Tijani Ikotun V. Oba Samson Oyekanmi & Anor (2008) LLJR-SC

Tijani Ikotun V. Oba Samson Oyekanmi & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

C.M. CHUKWUMA-ENEH, J.S.C.

This is an appeal from the decision of the Court of Appeal, Ibadan Division (lower court) dated 28/11/1996. The lower court allowed the appeal and set aside the decision of the trial court in the penultimate paragraph to the end of its judgment at page 107 of the record it held as follows:

“I think quite clearly suit HIL/5/72 is conclusive proof that the respondent was neither the owner of the land in dispute, nor in possession of it or a tenant. In the Circumstances, I am satisfied that by virtue of the judgment in exhibit ‘D’ the respondent was estopped from opening the matter again and instituting the present action in the lower court for exhibit D is a judgment in rem. The fact that the claims are the same as the claims in the present case is noteworthy …”

The plaintiff, (that is, respondent) in the lower court being dissatisfied with the decision has appealed to the court as per the original notice of appeal dated 13/1/97 and filed on 21/1/97. By an application, the court has granted the plaintiff/appellant on 16/6/2004 leave to file a fresh notice of appeal containing two grounds of appeal. The parties have filed and exchanged their briefs of argument. The appellant has also filed a reply brief of argument. The appellant has also raised in his own brief one issue for determination which has been adopted by the defendants/respondents. It reads as follows:

“Whether the lower court was right in holding that the trial court considered exhibits B and D for the purpose of res judicata only”

The plaintiff’s claims in the trial court as per the amended writ of summons dated 11/10/90 at page 20 of the record of appeal read as follows:

“1. Declaration that the plaintiff is the person in possession of the farmland situate lying and being at ERINRO via IPERINDO in the Atakunmosa Local Government of Oyo State which farmland is bounded as follows:

On the first side by ERINRO Stream;

On the second side by Oni River:

On the third side by Alaposo stream;

On the fourth side by Obembe farmland:

The annual rental value of the land is N1,000.00.

(2) Declaration that the defendant cannot interfere with the plaintiffs enjoyment of the farmland or the enjoyment of any person claiming through the plaintiff.

(3) Injunction restraining the defendants, his servants, agents and/or privies from interfering with the plaintiff’s enjoyment of the farmland or threatening harassing or embarrassing the plaintiff’s tenants or any person claiming through the plaintiff any portion of the said farmland”.

The parties, I must observe, have filed and exchanged their respective pleadings. I shall come back to them later on in this judgment.

The plaintiff/appellant’s case in the trial court as per the record is that, Owa Obokun of Ijesha land had granted the farmland in dispute to the plaintiff’s father who died in 1928 and he had put rent paying customary tenants on the farmland. The plaintiff pleaded the judgments in suits Nos. HIL/9A/71, Ikotun v. Adu and HIL/5/72: Agunlejika v. Ikotun and also appeal No. CA/1/112/70 that is, the decision on appeal against the judgment in exhibit B to buttress his case against the defendants.

The defendants/respondents’ case on the other hand is that the 2nd defendant/respondent’s father was in possession of the farmland in dispute granted to him by Obokun of Ijeshaland and that the same devolved to them that is, defendants/respondents. The defendants/respondents are contended in paragraph 14 of the statement of defence that the doctrine of res judicata by, virtue of the judgments in suits Nos. HIL/5/72 and CA/1/112/74 operates against the plaintiff, in other words it prevents indeed estoppes him from reopening the issues of title, customary tenancy or possession of the land in dispute by instituting the instant suit on the same issues which otherwise were the necessary ingredients in the cause of action proved and conclusively decided in the said judgments as per exhibits B and D.

Both parties and their witnesses have adduced oral testimonies in the trial court to support their cases as per their respective pleadings. In a considered judgment, the trial court found for the plaintiff/appellant. In the words of the trial court, in its judgment at page 38 LL 9-26 it found as follows:

“1st respondent later testified but he had not legal defence to the plaintiffs claim. Exhibits A, B and D which he relied upon did not avail him. The res judicata which was pleaded on his behalf was not legally open to him as he was not a party to the three exhibits mentioned above.

Before I deal with the defence of 2nd defendant, let me state at this juncture that the main claim of the plaintiff is to be declared as the person in possession of the land in dispute i.e. the farmland situated at ERINRO via Iperindo.

2nd defendant relied heavily on exhibits A, B and D and res judicata as his defence. In exhibit A which is a direct action of ownership of the land in dispute against the plaintiff, 2nd defendant lost his claim on appeal.

In my view, exhibits B and D do not help the 2nd defendant’s defence, He is not a relation of Oba Agunlejika who was the plaintiff in the case. He is also not a party in the case.

I would like to state categorically at this Juncture that the defence of res judicata is not open to the 2nd defendant.”

The defendants/respondents as I indicated above appealed the decision to the court below. I have also averted to the judgment of the court below which allowed the appeal and from which decision the plaintiff/appellant has now appealed to this court.

I now come back to the issues for determination vis-a-vis the arguments of the parties as per their respective briefs of argument filed in this matter.

The appellant in his main brief of argument has posited that exhibit B, that is, the judgment in suit No. HIL/1/5/72 and exhibit D that is, the appeal the judgment on appeal against the decision in exhibit B as pleaded in paragraphs 9, 10 and 12 of the (amended) statement of claim at page 22 of the record cannot be relied on by the defendants/respondents as a shield, when the respondents were not parties to the suits as per exhibits B and D and the claims thereof as per the said exhibits are not the same and there is evidence on the record and even moreso as found by the trial court as per the abstract of its judgment above that the respondents are not parties to exhibits B and D and are total strangers to the claims and issues decided therein. And so, these decisions as judgment in exhibits B and D, they submit, cannot constitute conclusive proof as against the instant parties and their privies in the instant proceedings in regard to the facts directly in issue therein and actually decided in the said previous suit as per exhibits B and D and particularly vis-a-vis the issues on whether the plaintiff/appellant has been in possession of the farmland in dispute under customary tenancy. He has relied on section 54 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 and the case Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523 to contend that once judgment of a court is final it is conclusive proof in subsequent proceeding between the same parties or the privies of the matter actually decided. It is in this respect that the appellant has challenged the lower court’s finding in regard to the legal effect of exhibit B and D and I quote as per page 103 LL 25-10 of the record thus:

“I am therefore in full agreement that the learned trial Judge was wrong to have considered exhibits B and D for the purpose of res judicata only …”

Some couple of pages further from the above abstract in the record at p. 107 LL 24-31 to be precise, the lower court again held:

“In the circumstances, I am satisfied that by virtue of judgment in exhibit ‘D’ the respondent was estopped from opening the matter again and instituting the present action in the lower court for exhibit “D” is a judgment in rem. The fact that the claims are the same as the claims in the present case is not worthy. ”

The appellant has denounced vehemently the above holding by the lower court and has contended, if I may repeat, to the effect that neither the claim as per exhibits B and D nor the parties named therein are the same and has further relied on Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) 142 at 161 per Iguh JSC, Balogun v. Adejobi (1995) 2 NWLR (Pt. 376) 131 at 149, D-G; Faleye v. Otapo (1995) 3 NWLR (Pt. 381) 1; and Odutola v. Oderinde and Ors. (2004) 6 SCNJ 161; (2004) 12 NWLR (Pt. 888) 574 to further contend that the appellant cannot therefore be said to be relitigating issues directly in issue as per the cause of action as conclusively decided in the judgments as per exhibits B and D and so he cannot be estopped by the said judgments. And even moreso that exhibit D is not a judgment in rem but in personam.

It is particulary submitted that the lower court has completely misapprehended hence it has misconceived the appellant’s case as validly put in the trial court’s finding at page 38 LL 18-26 of the record which for case of reference I quote as follows:

“2nd defendant relied heavily on exhibits A, B and D and res judicata as his defence. In exhibit A which is a direct action of ownership of the land in dispute against the plaintiff 2nd defendant lost his claim on appeal.

In my view exhibits B & D do not help the 2nd defendant’s defence. He is not a relation of Oba Agunlejika who was the plaintiff in the case. He is also not a party in the case. I would like to state categorically at this juncture that the defence of res judicata is not open to the 2nd defendant”. (Italics mine for emphasis)

It is against the backdrop that the appellant has submitted that the trial court has in its decision considered exhibits B and D for the purposes of res judicata only.

If, I may digress, could it be said therefore, that the defendants/respondents by their averments in paragraphs 9, 10 and 14 of the statement of defence have pleaded issue estoppel and not res judicata. The answer I shall supply in due course. I think the whole essence of pleading exhibit A by the plaintiff/appellant is to show positively that the respondents are neither the owners nor customary tenants in possession of the farmland in dispute, the 2nd defendant/respondent having lost in that suit. Besides, whether exhibits B and D can on the issues decided therein constitute estoppel per rem judicatam against the plaintiff, the defendants not being parties to the said suit, I shall deal with later.

The appellant has attributed the total misapprehension of the appellant’s case in this regard to the lower court’s failure to give due effect to the meaning of the word “and” as used conjunctively in the con of the trial court’s finding that “the 2nd defendant relied heavily on exhibits B and D and res judicata as his defence” (Italics mine for emphasis). He denounced the lower court for not upholding the finding of the trial Court that exhibit B and D cannot constitute res judicata as they lack the intrinsic qualities that characterise this doctrine, that is, as to the sameness of parties, claims and issues in both the present and previous suits. To backup his stance in the argument, he has referred to and relied on the cases of A.C.B. Plc v. Losada (Nig.) Ltd. (1995) 7 NWLR (Pt 405) 26; Ibekwe v. Maduka (1995) 4 NWLR (Pt. 392) 716; and Okulate v. Awosanya (2000) 1 SCNQR 149; (2000) 2 NWLR (Pt. 646) 530.

It is for the foregoing submissions that the appellant has urged the court to allow the appeal.

The respondents in their joint brief of argument have highlighted suits No.HIL/5/72 .and No. CA/1/112/74, that is, exhibits B and D as being germane in this appeal. They submit that the appellant in suit No. HIL/5/72, that is, exhibit B has at the trial court conceded title to the Obokun of Ijesha land and that the decision also found against the appellant’s assertion of being in possession of the land in dispute as a customary tenant. Exhibit D has confined the judgment as per exhibit B on appeal. They debunk the findings of the trial court to the extent that the case for res judicata has not been made out by the respondents as per exhibits B and D, because they are not parties nor relations of the plaintiff in the said suits. The respondents have also submitted that by exhibit B and D the appellant is estopped from contesting the issues of being in possession of the farmland in dispute as a customary tenant paying Ishakole to Obokun of Ijeshaland. The instant suit they contend is relitigating the issues directly and conclusively settled in the judgments as per exhibits B and D given as exhibits B and D are judgments in rem. And they have therefore submitted that the trial court is wrong to have considered exhibits B and D for the purposes of res judicata only as it should have gone further to uphold their case on the plea of issues estoppel by judgment. It is in this regard that they have further contended that the appellant’s submission on the word “and” as used by the trial court as per the abstract adverted to above as having a special effect in the con does not hold water as such construction is bound to lead to an absurd meaning of the word “and” in con of the said clause.

Furthermore, the respondents have referred and relied on the averments in paragraphs 9, 10, and 12 of the (amended) statement of claim and paragraphs 9, 10 and 14, of the statement of defence to underscore their contention that word “and” construed in con of the averments as per the pleadings is used conjunctively.

And finally, the court is urged to intervene to avert a miscarriage of justice otherwise arising from the misconception by the trial court of defendants/respondent’s case in resisting the appellant relitigating the issues of being in possession as customary tenant of the farmland in dispute which issue has been directly and conclusively settled in the judgments as per exhibits B and D. See Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301; and Anyabine v. Okolo (1998) 13 NWLR (Pt. 582) 444. The court is again urged to hold that the judgments as per exhibits B and D have conclusively decided that the appellant is not in possession of the farmland in dispute as a customary tenant, furthermore that these questions have been highly considered and decided by the lower court. The respondents have therefore asked the court to dismiss the appeal for want of merit.

This is an elaborate account of the submissions of the parties in this appeal as per the briefs and oral submissions in court.

I think that, against the background of the facts of this matter, the misconception of the parties cases as accentuated in the sale issue for determination raised in this matter has clearly portrayed want of proper appreciation of the distinction between issue estoppel and res judicata although both estoppels come under one head as estoppel by judgment with a clear objective to prevent a cause of action and issues as arising from the cause of action and directly decided in a previous suit from being reopened or relitigated in a subsequent litigation,the same parties or their privies. The issue must be relevant in the subsequent proceeding that is as in the instant suit. See:Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156. It is in this respect that judgments are said to be conclusive as to cause of action and issues directly arising and decided in the cause of action as between the parties or their privies.One crucial feature of estoppel by judgment is that it has to be specifically pleaded as otherwise it cannot be relied upon in court although it is not required to be pleaded in any form. See Ebba v. Ogodo (2000) 6 SC (Pt.1) 133; (2000) 10 NWLR (Pt. 675) 387; Ukaegbu v. Ugoji (1991) NSE (Vol. 22) 298; (1991) 6 NWLR (Pt. 196) 127 and Chinwendu v. Mbamali (1980) 3 SC 21. As the judgments as per exhibits B and D are final decisions given by courts of competent jurisdiction, they are conclusive as to the cause of action and all the issues that are germane and decided in directly establishing the cause of action as between the parties or their privies. A party so affected by it is estopped as per rem judicatam from relitigating the matter all over again. The implication of the above assertion vis-a-vis the judgments as per exhibits B and D is that they are binding as to the cause of action and the issues in any subsequent proceedings in which the cause of action and the issues directly decided in the previous case are called to question as between the same parties or their privies. So that the party is estopped from bringing a fresh suit before any court on the same case and on the same issue already pronounced upon by the court in a previous case. See: Ladimeji v. Salami (1998) 5 NWLR (Pt. 548) 1; Igwego v. Ezeugo (1992) F 6 NWLR (Pt. 249) 561, Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) 647 and Oshodi v. Eyifunmi (2000)7 SC (Pt. 11) 145; (2000) 13 NWLR (Pt. 684) 298. On the other hand, issue of estoppel arises where an issue has been adjudicated upon by a court of competent jurisdiction and the same issue has arisen in question in a subsequent proceeding between the same parties or their privies. See Ito v. Ekpe (2000) 2 SC 98; (2000) 3 NWLR (Pt. 650) 678: Ebba v. Ogodo (2000) 6 SC (Pt. 1) 133; (2000) 10 NWLR (Pt. 675) 387; Alakija v. Abdulai (1998) 6 NWLR (pt. 552) 1. There is however high authority that a party, relying on issue estoppel need not prove unlike res judicata that the res, the claims and the parties are the same in the pervious suit as in the subsequent proceedings. See: Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27.

Again, it is to be noted that if successfully invoked, the jurisdiction of the court is ousted. However, be it noted that a party as in the instant suit, is therefore prevented from proving any facts in contradiction to his earlier acts or declarations to the prejudice of the other party who has in reliance thereof has acted on it. It is in regard to the above that estoppel is a shield, and it is never a sword and so cannot be pleaded by the plaintiff; meaning in effect that it has no place in the plaintiff’s statement of claim but in the statement of defence; see Ukaegbu v. Ugoji (supra). See also Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 at 737; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) I. In the instant case, both parties have pleaded the said judgments as per exhibits B and D as constituting estoppel by judgment. The trial court however has found the invocation of the principle of res judicata by the respondents as per exhibits B and D albeit to oust the jurisdiction of the court over this matter as a non-starter and so inapplicable; consequently, it has entered judgment for the plaintiff which judgment has been upturned by the lower court on appeal, hence the parties are here.

I shall come back to this question in a thrice as I have my misgivings on a closer scrutiny, of the averments as per the pleadings and evidence in this case whether the trial court and indeed the court below have misconceived in essence the defendants’ pleading of exhibits B and D as res judicata. However,for a successful plea of res judicata the law requires, I must emphasis, that the identities of the parties (or privies), the res, that is, the subject matter of the litigation and claim as well as the issues and the parties in both the present and previous actions have to be the same otherwise the plea is not tenable. See Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) 142 at 161 per Iguh JSC; Balogun v. Adejobi (supra); Faleye v. Otapo (supra) and Odutola v. Oderinde & Ors. (2004) supra.

Having outlined above the law and guiding principles on estoppel by judgment in relation to exhibits A, B and D, it must be noted that the Parties to this suit have pleaded these judgments in paragraphs 9, 10 and 12 of the (amended) statement of claim and paragraphs 8, 9 and 14 of the statement of defence as follows:

At page 22 of the record, the plaintiff has pleaded thus:

“9. The plaintiff avers that one Oyekanmi instituted an action against the plaintiff in the customary court Grade ‘A’ Ilesa “claiming ownership and title ship to the farmland which case went on Appeal to Ilesa High Court in suit HIL/9A/71; Ikotun v. Adu: and it went in favour of the plaintiff.

The plaintiff avers that Owa Obokun Oba Peter Agunlejika II also brought an action against the plaintiff claiming:

(i) Declaration of title under native law and custom to a piece of parcel of farmland known and called Erinre situate, lying and being in Iferindo.

(ii) N400.00 damages for trespass; and

(iii) Injunction restraining the defendant, his servant and or agent from entering into it dealing in any way with the said farmland.

The plaintiff pleads and will rely on the judgment in

(a) HIL/9A/71: lkotun v. Adu; and

(b) HIL/5/72: Agunlejika v. Ikotun

Pleaded in paragraphs (9) and (10) above.”

At pages 6 and 7 of the record, the defendants have pleaded as follows:

“8. The defendant was then presented with three court judgments in respect of the land in dispute between the plaintiff and late Oyekanmi Adu and the plaintiff against Oba Peter Agunlejika.

The judgment are:

(a) HIL/94/71 Ikotun v. Adu

(b) HIL/5/72 Agunlejika v. Ikotun

The defendant will contend at the trial that the doctrine of res judicata will operate against the plaintiff from raising the issue of title, tenancy or possession by virtue of the judgment in suits HIL/5/72 Oba Peter Agunlejika v. Yekini Ikotun CAW/112/74 Yekini lkotun v. Oba Peter Agunlejika.”

The foregoing averments are clear and unambiguous as well as the evidence tendered in support. I have here adverted to the distinction between estoppel and res judicata. When therefore a party as in the instant suit pleads judgments as estoppel, what he is saying in essence is that the court should take the judgment into consideration into considering the totality of his case before the court. See Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127. It is settled law that only a defendant or plaintiff in reply to a defendant’s pleading in defence to an issue raised therein can plead res judicata and if I may repeat, it operates not only against the party whom it affects but also ousts the jurisdiction of the court. The party affected cannot institute a fresh action before the court. These averment leave no one in any doubt that both parties to this suit have founded their cases on the judgments tendered as exhibits B and D as estoppels by judgment. In view of the foregoing, I digress to expatiate in some detail on a few common rules of pleading, that is to say, in so far as I have perceived them pertinent here, but not before observing that the characterisation of estoppel as a rule of evidence or substantive law (which on either side there is high authority) is neither here or there in my discussion of this matter. And so, in this regard I have not given any consideration as to whether estoppel is a cause of action or not. However, the two critical exhibits specifically pleaded by the parties in this regard in this suit – that is, exhibits B and D have been pleaded as facts relevant to facts in issue and not as res judicata as such, and I so hold. This finding has willy-nilly collapsed the appellant’s case.

More definitively, exhibit A is the judgment as per suit No. HIL/9A/71 in which, in sum, the 2nd respondent here has claimed title to the farmland in dispute, trespass and injunction against the appellant; the claim was dismissed. Exhibit B is the judgment in suit No. HIL/5/72: Oba Peter Agunlejika v. Ikotun (that is the appellant in the instant suit) wherein the plaintiff has claimed title to the farmland in dispute, trespass and injunction. The title to the farmland having been conceded by the appellant in the instant suit, the trial court rightly granted title to Oba Agunlejika and dismissed the claims for trespass and injunction; exhibit D on the other hand, is the judgment on appeal of the decision as per exhibit B. In dismissing the appeal as per exhibit D, the appellate court pronounced as to the effect that the defendant is neither a customary tenant to the plaintiff nor in possession of the land in dispute. These issues are the burning issue in the instant suit. This is so as the plaintiff in the instant suit as set forth herein is relitigating the issues of possession of the farmland in dispute as a customary tenant; this time against the defendants/respondents notwithstanding the conclusive findings that he is not in possession of the land in dispute as a customary tenant and the respondents have challenged this suit on that premise. The parties in any event are bound by their pleadings. See: Ogiamien v. Ogiamien (1967) NWLR 245 and N.I.P.C. Ltd. v. The Thomson Organisation (1969) NMLR 99. And it appears to me having scrutinized the averments of the plaintiff as per particularly paragraphs 9, 10 and 12 and of the (amended) Statement of claim and, as per paragraphs 8, 9: 10, 14 of the defendants’ statement of defence and I have come to the firm view that the facts that the parties have expressly and even moreso explicitly averted in their respective pleadings have clearly raised exhibits B and D as facts relevant to facts in issues and not res judicata simpliciter. After all, worthy of note is the submission that the parties are not the same in the claim as per,exhibits B and D and the instant case and so res judicata cannot avail them.

However, the view of the court below with regard to paragraphs 8, 9 and 14 of the defence and which has been challenged by the appellant is that, “it is clear that the purpose of exhibits B and D extended further than for that of res judicata and that the learned trial Judge was wrong to have considered exhibits B and D for that purpose of res judicata … only … ” In conclusion thereof, the lower court rightly in my view held at p. 106 LL 33-37 of the record as follows:

” …I am of the view that the suit HIL/5/72 confirmed on appeal the issue of ownership, tenancy and possession which had been resolved against the respondent and which I say can therefore not be reopened or relitigated again.”

And I uphold entirely this finding, being well grounded on the facts of this case. There would be an obvious failure of justice not to interfere with the judgment of the trial court in the circumstances.

The lower court rightly intervened.

I have no doubt in my mind that both parties to this suit having pleaded the judgment tendered as per exhibits B and D that effect should be given to the judgments in line with the provisions of section 55(1) of the Evidence Act, 1990; a fortiori, in situations as here where the estoppel by judgment has been specifically pleaded; therefore, the appellant’s contention on this issue as sustained by the trial court has ignored the fact that both parties here pleaded these judgment that is exhibits A, B and D and in my view as facts relevant to the facts in issue that is to say, the issues as to possession and tenancy of the land in dispute. I have referred to and relied on Ezewani v. Onwordi (1986) 4 NWLR (Pt.33) 27 to support my reasoning that to rely on issue estoppel, a party is not required to prove that the subject matter, claims and parties are identical. I can therefore find nothing amiss in the defendants/respondents resisting the plaintiff/appellant’s claim here by pleading exhibits A, B and D; even though they are not parties to the said action. Although without deciding the point quite clearly on the facts of this matter, the plaintiff, Owa Obokun of Ijeshaland in suit No.HIL/5/72 as per exhibit B confirmed on appeal by exhibit D and the respondent in the instant case have privity of interest in respect of the land in dispute and so as privies of the said plaintiff, that is, Owa Obokun of Ijeshaland the defendants/respondents are capable of pleading estoppel per rem judicatam against the plaintiff/appellant if I may repeat on the facts of this case and they are capable in my humble view of sustaining the said plea. However, I say no more of this as counsel’s attention has not be drawn to the issue for their address.

However, the purpose of section 55(1) of the Evidence Act that is to say is to enable judgments relevant to facts in issue in an action to be so pleaded. Section 55(1) provides:

“(1) If a judgment is not pleaded by way of estoppel it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was, or might have been, decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue, in any subsequent proceedings.

(2) Such a judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.”

I have made it clear here that the obvious purpose of the plaintiff/appellant pleading exhibit A is none other than to bring out the fact that the 2nd defendant/respondent lost his claims comprising of title, possession and tenancy of the land in dispute against the plaintiff/appellant. Exhibits B and D have been pleaded by the defendants/respondents simply to prevent the plaintiff/appellant here from reopening the issues of possession and customary tenancy of the land in dispute which the plaintiff/appellant here as defendant lost to Oba Obokun of Ijeshaland exhibit B and D, have pronounced conclusively therein that the plaintiff/appellant is neither in possession nor a customary tenant of the land in dispute. The fundamental principle for not allowing relitigation of a matter as in the instant one as being a subsequent proceeding of issues or matters.

SC.166/2001

Cypiacus Nnadozie & Ors. V. Nze Ogbunelu Mbagwub (2008) LLJR-SC

Cypiacus Nnadozie & Ors. V. Nze Ogbunelu Mbagwub (2008)

LAWGLOBAL HUB Lead Judgment Report

TABAI, J.S.C

This suit was initiated at the Customary Court of Imo State holden at Nnenasa, Isu Local Government Area of Imo State on or about the 9/6/92. The plaintiff therein is the Respondent in this appeal and shall herein after be simply referred to as the respondent.While the defendants therein are the appellants herein and shall herein after be simply referred to as the appellants.The respondent sued for himself and as representing the Mbagwu family of Umuduru Ekwe Isu Local Government Area.The substance of the claim was for a declaration that he and his Mbagwu family were entitled to the Customary Right of Occupancy over the land in dispute. He also claimed for perpetual injunction and N1,000.00 damages for trespass.

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

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

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

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

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

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

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

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

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

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

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

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

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

Under the appellants’ issue two, Learned Senior Counsel referred to the reasoning of the Court below that the respondent did not go to the trial court to prove anew that there had indeed been a pledge and argued that the respondent indeed alleged pledge but failed to prove it. He referred also to the finding by the Court below that the appellants got from the Customary Court of Appeal exactly what they asked for and submitted that the two issues were raised suo motu by the Court and had a duty to hear the parties before giving its decision based thereon. For this submission he relied on UDOGU v EGWUATU (1994) 3 NWLR (Part 330) 120; CARRlBEAN TRADING AND FIDELITY CORPORATION v U.N.N.P.C. (1992) 7 N.W.L.R (Part 252) 161. Learned Senior Counsel for the Appellants further submitted that the Court below read into the record what is not there. Under the appellants’ third issue learned Senior Counsel repeated in greater details the arguments in issues one and two i.e.that the respondent failed to prove the alleged pledge and that the proper order is one for a dismissal of the case instead of an order of retrial. He urged finally that the appeal be allowed and the claim of the respondent dismissed.

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

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

This leads to a consideration of principles governing an order of retrial, the locus classicus on the point being YESUFU ABODUNDU & ORS v THE QUEEN (1959) SCLR 162, In that case the following guiding principles in deciding an order of retrial were laid down:-

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

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

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

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

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

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

The above shows that the five guiding principles formulated above on order of retrial are not decisions laying down legal principles binding on lower courts to follow, since the decision whether or not to order a retrial in a given case is discretionary depending on the peculiar facts and circumstances of each case. And since the decision so to order is the result of the Appellate court’s exercise of its discretion, no one decision is a binding precedent on subsequent decisions. It follows therefore that the five principles formulated in ABODUNDU’s case are not exhaustive. On this see OKODUWA v THE STATE (1988) 2 NWLR (Part 76) 333. Thus it has been settled that where appraisal and evaluation of evidence on vital issues has been left undetermined by the trial court and the appeal court is not in a position to adequately embark upon the evaluation from the printed record the proper order to make is one for a retrial. See OLATUNJI v ADISA (1995) 2 NWLR (Part 376) 107; CHIEF ASUQUO OKO & ORS v CHIEF JAMES NTUKIDEM & ORS (1993) 2 NWLR (Part 274) 124. Where however it is manifest from the record that the plaintiffs case has failed in toto and there is no manifest irregularity of a substantial nature, a retrial order which will be tantamount to giving the Plaintiff another bite at the cherry ought not to be made. See ELIAS v DISU (1962) 1 SCNLR 361; NATIONAL BANK OF NIGERIA LTD v P.B. OLATUNDE & CO. NIG. LTD (1994) 3 NWLR (Part 334) 512 at 533, ABILAWON AYISA v OLAOYE AKANJI & ORS (1995) 7 NWLR (part 406) 129 OKEOWO v MIGLIORE (1979) 11 SC 138; AWOTE v OWODUNNI (1987) 2 NWLR (Part 57) 366; SANUSI v AMEYOGUN (1992) 4 NWLR (Part 237) 527.

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

The judgment itself is at pages 6I-72 of the record. From page 61 line 29 to page 62 line 26 the trial court gave a summary of the case of the Plaintiff. That summary represents the legal evidence of the Plaintiff in the case. However from page 62 lines 26 to page 64 of the record the Court veered into the controversial issue of the parties’ recourse to the Chukwu Oracle which, it thought, was fundamental to the proper determination of the case. The court came to the conclusion that the Plaintiff and his four witnesses were consistent on this issue of visit to the Chukwu Oracle. The Court reasoned and found as follows:

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

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

(2) That the matter went to “‘obi-Ezi-Okwu” association of Ekwe where the issue of going to

chukwu to divine the ownership of the of the land was ratified;

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

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

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

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

At page 67 lines 5-7 of the record the trial Customary Court made some reference to the submission of learned counsel for the defence to the effect that the Plaintiff failed to discharge the onus on him to prove the alleged pledge which in my view was a powerful submission. Surprisingly the trial Customary Court reacted at page 67 lines 8-10 in the following terms:

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

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

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

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

Both sides agree that the procedure was wrong. The Customary Court of Appeal, relying on the prohibition in section 207(2) of Witchcraft and Juju Orders In Council and Section 210(d) of the Criminal Code described the procedure as illegal, nullified the judgment and ordered retrial. The Court of Appeal endorsed the nullification and order of retrial. The pith of the submissions of learned Senior Counsel for the appellants is that on the printed record the plaintiff/respondent failed to prove the alleged pledge and that in the circumstances the proper order should be one for the dismissal of the claim instead of an order for retrial. Earlier at the trial Customary Court learned counsel for the defendants/appellants proffered submissions to the effect that the plaintiff/respondent failed to discharge the burden of proving the alleged pledge. See page 54 of the record. And as I stated earlier the trial customary court noted this submission at page 67 of the record.

It is clear that the trial customary court failed totally to evaluate the legal evidence against the background of what I consider to be the powerful submission of defence/appellants’ counsel. I have restated above some guiding principles for an appellate court in the exercise of its discretion to make an order of retrial. In the face of this total failure of evaluation of the legal evidence by the trial Customary Court was the Customary Court of Appeal right to order a retrial

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

Considering all the facts and circumstances of this case, I am firmly of the view that there are sufficient materials for the discretionary order of retrial. Further more, since the discretion as to whether or not to order a retrial in this case is exclusively that of the Customary of Court of Appeal both the court below and this Court would not ordinarily interfere. And so neither the Court of Appeal nor this Court can interfere with that court’s exercise of its discretion unless there is good cause so to do. This is the principle in NATIONAL BANK OF NIGERIA LTD v P.B. OLATUNDE & CO (NIG.) LTD (1994) 3 NWLR (Part 334) 512 at 526; IMONIKHE v A.G. BENDEL STATE (1992) 6 NWLR (Part 248) 396 at 408 and UNIVERSITY OF LAGOS v OLANIYAN (1985) 1 NWLR (Part 1) 156. In this case there is no manifest good cause for such an interference.

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

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

SC.249/2002

Nika Fishing Co. Ltd. V. Lavina Corporation (2008) LLJR-SC

Nika Fishing Co. Ltd. V. Lavina Corporation (2008)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C

This appeal is against the judgment of the Court of Appeal Lagos Division given on 21st June, 2001, in which it dismissed the Appellant’s appeal against the Ruling of the trial Federal High Court, Lagos of 28th June, 1989, dismissing the Appellant’s application for stay of proceedings in an action for damages on liability or demurrage incurred in a contract of carriage of goods by sea filed by the Respondent as Plaintiff against the Appellant as the Defendant.

The Respondent is the owner of the ship named ‘MV Frio Caribic,’ hereinafter referred to as ‘the ship.’ The ship was chartered to convey a consignment of frozen fish from Mar Del Plata in Argentina, to Apapa Lagos, Nigeria. The ship arrived at the Apapa port on 29th December, 1987 and discharged its cargo. Following the alleged delay in the Appellant taking delivery of the cargo within the time agreed by the parties in the Bill of Lading, the Respondent brought an action against the Appellant at the Federal High Court, Lagos on 21st December 1988, claiming the sum of $119,739.40 United States Dollars as demurrage. Following the order of pleadings by the trial court, the Respondent as the Plaintiff filed its statement of claim to pave the way for the hearing of the case. On being served with the Statement of Claim, the Appellant as Defendant, instead of filing its statement of defence, reacted by filing a motion on notice dated 2nd May, 1989 supported by an affidavit, asking for two specific prayers, namely –

“1. An order dismissing the suit for want of jurisdiction.

An order staying proceedings in this suit.”

The respondent did not file any counter affidavit to the Appellant’s motion which was duly heard by the trial court. In its Ruling on 28th June, 1989, the trial court refused the application. Part of this Ruling at page 31 of the record reads –

“Having gone through all these authorities, I think justice is better served by refusing a stay than by granting one. Application is refused.”

Dissatisfied with this Ruling of the trial court, the Appellant, with the leave of the trial court, appealed to the Court of Appeal which in its decision delivered on 21st June, 2001, dismissed the appeal and affirmed the decision of the trial court. It is from that decision of the Court of Appeal that the Appellant has now further appealed to this Court on three grounds of appeal from which two issues for determination were formulated in the Appellant’s brief of argument. The two Issues are –

“1. Whether in all the circumstances of this case the Court of appeal was correct in holding that the learned trial Judge in the exercise of his discretion acted judicially and judiciously.

Whether the Courts below were under a duty to ascertain the inconvenience of litigating in accordance with the jurisdiction clause.”

In the brief of argument filed on behalf of the Respondent by its learned Counsel however, only one issue was distilled from the grounds of appeal filed by the Appellant for the determination of the appeal. The issue is

“Whether or not the Court of Appeal in the exercise of its appellate jurisdiction correctly held that the learned trial Judge exercised its discretion correctly and was therefore right to have refused a stay of proceedings or to have refused to dismiss the suit in its entirety.”

The main issue for determination in this appeal as rightly identified by the parties in their respective first issue in the Appellant’s and the only issue in the Respondent’s brief of argument, is whether in all the circumstances of this case, the Court of Appeal was right in holding that the learned trial Judge exercised his discretion judicially and judiciously in refusing the Appellant’s application for stay of proceedings in the action brought against it by the Respondent inspite of the provision of a foreign jurisdiction clause contained in the agreement between the parties.

In his submission, learned Counsel to the Appellant recognized the general attitude of Nigerian Courts to a foreign jurisdiction clause that forms part of a Bill of Lading, had been to guard their jurisdiction and maintain their discretion to grant or refuse any application for stay of proceedings in such cases. A jurisdiction clause, according to learned Counsel, declares the intention of the contracting parties in relation to the forum and law applicable in the event of any dispute arising from the contract; that in the present case, the bill of lading contained such a jurisdiction clause which states; –

“Any dispute arising under this Bill of Lading shall be decided in the country where the carrier has his principal place of business and the law of such country shall apply except as provided elsewhere herein.”

That since the forum and the law have already been determined by the parties in the event of any dispute, its not material to argue that where the event occasioning the dispute occurred, shall be the place for the resolution of the dispute inspite of the clear wording of the jurisdiction clause. The guiding principles in Courts granting or refusing stay of proceedings in such cases, according to the learned Counsel, were laid down by the Supreme Court in the case of Sonnar (Nig.) Ltd. v. Partnereedri M.S. Nordwind (1987) 9 – 11 S.C. 121 at 149 – 154 in which a number of English cases were cited with approval. Learned’ Counsel explained that the object of the Brandon Test laid down in one of the cases, Eleftheria v. Eleftheria (1969) 1 Lloyds L.R. 237 by Brandon 1., was to ensure that there is, in every case, a basis upon which the discretion of the Court is founded, particularly the materials made available to the Court by the parties especially the Plaintiff on whom lies the burden of establishing a strong cause for refusal of stay.

Applying these principles to the present case, learned Counsel to the Appellant had argued that the Court below was in error in upholding the decision of the trial court refusing the application for stay of proceedings inspite of the fact that the Respondent upon whom the burden of satisfying the trial court of the existence of evidence to support the decision, had failed to discharge that burden, in the absence of a counter affidavit opposing the application. The cases of Sonnar (Nig.) Ltd. v. Partnereedri M.S. Nordwind (1987) 9 -11 S.C. 121 and Ibrahim v. Shagari (1983) 2 S.C.N.L.R. 179, were cited in support of this submission by learned Counsel who observed that the trial court only relied on the statement of claim of the Respondent which does not constitute evidence, in finding for the Respondent without looking into Appellant’s affidavit in support of its application for stay; that it was in reliance on the inference drawn by the trial court from the statement of claim that the Court below erroneously based its decision that a strong cause had been made out to justify the trial court’s refusal of the application.

For the Respondent however, it was strongly argued that the Court below was right in affirming the decision of the trial court refusing the Appellant’s application for stay because that decision was in line with the decision of this Court in the same case of Sonner (Nig.) Ltd. v. Nordwind (supra) also relied upon by the Appellant; that the jurisdiction clause conferring jurisdiction on a foreign Court in the present case had been constructed in the case of the Fehmarn (1958) 1 AU E.R. 333, as not ousting the jurisdiction of the local Courts, particularly in Nigeria when Section 6(1), 6(b) of the 1979 Constitution and Section 6(1) and 6(b) of the 1999 Constitution are taken into consideration; that the subject matter of this suit being liability for and entitlement to demurrage in a contract of carriage of goods by sea, by Section 7 of the Federal High Court Act, squarely falls within the admiralty jurisdiction of the trial court especially when the issue of the performance of the contract after delivery of the goods in Nigerian Port of Lagos, is further taken into consideration. Learned Counsel emphasized that the law on the interpretation of a jurisdiction clause as in the present case is that such clauses though not ousting the jurisdiction of the local Courts, invest them with a discretion to decide whether to proceed with the hearing of the suit or order a stay; that all the decided cases on the subject have clearly stated that the discretion, unless for strong reason to the contrary, ought to be exercised in favour of holding the contracting parties bound by the terms of their contract: The cases relied upon include, The Chaparral (1969) 2 Lloyds Law Report 158; The Eleftheria (1969)1 Lloyds Report 237 and the decision of this Court in Sonner (Nig.) Ltd. v. Nordwind (1987) 4 N.W.L.R, (Pt. 66) 520 S.C. at 539. Learned Respondent’s Counsel concluded by asserting that since the witnesses required to prove the case at the trial court are in Nigeria where the ship discharged the goods, the decision of the trial court as affirmed by the court below that the proper venue for the resolution of the dispute between the parties is here in Nigeria, should not be disturbed by this court.

In the application filed on 2nd May, 1989 at the trial court by the Appellant which was the Defendant in that Court, the following reliefs were sought –

“1. An order dismissing this suit for want of jurisdiction

An order staying proceedings in this suit.”

The first relief is clearly a challenge to the jurisdiction of the trial court to hear and determine the suit as filed by the Respondent against the Appellant. The law in Nigeria when such a challenge to the jurisdiction of court is being considered by a trial court is well settled. When such an application or objection is raised before a trial court challenging its jurisdiction, the court could rely simply on the Writ of Summons, the Statement of Claim and affidavit in support of the applications as was rightly done by the trial court and affirmed by the court below in the present case. See Izenkwe v. Nnadozie (1953) 14 W.A.C.A. 361; Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31; Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 1 All N.L.R. 409; Kasikwu Farms Ltd. v. Attorney General of Bendel State (1986) 1 N.W.L.R. (Pt. 19) 695; Attorney General Kwara State v. Olawale (1993) 1 N.W.L.R.(Pt. 272) 645 and Arjay Ltd. v. Airline Management Support Ltd. (2003) 7 N.W.L.R. (Pt. 820) 577 at 601 where Onu J.S.C. stated the law-

“I agree with the Appellant’s submission that there is a difference between an objection to the jurisdiction and a demurrer. I also agree with them that an objection to the jurisdiction of the Court can be raised at anytime; even when there were no pleadings filed and that a party raising such an objection need not bring the application under any rule of Court and that it can be brought under the inherent jurisdiction of the Court. Thus, for this reason, once the objection to the jurisdiction of the Court is raised, the Court has inherent power to consider the application even if the only process of Court that has been filed is the Writ of Summons and affidavits in support of any interlocutory application,as in the case in hand.”

In other words in the instant case where the Writ of Summons, the Plaintiffs/Respondent’s statement of claim and the affidavit filed by the Appellant as Defendant in support of its application, show quite clearly that the subject matter of suit being a liability for and entitlement of the Respondent to demurrage in a contract of carriage of goods by sea from Argentina to Lagos, Nigeria, by Section 7 of the Federal. High Court Act is rightly within the Admiralty jurisdiction of the trial court as found by it and affirmed by the Court below.

Infact having regard to the subject of the suit of the Respondent, it is only the Federal High Court that has jurisdiction to resolve the dispute between the parties in Nigeria. See Madukolu & Ors. v. Nkemdelium & Ors. (1962) 1 All N.L.R. (Pt. 4) 587. – On the issue of jurisdiction therefore the Courts below were quite right in their decision that the subject matter of the Respondent’s suit, was within the jurisdiction of the trial court.

However, what was really in contention between the parties was whether having regard to the jurisdiction clause agreed between the parties in the Bill of Lading, the contract document binding between them which provided the venue or forum and the applicable law for the settlement of any dispute arising from the agreement in Argentina, the trial court exercised its discretion judicially and judiciously in refusing a stay of proceedings to give the parties the opportunity to be bound by their agreement executed outside Nigeria. This question relates to the second relief sought by the Appellant in its application at the trial court for stay of proceedings.

The position of the law in this country regarding the enforcement or otherwise of a jurisdiction clause contained in a Bill of Lading as in the present case, was extensively discussed in the decision of this Court in Sonnar (Nig.) Ltd. v. Partnereedri M. S. Nordwind (1987) 4 N.W.L.R. (Pt. 66) 520 also reported in (1987) All N.L.R. 548 at 567- 568 where Eso J.S.C. in the lead judgment said

“It is true that in the ‘The Eleftheria (1969) 1 Lloyds L.R 237, Brandon J. in his powerful judgment emphasized the essentiality of giving full weight to the prima facie desirability of holding the Plaintiffs to their agreement….The tests set out by Brandon J. in ‘The Eleftheria’ are as follows –

“(1) Where the Plaintiffs sue in England in breach of an agreement to refer disputes to a foreign Court, and the Defendants apply for stay, the English Court, assuming the claim to be otherwise within the jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not.

(2) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown.

(3) The burden of proving such strong cause is on the Plaintiffs.

(4) In the exercise of its discretion, the Court should take into account all the circumstances of the particular case.

(5) In particular, but without prejudice to (4), the following maters, where they arise, may be properly regarded:

(a) In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the English and foreign courts.

(b) Whether the law of the foreign Court applies and, if so, whether it differs from English law in any material Respect.

(d) Whether the Defendants Genuinely desire trial in the foreign country, or are only seeking procedural advantages.

(e) Whether the Plaintiffs would be prejudiced by having to sue in the foreign Court because they would

(i) be deprived of security for that claim;

(ii) be unable to enforce any judgment obtained;

(iii) be faced with a time-bar not applicable in England; or

(iv) for political, racial, religious or other reasons be unlikely to get a fair trial.’

To these “I would add, with all respect –

‘Where the granting of a stay would spell injustice to the Plaintiff as where the action is already time-barred in the foreign Court and the grant of stay would amount to permanently denying the Plaintiffs any ‘redress.’

This is the case here. And 1 think justice is better served by refusing a stay than by granting one.”

It is observed that this Court in Sonnar (Nig.) Ltd. v. Nordwind case referred to above, while applying the Brandon Tests was confronted with a situation which exceeded a mere balance of convenience. It was a total loss of action by the Plaintiffs, if effect were given to the principle of Pacta sunt servanda, having regard to the peculiar circumstances of the case where the action filed in the Federal High Court here in Nigeria, was already time barred in the foreign German Court agreed by the parties in the bill of lading.

In the present case however, where the Respondent brought its action at the trial Court in clear breach of the agreement to refer any dispute to a foreign Court in Argentina and the Appellant had reacted by filing an application for stay of proceedings, as the Respondent’s suit was within the jurisdiction of that Court, the Court has a discretion whether or not to grant the application. The law requires such discretion to be exercised by granting a stay unless strong cause for not doing so is shown. The burden of showing such strong cause for not granting the application lies on the door steps of the Respondent as the plaintiff. The question is whether that burden had been discharged by the Respondent in finding that the burden had been discharged, this is what the trial court said at page 29 of the record: –

“Having enumerated the statement of claim of the Plaintiff to see if this is a proper case to stay or assume jurisdiction taking Brandon Test into consideration, to me this is a simple contract guided by exhibit A. The goods were delivered in Nigeria. What the Plaintiff is claiming is only demurrage. In my view the witnesses to prove the case are all in Nigeria such as the Nigeria Ports Authority whose duty it is to know when the ship arrived and when it departed.

I hold that it is in Nigeria Court that the issue of fact is situated or more readily available from the statement of claim of the plaintiff which is action on a simple contract, I hold that the Defendant does not genuinely desire trial in the foreign country but are only seeking a procedural advantage.”

This finding of the trial court was not based on any evidence brought by the Respondent as plaintiff as no counter affidavit was filed by it in response to the application filed by the appellant supported by an affidavit. Further more, the Appellant’s affidavit in support of its application which the court below said could be relied upon by the Respondent in discharging the burden of proof of satisfying the trial court of its claim to hear the case in Nigeria rather than in Argentina, inspite of having failed to file a counter affidavit, does not contain such relevant facts relied upon by the trial court and the Court below to support the case of the Respondent. The fact that all the witnesses in the case are in Nigeria or that the circumstances of the matter show that the case is more connected with Nigeria than Argentina as found by the Courts below, are not at all contained in the Appellant’s affidavit in support of its application. This is where the circumstances of this case differ significantly from the case of Sonnar (Nig.) Ltd. v. Nordwind (supra), relied upon by both parties in which the Plaintiffs promptly reacted to the Defendants’ application for stay by filing a counter affidavit exhibiting documents showing why and how the Plaintiffs would be prejudiced if their suit were to be heard-in-Germany in accordance-with the agreement where the suit was already statute barred. The findings of fact made by the trial court in the present case that the witnesses to prove the Plaintiffs case are all in Nigeria and that the evidence on the issue of fact was situated or more readily available in Nigeria are not supported by evidence adduced by the plaintiff/respondent in discharge of the burden placed upon it by law. In this respect, the failure of the plaintiff/respondent to file a counter affidavit articulating or deposing to facts showing that inspite of the foreign venue agreed by the parties for the settlement of their dispute, it would be prejudiced if the trial court had not assumed jurisdiction to hear and determine the suit. Finding of facts cannot be made from paragraphs of the statement of claim filed by the Respondent as pleadings of which statements of claim are part, cannot take the place of evidence in a contested matter in Court.

See Akinfosile v. Ijose (1960) S.C.N.L.R. 447 Akanmu v. Adigun (1993) 7 N.W.L.R. (Pt. 304) 218 and Ajuwon v. Akanni (199J) 9 N.W.L.R. (Pt. 316) 182 at 200. This is because Courts of law can only decide issues in controversy between parties on the basis of the evidence before them. See Ibrahim v. Shagari (1983) 2 S.C.N.L.R. 176, also reported in (1983) All N.L.R. 507 at 512,524 and 534 where Nnamani J.S.C. of blessed memory put it plainly thus –

“Although it seems fairly obvious, it needs emphasis that Courts of law can only decide issues in controversy between parties on the basis of the evidence before them. It would be invidious if it were otherwise.”

Thus in the absence of strong cause shown by the Respondent for the trial court not to grant the Appellant’s application for stay, the law requires that court to exercise its discretion in favour of the Appellant by granting the application. The discretion of the trial court was therefore not exercised judicially and judiciously in the absence of any evidence placed before the trial court by the Respondent, to base its decision upon. The Court below, in my view, was in error in its judgment now on appeal when it affirmed the decision of the trial court. Taking into consideration that in the present case the trial court did not take into account the facts averred in the Appellant’s affidavit in support of its application the Court cannot by merely relying only on the statement of claim of the Respondent, be said to have exercised its discretion judicially and judiciously having acted under a misconception of law in giving weight to irrelevant and unproved facts in support of its decision thereby justifying interference by this Court. See the Resident Ibadan Province v. Lagunju (1954) 14 W.A.C.A. 552; Emekede v. Emekede (1964) 1 All N.L.R. 102; Williams v. Voluntory-Funds Society (1982) 1 – 2- S.C. 145 and Efetiroroje v. Okpalefe II (1991) 5 N.W.L.R. (Pt. 193) 517.

Although one of the complaints of the Appellant in the lone issue for determination in this appeal is that apart from the failure of the trial court to adequately consider the effect of the failure of the Respondent to file a counter affidavit to respond to the facts averred by the Appellant in the affidavit in support of its application for stay stating the nature of the agreement between the parties contained in the bill of lading which was an exhibit as part of the evidence, the Court below indeed examined that affidavit in its judgment. It is unfortunate however that the Court below also fell into the same error as the trial court of not realizing that the Respondent on whom the law placed the burden of proving the existence of strong reasons for wanting to opt out of what was originally agreed by the parties in their agreement to submit their dispute to the Nigerian Courts for resolution rather than the Courts in Argentina as specified in Clause 3 of the bill of lading, did not give any reason in evidence in support of its stand. In the absence of a counter affidavit by which the respondent could have placed its evidence on the other side of the scale like the Appellant did in its own side of the scale in the affidavit in support of its application, the trial court and consequently the court below, had nothing to consider in favour of the respondent to support their decisions now on appeal that the trial court where the respondent filed its action contrary to the agreement between the parties, is the proper venue for the hearing and determination of its case against the Appellant.

It is for the foregoing reasons that I will allow this appeal. Accordingly the appeal is hereby allowed. The judgment of the Court below affirming the Ruling of the trial court refusing the application of the Appellant for stay of proceedings is hereby set aside and replaced with an order granting the application.

There shall be N50, 000, 00 costs to Appellant against the respondent.N. TOBI, J.S.C.: The plaintiff is the respondent in this court. The defendant is the appellant. The appellant is involved in the business of importing and selling of frozen fish. The respondent is the owner of the ship, MV “Frio Caribic”. The ship MV “Frio Caribic”, became a chartered ship, being the subject of the charter party between the respondent (as the owner) and OACEX, Companie Argentina De Commercio Exterior SA (as the charterer).

MV “Frio Caribic”, in accordance with the terms of the said bill of lading, set sail from Mar Del Plata in Argentina and bound for Apapa in Nigeria, carrying to the order of the appellant some 25,000 cartons of frozen fish. MV “Frio Caribic” arrived at the Apapa port on 29th December, 1987. The appellant discharged the cargo.

The respondent brought an action at the Federal High Court on 21st December, 1988, claiming the sum of $119,739.40 USD as demurrage for an alleged delay in taking delivery by the appellant. Pleadings were ordered by the court on 3rd April, 1989. The respondent filed a statement of claim on 17th April, 1989. The appellant in response to the statement of claim brought an application under Order 27 Rule 1 of the Federal High Court (Civil Procedure) Rules 1976, as well as under section 7 of the Federal High Court Decree 1973 ‘and under the inherent powers of the court.’ The appellant’s application was by motion on notice dated 2nd May, 1989, which contained the following prayers:

(1) An order dismissing the suit for want of jurisdiction;

(2) an order staying proceedings in this suit and

(3) and for such further or other orders that this Honourable .Court may deem fit to make in the circumstances. ”

The application was supported by an affidavit. The respondent did not file a counter affidavit. The learned trial Judge refused the application. He ordered the applicant to file his statement of defence and serve same on the respondent On whether the trial should proceed in Nigeria or in Argentina, the learned trial Judge said at pages 29 and 30 of the Record:

“Having enumerated the statement of claim of the plaintiff to see if this is a proper case to stay or assume jurisdiction taking Brandon Test into consideration. To me this is a simple contract guided by exhibit A. The goods were delivered-in Nigeria.

What the plaintiff is claiming is only demurrage. In my view the witnesses to prove the case are all in Nigeria such as the Nigerian Ports Authority whose duty it is to know when the ship arrives and when it departed.

I hold that it is in Nigerian court that the evidence on the issue of fact is situated or more readily available and the effect of this on the relative convenience and expenses of trial as between Nigerian court and the foreign court. From the statement of claim of the plaintiff which is action on a simple contract, I hold ‘that the defendant does not genuinely desire trial in the foreign country but are only seeking a procedural advantage. I hold the view that in the interest of justice this is a proper case to be tried in Nigerian courts.”

On appeal, the Court of Appeal dismissed the appeal. The court affirmed the decision of the learned trial Judge. The court said at page 172 of the Record:

“For all this, I am satisfied that there is a strong cause for refusing a stay. I also refuse it Therefore the court below exercised its discretion rightly and the appellant has failed to show that it was not judicially and judiciously exercised. The appeal lacks merit and is accordingly dismissed and the decision of the court below is hereby affirmed. The matter is sent back to’ the Chief Judge of Federal High Court to assign to another Judge.”

The appellant has appealed to this court. Briefs were filed and exchanged. The appellant formulated two issues:

“Issue One

Whether in all the circumstances of this case the Court of Appeal was correct in holding that the learned trial Judge in the exercise of his discretion acted judicially and judiciously,

Issue Two

Whether the courts below were under a duty to ascertain the inconvenience of litigating in accordance with the jurisdiction clause,”

The respondent formulated one issue for determination:

Stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation in the trial on the basis of the merits of his case, Consequently, the court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue. See Chief Fawehinmi v. Col. Akilu (1988) 4 NWLR (Pt. 88) 367.

In an application for stay of proceedings the court must take into consideration the following factors or principles:

(a) Valid cause or right of action:

The first consideration for the court to determine in an application for stay of proceedings is whether the applicant has a valid cause or right of action, He should establish that he has a prima facie claim in law. Normally, this issue ought to be raised and settled before an application for stay of proceedings as it directly affects the jurisdiction of the court, In the event of an oversight on the part of counsel however, the issue could be raised at the stage of an application, for stay of proceedings and indeed at any other stage, even on appeal.

Accordingly, where the applicant has no valid cause or right of action, there is in law no basis for an application for stay of proceedings as there is nothing in law to stay. See Akilu v. Fawehinmi (No, 2) (1989) 2 NWLR (PI. 102) 123″

(b) Pending appeal:

In order to consider an application for stay of proceedings, there should be a pending appeal and the pending appeal must be valid. For instance, where an appeal is filed out of time, it is incompetent and therefore invalid. A court of law will not consider an application for stay in respect of such an incompetent or invalid appeal. See Olawunmi v. Mohammed (1991) 4 NWLR (PI. 186) 516: The Provost Alvan lkoku College of Education v. Amuneke (1991) 9-NWLR (PI. 213) 49; NBN Ltd. v. NET (1986) 3 NWLR (PI. 31) 667.

In order to grant an application for stay of proceedings, the pending appeal must be arguable and this should be borne out by the ground or grounds of appeal. In other words, the grounds of appeal must clearly donate the legal strength of the appeal but only in terms of it being arguable. An applicant has no duty to prove at that stage that the appeal will succeed. Once he shows that the appeal is arguable and there are chances of success, an’ application for stay could be granted. However, where the pending appeal is frivolous, unmeritorious, oppressive and not in law arguable, an application will be refused. In order to come to the conclusion as to the frivolity of the appeal, an appellate court is bound to expose itself to an inquiry into the record of appeal before it, in particular, the grounds of appeal as they relate to the proceedings before the lower court. The court will also find the ruling of the lower court useful. See General Oil Ltd v. Oduntan (1990) 7 NWLR (PI. 1.63);State v. Ajayi (1996) 1 NWLR (Pt. 423) 169.

(d) Competing rights of the parties:

In application for stay of proceedings, the court will consider the competing rights of both the applicant and the respondent to justice. In other words, the court will take into consideration, the equity and justice of the application.

(e) Hardship:

One important factor in an application for stay of proceedings is hardship. A court of law will be most reluctant to grant an application for stay of proceedings if it will cause greater hardship than if the application is refused. The question of hardship is a matter of fact which can be deduced from the competing affidavit evidence. The moment the court comes to the conclusion that the grant of the application will do more harm than good, it will be refused. See Kigo (Nig.) Ltd. v. Holman Bros (Nig.) Ltd. (1980) 5-7 SC 60; Arojoye v. UBA (1986) 2 NWLR (PI. 20) 101.

(f) Preservation of the res:

One of the most important factors in an application for stay of proceedings is the preservation of the res or the subject matter of the suit. Courts of law have a duty to preserve the res for the purpose of ensuring that the appeal, if successful, is not rendered nugatory. Where there is evidence that the res will not be destroyed in the course of the litigation, an application may be refused. See Kigo (Nig.) Ltd. v. Holman Bros mig. Ltd. (1980) 5-7 SC 60; Shodeinde v. Trustees of the Ahamdiyya Movement in Islam (1980) 1-2 SC 163; Yinka Folawiyo and Sons Ltd. v. Hammond Projects Ltd. 3 FRCR (1977) 373.

(g) Special and exceptional circumstances:

An application for stay of proceedings can only be granted where special and exceptional circumstances exist. A special or exceptional circumstance is a peculiar or unique circumstance which is additional to the ordinary state of affairs. The application is not granted as a matter of routine as it is not a mechanical relief slavishly following the filing of an appeal. It is a matter of law and facts, and a very hard one in their combined content. See Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122;General Oil Ltd. v. Oduntan (1990) 7 NWLR (Pt. 163) 423.

I leave the principles on stay of proceedings and take the contractual aspects of the matter. The Bill of lading provided for the following jurisdiction clause:

“Any dispute arising under this bill of lading shall be decided in the country where the carrier has his principal place of business and the law of such country shall apply except as provided elsewhere herein.”

The bill of lading contains the contractual terms between the parties and therefore binding on the parties. Parties are bound by the conditions and terms in a contract they freely enter into. See Northern Assurance Co. Ltd. v. Wuraola (1969) NSCC 22; United Bank for Africa v. Europhina Nigeria limited (1991) 12 NWLR (Pt. 176) 677. The meaning to be placed on a contract is that which is the plain, clear and obvious result of the terms used. See Aouad v. Kesserawani (1956) NSCC 33. When construing documents in dispute between two parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not potent on the face of the document. See Amadi v. Thomas Aplin and Co. Ltd. (1972) 7 NSCC 262. Where there is a contract regulating any arrangement between the parties, the main duty of the court is to interpret that contract and to give effect to the wishes of the parties as expressed in the contract document. See Oduye v. Nigerian Airways limited (1987) 2 NWLR (Pt. 55) 126. In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document. See Amizu v. Dr. Nzeribe (1989) 4 NWLR (Pt. 118) 755. While a contract must be strictly construed in accordance with the well-known rules of construction, such strict construction cannot be a ground for departing from the terms which had been agreed by both parties to the contract. See Niger Dams Authority v. Chief Lajide. (1973) 5 SC 207. It is the law that parties to an agreement retain the commercial freedom to determine their own terms. No other person, not even the court, can determine the terms of contract between parties thereto. The duty of the court is to strictly interpret the terms of the agreement on its clear wordings. See Nimanteks Associates v. Marco Construction Company limited (1991) 2 NWLR (Pl. 174) 411. Finally, it is not the function of a court of law either to make agreements for the parties or to change their agreements as made. See African Reinsurance Corporation v. Fautaye (1986) 1 NWLR (Pl. 14) 113.

Paragraphs 4 and 5 of the affidavit in support of the application read:

“4. That I am informed by Mr. O. M. Sagay Esq. counsel in the chambers of solicitors to the defendant/applicant in this matter and I verily believe him that by clause of the Bill of Lading, any dispute arising there from shall be decided in the country where the carrier has his principal place of business and the Law of such country shall apply except as provided elsewhere in the Bill of Lading. Attached is the bill of lading and marked Exh. A.

That the principal place of business of the carrier is Argentina.”

The respondent did not file any counter affidavit. Accordingly, paragraphs 4 and 5 of the affidavit in support are deemed to have been admitted. See N.N.B. Plc v. Denclag Ltd. (2001) 1 NWLR (Pl. 695) 542; Evuleocha v. ACB Plc (2001) 5 NWLR (Pt. 707) 672; Nigerian Shippers Council v. United World Ltd. Inc. (2001) 7 NWLR (Pl. 713) 576; Ogar v. James (2001) 10 NWLR (Pl. 722) 621. In the absence of a counter-affidavit the High Court and the Court of Appeal had no material to consider the application for stay of proceedings in favour of the respondent. What the two courts did was clearly not borne out from the Record.

It is clear to me from what the two courts said in refusing the application for stay of proceedings that they allowed themselves to be governed by sentiments; and sentiments cannot be legal basis for refusing application for stay of execution. It is a matter of legal principles and not one of sentiment or patriotism that the matter should be tried in Nigeria and not in Argentina.

Learned counsel for the appellant, Mr. Mogbeyi Sagay profusely cited the case of Sonnar (Nig.) Ltd. v. Nordwind (1987) 9-11 SC 121. In that case, the Supreme Court cited with approval the English case of Uter Wesser Reedere v. Zapata or The Chapparal (1968) 2 Lloyd’s LR 158:

“The court has discretion, but it is a discretion which in the ordinary way and in the absence of strong reason to the contrary, will be exercised in favour of holding the parties to their bargain.”

The court also accepted the decision in the English case of Eleftheria v. Eleftheria (1969) 1 Lyods LR 237 where Brandan, J said, as follows:

“1. Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign court, and the defendants apply for a stay, the English court, assuming the claim to be otherwise within the jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not.

The discretion should be exercised by granting a stay unless strong cause for not doing so is shown.
The burden of proving such strong cause is on the plaintiffs.
In exercising its discretion the court should take into account all the circumstances of the particular case.
In particular, but without prejudice to (4), the following matters, where they arise may be properly regarded:

(b) Whether the law of the foreign court applies and, if so, whether it differs from English law in any material respects.

(c.) With what country either party is connected, and how closely.

(d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages.

(e) Whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would:

i) be deprived of security for that claim

ii) be unable to enforce any judgment

iii) be faced with a time-bar not applicable in England; or

(iv) for political, racial, religious or other reasons be unlikely to get a fair trial.”

The above is referred to as the Brandan test, named after Brandan, J. who delivered the judgment in Eleftheria.

The Brandan test gives the discretionary power to the Judge in the exercise of his power to order a stay of proceedings. Like every discretion, the Judge must exercise it judicially and judiciously, that ‘is discretion based or guided by law or discretion according to sound, and well considered reason respectively. Test No.2 enjoins the court to exercise the discretion in favour of the applicant unless strong cause for not doing so is shown. The respondent did not show any cause not to talk of a strong cause; as no counter affidavit was filed. Test No.2 places the burden of proof on the plaintiff. Again, the plaintiff who is the respondent did not discharge the burden placed on it as there are no materials before the court to enable it refuse the application for stay of proceedings.

In compliance with Test No.4 of the Brandan test, I am bound to exercise my discretion in favour of granting the stay of proceedings in the light of the fact that the respondent did not place before the learned trial Judge materials to enable that court to exercise its discretion against the appellant.

Learned counsel for the respondent cited what Eso, J.S.C., said in Sonnar Ltd. v. Nordwind, supra as follows in paragraph 4.2.3 of his brief:

“To these I would add with all respect where the granting of a stay would spell injustice to the plaintiff as where the action is already time barred in the foreign country and grant of stay would amount to permanently denying the plaintiff any redress.”

Beyond the dictum of Eso, J.S.C., learned counsel did not say anything to the effect that the action is already time barred in Argentina Counsel submitted that the Court of Appeal having closely scrutinized all the processes before it, including the writ of summons and statement of claim and the motion to dismiss with the supporting affidavit, rightly came to the conclusion refusing the application for stay of proceedings.

Learned counsel for the respondent submitted that particular selection clause under review conferring jurisdiction on a foreign tribunal has been construed in the past as not ousting the jurisdiction of the local court. He cited The Fehmaru (1958) 1 All ER 333. In that case, the ship owners did not object to the dispute being decided in England but wished to avoid giving security. That is not the situation here where the appellant disputes on the jurisdiction of the Nigerian courts.

Counsel also cited section 6(1) and 6(6)(b) of the 1979 Constitution and submitted that the case of the appellant will be contrary to the subsections. Section 6(ii) vests in the courts judicial powers of the Federation. Section 6(6)(b) provides that the judicial powers vested in accordance with the section shall extend to all matters between persons or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.

As the subsection and indeed the whole of section 6 do not oust the jurisdiction of foreign courts in appropriate cases, I do not agree with the submission of learned counsel on a possible violation of the subsection.

Learned counsel submitted that the subject matter being liability for and entitlement to demurrage in a contract of carriage of goods by sea is within the jurisdiction of the Federal High Court by virtue bf section 7 of the Federal High Court Act. That is rather simplistic. The clear jurisdiction clause in the bill of lading in the matter surpasses section 7 of the High Court Act.

Jurisdiction is a very hard matter of law and so cannot be subjected to particular feelings and sentiments of the court. Where a contract specifically provides for the venue of litigation, courts are bound to give teeth to the contract by so construing it, without ado. In this case, issue of difficulty of assemblage of witnesses, cost of litigation arising from the parties going to Argentina, do not arise because they are mere expression of sentiment and at that.

It is for the above reasons and the more comprehensive reasons given by my learned brother, Mohammed, J.S.C., in his judgment that I too allow the appeal. I also award N50, 000.00 costs against the respondent in favour of the appellant.

SC.162/2002

Abdullahi Ada V. The State (2008) LLJR-SC

Abdullahi Ada V. The State (2008)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C

This is an appeal against the decision of the Court of Appeal, Kaduna Division delivered on 10th December, 2003 dismissing the appeal of the Appellant and affirming his conviction and sentence of death by the High Court of Kebbi State in Birnin Kebbi Judicial Division presided over by Ambursa, J. on 24th February, 2000.

Dissatisfied with the decision, the Appellant who was the 4th accused person, has appealed to this Court on three (3) grounds of appeal which without their particulars, read as follows:

Ground One

“The learned Justices of the Court of Appeal erred in law in confirming the conviction and sentence of the appellant in spite of the fact that the trial court failed to consider and examine the defences open to the appellant on the record before convicting the appellant as charged.

Ground 2

The Court of Appeal erred in law when in dismissing the appeal of the appellant it held that the appellant failed to call evidence in support of the defences available to him nor pinpoint the elements constituting such defences.

Ground Three

The learned Justices of the Court of Appeal erred in law and occasioned a miscarriage of justice to the appellant when they failed to confine themselves and resolve the only issue formulated by the appellant for determination before them but instead, suo motu raised and considered an entirely different issue without affording the appellant any opportunity to be heard on the said issue before using same as a basis to dismiss the appeal of the appellant”.

For the avoidance of doubt, I will reproduce verbatim, the facts of this barbaric, heartless and most wicked slaughtering of the deceased by the six (6) accused persons including the appellant as stated in the Appellant’s Brief which facts, have been adopted by the respondent in its brief. They read as follows:

“1.1. On or about the 14th day of July 1999, it was rumored (sic) in Randali and Kardi villages within Birnin Kebbi Local Government Area of Kebbi State that one Abdullahi Alhaji Umaru of Randali village (now deceased) defamed Holy Prophet Mohammed (SAW),Accordingly, some Moslem fanatics arrested the deceased at Kardi village and kept him in the custody of Suleiman Dan Ta Annabi who was the 6th Accused person in the trial court as well as in the custody of one Mohammed Sani (the 3rd Accused before the trial court). Meanwhile, one Musa Yaro – the 1st Accused in the court of trial in conjunction with Usman Kaza (the 2nd Accused in the court of trial) as well as the Appellant (the 4th Accused in the court of trial) went to intimate the village head of their intention to met out the prescribed punishment on the deceased for defaming the name of Holy Prophet Mohammed (SAW). The village Head never gave any answer to them.1.2. Subsequently, the said Musa Yaro, Usman Kaza and the appellant returned to the outskirt of Kadi (sic) village where the deceased was being held captive by Suleiman Dan Ta Annabi and one Mohammed Sani and on getting there, Musa Yaro read a portion of Risala to the effect that the punishment of anyone who defame Holy Prophet Mohammed (SAW) is death. Following this recitation, Mohammed Sani matched the deceased on the neck and he fell down. Abubakar Dan Shalla (the 5th Accused in the court of trial) used a knife and slaughtered the deceased by the neck and the deceased died on the sport. (sic) Thereafter, everybody dispersed from the scene.

1.3. Subsequently, all the persons who participated one way or the other in the alleged crime were arrested by the police and taken to C.I.D. office at Birnin Kebbi. At the end of the police investigation into the alleged offence, the Appellant and 5 others were arraigned before the High Court of Justice Birnin Kebbi – Kebbi State of Nigeria presided over by Hon.Justice Mohammed Suleiman Ambursa on counts of Criminal conspiracy, Abetment and Culpable Homicide punishable with death contrary to sections 97, 85 and 221(a) respectively of the Penal Code. The Appellant was the 4th Accused person before the trial court.

1.4. In the course of trial, the prosecution called 8 witnesses in proof of the alleged offences while the Appellant rested his case on that of the prosecution – see pages 41 – 56 of the record. Thereafter the Counsel to the respective parties addressed the court (see pages 56 – 61 of the record) and on the 24th day of February 2000, the learned trial Judge delivered his judgment and found the Appellant guilty of criminal conspiracy, abetment and culpable Homicide punishable with death contrary to sections 97, 85 and 221 (a) of the Penal Code respectively. The appellant was therefore sentenced to death by the trial court.

1.5. Being aggrieved by the said judgment of the trial court, the appellant applied to the Court of Appeal (Kaduna Division) for an order extending time for him to file an appeal to the said Court of Appeal. The said application of the appellant was granted by the Court of Appeal – see page 81 (a) of the record. As a result, the appellant filed his notice and grounds of appeal before the Court of Appeal on the 28th of January 2003 – see pages 79 – 81 of the record and in accordance with the Rules of procedure of the said court, the appellant filed his brief of argument wherein he raised only one issue for the determination of the Court of Appeal- see pages 82-92 of the record. In response, the respondent also filed the Respondent’s brief as can be seen at pages 93 – 99 of the record. Subsequently, the Court of Appeal heard the said appeal on the 141h day of October 2003. – see pages 100 -102 of the record and by a judgment delivered on the 10th day of December 2003 per Hon. Dalhatu Adamu (JCA), Hon. Baba Alkali Ba’aba (JCA) and Hon. Stanley Shenko Alagoa (JCA), the said appeal of the Appellant was dismissed – see pages 105 – 140 of the record.

1.6. Subsequently, the appellant who was out of time in filing an appeal to this Court in challenging the said decision of the Court of Appeal applied to this Court for an Appeal of the Appellant filed on the 11th of November 2004 as properly filed”.

As appears in the above facts, at the said Court of Appeal (hereinafter called “the court below”), the appellant argued only one ground of appeal – i.e. ground .3 in his Notice of Appeal after abandoning grounds one and two. In other words, the appellant formulated one issue for determination which reads as follows:

“Did the appellant suffer any miscarriage of justice when the court below refused to consider the several defences available to the appellant on the record before convicting the appellant as charged”

In this Court, the appellant, has formulated three (3) Issues for determination, namely,

“Issue No.1

Whether or not the Court of Appeal was correct in law when it confirmed the conviction and sentence of the Appellant despite the fact that the trial court failed to consider and examine the defences open to the appellant on the record before convicting the Appellant as charged. This issue relates to ground one of the Grounds of Appeal.

Issue No.2

Whether or not an Accused person is under a legal obligation to call evidence in support of the defences open to him on the record or pinpoint the element constituting the defences before he is entitled to a consideration of the defences by the trial court. This issue relates to ground two of the Grounds of Appeal.

Issue No.3

Were the learned Justices of the Court of Appeal correct in law when they considered the record of proceedings suo motu and held that the defences of justification and provocation did not avail the appellant even when the appellant was not afforded the opportunity to canvass argument on the said point JUSTICES arrived at such a conclusion This issue relates to ground three of the Grounds of Appeal.

On its part, the respondent has formulated two (2) issues for determination, namely,

Issue No. 1

Whether or not the Court of Appeal was right when it went ahead and evaluated (sic) (meaning to evaluate) evidence with regard to defences available to the Appellant which ought to have been done by the trial court, having regard to Order 1 Rule 19 paragraphs 3 and 4 of its rules. The issue relates to ground 3 of the ground of appeal.

Issue No.2

Whether or not the Court of Appeal rightly held that the defences of justification and provocation as provided under sections 45 and 222 (1) of the penal code respectively were not available to the appellant. This issue relates to ground 1 of the grounds of appeal.”

For clarity and completeness, I will take the said issues of the parties together since they deal with the consideration of the said defences of justification and provocation by the court below.

From his issue No.1, it could be seen that the appellant is complaining about the failure of the trial court to consider and examine the defences open to the appellant on the record before convicting him as charged. I had noted that this was his sole issue at the court below. Now, under his issue no.3, he queries whether the court below was correct when it considered the defences of justification and provocation and held that they did not avail the appellant, and according to him.

“When the appellant was not afforded the opportunity to canvass argument on the said point JUSTICES arrived at such a conclusion”

From the said facts stated above, it is admitted by the appellant that while the prosecution called eight (8) witnesses in proof of its case, the appellant, never testified in his defence and did not call any witness. He rather, rested his case on that of the prosecution. At page 56 of the records after the trial court granted the application for an adjournment to 16th February, 2000 for defence and address the following appears inter alia:

“16/2/2000 – E.C. Oguelina (i.e. appellant’s learned counsel). We must express our gratitude for the time given us by this honourable court to review the case and make up our mind as to whether to rest our case on that of the prosecution or call evidence. We have made up our mind to rest our case on that of the prosecution. We are ready to address the court”. (the italics mine)

Learned defence counsel proceeded to address the court there and then. In other words, it was the decision of the learned defence counsel and the appellant, for the appellant not to go into the witness box to testify, but to rest his case on that of the prosecution. It was their/his right to so decide.

I will now deal even briefly, with the effect of an accused person just like a defendant resting his case on the case of the Plaintiff). Such a stance, is regarded as a legal strategy. In my concurring Judgment recently, in the case of Major Bello M. Magaji v. The Nigerian Army dated 7th February, 2008 (unreported), I dealt with this issue and referred to the cases of Oforlete v. The State (2000) 7 SCNJ. 162, @ 179. 183,184 and Ubani & 2 Ors. v. The State (2003) 12 SCNJ. 111 @ 130 where it is firmly settled that where an accused person rests his case on that of the prosecution, the evidence of the prosecution which has not been controverted by the accused person, is deemed to have been accepted or admitted by such an accused person. Such evidence being unchallenged and uncontroverted, a trial court has a duty and in fact, is entitled to act on it where credible.In the case of Ali & anor. v. The State (1988) 1 NWLR (Pt.68) 1 @ 18. (1988) 1 SCNJ. 17; Oputa J.S.C., (Rtd.), stated that it is always a gamble to rest the defence on the case of the prosecution. See also the case of Nwede v. The State (1985) 3 NWLR (Pt.13) 444. The defence in effect, has shut itself out and will have itself to blame as the court, will not be expected to speculate on what the accused person might have said. The learned trial Judge at pages 75 and 76 of the records, stated in this regard inter alia, as follows:

“Therefore in this particular case the onus is on the accused persons to prove that they have a right in the Quran or Risala to kill Abdullahi Alhaji Umaru. (i.e. the deceased). Furthermore the accused persons did not raise or suggest any defence, their voluntary statements did not suggest any defence and there is no doubt about this. The evidence adduced by the Prosecution remained uncontradicted and unchallenged, positive and direct. In Nasamu v. The State (1969) F.S.C. (sic) it was held by the learned justices that a court will fail in its duty if it fails to convict on the evidence of Prosecution which is unchallenged and uncontradicted. I also observed that the witnesses who testified for the Prosecution gave direct evidence in support of the case of the Prosecution and were found to be witnesses of truth. I accept their testimony”.

(the italics mine)

At page 117 of the Records, the court below – per Adamu, J.C.A, stated inter alia, as follows:

“…it is not in dispute that all the appellants took part and participated in the unfortunate incident that led to the gruesome murder or killing of the deceased by name Abdullahi Alhaji Umaru for his alleged (but unproven) use of abusive, defaming or insultive words against the Holy Prophet Mohammed (SAW). The Prosecution has led evidence to prove the essential ingredients of the offences for which the appellants were charged including their confessional and voluntary statements to the Police which was neither denied nor retracted by (sic) the said appellants. It is also to be noted as rightly pointed out by the learned trial judge and as reflected by the record that the appellants rested their case on the evidence adduced by the prosecution and chose (sic) not to give or call any evidence for their defence. They were also ably represented by a counsel during their trial who failed to raise or prove any defence for them during the trial. Consequently, the only evidence available before or at the trial court were that of the prosecution witnesses (8 of them) and the confessional or voluntary statements made by the appellants to the Police and tendered as Exhibits E, F, G, H, J and K) and other exhibits (e.g. medical report and the weapons used by the appellants etc.) also tendered by the prosecution. All other facts are commonly accepted by the parties, herein as there is no dispute about them…… “[the italics mine]

All the above show that the Appellant had no defence for his brutal and callous slaughter of the deceased perpetrated by him and his co-conspirators and accomplices – i.e. the other five (5) accused persons. In the court below, his grouse or complaint was/is that he suffered “a miscarriage of justice” as the trial court “refused to consider the several defences available to him on the record before convicting him”. Not that he raised any of the said defences either in his said confessional statement or in his defence in the witness box. For him and his learned counsel, since it is settled that a trial court must consider all defences open or available to an accused person especially in murder cases, there was a miscarriage of justice to him.

I note that at page 75 of the Records, the learned trial Judge stated inter alia, as follows:

“I am satisfied that the confessional statements of the accused persons were voluntary, free, direct, positive, properly recorded, tendered and admitted in evidence. I see no reason to decline acting on them”.

As noted above in this Judgment, a trial court, will fail in its duty, if it fails, refuses and/or neglects to convict on the evidence of the prosecution which is unchallenged and uncontroverted. It is now also settled in a line of decided authorities by this Court, that a court can convict based on the confessional statement of an accused person made voluntarily and which is direct, positive, true and unequivocal and made out of conscience of the necessity to uphold the truth even in the face of death. See the cases of Onyejekwe v. The State (J992) 4 SCNJ. 1 @ 8; Kim v. The State (1992) 4 SCNJ. 81 @ 110;(1992) 4 NWLR (Pt.233) 1, Akpan v. The State (1992) 7 SCNJ. (Pt.1) 22 @ 46;(1992) 6 NWLR (Pt.248) 439 and Bature v. The State (1994) 1 NWLR (Pt.320) 267; (1994) 1 SCNJ. 19 @ 29 – per Onu, J.S.C, just to mention but a few.

The question I or one may ask, is, in the face of the evidence of the said prosecution witnesses which were unchallenged and uncontroverted and were accepted or believed by the trial court and also and more importantly, the said confessional statement of the appellant, which the learned trial Judge was satisfied rightly in my respectful view to be voluntary, direct and positive and admitted in evidence without objection, what other defences were the learned trial Judge to consider I have reproduced above, the findings of fact by the court below at page 117 of the records. For purposes of emphasis, I repeat part of the said findings, namely,

“…….Consequently, the only evidence available before or at the trial court were that of the prosecution witnesses (8 of them) and the confessional or voluntary statements made by the appellants (which include the appellant) to the Police and tendered as exhibits…..”

The learned trial Judge, rightly and correctly again in my view, had a duty to act and did in fact act, upon the said unchallenged and uncontroverted evidence of the said prosecution witnesses and the said confessional statement of the appellant. Period! See the case of Ubani & 2 Ors. v. The State (supra).

I am aware of and this is settled, of the duty of the court to consider all defences raised by evidence in the records even if the defence does not specifically raise them regardless of whether the defences are weak or stupid. See the cases of Williams v. Inspector General of Police (1965) NMLR 470; Takida v. The State (1968) 1 All NLR 270; Apishe & 2 Ors. v. The State (1971) 1 All NLR. 50; Njoku v. The State (1993) 7 SCNJ. (Pt.1) 361 @ 4I;(1993) 6 NWLR (Pt.299) 272: Grace Akpabio & 2 Ors. v. The State (1994) 7-8 SCNJ (pt. III) 429;(1994) 7 NWLR(Pt.359) 635 citing several other cases therein: and Sampson NkeJi Uwaekweghinya (2005) 3 SCNJ. 32: (2005) 3-4 S.C. 291 @ 138;(2005) 9 NWLR (Pt.930) 227, and many others. As is obvious from this proposition of the law, the defence or all the defences, must have been raised in the evidence before the trial court. Such evidence so raised, must be in the Records of proceedings. It is not a matter of speculation by the court. As noted by the court below in the excerpts I have reproduced,

……It is to be noted as rightly pointed out by the learned trial judge and as reflected by the record that the appellants rested their case on the evidence adduced by the Prosecution and chose (sic) not to give or call any evidence for their defence. They were also ably represented by a counsel during their trial who failed to raise or prove any defence for them during the trial….. “. (the italics mine)

So, as regards Issue No.1; there was no defence or defences raised, proved or open to the Appellant on the Record which the trial court failed to consider and examine. The said issue, in my respectful view, is a non-issue in the circumstances and with respect, it is grossly misconceived.

Flowing from the above, as regards Issue No.2, if there is or are any defence or defences raised, proved or open to an accused person which evidence appear in the Record of proceedings, a trial court has a duty to consider and/or examine such defence or defences whether weak or stupid. But since the Issue is a hypothetical one, a court and this Court, is not permitted to go into such hypothetical questions or issues. But since again, there are/were no defence or defences available to the Appellant or to pinpoint the elements constituting such defences raised, open or proved in the Records, the trial court, could not and was not expected to consider, such defence or defences. I hold with respect in the alternative that this issue, is completely misconceived and being hypothetical, I discountenance the same.

Incidentally and ironically, the court below, considered the defences of justification and provocation. Yet, the Appellant, like a drowning man hanging on or clinging to a straw, is now under Issue No.3, blaming that court and say that the court below, raised them suo motu and did not afford him the opportunity, to canvass argument on the said point before arriving at the conclusion that the said defences, did not avail him. Wonders it is said, shall never end!

However, for purposes of emphasis, as regards the said Issue No.3 and Issue No.1 of the respondent, I note or observe that the court below with respect, abundate et cautela, considered the defences of justification and provocation which were never raised in his confessional statement or in any defence on oath at the trial. The court below, was being “magnanimous” in so doing. It dealt in effect with defences not raised in the records under the mistaken view that such defences, will be considered and examined by the trial court whether or not it was raised in evidence in the records. Having found as a fact and held that, no such defence or defences, was or were ever raised by the appellant who never testified but rested his case on that of the prosecution in which none of its said witnesses, testified of any justification or provocation, the court below, in my respectful view, had no business considering the said defences of justification and provocation which were/are not the case of the appellant and not even raised by him and his learned counsel.

I hold that such exercise by the court below, (although understandable and with respect, displaying transparent justice), was uncalled for.. But since the appellant has not shown what prejudice he suffered or what was the miscarriage of justice meted out to him by such an exercise, his said Issue No.3 in my respectful view, is of no moment or consequence. But in answer to Issue No.1 of the respondent, I hold that the court below, was right in evaluating the evidence on record, and finding that there was no evidence therein, to sustain such defences that did not exist in the said record. Afterwards, an appeal, is in the nature of or by way of a re-hearing. See the cases of Namsoh v. The State (1993) 5 NWLR (pt.292) 129 @ 143, (1993) 6 SCNJ, 55,. Sabue Motors Nig. Ltd. v. Raiab Enterprises Nig. Ltd. (2002) 4 SCNJ. 370 (a) 382;(2002) 7 NWLR (Pt.766) 243 and Attorney-General, Anambra State & 5 Ors. v. Okeke & 4 Ors. (2002) 5 SCNJ. 318 @ 333;(2002) 12 NWLR (Pt.782) 575 just to mention a few. Of note also, is the clear and unambiguous provision of Section 16 of the Court of Appeal Act which gives full jurisdiction over the whole proceedings as if the proceedings, had been initiated in that court as a court of first instance and may re-hear the case as a whole or in part.

The trial court at page 76 of the records, stated inter alia, as follows:

“I have carefully observed the accused persons throughout the trial. It is sad that such young persons could heartlessly kill a human being in such a cruel manner without any remorse whatsoever. I wonder what was their concern with a rumour which was said to happen in a neighbouring village. They actually acted in a cruel and unusual manner sufficient to warrant conviction”.

I agree.

The court below, on its part, after painstakingly and thoroughly, considering or dealing with the said alleged defences, at pages 123 to 136 of the Records held that the said defences, are not available to the Appellant and the other co-accused persons.

His Lordship, at page 123 of the Records stated inter alia, as follows;

“…There is no mention or suggestion whatsoever about the defence of provocation from the above quoted passage as its particulars or legal elements were not mentioned as done in relation to the defence of justification. Consequentially, it is wrong in my view, for the appellants counsel to now give the impression in his brief of arguments that their counsel had alerted the learned trial judge on that defence. That to me is a mere after thought and a misstatement…”

[the italics mine).

At page 124 thereof, the following inter alia, appear:

“In all their voluntary and cautioned statements to the police… the appellants confessed to the killing or causing the death of the deceased through their joint (or mob) act on the fateful day because they heard the rumour (which was not even confirmed) that he had insulted or blasphemed the Holy Prophet (SAW). The actual words of insult allegedly uttered by the deceased were not known. The Appellants however along with others (now at large) however constituted themselves into a fanatical Islamic vanguard or a religious vigilante group and upon hearing the rumour took it upon themselves to go in search of the deceased who was alleged to have insulted the Holy Prophet (SAW). Even before seeing or hearing him, they had already passed a sentence or judgment against him that he must be killed for his offence under Sharia as recommended in both the Quran and Risala. They even made a threat to kill his master PW2 by name Aliyu Magga who they believed was hiding the alleged culprit in his place if he was not found…”.

At page 126 of the Records, His Lordship continued inter alia, as follows:

“In applying the above principles of law on the defence of justification to the facts and circumstances of the case at hand, it will be very clear that the appellants with their shallow knowledge of Sharia or Islamic law and calling themselves Muslim Brothers, have in ignorance or deliberate disregard of the rules of judgment and procedure under the said Sharia as contained in the same of Risala, arrogated to themselves the function and role of a court of law or a Khadi and wrongly (without any proof or evidence) or based on rumour or hearsay, convicted, sentenced and inflicted or carried out the execution of the supposed punishment. They cannot claim that to be the way of life of their community because they were not supported by both the Village Head and Ustaz Mamman… ”

At page 136 thereof, His Lordship stated inter alia, as follows:

“From my consideration of the lone or single issue formulated by the appellant (sic) for determination of this appeal, the said issue and its related ground of appeal have failed and must be resolved against the said appellant (sic). With the failure of the said issue the appeal itself has also consequently failed and must be dismissed…. ”

I completely agree. This hopeless appeal, however I or one looks at it, is very unmeritorious and fails. I note that there are concurrent findings of fact by the two lower courts and on the authority of the cases of Sobakin v. The State (1981) 5 S.C. 75; Igwe v. The State (1982) 1 SCNJ. 256; Princent & anor. v. The State (2002) 12 SCNJ, 280 and too many other decided authorities by this Court in this regard, there is no way, this Court can interfere. I too, dismiss the appeal and affirm the decision of the court below affirming the conviction and sentence of death imposed on the appellant by the trial court.

SC.242/2004

Chief Emmanuel Osita Okereke V. Alhaji Umaru Musa Yar’adua & Ors (2008) LLJR-SC

Chief Emmanuel Osita Okereke V. Alhaji Umaru Musa Yar’adua & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

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

The relevant facts in this appeal are that the appellant as petitioner at the lower court, filed his election petition containing four grounds challenging that the 1st and 2nd respondents were not qualified to contest election into the offices of the President and Vice President of the Federal Republic of Nigeria in that both were at the time of the election disqualified by their respective indictments by an Administrative Panel of Inquiry set-up by Abia State Government.

He prayed for an order canceling or nullifying the return or election of the 1st and 2nd respondents as aforesaid and prayed further, that the 35th respondent, (INEC) be ordered to conduct fresh and/or bye election into the two highest offices of the land.

The 1st and 2nd respondents filed a memorandum of conditional appearance, a notice of preliminary objection, etc, on 23/7/07. The 3rd – 35th respondents filed a notice of preliminary objection on 2/8/07. On 8/8/07, the petitioner/appellant filed a motion on notice, seeking the lower court’s order for him to furnish better and further particulars to his petition, among others. The lower court took together the petitioner’s motion on notice of 8/8/07; 1st and 2nd respondents’ notice of preliminary objection of 23/7/07 and the 3rd – 35th respondents’ notice of preliminary objection of 8/8/07.

After taking submissions by learned counsel for the respective parties, the lower court sustained the notices of preliminary objection and struck out the petition for being incompetent. Aggrieved with the lower court’s decision, the petitioner (now appellant before this court) filed his appeal to this court. All the parties filed and exchanged briefs of argument including reply briefs (where necessary) as required by this court’s rules. The appellant distilled four issues for determination. They are as follows:

“[i] Whether having regard to the provision of paragraph 6(1) of the Election Tribunal- Court Practice Direction 2007 (No.1), the determination of the Motion on Notice and the Preliminary Objection by the Tribunal was not without jurisdiction (Distilled from Ground One).

[ii] Whether on the state of affidavit evidence by the petitioner the Tribunal reached a correct conclusion of law in its application of Section 14 of the Electoral Act, 2006 that all the amendments sought were statute and time-barred. (Distilled from Grounds 2 and 4).

[iii] Whether the Tribunal’s conclusion that the petition did not comply with provision of paragraph 4(1)(d) of the 1st schedule to the Electoral Act, 2006 and paragraph 1(1)(a)(b)(c) and (2) of the Election Tribunal and Court Practice Directions 2007 is not in total disregard of the documents filed before the Tribunal and the contents of the petition as filed (Distilled from Ground 5).

[iv] Whether the Tribunal below properly directed itself as to cause of action in the petition having regard to paragraph 4(1) of the petition before it (Distilled from Ground six).”

1st and 2nd respondents formulated three issues. They are as follows:

[1] Whether the Presidential election Petition Tribunal lacked the jurisdiction to hear and determine the Notice of Preliminary Objection filed by the 1st and 2nd respondents

[2] Whether the appellant’s petition is not incompetent for failure to comply with the mandatory provisions of paragraphs 4(1) (d) of the 1st schedule to the Electoral Act, 2006 and paragraph 1(b) of the Election Tribunals and Courts Practice Directions 2007 and whether such fundamental breach can be aimed by way of amendment outside the period stipulated in section 141 of the Electoral Act, 2006

[3] Whether by not averring to facts in support of the grounds of the election petition, the petition did not fail to disclose a cause of action”

3rd – 35th respondents formulated three issues. They are as follows:

“[1} Whether the lower court had the jurisdiction to determine the preliminary objection of the 1st and 2nd Respondents dated 2nd July, 2007 at the stage, and at the time it did. (based on Ground 1 of the Grounds of Appeal)

[2] Whether the Lower Court was right to refuse the petitioner/appellant’s motion which sought to effect a substantial alteration of the grounds and prayers of the petition, (based on Grounds 2 and 4 of the Grounds of Appeal).

[3] Whether the lower court was right in dismissing the petition for noncompliance with mandatory provisions of paragraph 4(1) (d) of the 1st schedule to the Electoral Act, and paragraph 1(1) (a) (b) (c) and 2 of the Election Tribunal and Court Practice Directions (2007) (based of (sic) Grounds 5 and 6 of the Grounds of Appeal).”

All the parties to this appeal agree in their respective briefs of argument that issue one from each of the briefs is premised on jurisdiction of the lower court to determine the preliminary objection of the 1st and 2nd respondents dated 23rd July, 2007 at the stage and time it did.

From the arguments marshalled by learned counsel for the appellant, Prince Orji Nwafor Orizu, Esq., of the briefs, the bone of contention and upon which pungent submissions were made by him is that:

{a} the issue is a challenge to the jurisdiction of the lower court which it lacked to determine the

Preliminary Objection

{b} The issue did not raise the question of competence of the petition before that court

[c] The main grouse of the appellant under the issue is as summarized below:

[i] the proceedings in relation to the Preliminary Objection was that the tribunal was sitting as the Presidential Election Petition Tribunal and NOT a Pre-Hearing Session

[ii] Paragraphs 6(1) & (4) of the Election Tribunal and Court Practice Directions provide that no motion shall be moved. All motions shall come up at the Pre-Hearing session except in extreme circumstances with leave of the tribunal or court.

[iii] the determination by the tribunal below, sitting as a tribunal instead of the pretrial session is without jurisdiction and therefore null and void. ”

Both learned senior counsel for the 1st and 2nd respondents Chief Olanipekun, SAN, and that for the 3rd – 35th respondents Kanu Agabi, Esq. SAN, each on his part argued that:

[i] the tribunal below rightly assumed jurisdiction when it heard the objection of the respondents, determined same and consequently dismissed the petition of the appellant.

[ii] the provision of paragraph 4(1) (d) of the 1st schedule to the Electoral Act, 2006 (as amended) and paragraph 1(1) (b) of the Election Tribunal and Court Practice Directions, 2007 were not complied with/violated by the appellant which rendered his petition incompetent and robbed the said tribunal of jurisdiction to hear and determine the petition.

[iii] Objection to the competence of a petition must be raised as Soon as the defect is discovered (the 1st and 2nd respondents raised the objection before the tribunal timeously Issue of competence of the petition borders on jurisdiction and it can be raised at any stage of the proceedings and once raised it must be heard and determined first by the tribunal. Cases in Support were cited such as Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506 at pp. 578 – 579- H-A; 7UP Bottling Co. v. Abiola & Sons (2001) 13 NWLR (Pt.730) 469 at 513-514.

[iv) The distinction between sitting of the court below as a tribunal and it’s sitting at a pre-hearing session is like asking the difference between six and half a dozen. What is paramount is that the court at the time it determined that objection was properly constituted as a court or tribunal as required by the law establishing it and the tribunal below was properly constituted in law and fact when it heard and determined the objection.

[v] The issue of competence of a petition being jurisdictional can be raised at any stage of the proceedings whether at pre-hearing or outside pre-hearing. Referred to Ishola v. Ajiboye (supra).

Learned SAN for the 3rd – 35th respondents toed the same line of argument. He however made the following additions:

[i] Definition of “pre-trial”

[ii] that the ordinary grammatical meaning of that expression should be applied in determining whether the “session” in which the preliminary objection was argued and determined in the con of paragraph 6(1) of the Practice Direction 2007, was pre-trial or post-trial or at trial. It was submitted that the processes were taken when actual trial was yet to commence, thus, it was pre-trial.

[iii] A Preliminary Objection connotes an objection taken prior to commencement of trial proceedings in the instant case, it was an objection taken during the pre-trial or pre-hearing session and in full compliance with the provisions of the Election Tribunal and Court Practice Directions, 2007.

As it has been seen from the facts which gave rise to this appeal, the whole matter had to do with the election of the President and Commander-in-Chief of the Federal Republic of Nigeria and his Vice during the election conducted on 21st April, 2007. Pursuant to the powers conferred upon him by Section 285(3) of the Constitution of the Federal Republic of Nigeria, 1999 and paragraph 50 of the First Schedule to the Electoral Act, 2006 and by virtue of other powers enable him in that behalf, the Hon. President of the Court of Appeal issued out on the 29th day of March, 2007 “Election Tribunal and Court Practice Directions, 2007”. The Practice Directions shall apply to the Presidential, Governorship, National Assembly and States Assembly Election Petitions. The conferment of powers on the Court of Appeal to assume Original Jurisdiction to hear and determine election petition in respect of elections to the offices of the President of the Federation and his Vice, is provided by Section 239 of the Constitution of the Federal Republic of Nigeria. The section states:

“239(1) subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other Court of law in Nigeria, have Original Jurisdiction to hear and determined any question as to whether-

[a] any person has been validly elected to the office of President or Vice President under this Constitution; or

[b] the term of office of the President has become vacant.

(2)in the hearing and determination of an election petition under paragraph (a) of Subsection (1) of this section, the Court of Appeal shall be duly constituted if it consists of at least three Justices of the Court of Appeal.

In reference to the Electoral Act, 2006, a ‘Tribunal’ is defined as “an Election Tribunal established under this Act or the Court of Appeal.” On rules of procedure for the tribunal or court, section 151 of the Electoral Act, (hereinafter referred to as “the Act”) provides that the rules of procedure to be adopted for election petitions and appeals arising therefrom shall be those set out in First Schedule to the Act. An Election petition means any election petition under the Act including petition which challenges the validity of election of persons into the office of the President and Vice President of the Federal Republic of Nigeria.

Paragraphs 50 and 51 of First Schedule to the Act provide as follows:

“50. Subject to the express provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and respondent were respectively the plaintiff and the defendant in an ordinary civil action.

Subject to the provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with practice and procedure relating to appeals in the Court of Appeal or of the Supreme Court, as the case may be, regard being had to the need for urgency on electoral matters. ”

Thus, according to the preamble of the Election Tribunal and Court Practice Directions, 2007, (referred to hereinafter as “the Practice Directions”) which apply to election petitions for Presidential, Governorship, National and State Assemblies election, the Practice Directors were made in exercise of the powers conferred on the Hon. President of the Court of Appeal by those provisions of the Constitution and by the Act set out earlier. The Practice Directions must, from all intents and purposes be taken to form part and parcel of powers conferred on the Hon. President of the Court of Appeal by all the powers exercisable by him in that behalf, with a view to facilitating the tribunals or the Court to dispose of electoral matters with the urgency they require.

It is the requirement of paragraph 6(1) and (4) of the Practice Directions, that:

“6(1) No motion shall be moved. All motions shall come up at the PRE-HEARING session except in extreme circumstances with leave of the Tribunal or Court.

(4) Where the respondent to a motion intends to oppose the application he shall within 7 days of the service on him of such application, file his written address and may accompany it with a counter-affidavit”

As for the Pre-Hearing session and its requirements, the Practice Directions has provided the following:

“3. Pre-Hearing Session and Scheduling:

(1) Within 7 days after the filing and service of the petitioner’s reply on the respondent, or 7 days after the filing and service of the respondent’s reply, whichever is the case, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.

(2) Upon application by a petitioner under-paragraph (1) above, the Tribunal or Court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in Form TF 008 for the purposes set out hereunder:

a) Disposal of all matters which can be dealt with on interlocutory application;

b) Giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions

c) Giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need to expeditious disposal of the petition;

d) Fixing clear dates for hearing of the petition.

(3) The Respondent may bring the application in accordance with sub-paragraph (1) above where the Petitioner fails to do so, or by motion which shall be served on the Petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.

(4) Where the Petitioner and the Respondent fail to bring an application under this paragraph, the Tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertainment. ”

It has not been clear for me to decipher from the Record of Appeal, nor from the counsel’s submissions whether all the steps stipulated above were followed by the parties, especially the petitioner/appellant. Secondly, sub-paragraph 4 of paragraph 3 as quoted above, makes it mandatory that where neither the petitioner nor the respondent files an application for a Pre-Hearing session, the tribunal or court is under a duty to dismiss the petition as abandoned and no application for extension of time to take that step shall be filed or entertained. Now, although the stipulation under subparagraph (4) of paragraph 3 of the Practice Direction, appears to me to be harsh on the petitioner by making an order for dismissal of the petition which forecloses any chance for him to re-present the petition, it still had to be complied with by the tribunal or court as such steps are a condition precedent to the hearing of any matter in relation to the petition pending before the tribunal or court. Non compliance thereof will strip off the tribunal or court of jurisdiction as one of the factors which confer jurisdiction on a court of law is not complied with. In the case of Modukolu v. Nkemdilim (1962) 1 All NLR, 589, (1962) 2 SCNLR 341, a court is said to be competent to determine a matter before it when the following are present:

1) If it is properly constituted with respect to the number and qualification of its membership;.

2) The subject matter of the action is within its jurisdiction;

3) The action is initiated by due process of law and;

4) Any action (condition precedent) to the exercise of its jurisdiction has been fulfilled.

See further: A-G Federation v. Guardian Newspaper Ltd. (1999) 9 NWLR (Pt.618) 187; Ajao v. Alao (1986) 5 NWLR (Pt.45) 802.

Condition No. 4 above will be the determining factor as to the competence of the court below. Thus, it was wrong in my view, of the court below to go ahead to hear the motion and the Preliminary Objections as filed by the parties.

Further, it is pertinent as well to look at paragraph 7 of the Directions 2007, which provide:

“(7) At the pre-hearing session, the Tribunal or court shall consider and take appropriate action in respect of the following as may be necessary or desirable:

(a) amendment and further and better particulars

(d) hearing and determination of objections on point of law

(i) such other matters as may facilitate the just and speedy disposal of the petition bearing in mind the urgency of the election petitions. ”

These steps, although they provide for treating of amendment and further and better particulars; objections on point of law and such other matters which may facilitate the just and speedy disposal of the petition, were not followed by the court below. The motion and the preliminary objections were simultaneously taken by the court below sitting as a court entertaining the petition filed by the petitioner. This too, I think, is wrong.

Now, turning to the motion filed by the petitioner. It is true that it was moved before the court below. The Preliminary Objection filed by the 1st and 2nd respondents was moved before the lower court on 9/8/07.

Below is what transpired in the court below on 9/8/2007.

“Petitioner in Court.

Chief T. Ike for petitioner/applicant.

Chief W Olanipekun with Y. Ali, SAN and 20 others for the 1st and 2nd respondents.

Chief K. Agabi, SAN for 3rd – 35th respondents with O. O. Uzzi and 8 others.

Chief Ike: we have a motion filed on 8/08/07.”

Chief Olanipekun: We filed a motion of preliminary objection which has been fixed for today. My learned friend has replied to it. It should take precedence by virtue par 49 (5) of 1st schedule of Electoral Act, 2006.

Chief Agabi: we have an identical application. If the petitioner survives the objection, he can move his motion.

Chief Ike: there is a conflict of law. The motion is to save the petition and it should be given priority over motion to strike out the petition. See par 49(4) of 1st schedule which allow for amendment.

Court: The motion fixed for hearing is the preliminary objection. The petitioner filed a motion yesterday to be allowed to provide better particulars to his petition. We shall take both applications together.

Chief Olanipekun: I will reply on points of law.

Chief Agabi: I will reply on points of law.

Chief Ike: The motion filed yesterday is for order to allow petitioner to furnish better and further particulars, and leave to allow the petitioner to advance and rely on proposed documents. I rely on the supporting affidavit and exhibit attached. I filed a written address filed on 8/08/07. I adopt it. I urge the Court to allow the application.

Chief Olanipekun: I oppose the application on following grounds of law.

Chief Agabi: I associate myself with submission of my learned brother, Olanipekun”

What else can I say The motion and the objections were moved. The court below delivered its ruling on 20/8/2007 striking out the petition. At the risk of repetition, I need to quote once more, paragraph 6 of the Practice Directions:

“6. Motions and Applications:

[i} No motion shall be moved. All motions shall come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court.”

The paragraph above has made an outright prohibition of moving motions before the tribunal or court except if it is at the pre-hearing sessions or where extreme circumstances are shown and leave of the tribunal or court was sought and obtained. From the Record of Appeal, I fail to trace where such extreme circumstances were shown or where the court’s leave was sought and obtained. I then wonder what was the basis upon which the court below relied to entertain the motion and the Preliminary Objection of the 1st and 2nd respondents in utter disregard to the provisions of the Practice Directions as contained in paragraph 6(1) above. Whatever was the basis, I think the law as set out earlier is that where any of the factors which entitle a court to assume jurisdiction is missing, that court lacks competence to adjudicate over the parties and the subject matter before it. See the locus classicus case of Modukolu v. Nkemdilim (supra).

Pre-trial sessions in the present dispensation are a condition precedent before a tribunal or court can proceed to entertain any election petition or matters relating thereto. The position of the law is trite that no matter how well conducted, where a court lacks the competence and jurisdictions to entertain a matter, the proceedings conducted thereon are a nullity. See: Achiakpa & Anor v. Nduka & Ors (2001) 7 SCNJ 585; International Bank for West Africa Ltd. v. Pavex International Co. (Nig.) Ltd. (2000) 4 SCNJ, 200; Adesola v. Abidoye & Anor (1999) 12 SCNJ 61.

I hold that the court below lacked competence and had no jurisdiction to entertain the Motion on Notice filed on 08/08/07 by the petitioner and the Preliminary Objection filed by the 1st and 2nd respondents. The proceedings, including the ruling delivered on the 20th of March, 2007, are a nullity. They are hereby set aside.

My Lords, in view of my holding above, and in view of the consequential orders I shall make herein below, I do not consider the necessity of treating the remaining formulated by the appellant.

In the final result, I find no merit in this appeal and it is hereby dismissed. Accordingly, I make an order striking out the motion and the Preliminary objections filed on 8th of August, 2007, and on the 25th of July, 2007 and 2nd August, 2007 as incompetent. By the provision of section 22 of the Supreme Court Act (Cap. S.15, the Laws of the Federation, 2004), which entitles me to exercise all those powers and jurisdiction that are exercisable by the lower Court and as the lower Court is empowered by paragraph 3 (4) of the Practice Directions, to dismiss the petition where the petitioner and the respondent fail to bring an application for such dismissal, I hereby dismiss the appellant/petitioner’s petition pending in the Court below. larder each party to bear its own costs.

SC.246/2007

Alhaji Umar Musa Yar’adua & Ors. V. Alhaji Atiku Abubakar, Gcon & Ors (2008) LLJR-SC

Alhaji Umar Musa Yar’adua & Ors. V. Alhaji Atiku Abubakar, Gcon & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, C.J.N.

This is an interlocutory appeal against the Ruling of the Court of Appeal, holden at Abuja delivered on 20th September, 2007 in exercise of its original jurisdiction under section 239(1)(a) of the Constitution wherein the Court dismissed Respondents/Appellants’ Motion on Notice objecting to the Petitioners/Respondents’ Petition and praying the Court to either dismiss or strike it out.

The Ruling of the lower court being appealed can be found on pages 2004 – 2005 of Volume 5 of the records. It is very short and reads thus:-

“It is trite law that in interlocutory stage, issues that call for determination in the main case should be avoided. The issues of joinder and inconsistent claims are not jurisdictional matters but were irregularity which can be sorted at the hearing of the petition. I see no proper challenge of jurisdiction in the two applications. This Court has full jurisdiction to entertain the petition to enable all parties to ventilate their cases on merit. Accordingly, I dismiss both applications”.

While this appeal is still pending in this Court the case proceeded to trial In the Court of Appeal and final judgment was entered against the Petitioners/Respondents on 26th February 2008.

It is clear from the final judgment that counsel on both sides as well as the Court adverted their minds to the interlocutory Ruling above, and that Respondents/Appellants’ motion which was re-argued in fact finally succeed when the Court below struck out the Petitioners/Respondents ALTERNATIVE grounds in the Petition.

I am quite aware of the fact that this aspect of the final judgment is still being challenged in an appeal against the final judgment of the Court of Appeal referred to above. That appeal is not the same as this appeal and I cannot therefore decide the matter here. That is enough by way of introduction.

The Petitioners/Respondents had filed a Notice of Preliminary Objection to this interlocutory appeal on the following ground amongst others-

(a) That Appellants have re-argued the issue-that arose in this interlocutory appeal before the lower court while this appeal was pending.

(b) The decision upon the re-argument was in favour of the appellants.

(c) The decision upon the re-arguing issues were contained in the final judgment of the lower court on 26th February, 2008.

(d) The continued prosecution of this appeal after the favourable judgment to the Appellants in the lower court is all abuse of judicial process.

(e) The abuse constituted in keeping the appeal alive and re-arguing the same issue in the lower court warrants a dismissal of the appeal in line with the decision of this Court in AGWASIM V. OJICHIE (2004) 10 NWLR (Pt. 882) 613 at 622 – 624.

There is an affidavit in support of the Notice of Preliminary Objection. It was sworn to by one Osatobanmwen Akpata one of the Counsel representing the Petitioners/Respondents herein. Paragraphs 3, 4, 5, 6 , 7 , 9 & 10 read as follows-

“3. That the appeal herein was filed on the 20th day of September, 2007 against the ruling of the court of appeal delivered on the same date wherein the preliminary objections of the Appellants/Respondents as respondents to the presidential election petition of the respondents/applicants were dismissed.

That briefs were duly exchanged in respect of the Appeal ever before trial in the lower court was concluded and the appellants filed their brief on 10/10/07 while respondents’ applicants filed Respondents brief on 22nd October, 2007.
That on the 5th day of February, 2008, despite the pendency of this appeal, the appellants re-argued the objection dismissed in the ruling herein appealed against in their final addresses before the court of appeal.
That the decision upon re-arguing the objection was in favour of the Appellants/Respondents.
That the decision upon re-arguing the issues was contained in the final judgment of the court delivered on 26th, February, 2008. Attached herewith and marked Exhibit “A1” is the judgment of the court of appeal, where at pages 66 – 72, the objections were considered and upheld.
That the continued prosecution of this appeal after the favourable judgment to the Appellants in the lower court is calculated against the Respondents/Applicant and this court to vex, irritate and put the judicial machinery to needless labour and expense.
That in the light of the grounds in support of this preliminary objection of which I depose to this affidavit, it will be in the interest of justice to dismiss the Appellants/Respondents’ appeal as an abuse of court process.

The Appellant filed a counter-affidavit through one of their counsel, Oladele Gbadeyan, in opposition virtually admitting that the issues for determination in the interlocutory appeal were extensively re-argued and determined by the Court of Appeal in the final judgment but interlocutory appeal.

I agree completely with the above submissions of counsel to Petitioners/Respondents. The continued prosecution of this appeal by the Appellants in view of available undisputed facts is clearly academic having been overtaken by events and therefore constituted a gross abuse of judicial process (see for example AGWASIM v. OJICHIE (2006) 10 NWLR (PT.882) 613. One may ask- what kind of order do the Appellants want from this court, now that the trial has been wholly completed and judgment delivered Nothing, if I may answer. It is an abuse of process of Court for a plaintiff to re-litigate an identical issue which had been decided against him (sec for example ONYEABUCHI V. INEC: (2002) 8 NWLR (PT. 769) 417 at 443. So also where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to failure as in this case. Merely withdrawing the appeal would have saved the appellants from this situation.

The appeal is clearly lifeless, spent, academic, speculative and hypothetical (See UNION BANK OF NIGERIA v. ALHAJA BISI EDIONSERI (1988) 2 NWLR (Pt. 74) 93; OLADE v. EKWELENJU (1989) 4 NWLR (Pt. 115) 326. The Preliminary Objection therefore succeeds. It is allowed.

The appeal is accordingly struck out. I make no order as to costs.

SC.274/2007

Dr. N. E. Okoye & Anor. V. Centre Point Merchant Bank Limited (2008) LLJR-SC

Dr. N. E. Okoye & Anor. V. Centre Point Merchant Bank Limited (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, J.S.C

This action was commenced at the Onitsha Judicial Division of the High Court of Anambra State on the 6/8/98, when the Writ of Summons was issued. The appellants herein were the plaintiffs. The respondent herein was the defendant. The six paragraph claim runs thus:-

Claim

The plaintiffs are customers of the defendant Merchant Bank which carries on merchant banking business in big cities of Nigeria including Onitsha.

By confirmation notice given to the plaintiffs by the defendant, the defendant is indebted to the plaintiffs to the tune of N2,385,716.75 (Two Million, Three Hundred and Eighty Five Thousand Seven Hundred and Sixteen Naira, Seventy Five kobo).
The defendant merchant bank has failed to pay interest as agreed or at all.
The interest rate which is fixed at the rate of 15% per annum is usually withheld by the defendant and was only paid twice in recent years.
Despite repeated demands by the plaintiffs for the defendant to pay the entire sum due and payable to them, the defendant has failed or neglected to pay same over to the plaintiffs.
Wherefore the plaintiffs claims as follows:

(a) The sum of N2,385,716.75 being the principal sum due to the plaintiffs.

(b) Interest at the rate of 15% per annum on the sum of N2,385.716.75 from 24th day of March, 1995, until the sum owed is fully liquidated.”

The claim is supported by a 10 paragraph affidavit deposed to by the 1st plaintiff/appellant. The suit was entered in the Undefended List.

When the matter came up on the 17/12/98, learned counsel for the plaintiffs informed the court that the defendant had been served on the 18/11/98 and that there was no notice of intention to defend. Learned counsel therefore asked for judgment.

In reaction, the learned trial Judge, K.K. Keazor, J., said:-

“The suit is brought under the Undefended List Procedure. The defendant was served on 18/11/98. The matter was set down for hearing today. This was well over the prescribed 5 days before hearing after service. The defendant did not file notice of intention to defend. There will be judgment for the plaintiffs as per their claim for:-

(a) The sum of N2,385,716.75 being the principal sum; and

(b) Interest at the rate of 15% per annum in the said sum of N2,385,716.75k until the sum is fully liquidated.”

Learned counsel for the plaintiff asked for N2,000.00 costs and the court awarded same. The above represents the judgment of the trial court.

The defendant was aggrieved by the judgment and went on appeal to the court below. By its judgment on the 21/12/2001, the appeal was allowed. The plaintiffs were aggrieved by the judgment and have come on appeal to this court. In the Notice of Appeal dated 16/1/2002 and filed on the 4/2/2002, the appellants raised seven grounds of appeal.

The parties have, through their counsel, filed and exchanged their Briefs of Argument. The appellants’ Brief dated 15/5/2002 and filed on the 12/8/2002, was prepared by Oraegbunam Anieto. He proposed seven issues for determination which he couched as follows:

“1. Whether the Court of Appeal was right in allowing the defendants-respondents’ appeal when the said defendants-respondents failed to argue their ground 6 of appeal which complained of specific finding that the Writ of Summons was duly served on the defendants

Whether the Court of Appeal has the jurisdiction to entertain an issue not contested at the trial High Court and decision reached thereat
Whether the Court of Appeal was right by attacking the contents of affidavit of service in view of

(i) Order 26 Rule 5 of the High Court Rules of Anambra State,1988.

(ii) Section 78 of the Companies and Allied Matters Act,1990, and

(iii) Order 7 Rule 4(1) High Court Rules of Anambra State 1988

Whether the Court of Appeal has the right to make a finding on the issue of jurisdiction outside the record placed by the parties before the trial court
Whether the Court of Appeal can over-rule the decision of the Supreme Court as it did in this matter of service of Writ of Summons on a company
Whether the Court of Appeal can, in fairness to the appellants, ignore the contents of records before it
Whether the judgment of the Court of Appeal is not perverse”

The respondent’s Brief dated the 22/10/2002 and filed on the 24/10/2002, was prepared by Chike Onyemenam. In the Brief, the following five issues for determination were formulated.:-

“1. Did the respondents fail to formulate and argue the issue of nonof the Writ of Summons as complained in their ground of appeal

Is the Court of Appeal robbed of jurisdiction to entertain a complaint of non-service of an originating process simply because the issue was not contested and decided at the trial High Court
Was there sufficient proof of service of the Writ of Summons/Claim on the defendant/appellant at the court below
Did the Court of Appeal introduce a ground of appeal and formulate an issue suo motu and decide on same without hearing the parties
Did the Court of Appeal overrule its judgment and that of the Supreme Court on any issue thereby making its judgment perverse”

On behalf of the appellants, Oraegbunam Anieto proffered arguments the substance of which are as follows:-

On their 1st issue, counsel referred to the finding of the learned trial Judge to the effect that the Writ of Summons was served on the defendant/respondent and ground 6 of the grounds of appeal and submitted that since no issue was formulated therefrom, the Court of Appeal had no right to interfere with that finding, especially when the finding was not found to be perverse. For this submission learned counsel relied on David Fabunmi v. Abigail Ade Agbe (1985) 1 NWLR (Pt.2) 299, Anyaduba v. NRTC Ltd. (1992) 5 NWLR (Pt.243) 535 at 553, Oyibo Iriri & Ors. v. Ezeroraye (1991) 3 S.C. 1; (1991) 2 NWLR (Pt. 173) 252 at 265.

With respect to the appellants’ second issue, it was the submission that the issue of the non-service of the Writ of Summons ought to have been first contested at the trial court by an application to set aside the judgment and that it is only after the trial court had decided the issue that the Court of Appeal would be vested with jurisdiction to entertain and determine the issue of service. It was counsel’s submission therefore that the court had no jurisdiction to entertain the appeal. He relied on Order 24 Rule 15 of the High Court Rules of Anambra State,1988, Sections 24(1) and 329 of the Constitution, Order 3 Rule 2 (1) of the Court of Appeal Rules, Cap 62, Laws of the Federation of Nigeria, 1990, Wimpey (Nig.) Ltd. & Anor. v. Alhaji Delani Balogun (1986) 3 NWLR (Pt.280) 324 at 334, Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 12 S.C. 160; (1989) 5 NWLR (Pt.123) 523 at 531.

As respects the appellants’ third issue learned counsel referred to Order 26 Rule 5 of the High Court Rules of Anambra State,1988 and submitted that the affidavit of service, being a process made by the court, the plaintiffs/appellants cannot, in fairness, be held accountable for lapses therein if any. Counsel relied further on Order 5 Rule 4(1) of the High Court Rules Anambra State,1988 and contended that there was nothing wrong with the affidavit of service since it is stated therein that service was effected on the Manager of the defendant/respondent bank. He relied once more on Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd (supra) at page 539, Nelson v. Ebanga (1998) 8 NWLR (Pt.563) 701 at 722, Jammal Steel Structures Ltd v. A.C.B. Ltd. (1973) 11 S.C. 77 at 85; (1973) 11 S.C. (Reprint) 56, Abraham Oyeniran & Ors. v. James Egbetola & Anor. (1997) 5 NWLR (Pt.504) 122 at 131. It was wrong therefore for the Court of Appeal to insist on a named manager and a named pointer, counsel argued.

On the 4th issue, it was the submission for the appellants that there was no complaint about a conflict between Exhibits ‘A’ and ‘B’ and that it was therefore wrong for the court below to suo motu introduce conflict between the two exhibits and resolving same without calling on the parties to address on it. It was the submission that the procedure occasioned great miscarriage of justice. Reliance was placed on U.B.A. Ltd. v. Nwokolo (1995) 6 NWLR (Pt.400) 127 at 148-149, Ndiwe v. Okocha (1992) 7 NWLR (Pt.129).

In the appellants’ 5th issue, it is the submission of the counsel that the procedure adopted by the trial court was in compliance with the provisions of Order 24 Rule 9(4) of the High Court Rules of Anambra State,1988.

The appellants’ 6th issue is predicated mainly on the decision in Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (supra) which, counsel said, is apposite to the facts of this case and contended that the court below was bound to follow it.

On the 7th issue, learned counsel referred to the reaction of the defendant/respondent on the very day of the judgment of the trial court when two of its officials visited the 1st appellant in his office and urged a finding that it was not only served but that its officials were even in court when judgment was entered against it.

The substance of the arguments of Chike Onyemenam for the respondent are as follows: On the appellants’ first issue of whether the respondents as appellants at the court below formulated any issue arising from the 6th ground of appeal, it was argued that issues 1 and 2 at page 94 of the record properly raised the issue of whether or not there was prima facie proof of service and whether there was evidence of service in law. With respect to the appellants’ second issue, it was the submission of learned counsel that non-service of Originating Summons is an issue of jurisdiction which can therefore be raised at any stage of the proceedings. He relied on Oredoyin v. Arowolo (1989) 7 S.C. (Pt.II) 1; (1989) 4 NWLR (Pt.114) 172 at 187.

In response to the appellant’s argument on their issue three, counsel contended that an affidavit of service merely raises a rebuttable presumption of service and that grounds (i) (ii) (iv) and (vi) were attacks on the purported service to rebut the presumption. It was contended therefore, that the Court of Appeal properly examined the affidavit of service and relying on Wimpey (Nig.) Ltd. v. Balogun (1986) 3 NWLR (Pt.28) 324 at 387-394, rightly found against any service in law. It was his submission that where the evidence is merely affidavit evidence, the appellate court is in as vantage a position as the trial court to evaluate it and make findings therefrom and contended that the Court of Appeal adopted the right procedure to arrive at a just decision. Counsel relied on Ogunleye v. Oni (1990) 4 S.C. 130; (1990) 2 NWLR (Pt.135) 745 at 785. With respect to the appellants’ issues 5 and 6, counsel argued that there was nothing the Court of Appeal did which is contrary to the principle on Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (supra). And on the appellants’ 7th issue, it was argued that the Court of Appeal rightly ignored the extraneous matters sought to be introduced by the appellants therein in arriving at its decision. In conclusion, counsel urged that the appeal be dismissed.

I have considered the address of counsel for the parties. The very fundamental issue in this appeal is that of service and I would start my deliberation with this issue of whether or not the defendant/respondent was served. It is settled that, service of origination processes such as the Writ of Summons on the defendant is a fundamental condition precedent to the court’s exercise of its jurisdiction to hear and determine the suit. This is so because any judgment or order given against a defendant without service is a judgment or order given without jurisdiction and is therefore null and void. See Alhaji J.A. Odutola v. Inspector Kayode (1994) 2 NWLR (Pt.324) 1 at 15. Thus, the failure to serve a process is not merely an irregularity but a fundamental defect which renders the proceedings a nullity. See Obimonure v. Erinosho (1966) 1 All NLR 250 at 252, Scot-Emuakpor v. Ukavbe (1975) 12 S.C. 41 at 47; (1975) 12 S.C. (Reprint) 31, Odita v. Okwudinma (1969) 1 All NLR 228, Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6 at 26; (1981) 1 S.C. (Reprint) 4.

In United Nigeria Press Ltd. & Anor v. Adebanjo (1969) 6 NSCC 395 at 396, this court, per Fatayi-Williams, JSC., (as he then was) spoke of the object and primary consideration in service of processes. He said:-

“In our opinion, the object of all types of services of processes whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of and able to resist, if he may, that which is sought against him. Therefore, since the primary consideration is an application for substituted service is as to how the matter can be best brought to the attention of the other party concerned, the court must be satisfied that the mode of service proposed would probably, after all practicable means of effecting personal service have proved abortive give him notice of the process concerned.”

In this case the trial court, apparently relying on the affidavit of service, came to the conclusion that the defendant/respondent was duly served and proceeded to enter judgment as claimed. The defendant/respondent denied any service. The court is thus put on inquiry as to whether or not the Writ of Summons was indeed served on the defendant/respondent. I have earlier reproduced the judgment of the trial court at page 8 of the record. There is nothing therein to show that the court thoroughly examined the affidavit evidence of service before entering judgment for the plaintiffs/appellants. May be it did. But there is nothing to show that it did.This issue of service was the main and fundamental issue at the Court of Appeal. It is settled that an affidavit of service deposed to by the person effecting the service, setting out the fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matters stated in the endorsement or affidavit. See Martin Schroder & Co. v. Major & Company (Nig.) Ltd. (1989) 2 S.C. (Pt.II) 138; (1989) 2 NWLR (Pt.101) 1 at 11. Where however the service evidenced in the affidavit of service is disputed by the defendant, as in this case, the Court of Appeal has a duty to satisfy itself that there had in fact been service on the defendant. See Alhaji Umaru Launi v. Ezeadua (1983) 6 S.C. 370, Madam Alice Okesuji v. Fatai Alabi Lawal (1991) 2 S.C. 25; (1991) 1 NWLR (Pt.170) 661 at 673. It is clear from the Records of Proceedings in this case that the Court of Appeal was not only conscious of but also committed to its duty of ensuring that the defendant/respondent against which there was the subsisting judgment was in fact served with the originating processes. At page 126 of the record, the court per M.D.Muhammad, JCA., (as he then was) assessed the affidavit of service as follows:

“The affidavit of service in the instant case shows that the “Manager” of the appellant was served after he had been pointed to the bailiff by one other. The affidavit of service neither contained the name of this “Manager” that was served nor the name of the pointer who led to him. That was not all. The bailiff’s dispatch book belied the contents of the bailiff’s affidavit of service. The book indicates that the process was received and signed for by a third party for and on behalf of the Manager. Here again, neither the name nor designation of the recipient was indicated. There was so much that was vague about this service that it would be unfair to allow a decision built on it to survive.”

These pungent remarks, no doubt, shows the court’s critical examination of the affidavit evidence of service. Learned counsel for the appellants never contested these findings but submitted that since the said documents were not prepared by the appellants, they cannot be held accountable for lapses contained therein. I do not, with respect, agree with that contention of learned counsel. The affidavit of service, though not prepared by the appellants, is the very document paraded by them to prove that the defendant/respondent was duly served with the originating processes before the judgment was entered against it. And the Dispatch Book was prepared by the appellants in proof of their assertion that the defendant/respondent was served. Therefore, if these documents contain materials which tend to impeach the credibility of their claim that the defendant/respondent was served, they cannot be heard to say that they are, after all, not the makers of the documents. The inconsistencies identified by the court below render the case of the plaintiffs/appellants unreliable and thus, create doubts as to whether the defendant/respondent was served. After highlighting the inconsistencies in the affidavit evidence of the plaintiffs/appellants the court below at the same page 126 said:-

“With these facts, the trial Judge ought to have entertained doubts as to whether the appellant had in fact been served to entitle the court to assume jurisdiction. Where any doubt as to whether or not service was or was not properly effected exists, a judgment obtained by a party in the absence of the other such as in the instant case, has to be set aside to ensure that both parties are heard before a decision. See Wimpey Ltd v. Balogun (supra).”

I agree entirely with the above reasoning and conclusion. In the affidavit in verification of facts deposed to by Mr. Wilson Abia, the Onitsha Branch Manager of the defendant/respondent, he made very crucial assertions in denial of the purported service. In paragraphs 2-7 he deposed:-

“2. I have read the affidavit of service sworn to by one Uyanwanne G., the Chief Bailiff of the Onitsha High Court wherein he falsely claimed to have served the Writ of Summons in this suit on the manager by delivering same to the manager after one unknown person identified me. A copy of same is exhibited and marked as Exhibit “A” .

The aforesaid deposition by the said Bailiff is false as neither myself nor any staff of the appellant’s bank was served with any Writ of Summons in this suit.
It would be foolhardy and stupid of me after being served with a claim against my bank involving over N2,000,000.00 (Two Million Naira) not to inform my head-office and/or brief our bank’s solicitor, Chike Onyemenam Esq., who is based here in Onitsha.
The aforesaid Bailiff never came into the appellant’s bank to serve any process whatsoever in relation to this case and we were consequently not aware of its pendency until a staff of the Onitsha High Court came and informed me that judgment has been delivered against our bank.
I verily believe that the affidavit of service was deposed to in bad faith so as to deprive us of an opportunity of being heard.
I challenge the aforesaid Bailiff to produce his service book and show the Honourable court where myself or any of the bank staff signed as he claims to have delivered same to me personally.”

There was no reaction from the Chief Bailiff to the above assertions. They remain essentially unchallenged. In view of the foregoing averment which remain practically unchallenged and the internal cracks in the affidavit evidence of service, the finding of the court below about there being no proper proof of service of the processes on the defendant/respondent cannot be faulted. The result is that I resolve this issue of service in favour of the defendant/respondent.

Having resolved this issue of whether or not there was proper service in favour of the respondent and against the appellants, it serves no useful purpose to deliberate on the remaining issues. The resolution of this issue of service determines the appeal and a deliberation on the other issues would be nothing more than a mere academic exercise. Since there was no proof of service of the originating processes on the defendant/respondent, the judgment of the learned trial Judge, K.K. Keazor, J., on the 17/12/98, was without jurisdiction and is therefore null and void.

In the event, the appeal is dismissed and the judgment of the court below of the 20/12/2001, be and is hereby affirmed. The judgment of the trial court of the 17/12/98 is set aside. The suit itself be and is hereby remitted back to the Onitsha Division of the High Court of Anambra State for trial by another Judge. I make no orders as to costs.

SC.176/2002

Mrs. T.C. Chukwuma V. Mr. Babawale Ifeloye (2008) LLJR-SC

Mrs. T.C. Chukwuma V. Mr. Babawale Ifeloye (2008)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C,

The appellant was the plaintiff before the High court, Abuja and the respondent the defendant. The facts leading to the dispute out of which this appeal arose and the claims of the plaintiff/appellant are pleaded in paragraphs 3 to 8 of the appellant’s amended statement of claim as follows:

“3. The plaintiff avers that sometimes in 1988 she applied for an allocation of land to the Federal Capital Development Authority and on May, 1989 she was granted Certificate of Occupancy in respect of a piece of land known as Plot 496 located ell Area A2 Wuse District Federal Capital Territory. Plaintiff leads the said Cer1ificate of Occupancy and shall rely on it at the trial.

On or about the month of February, 1993, the Defendant wrongfully entered the said land and has wrongfully taken possession of same by erecting a four bedrooms duplex and has thereby trespassed and in still (sic) trespassing thereon.
The plaintiff avers that she discovered the Defendant on her piece of land when she employed the services of an Independent Contractor to erect a building of her choice after approval of the building plan has been sought and obtained from the Federal Capital Development Authority.
The plaintiff further avers that it was when the contractor got to the site of erecting the building that she discovered that the Defendant has already erected a structure on the land and the site was no longer suitable for the use of the Plaintiff.

7a. The plaintiff promptly reported the matter to the Development control Unit of the Federal Capital Development Authority who promptly issued a ‘STOP WORK’ order on the Defendant.

7b. The plaintiff avers that prior to this period she was not resident in Abuja but in Lagos and she only came to Abuja when she was appointed the Chairperson to the National Commission for Women in 1992.

7c. The plaintiff avers that the land in question is a State land and located in Urban area of the Federal capital Territory.

By reasons of the matters aforesaid, the Plaintiff ahs been deprived of the use and enjoyment of the said land and premises and has thereby suffered loss and damages.

WHEREOF the plaintiff claims the sum of 3 million being general damages for trespass to all that land known as Plot 496 within A2, Wuse 1 District Abuja.

B. A perpetual injunction restraining the Defendant, his servants and/or agent from further trespassing on the plaintiff’s land. Or doing anything incompatible and inconsistent with the plaintiff’s land. Or doing anything incompatible and inconsistent with the plaintiff’s title and ownership of the said property.”

The respondent in his statement of defence paragraphs 4 to 15 and 19 pleaded thus:

“4. The defendant avers that he bought the land and an existing building from one Mrs. Joan Babajide who has been staying on the land from March, 1985 until she sold the land in dispute to the defendant in 1988. The defendant pleads and will tender the receipt of sale.

The defendant avers that since 1988 he has been exercising continuous and maximum acts of possession and ownership by staying on one part of the existing building and letting the other to one Mallam Isa Haruna.
The defendant also avers that apart from (5) above, he has been going in and out on the land since 1988 without anybody disturbing or questioning him or his – (the defendant’s) interest on the land.
The defendant asserts that the failure of the plaintiff to comply with the terms of the certificate of occupancy granted her has immensely contributed to the action of the defendant and the transferor. The defendant pleads and will tender the certificate of occupancy that contains the terms.
In 1992, before we were challenged, we demolished the existing building on the land in dispute and started the construction of another building which is there on the land in dispute now. It was only in 1993 when we had almost completed construction that we were served with a ‘stop work’ order from the FCDA.
The defendant asserts that the plaintiff is negligent in that she stood by and allowed substantial development to be done on the land in dispute between 1985 and 1992 before she raised an alarm and/or assert her right on the same.
As a result of the ‘stop work’ order served on us, we now discovered from the FCDA that the proper allottee is the plaintiff in this case.
Notwithstanding our assertion in paragraph 9 above, we approached the plaintiff for negotiation and settlement.
She agreed for negotiation with us and during negotiation she (Plaintiff) gave the defendant two conditions upon which she would accept our terms of settlement.

The conditions are:-

(a) That we perfect our title in respect of plot 495 which was originally allocated to our own transferor.

(b) That we should be responsible for the cost of transfer which was then estimated to be in the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) only in addition to transferring the vacant (plot 495) to her.

To satisfy condition 12B above the defendant on the 22nd July, 1994 issued a Union Bank of Nigeria Abuja Branch cheque of N250,000.00 (Two Hundred and Fifty Thousand Naira) only.
The plaintiff however; declined to accept the cheque because the defendant was not yet in position (sic) to transfer plot 495 to her.
The defendant then met with his transferred who then took necessary steps to effect proper transfer of plot 495.

XXXX

The defendant will at the hearing of this case rely on all available equitable, legal and statutory defences open to him including but not limited to

(a) Laches

(b) Acquiescence,

(e) Stand by,

(d) Long possession,

(e) Estoppel by conduct &

(f) Negligence.

Whereof the defendant prays that this suit be dismissed with substantial cost against the plaintiff for being gold-digging and an abuse of court processes.”

At the trial, the appellant testified in support of her claim. She did not call any witness. The defendant called three witnesses and also testified. In the judgment of Kuskerki J., on 16/1/97, the trial judge said.

“The question is whether as alleged by the plaintiff in her statement of claim, the Defendant has wrongly entered and taken possession of her land by erecting a building thus trespassing thereon. By the averments and the evidence led DW3 from whom the Defendant bought his land, sought the land office of the FCDA to help her identify her land and peg it for her to enable her commence development. The land shown, unknown is DW3, (sic) was plot No. 496 and not 495 which is hers. She proceeded to erect a Boys quarters thereon. Later she transferred her right over her land to the Defendant in consideration of N600,000.00. The Defendant in turn erected a duplex and new boys quarters thereon. At a stage before the Defendant completed the building the plaintiff found out that it was her piece of land that was being encroached upon. This in itself is constructive trespass which is actionable per se, See Adebanjo vs. Brown (1990) 3 NWLR PART 133 page 661 at 664 where it was held that’ Trespass is a violation of possessory rights and all claim in trespass can only be brought by one in possession or one who has a right to possession.

Upon realizing the mistake the parties themselves Try (sic) to negotiate and reach an amicable settlement between them since the construction work put up by the Defendant on the land belonging to the Plaintiff had reached advanced stage. This, according to the testimony of the parties concerned, would have entailed swapping the land one for the other or outright sale to the Defendant of the Plaintiff’s land. The Plaintiff asked for N900,000.00 outright sale while the Defendant offered N250,000.00 as cost for the Plaintiff to prepare the adjacent land for her entry in place of hers. The negotiation stalemated and the Plaintiff therefore decided to institute this action claiming damages for trespass which Bola Ojo learned Counsel for the Defendant contended cannot succeed basing his contention on the holding of the Supreme Court in Adebanjo v. Brown [supra) where it was held inter alia-

‘There can only be trespass if the person in possession withholds his consent to the entry to the land. If there is a mistaken entry and when the mistake is discovered, approach is made to the person in possession and he consent;, the right to claim in trespass abates as his consent relates back the initial entry without permission.

“In furtherance to this Honourable Justice Obaseki JSC (as he then was) states:

‘The Court of Appeal seemed to have over looked the very basis for negotiation If the Plaintiff/Respondent has said I do not want you on my land there would have been no basis for negotiation. But having said alright you can stay on my land but get me another plot of land or money the issue of trespass becomes dead issue and cannot be resurrected by the failure to fulfill the terms of the comment to the entry. This is more evident from the fact that the Plaintiff /Respondent allowed the Defendant/Applicant to proceed with his building to completion and jointly with the Defendant/Applicant approached and instructed PW1 to carry out a survey at the Defendants expenses. That fact alone destroys all the pretences of the respondent to the withdrawal or withholding of consent to the entry on the land.’”

“In the same case the present Chief Justice of Nigeria, then JSC further elucidates the issue thus:

‘There is no doubt that the appellant in building his house encroached on the respondent’s land. Initially the encroachment was a trespass on the respondent’s land which was referred to as plot 10.

However the trespass was condoned by the respondent who allowed the appellant to continue with the construction of the house. In that respect no finding of trespass can be made on the claim by the respondent for trespass and ‘perpetual injunction restraining the Defendant his servant and or agents from further trespassing on the said land or any part of same since the construction of the Applicant’s house had been completed and the Applicant has gone into occupation of the house. It is now too late in the day to grant the claim. The respondent cannot go back on the license given to the appellant for he (the respondent) has waived to his detriment the right to sue for trespass’”

(Italics mine)

The trial judge finally concluded his judgment thus:

“In the case in issue the Plaintiff found out that the Defendant had encroached into (sic) her land and the two tried to negotiate with the help of the Lawyers to either pay for the land or swap the land for the adjacent once. The Plaintiff cannot therefore be heard to be complaining over spilled milk after having waived to her detriment the right to sue for trespass until much later. The Learned Counsel for the Plaintiffs S.T. Ologun Orisa, wants the court to depart from this line argument (sic) by trying to relate same to the holding of Agbaje J.S.C (as then was) (sic) in the same case of Adebanjo vs. Brown where the learned jurist held the view that price of land is a fundamental term of any negotiation for sale of land and where it fails then there is no contract. I vouch to say that there is departure here from the point being conversed (sic). In fact if the price of land is agreed upon then the case itself will never come before the court. In view of the fact that the Plaintiff has condoned the trespass she has waived her right to sue the Defendant. Her claim for general damages of N3 Million Naira fails. The injunction sought is hereby not granted” (Italics mine)

The appellant was dissatisfied with the judgment of the trial court. She brought an appeal against it before the Court of Appeal, Abuja (hereinafter referred to as the ‘court below’). The Court below on 15-0-02 upheld the judgment of the trial court. Still dissatisfied, the appellant has come before this Court on a final appeal. The appellant raised five grounds of appeal in the appellant’s brief the issues for determination in the appeal were identified thus:

“3.1. Whether [the Respondent’s] negotiations [with the Appellant] without more, is sufficient to estop the appellant from asserting her rights arising from the Respondent’s trespass on her [the appellant’s] parcel of land.

3.2. Whether the finding by (the court below) that the appellant allowed the Respondent ‘to continue with the construction exercise’ on the- appellant’s parcel of land (the subject matter of this action) could be supported or substantiated by the evidence presented before the trial court.

3.3. Whether the court below was justified in its ‘finding that the appellant is not entitled to damages or injunction in the light of the trial court’s finding that the Respondent wrongfully entered and remained on the appellant’s parcel of land.”

The respondent’s issues are these:

“3.01. Whether taking into consideration the totality of the facts and circumstances of this case including the pleadings and the evidence led before the High Court, the Court of Appeal is right in upholding the judgment of the High Court that dismissed the plaintiff’s claim for damages for trespass and injunction on the principle of the case of Adebanjo v. Brown decided by the Supreme Court and reported in 1990 3 NWLR Part 141.

3.02 Whether with the evidence adduced and the findings of the trial judge, judgment for damages for trespass and injunction could have been properly entered in favour of the plaintiff in the High Court or in the Court of Appeal.

3.03. Whether an alleged error or mistake in a supporting judgment can vitiate the judgment of the court (Relates to Ground 3 of Grounds of Appeal and issue 3 formulated thereon in the Appellant’s Brief of Argument).”

I think that the important issue in this case is whether or not the facts and circumstances in this case are the same as found by this Court in Adebanjo v. Brown (1990) 3 NWLR (Pt.141) 661.

In this case, there is no doubt that the respondent who had a valid title to Plot No. 495 on Area 2 Wuse 1, District of the federal Capital Territory mistakenly went into Plot No. 496 belonging to the appellant and developed same. ‘”Was he entitled to be forgiven for his mistake on the ground that the appellant had entered into a negotiation with him, which said negotiation proved abortive or inconclusive as the parties did not agree on the terms

In her evidence before the trial court, the appellant at page 35 of the record of proceedings testified thus:

“From the time I got the Certificate of Occupancy when I was working in Lagos waiting to get approval for the plan before making any journey to Abuja. In October, 1992 I was appointed Chairman of Women Commission and I moved into Abuja then. Coincidentally that was the time I collected the approval (Exh. B). So after settling down for 3 months I decided to send a contractor to the site who discovered the encroachment. That was the first time, I went to the plot. On their paragraph 12- 13 (sic) of the statement of defence. We tried to settle with the assistance of FCDA staff but the settlement failed and I refused to accept the cheque though I had not seen the cheque. I refused to accept the cheque because the man he brought by name Ibrahim and my son, Charles Chukwuma who is now in U.S.A. together with a Quantity Surveyor from Peter Okolo agreed to :N900,000.00 and this was to compensate for my land that was high than his and the new set of plans to be made and approved. The Defendant said he would not pay N900,000.00 instead I should take the house and pay him N300,000.00 it was at that point I brought in my lawyer.”

The respondent in his evidence at pages 38-39 of the record of proceedings testified thus:

“The boys’ quarter was 2 flats and I gave one of the flats to the security man and I occupy the other flat anytime I came to Abuja. In 1992 I pulled down the boys’ quarters, drew another building plan which was approved by FCDA. I then commenced development of a duplex in accordance with the specification of DW3. After that I started building. I completed building the duplex and started plastering when: the FCDA ordered stoppage of the construction work. The new boys’ quarter was at roofing level then. It was a written notice pasted on the wall. I then went to FCDA to find out why stop order should be given. It was then I was informed that I encroached Oil the land of one Mrs. Chukwukma. I was asked to seethe owner as there was a mistake somewhere. The Plots are 495 and 496. ‘I meet the plaintiff who told me that we should have a meeting with our lawyers together. During the meeting I agreed to pay the expenses of swaping (sic) the two plots. Those of the Plaintiff to be mine, while mine to be that of the Plaintiff. The re-assignment of the land of Mr. Babajide held been completed then. As the Plaintiff felt not satisfied she came to court. I ever, gave a cheque of N250,000.00 to enable the Plaintiff take care of the plot swaping (sic). But she rejected the money.

CROSS EXAMINATION.

The transaction between myself and the Plaintiff was done by our Lawyers. We had only two concrete meetings. But I made several attempt (sic) for us to discuss the issue wherever we met. I know (Engineer) Alhaji Ibrahim who was the go between Mrs. Chukwuma and I, Engineer Ibrahim had never informed me of an agreement for us to pay the plaintiff N900.000.00. I had never had any meeting with the Plaintiff’s son.”

The evidence of the appellant was that she caused FCDA to serve all the respondent a “stop work” notice as soon as she was aware that the respondent had stayed on her land. She did not wait for the respondent to carry out further development on the land so that she could afterwards profit from the developments carried out on the land by the respondent. Negotiations followed. The appellant wanted N900,000.00 for her land. The respondent on the other hand was willing to relinquish the land with the developments thereon to the appellant if the appellant would pay her N300,000.00. Because parties could not agree, negotiations broke down. The appellant promptly sued.

The trial court and the court below in their judgments obviously took the view that the facts in the instant case were similar to those in Adebanjo v. Brown (supra). They then applied the principle of law upon which the decision in Adebanjo v. Brown was hinged. Were the two courts below right I think not.

In the Adebonjo v. Brown case (supra), the plaintiff whose land had been trespassed upon actually entered into negotiations with the defendant (who trespassed upon his land) and conveyed to the plaintiff that he would not enforce his rights as owner or the land against the defendant. The facts as found by the trial judge, which said findings were endorsed by the Supreme Court are reproduced at pages 672-773 of the judgment of the Supreme Court in the case. The Supreme Court said:

“At the conclusion of the hearing, the learned trial judge, Oguntade, J. (as he then was) very carefully and meticulously considered the totality or the evidence by both parties and having observed that the plaintiff had come to court to tell nothing but lies inl support of his claim,’ made the following important findings of fact. He said

‘I find as a fact that the plaintiff having discovered that the defendant encroached upon his land went into an arrangement with the defendant and defendant’s vendors to have a plot of land in exchange for that encroached upon.

I also find as a fact that when it was discovered that plaintiff had built on part of plot 10, the original arrangement was revised and that plaintiff agreed to take monetary compensation in lieu of the land encroached upon.

I find as a fact that it was in furtherance of this arrangement that the plaintiff voluntarily removed his shed from plot 10 and re-installed it on plot 9 at the defendant’s expense.

I also find as a fact that the plaintiff and the defendant in furtherance of the arrangement went to P.W.1 to prepare Exhibit ‘E’ so that the defendant might know how much to pay to plaintiff for the area of land encroached upon. Why would defendant just go and pay his money to P.W.1 for the preparation of Exhibit ‘E’ if not for that purpose And what was plaintiff doing with defendant in P.W.1’s house on that mission

I find as a fact that the whole of plaintiff’s actions and conduct were directed to convex to defendant that plaintiff would not insist on his strict proprietary rights over the land and that such actions and conduct did so convey such to the defendant.

The evidence of the defendant and D.W.l are in my view the more probable as the evidence draws substantial support from the witness called by plaintiff, that is, P.W.l.

The evidence of P.W.21 reject as plain fabrication.

The whole attitude of defendant clearly evinces remorse and anxiety to reach an understanding with plaintiff after the encroachment was discovered.”

It is apparent that the two courts below did not sufficiently give attention to the peculiar facts in Adebanjo v. Brown (supra) upon which the decision in the case hinged . In the Brown case, the parties not only went into negotiation after the trespass mistakenly committed by the defendant was discovered. They actually agreed on the terms of the settlement and partially implemented the terms. As a result, the plaintiff retrieved a shed he had on plot 10 which was in dispute and installed same on plot 9 at the defendant’s expense. Further, the defendant was led into paying money to a land surveyor (P.W.1 in the case) to draw a new plan implementing the terms of the agreement between the parties. It was in the belief that this settlement had been reached that the defendant in the Brown case continued the further development of the land in dispute.

The facts in the current appeal are different. As soon as the plaintiff (now appellant) knew of the trespass on her land, she caused F.C.D.A. which allocated the land to her to serve a “stop work” order on the defendant (now respondent). The parties opened negotiations which did not succeed. She then promptly sued. There was no evidence that the plaintiff at any stage before she sued caused F.C.D.A. to remove or vacate the “stop work” order on the defendant. It is therefore unarguable that she tricked the defendant into investing further money into the project so that she could afterwards come to claim the land with the improvements made on the land by the defendant.-

If the reasoning of the two courts below be right, it would in my view create a very anomalous situation in the law governing trespass to land. It would lead to a position where the owner of land on which another has committed trespass would not be free to talk to the trespasser at all lest he be taken to have compromised the trespass even when there has been no agreement reached with the trespasser. The important thing in my view is that the trespasser be not misled into carrying out further developments on the land after the discovery of the trespassory nature of his entry on the land. It is apposite to refer in this respect to the views expressed by Obaseki JSC at page 683 of the judgment in Adebanjo v. Brown (supra) thus:

“The Court of Appeal seemed to have overlooked the very basis for negotiation. If the plaintiff/respondent had said I do not want you on my land, there would have been no basis for negotiation. But having said alright you can stay on my land but get me another plot of land or money, the issue of trespass becomes a dead issue and cannot be resurrected by them to fulfill the terms of the consent to the entry. This is more evidence from the fact that the plaintiff /respondent allowed the defendant/appellant to proceed with his building to completion and jointly with the defendant/appellant approached and instructed P.W.l to carry out a survey’ of the land at the defendant’s expense. That fact alone destroys all the pretences of the respondent to the withdrawal or withholding of consent to the entry on the land.”

(Underlining mine)

In Nwakobi v. Nzekwu [1964] 1 WLR 1019 at 1023, the Privy Council discussing the nature of the defence of laches observed:

“Where laches is in question, the issue is not so much the question what rights a plaintiff has or whether in any event his conduct has been such as to leave him in a position to invite the court to enforce them.”

Has the plaintiff/appellant in this case lost her right to enforce her ownership rights over the land in dispute just because she stated that she would accept N900.000.00 to make her relinquish those ownership rights which offer the defendant/respondent rejected I think not. In Taiwo v. Taiwo [1958) 3 FSC 80 at 82, this Court said:

“Acquiescence does not bar a claim unless certain conditions are fulfilled. One of the most important is that the party who relies on his opponent’s acquiescence must have been led by it to expend money or otherwise after his position. There is nothing to showhere that the plaintiffs or their predecessor-in-title, Rebecca’s, have been led to do anything of the sort by the defendant’s failure to assert their claim.”

In O.Solomon & Ors F. A. R. Mogaji & Ors. {1982] 11 S.C. 1 at 25, this Court per Bello J.S.C (as he then was) said-

“The authorities, such as Mogaji v. Nuga (1960) 5 FSC 107, Agonran v. Olishi ({1967} 1 All NLR 177 appear to establish that where a land owner stood by and knowingly by his inaction allowed a stranger to develop the land in good faith without the owner appraising the stranger the defect of his title then the doctrine of acquiescence may properly be invoked to estop the owner from reaping the benefit of the stranger’s labour.. However, if the owner promptly warns the stranger of the defect of his title as soon as he discovers the presence of the stranger on the land and, despite the warning, the stranger proceeds to develop the land, then the doctrine of acquiescence may not assist the stranger: Adeniji v. Ogunbiyi (1965) NMLR 395 and Maraiyo v. Okiade 8 W.A.C.A. 46.

See also Ramsden v. Dyson (1866] LR 129 at pp. 140-141. My view in this appeal would have been different if there was evidence that the plaintiff/appellant had been aware of the trespassory entry upon her land earlier than the lime she caused a “stop work” order to be served on the defendant/respondent or if she had caused the “stop work” order to be vacated before she ultimately sued in court. Merely negotiating with the defendant/appellant is not enough evidence to support the conclusion that she had waived the trespass committed on her land. It would have been a different situation if she had, following the negotiation, caused the “stop work” order to the vacated.

It is my firm view that the two courts below were in error to have come to the conclusion that the plaintiff/defendant could no longer pursue her rights as owner of the land. The Court below would appeal’, in its decision, to have forced the- plaintiff/appellant to accept whatever offer the defendant/respondent made to her in atonement for the wrongful even if mistaken entry on her land.

There will be judgment in favour of the plaintiff/appellant against the defendant/respondent for N500.00 damages for trespass. The defendant/respondent is perpetually restrained from entering the plaintiff/appellant’s land. I am unable to grant the sum of N3 million damages as claimed by the plaintiff/appellant as she did not lead satisfactory evidence in support of the claim. I award in favour of the plaintiff/appellant N5,000.00 and N10,000.00 costs ill the High Court and the Court of Appeal respectively and in this Court N50.000.00.

SC.229/2002

Eme Orji V. The State (2008) LLJR-SC

Eme Orji V. The State (2008)

LAWGLOBAL HUB Lead Judgment Report

MUKHTAR, J.S.C.

The appellant together with one Peter Enwereji were charged on three counts in the High Court of Abia State, holden at Aba as follows:-

“Count 1: Statement of Offence:

Murder – Contrary to section 319 of the Criminal Code,

Vol. II, Cap.30, Laws of Eastern Nigeria, 1963 applicable in Abia State.

Particulars of Offence:

Peter Enwereji and Eme Orji on the 9th day of July, 1994 at No.1 Ukwa Road, Aba, in Aba Judicial Division murdered Chimaobi Joel.

Count 2: Statement of Offence:

Murder – Contrary to section 319 of the Criminal Code, Vol. II, Cap.30, Laws of Eastern Nigeria, 1963 applicable in Abia State.

Particulars of Offence:

Peter Enwereji and Eme Orji on 9th day of July, 1994 at No.1 Ukwa Road, Aba, in Aba Judicial Division murdered Monday Okon.

Count 3: Statement of Offence:

Murder – Contrary to section 319 of the Criminal Code, Vol.II, Cap.30, Laws of Eastern Nigeria, 1963, applicable in Abia State.

Particulars of Offence:

Peter Enwereji and Eme Orji on the 9th day of July, 1994 at No.1Ukwa Road, Aba, in Aba Judicial Division murdered Ogbati Aju.”

Both accused persons pleaded not guilty to the charges, and witnesses gave evidence. The learned trial judge after evaluating the evidence, and carefully considering the address of learned counsel, found both accused persons guilty of the offences they were charged and convicted them thus:-

“Finding/Verdict – On a calm view of the evidence before the court and the submissions of learned counsel for the parties, I find as a fact and hold that the prosecution have proved their case beyond reasonable doubt. I find each of the accused persons guilty of the murder of Chimaobi and in the process the killing of Monday Okon and Ogbati Aju – on 9th July, 1994 as charged. Each of them is accordingly convicted of murder.”

The convicted persons appealed to the Court of Appeal, which in the case of the present appellant found as follows:

“I agree and affirm the conclusion of the learned trial court that the circumstantial evidence concerning the 2nd accused convict lead to the irresistible conclusion that is compelling of the guilt of Eme Orji and the could below was tight to convict him; and to sentence as the judgment of 6/5/2002 show. The appeal is refused. It is dismissed.”

Now, the 2nd accused has appealed to this court on 3 grounds of appeal. Briefs of argument were exchanged by learned counsel who adopted their briefs at the hearing of the appeal. Both learned counsel raised issues for determination in their briefs of argument. In the appellant’s brief of argument are the following issues formulated for determination:-

“1. Having regard to the facts of this case whether the fact that the appellant did not immediately lie down when ordered to do so was enough circumstantial evidence against the appellant cogent and compelling enough to lead to the irresistible conclusion that he was a party to the offence.

Whether having regards to the facts of this case the fact that the appellant led the assassins to the PW 1 and the fact he failed to follow the prescribed procedure of communicating with his employer after 8p.m (sic) points to the guilt of the appellant in facilitating the unlawful act of aiding in the committal of the murders of the three deceased persons.
Whether the fact that the appellant went into hiding and/or failed to raise alarm connotes the aiding or facilitating escape of the strange men thereby making him a party to the crime.”

In the respondent’s brief of argument are the following issues formulated for determination:

“1. Whether the circumstantial evidence led in this case points irresistibly to the guilt of the appellant.

Whether the defence of compulsion avails the appellant in this case.
Whether the prosecution proved the case against the appellant beyond reasonable doubt.
Whether the Court of Appeal was right in affirming the conviction of and sentence of the appellant by the learned trial Judge.”

I have already stated earlier on that the appellant appealed on three grounds, and there is nothing in the documents before me to show that the grounds were increased vide the order of this court, to warrant the raising of issues that surpass the grounds of appeal. Issues for determination are supposed to be distilled from the grounds of appeal filed by an appellant, and not raised capriciously. They must not outnumber the grounds of appeal, for where they so out-number them there is the danger that some of the issues do not derive their source from the grounds of appeal, and therefore are not related to one another.

It is trite that an issue that does not so relate will not be tolerated. See Chime v. Chime (2001) 3 NWLR (Pt.701) 527; Western Steel Works Ltd. v. Iron & Steel Workers Union of Nig. (1987) 1 NWLR (Pt.49) 284, and Salami v. Mohammed (2000) 9 NWLR (Pt.673) 469. Proliferation of issues as in the instant case must be discouraged. See Oyekan v. Akinrinwa (1996) 7 NWLR (Pt.459) 128, the issues in the respondent’s brief of argument being in excess of the grounds of appeal, I will adopt the issue in the appellant’s brief of argument for the treatment of this appeal, and will treat them together.

In proffering argument learned counsel for the appellant has contended that circumstantial evidence relied upon by the learned justices against the appellant was not cogent and compelling and does not lead to the irresistible conclusion that the accused committed the offence. He argued that before circumstantial evidence can form the basis of conviction the circumstances must clearly and forcibly suggest that the accused committed the offence. Reliance was placed on the cases of Lateef Adeniji v. The State (2001) 13 NWLR (Pt.730) 375, and Adepetu v. State (1998) 9 NWLR (Pt.565) 185. In reply the learned counsel for the respondent has argued that the guilt of an accused person can be proved by circumstantial evidence, and in this case the prosecution was at liberty to fall back to the best evidence available in the circumstances, (which was circumstantial evidence in this case). He referred to the cases of Chima Ijioffor v. The State (2001) 86 LRCN 1318; (2001) 9 NWLR (Pt.718) 371; Paulinus Udedibia & Ors. v. The State (1976) 11 SC 133. Learned counsel submitted that the circumstantial evidence against the appellant is cogent, compelling and points irresistibly to his guilt. He referred to the cases of Fatoyinbo v. A.-G. Western Nigeria (1966) WNLR 4; (1966) 1 SCNLR 101; Lori v. The State (1980) 8-11 SC 81; Adepetu v. The State (1998) 61 LRCN 45 19; (1998) 9 NWLR (Pt.565) 185; McGreevy v. DPP (1973) 1 All ER503, Igabele v. The State (2006) 139 LRCN 1831; (2006) 6 NWLR (Pt.975) 100; and Francis Durwode v. The State (2000) 82 LRCN 3038; (2000) 2 NWLR (pt.645) 392.

The pertinent question, at this juncture is, what are the circumstantial evidence in this case It is on record that in his evidence-in-chief, P.W.1 said the following inter alia:-

“The second accused person opened the curtain or blind to my parlour or sitting room, he pointed at me to these strangers saying “See Chief”. I then saw them the strangers bring out a rifle gun and brandishing the same, the person holding the rifle gun ordered saying “Lie down all of you”. The second accused on that material time was still standing, where he had stood after opening the curtain of the parlour. I saw him clearly and he saw me and others.”

In the course of cross-examination, PW1 testified thus:-

“It is by 8.0′ clock pm that the gate is officially closed. But this does not prevent any visitor who want to see me from coming in, provided the security men on duty allow such a visitor to come in after filling the visitor’s form that is always passed on to me for my indication as to whether to allow such a visitor or visitors in. As there is also an inter-com, the security men or man on duty, also call me after the official closing of the gate to inform me of any visitors around.

But on that day the 2nd accused person did not call me. Rather he brought the strangers into my parlour. ..

Q: Did you provide the security men or any of them with gun

Ans: We have no gun.

Q: The two strangers who came to your parlour were armed with gun

Ans: That is correct.

Q: And they were following the 2nd accused person behind while they were coming

Ans: That is correct.

Put: I suggest to you that the 2nd accused person was under arrest by those strange men when he

brought them into your sitting room.

Ans: I did not see them until they came into the parlour led by the 2nd accused person as I was sitting in my parlour.

Put: The 2nd accused person, was under compulsion or duress to bring the strangers into my (sic) parlour.

Ans: I don’t know. They did not tell me so I don’t know.”

Perhaps the above scenario may have been better explained by the 2nd accused/appellant himself when in his evidence he said:-

“When I was asking them to come and sign our visitor’s book, one of them wearing a coat and putting on a tire (sic) also pulled out his own pistol and pointed it at me and told me to move. It was that fair one who had police gun she barater who gave me a slap and told me that if I talked again, that he would shoot me. So, I moved on and when we got to the PW1’s house, there is a place where visitors usually wait. I told them to wait there. I followed the backyard, and the (sic) followed me. I went through the backyard to enable me pass on a word or give a message through that person to PW1 to alert him as to what was going on. But at the said backyard, I did not see anybody. The door was open at the residence PW I. It was at that time that the one wearing a coat and tire (sic), told me that he is an Ibo man and that he knows Eleke and Freeman and that if I took them to somewhere else other than PW 1’s house or residence, that they will shoot me dead. Eleke and Freeman are the sons of PW 1. As I did not see anybody to give the message, we passed or moved to one of the rooms and there was nobody there. We then moved into another room and there was nobody there. Then finally we entered into the parlour of PW1’s sitting room…” (italics is mine)

Under cross-examination, the 2nd accused/appellant virtually reiterated this evidence in chief, and expatiated on some points especially on the suspicion of taking the strangers through the backdoor and his motive for doing so. In his testimony, he said inter alia thus:-

“When they pointed their guns at me and I went with them to the house of PW1, we got to his waiting room where I asked them to stay so that I could pass through the back or backyard in order to inform those at the backyard that there are some people looking for our master, so while I was going the armed robbers followed me.

Put: You purposely went through back door so as not to give the occupants no chance to escape.

Ans: Not true

Q: When the visitors ordered everybody to lie down, you did not follow the others to lie down because you felt that you were not included

Ans: Not true. I was gripped with fear.

Put: You know the visitors quite well. That was why being a part of the deal, you felt you were not included and that was why you did not also lie down.

Ans: Before God and man, I did not know the visitors.”

It is instructive to note that the above pieces of evidence were given on 3/2/99, and 18/3/2000, over five years after the 2nd accused/appellant made his cautionary statement to the police as follows:

“I told them to come and feel (sic) the visitors book. At this juncture two of them drew their guns one was holding a pistol while the other had a barneter (sic) gun and fenced (sic) it on me. They ordered me to take them to my Director or they kill me. When we were going, as I have decided to take them. They warned me not to take them to any other persons house other than the Director’s house. They informed me that they know Eleke and Freeman the sons of the Director. When I got to the house of the Director Chief Ogbati Chukwu in their company, I decided to take them through the back door. I did so because I was looking if I can find any person to pass information to the backyard I did not see any of the maids. 1 took them into the house through the backyard door. When we got into the first room we did not see anybody. We then entered into the dining room and lastly into the parlour where the Director and others were viewing the television and watching the world match going on. At this stage, I called the Director and told him that the men with me wanted him.”

Perhaps I should point out here that my reason for reproducing these latter pieces of evidence is to show that the appellant was consistent in the story of his travails right from the period of the incident to when he testified in court some five years later. His narration of what happened right from when the robbers came in, to the fear of imminent threat to his life which they subjected him to, and the reason why he took them through the back door was consistent. The evidence of PW 1 also corroborated the 2nd accused/appellant’s evidence on the mode of the appellant’s entry to PW1’s residence through that entrance was punctured by the explanation of the appellant who told the court of his motive of doing so. Though circumstantial evidence may sometimes be conclusive, all other factors and surrounding circumstances must be considered carefully for they may be enough to adversely affect the inference of guilt.

See Lori v. State, Udedibia v. State, and Adepetu v. State supra cited by the leamed counsel for the appellant. According to Iguh J.S.C. in the case of lko v State (2001) 14 NWLR (Pt.732) 221,”…. suspicion, no matter how high, cannot ground criminal responsibility”. The sight of guns, the threat to his life were enough to unsettle the appellant and make him confused. That he did not lie flat when the others lay down as instructed by the intruders is not a score in favour of the prosecution, as it did not irresistibly point to the guilt of the appellant. The position of the law on circumstantial evidence is that before it can ground a conviction the evidence must be strong, cogent and point irresistibly to the guilt of an accused person. See Anekwe v. State (supra) and Aigbadion v. State (2000) 7 NWLR (Pt.666) page 686.

In the instant case, the appellant gave a lucid account of what happened from the moment the intruders entered the house, and that account in no uncenain terms was corroborated by the evidence PW1 i.e. his motive of taking them through the backdoor etc. The reason why he ran away from the house and hid himself until they had left the premises. The appellant was also consistent in his evidence that he did not know the intruders. The pertinent question here is, what would a reasonable and normal man do in the circumstance Instinctively, the natural thing that comes to mind is the act of self preservation, most especially on the face of the confusion that preceded the callous act. The case of Abbott v. R. (1976) 3 AELR page 140 referred to by learned Attorney General in the course of the hearing of the appeal in this court may be relevant to a certain extent, but in the instant case, and looking at the surrounding circumstances and factors it cannot apply. With due respect, the lower courts did not give all the prevailing factors and circumstances careful consideration before arriving at their conclusions of conviction. The law is that before an accused person can be convicted of a criminal offence most especially one of such gravity as the instant case i.e. murder the prosecution must prove its case beyond reasonable doubt. See section 138 of the Evidence Act, Cap.112, Laws of the Federation of Nigeria, 1990. Although beyond reasonable doubt has been said to be not a shadow of doubt, see Miller v. Minister of Pensions (1947) 2 All ER 377, as was discussed in Akalezi v. The State (1993) 10 LRCN 264: (1993) 2 NWLR (Pt.273) 1; the present case to my mind is riddled with doubt. It is my view that the lower court was wrong when it found thus in its judgment.

“In the instant appeal, it is inconceivable that a security guard will meet people he had never seen before and lead the men holding a gun to his employer. In doing so, the employee failed to follow the prescribed procedure of communicating with his employer after 8p.m. The conclusion of a reasonable man which is vindicated by the compelling circumstantial evidence is that Erne Orji knew the strangers, (2) that he knew why they looked for PW 1 or knew their purpose. The conclusion leads to no other conclusion and point irresistibly to the guilt of the 20′ accused person in facilitating the unlawful act of aiding the committal of the murder of the three deceased persons or in any case the flight of the murderers after their acts of killing. The 2nd arm of the circumstantial conclusion of guilt against Erne Orji is act of facilitating the flight of the assassins. By his testimony, the accused Erne Orji went to announce the depature of the assassins. The accused person not only heard the gun shot by the strangers, he saw it when the assassins shot Chimaobi Joel in the head. The accused convict did not raise an alarm to prevent the safe departure of the assassins, his testimony show that he went into hiding till the assassins departed. By this act, Erne Orji who led the assassins or murderers cannot claim ignorance of the heinous offence. The person who facilitated the commission of murder, is guilty as is the person who facilitate the flight of such a person who committed murder is according to the law equally guilty. The assassins are at large; the appellant led the assassins to the scene of murder I have no reason therefore to disturb the conclusion of the learned trial Judge, except to say that there is no direct or circumstantial evidence of the conspiracy before the court below. I agree and affirm the conclusion of the learned trial court that the circumstantial evidence concerning the 2nd accused convict lead to the irresistible conclusion that is compelling of the guilt of Erne Orji and the court below was right to convict him, and to sentence as the judgment of 6/5/2002 show.”

As at the time the appellant was attested and cautioned, and at the time he was arraigned and eventually tried, he must have perceived the danger he was in and the gravity and seriousness of the charge against him, and yet he did not at any of those stages divulge the names of assassins. If truly he was in concert with them as it was alleged the very instinct of self preservation and protection would have forced him to rope them in, and not face the consequences alone, when in fact he did not do the actual shooting. I mean I find this situation inconceivable. Clearly, prosecution has not proved its case beyond reasonable doubt, and it should have failed. See Woolmington v. D.P.P. (1935) AC 462. Where a court entertains doubt on the guilt of an accused the law demands that such doubt should be resolved in favour of the accused. See Kalu v. State (1988) 4 NWLR Pt.90 page 503, Ikemson v. State (1989) 3 NWLR Pt.110 page 455, and Nnolim v. State (1993) 3 NWLR Pt.283 page 569.

In the light of the above discussions, I resolve these three issues in favour of the appellant, and all the grounds of appeal to which they are married succeed. I am satisfied that the case the appellant was not proved beyond reasonable doubt, and the court below erred in affirming the judgment of the learned trial court. I hereby allow the appeal and set aside the judgments of the lower courts. The appeal succeeds in its entirety, and the conviction of the appellant is quashed. The appellant is discharged and acquitted.

SC.150/2005

Unity Bank Plc. V. Mr. Edward Bouari (2008) LLJR-SC

Unity Bank Plc. V. Mr. Edward Bouari (2008)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C

This is an appeal against the decision of the Court of Appeal, lbadan Division (hereinafter called “the court below”) delivered on 9th May, 2002 allowing the appeal of the Respondent and dismissing the Cross-Appeal of the Appellants in respect of certain findings of the trial court. Dissatisfied with the said decision, the Appellants, have appealed to this Court on eleven (11) Grounds of Appeal. Without their particulars, they read as follows:

“1. The Court of Appeal erred in law by allowing the appeal of the respondent when the Court of Appeal had been deprived of its jurisdiction to entertain the appeal of the respondent by the invalid and incompetent Amended Notice of Appeal of the respondent which was filed out of time without an order of the Court of Appeal extending the time to file it out of time.

The Court of Appeal erred in law by not resolving the issue of its jurisdiction to entertain the appeal that was raised by the application of the appellants of February 13th, 2002 for leave for further address on the issue of jurisdiction and Notice of Preliminary objection of March 26th, 2002 challenging the competence of the Court of Appeal to grant extension of time to the respondent to regularize the invalid Amended Notice of Appeal as the application for leave for further address on the issue of jurisdiction was never taken before the delivery of judgment.
The Court of Appeal erred in law by dismissing the cross appeal of the appellants without consideration and finding on the issues of law that were raised therein that the donee of the power of the attorney or his personal representative ought to have been joined in the action in which the respondent challenged the competence of the donee of the power of attorney to execute the deeds of legal mortgage by virtue of the power of attorney.
The Court of Appeal erred in law by dismissing the cross appeal of the appellants without consideration and finding on the issues of law that were raised therein that the donee of the power of attorney had been held out by the donor of the power of attorney as having the authority of the donor to execute the deeds of the legal mortgage and the respondent never joined issue with the appellants on this point of law.
The Court of Appeal erred in law by not making finding on the issue that the amended Notice of Appeal of the respondent is invalid and incompetent under Order 6 rule 3(a) Court of Appeal (Amendment) rule 1984 on the ground that all the issues that are involved in all the Grounds of Appeal did not feature in the pleading of the respondent and they were not canvassed at the court below.
The Court of Appeal erred in law by not considering and making finding on the issue that was raised by the Appellants in the appeal that it will be an open fraud and injustice to allow the 1st appellant to loose (sic);N7 million as shown by Exhibit D2 and the respondent and his company to escape with 7 million.
The Court of Appeal erred in law when it held as follows…….In conclusion I hold that in view of the above consideration the findings of the learned trial judge about the plaintiff and his brothers being directors of the Trans Atlantic Co. Ltd. at the time of the mortgage transaction and the conclusion or decision based thereon are perverse and this court should necessarily interfere. It is the defence assertion that the plaintiff and his brothers were directors/shareholders of Trans Atlantic Co. Ltd at the time of the mortgage transaction and it is the duty of the defence to prove it through a document like exhibit D3 from Registrar of companies. It was not enough to prove that the plaintiff/and or his brothers were at one time or the other director of the company. They have to prove that they were directors of the company at the time of the mortgage transaction in exhibits P6 and DI. This they failed to do. The result is that I resolve this issue in favour of the plaintiff/appellant
The Court of Appeal erred in law when it held as follows:”………There is no indication of when he became the director or when he acquired his shares. There is also no other member of the Bouari family as one of the directors. It was therefore “wrong for the learned trial judge to proceed on the assumption that because of William Bouari’s directorship all male children of Lutfallah Bouari were directors. Furthermore there is no indication of when William Bouari became a director. Was he a director as at the time the property in dispute was mortgaged There was no evidence in that respect and the onus was on the defence to establish that at the time Exhibits D6 and DI were executed William Bouari was one of the directors” .
The Court of Appeal erred in law by holding that there was no evidence of any transaction between the Trans Atlantic Co. Ltd. and the 1st appellant when the statement of account Exhibit 02 shows that Trans Atlantic Co. Ltd. is indebted to the 1st appellant in the sum of =N=7 million.
The Court of Appeal erred in law when it held as follows”……There is ample evidence in support of this finding and conclusion and the point needs no further discussion. The finding is also consistence (sic) with the customary law of Ibadan where the property is situated or the law in Lebanon as testified to by the plaintiff. And it is settled law that until a person who owns a landed property dies his children cannot dispose of the property without his authority or consent. And any purported sale, pledge or mortgage of a property by a person who is not owner will be caught by the principle of nemo dot Qua (sic) non habet and such transaction will be null and void”.

II. The Court of Appeal erred in law when it held as follows……”It is my conclusion therefore that in 1963 and 1968 when the mortgage transaction (sic) were made the owner of the properties in dispute was still alive and in the absence of any authority to do so in the power of Attorney Exhibits P3 or any other authority Emile Bouari either acting alone or in conjunction with other children of the Lutfallah Bouari had not the power to mortgage the property in dispute”.

The claims of the Respondent as appears at paragraph 38 of his Statement of Claim at pages 36 and 37 of the Records, read as follows:

“(i) Declaration that the purported mortgage of the plaintiffs family property known and described as No. 80 Lebanon Street, and No. 30 Oba Adebimpe Street, Gbagi, Ibadan if any is unlawful, illegal null and void and of no effect.

(ii) Declaration that the said plaintiffs family property known and described as No. 80 Lebanon Street, and No. 30 Oba Adebimpe Street, Gbagi, Ibadan can not be mortgaged or charged for indebtedness or liability of any individual or institution without the knowledge and consent of members of the family.

(iii) Declaration that the purported mortgage of the property known as 80, Lebanon Street, and or 30 Oba Adebimpe Street, Gbagi, Ibadan or any part thereof is ultra vires, the power of Attorney dated 5th November, 1962 and registered as 56/56/564 and is therefore unlawful, wrongful, ineffectual, null and void.

(iv) An Order directing the 1st defendant/respondent to release the title deed of the said plaintiffs family property known as No. 80, Lebanon Street and No. 30 Oba Adebimpe Street, Gbagi, Ibadan or any other document relating thereto, to the plaintiff forthwith.

(v) Declaration that the defendants can not dispose of the plaintiffs family property known as No. 80 Lebanon Street, and No. 30 Oba Adebimpe Street, Gbagi, Ibadan without complying with the provisions of the Land Use Act, 1978 and the Auctioneers Laws of Oyo State.

(vi) Injunction restraining the defendants by themselves their agents, servants and or privies otherwise howsoever from selling or disposing of, the plaintiffs family property known as No. 80 Lebanon Street and or No. 30 Oba Adebimpe Street, Gbagi, Ibadan or in anyway interfering with the plaintiffs family or their agents possession thereof.

The Appellants who were the defendants filed a Statement of Defence which appears at pages 40 and 41 of the Records. After hearing evidence and addresses of learned counsel for the parties, the learned trial Judge – Arasi, J. in a considered Judgment delivered on 3rd October, 1997, dismissed all the claims/reliefs of the Respondent except relief No (i). His Lordship, concluded thus:

“In the result, and for all the reasons earlier stated by me, it is my judgment that the plaintiff partially succeeds in his claim against the defendants. I hereby make the following orders;

(a) Declaration that the purported mortgage of the property known as 80, Lebanon Street, Gbagi, Ibadan or any part thereof is ultra vires the Power of Attorney dated 5th November, 1962 and registered as 56/56/564 and is accordingly unlawful.

(b) All the other legs of the plaintiff’s claim are hereby dismissed”.

As stated earlier in this Judgment, the appeal by the Respondent to the court below, was successful, while the Cross-Appeal of the Appellants, was dismissed. The Appellants have formulated eight (8) issues for determination which have been adopted by the Respondent. They read as follows:

“(1) Whether the amended Notice of Appeal of the respondent dated June 1st 2000 and filed in court on November 1st 2000 against the decision of the Ibadan High Court of October 3rd 1997 was valid in the absence of an order of the court extending time to file it out of time.

(2) Whether having regard to the provision of section 36( I) of the 1999 Constitution relating to fair hearing the Court of Appeal was right by not allowing the appellant’s counsel to address the court on the application of the appellants for leave for further address on the issue of the jurisdiction of the court to entertain the appeal of the respondent in view of the incompetent and invalid amended Notice of Appeal of the respondent.

(3) Whether the Court of Appeal was right by dismissing the cross appeal summarily and without making finding on the issues of law that were raised in the appellant cross appeal and expatiated in the brief of argument that the donee of the power of attorney has been held out and his action ratified and that his personal representative ought to have been joined in the action to impeach the power of attorney.

(4) Whether the Court of Appeal was right by not making finding on the issue of the invalid of the amended Notice of Appeal of the respondent that was raised by the appellants in their brief of argument on the ground that all the issues contained therein did not feature in the pleading of the respondent and were not canvassed at the court below and leave of the court was not obtained to canvass them.

(5) Can the judgment of the Court of Appeal stand having regard to the failure of the Court of Appeal to make finding on the issue that was raised in the appellant’s brief of argument that it will be an open fraud to allow the respondent and his company to escape with N7 million as shown in exhibit D2 and in respect of which issue was never joined by the respondent.

(6) Whether the court can adjudicate on the issue that is not raised in the pleading and if the answer is in the negative whether the decision of the Court of Appeal that there is no evidence that the respondent and his brothers are directors of the Trans Atlantic Co. Ltd. at the time of the mortgage transaction is not perverse having regard to the fact that the issue did not arise for the consideration of the court on the state of the pleadings.

(7) Whether the Court of Appeal was right by holding that there is no evidence of any transaction between the Ist appellant and Trans Atlantic Co. Ltd. even with the statement of account exhibit D2 that shows that the Trans Atlantic Co. Ltd. is indebted to the Ist appellant to the tune of over N7 million.

(8) Whether there is credible evidence on the record in support the Lebanese customary law of succession and if the answer is in the negative whether the decision of the Court of Appeal that there is evidence in support of Lebanese customary Law of succession is not perverse having regard to the fact that issue was never joined in the pleading that Emile Bouari had been held out and his action in executing the deeds of legal mortgage ratified”.

On 20th November, 2007, when this appeal came up for hearing, Aluko, Esq., – learned Counsel for the Appellants, moved their motion for substitution of the 1st Appellant with Unity Bank PLC which was duly granted by the Court. He adopted their Brief filed on 26th September, 2002 and referred to the Reply Brief of the Appellants filed on 29th July, 2004 in respect of the Objection of the Respondent on the issue of jurisdiction. He also adopted the same. He referred to

pages 13 – 16 in relation to Issue 6 and cited and relied on Nos. 3 and 5 cases in their List of Authorities – i.e. R.E.A.N. Ltd. v. Aswani ile Ltd. (1991) 2 NWLR (Pt.176) 639 (@, 673 and Ifayanneyin v. Omomowo (1992) 5 NWLR (Pt.239) 30 (@, 37. He also referred to Issue 2 at pages 6 to 8 of their brief of argument and cited and relied on their case of No.9 on the List of Authorities – i.e. Alabi v. Amoo (2003) 7 S.C. 154 @ 164. He finally urged the Court, to allow the appeal.

Esan, Esqr, – learned counsel for the Respondent, referred to the Respondent’s Brief filed on 28th June, 2004 and the Respondent’s Objection to the Appellants’ Reply on issue of jurisdiction filed on 12th April, 2005. He adopted the two Briefs and informed the Court that on 7th June, 2004, they filed the proceedings of the court below which he said was missing. He urged the Court to dismiss the appeal. Thereafter, judgment was reserved till to-day.

I will not bother myself, going into the “Respondent’s Objection to the Appellant’s Reply on the issue of jurisdiction raised for the first time”. This is because, in my respectful view, going into the same, will amount to an exercise in futility as it has, with respect, no relevance to the real issue in controversy in the case leading to the instant appeal. For example, the issue of the capacity in which the Respondent sued, was not an issue in the two lower courts and being raised for the first time in this Court without the leave of the court, renders it incompetent. Again, there is no Ground of Appeal in respect thereof. I agree with the Respondent in the submission that this Court, sits on appeal in respect of decisions or pronouncements of the court below and will therefore, not entertain any question in which there was no decision or pronouncement by the court below. Again and this is settled, a member of the family, can sue, to protect or defend the interest of the property of the family in respect of any property. See Coker v. Oguntola & Ors. (1985) 2 ANLR (PT.5) (87)(1985) 1 ANLR (Pt. 1) 278 . If he has not the authority of the family to bring the action, the family, would or will of course, not be bound by the result, unless for some reason, the family is/was estopped from denying that the action was binding. See Sogunlele & Ors. v. Akerele & Ors. (1967) NIHLR 58. (a)60; Animashaun v. Osuma & Ors. (]972) 4 S.C. 200 (a)214; Ugwu v. Agbo (1977) 10 S.C. 27, 40 and Alhaji Gegele v. Alhaji Layinka & 6 Ors. (1993) 3 SCNJ. 39. My conclusion therefore, is that the said Objection is grossly irrelevant and it is accordingly, dismissed.

I will now deal with the said issues of the Appellants adopted by the Respondent.

ISSUE (1)

With respect, this issue is completely misconceived. As rightly submitted by the Respondent in his Brief, I note at page 148 of the Records, that the court below, granted to the Defendant/Respondent all his three prayers which included an extension of time within which to file an Amended Notice of Appeal. In the Additional Records filed in this Court on 7th June, 2004, the following appear at page 4 thereof, inter alia:

“Court: Order as prayed. Prayers a, b, c and dare granted. Time is hereby extended by 14 days from today to file all the processes prayed for in this

application ………………

The above order, was made on 26th October, 2000 in respect of the said application that was filed on 1st June, 2000. I also note that the said application, was not opposed by the learned counsel for the Respondent\Appellants – Aluko, Esq., who asked for and was awarded =N=2,000.00 (two thousand naira) costs. The said Amended Notice of Appeal, was filed on 1st November, 2000 within the fourteen (14) days period so granted.

As a matter of fact, an Amended Notice of Appeal, is certainly not a new Notice of Appeal. This because and this is also firmly settled that an amendment, relates back to the date in which the document, was originally filed just like an Amended Statement of Claim. In other words, it is retrospective. See the cases of Grace Amanambu v. Okafor (1966) 1 All NLR 205; Rotimi v. McGregor (1974) II S.C 133 (ii) 152; – per Coker, JSC; Madam Salami & Ors. v. Oke (1987) 9-11 S.C 43 (not 45) @ 67; (1987) 9-10 SCNJ. 27;. Kalla v. Central Bank of Nigeria (1999) 5 SCNJ. 1 @ 21; (1999) 6 NWLR (Pt.607) 370: Ajakaiye & Anor. v. Adedeji & Anor. (1990) 7 NWLR (Pt.16l) 192 @ 207 CA. also cited and relied on in the Respondent’s Brief and the English cases of Sneade v. Wotherton Barytes & Leading Mining Co. (1904) I K.B. 295 (ii) 297 and Warner v. Sampson & Anor. (1959) 1 Q.B. 297.

More importantly, Order 3 Rule 16 of the Court of Appeal Rules 1981 (As Amended) and which was applicable at the time the appeal was heard by the court below, and also referred to in the Respondent’s Brief, provides as follows:

“A Notice of Appeal or Respondent’s Notice may be amended by or with leave of the court at any time”. (italics mine)

The above provision is very clear and unambiguous and therefore, need no interpretation. In other words, there is no time limit within which to do so. So, there is no question of the said Amended Notice of Appeal, being a nullity. I therefore, resolve this issue against the Appellants and in favour of the Respondent. In other words, the said Amended Notice of Appeal, was/is valid and there was/is an order of the court below duly extending the time to so file it out of time which was accordingly so filed within the said extended time. Again, having regard to the provisions of the said Order 3 rule 16 of the said Rules, the issue, 1 repeat with respect, is absolutely and completely misconceived and most irrelevant.

ISSUE (2) – This issue which is said to be relevant to Ground 2 of the Grounds of Appeal, is totally, at variance with the said ground which I have earlier in this Judgment, reproduced. The Ground of Appeal, complains that “the Court of Appeal erred in law by not resolving the issue of its jurisdiction to entertain the appeal …… “What is more, in my respectful view, it was certainly not necessary to hear an address, as it clearly did not arise. At page 197 of the Records, the court below – per Akintan, JCA (as he then was), struck out the Notice of Preliminary Objection for being incompetent on the ground that it was not brought at least three (3) clear days before the date fixed for the hearing of the appeal. The court below relied on Order 3 Rule 15(1) of the Rules of that court. It was right to do so See recently, the case of Tim & anor. v. Begha (2005)15 SCNJ. 168 @ 178 citing the case of Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 295; (1990) 5 SCNJ. 174 and two other cases therein. I note that there is no appeal against the said decision of the court below and it is therefore, binding on the Appellants as it subsists. See the cases of Ejiwhomo v. Edet-Eter Mandillas Ltd. (1986) 9 S.C. 41 @ 47 and recently, Dabo v. Alhaji Abdulahi (2005) 7 NWLR (Pt.923) 181; (2005) 2 SCNJ. 76 @ 95 and (2005) 2 S.C. (Pt.1) 75 @ 91.

As it stands, there is no valid ground of appeal which this Issue 2 is related to or formulated from and the said issue, being at variance with the said Ground 2 of the Grounds of Appeal, is deemed in law, as having been abandoned as rightly submitted in the respondent’s brief citing and relying on the cases of Fasoro & anor. v. Beyioku & ors. (1988) 2 NWLR (Pt.76) 263 @ 270 – 271 (it is also reported in (1988) 4 SCNJ. 23 and Attorney-General, Bendel State & 2 ors. v. Adeyan (1989) 4 NWLR (Pt.118) 646 @ 665 (it is also reported in (1989) 9 SCNJ. 80). See also the cases of Captain Amadi v. NNPC (2000) 10 NWLR (Pt.674) 76; (2000) 6 SCNJ 1; (2000) 6 S.C. (Pt.1) 66; (2000) FWLR (PI.9) 1527 and (2000) WRN 47 and Adelusola & 4 Ors. v. Akinola & 3 Ors. v. Akinola & 3 Ors. (2004) 12 NWLR (Pt.887) 295(a) 311; (2004) 5 SCNJ. 235 (a) 246; Falola v. Union Bank of Nigeria PLC (2005) 2 SCNJ. 209; (2005) 2 S.C. (Pt. II) 62, and Archbishop Jatau v. Alhaji Ahmed & 4 Ors. (2003) 1 SCNJ. 382(a) 388 just to mention but a few. I therefore, discountenance the said issue and the result, is that both the issue and the Ground of Appeal on which it is based, being incompetent, are accordingly struck out.

Issue 3

In my respectful view, it is unfair to say that the court below, dismissed the cross appeal of the Appellants, summarily. I note that at pages 143 of the Records, what appears therein, is an appeal against part of the trial court’s judgment – i.e.

“Part of the Decision Complained of:

The portion of the judgment that the validity of the Power of Attorney can be determined without the presence of donor and dones (sic) (meaning donee)”

As a matter of fact, the court below, considered the Grounds of Appeal – six (6) by the Respondents and two (2) by the Appellants and the issues formulated by the parties and formulated or reformulated its own issues for determination. It formulated three (3) issues for determination and at page 203 thereof, stated inter alia, as follows:

“The arguments contained in the Appellant’s other issues and the Respondent’s issues are conveniently be subsumed in these three issues”.

Of course, it is now firmly settled that a court, can and is entitled to reformulate issue or issues formulated by a party or parties or Counsel in order to give it precision and clarity. See the cases of Okoro v. The State (1988)12 S.C. 191; (1988)12 SCNJ. 191; Latunde & Anor. v. Bello Latunde (1989) 5 S.C. 59; (1989)5 SCNJ. 59; Awojugbagbe Light Industries Ltd. v. P.N. Chinukwe & Anor. (1995) 4 NWLR (Pt.390) 379; (1995)4 SCNJ. 162; Ogunbiyi v. Ishola (1996)6 NWLR (Pt.452) 12 (a) 24; (1996)5 SCNJ. 143 and Lebile v. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nigeria Ugbobla & 3 Ors. (2003) 1 SCNJ. 463. It is now firmly settled that the purpose of reframing issue or issues, is to lead to a more judicious and proper determination of an appeal. In other words, the purpose, is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. See the case of Musa Sha (Jnr.) & anor v. Da Rap Kwan & 4 Ors. (2000) 5 SCNJ. /01.

It need be stressed and this is also settled that as long as the issue or issues re-framed, is/are anchored on the ground or Grounds of Appeal, the opposite party, cannot complain. See Ogbuanyinya & Ors. v. Okuda & Ors. (No.2) (1990) 4 NWLR (Pt.146) 551; (1990) 7 SCNJ.) 29 and Bankole & Ors. v. Pelu & Ors. (1991) 8 NWLR (Pt. 211) 523; (1991) 11 SCNJ. 108. In Musa Shar’s case (supra), Uwaifo, JSC, stated that it would be a misconception to argue that a court, cannot, suo motu, re-formulate an issue arising from a Ground of Appeal if the interest of justice demands this. That a court, must have the authority to do that when the Grounds of Appeal and argument canvassed, permit such a reformulation if the issue formulated by the appellant or respondent, appears awkward or not well framed. See the observation or comment of this Court in the case of Akpan v. The State (1992) 6 NWLR (Pt.248) 439 @ 466; (1992) 7 SCNJ. 22.

In my respectful view, the said issue formulated by the court below, were/are germane to the issues in controversy. The learned counsel for the Respondent in their Brief, has stated that “It will be seen that the issues formulated for determination had no relevance to the grounds of appeal filed by the appellants in the court below”, agree with him, that the issues distilled by the court below, fitted into the two grounds of appeal in the Cross-Appeal of the appellants. 11also agree with him that before giving its final decision, the court below, related the said issues so distilled by it, to the arguments before it. This must be so because, it is now firmly established, that an appeal, is decided upon the issues formulated for determination. In other words, when an issue or issues for determination are formulated, the Ground of Appeal upon which it or they are based, are extinguished so to say and are replaced by the said issue or issues so raised and no longer on the grounds. See the cases of Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) 275; (1992) 11-12 SCNJ. 1423 and Saliba v. Yassin (2002) 2 SCNJ. 14 (ij) 24 – per Katsina-Alu, J.S.C.

In other words, a Ground of Appeal, must have an issue to cover it and argument is proffered to cover the issue. Any Ground of Appeal not having any argument proffered on the issue distilled therefrom, is deemed abandoned and such an issue, is or ought to be struck out with the Ground of Appeal. See the cases of Akinsanva v. Longman (1996) 3 NWLR (Pt.436) 303; Ibrahim v. Mohammed (1996) 3 NWLR (Pt.437) 453; Dieli & Ors. v. Iwuno & Ors. (1996) 4 NWLR (Pt.445) 622 and Ogun v. Asemah (2002) 4 NWLR (Pt.256) 208. Afterwards and this is also settled, an issue, is a point that has arisen in the pleadings of the parties which forms the basis of the dispute or litigation which requires resolution by a trial court. See the cases of Metal Construction (W.A.) Ltd. v. Milgliore & Ors.(vice versa) (I990) 1NWLR (Pt.126; 299; (1990) 2 SCNJ. 20; Egbe v. Alhaji & 2 Ors. (1990) 1 NWLR (Pt. 128) 546; (1990) 3 SCNJ.41 and Ishola v. Ajiboye (1998) 1NWLR (Pt.532) 71.

From page 203 to the first paragraph of page 205 of the Records, the court below – per Tabai, JCA (as he then was), reviewed the said three issues and from the second paragraph of page 205 up to page 208 thereof, His Lordship, considered all the said three issues and in conclusion, allowed the appeal and set aside the said judgment of the trial court. The Cross-Appeal was also dismissed. I see nothing wrong with the said decisions. Since I have found and held that the court below, never dismissed the Cross-Appeal summarily but on painfully, considering the said issues formulated by it, this Issue 3, in my respectful view, is completely misconceived and I accordingly discountenance it.

ISSUE 4

This issue in my respectful view, is in substance, the same with or similar to Issue 1 already dealt with by me in this Judgment although differently couched. I therefore, ignore it together with all the arguments proffered in respect thereof and strike it out as being of no moment. I have, while considering Issue 1, held that the Amended Notice of Appeal, is not invalid and I cannot declare it to be so as again urged by the Appellants in their Brief.

ISSUE 5

The Appellants complain in their Brief that,

“the Respondent, did not file a Reply Brief to join issue with the Appellant on the issue that was raised in the appellants’ brief at the court below that it will be an open fraud and injustice to allow the 1st Appellant to loose (sic) (lose) =N=7million and the Respondent and his Company to escape with =N=7 million and under Order 6 Rule I0 of the Court of Appeal (Amendment) Rules 1984 the Respondent is deemed to have conceded to the point”.

In a line of decided authorities, it has been held that the failure of a Respondent to file a Reply Brief, is immaterial. This is because, an Appellant, will succeed on the strength of his case. But a Respondent, will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far as such is borne out by the Records. In other words, it is not automatic. An Appellant, must succeed or fail on his own Brief. See the cases of John Holt Venture Ltd. v. Oputa (1996) 9 NWLR (Pt.470) 101 C.A.; Onvejekwe v. The Nigeria Police Council (1996) 7 NWLR (Pt.463) 704 C.A. Waziri v. Waziri (1998) 1 NWLR (Pt.533) 322 C.A. and UBA PLC v. Ajileye (1999) 13 NWLR (Pt.633) 116C.A. just to mention but a few.

However, the Appellants submit in their Brief that the court below, ought to have dismissed the appeal summarily because according to them, issue of fraud, cannot be glossed over. I have stated earlier in this Judgment that the court below, formulated three issues for determination and decided on each of them. At page 7/206 of the Records, the following appear, inter alia:

“….There is no indication of when he became the director or when he acquired his shares. There is also no other member of the Bouari family as one of the directors. It was therefore wrong for the learned trial judge to proceed on the assumption that because of William Bouari’s directorship all male children of Lutfallah Bouari were directors. Furthermore, there is no indication of when William Bouari became a director. Was he a director as of the time the property in dispute was mortgaged There was no evidence in that respect and the onus was on the Defence to establish that at the time Exhibit D6 (sic) (p6) and DI were executed William Bouari was one of the directors “.

(the italics mine)

At pare 8/207, the court below, stated inter alia, as follows:

“There was no evidence as himself and his brothers were any such directors at the time of any transaction between the Trans Atlantic Co. Ltd and the 151 Defendant. Here the learned trial judge purported to rely on evidence that never came from the Plaintiff to destroy his case. There was even no evidence of any transaction between the Trans Atlantic Co. Ltd. and the 1st Defendant.

In conclusion I hold that in view of the above considerations the findings of the learned trial judge about the Plaintiff and his brothers being directors of the Trans Atlantic Coy. Ltd. at the time of the mortgage transaction and the conclusions or decisions based thereon are perverse and this Court should necessarily interfere. It is the defence assertion that the Plaintiff and his brothers were directors/shareholders of Trans Atlantic Co. Ltd. at the time of the mortgage transaction and it is the duty of the defence to prove it through a document like Exhibit D3 from Registration of Companies. It was not enough to prove that the Plaintiff and/or his brothers were at one time or the other directors of the company. They have to prove that they were directors of the Company at the time of the mortgage transaction in exhibit D6 (sic) (p6) and D1. This they failed to do.

The result is that I resolve this issue in favour of the Plaintiff/Appellant”.

(the italics mine)

I am unable to fault the above findings of fact and holdings because they are borne out from the Records. I agree with the submission in his Brief that the learned trial Judge’s finding on the issue of directorship of Trans Atlantic Co. Ltd. and consequent upon which the learned trial Judge, refused claim No.4 of the Plaintiff/Respondent and came to the conclusion that it would be a travesty of justice to grant that claim/relief, when Trans Atlantic Co. Ltd. was owing about =N=7 million (seven million naira), was exactly, what the court below held to be perverse. I also agree with the Respondent in his Brief that it will be wrong and in fact with respect, a gross misconception, to assert as the Appellants have done in Ground 6 of the Grounds of Appeal and in this instant issue, that the court below, did not make a finding on their said complaint when I have demonstrated in this Judgment, that it did.

ISSUE 6

This issue, is a surprise package to me so to speak. Firstly, the Appellants at page 14 of their Brief, stated inter alia, as follows:

“At page 40 of the record lines 4, 5, 6 and page 41 line 17 of the record the Appellant (sic) made it an issue that Edward Bouari, Lutfallah Bouari, Emile Bouari and William Bouari are members of the board of directors of the Trans Atlantic Co. Ltd. and that Trans Atlantic Co. Ltd. is indebted to the first Defendant. It was further stated at page 40 line 6 that members of the Bouari family are the shareholders in the Trans Atlantic Co. Ltd. and the property of Lutfallah Bouari was mortgaged to secure the account of the Trans Atlantic Co. Ltd. “.

[the underlining mine]

It is then submitted that the Respondent, did not file a Reply to the Statement of Defence t1o join issue with the Appellants in respect thereof. I have reproduced the claims of the Respondent in this Judgment and claims (i), (ii) and (iii, are quite clear and relevant. What is more, the pleadings of the Respondent in paragraphs 24,25 and 29 at page 35 of the Records, read as follows:

“24. None of the members of Bouari family had knowledge of any mortgage between Bank of the North Ltd. in respect of Plaintiff’s said family property or any part thereof by Emile Bouari or anybody.

The Plaintiff’s late father Mr. Lutfallah Bouari did not keep any account with Bank of the North Limited”.
The Plaintiff will contend that the Power of Attorney donated to Emile Bouari did not authorize him or any person to pledge any of the properties for his indebtedness or that of any other person or institution and that the consent of other members of Bouari family was neither sought nor got for any mortgage”.

I note that the Appellants, never filed any counter-claim in which case, the Respondent, should have filed a defence. From the above pleadings, I wonder what other “Reply”, the Appellants, expected the Respondent to file which will amount to any other joining of issues. If anything, in my respectful view, it is in fact the Appellants, who had joined issues in respect of the above said pleadings of the Respondent. This is why I stated that this issue, is a surprise to me. It is now firmly settled as rightly submitted in the Respondent’s Brief, that the proper function of a Reply, is to raise in answer to the defence, any matter which must be specifically pleaded, which make the defence not maintainable or which otherwise might take the defence by surprise or which raise issue of fact not arising out of the defence. The case of Akeredolu & ors. v. Akinremi & Ors. (1989) 3 NWLR (Pt.108) 164 (a) 172. (it is also reported in (1989) 5 SCNJ. 71) is cited in support and relied on.

In other words and this is also settled, that a Reply, is used by a Plaintiff, to answer new issues raised in the Statement of defence such as in cases of confession and avoidance. It is therefore, not necessary to file a Reply if its only purpose, is to deny the allegations of fact made in the Statement of Defence because of the principle of joinder of issues. Where no counter-claim is filed, a Reply, is generally unnecessary if it is also to deny allegations in the Statement of Defence. After the completion of pleadings, issue is or issues are said to be joined and the case is ready for hearing. Such a joinder of an issue, operates as a denial of every allegation of fact in the pleadings upon which the issue has been joined. (See also Principles of Practice & Procedure in Civil actions in the High Courts in Nigeria by J. Akinola Aguda paragraph 110; paragraph 18.06 of High Court and Supreme Court and the cases of Dabup v. Kola (1993) 9 NWLR (Pt.317) 254 (a) 270.281; (1993) 12 SCNJ. 1; Umenyi v. Ezeobi (1990) 3 NWLR (Pt.140) 621 C.A.; Obot v. Central Bank of Nigeria (1993) 8 NWLR (Pt.310) 140(a) 162; (1993) 9 SCNJ. (Pt.II) 268). In fact, it is also settled that if no Reply is filed, all material facts alleged in the Statement of Defence, are put in issue. A reply to merely join issues, is therefore, not permissible.

From the above principles, learned counsel for the Appellants, can now perhaps, see and appreciate that he was standing with respect, on quick sand when he submitted that,

“On the state of the pleadings of the parties the issue that the respondent and the members of his family are not directors of the Trans Atlantic Co. Ltd. at the time of the mortgage transaction did not arise for the consideration of the court because the issue was not raised in the pleading……. “.

and also when it was submitted that –

“Furthermore the respondent did not raise the issue in his pleading that at the time of the mortgage transaction the respondent and members of his family are not the directors of the company that enjoyed the overdraft facility”.

I am sure that either the learned counsel, did not advert his mind to the above pleadings in the said paragraphs 24, 25 and 29 or that he deliberately, wanted to draw wool into the “eyes” of the Court. It is unfortunate. It is even noted by me that the Respondent, led evidence in support of the said averments in the said paragraphs 24, 25 and 29 of the Statement of Claim. See page 68 line 23 to 30 where he swore as follows:

“My father never mortgaged any of his properties to the Bank of the North. I know Trans Atlantic Company limited. My father was not a director of that Company, my father was also not a share holder of that company. I never knew that our family property at 80, Lebanon Street and 30. Oba Adebimpe Road had been mortgaged to the Defendant until our family tenants saw the auction notice placed on the walls which they removed and brought to us “.

(the italics mine)

The court below, was therefore, justified, when it held that it was the duty of the Appellants, to prove that the Plaintiff /Respondent and/or his brothers, were directors of the Company at the time of the mortgage transaction in Exhibits P6 and the lease in D1, but that they failed to so prove.

Again, the said contention of the Appellants at page 14 paragraph 3 of their Brief, that the issue of directorship of the said Company at the time of the mortgage transaction, did not arise for consideration of the trial court because, according to them, the issue was not raised in the pleading or canvassed at the court below but that it emerged as a fresh issue in the Ground of Appeal of the Respondent even without leave of the Court of Appeal obtained to canvass it at the hearing of the appeal, to say the least and with respect, is bogus and baseless.

At page 129 of the Records – last paragraph, the learned trial Judge, stated inter alia, as follows:

“I therefore find as a fact and so hold that Emile Bouari, Edward Bouari and William Bouari as members of the Board of Trans Atlantic Company Ltd. were aware or were deemed to be aware that the properties of Lutfallah Bouari had been mortgaged to the 1st defendant ………

As rightly submitted in the Respondent’s Brief under paragraph G4, it was the above findings, that gave rise to the Respondent’s ground 2 of their Notice of Appeal in the court below and it will therefore, not be correct and I will add that it will be misleading, with respect, when the Appellants, asserted as shown by me in this Judgment, that the issue, emerged as a fresh issue in the ground of appeal of the Respondent. This is why, there is the utmost need, for all learned counsel, to cross-check the records of proceedings thoroughly, before making unsubstantiated or baseless assertions in the Briefs they file in this Court.

I will end this issue by agreeing with the Respondent in his Brief that the case of Oladipo v. Bank of the North Ltd. (2001) 1 NWLR (Pt. 694) 225 (ii) 266 which the Appellants assert, bind the Respondent in that the judgment is against the sub lease of the Respondent, is totally irrelevant to the instant case before the court below sitting in its appellate jurisdiction. The said issue with respect, is a non-issue in that it was not only raised in the pleadings of the Plaintiff/Respondent, but it was also dealt with and a finding of fact was made by the trial court and on appeal, the court below, set aside the said finding.

Indeed, exhibit P6, is/was on the face of it, a straight deal or transaction between Emile Bouari and the 1st Appellant. Emile Bouari, purported therein, to act on behalf of Lutfallah Bouari. It has no reference whatsoever to Trans Atlantic Co. Ltd. as to make directorship of the Company an issue in the circumstances as rightly submitted in the Respondent’s Brief. I agree with the Respondent that exhibit P6, was not expressed to be executed in respect of a loan facility granted to Trans Atlantic Co. Ltd. at all. This was why the court below, stated at page 207 of the Records already reproduced by me in this Judgment that –

“There was even no evidence of any transaction between the Trans Atlantic Co. Ltd. and the 1st Defendant”.

In any case, I note that the two lower courts, decided that exhibit P3 under which Emile Bouari purported to enter into the mortgage transaction, did not confer such powers on him. Being concurrent findings of fact, this Court, cannot interfere or disturb the said finding.

Issue 7

My answer straight away, is in the Negative having regard to exhibit D2 which is the Statement of Account that shows that the Trans Atlantic Co. Ltd., is/was indebted to the 1st Appellant to the tune of over seven million (=N=7million) naira. I or one may then ask, so what How did the slip or error, assist or enhance the appeal of the Appellants In my respectful view, I agree with the Respondent in his Brief that the issue, is purely academic and this Court, never engages itself in academic exercise. It is now settled as rightly submitted in the Respondent’s brief that, it is not every mistake or error in a judgment that will result in an appeal being allowed. An Appellate Court will only interfere when the error is substantial in that it has occasioned a miscarriage of justice. See the cases of Chief Oje & Anor. v. Chief Babalola & 2 Ors. (J991) 4 NWLR (Pt.185) 267 @ 282 (it is also reported in (1991) 5 SCNJ. 110; – per Nnaemeka-Agu, JSC, Oladele & 2 Ors. v. Oba Aromolaran II & 3 Ors. (1996) 6 NWLR (Pt.453) 180 @ 234 (it is also reported in (1996) 6 SCNJ l) and Alli & Anor. v. Chief Alesinloye (not Aleshinloye) & 8 Ors. (2006) 6 NWLR (Pt.660) 177@ 213 (it is also reported in (2000) 4 SCNJ. 264) – per Iguh, JSC, all cited and relied on by the Respondent. See also the cases of Ukejianva v. Uchendu (1950) 13 WACA 45; Onajobi v. Olanipekun (1985) 4 S.C. (Pt.2) 156 @163; Amoroti v. Agbeke (1991) 6 SCNJ. 54 and Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539 @ 556. The appellants, as rightly stated by the respondent in the brief, have not shown to this Court, how the said statement of the court below, have made any difference or would have been different in the circumstances of this appeal. They have not also shown what prejudice or miscarriage of justice they have suffered or has been occasioned to them. Being an academic exercise, I ignore and discountenance the said issue.

Issue 8

The real crux or pertinent issue in this case in my respectful view, is exhibit P6. I note that the Appellants, did not indicate or state in their Brief, on what ground of the Grounds of Appeal, this issue was distilled or formulated. I take it to relate to ground 10 of the Grounds of Appeal. However, the important question, is whether the said Power of Attorney, conferred any power or authority on the donor or any other member of the Respondent’s family to enter into the purported mortgage transaction. In the first place, I have reproduced in this Judgment, the declaration made by the learned trial Judge in his said Judgment at page 135 of the Records. The court below at page 209 thereof, stated inter alia, as follows:

“On the effect of this declaration it is my view that the validity or otherwise of the mortgage transaction is the key issue in this trial. Having resolved that issue in favour of the Plaintiff all other reliefs should necessarily be granted”

[the italics mine]

In other words, the trial court, having declared the said mortgage between Lutfallah Bouari and the 1st Appellant – exhibit P6, to be ultra vires the Power of Attorney – exhibit P3 of 5th November, 1962 as unlawful, the trial court, ought not to have dismissed the other said claims of the Respondent. Period I agree. I observe that some of the arguments of the Appellants in their Brief, are with respect, repetitions just as the court below found in its judgment, some of the issues and arguments in the Brief filed by the Appellants in that court. Even in their Reply Brief, some of the arguments therein are repetitions. In the case of Calabar East Co-operatives Thrift Credit Society Ltd. v. Etim E. Ikot (1999) I4 NWLR (Pt.638); (1999) 12 SCNJ. 321 (a1.339, this Court – per Achike, J.S.C. (of blessed memory), stated that repetition, do not improve an earlier arid, weak and completely unacceptable argument. My reading of the said Briefs of the Appellants, have been tedious and energy sapping. The good news, however, is that I am bound to consider every Brief of the parties even if in-elegant or badly written. See the cases of Chinweze & 2 Ors. v. Veronica Mar & Anor. (1999) 1 NWLR (Pt.93) 254 @ 265; (1999) 1 SCNJ. 148; Obiora v. Osele (1989) 1 NWLR (Pt.97) 278; (1989) 1 SCNJ. 213 and Tukur v. Govt. of Taraba State (1997) 6 NWLR (Pt.510) 5.49 @ 569 (1997) 6 SCNJ. 81 citing some other cases therein.

In conclusion, I find no merit in this appeal and I accordingly, dismiss it. I hereby affirm the judgment of the court below. Costs follow the event. Costs of =N=10,000.00, (ten thousand naira), are awarded in favour of the Respondent payable to him by the Appellants.

SC.270/2002