trial Judge was right in awarding to the respondent by way of damages the face value of the Bank ,Draft in US Dollars or Foreign Currency and whether he was right to have awarded Post-Judgment interest too”.

The Court of Appeal – per Ejiwunmi, JCA(as he then was), held that the said Bank had a duty to have honoured its draft already issued to that plaintiff/respondent and then proceed against the drawer to recover its money which could be done by simply debiting the drawer’s account if it had not already done so and then, call on him to come and credit his account with more funds. In the instant case, in my respectful view, if the Appellant had obeyed the instructions of the 1st Respondent, those who should have complained or have a cause of action against the Appellant, should have been both or one of the beneficiaries of the said drafts. In that case, the Appellant could have applied to join the 1st Respondent or the 1st Respondent could have applied to be joined in any such suit if and where the said beneficiaries or anyone of them, did not sue the 1″ Respondent for breach or seek specific performance.

In other words, it was held inter alia, that;

“It is common knowledge that while a Banker may refuse to honour an ordinary cheque on the ground that the drawer has no money in his account to cover the amount in the cheque, a Bank Draft on the other hand is payable at sight regardless of whether the person on whose behalf the draft was issued had money in his account at the material time or not”.

The above is clear and .unambiguous. The scenario, facts and/or circumstances, are distinguishable from the instant case. Although I hold that the trial court, was in error when it stated at page 128 of the Records that “This is a case where before drafts were issued instructions were given to the 1st defendant…”, I have noted in this judgment that it is not in dispute that it was on the 28th December, 1994, that the drafts were issued, while the instruction was given on the 29th December, 1994. There is also evidence that the Appellant was still in possession of the drafts when he received the instructions and had not yet paid to the beneficiaries. It is well established that mistake or error in a judgment is immaterial. In other words, that it is not every mistake or error of a trial Judge, that will vitiate the entire judgment more so, if there are other evidence to support his said judgment. See the cases of Ukejianya v. Uchendu (1950) 13 WACA 45 @ 46; Onajobi v. Olanipekun (1985) 4 S.C. (Pt.2) 156@ 163 and many others.

It is clear to me that if there is a law, practice or Bank rule that a customer cannot and has no power to give such instruction, the said Manager, could have refused the oral request of the PW1, but rather, he asked him to put it in writing, which was an implied assurance or undertaking that he would comply with the said instruction. At no time did he inform the PW1 that the Bank or himself, has a duty to give value to the drafts when presented for payment by the beneficiaries. I therefore, hold that the facts and circumstances in the case of UBA Ltd. v. Ibhafidon (supra) is not applicable in the instant case. It is cited and relied on with respect, out of con. I so hold. Afterwards, the latin maxim is “UBI JUS IBI REMEDIUM”

This is why it is important and it is also advisable that learned counsel appearing in this Court in particular or in any other court for that matter, should not rely heavily on the ratios of the Editor, without reading the entirety of a judgment Failure to do so, invariably, results in learned counsel often, citing a decided authority out of con The duty of a Banker as admitted by the DW3,is to protect the interest of his customer and protect his money.

I have deliberately gone this far, because, as noted by me earlier in this Judgment, each case, has to be decided on its own peculiar or particular facts and circumstances. In my respectful view, where a person has acted in good faith and another is damnified by such an act, I believe that the words “I am sorry” are a “balm” that can heal all wounds. But where one Persists in justifying such a wrongful act as has happened in this case leading to this appeal by the Appellant, a court of justice including this Court, must see and allow justice to prevail even if the heavens fall although it will not fall. The court below, refused to disturb the findings of fact of the learned trial Judge. In the circumstances, it was justified to do so. I affirm the said decision. What emerges, is that there are concurrent findings of facts or Judgments by the two lower courts. This Court, will not interfere. My answers therefore, to Issues (i) and (ii) of the Appellant and Issue 4.2.1 of the 1st Respondent, are in the Affirmative/Positive.

In respect of Issue (iii) of the Appellant and Issue 4.2.2 of the 1st Respondent, the general rule at Common Law, is that interest is not payable on a debt or loan in the absence of express agreement or some course of dealing or custom to that effect. See London Chattam and Dover Railway v. South Eastern Railway (1893) A.C 249. Thus, interest will however, be payable where there is an express agreement to that effect and such an agreement, may be inferred from a course of dealing between the parties. See Re-Duncan and Co, (1905) 1 Ch. 307 or where an obligation to pay interest arises from the common or usage of a particular trade or business and I add like in banking. See the case of Alfotrin Ltd (The Owners of M V Fotini) v. The Attorney-General of the Federation & anor. (1996) 9 NWLR (Pt.475) 634 @ 638: (1996) 12 SCNJ 236 @ 264.

It is also settled that the High Court, has an inherent power to make Orders even if not sought where such orders, are “incidental” to the prayers sought. . In other words, a Plaintiff may be given such equitable relief as he may be entitled to even though he has not specifically asked for one. See the case of Ndah v, Attorney-General Bendel State & ors. (1976) 6 U.I.L.R. (Pt.II) 266 @ 278.

The power of a court to award interests was provided in Section 12 High Court Law of Lagos State. Some Rules of courts provide that the court, may order or award interest at a rate not exceeding (then) 10% per cent per annum to be paid upon any judgment commencing from the date thereof of if afterwards as the case may be. See for instance, Order 40 Rule 7 of the |High Court of Kano State (Civil Procedure Rules, 1988). See the case of Kano ile Printers PLC v. Alhaji Ahmed Tukar (1999) 2 NWLR (Pt.589) 78 @ 85 CA. See also Order 39 Rule 7 of High Court of Lagos (Civil Procedure) Rules, 2004.

Also settled, is that it is not in every case that evidence has to be adduced in respect of interest claimed before interest is awarded. That is certain case, even failure to claim interest in the Writ of Summons or Statement of Claim, will not preclude a successful plaintiff, from praying for and being awarded interest after judgment had been entered for an amount. See the case of Nigerian General Superintendence Co. Ltd v. The Nigerian Ports Authority (1990) 1 NWLR (Pt.129) 741@ 748 C.A. I am also aware that the general rule, is that monetary judgment, attracts appropriate interest even where none is claimed. See the case of Augustine F. I. Ibama v. Shell Petroleum Development Co. or Nigeria Ltd. (1998) 3 NWLR (Pt.542) 493 @ 500 C.A. – Per Uwaifo, JCA (as he then was).

In my respectful and firm view, the 1st Respondent claimed interest. The instance of the Appellant in this matter, is unfortunate especially where its defence to the action, is made in very bad faith. I am even of the view that the 1st Respondent, was entitled to exemplary damages in all the circumstances of this case as the two lower courts in their respective judgment, demonstrated. However, the learned trial judge refused the claim for damages. However, in view of the Provisions of the said Order 39 Rule 7 of the High Court Rules (supra), I am very reluctantly, reducing the interest payable to the 1st Respondent to 10% (ten percent) payable to it by the Appellant from the 12th of April, 2000 until the entire judgment debt, is liquidated.

In the final analysis/result, although my answers to the said issue (iii) of the Appellant and Issue 4.2.2 of the 1st Respondent, are also in the Affirmative/Positive, but in all the circumstances having regard to the afore-said Rule of Court, the interest is hereby reduced as aforestated. This appeal fails save as it affects the interest payable to the 1st Respondent by the Appellant. I hereby affirm the decision of the court below affirming the Judgment of the trial court in respect of the principal sum awarded.

Costs follow the amount. The 1st Respondent is entitled to costs of N50,000.00 (fifty thousand naira) payable to it by the Appellant.

---

SC.26/2002

Tomtec Nigeria Ltd .v. Federal Housing Authority (2009)

LAWGLOBAL HUB Lead Judgment Report

S.N. ONNOGHEN, J.S.C

This is an appeal against the ruling of the Court of Appeal, Holden at Abuja in Appeal NO.CA/A/60/2002 delivered on the 11th day of November, 2004 relisting the appeal of the respondent earlier ‘withdrawn’ and consequently dismissed.

The facts of the case include the following:

By a letter dated 8th May, 1997, the appellant was awarded a contract valued at N66, 601,099.92 (sixty-six million, six hundred and. one thousand, ninety-nine naira, ninety-two kobo) to erect some buildings, which contract was terminated on the 12th day of July, 2000 on the ground that appellant abandoned the site. Appellant was not happy with the termination and instituted suit NO.FCT/HC/CV/715/2000 on the 21St day of September, 2000 at the High Court of the Federal Capital territory, Abuja claiming the following reliefs:

“(1) A declaration that having regard to the provisions of the Building Contract NO. GWA-0241 dated 23rd December, 1997, the level of construction attained by the plaintiff, the conduct of the parties since the commencement of the project, and all other surrounding circumstances of the case, the purported termination by the defendant of the said contract is an unjustifiable breach of contract and a. fraud on the plaintiff.

(2) The sum of N65, 000,000.00 (sixty-five million naira only) as general and aggravated damages for breach of contract.

(3) The sum of N3,438,141.20 (three million, four hundred and thirty-eight thousand, one hundred. and forty-one naira, twenty kobo only) being the outstanding balance of payment due on payment certificate N0.05 dated 28th September, 1998.

(4) The sum of N1,394,805.05 (one million, three hundred and ninety-four thousand, eight hundred and five naira, five kobo only) being amount due but held back by the defendant as “retention” under the contract.

(5) Interest, at Bank rate (i,e 30% [thirty percent) per annum) on all the above sums until final liquidation.

(6) (1a) special damages in the sum of:

N1,019,521.81 (one million arid nineteen thousand, five hundred and twenty-one naira, eighty-one kobo only) representing bank charges paid by the plaintiff on its loan/overdraft account with Inland Bank (Nig) Plc on this matter;

(b) alternatively, the said sum of N1,019,521.81 (one million and nineteen thousand, five hundred and twenty-one naira, eighty-one kobo only) as direct loss and/or expenses on financing charges under the parties building contract N0.GWA-085,as of the 9th August, 2000.

(2) Interest on the said sum of N1,019,521.81 (one million and nineteen thousand, five hundred and twenty-one naira, eighty-one kobo only) at the rate of 30% [thirty percent] per annum compounded monthly from the 12th July, 2000 until final liquidation thereof.

The sun of N500,000.00 (five hundred thousand naira only)being the value of the plaintiffs materials forcefully taken over by the defendant and the plaintiffs’ sites.

(8) The sum of N750,000.00 (seven hundred and fifty thousand naira only) representing the plaintiffs solicitor’s fee for this suit.

(9) Costs of this action.

In the course of the proceedings at the trial court both parties filed their pleadings though alleged by the respondent to have been done of time. On the 17th day of May, 2001, the appellant, by order of court, amended its statement of claim but failed, according to the respondent, to pay the necessary filing fees. The respondent was granted was subsequently filed on the 15th day of June, 2001.

On the 26th day of July, 2001, the appellant, as plaintiff filed an application at the trial court praying for an order:-

(a) Striking out the defendant/respondent’s purported statement of defence filed on the 13th February, 2001 as incompetent.

(b) Admitting the plaintiff/appellant to final judgment in default of a defence, as per the plaintiff/applicant’s claims contained in paragraph 33 of its Amended Statement of claim dated the 17th day of May, 2001,’

On the 26th day of July, 2001, the appellant, as plaintiff In the course of the proceedings at the trial court both respondent was dissatisfied with the grant of the application and consequently appealed against the judgment vide a Notice of Appeal dated the 26th day of October, 2001.

On the 26th day of September, 2002 a Notice of Withdrawal of appeal was purportedly filed by the respondent in this appeal and on the 23rd day of January, 2003, one Michael Asibe appeared in the lower court and withdrew the appeal, which appeal was consequently dismissed. It is the contention of the respondent that the withdrawal of the appeal was never brought to its attention until sometime in 2003 when the respondent was served with a copy of garnishee Order Nisi by the trial court. Consequent upon the service of the said Order Nisi, the respondent retained the services of the firm of solicitors of Kayode & Co to conduct the appeal as a result of which the firm filed a motion on the 13th day of October, 2003 at the lower court praying for the following reliefs:

(a) An order setting aside the Notice of Withdrawal of Appeal, dated the 26th day of September, 2002.

(b) An order setting aside the proceedings of the court of the 23rd day of January, 2003,

(c) An order vacating the dismissal of the appeal pursuant to the purported Notice of Withdrawal dated 26th September, 2002.

(d) An order relisting Appeal NO. CA/A/49/2002; CA/A/M/2002 struck out/dismissed on 23rd January, 2003 pursuant to Notice of Withdrawal dated and filed 26th september,2002 in CA/A/M/2/2002

On the 22nd day of April, 2004 the respondent, then appellant filed another motion appellant filed another motion in the lower court in which it prayed the court for an order:

(i) Setting aside the Notice of Withdrawal of Appeal dated 26th September, 2002.

(ii) Setting aside the proceedings of the court of 23rd January, 2003.

(iii) Vacating the dismissal of the appeal pursuant to the Notice of Withdrawal dated 26th September, 2002 and

(iv) Relisting appeal No.CA/A/60/2002 dismissed on 23rd January, 2003 pursuant to the Notice of Withdrawal of 26th January, 2002

Both motions came up for hearing on 26th April, 2004. However, on that day, learned counsel for the present respondent withdrew the earlier motion of 13th October, 2003 which was accordingly struck out by the court as counsel for the present appellant did not oppose same. The present appellant then sought for and was granted adjournment to enable it file its response to the new motion which he subsequently did by filing a counter affidavit on the 16th September, 2004.

the present appellant did not oppose same. The pres

On the 21st day of September, 2002 when the motion of 22nd April, 2004 for relistment came up for hearing, learned counsel for the appellant raised an objection orally to the withdrawal of the earlier motion of 13th October, 2003 which objection was taken together with arguments on the motion for relistment and the ruling reserved.

In the ruling delivered by the lower court on the 11th day of November, 2004, the appellant’s objection was overruled while the respondent’s application for relistment etc was granted as prayed. This appeal is therefore against that decision of the lower court.

In the appellant’s brief of argument filed on the 15th day of July, 2007 and adopted in argument of the appeal, learned counsel for the appellant, YAKUBU MAIKYAU-ESQ, formulated two issues for the determination of the appeal. These are as follows:-

1. Whether it was competent for the Court of Appeal to have entertained the respondent’s second motion for relistment filed on the 22nd day of April, 2004, when the earlier motion filed by the respondent for the same relief had been I withdrawn by the respondent’s counsel at the point of contest, and when the sworn affidavits supporting the two applications were irreconcilably at variance with each other.
2. Whether the Court of Appeal acted correctly in relisting the respondent’s appeal NO. CA/A/60/2002,given the facts and circumstances of the respondent’s motion on notice praying for relistment of the withdrawn and dismissed appeal.

In arguing issue 1, learned counsel for the appellant submitted that the withdrawal of the first application on the 26th April, 2004 after issues had been joined by the parties in the affidavits, amounted to an admission of defeat by the respondent thereby disentitling the respondent to any second chance; that notwithstanding how the order of the court was couched, the termination of the application in the circumstances amounted to a dismissal of same thereby depriving the lower court of jurisdiction to entertain any submitted that where a party duplicates a court process by filing a new process to seek the same relief which is the subject matter of an already pending process, the more recent of the two processes constitutes an abuse of court process, and is to be dismissed, relying on African Re-insurance Corp. vs. JDP Construction (Nig) Ltd (2003) 13 NWLR (Pt.838) 609 at 635 – 636; Mobil Producing Nig. Unlimited vs. Chief Monokpo (2003) 18 NWLR (Pt.852) 346 at 430 – 431, Onyeabuchi vs. Independent National Electoral Commission (2002) 8 NWLR (Pt.768) 417 at 444.

By way of an alternative argument on the issue of functus officio learned counsel relied on the provision of Order 3 Rule 18(5) of the Court of Appeal, 2002 to submit that the effect of a withdrawal is that the proceedings stand dismissed from the date of withdrawal whether the court pronounced same or not or whether the withdraw was by way of an oral or written application and that it does not matter whether counsel for the appellant objected to the application to withdraw the motion or not as there is no legal duty on the counsel for the appellant to object; that consent to withdraw does not alter the legal consequences flowing from the withdrawal in the circumstances of the case, and urged the court to resolve the issue in favour of the appellant.

On his part, learned counsel for the respondent, J. O. Adesina (Mrs.) in the respondent brief deemed filed on the 6th day of February, 2008 stated that when the application to withdraw the earlier motion was made, appellant’s counsel did not object; that learned counsel rather objected to the hearing of the motion filed on 22nd day of April, 2004 on the ground that he had not been given sufficient time to respond on the basis of which the motion was adjourned to 3rd June, 2004, that appellant filed no Notice of Objection against the hearing of the motion filed on 22nd day of April, 2004 as required under Order 3 Rule 15 of the Court of Appeal Rules 2002 but moved the lower court upon an oral application which rendered the objection incompetent as held by the lower court – relying on Balogun vs. E.O.C.B. (Nig.) Ltd (2007) 5 NWLR (Pt.1028) 584 at 600; Ogunleye vs. Oni (1990) 2 NWLR (Pt.135) 745; Lews & Peat (N.R.I.) Ltd vs. Akhimien (1976) 7 S.C. 157; that Rules of court are meant to be obeyed, relying on C.O.P vs. Fasheun (1997) 6 NWLR (Pt.507) 170; Ezeanah vs Alta (2004) 7 NWLR (Pt.873) at 481; that the motion filed on 13th day of October, 2003 was yet to be ruled upon when it was withdrawn on 26th April, 2004 and that the order striking out the same was an interlocutory order, relying on Ajuta 11 vs. Ngene (2002) 1 NWLR (Pt.748) 278 at 298; that the lower court was no funtus officio as it had not, at the time it struck out the motion fulfilled its duty with regards to the matter before it; that the cases cited and relied upon by learned counsel for the appellant on the issue under consideration are not relevant to the determination of the issue and proceeded to distinguish them.

On the sub-issue as to whether the motion of 22nd April, 2004 is in abuse of court processes, learned counsel cited and relied on NV Scheep vs MV “S Araz” (2000) 15 NWLR (Pt.691) 622 at 664: Okafor vs A-G Anambra State(1991) NWLR.(Pt.2000) 059 at 681: Saraki vs Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188-189 in submitting that the motion of 22nd April, 2002 did not violate any of the principles laid down in Saraki vs Kotoye supra.

On the effect of Order 3 Rule 18 of the Court of Appeal Rules, 2002 learned counsel submitted that the Rule in question envisages a substantive appeal, not an application; that a matter struck out can be brought back as there is a clear difference between an order striking out a matter and the one dismissing a matter; and urged the court to resolve the issue against the appellant.

To begin with, it is important to reproduce the proceedings of 26th April, 2004, which deals with the withdrawal and consequent order of striking out of the motion of 13th October, 2003. It is as follows:-

“J. O. Adesina (Mrs) for the appellant with Miss A. Adebiyi. A. O. Ebong for the respondent

Mrs. Adesina: I apply to withdraw motion filed on 13/10/ 03.

Mr. Ebong: Not objecting.

Court: Motion filed on 13/10/03 and withdrawn by the applicant is hereby struck out.

Mrs. Adesina: I filed another motion of same reliefs as the one, struck out ‘It wasfiled on the 22nd April, 2004. The respondent has been duly served.

Mr. Ebong: We have been served. We ask for time to respond.

Court. Motion adjourned to 3rd day of June, 2004 for hearing.

Sign

26th April, 2004”.

The above record of the lower court is very clear and unambiguous. The lower court’ reached a decision upon application by counsel for the present respondent to withdraw a motion filed on 13th October, 2003 by striking out same as the withdrawal was not opposed. Learned counsel for the appellant may be under no legal obligation to oppose the application to withdraw the motion as has been argued but I am of the considered view that the lower court haven reached a decision to strike out the motion, it is the duty of the appellant,: if he disagrees with the order striking out the motion instead of dismissal to have appealed against same simpliciter. In the instant case, there is no such appeal.

Rather learned counsel, for the appellant on the date fixed for the hearing of the motion filed on 22nd April, 2004 raised a preliminary objection which in effect, among others, attacked the propriety of the order striking out the earlier motion thereby calling on the lower court to review its decision as to the appropriate order to make in the circumstance. The same posture has been taken and maintained by the appellant before this court.

This is obviously erroneous. A party who disagrees with the decision of a court, has the right to appeal against same either of right or with the leave of court, except the decision is that of this court, which is considered final; it is wrong to challenge the decision of a court of law under the guise of a preliminary objection, whether written or oral since the lower court, by striking out the motion of 13th October, 2003, became functus officio and cannot entertain, any further proceedings in respect of the appropriateness of the order made therein. The only court competent to do so is an appellate court which can only review the decision upon a proper appeal against same.

Appellant could have appealed against the above decision of the lower court under either section 233(2) or 233(3) of the 1999 Constitution depending on whether his appeal falls within the category of appeals as of right or with leave of the courts but he did not utilize that opportunity. It is settled law that where a party fails or decides not to appeal against any decision of a court of law, he is deemed to have accepted that decision and is consequently bound by it.

Section 318 of the 1999 Constitution defines “decision” as follows:- .

“decision” means, in relation to a court, any determination of that court and includes judgment, act, order, conviction, sentence or recommendation”.

It is very clear that the order of the lower court striking out the motion of 13th October, 2003 falls within the above definition and consequently appeacable. The appellant not haven appealed against that decision cannot now be heard to complain against it.

The above notwithstanding, is the lower court functus officio in respect of the motion of 22nd April, 2004 haven struck out the motion of 13th October, 2003 It is not disputed that as at the time the motion of 13th October, 2003 was withdrawn and consequently struck out, it had not been heard and a decision on the merit taken by the court. A decision on merit is one rendered after argument and investigation and a determination as to which of the parties is in the right, as distinguished from a judgment or decision rendered upon some preliminary or formal part or by default and without trial – see UTC vs Pamote & Ors. (1989) 1 NSCC 523 or (1989) 2 NWLR(Pt. 103) 244; Mohammed vs Hussein (1989) 14 NWLR (Pt. 584) 108 at 144: Ukachukwu vs UBA (2005) 18 NWLR(Pt. 956) at 60. There was no decision by the lower court on the prayers on the motion of 13th October, 2003 at all. It follows therefore that the argument on the issue of the court being functus officio in respect of the matter is misconceived.

On the issue as to whether the motion filed on 22nd April, 2004 was in abuse of court process, it is important to note that the circumstances in which an abuse of judicial process can be said to exist have been stated in a number of decisions of this court including Saraki vs Kotaye (1992) 9 NWLR (Pt.264) 156 at 188-189 to include the following:-

“(a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.

(b) ‘Instituting’ different actions between the same parties simultaneously in different courts even though on different grounds.

(c) Where two similar processes are used in respect of the exercise of the same right, for example a cross appeal and a respondent notice.

(d) ‘Where an application for adjournment is sought by a party to an action to bring an application to court for leave to raise issues of fact, already decided by courts below.

(e) Where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness.”

From the facts disclosed on record, it is clear that though as at the time the court sat on 26th April, 2004 there existed two different motions pending before the lower court seeking the same reliefs – one filed ,on 13th October, 2003 and the other on 22nd April, 2004 – the one filed on 13th October, 2003 was withdrawn by learned counsel for the respondent herein and consequently struck out, as disclosed in the proceedings of 26th April, 2004 earlier reproduced in this judgment. By the withdrawal and consequent striking out of the motion of 13th October, 2003 that motion ceased to exist in law in the proceedings. The only motion that existed subsequent to the striking out of the motion of 13th October, 2003 is the one filed on 22nd April, 2004 which was adjourned for hearing to the 3rd June, 2004. It is clear from the record that as at 3rd June, 2004 the only motion that existed and was heard on that day is the motion filed on 22nd April, 2004; the motion of 13th October, 2003 haven been withdrawn and consequently struck out. It no longer existed side by side with the motion filed on 22nd April, 2004.

It is clear and I hold the considered view that the motion of 22nd April, 2004 cannot, under the circumstance and having regards to the law applicable to the issue of abuse of court process, be said to be in abuse of court process. It would have been an abuse of court process if the motion of 13th October, 2003 had not been withdrawn and struck out i.e if both ambitions had been allowed to continue to exist in the court file side by side and at the time the motion of 22nd April, 2004 was heard. In this case, the motion of 13th October, 2003 had ceased to exist as at 26th April, 2004 when it was withdrawn and struck out, leaving the coast clear for the motion of 22nd April, 2004 to be moved and either granted or refused by the court.

Learned counsel for the appellant has submitted that under the provisions of Order 3 Rule 18(5) of the Court of Appeal Rules 2002, the motion haven been withdrawn at the stage in which it was withdrawn the proper order is not striking out but dismissal. While it is correct that under the provisions of the above Rule an appeal withdrawn with or without an order of the court shall be deemed to have been dismissed, the provision does not apply to a motion filed in the Court of Appeal to relist an appeal earlier dismissed. The motion filed on 13th October, 2003 which was withdrawn and struck out was not seeking leave to appeal or extension of time to appeal which, by the operation of the Rules of the court, would have been treated as being the same as an appeal. In any event, I have earlier found that appellant never appealed against the order striking out the motion filed on 13th October, 2003 particularly as the instant appeal is also not against the legal effects of the said withdrawal and consequent striking out. The proper and legitimate issue in this appeal is simply whether having regards to the facts and circumstances of the case the .lower court exercised its discretion in granting the motion of 22nd April, 2004 judicially and judiciously, as the decision of that court striking out the motion of 13th October, 2003 which was withdrawn without objection can only be challenged by way of an appeal, not by preliminary objection either written or oral, as the appellant has tried labouriously to do in this case.

On issue 2, learned counsel for the appellant submitted that though it is the law that appellate courts are usually reluctant in questioning the exercise of discretion by the lower court, the courts will intervene when it is clear that the exercise of the discretion by the lower courts was “manifestly wrong, arbitrary, reckless, injurious” relying on University of Lagos vs Olaniyan (1985) 7 NWLR (pt. 1) 156 at 763: Eze vs AG Rivers State (2001) 18 NWLR (Pt. 746) 524 at 545: General & Aviation Services Ltd vs Thanal (2004) 10 NWLR (Pt. 880) 50 at 90- 91; that the relistment of the appeal of the respondent was done contrary to well established principles; that the respondent did not prove the allegation of forgery which was the foundation for the motion for relistment either beyond reasonable doubt or at all; that the affidavit evidence in support of the application was be deviled with falsehood, insincerity, inconsistency’91 and suppression and misrepresentation of facts that no reasonable tribunal could have granted the application; that the doubts created by the lowgrade evidence of the respondent ought to have been resolved in favour of the appellant; that by virtue of the provisions of Order 8 Rule 12(2) of the Supreme Court Rules 1985 and by virtue of the authority of Okomalu vs Akinbode (2007) 2 SCNJ (Pt. 31) 171 at 191; Global Transport Oceanico S.A vs Free Enterprises (Nig) Ltd (2001) 5NWLR(Pt. 706) 426 at 442; Eze vs Rivers State supra at 544 etc, etc, this court has the power to carry out a complete review of the respondent’s application in this matter, and to make any orders thereon which ought to have been made by the lower court having regards to the facts and the applicable law as the examination of the affidavit evidence does not involve any question as to the demeanor of witnesses. Finally, learned counsel urged the court to resolve the issue in favour of the appellant and allow the appeal.

On her part, learned counsel for the respondent submitted that having regards to the facts of the case relevant to the application, there was no valid notice of withdrawal of the appeal and that the lower court has the vires to set aside its order fraudulently obtained by a party before it. By way of elaboration, learned counsel cited and relied on the provisions of Order 3 Rules 18(2) and (4) of the Court of Appeal Rules, 2002 and submitted that a closer reading of the provisions does not support the interpretation that once an appeal is withdrawal, the withdrawal operates as a bar to further proceedings by the appellant; that it rather operates as “a bar to further proceedings on any application made by the respondent under Rule 14 of the Order”, submitting in the alternative, learned counsel submitted that Notice of Withdrawal filed on 26th September, 2002 was not franked in accordance with the decision of the court in Okafor vs Nweke (2007) 10 NWLR (Pt. 1043) 521 at 530 – 531 particularly as spelt out as’ the respondent acts through agents being a corporate entity; that a court is competent to set aside its own judgment under certain circumstances as decided in Dickson Co. Ltd vs Ezenduka (2002L.1 NWLR (Pt.748) 468 at 493;

Igwe vs Kalu (2002) 14 NWLR.1Pt.787) 436 at 453-454: Ebe vs Ebe (20041 3 NWLR (pt. 860) 215 at 243: Odofin vs Olabanji (1996) 3 NWLR (Pt. 435) 126 at 133; that there were many irregularities in the matter such as;

(a) that the default judgment of the trial court was a nullity as there was no statement of claim properly so called before that court;

(b) the notice of withdrawal of appeal purportedly filed by the appellant was not signed by the appellant as alleged, as none of the agents of the respondent through whom it could have acted in the process executed the notice of withdrawal; that the purported oral application to withdraw the appeal by one Michael Asibe on 23rd of January. 2003 did not conform with the provisions of Order 3 Rule 18 of the Court of Appeal Rules, 2002 neither did it comply with the decision in Okereke vs NDIC (2003) 2 NWLR (Pt.804) 218 and urged the court to resolve the issue in favour of the respondent and dismiss the appeal.

It is the case of the appellant that the respondent failed to prove the case of forgery of the Notice of Withdrawal beyond reasonable doubt as the allegation is criminal in nature; that Bob Ezeh whose signature is said to have been forged was never called to testify as to the falsity of the signature on the notice of withdrawal of appeal; that there was no evidence upon which the lower court could arrive at the conclusion that the signature on the Notice of Withdrawal was not that of C.B. Ezeh Esq.

However, going through the ruling of the lower court, the court made certain fundamental finding of fact on the application which includes the following:-

(a) that Mr.Bob Ezeh was counsel for the appellant in that court at the time material to the notice withdrawal.

(b) that Mr. Michael Asibe of counsel was counsel who represented the appellant in that court in the proceedings of 23rd January, 2003 as evidenced in Exhibit FHA 11;

(c) that appellant before that court denied ever instructing, Mr. Ezeh or Mr. Asibe to withdraw the appeal;

(d) that a comparison of the signature on Exhibit FHA10 with the undisputed signature of Mr. Bob Ezeh on Exhibit tt10 and its annexture show clearly that the signature on Exhibit FHA10 is way off from and vastly different from the undisputed signature of Mr. Ezeh in Exhibit tt10 and on the statement of defence/counter claim;

(e) that there is no similarity between Exhibit tt10 and any of the undisputed signatures of Mr. Ezeh on Exhibit tt10 and the statement of defence/counter claim.

The lower court consequently held thus:

“I therefore hold that the appellant has satisfactorily proved beyond reasonable doubt that the signature on Exhibit FHA10 on which the proceedings of the court on 23rd January, 2003 were’ based was an attempted forgery of the signature of Mr. Bob Ezeh of counsel who was retained by the appellant for the purposes of this appeal.

In the event, even if Mr. Michael Asibe was a counsel in the chambers of Mr. Bob Ezeh, he could not properly have appeared in the proceedings of this court in the Appeal NO. CA/A/60/2002 based on a Notice of Withdrawal of appeal which the appellant did not give instructions for and on which the signature of instructed counsel was forged and a nullity”.

I have carefully gone through the affidavit evidence on record and have come to the conclusion that the findings and conclusion of the lower court on the relevant facts and issues cannot be faulted. The court compared the specimen, signature of Mr. Ezeh of counsel on the disputed notice of withdrawal of appeal with the undisputed signature of the said Mr. Ezeh on the statement of defence/counter claim which was exhibited by the present appellant and came to the emphatic conclusion that there was no similarity between them and that the purported signature of Mr. Ezeh on the Notice of Withdrawal of appeal is a forgery.

It is settled law that a court of law faced with disputed signature has the power to compare the disputed signature with any signature agreed to be an undisputed or genuine signature. In such a circumstance, I hold the view that the owner of the disputed signature need not swear to any affidavit or testify to deny the purported signature particularly as there exists before the court, his genuine signatures to be compared with the disputed signature, as in the instant case.

It should be noted that from the passage quoted from the ruling of the lower court, the basis of the conclusion of that court on the application before it is simply that the signature of Mr. Ezeh, of counsel for the appellant before that court, on the Notice of Withdrawal of appeal which formed the basis of the withdrawal and consequent dismissal of the appeal by that court is a forgery and consequently a nullity. It therefore does not matter whether Mr. Michael Asibe who appeared in court to withdraw the appeal based on the said forged notice of withdrawal was counsel in the chambers of Mr. Bob Ezeh or not. The fact is that he appeared in court on that day, the 23rd January, 2003, and did move the court on the forged notice of withdrawal.

It follows therefore that the argument of learned counsel for the respondent that the notice of withdrawal of appeal was incompetent or null and void because it was signed by a non existent legal practitioner etc, etc has no foundation in the ruling of the lower court. It should be noted that there is no respondent’s notice calling on this court to affirm the decision of the lower court on any other ground other than what has been stated by the court in its ruling neither is there any cross appeal by the respondent in this appeal, in which the issue could have been raised.

It follows therefore, in my opinion, that the argument of learned counsel for the respondent in that respect is very much msiconcieved and of no consequence. The decision of this court in the case of Okafor vs Nweke supra is therefore irrelevant to the facts of this case having regards to the ruling of the lower court on appeal, the grounds of appeal and the issues arising therefrom.

The next-sub-issue to be determined is whether the lower court has the power to set aside its earlier order dismissing the appeal based on a purported notice of withdrawal.

It is settled law that courts of record have the inherent jurisdiction to set aside their judgments/decision/order, in appropriate cases or under certain circumstances which include:

When:

(i) the judgment is obtained by fraud or deceit either in the court or of one or more of the parties;

(ii) the judgment is a nullity;

(iii) it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it;

(iv) the judgment was given in the absence of jurisdiction;

(v) the proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication;

(vi) where there is fundamental irregularity. See Igwe vs Kalu (2002) 14 NWLR (Pt 787) 436 at 453-454: Ebe vs Ebe (2004) 3NWLR (Pt. 860) 215 at 243: Odofin vs Olabanji (1996) 3 NWLR (Pt.435) 126 at 133.

In the instant case and as found by the lower court, the notice of withdrawal of the appeal which formed the basis of the dismissal of the appeal by the lower court was a forgery thereby rendering that decision a nullity. In the circumstance, it is dear and I hold that the lower court was right in setting aside the decision of 23rd January, 2003 and restoring appeal NO.CA/A/60/2002 on the cause list to be dealt with on the merit.

In conclusion, I find no merit whatsoever in this appeal which is accordingly dismissed with N50,000.00 (fifty thousand naira) costs against the appellant.

I affirm the decision of the lower court in its ruling delivered on the 11th day of November, 2004.

Appeal dismissed.

---

SC.12/2005

Chief S.O. Agbareh & Anor V Dr. Anthony Mimra & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

I.F. OGBUAGU, JSC

The 2nd Respondent – a German Company, appointed the 2nd Appellant, as its only Agent for the purpose of procuring contracts for the installation of Traffic Lights in the Federal Capital Territory, Abuja (Traffic Light Project). Both parties, entered into a written Agreement dated 30th November 1992 and 1st December, 1992 respectively. (See pages 111 to 115 and 116-119 of the Records). The two Agreements, provided for arbitration in respect of any dispute that may arise between the parties relating to the interpretation of the said Agency Agreements (See Clause 18). By the two Agreements, the 2nd Respondent, agreed to pay the 2nd Appellant, a remuneration of 35% (thirty-five percent) of the contract price procured by the 2nd Appellant. The 2nd Appellant, procured contracts from the Federal Capital Development Authority (hereinafter called “the FCDA”) and especially, the contract for the installation of Traffic Lights at 64 Junction, Abuja which was for the sum of N176,839,780.00 (one hundred and seventy six million, eight hundred and thirty-nine thousand, seven hundred and eighty naira) which was later, reviewed upwards to N505,779,424.50 (Five hundred and Five million, seven hundred and seventy-nine thousand, four hundred and twenty-four naira, fifty kobo) less withholding tax and VAT. The FCDA, was to effect payment in four installments. The 1st installment of the sum of N70,735,912.00 (Seventy million, seven hundred and thirty-five thousand, nine hundred and twelve naira), was paid by the FCDA. In terms of or in compliance with the said Agreements, the 2nd Respondent, paid the 2nd Appellant, the sum of N24,757,569.20 (Twenty-four million, seven hundred and fifty-seven thousand, five hundred and sixty-nine naira twenty kobo). A dispute later arose between the parties as a result of the 2nd Respondent, concealing from the 2nd Appellant, of relevant documents and the payment by the FCDA of the pending sum of N439,090,342.80 (Four hundred and thirty-nine million, ninety thousand, three hundred and forty-two naira eighty kobo) viz AIE NO. BD/398/96. Clauses 3 and 4 respectively of the Agreements, had provided thus: PAGE| 3 “The Company (i.e. the 2nd Respondent) shall give to the Agent (i.e. the 2nd Appellant) copy of every letter and or Agreement in relation to any contract procured by the Agent”. In other words, the dispute, was whether the 2nd Appellant, was entitled to any further payments of the said agreed remuneration. The 2nd Appellant, took out a suit at the High Court of Lagos in Suit No. LD/2992/96 against the 1st and 2nd defendants and the Central Bank of Nigeria, claiming the following reliefs: “(1)Specific performance of the terms and conditions by the Defendants of the Agreement dated the 3fh day of November, 1992 and the supplemental Agreement dated the 1st day of December, 1992 between the Plaintiffs and the Defendants. (2) An Order for a clean account of contracts in respect of all the Traffic Lights contracts at Phase 1 and Phase II, Abuja. (3) Payment over to the Plaintiffs of all outstanding sums found due to the Plaintiffs in accordance with the said agreement and INTEREST thereon at the current Central Bank of Nigeria rate per annum until the Commission and remuneration due is fully paid up to the Plaintiffs. (4) An Order directing the Defendants to give to the Plaintiffs a copy of every letter, agreement and document in relation to the contracts procured by the Plaintiffs. (5) INJUNCTION restraining the Defendants by themselves servants, agents, privies or any person by whatever name so called from disturbing, depleting and/or withdrawing any sum of money already collected or to be collected by the Defendants from the Federal Capital Development Authority, Abuja in respect of Abuja Traffic Lights installations subject matter of this Action and/or lodged in any of the Bank Accounts maintained or operated by the Defendants without paying the commission due to the Plaintiffs in accordance with the terms and conditions of the Agreements between the parties dated 30/11/92 and 1/12/92 respectively”. PAGE| 4 It need be stated that the 2nd Respondent did not file any process, but agreed to settle the matter amicably out of court. In consequence, terms of settlement, were agreed upon, prepared and signed by the parties and their respective counsel and subsequently, filed in court. Consent Judgment, was entered by Famakinwa, J. For ease of reference, the said Judgment which appears at page 20 of the Records, read inter alia, as follows: “………… By consent, Judgment is hereby entered in favour of the Plaintiffs against the Defendants (sic) in the following terms:- [1] That the Agreement dated the 30th day of November, 1992 and supplemental Agreement dated 1st day of December, 1992 is between Plaintiffs and the 2nd Defendant and are only binding on them.[2] That the 1st Plaintiff and 1st and 3rd Defendants are not parties to this Agreement referred to in (1) above and should not be parties to this Agreement. [3] That the 2nd Defendant has always performed its obligations under the Agreement and see no reason for this process [4] That the 2nd Plaintiff in accordance with the terms of the Agreement shall be paid 35% share of the current cheque being expected by the 2nd Defendant as per the AIE [Authority to Incur Expenditure] No. ED/398/1996 dated the 2nd August, 1996 [5] That the above payment be made within 7 days after the crediting of the amount to the account of the 2nd Defendant. [6] That the above is hereby made the consent Judgment of this Honourable Court. PAGE| 5 Dated at Lagos this 1st day of November, 1996”. [the underlining mine] After the above Consent Judgment, the FCDA, paid the 2nd installment of N314,572,275,66 (Three hundred and fourteen million, five hundred and seventy-two thousand, two hundred and seventy-five naira, sixty-six kobo) out of the said balance of N439,090,342.80 as stated on the said AIE No. BD/398/96 leaving a balance of N124,518.067.14 (one hundred twenty-four million, five hundred and eighteen thousand, sixty-seven naira, fourteen kobo) outstanding yet to be paid by the FCDA. The 2nd Respondent paid the 35% (thirty-five per cent) i.e. the sum of N110,100,296.50 (One hundred and ten million, one hundred thousand, two hundred and ninety-six naira fifty kobo) to the 2nd Appellant. Comment by me – there was no problem. The cause of the proceedings leading to the instant appeal, was/is the concealment by the 2nd Respondent from the 2nd Appellant, the payment by the FCDA to the 2nd Respondent, the 3rd installment of the sum of N71,169,942,32 (Seventy-one million, one hundred and sixty-nine thousand, nine hundred and forty-two naira thirty-two kobo). The Appellants, apart from instituting two separate actions to claim the 35% (thirty-five percent) share of the said contract sum – i.e. the 3rd Installmental payment, applied by Motion on Notice, for Attachment and/or Garnishee proceedings seeking for four (4) orders of the trial High Court by virtue of the Consent Judgment. The application came up before Rhodes-Vivour, J. (as he then was). The issue before His Lordship, was whether the said sum of N71,169,943.32 paid as the said 3rd installment, through an AIE voucher in 1997, was once and for all payment after the said Consent Judgment. While the Appellants asserted that the said payment, was the 3rd installmental payment for the said project, the 2nd Respondent, claimed and maintained that the said payment, was for a separate contract for the said project. After both counsel for the parties had addressed that court, in a considered Ruling delivered on 22nd April, 1999, the learned Judge, found specifically and as a fact at page 105 of the Records, that the basis of the Consent Judgment, is/was the said PAGE| 6 two Agreements of the parties. That the said sum of N71,169,943,32, was actually paid to the 2nd Respondent who lodged it in the 3rd Respondent’s Bank. That the sum of N773,990.80 (Seven hundred and seventy-three thousand, nine hundred and ninety naira, eighty kobo), should be paid to the 2nd Appellant forthwith by the 3rd Respondent/Cross-Appellant. The said Ruling, appears at pages 96 to 106 of the Records. The 1st and 2nd Respondents, dissatisfied with the said Ruling, appealed to the Court of Appeal, Lagos Division (hereinafter called “the court below”). They also, filed an application for stay of execution pending the hearing and determination of the appeal. On 12th October, 1999, the court below, in a considered Ruling, granted unconditionally, the application for a stay of execution. See pages 213 to 226 of the Records. Dissatisfied with the said Ruling, the Appellants appealed to this Court. In respect to the instant appeal to this Court, after the parties had filed and exchanged Briefs in the court below that heard arguments from the parties, on 10th May, 2000, the court below, (Coram: Oguntade, Aderemi, Sanusi, JJCA) in a considered Judgment, – per Oguntade, JCA (as he then was), allowed the appeal and held in the main, that paragraph/Clause 4 of the said Consent Judgment, did not apply to the payment of the said N71,169,943.32 such that one could hold that by force of the said Consent Judgment, the 2nd Respondent, was bound to pay the 2nd Appellant, the said sum of 24,480.11 representing 35% of the payment under the said Clause 4. Dissatisfied with the said Judgment, the Appellants, have appealed to this Court on four (4) grounds of appeal. Without their particulars, they read as follows: “GROUND ONE: The learned Justices of the Court of Appeal misdirected themselves infact when they found that the 2 Respondent was not bound to pay the 2nd Appellant the sum of N24,909,480.11 representing 35% of the sum of N71,162(sic) 943.32 being the second payment received after the consent judgment despite the subsisting agreement entered as c onsent judgment between the parties. PAGE| 7 GROUND TWO: The learned Justices of the Appeal (sic) misdirected themselves on the facts and occasioned a miscarriage of justice when they failed to consider the issues for determination raised and argued by the Appellants (as Respondents before the Court of Appeal) arising from the Grounds of Appeal filed before the Court of Appeal when the presiding Judge (sic) stated thus: “The Judgment Creditor also formulated four issues for determination but I shall be guided in this judgment by Appellants issues for determination”. GROUND THREE: The learned Justices of Appeal (sic) misdirected themselves on the facts when they only pronounced on Clause 4 of the Consent Judgment rather than reading interpreting (sic) the Consent Judgment as a whole document and particularly clause ONE thereof which stated that parties are bound by the two agreements of 30/11/96 and 1/12/96 respectively. GROUND FOUR: The Judgment is against the weight of evidence”. Observation It is noted by me that in the said Notice of Appeal dated and filed on 18th May, 2000 under the “part of the decision of the lower court complained of, the sum of the 3rd C.V. payment, is stated to be N71,162,243.3 2 while under GROUND ONE and its No.1 “particulars of misdirection”, the sum is stated to be N71,162,943.32. But under “Relief Sought”, from this Court, the sum stated, is PAGE| 8 N71,169,942.32k. This is really, with respect, not only confusing, incorrect and indeed, very disgusting to me. The Appellants have formulated two (2) issues for determination, namely: “ISSUE ONE Whether having regards to the Agreement dated 30/11/92 and 1/12/92 between the 2nd Appellant and the 2nd Respondent under which various payments have been made relating to the Traffic Light project and realizing that the two said agreements were the pivot in the Consent Judgment of 1/11/96 between the parties, the Court of Appeal was right in isolating clause 4 of the consent judgment for decision on the ground that the word “Current” therein referred only to the 2nd payment embodied in the said Consent Judgment and that the 2nd Appellant was not entitled to the payment of 35% of N71,169,943.32 being the 3rd C.K payment for the installation of Traffic Lights at Abuja even though Parry Osayande and Parry Blue Chips had been paid by the 2nd Respondent out of the 3rd C.V. payment. ISSUE TWO Whether there is breach of the provision of Rules 10 and 26 of the Rules of Professional conduct in the Legal Professional (sic) published in the Federal Republic of Nigeria Official Gazette No. 5 of 18th January, 1990 Volume 67 by Messrs. Kehinde Sofola & Co. who acted for the 2nd Appellant and others in settlement at a stage of the dispute among the Parties for which he was paid N500,000.00 as legal fees by the 2nd Appellant in connection with the execution of the Installation of Traffic Light Project at Abuja the subject matter of this Appeal”. On its part, the 1st and 2nd Respondents, have formulated what they describe as “the only competent issue that can rightly arise from the appeal of the Appellants…….” It reads thus: PAGE| 9 “Whether the Court of Appeal was right when it held that the sum of N71,169,943,(sic) later paid to the 1st and 2nd Respondents by the Federal Capital Development Authority (after the Appellants had been paid 35% share of the current cheque being expected as per paragraph 4 of the consent judgment) does not form part of paragraph 4 of the consent judgment of 1st November, 1996”. When this main appeal and the Cross-Appeal of the 3rd Respondent/Cross-Appellant, came up for hearing on 16th October, 2007, the Appellants and their learned Counsel, were absent without any reason brought to the attention of the Court. However, the Clerk of Court, informed the Court that the learned counsel for the Appellants – one Oji, Esq., was in Court on 17th October, 2006, when this instant appeal was adjourned to 16th October, 2007 for hearing. That in spite of this fact, Hearing Notices, were also sent out to the parties on 6th November, 2006. Kayode Sofola, Esq., (SAN) – learned Counsel for the 1st and 2nd Respondents, with him Ikolodo (Miss), told the Court that the Appellants’ Brief dated 11th June, 2001, was filed on 12th June, 2001 and that they also filed a Reply Brief on 27th May, 2004. That the Appellants’/Cross-Respondents’ Reply Brief to the Cross-Appellant’s Brief, was filed on 6th October, 2004. He also referred the Court to the Appellants’/Cross-Respondents’ Brief to the Cross-Appellant’s Brief filed on 11th May, 2005. The learned SAN also told the Court that the 1st and 2nd Respondents, filed their Brief on 18th February, 2004 and their Brief in response to the 3rd Cross-Appellant’s/Respondent’s Brief on 27th September, 2004. He adopted their two (2) Briefs and urged the Court, to dismiss the appeal. Learned Counsel for the 3rd Cross-Appellant – Ezekwueche, Esqr., told the Court that they did not file any Brief in respect of the main appeal, but that they filed a Brief in respect of their own Cross-Appeal, on 5th September, 2002 and the Cross-Appellant’s Reply Brief on 14th January, 2005. He adopted the said Briefs and urged the Court, to allow the 3rd Respondent’s/Cross-Appellant’s appeal. He stated that he represents the Garnishee and that they want the Court to make an Order that whosoever wins, should collect the money from his client. He however, stated that the Garnishee order, has been set aside. PAGE| 10 Query – As a result of the Court of Appeal Judgment? Pursuant to Order 6 Rule 8(6) of the Rules of this Court (as Amended in 1999), the appeal of the Appellants, was treated as having been argued and will be considered as such. Judgment was thereafter, reserved till to-day. Before going into the merits of this appeal, I wish to further observe that it appears to me, with the greatest respect, that no seriousness and diligence, were also employed/exhibited in the preparation or vetting of the Appellants’ Brief of Argument. This is worrisome and regrettable. At page 1 thereof, under INTRODUCTION/ STATEMENT OF FACTS – first paragraph, it is therein stated inter alia: “By an Agreement…….. between the 2nd Appellant and the 2nd Respondent, the 2nd Appellant (instead of the 2nd Respondent) appointed the 2nd Respondent (instead of the 2nd Appellant) as the only agent………………. Abuja” See and compare with the immediate paragraph after CLAUSE 12. Reading down the said Page 1 in what I regard as paragraph 6, the following appears: “From the 1st installment of N70,735,912.00 the 2nd Appellant was paid N24,757, 569.20 by the 2nd Appellant (instead of 2nd Respondent) being 35% of the said sum” At page 3 thereof, the calculation of the amounts paid, are erroneous and misleading. For instance, where the figure/amount of N314,572,275.66 should have been stated, what appears at the first paragraph is N314,572.66 which is stated to be PAGE| 11 “out of the sum of N439,090,342.80 stated on the AIE No. BD/398/96 leaving a clear balance of N124,518,067.14 outstanding yet to be paid ……. 2nd Respondent”. At page 11 thereof – first paragraph, it is stated inter alia, thus: “Immediately after the Consent Judgment, the FCDA however was only able to pay N314,572,276.66 as 2nd CV payment and the 2nd Respondent paid N110,100,296.50 to the 2nd Respondent (instead of the 2nd Appellant) leaving a balance ……. to the 2nd Appellant”. At the said page 11 of the Brief, in paragraphs 3, 4 and 5, what appears throughout, is stated to be N71,743.32 (instead of N71,169,942.32). Lastly, the said Issues of the parties, were not related to any of the Grounds of Appeal. In my respectful view, only one issue is relevant in the determination of this appeal – namely Issue ONE of the Appellants and the lone issue of the 1st and 2nd Respondents which arise from Grounds 1, 3 and 4 of the Grounds of Appeal. Since no issue was raised by any of the parties in their respective Briefs in respect of Ground Two of the Grounds of Appeal, I will ignore/discountenance it and accordingly, strike out the ground, on the settled law and practice of the Appellate Courts firstly, that the courts consider only the issues and not the Grounds of Appeal. See the cases of Sabiba v. Yassin (2002) 2 SCNJ. 14 at 24 2002 55cm as and Ezemba v. Ibeneme & Anor. (2004) 7 SCNJ 136 at 155-156. 2004 8scm 96 Secondly, a Ground of Appeal, not having any argument proffered to cover it, is deemed abandoned and will be struck out. See the cases of Alhaji Are & Anor. v. Ipaye & Anor. (1986) 3 NWLR (Pt.29) 416 at 418 C.A.: Chukwuosor v. Obuora (1987) 3 NWLR (Pt.61) 454 at 479 (1987) 7 SCNJ 191 also cited in the case of Lamboye & 3 Ors. v. Ogunsiji & 2 Ors. (1990) 6 NWLR (PUSS) 201 at 231-232 C.A; Ndime v. Okocha (1992) 7 NWLR (Pt.252) 129; (1992) 7 SCNJ, 355 and Ngilari v. Mothercat Ltd. (1995) 8 NWLR (Pt.311) 377 just to mention but a few. This is because, a Ground of Appeal, must have an issue to cover it. See Ibrahim v. PAGE| 12 Mohammed (1996) 3 NWLR (Pt.437) 453; Dieli & ors. v. Iwuno & ors. (1996) 4. NWLR (Pt.445) 622; (1996) 4 SCNJ. 57; Osun v. Asemah (2002) 4 NWLR (Pt.256) 208 and many others. Finally, an Appellate Court can, prefer an issue or issues formulated by any of the parties and can, itself and on its own, formulate an issue or issues which in its considered view, is/are germane to and is or are pertinent in the determination of the matter in controversy. See the cases of Musa Sha (Jnr.) & Anor. v. Da Rap. Kwan & 4 Ors. (2000) 5 SCNJ. 101; Lebile v. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nig. Ugbebla & 3 Ors. (2003) 1 SCNJ. 463 at 479 2003 2scm 39 and Emeka Nwana v. Federal Capital Development Authority & 5 Ors. (2004) 13 NWLR (Pt. 889) 128 at 142-143; (2004) 7 SCNJ. 90 at 99. 2004 7scm 25 citing several other cases therein. In my respectful view therefore, the excerpt reproduced under this Ground Two, amounts to no more, than the learned Justice, stating that he preferred the issues formulated by the said Appellants. His Lordship, was entitled to do so, provided, that those issues so formulated, clearly took care of the main controversy between the parties. I have already stated that since none of the parties formulated any issue in respect of the said ground two, the said ground stands and remains struck out. Let me therefore, once again, passionately appeal to some or few learned counsel who prepare and file processes in all our Superior Courts of Record and more especially in the Appellate Courts and in this Court in particular, to be more painstaking, and exercise patience in preparing their documents and vetting them before they are filed in the courts. Even if their services are free of charge, but as professionals, once a case or a brief is accepted, then, there is a duty on the part of such counsel, to do a thorough job in respect of processes to be filed in the court. Learned Counsel must bear in mind and in fact or indeed, assume, that those documents, will be read by the Judge or Justices hearing and determining the case or matter. In this appeal, with utmost respect to the parties and their learned counsel, the issue, is the interpretation of the Consent Judgment as a whole and not just that of paragraph/Clause 4 in isolation. Documentary evidence in this matter, is crucial. There is therefore, in fact, speaking for myself, no need for any oral evidence which may amount to giving evidence in respect of the contents of a document or documents. This is because of the settled law firstly, PAGE| 13 that prima facie, oral evidence will not be admitted to prove, vary or alter or add to the term of any contract which has been reduced into writing when the document, is in existence except the document itself. See the cases of Da Rocha v. Hussain (1958) 3 FSC 89 at 92 (1958) SCNL 280 and S.C.O.A. (Nig.) Ltd, v. Bourdex Ltd. (1990) 3 NWLR (Pt.138) 3 80 & 389 and many others. Secondly, documentary evidence it is settled, is the best evidence. See the case of The Attorney-General, Bendel State & 2 Ors. v. United Bank for Africa Ltd. (1986) 4 NWLR (Pt.37) 547 at 565. In the case of FSB International Bank Ltd, v. Imano (Nis.) Ltd. (2000) 11 NWLR (Pt.679) 620 at 637; (2000) 7 SCNJ. 65, this Court – per Achike, JSC, (of blessed memory) stated inter alia, as follows: “I must emphasise that having regard to the nature of this application and there being nothing but documentary evidence placed before us that this Court is in as good a position as the High Court, as well as the Court of Appeal, to examine the entire documentary evidence and the other documents placed before the lower courts”. In my respectful view therefore, the mere fact that the parties did not testify and tender the said Agreements between them, is of no moment or consequence and it is immaterial in the circumstances of the case leading to this instant appeal. Firstly, there is no dispute between the parties to the said Agreements, that the Agreements do not exist or that they did not sign/execute the same. Secondly, the said Agreements are part of the contents of the Records sent to this Court from the court below. In other words, these said Agreements, were before the two courts below. The law is settled that Records of Proceedings/Appeal, bind the parties and the court until the contrary is proved. See the cases of Horst Sommer & Ors. v. Federal Housing Authority (1992) 1 NWLR (Pt.219) 548; (1992) 1 SCNJ.73. Texaco Panama Incorporation (Owners of Vessel “M.V. Star Tulsa”) v. Shell Petroleum Development Corporation of Nig. Ltd. (2002) 2 SCNJ.102 at 118. (2002) 2 SCNJ. 102; 2002 3SCM and Chief Fubara & ors. Chief Minimah & Ors. (2003) 5 SCNJ. 142 at 168, (2003) 9SCM 173 just to mention but a few. This is because, there is the presumption of its genuineness, although this PAGE| 14 is rebuttable. See the case of Alhaji Nuhu v. Alhaji Osele (2003) 18 NWLR (Pt.852) 251 at 272; (2003) 12 SCNJ. 158 at 172. 2003 12scm 253 Again, a court is entitled to look at the contents of its file or Records and refer to it in consideration ofany matter before it. See the cases of West African Provincial Insurance Co. Ltd, v. Nigerian Tobacco Co. Ltd. (1987) 2 NWLR (Pt.56) 299 at 306; Osafile v. Odili Ltd. (1990) 3 NWLR (Pt.37) 130; (1990) 5 SCNJ. 118; Chief Asbaisi & Ors. v. Ebikorofe & Ors. (1997) 4 NWLR (Pt.502) 630 at 648; (1997) 4 SCNJ. 147 at 160; Agbohomovo & 2 Ors. v. Eduyegbe & 6 Ors. (1999) 3 NWLR (Pt.594) 170; (1999) 2 SCNJ. 94 citing two other cases therein and Jikantoro & 6 Ors. v. Dantoro & 6 Ors. (2004) 5 SCNJ. 152 at 177 2004 5scm 08 – per Edozie, JSC, just to mention but a few. See also Section 74/75 of the Evidence Act. In the circumstances of the above established law, I will therefore, treat or deal with the said Issue ONE of the Appellants together with the lone issue of the 1st and 2nd Respondents. I have earlier in this Judgment, reproduced the said Consent Judgment. No. 1 thereof states, “That the Agreement dated 30th day of November, 1992 and supplemental Agreement dated 1st day of December, 1992 “is (sic) between Plaintiffs and the 2nd Defendant (i.e. the 2nd Respondent) and are binding”. (the underlining mine) Of course, the Consent Judgment talks about the said two Agreements between the Appellants and the 1st and 2nd Respondents. These two said Agreements, have already been referred to by me in this Judgment and they can be found at pages 110 to 119 of the Records. They are part of the Records before the court below and this Court and also referred to in the said Consent Judgment at page 20 of the Records. Of course, it is also settled that if parties enter into an Agreement, they are bound by its items and that one or the court, cannot legally or properly, read into the Agreement, the terms on which the parties have not agreed and did not agree to. See the case of Evbuomwan & 3 Ors .v. Eleme & 2 Ors. (1994) 7-8 SCNJ. (Pt.II) 243. PAGE| 15 Also settled, is that an Agreement is binding only on the parties thereto and not on third parties. See the case of W.D.N. Ltd, v. Oyibo (1992) 5 NWLR (Pt.239) 77 at 100 – 101 C.A. Thus, if and where there is any disagreement as to what is or are the term or terms of an Agreement on any particular point, the authoritative and legal source of information for the purpose of resolving the disagreement, is of course, the written Agreement executed by the parties. So said this Court in the cases of Union Bank of Nigeria Ltd, v. Sax (Nig.) Ltd. & Ors. (1994) 9 SCNJ. 1 at 12 and Mrs. Layode v. Panalvina World Transport Mg. Ltd. (1996) 7 SCNJ.l at 14-15 citing the cases of Olaloye (Mrs.) K Balogun (Madam) (1990) 5 NWLR (Pt.148) 24; (1990) 7 SCNJ. 205 and Union Bank of Mg. Ltd. & Prof. Ozisi (1994) 3 NWLR (Pt.333) 385: (1994) 3 SCNJ, 42. See also the case of Alhaji A. Baba v. Nigerian Civil Aviation Training Centre & Anor. (1991) 5 NWLR (Pt.192) 388 (1991) 7 SCNJ. 1. As a matter of fact, Section 132 of the Evidence Act states that only admissible evidence of a contract, is the contract itself although the Section, recognizes exceptions. See the case of Arjay Ltd. & 2 Ors. v. Airline Management Support Ltd. (2003) 7 NWLR (Pt.820) 577: (2003) SCNJ. 149 at 169, (2003) 5 SCM 17 At page 105 of the Records, the learned Judge in his said Ruling, stated inter alia, as follows: “The basis of the Consent Judgment is the Agreement freely entered into by the judgment creditor and the judgment debtor (2nd Plaintiff and 2nd Defendant). In the Consent Judgment the 2nd Plaintiff is to be paid 35% share of the cheque that was still being expected by the 2nd defendant as at 1/11/96, the date the Consent Judgment was entered for the parties. The sums were not paid to the judgment creditor. They ought to be paid. Accordingly the 5th Garnishee, the Fidelity Union Merchant Bank Ltd. is hereby ordered to pay the sum of N775,990.20 to the judgment creditor Ganishor forthwith”. At page 291 of the Records, the court below, rightly in my respectful view, identified the “central issues in the appeal” – i.e. PAGE| 16 “the different interpretations which the judgment/debtors and the judgment creditors gave to the Consent Judgment given by Famakinwa, J. on 1-11-96”. It is pertinent for me to observe, that the court below, identified this fact at page 293 of the Records where the following appear, inter alia: “As I said earlier, the 2nd defendant debtor paid to the 2nd judgment creditor the sum of N110,296.50 out of the sum of N14,572,275.66 paid to it on 28-2-97. On 7-10-97, the sum of N71,162, (sic) (169) 943.32 was paid to the 2nd judgment/creditor…..” It then posed the question thus: “The question that arises for consideration is – Did paragraph 4 of the Consent Judgment above apply to the payment of N71,162 (sic) 943.32 such that one could hold that by the force of the judgment, 2nd judgment debtor was bound to pay the 2nd judgment creditor the sum of N24,909,480.11 representing 35% of the payment? and it answered thus: “I think not”. It then stated inter alia, as follows: “The words of the Consent Judgment clearly speak for themselves. It was not for the court below to alter or vary them even if in the light of disputations before it, it thought that the parties might have intended something other than was recorded in the consent Judgment. ………..”. This last sentence, in my respectful view, was not so or true and it was unfair to the learned trial Judge.

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SC. 216/2006

The Reg. Trust. Of National Ass. Of Community Health Practitioner Of Nigeria & Ors. V. Medical And Health Workers Union Of Nigeria & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C

In the Federal High Court holden in Ilorin, the 1st appellant sought the following reliefs in an application for judicial review:-

“(i) An Order of Certiorari to remove into this Honourable court for purpose of being quashed the decision of the respondents contained in a letter dated 19th February, 2003 ref. No. ML.JB/147/1176 refusing the registration of the applicants a Senior Staff Trade Union.

(ii) Order of Mandamus compelling the respondents to register the applicant as a Senior Staff Trade Union under the Trade Union Act Cap. 437 as amended.

(iii) Declaration that it is unconstitutional, illegal, unlawful and against the provisions of convention 87 and 89 of the International Labour Organisation for the respondents to refuse to register the applicant as a Senior Staff Trade Union.

(iv) Declaration that it is ultravires the powers of the respondents to refuse, or neglect to register the applicant as a Senior Staff Trade Union without following the provisions of the Trade Union Act Cap 437 as amended or in total violation of the provisions of that Act.

(v) Order directing the respondents to forthwith register the applicant as a Senior Staff Trade Union.”

The grounds relied upon by the applicants for the reliefs sought are as follows:-

“(a) The decision of the respondents to refuse to register the applicant as a Senior Staff Trade Union was in clear breach of the provisions of the Constitution of the Federal Republic of Nigeria 1999, the provisions of the Trade Union Act, convention 87 and 89 of the International Labour Organisation and against the rules of natural justice.

(b) The respondents in coming to a decision refusing registration took irrelevant facts and material into consideration in coming to their conclusion on the matter.

(c) The rights of the members of the applicant to freely associate as guaranteed under the Constitution has been violently breached by the respondents.”

A verifying affidavit of the above facts had the following salient paragraphs: –

“5. That I know as a fact that in February, 1997 our Association was registered with the Corporate Affairs Commission as incorporated Trustees under part C. The copy of the certificate of registration dated 18th February, 1997 is attached as exhibit NAC 1.

6. That I know as a fact that the interest of our members is not being safeguarded or represented by any of the existing Trade Unions.
7. That I know as a fact that due to the fact in paragraph 6 supra the members of our Association resolved that we should register our Association as a Senior Staff Trade Union to effectively take care of our collective and individual interests all over Nigeria and in furtherance of our Constitutional right of free association.
8. That I know as a fact that in furtherance of the above, our Association vide its letter of 28th March, 2002 applied to the 1st respondent for registration as a Senior Staff Professional Association. A copy of the letter is attached and marked as exhibit NAC 2.
9. That I know as a fact that the 1st respondent in his letter of 24th April, 2002 directed our Association to the 2nd respondent. A copy of the letter is attached as exhibit NAC 3.
10. That I know as a fact that in compliance with exhibit NAC 3 our Association met with the 2nd respondent and the applicant met all the statutory requirements set out in the Trade Union Act to get itself registered as a trade union.
11. That I know as a fact that the 1st respondent responded to exhibit NAC 4 in his letter of 19th February, 2003 in which he stated that the applicant cannot be registered. A copy of the letter is attached as exhibit NAC. 5.
12. That our leading counsel Yusuf O. Ali Esq.; SAN told me and I verily believed him that:

(i) The 2nd respondent is the officer that has power under the law to register or refuse to a trade union.

(ii) The refusal to register a union must be in the prescribed form.

(iii) The 1st respondent has no power to usurp the statutory power of the 2nd respondent.

(iv) The right to form or belong to any association is constitutional and cannot be denied.

(v) The refusal of the respondents to register the applicant has eroded the constitutional rights of the members of the applicant.”

The respondents raised preliminary objection to the application on the following preliminary points of law which are:-

“1. That the applicants’ suit as commenced herein be struck out, the same being incompetent, unmaintainable and an abuse of Court process.

2. This Honourable Court lacks jurisdiction to entertain this suit in its entirety in that the Applicants herein lack locus standi to institute this action against the respondents.

Grounds of Objection

(a) The procedure adopted by the Applicant in commencing this suit by way of judicial review for an order of Certiorari is fatal to the Honourable Courts determination of the applicant’s cause of action (if any) in that the Honourable Court is limited to only affidavit evidence thereby.

(b) The use and/or employment of the procedure for judicial review is most inappropriate in the circumstances and amounts to an irregularity which this Honourable Court should not accede to.

(c) The Applicant herein lacks locus standi to institute this action against the Respondents; the Applicant not being a registered Trade Union by law.”

One Ibrahim Kwasaure of the Federal Ministry of Employment Labour and Productivity swore to a counter-affidavit to the motion on notice. Both affidavits were considered by the learned trial judge, who at the end of the day, overruled the objection. On 10/11/2003 the Medical and Health Workers Union of Nigeria applied to be joined in the application as defendant/respondent before judgment can be delivered on it. In its ruling for joinder as an interested party the Learned Federal High Court judge granted the application and ordered that the applicant be joined as defendant/respondent. The interested party as a 3rd respondent caused a counter-affidavit to be sworn to, and salient among the depositions are the following:-

“6. I am further aware that Alhaji M; A. Erena, the National President of the 3rd Respondent herein is a Community Health Practitioner and a member of the Applicant’s Association.

7. I am further aware that the following Community Health Practitioners/Workers are members of the 3rd Respondent Union and are currently holding the various executive posts in the 3rd Respondent Union too……..
8. I am aware that the 3rd Respondent Union has been organizing, safe-guarding and representing the interest of members of the Applicant in paid employment in all the States of the Federation since the Restructuring of Trade Unions in 1978.
9. I am also aware that under the Trade Unions (Amendment) Act, 1996 the 3rd Respondent Union herein was granted jurisdiction to organize and represent all Medical and Health Workers in all Medical and Health Institutions in the Country inclusive of members of the Applicant’s Association.
10. I am further aware that it was based on this state of the law that the 1st Respondent herein declined to grant the application of the Applicant as in Exhibit NAC 5 of the verifying affidavit in support of the Motion on Notice.
11. I am informed by 1. A. Oputa-Ajie Esq. of counsel and I verily believe him that:

(a) The 1st and 2nd Respondents herein have the power under the law to refuse the registration of any new Trade Union where there is already an existing Trade Union.

(b) The right to form or belong to any Association is a qualified right and as such can be denied to any person or group of persons.

12. I am further aware that none of the Respondents herein resides in Ilorin nor carry out their statutory functions in Ilorin within the jurisdiction of this Honourable court.”

After the address of learned counsel for all sides involved, the learned Judge granted the application, and held that the applicant was entitled to the reliefs sought in the matter. The respondents dissatisfied with the judgment appealed to the Court of Appeal. The Court of Appeal set aside the decision of the trial court. Further appeals were filed in this court by the applicant, and the 1st and 2nd respondents in the application before the Federal High Court. Briefs of argument were exchanged by learned counsel. As there are two separate appeals, I will treat the appeals individually. In the first appeal, brief of argument filed by the Senior Advocate for the appellant has the following issues for determination formulated therein. They are:-

“1. Whether the learned justices of the court below were right in setting aside reliefs (i), (ii) and (v) granted in favour of the appellant by the trial court on the ground that the appellant did not proof (sic) her entitlement to same having regard to the alleged non denial of paragraph 7 or the counter-affidavit of the 1st respondent which was clearly not so on record.

2. Whether the learned justices of the court below correctly interpreted the provisions of Sections 3 and 5 of the Trade Union Act Cap 437 viz-a-viz the provisions of Section 40 of the 1999 Constitution and the decision of this court in the case of Osawe v. Registrar of Trade Unions (1985) 1 NWLR (pt. 4) 255 when the facts, circumstances and antecedent of the case were totally different from the facts of the present case.
3. Whether the learned justices of the court below were not wrong in the view their Lordships took that relief No. (iii) was not properly granted in favour of the appellant by the trial judge on the ground that the provisions of Clauses 87 and 89 of the International Labour Organization Convention have no legal force in Nigeria having not been ratified by the National Assembly even though signed by Nigeria, when the decision of the trial court to grant the relief was based on other valid grounds not considered by the court below.
4. Whether their Lordships of the court below were right to have endorsed the ruling of the trial court that the 1st respondent was a proper party to the case, when it granted its application for joinder when in fact there was no relief claimed by the appellant against the 1st respondent, there was no counter claim by the 1st respondent and there was nothing in the case connecting it to the reliefs sought and granted by the trial court in favour of the appellant.”

A single issue for determination was raised in the 2nd and 3rd appellants’ brief of argument on the second appeal. The issue reads as follows:-

“Whether the ideals embodied in the ratified ILO conventions 87 and 98 have not become incorporated into Nigerian jurisprudence by virtue of similar rights preserved under cognate provisions in Municipal Trade Unions Acts and Legislations as to make its provisions justiceable in Nigerian Courts; and if not, whether recourse to the 1999 Constitution and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) CAP 10 Laws of the Federation of Nigeria 1990, containing identical provisions preserves a litigant’s rights, so as to negate the lower courts decision that the same have not been enacted into law and have no force of law in Nigeria.”

A single respondent’s brief of argument was filed and in the brief are the following issues formulated for determination:-

“1. Whether the Court of Appeal was right to have reversed the decision of the trial court grating reliefs i, ii and v claimed by the 3rd Respondent (now 1st Appellant) on the ground that there already exists a Union covering the interest of the 3rd Respondents (now 1st Appellant);

2. Whether the Court of Appeal was right to have reversed the decision of the trial Court by holding that the Minister of Labour and Registrar of Trade Unions were right have refused to register the Community Health Practitioners of Nigeria as a senior staff trade union, having regard to the totality of the evidence before the trial court and the subsisting state of statutory and judicial authorities.
3. Whether the Court of Appeal was right to have stated that relief iii. granted by the trial court was based on non-existing law having regard to the fact that relief iii. was predicated on ILO Convention 87 and 98.
4. Whether the Court of Appeal was right to have upheld the Order of joinder of the Medical and Health Workers Union of Nigeria Appellant (now Respondent) as an interested party in the proceedings by the trial court.”

I will commence the treatment of the appeals with the first appeal. An excerpt of the judgment of the court below attacked by the Learned Senior Advocate, in dealing with issue (i) in the appellant’s brief reads:-

“I have carefully gone through the affidavit Evidence before the court and I am of the view that these findings of the lower court, were not based on the evidence before that court. In the counter-affidavit filed by the Appellant dated 14th May, 2004 particularly paragraph 7 it was deposed to as follows:-

“7. I am further aware that the following Community Health Practitioners/Workers are members of the 3rd Respondent union and are currently holding the various executive position in the 3rd Respondent union too.

(a) Comrade Lot Dadiya. National vice President. North East.

(b) Comrade Halsam K. Lawan. Chairman. Yobe State Council.

(c) Comrade Muhammad Kadir. Chairman. Gombe State Council.

(d) Comrade Dambara Dogo. Chairman. Kaduna State Council.

(e) Comrade Al-Mumini. Chairman Kwara State Council.

(f) Comrade Musa Das. Chairman. Bauchi State Council.

(g) Comrade Ahmed Idris. Chairman. Jigawa State Council.

(h) Comrade Halilu Ismaila. Chairman. Zamfara State Council.

(i) Comrade A. Joseph. Chairman. Enugu State Council.

(j) Comrade U. U. Chairman. Taraba State Council.

(k) Comrade Hussan Obata. Chairman Nasarawa State Council.

(l) Comrade Ore. Chairman. Ogun State Council.”

In further affidavit in verification of the facts relied upon filed by the 3rd respondent in reply to the counter-affidavit filed by the appellant. this imponant averment was not denied. It is therefore crystal clear that the 3rd respondent indeed belonged to an existing trade union i.e. the appellant. (Italics mine for emphasis)

It is on this basis, my Lords, that 1 hold that the reliefs numbers (i), (ii) and (v) granted by the lower court cannot stand. I also wish to C point out that the right of freedom of association granted by section 40 of the 1999 Constitution is not absolute.

Learned Senior Advocate submitted that the above decision is totally wrong. He further submitted that a proper appraisal and understanding of the totality of the affidavit evidence more than justify the trial court’s decision granting the reliefs sought by the appellant which reads as follows:-

“The applicant was turned down for registration because it was alleged that there was an existing Trade Union taking care of her union activities. But by the Community Health Practitioners Decree No. 61 of 1992. the Federal Government enacted the legislation for the community Health Practitioners in the country to realise its community and rural health objectives. The question is why would the Registrar or Minister deny the workers Trade Union status if the government itself has carved the body out as a separate profession. It was avelTed by the Minister or Registrar that there was an existing Trade Union for that purpose but the bottom has been knockcd out of this contention by the letter of the Minister himself. exh. NAC 5 in paragraph

where their letter reads as follows:-

“8. By a copy of this letter, the Registrar of Trade Unions and the 2 unions contending for the unionisation of the members of the Community Health Practitioners are being informed of the Hon. Minister’s decision on the matter.”

This paragraph clearly shows that the situation is fluid contrary to the view that there is an existing trade union for the Applicant. The truth is that the Medical Workers Union and the National Union of Local Government Employees are contending for the unionisation of the applicant.

In my humble view, it is more discreet to allow them form a trade union within themselves rather than leave them at the mercy of the two contending forces which they do not want. Furthermore, this would be a fait accompli as the Federal Government itself recognised them as a profession by virtue of Decree 61 of 1992.

In the light of the above, I am of the view that the discretion of the Minister not to register the applicant as a trade union has not been judicially or judiciously exercised.”

The respondents have argued that the above finding of the lower court cannot be faulted. In my view paragraph (7) of the 3rd respondent’s counter affidavit is the pivot around which the present argument revolves, and it has already been reproduced above. The respondent in reply to the counter affidavit deposed the following in the further affidavit in verification of the facts relied upon:-

“5. That the General Secretary of the National Association of Community Health Practitioner of Nigeria informed me and I verily believe him to be true and correct that virtually all the depositions contained in the counter-affidavit are not true, especially paragraphs 4, 5, 6, 7, 8, 9, 10 and 12 of the counter affidavit contained fabricated depositions.

(vii) That all persons listed in paragraph 7 of the counter affidavit are not bonafide members of National Association of Community Health Practitioners of Nigeria as all of them are not registered and/or licensed under the Community Health Practitioners Registration Board of Nigeria established pursuant to Decree No. 61 of 1992.

(viii) That apart from the fact that they were/are not registered, they cannot claim to be members of National Association of Community Health Practitioners because they were excommunicated as a result of their anti professional behaviour which is not in line with the code of conduct (Ethics) for Community Health Practitioners in Nigeria, especially clause 20 thereof. The said code of conduct is hereby attached as Exhibit NACH 8.”

Looking at the depositions III the further affidavit of verification which I have reproduced above, although there is a blanket denial of paragraph (7) of the counter-affidavit (also already reproduced supra), the specific denials in supra paragraphs (vii) and (viii) (supra) are not denials in the true sense of it. It is instructive to note that while it was admitting that the persons listed in the said paragraph (7) were members, it professed that they were not bonafide members because of non registration, and that they were in fact excommunicated from the association because of some negative behaviour. This to my mind reinforces the respondent’s case that they were members, and actually participated in the affairs of the appellant’s association, (whether or not they were bonafide part of them), since they were worthy of being sanctioned. In other words, if they were not members, the need to excommunicate them would not have arisen. Again exhibits NAC 6 and 7 attached to the further affidavit buttress the case of the respondent that the members in paragraph (7) were members of the Association, even though the said Exhibit NAC 6 talks of withdrawal of the appellant’s association from other Industrial Unions. Paragraph (2) in exhibit NACH 6 dated 18/6/95, and addressed to the Honourable Minister, Federal Ministry of Labour and Productivity does not categorically state that the 1st appellant’s members holding positions in the respondent’s association have already resigned, as it reads thus:-

“(2) That our members holding position in such former unions have been directed to resign and should tender their resignation letters to their Chief Executive or next in command where they are the Chief Executive.”

Now, we do not know that those mentioned above have resigned, for there is nothing to show that they have carried out the directive to them. So they have not in essence denied that those mentioned in paragraph (7) of the counter-affidavit are no longer part of the respondent’s body, or that they have been expelled by the 1st appellant. Indeed even exhibit NACH 7 which form part of the evidence of the 1st appellant to show that members have been expelled is in connection with one Mallam Isa Idasho, and not any of the members mentioned in paragraph (7) of the counter-affidavit. As far as I am concerned it has not proved the contrary as far as the said paragraph (7) supra is concerned. The only point it has pursued to prove is that members of the 1st appellant’s association were expelled for not adhering to its directive and it exhibited exhibit NACH 7 to support its affidavit evidence.

In fact this exhibit established the fact that it was not all of the 1st appellant’s members that were in agreement with the association, for some like Isa Idasho failed to comply with the directive in the first paragraph of exhibit NACH 6 which reads thus:-

“We the above mentioned Association, wish to re affirm our earlier decision on the above subject matter in our National Executive Council (NEC) meeting held at Benin in 1986 and in our delegates conference at Bauchi in 1990, in which we agreed in principle not to belong to any Trade Union or Association other than our National Association of Community Health Practitioners of Nigeria.”

In the light of the above analysis, I subscribe to the argument of the learned counsel for the respondent that the former decision of the court below not affirming that of the latter decision of the trial court is unassailable. Still, on this issue (1), the Learned Senior Advocate for the appellant has argued that the Minister of Labour and Productivity acted ultra vires in writing exhibit NAC 5 by usurping the statutory powers of the Registrar Trade Union, which was what the trial court found, but that the court below misconstrued the case on that point. He cited the case of Adejugbe v. Ologunja 2004 6 NWLR part 868 page 70. According to the learned Senior Advocate under Section 3(i) of the Trade Union Act, the decision to register or not to register a trade union inhers in the Registrar trade union and not in the Minister of Labour and Productivity. The Learned Senior Counsel submitted that where a court misconstrue the case of a party like the court below did in this matter, its decision would be held to be perverse. He placed reliance on the case of Udengwu v. Uzuegbu 2003 13 NWLR part 836 page 136. At this juncture it is pertinent to consider the provision of the said Section 3(i) of the Trade Unions Act Cap. 437 Laws of the Federation 1990, which reads thus:-

“3. (1) An application for the registration of a trade union shall be made to the Registrar in the prescribed form and shall be signed:-

(a) in the case of a trade union of workers, by at least fifty members of the union; and

(b) in the case of a trade union of employers by at least two members of the union.”

Interestingly, the 1st appellant’s application for registration (exhibit NAC 2) was addressed to the Minister of Labour and Productivity, whose ultimate response to the application exhibit NAC 5 was sought to be quashed by the 1st appellant vide relief (1) in its application, and it was the minister that requested the 1st appellant to liaise with the Registrar of Trade Unions; who has the statutory responsibility to deal with the matter, vide exhibit NAC 3. The letter of refusal to register, written by the minister, exhibit NAC 5, and which forms the kernel of this litigation, the salient paragraphs of which read as follows:-

“2. Community Health Practitioners (Registration etc) Decree No. 1 of 1992 established a Board in respect of Community Health Practitioners and also makes incidental provisions for the control of the practice of the profession. By this Decree, the Government has recognized the Association as a professional body but this does not automatically transform it to a trade union organization.

3. Section 3 subsection 2 of Trade Union Act CAP 437 of 1990 (quoted in part) states as follows:-

“…But no trade union shall be registered to represent workers or employers in a place where there already exits a trade union.”

4. Similarly, section 5 subsection 4 of the same Act on procedures states as follows:-

On the receipt of application for registration.

“the Registrar shall not register the trade union if it appears to him that any existing trade union is sufficiently representing the interest of the class of persons whose interest the union is interested to represent.”

7. In view of the foregoing and in accordance with subsection 2 of section 3 of Trade Unions Act CAP 437 of the Laws of the Federation of Nigeria, 1990, the Honourable Minister is not satisfied that you should be registered as a Trade Union of Senior Staff Association. Your request for registration as a trade union of Senior Staff Association cannot be favourably considered.”

It is instructive to note that exhibit NAC 5 supra was in consequence of exhibit NAC 4, which the 1st appellant again addressed to the Minister of Labour and Productivity to intervene to ensure its registration by the 3rd respondent. The 1st appellant has not shown by any exhibit that it heed the advice of the 2nd respondent to liaise with the Registrar of the Trade Unions and the response of the said Registrar. It only exhibited the letter of refusal by the 2nd respondent. How, when it was the 1st appellant who brought the matter before the 2nd respondent, will it now accuse the 2nd respondent of intermeddling, is beyond me. A pertinent question I would like to ask is, if the 1st appellant was very much aware of the provision of section 3(1) of the Trade Unions Act supra, (on which it has predicated its argument), then why were there no correspondents between it and the 3rd respondent The content of Exhibit NAC 5 which I have reproduced supra has clearly set out the pertinent and relevant provisions of the Trade Union Act and the reasons for the refusal of the application. The wordings of the provisions are crystal clear, and their application is correct and proper. Nothing is ambiguous and nothing is prone to be misunderstood. I fail to see that the lower court misconstrued the case on the point of the usurpation of the powers of the 3rd respondent by the 2nd respondent, and refuse to endorse the argument of the learned Senior Advocate. By the content of paragraph (3) in exhibit NAC 5 which has already been reproduced supra, and some other affidavit evidence, (excerpts of which have been reproduced supra) the 1st appellant has been under the umbrella of the respondent. The position being so the decision of the Court of Appeal to uphold the refusal of the 2nd and 3rd respondents to register the appellant as a trade union is not in error. The case of Erasmus Osawe and 2 Ors. v. Registrar of Trade Unions 1985 1NWLR part 4 pages 755 was cited by learned counsel for the respondent in aid of the finding of the lower court upholding the refusal of the registration in controversy. Kazeem J.S.C in expounding the purpose of the provisions of sections 3(1) and (2) of the Trade Unions Act made the following emphasis on page 763:-

“In my view, this new provision makes it mandatory for the Registrar of Trade Unions, on receiving an application to register any trade union, to ensure that there is no other registered trade union in existence which caters for the same interest as the one applying for registration. If there is, it becomes incumbent in my view, for the Registrar, as the custodian of such information, to decline to proceed to put into effect the machinery for the registration of the new trade union as set out under Section 5 (2) of the Trade Unions Act, 1973.

Having regard to the facts of this case, I am of the view that the Registrar was right to have rejected the application for registration immediately, for to have done otherwise, might have led to a ridiculous situation……….

What would have happened if he later discovered that there had already been in existence a registered trade union catering for the same interest as the propose one…

The above demonstrates a situation that is parallel to the one at hand, for as I have found earlier, there are many materials in the documents before this court that confirm that the 1st appellant had all along been catered for by a wider and encompassing body, which is the 1st respondent. After an investigation there was no way the 1st appellant would have been registered in the circumstances. Besides the law is not such that registration is automatic. It is at the discretion of the Registrar after he would have made his investigations and became satisfied. For the foregoing reasoning, I resolve this issue in favour of the respondent, and dismiss grounds (2), (3), (6) and (7) of appeal to which the issue is married. Issues (2) and (3) were treated together in the appellant’s brief of argument. The Learned Senior Advocate opened the argument under these issues with the examination of the provisions of the said sections 3 and 5, of the Trade Unions Act supra, and Section 40 of the Constitution of the Federal Republic of Nigeria 1999, which makes the following provision:-

“40. Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.

Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.”

The learned Senior Advocate has attacked the finding of the court below which referred to the finding of the Supreme Court in the Osawe case (supra) on the validity and applicability of the provisions of section 3 of the Trade Union Act (supra) vis-a-vis the provision of the Constitution, in that case, section 37 of the Constitution of 1979. In the present case, the court below, as per Coomasie J.C.A. held as follows:-

“I am obliged and bound by this holding, and I consequently hold that the provisions of sections 3 and 5 of the Trade Union Act (Cap. 43) are not inconsistent with the provisions of the 1999 Constitution.”

The learned justice of the Court of Appeal arrived at the above holding after he had considered the stance of the appellant in the lower court, the said provision of Section 40 of the 1999 Constitution, the relevant provisions of the Trade Union Act and Section 45 of the of the same Constitution. The excerpt of the judgment in the Osawe case supra, which the court below relied upon reads as follows:-

“As regards ground 2, it was disputed that the fundamental right enshrined under section 37 of the Constitution of 1979 for freedom of association as Trade Union was subject to the derogation set out in Section 4(1) (a) of the said Constitution. Hence section 37 of the Constitution is not absolute as it can invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health.

It was not also the contention of the Appellant that Section 3(2) of the Trade Union Act 1973 as amended by Section 1(1) (a) of the Trade Union (Amendment) Act 1978 was a law reasonably justified in a democratic society. It was in fact in order to maintain public order out of a chaotic situation that the exercise of 1978 was embarked upon which gave rise to the promulgation of the Trade Union (Amendment) Act 1978. I am therefore unable to agree that Section 3 (2) of the Trade Union Act 1973 as amended contravenes Section 37 of the Constitution of 1979.”

I would also align myself with the above exercise and finding of the lower court if I was in the shoe of the Justice of the Court of Appeal, as it is most fortifying, irrespective of the fact that the Osawe judgment was handed down during the Military dispensation which according to Learned Senior Advocate was with the clear policy to prune down the number of Trade Unions as found by the Military Government in the country then, which informed the said decision. The Learned Senior Advocate for the appellant took a rather long and thorny part to show this court in his brief of argument that the Osawe’s case is distinct from the instant case, endeavouring in the process to make unnecessary heavy weather of the existing administration and the administration at the time of the case. The Learned counsel for the respondent has faulted the contention of the appellant on the distinction he tried to draw from the administrations, albeit military or democratic, by arguing that the circumstances that gave rise to Osawe’s case was in December 1980, during a democratic dispensation. Indeed, the judgment of the Supreme Court on the Osawe’s case reported in the citation referred to above reveals that the circumstances that led to the case in the High Court of Bendel State occurred in 1980, during the second republic, and the judgment of that court was in February 1982, a time that also falls within a democratic dispensation. However, the judgments of the Court of Appeal and the Supreme Court were delivered during the military dispensation. Indeed the circumstances, the facts and the out come of the cases and appeals at each step of the litigation as they transpired in both cases are the same, with no difference whatsoever, as the 1st appellant would want this court to believe, inspite of the minor difference that another union is alleged to be contending with the 3rd respondent for the representation of the members of the Association. As a matter of fact that aspect is rather inconsequential to the overall facts. In this respect, I refuse to believe that the outcome was influenced by the military dispensation as it is completely out of tune. As a matter of fact if one reads the excerpt of the Osawe’s case from which the court below found solace, and which I have reproduced supra, it will be seen that the learned Justice of the Supreme Court did take into consideration democratic society and dispensation. My perception of this discussion is that it did not matter whether the dispensation of the period of the judgment of the Supreme Court was military or democratic; the most important thing is that the existing laws were thoroughly considered and the correct interpretations were given to them. Once a court gives the provisions of a law that is not ambiguous the grammatical and ordinary interpretation to conform with the intent of the legislature when the law was passed, an appellate court cannot fault such interpretation, for the cardinal principle of interpretation would have been met with by the lower court. See Adisa v. Oyinwola 2000 10 NWLR part 674 page 116, Ifezue v. Mbadugha 1984 I SC NLR page 42), Jammal Steel Structures Ltd v. A.C.E. 1973 II S.C. page 77. and Shell Petroleum Development Co. (Nig.) Ltd. v. Federal Board of Internal Revenue 19968 NWLR part 466 page 256.

In this case however, the learned trial court by bringing extraneous issue or logic to bear on the case when it was not a bone of contention is to my mind an exercise in futility as it is of no moment, for the judgment of the Supreme Court is applicable to the present case, and the Court of Appeal had to follow it, if it was to follow the right path and not go astray. In the case of Independent National Electoral Commission and Ors v. Alhaji Abdulkadir Balarabe Musa and 4 Ors 2003 3 NWLR part 806 page 72 upon which the Learned Senior Advocate relied heavily, section 79 (2) of the Electoral Act 2001 was the provision in relation to which Sections 40 and 45 of the 1999 Constitution was dealt with thus at page 161 of the report:-

“Section 79 (2) (c) of the Act was invalid because it was inconsistent with Section 40 of the Constitution. In terms of Section 45 (1) (a) of the Constitution there is nothing reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health in prohibiting a member of the public service or Civil Service of the Federation, a State or Local Government or Area Council from eligibility to be registered as a member of a political party. The submission that the restriction is a valid derogation from Section 40 by virtue of Section 45 (1) (a) of the Constitution was erroneous. However, this conclusion is limited to the question of the validity of Section 79 (2) (c) of the Act, and is not related to any question, not now before this court in these proceedings of the extent to which the activity, as members of a political party, of the category of persons mentioned in that section can be validly restricted by relevant legislation in the interest of public service.”

I am guided by the above.

I think it is pertinent that I reproduce the provision of the said section 79 (2)(c) of the Electoral Act that was dealt with supra together with section (I) for a proper understanding. They read:-

“79 (1) Membership of a Political Party shall be open to every citizen irrespective of his place of origin, circumstance of birth, sex, religion or ethnic grouping.

(2) Subject to subsection (I) of this section, a person shall not be eligible to be registered as a member of a political party if he –

(c) is a member of the Armed Forces of the Federation, the Nigeria Police, Security Agencies or Paramilitary organ of the Government;”

If the above reproductions are read together side by side the facts and applicable laws in the case at hand, a position is manifestly clear that even though sections 40 and 45 of the Constitution formed the basis of the decision and influenced it, the derogation principle was clearly confined to the validity of section 79 (2) (c) of the Electoral Act supra only, not generalized. Towards this, the INEC case supra did not overrule the Osawe’s case, nor in fact did the case of Abacha v. Fawehinmi 2000 6 NWLR part 660 page 228, which the learned trial judge relied upon in granting the application, and the provisions of Article 10 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap. 10 laws of the Federation 1990, which provides the following:-

“1. Every individual shall have right to free association provided that he abides by the law.

2. Subject to the obligation of Solidarity provided for in Article 29 no one may be compelled to join an association.”

The above provision is very much in substance identical with the provision of section 37 of the Constitution of 1979, and sections 40 and 45 of the 1999 Constitution supra, that were discussed and analysed in the Osawe case supra.

The Learned Senior Advocate m dealing with issue (3) supra, submitted that the court below was wrong in dwelling as it did on the applicability or otherwise of the -provisions of articles 87 and 89 of the International Labour Organisation Convention contending that the learned trial Judge did not rely only on the provisions of Section 40 of the 1999 Constitution and Article 10 of the African Charter on Human and Peoples’ Right, and the decision in !NEC’s case supra: Before I go any further, I will look at the judgment of the trial court, first to see whether the above submission is in tandem with any part of the judgment, and how the issue of the convention arose and was dealt with and relied upon. It is a fact that in his conclusion of the judgment, the learned trial judge said:-

“In the light of the foregoing, this application succeeds. I hereby hold that the applicant is entitled to the reliefs sought in the matter i.e. reliefs I, II, III and V.”

To appreciate the purport of the above conclusion, one has to look at the reliefs sought. It is instructive to note that the relevant relief to this discussion is relief no. III which was predicated on the International Labour Organisation, and which has already been reproduced in the earlier part of this judgment. The argument of the learned counsel for the respondent is that the relief was granted in error by the trial court because there was no evidence before the court that ILO convention on which the relief was predicated had the force of law in Nigeria, it not having been enacted into law by the National Assembly. The lower court declared that the relief was granted in error by the trial court, and in this respect the learned counsel for the respondent has submitted that the court below was right because the question whether or not the said International Labour Organisation conventions have been domesticated in Nigeria is an issue of fact to be proved by evidence, and in the instant case, no such evidence was before the learned trial court. See Abacha v. Fawehinrni (supra). I don’t subscribe to the argument of Learned Senior Advocate that the issue of whether ILO conventions have been domesticated never arose before the trial court, as issue was not joined on this point. The point is, relief no. (III) in the appellant’s application is as clear as crystal, that even a law student in the university would immediately tell a lay man that the declaration sought in respect of the refusal to register the 1st appellant as a trade union was to render the refusal as unconstitutional etc, as some conventions International Labour Organisation have been breached. It goes without saying that the basis for that relief was the International Labour Organisation, in which case it was incumbent on the 1st appellant to place the evidence of the domestication of that law and its applicability to Nigeria, the law being an international one. Its proof of domestication in Nigeria is very important if any court in Nigeria is to invoke and apply it to any litigation before it. It is of paramount importance that any party who raises an issue or a law must show and convince the court of the efficacy of reliability and applicability. After stating this said relief no. (3) supra, the 1st appellant made no reference to the convention upon which it predicated it, it was conveniently forgotten, as though its success was automatic. That most probably lent credence to why the learned trial Judge thought once the relief was there, it must be granted, and he so granted it. Ironically Learned Senior Advocate argued in his brief of argument that the issue of whether or not the ILO conventions have been domesticated never arose before the trial court, as issue was not joined on the point. This I must say is rather ridiculous, for I would want to believe that the position of the law is unchanged that a party who seeks a court’s order must do all in its power to establish that it deserves such order, and not expect the adversary to nudge it into waking up to its responsibility.

As a matter of fact, contrary to Learned Counsel’s contention, the issue of domestication of the I.L.O. convention did crop up in the arguments of Learned Counsel.

In the light of the above discussion I do not see that the learned Justice in the court below erred when it was held thus in the lead judgment:-

“On relief iii. granted by the trial court it is crystal clear that the relief was granted in error. The relief granted by the trial court is for a declaration that it is unconstitutional, illegal, unlawful and against the provisions of convention 87 and 89 of the International Labour Organisation for the respondents to refuse to register the applicant as a Senior Staff Trade Union (S.S.T.U.). There is no evidence before the court that the I.L.O. Convention, even though signed by the Nigerian Government, has been enacted into law by the National Assembly. Section 12 of the 1999 Constitution provides as follows:-

“12 (1) No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.”

In so far as the I.L.O. Convention has not been enacted into law by the National Assembly it has no force of law in Nigeria and it cannot possibly apply. See also Abacha v. Fawehinmi (2000) 6 NWLR (PART 660) 228 AT PP. 288 – 289 where OGUNDARE, J.S.C of blessed memory had this to say:-

“Suffice to say that an international treaty entered into by the government of Nigeria does not become binding until enacted into law by the National Assembly. See Section 12 (1) of the 1979 Constitution which provides:………..”

As can be seen from the above, the learned justice took the pains of expounding on the necessity of such international treaty or convention to be domesticated before it can be invoked and applied to cases in Nigeria. That is in fact what the learned trial judge should have done, rather than accept and grant the relief hook, line and sinker. In this vein issues (2) and (3) are resolved in favour of the respondents, and grounds (4) in the original notice of appeal and (2), of additional ground to which they relate fail, and they are hereby dismissed.

Now, to the last issue i.e. issue (4) supra. The sum total of the submission of the Learned Senior Advocate under this issue is the omission of the court below to give the 1st appellant’s counter-affidavit filed in opposition to the motion for joinder the attention it deserved. In order to consider the efficacy of this argument it is essential that I consider the depositions in the supporting and counter-affidavits, after reproducing them hereunder. The salient depositions in the affidavit in support are:-

“4. I am aware that there had been series of litigations between the Plaintiff/Applicant and the Applicant/Party seeking to be joined herein in respect of the reliefs the Plaintiff/Applicant in this

suit, is seeking before this Honourable Court.

5. I am further aware that the plaintiff/Applicant in his suit had on 29th July, 1997 constituted an action against the Applicant herein and the Rivers State High Court of Justice, Port-Harcourt, Judicial Division in suit No. PHC/I075/97 wherein the Plaintiff/Applicant sought unsuccessfully to restrain the Applicant, Medical and Health Workers Union of Nigeria from organising the members of the Plaintiff/Applicant for Trade Union purposes as their members…
6. I am aware that since this Ruling the Plaintiff/Applicant accepted that the Applicant herein has the excessive jurisdiction under the Trade Unions Acts to organize members of the plaintiff/Applicant and has continued to organize them till date.
7. I am further aware that under the Trade Unions (Amendment) Act, 1996 the Medical and Health Workers Union of Nigeria, the Applicant herein has been granted jurisdiction to organize Medical and Health Workers in all Medical and Health Institution.
8. I am also aware that the decision of the Respondents which the Plaintiff/Applicant is seeking the Order of this Honourable Court to quash as contained in the 1st Respondent’s letter reference No. ML. IB/147/1176 dated 19th February, 2003 specifically stated that under the existing Trade Union Acts, the Medical and Health Workers Union of Nigeria, the Applicant herein has exclusive jurisdiction to organise members of the Plaintiff/Applicant and therefore decline to register the Applicant as a New Trade Union.
9. All the reliefs now being sought by the Plaintiff/Applicant in this suit if granted by this Honourable court will affect the existing interest of the Applicant.”

In its counter-affidavit, the following depositions were sworn to at the instance of the 1st appellant. They read inter alia:-

“6. That I know as a fact that there is no provision in the Trade Unions Amendment Act 1996 or any other law which vests the party seeking to be joined the power to organize the applicant or its members.

7. That I know as a fact that there is nothing in the Trade Unions Amendment Act 1996 which prevents or precludes the applicant from being registered (sic) registration as a Trade Union.
8. That I know as a fact that the party seeking to be joined has no business whatsoever in the matter concerning the Registration of Trade Unions in Nigeria as this is within the purview and powers of the respondents in this case.
9. That I know as fact that the party seeking to be joined is a meddlesome interloper whose joinder will serve no useful purpose but to thwart the quick determination and expeditious delivery of judgment in this case which has been reserved to 5th December 2003 by the Honourable court after full arguments.”

The Learned Senior Advocate has in addition to the submission above submitted that on the basis of the affidavit evidence before the trial court, the 1st respondent was not a proper party to this suit, and the trial court and the court below were in error to have ordered her joinder. He relied upon the case of Green v. Green 1987 3 NWLR part 61 page 480. He further submitted that the court lacks jurisdiction to join a person whose presence is not necessary for that purpose, and cited the case of Ige v. Farinde 1994 7 NWLR part 354 page 42.

A careful perusal of the affidavit in support of the motion for joinder, especially paragraphs (5) and (6) supra shows that prior to this process the applicant i.e. 3rd respondent was involved in a suit with the 1st appellant in respect of trade unionism, as is evidenced by the documents exhibited and attached to the supporting affidavit. Paragraph (8) of the affidavit is very clear on the position, and interest of the 3rd respondent in the controversy of the registration of the 1st appellant as a trade union, and by paragraph (9) of same, the 3rd respondent has shown that its position will be jeopardized if the reliefs sought by the 1st appellant were granted. I have carefully perused the counter-depositions supra and I have not seen or discerned the effective controversion of the depositions in the supporting affidavit therein, not even paragraphs (6) and (7) of the supporting affidavit. It is instructive to note that an applicant who desires to be joined as a party to a suit is required to show that he will be bound by the ultimate result of the action, as the orders in the judgment will affect it, and its interest will be prejudiced if it is not joined. Another test is that the action may not be completely settled without the party sought to be joined as a party in the suit. In the appeal on hand it is clear from the affidavit evidence that it was necessary to join the 1st respondent. See Tunde Oshinrinde v. Ajamogun 1992 6 NWLR part 246 page 156, Oduola v. Coker 1981 5 S.C. 197, African Continental Bank PLC v. Nwaigwe 2001 1 NWLR part 694 page 304.

I agree that the learned trial judge did not specifically refer to the affidavit evidence in detail, but that is not to say that he did not advert his mind to the depositions in the two affidavits, as he did, as can be inferred from the following excerpt of his ruling, which reads thus:-

“I must say that the undisputed contention that the applicants in the main matter belong to the same trade union with the applicants herein weigh much on my mind. The applicants in the main matter seek to separate from them and form an independent trade union. In the light of this fact I cannot come to any other conclusion that they are a necessary party to a just determination of the main matter.”

“Bearing in mind the fact that I have held above that the depositions in the counter-affidavit did not essentially controvert or challenge the respondent’s depositions, I will state the position of the law that is trite that affidavit evidence that is neither challenged nor debunked remain good and reliable evidence which ought to be relied upon by a court.” See Attorney General Plateau State v. Attorney General Nasarawa State 2005 9 NWLR part 930, page 421, Badejo v. Federal Ministry of Education 1998 NWLR part 464 page 15, and Ex parte; Adesina 1996 6 NWLR part 442 page 254.

With this line of thought, I endorse the finding of the lower court (after it had considered the salient depositions in the supporting affidavit), which read:-

“By these averments, it is my considered view that the 1st respondent has disclosed sufficient interest in the claims/reliefs before the lower court, and the lower court, with respect, was right in joining the 1st respondent as a defendant in this case. It cannot be otherwise.”

I am of the view that it is not necessary to go further into the argument of the joinder as it will be over flogging the issue. This is not a case where this court will interfere with the discretion of the lower courts by reversing the order of joinder, as urged by the learned Senior Advocate, and so the cases of Megwalu v. Megwa1u 1994 7 NWLR part 359, page 718 and Udensi v. Odusote 2004 All FWLR part 215 page 377 relied upon are of no assistance. In the light of the above reasoning, I resolve this last issue in favour of the respondent. Grounds (5) and (6) of Appeal the issue covers must therefore fail, and they are hereby dismissed. The end result is that this appeal fails in its entirety and it is so dismissed. The judgment of the lower court is hereby affirmed.

Now, to the other appeal, which is that of the 2nd and 3rd Appellants, of which only one ground of appeal was filed, and from which an issue, (which I have already reproduced above) was formulated. The assertion of the lower court which learned counsel for the 2nd and 3rd appellants is attacking under this issue is thus:-

“In so far as the I.L.O. convention has not been enacted into law by the National Assembly it has no force of law in Nigeria and cannot possibly apply.”

The Learned counsel III treating this issue examined the relevant Conventions, relevant provisions of the Constitution of the Federal Republic of Nigeria 1999, the Trade Unions Act Cap. 432 1990 Laws of Federation of Nigeria (as amended), the Labour Act Cap. 189, the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1990, and the Trade Union (Amendment) Act 2005. The provisions of the above read as follows:-

“1. Convention No. 87:- “Freedom of Association and Protection of Right to organize.”

2. Convention No. 98:- “Right to organize and collective Bargaining.”
3. Section 40 of the Constitution of 1999 stipulates the following:-

“Every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any political party trade union or any other association for the

protection of his interests.”

4. The Trade Unions Act Cap 437 Laws of the Federation of Nigeria 1990 (as mended) stipulates the following:-

“A person who is otherwise eligible for membership of a particular trade union shall not be refused admission to membership of that union by reason only that he is of a particular community, tribe, place of origin, religion or political opinion.”

The Trade Disputes Act Cap. 432 Laws of the Federation of Nigeria 1990 (as amended) provides as follows in Section 2(1):-

“Where there exists any collective agreement for the settlement of a trade dispute, at least three copies of the said agreement shall be deposited by the parties thereto with the Minister-

a. In the case of collective agreement entered into before the date of commencement of this Act, within thirty days of that date; and

b. In the case of a collective agreement entered into on or after the date of commencement of this Act, within fourteen days of the execution thereof.”

Learned counsel for the 2nd and 3rd appellants reproduced the excerpt of the judgment of the lower court on the applicability of the ILO convention, (which I have already reproduced above), and proceeded to deal with the provision of Section 12 (I) of the Nigerian Constitution of 1999 (supra), by submitting that going by the ordinary connotation of the phrase ‘to the extent’ in the said section 12 (I) a treaty, convention or charter need not be wholly enacted into law as a compact for such provisions as it contains to be valid and enforceable as long as such are found in existing diverse enactment. The Learned Counsel placed reliance on the case of Abacha v. Fawehinmi (supra).

The reply of learned counsel for the respondent has already been dealt with and found on supra in the first appeal, so going through it again will result in repetition. The Learned Counsel for the respondent has argued that Counsel for the 2nd and 3rd appellants in the court of trial adopted the argument of the respondent to the effect that the trial court could not predicate its judgment on the ILO conventions that had not been domesticated in Nigeria, but changed his position in the court below and now before this court. The Learned counsel submitted that the conduct of the Counsel is procedurally wrong and should not be countenanced. He cited the cases of Edebiri v. Edebiri 1997 4 NWLR part 498 page 165, and Oredoyin v. Arowolo 19894 NWLR part 114 page 172. In the appellants’ reply brief of argument, it was argued that the case of Edebiri supra cannot avail the respondent, as the case is distinguishable from the instant case. It may well be that the facts and principles in both cases are not the same, but then one may wonder why the appellants made a U-turn and faced the opposite direction after the judgment of the trial court. As is evident on page 115 of the printed record of proceedings, Mr. Oputa-Ajie of counsel for the joined party, (now the respondent, but then the 3rd respondent) addressed the court on international labour organization thus:-

“On I.L.O See Abacha v. Fawehinmi (2000) 6 NWLR (part 660) 1 2000 4 SCNJ 400,422.The I.L.O 89 has not been satisfied, it is not a municipal law.”

Then on page 116 can be found the following, which Learned Counsel for the present appellants, (when it was his turn to address the court) said:

“Mr. Abidogun – I adopt submission of Mr. Oputa Ajieh. I have nothing to add.”

In the Court of Appeal Mr. Abidogun changed his position in as far as the ILO Convention was concerned as can be seen in paragraph 7.03 on page 359 of the printed record of proceedings. Then he appealed to this court on this issue of the applicability of the said ILO. I don’t think: this should be allowed, for a party is expected to be consistent in the case he puts forward before a court. It is not supposed to deviate from what he initially professes by changing the complexion of its argument.

However, the kernel of the appellants’ argument in this appeal to my mind revolves around the interpretation of Section 12 of the 1999 Constitution supra. Emphasis has been laid on the phrase; ‘to the extent’ to which such treaty has been enacted into law by the National Assembly! Learned counsel for the appellants has submitted that one of the cannons of the interpretation of a Constitution is that the true meaning of the words used and the intention of the legislature in any statute and particularly in a written Constitution, can best be properly understood if the statute is considered as a whole. He placed reliance on the cases of Archbishop Okogie v. The Attorney General Lagos State 2 NCLR 337, Adamu v. A. G. Borno State 1996 8 NWLR part 465 page 203 and Aqua Ltd v. Ondo Sports Council 1988 4 NWLR part 91 page 622.

I agree, but then it does not mean that extraneous matters should be imported into a constitutional provision to credit it with meaning different from what the legislature had in mind. To understand and appreciate a piece of legislation a court must not look beyond the periphery or precinct of the law to interpret it and give it the appropriate and correct meaning, even if it involves an over all analysis and consideration of other provisions in a particular enactment. See Income Tax Commissioners v. Pemse 1891 A. C. 534 at 543, and International Bank for West Africa Ltd. V. Imano (Nigeria) Ltd. & 1 Ors 1988 2 N.S.CC. page 245.

To say that because the words “shall have the force of law except to the extent” was used in section 12 (1) of the Constitution supra, simply admits that there is a qualification or proviso to the opening part of the provision is a misapprehension. Indeed this situation is a locus classicus of the necessity to read the whole of section 12 (1) as a whole. The use of the phrase ‘to the extent’ does not connote that a person with interest in the provision should fish around for other enactments that contain such provisions in order to make them valid and enforceable. In essence what the legislature meant or intended is that for a treaty to be valid and enforceable, it must have the force of law behind it, albeit it must be supported by a law enacted by the National Assembly, not bits and pieces of provisions found here and there in the other laws of the land, but not specifically so enacted to domesticate it, to make it a part of our law. To interprete similar provisions as being part of the International Labour Organization Conventions just because they form parts of some other enactments like the African Charter, and Peoples Rights etc will not be tolerated. See Abacha v. Fawehinmi’s case (supra).

In the light of the foregoing reasoning I resolve this issue in favour of the respondent. Its related single ground of appeal therefore lacks merit and it is dismissed. The appeal is definitely unmeritorious and is dismissed in its entirety. The judgment of the Court of Appeal, Ilorin Division is hereby affirmed. I assess costs at N10,000.00 in favour of the respondent against each set of the three appellants.

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SC.201/2005