West African Oilfields Services Limited V. U.a.c. Of Nigeria Limited (2000)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A.

T

he appellant an oil service related company sometime between 1975 to 1976 delivered to the respondent some machines and equipment for repairs and refurbishment. The respondent later sent invoices to show that repairs had been effected in the sum of N112,624.28. The appellant would have none of that as it insisted the money should be considerably less than that sum. However, the parties later agreed to the sum of N74,069.29. This amount was paid instalmentally as agreed by the parties and the instalmental payment was completed in February, 1979.

Having completed the cost of alleged repairs, the respondent for some unaccountable reason failed to deliver the goods. The appellant stated that it was indeed discovered that no repairs or refurbishment of the equipment was made and of course the failure to repair and deliver the equipment and machines in good working condition which was the basis of the contract led to the inevitable detention of the goods; whereupon the appellant claimed as follows:

The delivery up to the plaintiff in good and working condition of the equipment specified in paragraph 5(a), (b), (c), (d) and (1) of this statement of claim or their value:-

(i) 3 D333 at minimum of N45,364.92;

(ii) 3 Scrapers at minimum of N120,000.00.

(b) Loss of use of the said equipment and machines during the period of wrongful detention from the 27th day of September, 1977 when the defendant obtained judgment in respect of purported labour and material supplied in respect of the equipment to and including the 28th day of February, 1979.

(i) The two Cat Marine Unit D333 at the rate of N400.00 (four hundred naira) per day per machine for 17 (Seventeen) months – N408,000.00.

(ii) Loss of use of two Cart Scrappers Model 621B 23H1301 and D336-23H1301 at the rate of N525.00 (five hundred and twenty-five naira) per day per scraper for 17 months – N535,500.00.

(iii) Cart Scrapers Model 619-61F84 at the rate of N450.00 (four hundred and fifty Naira) per day for 17 months – N229,500.00.

Total for (b) (i-iii) – N1,174,000.00.

(c) Refund to the plaintiff of the money paid to the defendant as claimed by it for services and materials allegedly rendered and supplied but which were not in fact rendered and or supplied N74,069.29.

(d) General damages for continued detention of the plaintiffs said equipment since filing of this action – N300,000.00″

The respondent rejected all averments that tended to show that there was a breach of contract from its side stating that all necessary repairs were carried out. It averred further that the issue of repair or non repairs was a matter that should have been taken up when the respondent took an action against the appellant originally for the recovery of the appellant’s indebtedness originally communicated to him through the invoice. The respondent in respect of having exposed those machines entrusted to it for repairs said it does not usually provide a garage coverage for those types of equipment and that if after nearly 3 years of repair when the machines were not collected then any resultant condition must be due to non-use. Besides the respondent said that it is not part of its duty to return the goods after the completion of the repairs.

In his judgment. the learned trial Judge dismissed the suit and partly non-suited the plaintiff in respect of the item for detention of 2 machines. On the whole the action failed.

Dissatisfied with the judgment of the lower court the plaintiff as appellant filed notice of appeal and framed 6 issues viz:

“1. On the issues joined in the pleadings, was appellant’s claim founded on breach of contract/agreement and negligence by bailee or was it an action founded on the tort of detinue?

2. Was the learned trial Judge right to ignore appellant’s claim for breach of contract/agreement and negligence by bailee and to have based his judgment on the tort of detinue which did not form the substratum of the appellant’s claim?
3. On the facts before the court and or as found by the learned trial Judge, was:

(a) the agreement/contract and its breach as pleaded in the statement of claim not established?

(b) negligence by bailee not established?

4. Was the learned trial Judge right in holding that there was no condition in the agreement between the parties requiring the respondent to deliver the equipment to the appellant after repairs?
5. In an action by a bailor against a bailee for return of goods held under a contract of bailment, is proof of a previous demand by the bailor and refusal by the bailee acondition precedent to the success of such an action.
6. On the facts and findings in this case and on the totality of the evidence before the court, was the learned trial Judge right to dismiss part of the appellant’s claim in its entirety and to non-suit it in respect of the other part:

The respondent framed 3 issues for determination. They are as follow:-

“1. On the pleadings and the evidence given in the lower court, what were the appellant’s cause of action?

2. Can the parties’ solicitors by the exchange of Exhibits M and N, as contended by the appellant create another binding contract on the parties besides that which the parties entered at the time the equipment was brought to the workshop of the respondent for necessary repairs in 1975?
3. Was any of the causes of action established by evidence in court warrant a reversal of the judgment of the lower court?

From the nature of the issues framed as can be gleaned from the record the issues really circumscribe around the following questions namely:

“1. Was there a breach of contract by the respondent?

2. Is the respondent liable for action in tort for unreasonably delaying the equipment and machines of the appellant after the repairs?

The appellant contend breach of contract. When the appellant sent its machines and equipment for repair and the respondent accepted them and later sent a bill of N112,624.28 which through the mediation of counsel on both sides was reduced to N74,069.29 there was a contract. It would appear that the respondent held on to the equipment until completion of that money. In effect, the full consideration for which will flow from the appellant to the respondent had not been fully completed and so the equipment was detained. It would seem to me that the issues I raised are inextricably so involved that one leads to the other and in that case the points must be argued together. It must be pointed out that the appellant had admitted liability for the costs of repairs after the solicitors for both parties have finally agreed as to what the respondent was entitled. The money was not paid immediately and the respondent then as plaintiff went to court and obtained judgment. The appellant has claimed that it was induced by the representation of the respondent that the equipment and machines were in order that was why it admitted liability to the costs of repairs. The appellant had pleaded that it was a term of the agreement that the defendant/respondent would keep the machines in a garage/workshop that was fit to keep such goods in good condition, yet it failed to do so. Now in a letter dated 19/10/81 the Managing Director of the appellant’s company wrote to the respondent as follows:

“Suit No. PHC/55/97

West African Oilfield

Services Limited

vs.

U.A.C. (Nigeria) Limited

19-10-81

The Eastern Area Manager,

Tractor and Equipment,

P.O. Box 6,

Port Harcourt.

Dear Sir,

Marine Engine Overhauls

Sometime ago, we discussed this with you in your office and it was mutually agreed that you will sell the D333 Marine Engines and offset the value against invoices concerned with those engines.

Herewith we confirm this agreement.

Yours faithfully,

for: West African Oilfield Services (Nig) Ltd. (SGD.)

1. A. Kennedy

Managing Director”

Exhibit “A” showed that the appellant apparently being unable to pay instructed the respondent to sell some of the equipment to reduce costs of repairs. In November, 1978 by Exhibit F the appellant wrote to the respondent and made reference to their delivery notes to the effect that if the machines failed to operate the respondent would be contacted. A reply from the respondent was to the effect that the non functioning or malfunctioning of the machines and equipment might not be unconnected with the goods having being lying in the “yard” of the respondent awaiting payment of the outstanding debts and that they might have been affected by atmospheric pressure. From the respondent’s point of view, these were not collected until four years after repair work was fully effected on them.

These facts were obviously found out after the appellant have admitted owing the respondent for the cost of repairs. The appellant contended that obviously the repairs were not made. In the earlier action filed by the respondent for the recovery of the balance of debt due to repairs, the appellant as defendant in that case averred as follows in its statement of defence:-

“The defendant company admits liability to the plaintiffs claim of N57,069.29 as averred in the plaintiff’s statement of claim.”

My understanding of this defence is that the appellant in this case as defendants accepted that repairs were indeed effected and it was liable to pay. The whole affair lasted from 1975 – 78. All this time the appellant never took it upon itself to test the machines even if it would not pay the full money to recover the machines and equipment due to obvious impecuniousity. Having in my view decided to accept liability the inference is that the machines were in good condition to perform. It cannot turn round to say that no work was done. The whole transaction relating to the delivery of machines and equipment for repair and subsequent court action to recover the debt terminated to all intents and purposes after the action and judgment in that case. If repaired and were left uncollected for a period of about three years with the result they became affected by natural elements which led to corrosion. it is to be expected that the machines cannot be  expected to perform in the way it should have if collected soon after repairs were carried out. It was the inability of the appellant to pay the money at and as when due that led to the constructive seeming palpable detention of these equipment and machines. If the money had been paid at the right time the issue of delay or alleged detention of the goods would not have arisen. I am in agreement with the learned trial Judge when he said:

“As I have already found, one of the said machines and equipment was sold by the defendants and its value credited to the plaintiffs’ account at their (plaintiffs’) request, three were returned to the plaintiffs in 1978 and 1979 and only two are still being held by the defendants. It is therefore difficult to see how the claim by the plaintiffs for the return of the four or payment of their value can be maintained. In any case, in an action in detinue by a bailor against a bailee whose bailment has determined, there must be demand for the goods or chattels, made by the bailor and refusal to deliver up by the bailee before the action is brought in order to establish a wrongful detention: Christopher Udechukwu v. Isaac Okwuka (1956) 1 F.S.C. 70; and Capital Finance Company Ltd. v. Bray (1864) 1 WLR 323.

There is no evidence before me of demand and refusal. Accordingly, the claim for the delivery up of the said machines and equipment, or payment of their value must fail, save as regards the two which are still being held by the defendants.”

Who was responsible for the detention of the equipment and machines. The matter squarely rested with the appellant. In its tardiness coupled with its financial state it compounded its problems by not making a demand of return of the goods or paying earlier. I dare say it was the utter neglect on the part of the appellant that led to its troubles. Refusal or failure to surrender or deliver on demand is the essence of detinue. Besides where prior to the demand for return of goods in the custody of the defendant, the goods got lost or destroyed, the defendant will not be found liable. See Whiteley Ltd. v. Hilt (1918) 2 K.B. 808.

It must always be shown for proof of detinue that the goods were detained in defiance of the demand of return by the plaintiff.

The cause of action is founded on a demand by the plaintiff and a refusal by the defendant for return of the goods. There is no liability incurred by the defendants for failing or omitting to deliver the goods to the plaintiff where there exists no contractual duty to do so and where there is manifested no intention to detain the goods in defiance of the plaintiffs’ wish. See Clement v. Flight (1946) 16 N.W.42; Capital Finance Co. Ltd. v. Bray (1864) 15 Q.B. 859, 867, 868.

Although the goods continued to be in the possession of the respondent for upwards of 3 years, the appellant never made any demand of them. The continued retention of the goods in the premises of the respondent is singularly attributable to the inordinate delay by the appellant to take back the goods it sent out for repairs. When a person or company sends machines to be repaired it is axiomatic that he would in due course collect them after the repairs have been done. Where he fails to do so in time and the goods in possession of the other party goes bad, he cannot turn round to allege and lay a claim on detinue on the ground that his machines were not returned when he has been responsible for the delay caused in recovering them.

In this case, I fail to see how the respondents are to be blamed. In the circumstance the appeal fails and is dismissed. The judgment of the lower court is affirmed. The appellant is to pay costs assessed at N4,000.00 to the respondent.

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Other Citations: (2000)LCN/0799(CA)

Emmanuel Uzoewulu & Anor V. Ugwueze Ezeaka & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

Two distinct and separate writs were taken out by parties to the present appeal. In the one, the respondents as plaintiffs sought against the appellants then defendants the following reliefs:-

(1) Declaration of title to the piece or parcel of land otherwise known as and called “Ana Mbaji” situate at Okafia-Ihiala annual value of which is N10.

(2) N1000 damages for trespass on the said land. And

(3) Perpetual injunction restraining the defendants, their agents or privies from committing further acts of trespass on the said land.

The particular suit No. HN/43/76 was first in time. Some defendants in the suit took out a subsequent writ against the plaintiffs in the very first suit. The suit so subsequently commenced was No. HN/13/77. Pursuant to the lower court’s order, the two suits were rolled into one and heard as a single suit. In legal parlance they are said to have been consolidated. This appeal is against the judgment of Hon. Justice K.K. Keazor of the Anambra State High Court sitting at Nnewi dated 25/7/97 and in respect of Suits No. HN/43/76 and No. HN/13/77 that had been so consolidated.

It is pertinent to note that defendants in Suit No. HN/43/76 as plaintiffs in suit No. HN/13/77 had the same prayers against plaintiffs in the former suit who had become defendants in the subsequent suit. The only addition in the prayers of the plaintiffs in the subsequent suit against the defendants therein was for forfeiture of the land in dispute.

Before the consolidation of the two suits, pleadings had been ordered, filed, exchanged and duly settled. The consolidated suit went to full trial. Thereat, both parties testified on their own behalf and called witnesses. Both parties, in the main, relied on traditional history, numerous acts of ownership and possession over the land in dispute. The plaintiffs also pleaded the fact of customary arbitration in respect of the land in dispute.

The parties in the instant appeal claimed a common ancestor at the lower court. His name? Dioha or Idioha.

The plaintiffs/respondents’ claim was that Idioha’s Obi was not large enough to accommodate all his children. The Obi was located at the site of the present day Ihiala motor park. Elekechem was Idioha’s Eldest son. Plaintiffs/respondents averred that Elekechem by conquering the Ameja, Ohoma and Ochi people, acquired their land which he renamed Okahia. Elekechem occupied the land he acquired leaving behind his three brothers at Dioha’s Obi. These brothers were Nnebuogwu, Mmelike and Mmeriwno. They were eventually resettled at Okahia where Elekechem’s children granted them portions of the conquered land after the death of their father. Plaintiffs/respondents’ further claimed that Elekechem was their progenitor and the land he acquired by conquest passed from generation to generation until they eventually inherited the same. It is a portion of the inherited land that is in dispute. They call the land “Ana Mbaji” and is verge red in their survey plan No. MEC/494/77.

The defendants/appellants’ trespass on the land in dispute was the first threat to plaintiffs/respondents’ ownership of the land in dispute and thus the action in the suit which culminated into the instant appeal. Plaintiffs/respondents further averred that defendant appellants were descendants of Mmelike one of Elekechem’s brothers. Appellants eventually inherited the land granted to their ancestors by Elekechem’s children which land had no common boundary with the land in dispute.

Some acts of ownership demonstrated by the plaintiffs/respondents include the sale of part of the land in dispute to relations of the defendants/appellants in 1972 and 1975. Plaintiffs also averred that in 1976 when the defendants/appellants trespassed on the disputed land both parties submitted to an arbitration conducted by the Oluoha-in-council. The arbitration favoured the plaintiffs/respondents.

In view of the venom with which the import of this arbitration was argued by parties, paragraphs 29, 30, 31, 33 and 34 of the plaintiffs/respondents’ pleadings in suit No.HN/43/76 are hereunder reproduced:-

“(29) Suddenly, in 1976 the defendants broke into the land and started clearing part of this land in dispute and removing boundary trees. (30) The defendants protested to Chief John Udoji, the Oluoha of Ihiala and he summoned both parties to his palace for settlement with the elders and village-heads.

(31) The Chief Udoji and his elders and village-heads decided finally that the defendants should give oath to the plaintiffs’ relations to swear and own the land or if the plaintiffs and their relations fail to swear, they lose the land to the defendants.

The Chief Udoji and the team of arbitrators named the following to swear for and on behalf of the plaintiffs:-

(a) Mbamasaa Mbadinuju

(b) Ugwueze Ezeaka

(c) Ndukwu Obiajuonwu

(d) Ezeanochie Akalite

(e) Agunenye Ogwurumba.

(32) On the day scheduled for oath-taking, the Plaintiffs assembled and the five men enumerated in paragraph 31 above presented themselves to the gathering ready and willing to swear but the defendants failed to turn up nor did they bring the oath.

(33) According to Ihiala native law and custom the defendants are taken to have run away and to have forfeited all claims to and right over the land to the plaintiffs.

(34) This incident was also reported to the Chief John Udoji and his arbitrators and they asked us to take our land.

It is important to add that plaintiffs had earlier averred that the type of arbitration referred to supra was common feature in Ihiala. In fact defendants’ family had cause to resort to the same type of arbitration when two branches of their family had land dispute among themselves. The relevant paragraphs of the plaintiffs/respondents’ pleadings are hereunder also provided:-

(23) The defendants family group called Umuokoronwune and Umueleke had a dispute over a piece or parcel of land situate between them and called “Akwu-ege” and the dispute was later resolved by arbitration by village-heads.

(24) The arbitrators decided that Umuokoronwune should administer oath to the Umueleke family and if Umueleke swore to it, they would from then own the land in dispute but if they failed to swear, Umuokoronwune would own, possess and enjoy the land.

(25) On the day appointed for oath-taking, customary court officials were present to witness the oath-taking.

(26) Umueleke swore the oath and from then dispossessed Umuokoronwune of the land. Umuokoronwune then dispersed and started buying lands from people around them.

On their part, defendants/appellants denied the plaintiffs/respondents’ claim. In their pleadings in both suits before consolidation, they averred that the land in dispute was acquired by conquest by their common ancestor Dioha. Defendants conceded that Elekechem was Dioha’s Eldest son but that he remained at Dioha’s Obi as the tradition required. Elekechem’s brothers namely Nnebuogwu, Mmelike and Mmeri moved to and occupied Okahia. This was the land which Dioha, their father, captured from the Gwulala Gwulopoto people. It was defendants/appellants’ further case that on the death of Elekechem, as a result of constant harassment, his children moved to Okahia from Dioha’s Obi which the children had inherited. Their Uncles, Mmelike and Nnebuogwu resettled them by granting them portion of the land they inherited from the Dioha. Mmelike subsequently, added to his share by conquest. The defendants/appellants claimed to have descended from Nmelike and the land in dispute which they call “Ala Oji” was passed from generation to generation till it eventually became theirs through inheritance.

It is appellants’ claim per their pleadings that they have since been in physical possession of their portion of the Ala Oji and have exercised various acts of ownership without let or hindrance from any person including the respondents or their predecessors.

The appellants as defendants in suit No. HN/43/76 joined issues with respondents who were plaintiffs in the suit regarding the issues of arbitration in the following paragraphs of their statement of defence:-

“(42) The defendants strongly deny paragraphs 27, 28, 31 and 32 of the statement of claim and shall at the trial put the plaintiffs to the strictest proof of the same.

(43) The 2nd defendant reported the acts of the plaintiffs complained of in paragraph 40 above to the Umuobilaokwere family who warned the plaintiffs to desist from further disturbance of Ala-Oji (the 2nd defendant’s portion shown to him).

(44) The plaintiffs reported the defendants to His Royal Highness Chief J.M. Udoji the Oluoha of Ihiala.

(45) His Royal Highness and his Chiefs on the 30th October, 1976 invited the Umuobilaokwere family to His Royal Highness’ palace.

(46) After listening to the members of the Umuobilaokwere family and visiting the Ala-Oji, His Royal Highness and his Chiefs advised the plaintiffs to keep to the respective portions of Ala-Oji granted to them by the Umuobilaokwere family”. Appellants also made reference glibly to this same arbitration in their statement of claim in suit No. HN/13/77 and in particular paragraphs 37, 38, 39 and 40:-

“(37) The defendants then claimed that the portion of “Ala-Oji” granted to Hyacinth Uzowulu is their own and proceeded to His Royal Highness, M. Udoji the Oluocha of Ihiala and lodged a complaint against Hyacinth Uzowulu.

(38) The plaintiffs were later invited by His Royal Highness J.M. Udoji to his palace on 30th October, 1976 to look into the defendants’ claim and that of Hyacinth Uzowulu.

(39) His Royal Highness J.M. Udoji and his Chiefs visited the site where Hyacinth Uzowulu heaped gravels and sand and listened to the present plaintiffs who showed them the portions granted to the defendants and the portion granted to Hyacinth Uzowulu.

(40) His Royal Highness J.M. Udoji and his Chiefs on the same 30th October, 1976 found in favour of Hyacinth Uzowulu and advised the defendants to keep to the respective portions granted to them by the plaintiffs.

The respondents joined issues with appellants thereat pp 30-31 of the record. In particular paragraphs 40, 41, 42 and 43 are relevant and hereunder reproduced:

(40) The defendants admit paragraphs 37,38 and 39 of the statement of claim and state further that the said Hyacinth Uzowulu and (sic) submitted to the arbitration by Chief J.M. Udoji but failed or neglected to comply with the decision of the Chief and his elders.

(41) The defendants deny paragraph 40 of the statement of claim and have to add that Chief John M. Udoji, Oluocha of Ihiala decided that if the said Hyacinth Uzowulu insisted on his claim over the land, he had to swear for the defendants and thereafter own the said portion he is claiming but if he failed to swear, he would lose every claim over the land.

(42) In further answer to paragraph 40 of the statement of claim, the defendants state that on the day appointed for oath-taking, Hyacinth Uzowulu failed to show up and the defendants reported this to Chief J. M. Udoji who advised defendants to continue in their enjoyment of the said land.

(43) Still in answer to paragraph 40 of the statement of claim the defendants state that what the said Hyacinth Uzowulu did after refusing to swear was to invite the Ihiala Police to arrest the members of the defendants’ family alleging that he dug pipe trenches and they closed it.

The trial court took evidence at the end of which exercise in a considered judgment found for the plaintiffs/respondents in the consolidated action. The defendants/appellants are aggrieved by the decision and thus the instant appeal.

By their notice, the appellants filed three grounds of appeal which are hereunder reproduced with their particulars:-

(1) The learned trial Judge erred in law by holding that he found in favour of the plaintiffs in an alleged arbitration by the Igwe-in-Council when in fact there was no arbitration known to law in the case.

PARTICULARS

(a) The law as stated by the Supreme Court requires five conditions for a good arbitration.

(b) Those conditions were not present in this case.

(c) Swearing a juju is not a condition.

(d) One of the plaintiffs namely P.W.1 was in fact a member of the Igwe-in-Council that allegedly decided in favour of the plaintiffs.

(2) The learned trial Judge erred in law when he said “There is nothing to choose between the two stories” namely between the traditional evidence given by both the plaintiffs, and the defendants.

PARTICULARS

(a) The evidence of the defendants are more probable.

(b) The traditional evidence of the defendants are more straight forward.

(c) The traditional history of the defendants are more in accord with custom.

(3) The learned trial Judge failed to appreciate the evidence of D.W.2 which is against interest and therefore erred in law.

PARTICULARS

(a) D.W.2 is from Elekechem line of Dioha’s children.

(b) D.W.2 gave evidence against their interest.

(c) Learned trial Judge did not show any appreciation.

(d) Learned trial Judge simply waved it that D.W.2.

Parties have, in keeping with rules of this court filed and exchanged briefs which they adopted as arguments for the appeal. At the hearing of the appeal counsel expatiated on some aspects of these briefs.

The three issues formulated in the appellants’ brief of argument are as follows:-

(i) Whether the arbitration so called was a proper arbitration that judgment could be based on it.

(ii) Whether the traditional evidence of the respondents or the lack of it was not enough to get their case dismissed and judgment given to the appellants based on their traditional history.

(iii) Whether from the evidence before the lower court judgment should not have been given to the appellants.

The respondents have six issues for determination. These are:-

(i) Whether oath-taking is not part of the custom and traditional ways of settling disputes after hearing parties in Ihiala.

(ii) Whether by Ihiala custom anybody who after submitting to arbitration and whether resist from complying with the decision and award is not adjudged the loser in the case.

(iii) Whether the preponderance of compelling and laudable testimonies of all the plaintiffs witnesses as opposed to the contradictory, inconsistent, and speculative evidence of the defendants witnesses was not enough to declare the plaintiffs the owners of the land in dispute as the trial Judge rightly did.

(iv) Whether native tribunals in addition to doing justice to the parties concerned are also expected or required to comply with the rules of evidence operating in civil courts of record.

(v) Whether the trial court was not right or legally justified in considering the traditional evidence of the plaintiffs more concerning and probable than that given by the defendants/appellants in the case and

(vi) Whether the family of the appellants would not seek leave concert (sic) to substitute a competent and proper appellants when the appellants on record are all dead.

I have a word or two for the issues which parties to this appeal seek that we consider in the determination of the appeal. Issues, it must be stated, should evolve from the grounds of appeal which inform the notice of the appellant. It has therefore become trite that, in general, issues for determination must be relevant to the grounds of appeal that had been filed in court. Any supposed issue or question for determination which has no reference to any ground of appeal would not be considered by the appellate court. Such an issue or question would be adjudged incompetent and discountenanced. See Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (Pt.49) 284; Azaatse v. Zegeor (1994) 5 NWLR (Pt.342) 76 and particularly the dictum of Belgore, J.S.C. in Alh Animashaun v. University College Hospital (1996) 10 NWLR (Pt.476) 65.

This is the position of the law on issues which are irrelevant to grounds of appeal whether same were framed by the appellants or the respondents.

In the instant appeal, respondents issue, No.6 in particular has some fault. It appears academic, far- fetched and not positively related to the grounds of appeal filed by the appellants. It is instructive to note that the respondents have neither cross-appealed nor filed a respondents, notice. To this last aspect of my observation I might return in due course. The lapse might not readily hit one!

For now, respondents sixth issue might pass for a preliminary objection. The appropriate procedure of raising such an objection is as provided by Order 3 rule 15(1) of the rules of this court as amended. Raising an objection by formulating same into an issue for determination of an appeal offends the enabling rules of court. The appellants in the instant appeal have not been given the notice which the rules of court required of the respondents.

Secondly, the objection alluded to by the respondents goes to the jurisdiction of this court to entertain the appeal and is obviously a matter which once raised requires proper proof. The record of appeal before us does not readily provide the required proof. Thus quite apart from the fact that the objection in the form it was couched has no relevance to the grounds of appeal, it must further be discountenanced for offending the rule of court under which it could have been properly made and sustained. See Okolo v. UBN Ltd. (1998) 2 NWLR (pt.539) 618.

The issues formulated by both parties appear to be prolix and repetitive. In the case of the appellant, his second and 3rd issues seem to repeat themselves and the one can be subsumed in the other. The respondents’ five remaining issues even without further scrutiny are very glaringly more than the number of grounds of appeal that were filed. The essence of formulating questions for determination is to enable parties to an appeal narrow the issues contained in the grounds of appeal. Non-compliance with this ideal requirement is detrimental to accuracy, clarity and brevity, proliferation of questions for determination must be discouraged. See Shell Petroleum Dev. Co. (Nig.) Ltd. v. FBIR (1996) 8 NWLR (pt.466) 256; Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646; and Anie & Ors v. Chief Uzorka & Ors (1993) 8 NWLR (Pt.309).1

The justice of the instant appeal shall be served by a consideration of appellants’ first two issues into which all other formulated issues can be rolled and canvassed.

Under their first issue for determination, appellants contend that the arbitration which the lower court relied upon to find for the respondents did not meet the requirements of a valid arbitration within the contemplation of the Supreme Court’s decision in Ohiaeri v. Akabeze (1992) 2 NWLR (pt.221) 1 at 24. For a trial court to rely on arbitration to determine the rights and obligations of parties before it, five ingredients of the arbitration must be pleaded and established before the court. In the instant case these were neither pleaded nor established to justify reliance on same.

Secondly, a custom which facilitates decision making in conflict resolution only on the basis of swearing on juju as was the case in the instant appeal has not only been adjudged macabre, it has been condemned as being out of time. Learned appellants’ counsel Mr. Anah made his point by citing this court’s decision in Iwuchukwu v. Anyanwu (1993) 8 NWLR (Pt.311) 307.

Counsel further referred to p.58 of the record line 31 to show that P.W.1, the 1st plaintiff was also a member of the Oluoha Council that decided the arbitration in favour of him. The procedure was against natural justice and should not be allowed to form part of our legal system.

Mr. Mbaso for the respondents, in the latter’s brief, submits under this issue, a first in the issues the respondents formulated, that it was part of the custom of the litigants in this appeal to resolve dispute after disputants have been heard in an arbitration. Oath-taking is one of the approved and applied methods of setting such disputes. Counsel conceded that by Akabeze’s case certain ingredients of such arbitrations need not only be pleaded but established before the trial court.

However where such arbitrations took place in native tribunals rather than in regular courts, these requirements are relaxed. The requirements become, in such con, directory and not mandatory. To hold otherwise, counsel submitted, is to cling to technicalities rather than the justice of the case.

Respondents further contend that since appellants had voluntarily submitted to the procedure, they cannot resile from same. Appellants’ argument that the arbitration was trial by ordeal was baseless and the bulk of judicial decisions on the issue of arbitration clearly support the trial court’s conclusion on the issue. The following plethora of authorities were resorted to by counsel: Raphael Agu v. Ikewnibe (1991) 4 SCNJ 56 (1991) 3 NWLR (Pt.180) 385; Ohiaeri v. Akabeze (1972) 2 SCNJ (Pt.1) 76; (1992) 2 NWLR (pt.221) 1; Anosile v. Sotunbo (1992) 6 SCNJ (Pt.2), (1992) 5 NWLR (Pt.243) 514; Njoku v. Ekeocha (1992) 2 ECSLR (Pt.2) 199 and Onwu v. Nka & Ors (1996) 7 SCNJ 240; (1996) 7 NWLR (Pt.458) 1. These decisions, it is submitted, have negatived the impact of Iwuchukwu v. Anyanwu (1993) 8 NWLR (Pt.31l) 307such that the decision has no force of application anymore.

Lastly, it cannot hold that the arbitration has been negatived simply because P.W.1 sat on it. D.W.2 was also a member of the Council which conducted the arbitration. Respondents submit that in Ojibah v. OJibah (1991) 5 NWLR (Pt.191) 296 and Olina & ors v. Obodo & Ors (1958) SCNLR 298, scenerious such as the one against which appellants protested were upheld as valid.

In considering the first issue for determination, resort must be had to parties pleadings the relevant aspects of which I reproduced supra. Two vital facts seem to flow from the state of the pleadings. The plaintiffs/respondents seem to have clearly pleaded these facts in the two suits before same were consolidated. Firstly, they did aver the fact of arbitration which had oath-taking as part of its features. Secondly, there was this averment also which indicated that the arbitration was a feature of the customary practice of the Ihiala people. Defendants/appellants from their pleadings too, joined issues with the respondents thereby calling on the latter to discharge the burden which the law placed on them. The plaintiffs/respondents answered the call through testimonies of some of their witnesses. At p. 57 lines 1934 and p.58 lines 1-4 of the print record P.W.1’s testimony relevant to the issue under consideration speaks for itself. The witnesses testified as follows:-

“The defendants removed the boundary marks on the land. After this we reported to the Oluoha, the ruler of Ihiala, at his palace. All this happened before we took out this action. The Oluoha and his council came to the site where the defendants removed the boundary marks. The Oluoha ordered that the defendants should bring an oath for us to swear and that if we would not swear they should take the land; but if we take the oath, the land should go to the plaintiffs.

On the date the defendants were supposed to bring the oath, myself and 5 other members of my family waited for defendants but they did not show up, so we went and reported to the Oluoha.

The Oluoha said he would give them another date to bring the oath. On the next date the Oluoha gave, the defendants still did not show up. We then reported back to the Oluoha. Later on the Oluoha summoned both parties and we and the defendants came to the palace. He told the defendants that as they failed to bring the oath to us, they should hands off land.”

P.W.1 further at lines 14-17 of p.58 state thus:-

“I know the custom of Ihiala. According to Ihiala custom when someone is required to produce an oath and he fails to do so, his opponent automatically becomes successful in the dispute.”

At the end of his testimonyP.W.1 divulged that he was a member of the very council which found for the plaintiffs/respondents in the arbitration. P.W.3 also gave evidence regarding the arbitration at p.71 lines 25-32 and p. 72 lines 1-14. He said as follows:-

“The dispute started about 15 years ago. I remember it was once tried before the Oluoha the late traditional ruler of Ihiala. I was present then when it was tried. The decision reached at the Oluoha’s Palace was that the defendants should bring an oath for the plaintiffs to swear if they still claim that the land belongs to them. A date was fixed for oath-taking. On the fixed date the defendants failed to bring an oath for the plaintiffs to swear. On the following day the plaintiffs went to the Oluoha to report that defendants failed to turn up. The Oluoha told the plaintiffs to go and that he would send for them. The Oluoha fixed another date for the defendants to bring an oath for the plaintiffs to swear. On fixed day, the defendants again failed to turn up. The Oluoha therefore told the plaintiffs to go and take over the land.

I am about 100 years old now. I know the custom of Ihiala. I am an Ozo Title Holder. Under Ihiala Custom if two persons are disputing and one is asked to bring a juju for the other man to swear upon and he refuses to bring the juju, it is taken that the man who failed to bring the juju for the other to swear upon is in the wrong.”

In a similar way, P.WA at p.77 lines 10-17 testified as follows:-

“I know some customs of Ihiala. Under Ihiala custom when a party to a dispute is asked to bring a juju for the other to swear an oath upon and the person who failed to produce the juju is taken to have runaway and the other party is adjudged to be in the right. To my knowledge, the defendants did not produce a juju for the oath taking at any time. By Ihiala custom the plaintiffs own the land.”

D.W.1 at p. 80 lines 32 – 33 and p. 81 lines 1-15 under cross-examination corroborated the testimonies of P.W.1, P.W.3 and P.W.4. These were his words:

“Yes, I am aware that the Oluoha in Council looked into this present suit before this court. Yes. I attended at the Oluocha’s palace during that arbitration. Yes I remember I am on oath. The Oluoha in Council decided that the Umuobilokwere should bring juju for the plaintiffs to swear upon. According to Ihiala custom, if it is decided that an oath should be produced for a party in dispute, and the other party refused to take the oath, it is taken that those who produce the oath are right in the dispute.

On the other hand if the people who are to produce the oath fail to do so, they are adjudged wrong as it is taken that they developed cold feet because they know they are in the wrong and are therefore afraid.”

D.W.5 gave similar evidence at p.102 of the print record, lines 19-21 and at p. 106 lines 20-21 where under cross-examination he deposed to the fact that arbitrations were common amongst the Ihiala people.

These testimonies formed the basis of the trial court’s decision as reflected at p.156 lines 32-33 and p. 157 line 1 and lines 9 -26 in the following tenor:-

“I have already found that in fact the arbitration took place. The next question is what is the effect.”

“There was evidence that after hearing the report about the defendants’ removal of the boundary marks, the Oluoha visited the land in dispute and then ordered the defendants to produce an oath for the plaintiff to swear upon. It was at that stage that defendants’ resiled by refusing to produce the oath.

It is in evidence that the practice of the Oluoha-in-Council is to discuss the case of parties before the Oluoha announces the decision. It is also in evidence that 1st plaintiff and 5th defendants are members of the Oluoha’s Cabinet.

On the authority of Ume v. Okoronkwo (1996) 12 SCNJ 404, (1996) 10 NWLR (Pt.477) 133 the arbitration must be taken as valid and as having gone against the defendants.

The judgment of the court is that the defendants cannot resile from that decision. Consequently, the claim of the plaintiffs in HN/13/77 succeeds and that of the defendants in HN/43/76 fails.”

My understanding of the trial court’s decision follows shortly. Firstly, the court had accepted as a fact that the arbitration had taken place. Secondly, the occurrence of the arbitration constitutes a bar to the defendants/appellants. They can neither deny the fact of its occurrence nor dispute the decision reached consequent upon the arbitration. Thirdly and resultantly, it was the court’s view that it was futile for the defendants to press a claim that had hitherto been so resolved. In essence the court’s view is that there was effective estoppel by virtue of the arbitration that had not only been pleaded but considered proved by the trial court.

Strenuous effort has been made by appellants’ counsel to urge that the arbitration so acted upon by the trial court was incapable of sustaining the judgment so advanced. I have a different view.

Our courts have for long recognised the binding force of customary arbitration if the procedure adopted manifest certain essential ingredients. See Onwuanumkpe v. Onwuanumkpe (1993) 8 NWLR (pt.310) 186; Awosile v. Sotunbo (1992) 5 NWLR (Pt.243) 514 and Ohiaeri v. Akabeze supra. A consideration of the characteristics of the arbitration in the instant case against the background of these authorities makes the submissions of learned respondents’ counsel as to its validity and reliability irresistible. Indeed, they were unassailable.

It has become trite that where parties to a dispute by consent submit themselves to a domestic arbitral forum in accordance with the customary practice and usages of the disputants and as a result of investigation, a settlement was reached through the published decision of the forum, such a decision binds the disputants and is as conclusive as any decision of a legally constituted court in the country. The courts have over the years enforced such customary arbitral decision. See Onwu v. Nka (1996) 7 NWLR (Pt.458) 1 at 17.

In the case at hand, it is glaring that the disputants had voluntarily referred their differences, as they were wont to in such situations to their traditional ruler. The detailed procedure culminating in oath-taking which characterised the arbitration had been deposed to by the witnesses. It was appropriate for the trial court to enforce a decision so arrived at. Appellants cannot be allowed to recoil from the decision of the forum which by custom was invested with judicial aura. See Ojibah v. Ojibah (1991) 5 NWLR (Pt.191) 296.

I am unable to agree with learned appellants’ counsel’s submission that by virtue of the decision in Iwuchukwu v. Anyanwu (1993) 8 NWLR (Pt.311) 307 oath-taking should not be part of the process of decision making. One is compelled to reproduce the dictum of Ogwuegbu, J.S.C. in Ume v. Okoronkwo (1996) 10 NWLR (Pt.477) 133 at 144 referred to by learned respondents’ counsel for its aptness. The learned justice held thus:-

“Oath-taking was one of the methods of establishing the truth of a matter and was known to customary law and accepted by both parties. The 1st defendant only resiled after the arbitrators had made their awards by refusing to produce the “juju”. It was not open to them to do so at that stage.”

It must be emphasized that what the appellants sought to ascribe to the decision in Iwuchukwu v. Anyanwu supra was never the ratio in the case. If ever it was, and it was not, it would stand in violent conflict with the decision in Ume v. Okonkwo supra which is a decision of the Supreme Court. Should a situation like this arise, this court would certainly be wrong to bind itself to its conflicting decision no matter how correctly concieved. An exposition of the law by the Supreme Court on the same subject matter must be applied and allowed to prevail. See Prince JS Atolagbe and Anor v. Alhaji Ahmadu Awuni & 2 Others (1997) 7 SCNJ 1 at 20; (1997) 9 NWLR (pt.522) 536; Sadikwu v. Dalori (1996) 5 NWLR (Pt.447) 151; Nelson v. Ebanga (1989) 8 NWLR (pt.563) 701.

In my consideration of this first issue for determination, I would finally treat the appellants’ argument in their reply brief. In it, appellants have re-emphaized that it is legally inappropriate for a person to be a Judge in his own cause.

Appellants contend that because P.W.1 was a member of the Oluoha’s council and had participated in the deliberations of the council during the arbitration, the rules of natural justice had been breached. This breach had rendered the arbitration void. This cannot be so.

It is equally discernible from the record of appeal that D.W.2 too was a member of the same council at the same time as was P.W.1 and had participated in the deliberations of the council too during the same arbitration. Whatever disadvantage the participation of P.W.1 would appear to have generated, the role played by D.W.2 in the same process must be deemed to have erased the lapse.

Most importantly, the fact that the parties to the arbitration had themselves consented to and submitted their matter for settlement to such an imperfect outfit, none of them should be allowed to resile from the decision on the basis of a subsequent complaint of an imperfection which all the parties were initially aware of and by their very conduct heralded.

Still on this aspect of the appellants’ vehement objection, I agree with the respondents that the arbitration being a customary one, it would be asking for too much to expect that such outfits comply fully with the concepts and rules of justice which courts of record religiously adhere to. It is little wonder that our statute books are replete with legislations such as the Anambra State Customary Courts Edict No.6 of 1984 in respect of courts duly constituted to adjudicate over local customary matters. By s.20 of the said Edict, decisions of these courts are saved on the basis of their substance rather than their form. In substance, the arbitration relied upon by the lower court had met the justice of its occasion and it should be the duty of our courts to give effect to it.

Appellants in the reply brief attempted to raise a question regarding their first issue which does not seem to have been raised at the lower court. It was contended, in the reply brief, that the respondents who were to swear with the juju were Christians and like Muslims swearing with juju was never part of their custom. I must unhesitatingly say that it is belated to raise this question at this level. Issues were not joined on the point that respondents being Christians were incapable of taking oath. Evidence was not led in proof of the contention. Appellants can only be entitled to challenge the trial court’s judgment on the ground the basis of which the judgment was decided. Parties on appeal would not be permitted to raise a matter on which there were neither pleadings nor evidence in proof of the required pleadings except of course the matter is such as went to the root of the jurisdiction of the trial court. Appellants must be reminded that without the leave of this court they cannot be heard on a matter that had not been considered by the lower court. Ours at this level is to entertain complaints and grievances against decisions from the court below. See Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385 at 403; Oguma v. IBWA Ltd (1988) 1 NWLR (pt.73) 658; Stool of Abinabin v. Enyimadu 12 WACA 171 and Kate Enterprises Ltd. v. Daewoo Nigeria Ltd. (1985) 2 NWLR (Pt.5) 116 at 125.

It must have become obvious by now that appellants arguments in respect of their 1st issue, our first issue for determination in this appeal is bereft of our blessing. I am unable to resolve the first issue in their favour. The first ground of appeal has therefore failed.

Each set of the parties to this appeal has urged that the evidence of traditional history adduced at the trial court was such that entitled them to the verdict of that court. This the appellants say they were denied. The appellants have argued that respondents case was that the land in dispute, Okohia, was acquired by conquest and by their progenitor Elekechem. Yet P.W.2 in his testimony at p.67 lines 29-32 of the record testified that the Dioha was part of the acquiring process. This, the appellants argue, was a new case that supported the appellants’ case. Furthermore, at p. 29 lines 21-23 respondents had testified inspite of the pleadings that Elekechem founded the land in dispute, that they started inhabiting the land in dispute in 1930. In effect, appellants argued, the evidence of the plaintiffs/respondents was at variance with the pleadings which formed the basis of their case. The evidence adduced must only be in proof of same. But not so with them. Respondents’ case must be deemed to have collapsed. It was wrong to have allowed them to make a case contrary to their pleadings. Appellants rely on the decisions in Egonu v. Egonu (1978) 11 and 12 SC 111 at 135 Emegokwue v. Okadigbo (1973) 3 ECSLR 267(1973) 4 SC 113 and Ohiaeri v. Akabaze (1992) 2 NWLR (Pt.221) 1 at 27.

Appellants re-emphasized the point on the variance that occurred between the pleadings of the respondents and their evidence at trial in their reply brief. Not unexpectedly, respondent countered that the totality of the evidence adduced by the parties must be considered as rightly done by the trial court before arriving at the decision it did. In finding for the respondents, after the court had evaluated the entire evidence before it, which examination was properly made, the court was quite in order to have found for the plaintiffs/respondents as such. Most importantly, respondents further contend, the issue of arbitration that had been pleaded by them was incontrovertibly proved and it was glaring that the court’s decision was essentially founded on the fact of the arbitration. Respondents’ further contend that the slip of P.W.1 in his evidence cannot be singled out and considered in isolation. The totality of the evidence before the court must and this was so considered by the trial court in arriving at the decision it gave. The trial court accepted the evidence of the respondents in preference to the lack – lustre case of the appellants. In this the court was right. Respondents urge that the decision was beyond reproach.

It does occur to me that in case where parties relied on traditional history to prove events that occurred, sometimes going back to centuries, the resolution of the conflict often revolved on which of the two sides the trial court chose to believe. The overriding consideration is that of the credibility of the witnesses and the extent of truth embeded in a party’s case as deposed to by these witnesses. Yet in truth these witnesses were never eye witnesses to the actual event. They were neither part of the process nor did they experience the fact of initial presence and domination over the land. In a situation such as this and this applies to the instant appeal, the trial court was in the pre-eminent position to evaluate the evidence deposed to in the light of the credibility of the witnesses. It had the opportunity of seeing and assessing them as to the truth they spoke. It is only where the court failed to take advantage of the unique opportunity it had of conducting such evaluation or arrived at a perverse conclusion consequent upon an evaluation that the appeal court interferes. The appeal court is bound to make the correct finding after an evaluation exercise. A plethora of authorities abound on this age long problem such that the principle of law on it has become trite. See Adegoke v. Adibi (1992) 410 SC (1992) 5 NWLR (Pt.242) 410 SC; Okoro v. State (1988) 5 NWLR (Pt.94) 255 SC; Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377 SC; UBN Plc v. Borini Prono & Company Ltd. (1998) 4 NWLR (Pt.547) 640. I am at one with respondents’ counsel’s submission that in arriving at a decision a court is under duty to consider the totality of the evidence before it. See Karibo v. Grend (1992) 3 NWLR (Pt.230) 426 SC; Ogunieye v. Oni (1990) 2 NWLR (pt.135) 745 SC.

In the instant appeal I am unable to uphold the appellants’ submission that in its evaluation of the evidence deposed to by parties, the trial court had erred. I remain unimpressed that the court’s finding at p.153 of the record to the effect that “either side could well be right. There is nothing to choose between the two stories” can be invoked to disparage a decision that was informed by a totally different conclusion.

It must be said that the passage was slanted out of its proper con. My understanding of the passage is that the finding related to the aspect of the evidence of traditional history adduced by both parties in proof of their respective cases. What cannot be disputed however was the fact that in addition to the case of entitlement to the land through inheritance, the fact that there was arbitration in respect of the same land between the parties had also been pleaded. And evidence was led in proof by the respondents. This piece of evidence was still part of the plaintiffs/respondent’s case. It made the difference between the case of the two sides. The trial court’s decision was based on this difference. The court was right to have acted on the difference in the weight of the cases of the two sides. That was the result of the trial court’s use of the “imaginary scale.”

The second issue, for the foregoing, is also resolved in favour of the respondents. There is no merit in the appeal. The decision of the trial court is hereby affirmed. N3,000.00 cost is awarded in favour of the respondents.

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Other Citations: (2000)LCN/0798(CA)

Chief J. E. Ukusare & Ors. V. Chief Murphy Ejumudo & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

By a writ of summons and amended statement of claim dated 13/1/92, the appellants as plaintiffs commenced an action at the Effurun High Court against the respondents as defendants claiming against them as per paragraph 29 of the amended statement of claim as follows:-

“29. WHEREFORE, the plaintiffs claim as follows:-

1. A declaration that by virtue of the facts/proceedings of suit No.W/12/71 and the agreements dated 1/3/74, 10/3/74. 16/3/74 and 15/4/74 thereon the plaintiffs are persons entitled to statutory right of occupancy over the piece or parcel of land lying and situate in Otorkporo and Okoribi in Effurun within the jurisdiction of this Honourable court.
2. A declaration that by peace agreement entered into on 10th March, 1974 which ratified those of 15/4/73 and 1/3/74 between the two families (plaintiffs and defendants), and the judgments referred to in relief (1) above, the verdicts in both suits W/127/74 and W/48/74 delivered 10/11/87 and 22/12/75 respectively were obtained by fraud/misrepresentation. They are therefore null and void.
3. A declaration that by the aforementioned judgment in relief (1) above and the said peace agreement the verdicts in suit No. W/127/74 and W/48/74 are caught by the doctrine of estoppel by conduct and representation as the issues involved in the said suits were the same in the peace agreements out of fraud/misrepresentation the defendants in the suit surreptitiously hid the facts of the existence of the peace agreements and/or judgment in relief (1) above.
4. A declaration that having regard to misrepresentation of facts of descent Eleri-Avbobonyeta being claimed to have the statue of family in Uvwie when in fact they have neither father or mother in Uvwie (being strangers) the verdict W/48/74 and W/127/74 were given in error. The strangers lack ancestral right to back the claim, and they did not buy.
5. A declaration that having regard to gross misrepresentation and/or fraud committed by defendants coupled with the existence of judgments and proceedings above as well as limitations set in peace agreement. Above judgments in Suit Nos.W/48/74 and W/127/74 were delivered in error and should be set aside.
6. A declaration that only Otorkporo land was disputed (not Okoribi) and that it is misleading (which is different or fraudulent for defendants to deny or ignore the existence of Adaze and Otorkporo Shrines owned and served by Ogbe on the lands.
7. A declaration that the Adaze shrines and Otorkporo shrines as well as Ogbe descendants long standing buildings in the area like those of Ukusare, Nikoro fairs and tenants constitute acts of possession apart from various crops, economic trees or other uses to which Ogbe had put his land.
8. A declaration that verdicts W/48/74 and W/127/74 were misled to the extent of various misrepresentation by defendant.

(a) By linking Okoribi with Otokpiri.

(b) By ignoring and denying Ogbe act of possession

(c) By falsifted and incorrect ancestral history.

(d) By existence of facts cited and acknowledged in an earlier suit W/12/11 -the entire community leadership under Late Chief Agbamu/Ayuluhu acknowledging Ogbe (Nikoro) ownership of all their lands East of old Kwale or Ugbomro Road.

(e) by fraudulent use of joint Plan LSU 960 against Ogbe despite modification in peace agreement referred to above.

9. A declaration that verdict W/48/74 AND W/127/74 are ipso facto reversible, not being validly based ill the light of reliefs 29 (7, 8, 9 above) herein enunciated.
10. An order of interlocutory injunction restraining the defendants, their agents or privies from carrying out any acts of trespass by way of leasing or doing anything to plaintiff’s tenants or their properties pending the determination of this suit.
11. An order of perpetual injunction restraining the defendants, their agents, or privies from carrying out any acts of trespass by way of leasing or doing anything to any portion of the said land or quitting or doing anything to any of plaintiff’s tenants or their properties on the said land.

In their reaction, the respondents herein, as defendants filed a statement of defence dated 18/10/91, denying the claims and in paragraph 23 of the statement of defence pleaded that if anybody is caught by the doctrine of resjudicata, estoppel and standing-by, it is the plaintiffs who being members of Ogbe family of Effurun, cannot relitigate the issue of ownership and possession of any inch of Otorkporo land in Effurun as a result of the judgment in Suit No.W/48/74 tied to survey plan No.LSU: 960 dated 23rd June, 1974 on which the defendants now also rely at the hearing of this suit.

The appellants as plaintiffs/applicants filed a motion dated 7/5/93 before the High Court, praying for an order of interlocutory injunction. The motion was supported by a 19 paragraphs affidavit sworn to by one Chief J. E. Ukusare, the first plaintiff/applicant, it was deposed as follows:

“1. That I am the first plaintiff/applicant in this suit and the present head of Ogbe family of Effurun.

2. That I swears to this affidavit with the consent and authority of the other plaintiffs/applicants,
3. That the plaintiffs/applicants herein sued the defendants/respondents in this suit claiming the following in it:-
4. A declaration that by virtue of the facts/proceedings of suit No.W/12/71 and the agreements dated 1/3/74, 16/3/74 and 15/4/74 thereon the plaintiffs are persons entitled to statutory right of occupancy over the piece or parcel of land lying and situate in Otorkporo and Okoribi in Effurun within the jurisdiction of this Honourable Court.
5. A declaration that by peace agreement entered into on 10th March, 1974 which ratified those of 15/4/73 and 1/3/74 between the two families (plaintiffs and defendants), and the judgments referred to in relief/above, the verdicts in both suits W/127/74 and W/48/74 delivered 10/11/87 and 22/12/75 respectively were obtained by fraud/misrepresentation, They are therefore null and void.
6. A declaration that by the aforementioned judgment in relief (1) above and the said peace agreement the verdicts in Suits W/127/74 and W/48/74 are caught by the doctrine of estoppel by conduct and representation as the issues involved in the said suits were in the said peace agreements.

Out of fraud/misrepresentation the defendants in the suit surreptitiously hid the facts of the existence of the peace agreements and/or judgment in relief (1) above.

4. A declaration that having regard to misrepresentation judgment of facts of descent Eleri-Avbobonyeta being claimed to have the status family in Uvwie (being strangers) the verdict W/48/74 and W/127/74 were given in error. The stranger lack ancestral right to back the claim, and they did not buy.
5. A declaration that having regard to gross misrepresentation and/or fraud committed by defendants coupled with the existence of judgments and proceedings W/12/71 (1) above as well as limitation set in peace agreement (2) above judgments in suit No.W/48/74 and W/127/74 were delivered in error and should be set aside.
6. An order of interlocutory injunction restraining the defendants, and their agents or privies from carrying out any act of trespass by way of leasing or doing anything to any portion of the land or quitting or doing anything to plaintiff’s tenants or their properties pending the determination of this suit.
7. An order of perpertual injunction restraining the defendants, their agents or privies from carrying out any act of trespass by way of leasing or doing anything to any portion of the said land or quitting or doing anything to any of plaintiff’s tenants or their properties on the said land.
8. That pleadings have been exchange in this suit and survey plans have been filed.
9. That since the inception of this my case and after exchange of pleadings, we recently discovered to our dismay that the defendants/respondents are still carrying out act of trespass on the said pieces or parcel of land.
10. That the defendants/respondents have started alienating/leasing some portions of the pieces or parcel of land involved in this suit.
11. That some of such alienation/leasing are as follows:-
12. Recent buildings being put up by an Isoko man and another by an Ibo man at Orokpagha are in Erovie quarters Effurun.
13. Several buildings springing up at Ukperugelete in Erovie quarters Effurun.
14. Several buildings springing up at Egborowere area in Erovie quarters, Effurun.
15. That we found as a fact that all the development enumerated above which have not reached completed stage were as a result of recent leases made to various persons sometimes last year.
16. That we confronted the various persons and in attempt to stop them from further development, the thugs of defendants/respondents came after us brandishing cutlasses and drove us away.
17. That as law abiding citizens we refused to trade sword for sword.
18. That we thereafter reported the matter to our solicitors Chief E. L. Akpofure who informed us and we verily believed him that an order of interlocutory injunction is necessary to stop the defendants/respondents from carrying out any further acts of trespass.
19. That in hearing this application we shall be relying on plan filed in this suit.
20. That our aforementioned solicitor informed us and we verily believed him that an order of this Honourable Court is required in restraining defendants/respondents from carrying out any further acts of trespass, leasing, alienation or doing anything whatsoever inconsistent with the rights of the applicants pending the final determination of the suit.
21. That unless the defendants/respondents are restrained they would have completely alienated or leased out the entire piece or parcel of land which is the subject matter of this suit, before this suit would be determined.
22. That it is necessary to preserve the subject matter of this suit pending its determination.
23. That we shall suffer irreparable damage and loss which cannot be quantified in monetary terms if this application is refused.
24. That the balance of convenience is in our favour.
25. That the defendants/respondents shall not be prejudiced if this application is granted.

Sequel to this, the respondents, filed a Notice of preliminary objection praying for the dismissal of the suit on the grounds-

“(a) The suit is incompetent as it is caught by the doctrine of res-judicata and/or issue estoppel by reason of Suit No.W/48/74 decided by Honourable Justice S. O. Uwaifo on 22/12/75 which went on appeal to the Supreme Court in Appeal No. Sc. 265/1976, paragraph 8 of the statement of defence filed on 18/10/91 refers.

(b) The plaintiffs/applicants conceded the entire Otorkporo which is made up of two large parcels and/or areas of land, namely, Okoribi and Udumurie and shown in survey plan No.LSU 960 to which the said judgment was tied to the defendants/respondents in the above suit, namely suit No. W/48/74 marked as Exhibit ‘A’ and the enrolment of the Supreme Court order in SC.265/1976 dismissing the appeal by plaintiffs/applicants herein on 29th March, 1978 as Exhibit ‘B’.

(c) There must be an end to litigation and plaintiffs/applicants must not be allowed to relitigate the issue of ownership and possession of Otorkporo land in Effurun again as they did in Suit No. W/127/74 also decided against them or a member of their family as per the judgment/ruling of M.O. U. Odita J. on 10/11/87. The said Ruling is attached hereto and marked as Exhibit ‘C’.

(d) The applicant are in the present suit claiming Okoribi and Otorkporo again. Paragraph 6 of their amended statement of claim filed on 24/ 2/92 refers. Otorkporo and Okoribi are clearly shown in plan LSU 960 dated 23/6/74 pleaded in paragraph 23 of the statement of defence and on which defendants/respondents will rely at the hearing of this motion.

(e) Plaintiffs/applicants are bound hands and feet by the above judgments/ruling and they have no escape route whatsoever. Hence, their totally misguided claim and/or suit ought to and indeed should be dismissed with substantial and/or punitive costs.

In response to the appellants’ motion, the respondents filed a counter-affidavit of 16 paragraphs along with their notice of preliminary objection, sworn to by one Adibu Aghoruntse, which reads as follows:-

“1. I am the 2nd defendant/respondent in this totally misguided application and I depose to the facts contained in this counter-affidavit from my own personal knowledge of the facts and issues in this suit/application with the consent, concurrence and/or authority of my co-respondents and entire members of Eleri/Avbobonyeta family of Effurun.

2. I have read and thoroughly grasped the contents of the false affidavit sworn to by Chief J. E. Ukusare who has refused to state clearly where he lives or resides in Effurun in purported support of his still-born application and I depose to the facts in this counter-affidavit in correction of the several false and misleading averment in the said affidavit.
3. paragraph one of the said affidavit is false as Chief J. E. Ukusare is not the head and had never been the head of Ogbe family as I know the members of Ogbe family with whom my own Eleri-Avbobonyeta family had several cases over the years Chief Awinoron and Chief Ofugbe Ajoboreya who is also a member of Ogbe family and who is the 5th defendant/respondent herein are by far senior and older than Chief J. E. Ukusare.
4. Paragraphs 2 and 3 in particular which contain several bogus claims are false and are denied. I and my co-respondents are not parties to or aware of the agreements dated 1/3/74, 10/3/74, 16/3/74 and 15/4/74 vaguely referred to and not exhibited by the applicants in their affidavit.
5. There is no peace agreement dated 10th March, 1974 which ratified others dated 15/4/74 and 1/3/74 between my family and applicant’s family which can suspercede the judgment of the Supreme Court of Nigeria and/or at all.
6. The judgments in Suit No. W/48/74 and W/127/74 were regularly obtained against the plaintiffs/applicants family represented by counsel and with their eyes wide open. No fraud and/or misrepresentation was practised or used by either sides to the said judgments. I attach hereto and mark as Exhibits ‘D’, ‘E’ and ‘F’ the statement of claim and statement of defence in Suit No.W/48/74 and a deed of lease dated 11th January, 1977 by which London Oboro the 4th plaintiff/applicant herein witnessed the lease by me and another member of Eleri/Avbobonyeta family of Effurun as LESSORS of a plot in Otorkporo land to one Madam Mary Jenrena of Usiefrun respectively long after the above judgments in 1974.
7. Paragraph 4 of the affidavit is true save and except that this application filed when this case had on 7/5/93 been fixed by this Honourable Court for hearing on 8/7/93 is merely intended to delay the trial as well as being an abuse of the process of this Honourable Court.
8. Paragraphs 5, 6, 7 and 8 of the supporting affidavit are false and not true at all. Applicants are not in possession of any inch of Otorkporo land in Effurun. From time immemorial and particularly since the judgments of the High Courts and the Supreme Court referred to in sundry paragraphs of this counter-affidavit the respondents Eleri Avbobonyeta family of Effurun have always been in total exclusive and undisturbed possession of every inch of Otorkporo land in Effurun. Anybody on the land without the consent of the respondents is a trespasser.
9. In further answer to paragraphs 5, 6, 7 and 8 of the said affidavit. Respondents have several tenants in Otorkporo land whose houses have been completed several decades ago and not just rushing up any building since the filing of this bogus suit. Exhibit “F” signed by the 4th plaintiff/applicant as a witness to one of our tenants since 1977 as averred in paragraph 6 of this counter-affidavit refers.
10. Paragraphs 9 and 10 of the supporting affidavit are patently false and paragraph 9 of this counter-affidavit is hereby repeated. Applicants have nothing in Otorkporo land which they can legitimately protect. Applicants are miscreants whose stock-in-trade is trouble making and illegal sales of other people’s land in Effurun including those over which judgment of the highest court in the land had been entered against them.
11. Applicants did not tell their counsel their true position about Otorkporo land over which there has been several judgments of courts of competent jurisdiction against them and they have themselves to blame for misleading their counsel. Hence paragraph 11 of the supporting affidavit is false and not true at all.
12. The plan filed by the applicants in support of their claim has many distorted features but it covers the same area of land in Survey Plan No.LSU Nos. 960 dated 23rd June 1974 to which judgments in Suit Nos.W/48/74 on appeal No.SC.265/1976 and W/127/74 were tied.
13. In answer to paragraphs 13 and 14 of the supporting affidavit, applicants have lost all round and up to the Supreme Court of Nigeria they have no right left in Otorkporo land Effurun the land in dispute in this case to protect. I am informed by our solicitor Chief J. J. A. Rerri of Uuwu-WE-WE Chambers, Warri and I verily believe him that no court of justice can grant or make an order of interlocutory injunction in favour of the applicants having regards to the over-whelming evidence against the applicants as contained in Exhibits “A”- “F” in this counter-affidavit.
14. Paragraphs 15, 16, 17 and 18 of the supporting affidavit are false.

Applicants who are neither in possession of the land in dispute nor own anything in it will not suffer any loss or damages talk less of irreparable loss. It is the respondents whose tenants have been and are all over the land for decades including commercial and industrial companies which stoppage cannot be compensated in monetary terms that will suffer more if on the most unlikely event this application is granted.

15. The applicants most of whom are living from hand to mouth cannot afford the magnitude of compensation that may result even if it could be quantified in monetary terms.
16. I make this counter-affidavit in good faith and to the best of my knowledge, information and belief in correction of the countless false and misleading averments in the supporting affidavit and in STIFF OPPOSITION to the totally unmeritted reliefs and/or prayers in the motion paper”.

The preliminary objection was argued on 4/10/93 and in reserved Ruling delivered on 30/3/94, the learned trial Judge, Bozimo, J. upheld the plea of res judicata and dismissed the appellants’ claims. Dissatisfied by the ruling the appellants have filed a Notice of appeal to this court, dated 8/4/94, containing 3 grounds of appeal from which the sole issue formulated for the determination of this court which reads thus:-

“Was the trial Judge right in Law when he held that this action is caught by the doctrine of res judicata and issue estoppel.”

The respondents raised two issues for determination in their brief of argument as follows:-

“1. Whether the learned trial Judge was justified in dismissing the appellants’ motion for an interlocutory injunction and then striking out plaintiffs/appellants’ claim for want of jurisdiction because of the defence of res judicata and issue estoppel, raised by the respondent?

2. Whether the plaintiffs/appellants had established a prima facie case of fraud and mis-representation in this case which the learned trial Judge failed to consider in favour of the appellants.”

When the appeal came up for hearing on the 21/2/2000, both counsel adopted their respective briefs and advanced oral argument in elaboration of their respective briefs.

Before proceeding to determine the appeal, I will first dispose of the preliminary objection raised in this appeal by the learned counsel for the respondents. I have carefully considered all the 7 grounds of objection and I do not agree with the learned counsel for the respondents that the sole issue formulated on the two grounds of appeal is incompetent as the two grounds of appeal are competent. In fact, the learned counsel for the respondents, who did not file a cross-appeal relied on the two grounds of appeal in formulating the two issues for determination in this appeal. The preliminary objection is therefore overruled and dismissed for lack of merit.

In support of the only issue for determination in this appeal, Chief E. L. Akpofure, learned Senior Advocate of Nigeria, for the appellants, submitted in the appellant’s brief that the present suit which forms the subject matter of this appeal is not caught by the doctrine of res judicata nor estoppel, He contended that for the doctrine of res judicata to operate, the parties, the subject matter, the cause of action, the relief being sought and the issues must be the same. In addition, the judgment must be final and decided by a court of competent jurisdiction. Learned Senior Advocate of Nigeria, further submitted that for a plea of res judicata, to succeed, all the stated conditions must be satisfied. He pointed out that the subject matter in Suit No. W/42/91, which resulted in this appeal, is clearly spelt out in paragraph 29 of the amended statement of claim at page 26 of the record and the conditions for a successful plea of res judicata have not been satisfied as the case under consideration is different from the two suits (W/48/74 and W/127/74) whose judgment are claimed by the respondents to act as res judicata. Learned Senior Advocate of Nigeria, referred to the claim in Suit No. (W/48/74, the judgment of the learned trial Judge, S. O. Uwaifo, J. (as he then was) at page 38 of the record as well as the ruling in the instant case at page 67 of the record and submitted that it is clear that the judgment in Suit W/48/74 is tied only to Otorkporo land but not inclusive of Okoribi. He pointed out that the appellants in the present suit that gave rise to this appeal, filed Plan No.AJ. BD 165LD wherein this Otorkporo land is clearly demarcated and shown while in Suit W/127/74, the plaintiffs therein claimed for a declaration of title to all that piece or parcel of land which was the subject matter of suit W/48/74 then pending in this Honourable Court lying and situate in Otorkporo in Effurun in Ovwie clan and the area shown in survey Plan filed by the plaintiffs in support of the action; annual rent of N24.00; N300.00 general damages for trespass against 7th and 8th defendants jointly and severally and perpetual injunction and submitted that is clear that the subject matter in Suit W/127/74, is a declaration of title to a piece or parcel of land lying and situate at Otorkporo as shown at page 45 of the record. Learned Senior Counsel, emphasized that there is a difference between obtaining judgment in respect of a piece or parcel of land lying and situate at Otorkporo and obtaining judgment over the entire land called Otorkporo. He explained that whilst the judgment obtained in the former is limited to a piece or parcel of land, the latter embrace the entire land and that judgment in Suit No.W/48/74 related to title to parcel of land lying and situate in Otorkporo.

Learned Senior Advocate further submitted that the judgment in Suit No.W/48/74, is not a judgment embracing the whole of Otorkporo land except the area specially spelt out in the survey plan LSU 960 and that judgment also in Suit No.W/127/74 is tied down only to a piece or parcel of land at Otorkporo but the judgment does not embrace the whole of Otorkporo land.

Concluding his submission, learned Senior Advocate of Nigeria, submitted that the reliefs in this suit that gave rise to this appeal are distinct and different from the declaration sought, in respect of Suits Nos. W/48/74 and W/127/74 and therefore, the learned trial Judge, erred in law when he held that this suit was caught by the doctrine of res judicata and urged us to allow the appeal.

In the respondents’ brief, Chief J.J.A. Rerri, for the respondents, submitted that the learned trial Judge was justified in dismissing the appellants’ motion for interlocutory injunction and then striking out their entire claim in this suit for want of jurisdiction on the grounds that that claim is caught by the doctrine of resjudicata and issue estoppel. He contended that the conditions for the doctrine of resjudicata to operate were fully present in the instant case in that the parties in Suits Nos.W/48/74 and W/127/74 and those in this suit are the same viz. Ogbe family of Effurun v. Eleri-Avbobonyeta family of Effurun. That the subject-matter, the cause of action and the reliefs are the same. He explained that it was for these reasons that the learned trial Judge held that there must be an end to litigation. As the appellant formulated only one issue for determination, I do not find it necessary or relevant to consider the respondent’s second issue. Consequently, I will proceed to determine the appeal on the appellant’s sole issue. In order to ascertain the claims in Suits Nos. W/48/74, W/127/74 and W/42/91, upon which both parties rely in their submissions in this appeal, it is pertinent to reproduce the claims for easy examination and comparison. The reliefs being sought for in suit No.W/42/91 had already been reproduced in this judgment. The claim of the plaintiffs in Suit No. W/48/74 is at page 37 of the record as follows:-

“1. Declaration of title to a piece of land;

2. N400.00 (Four hundred naira) general damages;
3. Perpetual injunction against defendants.”

The learned trial Judge, Uwaifo, J. at the same page 37 of the record, restated the claim and at page 38, stated as follows:-

“In the circumstances, I hereby declare title to and over the land shown on survey plan No. LSU 960 and therein verged Green in favour of the plaintiffs for themselves and on behalf of the Eleri Avboronyeta family of Effurun.

I also order perpetual injunction against the defendants representing themselves and the Ogbe family of Effurun in respect of the land in question. The claim for damages is however dismissed.”

The claim of the plaintiffs in Suit No.W/127/74 as stated at page 45 of the record is as follows:-

“1. A declaration to all that piece or parcel of land (which was the subject matter of Suit No.W/48/74 then pending in this Honourable court lying and situate in Otorkporo in Effurun in Ovwie clan within the jurisdiction of this Honourable court. The area and extent of the said land are shown on survey plan filed by the plaintiffs in support of this action. The annual rental is N20.00 (Twenty naira).

2. N300.00 general damages for trespass;
3. Against 7th and 8th defendants jointly or severally the sum of N15,000.00 general damages for trespass;
4. perpetual injunction.”

The learned trial Judge in her ruling at pages 67-68, said:

“I have looked at the Exhibits A-C attached to the preliminary objection and in no where was any reference made to Okoribi land. In Exhibit A, the judgment of S. O. Uwaifo J. as he then was, the court described the defendants claim who were then plaintiffs. The court said at page 1 lines 21-23 and page 2 lines 21-23 and page 2 line 1 thus:-

“The plaintiffs in their claim ask for a declaration of title to the parcel of land lying and situate in Otorkporo in Effurun in Uvwie clan as per survey plan No. LSU 960 wherein the land claimed is verged green”. This claim is also reflected in Exhibit C at page 7 lines 7-8.

Does failure to Exhibit the plan No. LSU 960 affect defendant?

To my mind, it does not, as the plaintiffs before me who were defendants in Suit No. W/48/74 cannot deny knowledge of that plan as Evidence from Exhibit A. There, Uwaifo J. said at page 2 lines 3-6.

The defendants in their statement of defence have admitted that the plaintiffs are the owners of the land in dispute. They accept the said plan No. LSU 960 to represent the true and correct extent. This no doubt defeats the argument of E. L Akpofure that the plan No. LSU 960 dated 23/6/74 ought to have been exhibited.”

In Udo v. Obot (1989) 1 NWLR (Pt.95) 59, 76-77, Karibi- Whyte, JSC fully explained the nature and extent of the aspect of the doctrine of estoppel per rem judicata which I find relevant and helpful in the determination of this appeal. At pages 76-77, Karibi-Whyte, JSC, had this to say:-

“There appears to be some misunderstanding on the real nature and scope of the doctrine of estoppel per rem judicata relied upon. I therefore briefly state the nature and scope of the aspect of the doctrine applicable. The doctrine of estoppel operates in three different circumstances. It applies to parties in litigation or their privies in respect of matters raised and finally distinctly decided. It may also apply in issues in litigation which merely form part of matters to be decided. It may also arise by conduct of the parties.

We are concerned in this case with the first circumstance referred to as estoppel per rem judicatam. Section 53 of the Evidence Act provides as follows:

“Every judgment is conclusive proof as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved’.

In Ikpang & Ors v. Chief San Edoho & Anor. (1978) 6 & 7 SC 221 Aniagolu, J.S.C. said:

“It is fundamental law that to sustain a plea of res judicata in a case the party raising the plea must show that the parties, the issues and the subject matter of the current case are the same as in the previous case adjudicated by a court of competent jurisdiction before whom the proceedings terminated to finality. Put in another way, a final judgment already decided between the same parties or their privies on the same question by a legally constituted court having jurisdiction is conclusive between the parties and the issue cannot be raised again.”

In New Brunswick Rail Co. v. British and French Trust Corporation Ltd. (1939) AC 1, Lord Maugham at Pp. 19-20 expressed the position accurately when he said:

“the doctrine of estoppel (per rem, judicatam) is one founded on considerations of justice and good sense. If an issue has been distinctly raised and decided in an action, in which both parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them”.

It is therefore important for the issues in the earlier case to be identical with those in the current case in which the estoppel is raised, and the issue so relied upon to have been raised and distinctly decided in the earlier case. Finally, the parties or their privies must be the same. It should not be a decision by implication.”

It is very surprising to me that although the respondents in their preliminary objection numbered (d) at page 33 of the record, clearly stated that the respondents will rely on the Plan No. LSD 960 dated 23/6/74 at the hearing of the motion which gave rise to this appeal, yet the respondents failed, neglected or refused to exhibit the said plan to their counter-affidavit. Again, in paragraph 12 of their counte-affidavit the respondents, appreciated the importance of the plan which the respondents relied upon in a reply to the appellants’ claim on the issue of the area of land in question but for unknown reasons the respondents did not exhibit the said plan.

In Aweni v. Olorunkosebi (1991) 7 NWLR (Pt.203) 336 at 354 dealing with the plea of estoppel per rem judicata, Sulu-Gambari, JCA, adopted with approval the judgment of the learned trial Judge which dealt with the issue of plan when the learned trial Judge at page 354 said:

“I should dispose quickly with the claim of estoppel per remjudicata. No plan has been submitted by the plaintiffs to show the area of land at issue in the two cases one before the Native Court, and the other in the Customary Court. There is no evidence before me that the areas litigated upon covered or was inclusive of the area of land in dispute in the case in hand. On the contrary, the evidence before me is that a building plot each was involved in each of those two cases and in areas far away from the present land in dispute.

Although an Aseyin was the original grantor of the two pieces of land previously litigated upon in the lower courts, the parties, the issues and the areas of land covered by each litigation are not the same, nor inclusive of, the land in the case in hand. The plea of estoppel per rem judicata is therefore not sustainable in aid of the plaintiffs. See Basil v. Honger 4 WACA 569; Alfred Asagba & ors v. Omowha Ogafe (1972) 11 SC 139; Iheanacho Nwaneri & Ors v. Nnadiwe Orinwa (1959) 4 FSC page 132, (1959) SCNLR 316.”

The case of Ekpoke v. Usilo (1978) 6-7 SC 187, a case of representative action like the case under consideration relied upon by the learned counsel for the respondent for failing to exhibit the plan is distinguishable from the present case.

In Ekpoke (supra) there were no pleadings as it was a case before a Native Court. Even in that case, to determine a question of res judicata, the court had to have recourse to the facts directly in issue in the action and determined in that judgment to discover from the substance as disclosed in the record of proceedings. In the case in question, it is not being suggested that Okoribi land and Otorkporo land are one and the same thing as in Ekpoke (supra) relied upon by the respondents.

It should be noted that even in a case decided by a Native Court, it is necessary to ascertain from the record, the substance, whether a plea of resjudicata raised can be sustained.

From the ruling of the learned trial Judge, at pages 67-68, I think I do not need to rely on any authority, in holding that the Okoribi land was not litigated upon and certainly title in respect of the Okoribi land was not granted to the respondents in the suit relied upon in respect of the plea of res judicata.

Applying the principles enunciated in both the cases of the Supreme Court of Nigeria and this court, I hold the view that having regards to the reliefs in Suit No.W/42/91, the respondents have not fulfilled the conditions to sustain a plea of res judicata. Although the parties, being a representative action are the same, the reliefs, the subject matter and the claim are not the same as can be clarly seen from the claims herein reproduced. Since the respondents did not claim the entire Otorpkoro land as clearly shown from their claims hence their reliance on a plan, showing the area claimed, verged green and were not granted title to the entire Otorpkoro land by the court, it is therefore incumbent on the respondents to show clearly the extent or identity of the land claimed and granted to them by the court to enable the respondents successfully raise a plea of res judicata.

On what did the learned trial Judge, rely in reaching his decision that the land covered by plan No.LSU 960 which was not exhibited to the motion, is identical with the Okoribi and Otorkporo land referred to in this case? It is the duty of the respondents to satisfy the court on their plea of res judicata, in order to sustain the plea.

I therefore with respect to the learned trial Judge, disagree with his conclusion that the appellants accepted plan LSU 960 to represent the true and correct area in dispute. As it is thefunction of the learned trial Judge, to determine the issue in this case, it is the court that should reach a decision on whether the land is identical or not. The learned trial Judge ought to satisfy himself that the area of the land, extent and features, litigated upon are identical with the land referred to in Suit No. W/42/91, from relevant materials not by implication.

From the claims as set out in this judgment, it seems to me that the reliefs in this suit that gave rise to this appeal, that is the declarations being sought therein are different from the declarations sought in respect of Suit Nos.W/48/74 and W/127/74 as the issues in the two suits is declaration of title to land.

In my view, the claims and the subject matter of this case and the two suits are not identical. At this stage, the trial court should not be concerned with the merits or outcome of the case under consideration which is different from the two earlier decisions.

In the light of the foregoing, the plea of res judicata is not sustainable. I therefore allow the appeal, set aside the ruling of Boximo J. delivered on 30/3/94 and in its place remit Suit No. W/42/91 to the court below for hearing and determination by another Judge. I award costs assessed at N3,000.00 to the appellants against the respondents.

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Other Citations: (2000)LCN/0797(CA)

Alfred Usiobaifo & Anor V. Christopher Usiobaifo & Anor (2000)

LawGlobal-Hub Lead Judgment Report

SAKA ADEYEMI IBIYEYE, J.C.A.

This appeal is from the judgment of Omage, J (as he then was) sitting In the High court of Justice Benin and delivered on the 6th day of March, 1997.

The plaintiffs as the respondents in this appeal filed a specially endorsed writ of summons against the defendants (now appellants) seeking the following reliefs:

“1. A declaration that the first defendant has no right to sell the family properties known ans (sic) situate at No. 107 Forestry Road, Benin City without the consent of other principal members of the family.

2. A declaration that the purported sale of the family properties known and situate at No. 107 (formerly NO. 101) Forestry Road, Benin city on the 11th day of September, 1992 by the first defendant to the 2nd defendant within the jurisdiction of this Honourable Court is illegal, null and void and of no effect whatsoever.
3. An order of perpetual injunction restraining the 1st defendant from selling, parting with the title of the family properties known and situate at No. 107 Forestry Road, Benin City.”

Pleadings were filed and exchanged between the parties. The pleadings were equally amended several times over and exchanged between the parties. In paragraph 31 of the eventual Further Amendment statement of Claim, the plaintiffs sought the following two reliefs as opposed to the three reliefs in the Writ of Summons severally and jointly against the defendants:

“1. A declaration that the first defendant has no right to sell the family properties known and situate at No. 107 Forestry Road, Benin city without the consent and approval of other principal members of the family.

12. A declaration that the purported sale of the properties known and situate at NO. 107 Forestry Road, Benin City on the 11th day of September 1992 by the first defendant to the second defendant within the jurisdiction of this Honourable Court is illegal, null and void and void (sic) and of no effect whatsoever.”

The defendants on their part joined issues with the plaintiffs on the reliefs claimed and particularly averred in paragraphs 18 and 24 of the Further Amended Statement of Defence as follows:

“18 The Defendants averred that in Ishan customary law of inheritance is based on principle of promo geniture (sic) according to which the right of inheritance or succession to property belongs exclusively to the eldest son of a deceased person on performance of his father’s burial. On the basis of this customary law of Ishan the 1st defendant was and/or is exclusively owner (sic) of the said property and has right to deal with it.

24. The Defendants shall contend at the trial of this action that the Suit is grossly misconceived, incompetent and ought to be dismissed as being frivolous and an abuse of the process of the Court”

At the trial in the court below, the 1st plaintiff testified and called three witnesses while the 1st defendant equally testified and called the same number of witnesses.

The salient items of evidence adduced by the 1st plaintiff and in behalf of the plaintiff are as follows: the first witness who is the 1st plaintiff testified that the 2nd plaintiff, the 1st defendant and himself are some of the male children of Chief Ebunde Usiobaifo who owned, lived and died in Ewaise Street now known as No. 107 Forestry Road Benin City in 1954. The eldest son of their late father was Obote Usiobaifo who lived in the same house and built another house in addition to the one built by their father on 107 Forestry Road Benin city until he too died in 1973 without performing the traditional burial ceremony of their late father. The 1st defendant being the eldest surviving son on the death of Obite Usiobaifo called a family meeting where it was agreed that each child should pay N590.00 towards the said ceremony. Each of them contributed that amount and the ceremony was performed”. The 1st plaintiff (the P.W.1) further testified that Pa Okaisabor, D.O. Aburime, Akhimien, Odudu Negbeneda and Ibhafidon Abulu are members of his family. In 1975 a family meeting was held and the property of his late father was shared. The minutes of the meeting are in exhibit CU 1. At the meeting, sharing the property of their late father was one of the items deliberated upon. Property situate at No. 107 Forestry Road, Benin city in particular was shared to 1st defendant “to take care of the house and to use the property in rotation.” The 1st defendant thereafter sold the said property to the 2nd defendant for N500, 000.00 without the consent of himself (the 1st plaintiff) and the 2nd plaintiff who are the principal members of the family. He added that the property which is “Igiogbe” cannot be dealt with by discussion with the other beneficiaries”‘. He asserted that he is still living in the house said to have been sold by the 1st defendant. Under cross examination, the P.W. 1 denied that the property in point was given to the 1st defendant absolutely. Mr. Akhimien Ofenagbon testifying as the P.W.2 said that apart from being the oldest man in the parties’ village, he is also of the same clan with them. He asserted that he shared the property in question to the 1st defendant to hold it in Trust for the family as that property is an Igiogbe which should not be sold. Selling of such a house is a taboo under Ishan Native law and custom. He particularly testified that the Igiogbe does not belong to the eldest son. It is instead held in trust according to seniority on rotational basis. He identified exhibit CU 1 which contains the minutes of the meeting at which property situate at 107 Forestry Road, Benin city was shared to the 1st defendant to hold in trust for the family of which the plaintiffs are members. The P.W. 3, Mr. Okaisabor Oseghae, testified, in the main, that he was present at the meeting held on 6/12/75 to share Usiobaifo property. He also testified, inter alia, as follows:

“The house in Benin was given to Alfred as the senior in joint ownership of the house with his brothers. After Alfred, the next brother uses the house, after another brother uses the property, after all brothers are deceased then the grand children now take in turn ……………. Alfred cannot sell the house at all.”

The house being an Igiogbe was shared to the 1st defendant and his brothers as female children have no share in it.  He identified exhibit CU 1.

The P.W. 4, Mr. Joseph Abulu testified that he was the person who recorded minutes at the meeting where the Igiogbe was shared to the 1st defendant. He identified exhibit CU 1.

On the part of the defence, the 1st defendant testifying as the D.W. 1 said that the two plaintiffs are his younger brothers of the same father who died on 5/5/55. Oboite, his elder brother, did not perform the funeral rites for their father until he died in 1973. He, however, performed the burial ceremony as required by Ishan native law and custom. On 12/2/94, after the said ceremony, there was family meeting presided by Mr. Iweren, his paternal uncle. At the meeting, the properties situate at NO. 107 Forestry Road, Benin city and No. 19 Ukpenu Ekpoma were given to him. He named those present at the meeting Ibofar Ali, Esole, Captain Peter Erewele, Okogun and Oriarewo. He sold one of the three houses on No. 107 Forestry Road, Benin City to the 2nd defendant at N500, 000.00. He identified exhibit CU 2 as the approval from Oba Akenzua transferring No. 107 Forestry Road, Benin city to him. He asserted that it is forbidden to share a deceased person’s property among his male children rotationally. Property at No. 107 Forestry Road, Benin City was therefore not shared to him rotationally. Under cross examination the D.W. 1 said, inter alia:

“It is not correct that the deceased’s property is shared among males of different doors. No. 101; Forestry is not Igiogbe of my father. It is true that the 1st plaintiff lives in 101 Forestry Road, but he does not live in my father’s house. I have the right to eject him from the father’s property … I got the consent of the plaintiff before I sold the property.”

The D.W. 2 Mr. Patrick Enakhimien, claimed to know Ishan native law and customs. According to Ishan native law and customs, where a father dies, the son who performs the burial ceremony inherits the property. It is not Ishan custom to inherit property in rotation. It is not the custom to obtain the consent of the children. On being cross examined, he said that he did not know the 1st plaintiff nor when the burial ceremony took place. He knew the father of the D.W. 1. The first son has no right to drive out other children. He should instead maintain them. The D.W. 3, Chief Stephen Ogbebor, testified that as a member of the same Ward 7 in Benin with the D.W. 1, he said:

“Alfred Usiobaifo brought an application for approval in the Ward. As a member of the Ward, we sent some people to follow him for inspection, report showed that it belonged to Usiobaifo and we approve (sic) same for approval by the Oba of Benin who approved it… Alfred came with some of his family.”

He went on to identify exhibit CU 2 as the approval. On being cross examined, the D.W. 3 said that the size of the land approved was 100 feet by 100 feet and that the D.W. 1 brought a paper which he claimed his family gave him. He thereafter derailed by saying that he did not know how the D.W. 1 got the approval nor can he remember the name of any of the people who came with the D.W. 1 for approval. The D.W. 4, Mr. Patrick Okaigbele, who claimed to be the head of the family turned out to have been ostracized “from the country”. This may possibly mean from the town or village. In this circumstance, he could not have been accorded any functional position by the clan that ostracized him any longer. At the close of hearing, the parties learned counsel addressed the court. The learned trial Judge, in a reserved judgment held inter alia:

“The 1st plaintiff has testified and I believe the testimony that he was not consulted and he was not aware and would not consent to the sale of any part of the three houses, the Igiogbe at No. 107 Forestry Road, Benin City, property of Chief Usiobiafo’s family. Evidence exists (sic) though the instrument of sale was not tendered that the 1st defendant sold the house as his personal property. I declare that the said sale is void and that the said property remains the properties (Sic) of Usiobiafo family because the 1st defendant has no power or authority to sell family property or to sell the said property as his own property. The sale is declared null and void. The plaintiffs’ succeeds (sic)…”

The defendants who are the appellants in this Court were utterly dissatisfied with the judgment of the trial court and thereby appealed to this Court on one ground. The appellants subsequently sought and got the leave of this Court to file seven additional grounds of appeal. The appellants identified from those eight grounds of appeal, the following four issues for determination:

“1. Whether the plaintiffs (respondents) proved their case and were entitled to judgment?

2. Whether the learned trial Judge correctly directed himself as to the onus of proof having regard to the pleadings and evidence before the Court.
3. Whether the learned trial Judge was right when he suo motu raised issues and resolved them without giving the parties thereto opportunity of being heard.
4. Whether the learned trial Judge was right in giving to the plaintiffs (respondents) what they did not ask for.”

The respondents also filed their brief of argument” in which they adopted Issue No.1 (above) formulated by the appellants.

At the hearing, Chief N.O. Ogbodu and P.A. Otaigbe Esq., who were respectively the learned counsels for the appellants and respondents canvassed oral argument in amplification of the argument in their briefs?

On Issues Nos 1 and 2 argued together, the learned counsel for the appellants submitted that the respondent’s claims were predicated on declaratory orders and as such the burden to establish them as per Sections 135, 136 and 137 of the Evidence Act cap 112 of the Federation of Nigeria 1990 (hereafter referred to as the Evidence Act 1990) was on them (the respondents). He added that in a declaratory action the plaintiffs shall succeed on the strength of their own case and not the weakness of the defendants’ Case and he relied on the case of ELENDU V. EKWOABA (1995) 3 N.W.L.R. (PART 386) 704 at 745. He referred to pages 33 to 40 of the record of appeal where the parties relied on the customary law of inheritance in Ishan land and joined issues on whether the first son holds the family house in trust for other members of the family. He pointed out that the position at law is that he who asserts will fail if no evidence is called in support of the assertion as per Section 136 of the Evidence Act 1990. He then argued that the burden to establish whether the 1st appellant has no right to sell the family property situate at No. 107 Forestry Road, Benin city without the consent and/or approval of the other principal members of the family is on the respondents. He referred to Sections 2 and 14(2) of the Evidence Act 1990 which deal with the definition of “custom” and that custom can be judicially noticed or established by evidence with the proviso that any custom relied upon in any judicial proceedings shall not be enforced as law if it is contrary to public policy and does not accord with the principle of natural justice, equity and good conscience. He emphasized that native law and custom is a matter of evidence to be decided in each particular case unless it is of such notoriety and has been so frequently followed by the courts that judicial notice could be taken of it without evidence required in proof. He relied on the Supreme Court Case of GIWA V. ERINMILOKUN & ANOR. (1961) ALL N.L.R. 297.

Learned counsel argued that it is unsafe to accept the testimony of the person asserting the existence of a particular custom as conclusive. It is instead desirable and good law that the person other than the person asserting the custom should also testify in proof thereof and he referred in support to the cases of OZOLUA II V. EKPENGA (1962) S.C.N.L.R 423 and OYEDIRAN V. ALEBIOSU (1992) 6 N.W.L.R. (PART 249) 558.

Learned counsel for the appellants posed the questions of which is the applicable Ishan Customary Law on inheritance. Is it the said law that the eldest son of the deceased Ishan man holds the family house in trust for other members of the family or whether the applicable law is that the family house exclusively belongs to the eldest son after the due performance of the necessary burial ceremony of his late father and can deal with such property without reference to any principal members of the family? He referred to the items of evidence adduced in behalf of the respondents by the P.W.1, the P.W. 2 and the P.W. 3 who respectively and saliently testified that first, the procedure under Ishan law and custom is that the older member will ask the younger ones to discuss the Igiogbe (that is to say the family property). Secondly, that the house in point is an Igiogbe and can never be sold as it is a taboo to do so and thirdly that Alfred (the 1st appellant) could not sell the house at all. He then contended that there is conflict in those items of evidence and submitted that the learned trial Judge did not resolve the material contradictions in those testimonies by the P.W. 1, P.W.2 and P.W. 3. He therefore urged this Court to hold that where evidence is at variance with the pleadings, such evidence must be disregarded by the court whether it was objected to or not and he relied on the case of OLORIEGBE V. OMOTOSHO (1993) 1 N.W.L.R. (PART 270) 386. In view of the glaring contradictions, the learned counsel submitted that the failure of the learned trial Judge to resolve them was perverse and obvious consequence of miscarriage of justice.

Learned counsel equally argued that on a careful consideration of the Further Amended Statement of Claim as at pages 33 to 39 of the record of appeal, there is no averment that the land on which Chief Usiobaifo built a house and lived in until his death in 1953 is family land and his Igiogbe for the family. He further argued that the learned trial Judge introduced the concept of family land or Igbiogbe where there was no supportive evidence before him and that his finding was made in error. He therefore urged the court to interfere and set aside that finding and he relied on the case of AKINLOYE V. EYIYOLA (1968) N.M.L.R. 92.

Furthermore, the learned counsel alleged that the learned trial Judge, without evidence, decided at page 69 lines 15 to 22 of the record of appeal the issue of demarcation which was not before him. He submitted that facts not pleaded go to no issue and if any evidence is led on such facts and admitted by the trial court, this court being an appellate is empowered to expunge those facts and findings thereon from the judgment of the lower court. He relied on the case of FERDINARD GEORGE & ANOR. V. UBA (1972) 8/9 S.C. 264.

Other areas of perverse findings of the trial court alluded to by the learned counsel are that the learned trial Judge held that once land is in the family, it is not alienable and that after the 1st appellant had performed the funeral rites for his late father, he held that family land for his own use and the family in just the same way as his elder brother, Obiote did before him. Vide pages 65 lines 1 to 10 and 67 lines 16 to 23 of the record of appeal. He argued that there was no evidence to support those findings. In view of the foregoing, he submitted that those findings were only speculative because the 1st respondent failed to discharge the onus placed on him by law to entitle both respondents to the declaratory reliefs sought. He therefore submitted that the conclusion of the learned trial Judge is perverse and lacking in merit as he had failed to make good use of the opportunity of seeing and hearing from the witnesses at the trial and that he equally refused to make specific findings on the issues raised by the parties. He referred to the case of GENERALLY THE CASE OF WHYTE V. JACK (1996) 2 N.W.L.R. (PART 431) 407.

On Issue No.3, the learned counsel for the appellants submitted that the learned trial Judge was in error to have raised ten issues suo motu as they were not raised in the course of the proceedings. He instead argued that as opposed to those ten issues, the only issue raised is whether the right of succession to the property situates at 107 Forestry Road, Benin City devolved rotationally in the family or exclusively to just one member of the family. He submitted that since the  ten issues raised by the learned trial Judge did not touch on such issue as jurisdiction which admits of being raised suo motu by the trial court, such importation occasioned denial of fair hearing and he relied on the case of ALLIED BANK OF NIGERIA LTD. V. AKUBUEZE (1997) 6 N.W.L.R. (PART 509) 374 at 395.

Learned counsel went on to reopen the issue of contradictions in the evidence of the P.W.1, P.W.2 and P.W. 3 on a “very material point” of whether or not the property can be sold and he urged this court to expunge those items of evidence; and that having done that, nothing would be left in support of the respondents’ case. He instead urged this Court to hold that upon due performance of burial ceremonies by the eldest son, he (the eldest son) inherited his father’s property exclusively and he relied on the evidence of the D.W. 2 who he claimed is an expert on Ishan custom. Failure of the learned trial Judge to consider the testimonies of the D.W. 2 and D.W. 3 led to serious miscarriage of justice.

On Issue No.4, the learned counsel for the appellants argued that the P.W. 1 did not testify that there was a change of title to family land as reflected in exhibit CU 2 nor that that exhibit be declared null and void. He therefore submitted that the finding of the learned trial Judge as far as exhibit CU 2 is concerned is not borne by the evidence of the P.W.1 and it is accordingly perverse. A finding is perverse in a number of circumstances including when it runs counter to the evidence and pleadings or it occasions miscarriage of justice as held in the case of NKADO V. OBIANO (1997) 5 N.W.L.R. (PART 503) 31 at 56. It is trite law, he submitted, that a court, however, benevolent or charitable has no power to grant a party a relief he did not ask for. He relied on the cases of LAWAL OSULA V. LAWAL OSULA (1993) 2 N.W.L.R. (PART 274) 158 and UGO V. 0BIEKWE (1989) 1 N.W.L.R. (PART 99) 37. He further submitted that the order declaring exhibit CU 2 was not asked for and it is wrong of the trial court to have so ordered. He therefore urged this Court to set this finding aside as it is within its province to do by virtue of the case of FASHANU V. ADEKOYA (1974) 1 ALL B.L.R. 32 at 37. He finally urged the Court to allow the appeal.

At the hearing of the appeal in this Court, the learned counsel for the respondents amplified that the only issue raised in the respondents’ brief of argument encompassed the issues raised in the appellants’ four issues. The learned counsel for the respondents stated the trite principle of law that where the question involved is purely of facts an appellate court will not interfere unless the decision of the court below is shown to be perverse and not as a proper exercise of judicial discretion and referred to the case of NTIARO V. AKPAN 3 N.L.R.

He submitted that under Ishan native law and custom the family house unless partitioned is jointly owned by all members of the family and no one can sell or alienate same without the consent of the other principal members of the family. In proof of this custom learned counsel said that the 1st respondent did not testify in person but also called three other witnesses from Ishan including the Odionwele the oldest man in the 1st appellant and the respondents’ village and his second in command that is to say the P.W. 2 and P.W. 3 respectively. Each of them identified exhibit CU 1 (the minutes of the meeting) in which at its paragraph 4 it was expressly stated as recorded by the P.W. 4 that “The family house at No. 101 Forestry Road, Benin City shall be for the first appellant’s use and for the use of Usiobaifo’s family in rotational heredity.” He referred to the case of ADEJUMO V. AYANTEGBE (1989) 3 N.W.L.R. (PART 110) 417 at 444 in support of that arrangement where the supreme court held that the family land is vested in the past, existing and future members of the family. He argued that the 1st appellant appeared to have admitted this arrangement as follows:

“… I got the consent of the plaintiff before I sold the property.”

He went on to pose the question that why should the 1st appellant seek the consent of the respondents if the house in point was not jointly owned. The answer as reproduced above is an admission that he could not alienate or sell the family house without the consent of the respondents. He referred to some decided cases that where family land is sold by the head of the family without the consent of the principal members of the family, the sale is voidable. See EKPEPENDU V. ERIKA (1959) 4 F.S.C. 79; ESAN V. FARO 12 WACA 135 and ALLI IKUSEBIALA (1985) 1 N.W.L.R. (PART 4) 631; and that such sale is void where the head of the family disposes of family property as his own. See ADEJUMO V. AYANTEGBE (SUPRA) page 448. He argued that it is irrelevant if the foregoing principles are borne out of cases based on customs other than Ishan custom. What is of moment is that these are settled laws on the legal status of such dispositions.

Learned counsel further argued that the 1st appellant unlawfully transferred the said house to himself by procuring Oba’s approval through exhibit CU 2 and he thereafter sold the house to the 2nd appellant as his own without obtaining the consent of other principal members of Usiobaifo family. He equally argued that the trial court had no option but to declare the Oba’s approval in exhibit CU 2 and the sale a nullity as the Oba could not have any basis for a second approval having earlier on granted an approval to the land in favour of the 1st appellant’s father, late Chief Usiobaifo. He referred to the notoriety of the custom of plot allotment in Benin City and that that Custom is judicially noticed under Section 14(2) of the Evidence Act 1990 as well as the cases of AGBONIFO V. AIWERIOBA (1988) 1 N.W.L.R. (PART 70) 325 at 336 and D.M. AIGBE V. BISHOP JOHN EDOKPOLOR (1977) 2 S.C.1 30.

As regards the sale based on the approval of the Oba of Benin (exhibit CU 2), the learned counsel argued that it was mere surplusage for the respondents to seek a declaration that the transfer covered by exhibit CU 2 was a nullity. The court need not make such a declaration based on the proposition sanctioned in U.A.C. V. MACFOY (1962) A.C. 152 and approved by the Supreme Court in SKENCONSULT NIG. LTD. V. GODWIN SEKONDY UKEY (1981) 1 S.C. 6 at 9 and the court of Appeal in OLOWOFOYEKU V. A-G OF OYO STATE (1990) 2 N.W.L.R. (PART 132) 369 at 390.

On the issue of contradictions in the respondents’ case, learned counsel urged the Court to hold that there was no contradiction at all because the use of the words “it is a taboo” to sell an Igiogbe were meant to fortify the respondents’ claim that the 1st appellant could not sell the family house. He referred to the case of GABRIEL V. STATE (1989) 5 N.W.L.R. (PART 122) 457 at 468 on contradictory evidence. He submitted that the answer of the P.W. 1 is not sufficient to cast doubt in the mind of this Court as urged by the appellants. It is settled law that where an appellate court is in doubt it should not interfere with the finding of the trial Court, it should instead dismiss the appeal as the burden is on the appellant. He relied on the cases of MACAULAY V. TUKURU (1899) 1 N.L.R. 35 and LIONS BUILDINGS V. SHADIPE (1976) 2 FNR 2 at page 289. He further submitted that where there is ample evidence to support the trial court’s findings and there is also evidence on which the trial court could have found otherwise, an appellate court should not interfere as laid down in the case of SACKNA MORMODU ALLI V. AHMED ALHADI 13 WACA 320 at 321. He equally submitted that the respondents proved their case by preponderance of weighty evidence with particular reference to the evidence adduced in his behalf on Ishan native law and custom on inheritance and alienation of family property aside the evidence of the 1st respondent. He finally urged the Court to dismiss the appeal.

Issues Nos. 1 and 2 apparently touch on burden of proof with regard to the nature of property situate at No. 107 Forestry Road, Benin City purported to have been disposed off to the 2nd appellant by the 1st appellant. The respondents asserted in their pleading and evidence that that property was family property and that it remained so until it is partitioned.

It is settled in civil cases that he who asserts bears the burden to prove to the satisfaction of the Court and once that burden is discharged the burden to dislodge the assertion shifts to the other party. See Section 136 and 137 of the Evidence Act 1990 and DURU V. NWOSU (1989) 4 N.W.L.R. (PART 113) 24 at 39 and AWOMUTI V. SALAMI (1978) 3 S.C. 105 at 115. The crucial questions in these issues are (a) did the respondents establish that the property situate at No. 107 Forestry Road, Benin City was a family land? (b) Did the appellants establish that the said property devolved on him absolutely?

As regards the first question the 1st respondent testified that the property in issue was owned by Chief Usiobaifo who died intestate in 1954 and was survived by himself, the 2nd respondent, Mr. Oboite Usiobaifo and the 1st appellant, among others. Mr. Oboite Usiobaifo, the eldest son of their late father did not perform the funeral rites for his late father before he too died in 1974. The 1st appellant being the next eldest son performed those rites and thereby inherited the house in question. Evidence of the P.W. 2 and P.W. 3 is to the effect that since Chief Usiobaifo died intestate, the property became family property. The P.W. 2 and P.W. 3 confirmed the status of the house that traditionally such property became family property on the death of Chief Usiobaifo intestate and that the eldest son held such property for his own use and the use of his younger brothers. On his death the next eldest son becomes seized of the property in like manner. In keeping with this custom a family meeting was held and it was decided that, inter alia, the 1st appellant would have the use of the house (that is to say No. 101 (now 107) Forestry Road, Benin City on rotational basis.

Evidence adduced in behalf of the 1st appellant is that he owned the said house but not absolutely.

It is instructive to consider how a land or house becomes family land or property. It is settled law that the concept of family property is original to our indigenous society and the bedrock of our law of inheritance. The most common circumstance of creating, family property is death intestate of a land owner whose estate is governed by customary law. Such land devolves to his heirs in perpetuity as family land.  Another method of creating family land is by a conveyance inter vivos where land purchased with money belonging to the family. Family land can also be created by the use of the appropriate expression in the Will of the owner of such land. See the cases of OLOWOSAGO & ORS. V. ADEBANJO & ORS. (1988) 4 N.W.L.R. (PART 88) 275 at 287, LEWIS V. BANKOLE 1 N.L.R. 81 and SHAW V. KEHINDE (1947) 18 N.L.R. 129.

Family land ceases to be family land when it is partitioned among the beneficiaries. See OLOWOSAGO & ORS. V. ADEBANJO & ORS. (Supra) at page 287 and BALOGUN V. BALOGUN (1943) 9 WACA 78.

From the state of the pleadings and the supportive evidence in relation to the foregoing principles it is apparent that the property situate at No. 107 Forestry Road, Benin city being customary land is family land. By virtue of its status as family land, it is vested in the past, existing and future members of the family. See the Case of ADEJUMO & 2 ORS. V. AYANTEGBE (supra) at page 444. When this principle is related to the house in issue, it simply means that the 1st appellant’s enjoyment of it only lasted his life time and by virtue of Ishan native law and custom sumptuously testified to by the P.W. 1, P.W. 2 and P.W. 3, that house would pass to the next eldest surviving son of Chief Usiobaifo – the original owner.

In effect, the 1st appellant has no property in that house which he could pass to any body including the 2nd appellant.

The house in point being family house means that it belongs to all the members of a known family.

In order to weaken the strength of the respondents’ evidence, learned counsel for the  appellants said that that evidence was replete with contradictions. Upon a careful consideration of the alleged conflicting evidence, I could not find any material conflict. The resume of those items of evidence is instead that the property situate at 107 Forestry Road, Benin City is an Igiogbe and cannot be sold. What is described as contradiction is not a functional contradiction with regard to what is the status of the property in point. It is settled law that a piece of evidence will be regarded as contradiction when it affirms the opposite of what the other evidence has stated not when there is a minor discrepancy between them. See GABRIEL V. THE STATE (SUPRA) at page 468. In the instant case, the act of the older member of the family asking the younger ones to discuss the Igiogbe was done in the spirit of carrying the younger ones along in the administration of the family property. Furthermore the evidence that it is a taboo to sell family land is purely to lay emphasis on the fact that family land per se does not admit of alienation or sale in its original status until it is partitioned.

The issues that the learned trial Judge introduced the concept of family land, demarcation and the inalienability of family land by the 1st appellant on performing the funeral rites by, holding the land in trust for members of the family were not acts which amounted to perverse findings. Thus from the state of the pleadings and particularly the evidence before the trial court, it is apparent that Chief Usiobaifo, the progenitor of the 1st appellant and respondents, died intestate and having died intestate, his property in law becomes family land. Such family land, it is also settled, cannot be acquired absolutely by any member of that family until it is demarcated. Demarcation in this sense is synonymous to partition. Evidence also abounds that the property in point became inalienable after the 1st appellant had performed the funeral ceremonies for his late father. In view of the foregoing, I failed to see where the learned trial Judge introduced issues extraneous to the evidence before him as to amount to perverse findings.

In sum, I agree with the learned trial Judge that there was preponderant evidence upon which the respondents discharged the onus to accord them the declaratory reliefs sought. The learned trial Judge did not arrive at any findings which are perverse and liable to cause miscarriage of justice. I accordingly resolve Issues Nos. 1 and 2 in the affirmative.

Issue No. 3 deals with the formulation of issues suo motu by the learned  trial Judge. It is trite to say that the formulation of issues in any litigation is ordinarily the prerogative of learned counsel in the case. But this general statement does not shut out the learned trial Judge from formulating issues from available evidence in the absence of any such formulation by learned counsel. The essence of issues formulated is to identify areas of consideration for the just disposal of the case before the trial court. Issues formulated by learned counsel at the court of first instance are invariably reflected in their addresses. In the instant case, only the learned counsel for the respondents formulated issues for the consideration of the trial court. The issues read:

“… (1) Whether the subject matter of the suit is a family land. If so, does the 1st defendant have a right to alienate same without consent of the family?”

I have considered the seemingly ten vexed issues formulated by the learned trial Judge and I found that the basic issue raised in each of them relate to family land. All that the learned trial Judge did was to expand the issues raised by the respondents counsel to the unfettered attention of the appellants’ counsel. I am of the strong view that the learned counsel for the appellant cannot be heard to say at this stage that the appellants were denied fair hearing. What happened, instead, was that the learned trial Judge through possibly abundance of caution or ease of comprehension amplified the issues identified by the learned counsel for the respondents. The ten issues are in my opinion rooted in the issues distilled by the respondents and were therefore not raised suo motu at the judgment stage by the learned trial Judge. Issue No. 3 is accordingly resolved in the affirmative.

Issue No.4 deals particularly with Exhibit CU 2. It is true that the P.W. 1 did not testify on exhibit CU 2 nor did he seek that it should be declared null and void by the trial court. It is, however, true that exhibit CU 2 emanated from the evidence of the appellants. The appellants appeared to have exhibited the document marked exhibit CU 2 in order to substantiate the fact of his ownership of the land –

“… Measuring (150′ x 120′) one hundred and fifty feet by one hundred feet with beacon Nos. 29, 247, 116, 30 with the buildings thereon and known as No. 101 Forestry Road Benin City in Ward 7/E.”

It is sacred or bounden duty of the trial court to consider by way of evaluation all the items evidence  by whomsoever given before it could arrive at a just decision. It was in keeping with this principle that the learned trial Judge considered exhibit CU 2 along wide other items of evidence before him. I hold that that exercise was quite regular. The learned trial Judge observed that the land which is the subject of exhibit CU 2 was first acquired or allocated by Chief Usiobaifo from the Oba of Benin before he died in 1953. The subsequent allocation in the same land in 1974 therefore became suspect and it was in order for the trial court to rule on the propriety of exhibit CU 2. The land in question is in Benin. It is trite to say that the customs of land allocation in Benin are judicially noticed and such customs are enunciated in the cases of K.S. OKEAYA INNEH V. MADAM E. AGUEBOR (1970) 1 ALL N.L.R. 1 and AGBONIFO V. AIWEREOBA (1988) 1 N.W.L.R. (PART 70) 325 at 335 and 336. I shall reproduce the following pertinent six out of the nine customary ways of acquiring land in Benin as enunciated by those cases:

“1. All lands in Benin are vested in the Oba of Benin who holds such lands as trustee on behalf of the people of Benin.

2. Any person desirous of owing land would direct his application to the Ward Allocation Committee in charge of the area where the land is located.
3. When the application has been studied and processed, the committee would delegate some of their members to inspect the land within their area of jurisdiction and ascertain the plot to be granted with certainty with a view to finding out if it is free from dispute and whether or not it has previously been granted to some one else.
4. Upon being satisfied about the exact locations, the dimensions and the fact that the desired plot is dispute free, the Committee would endorse the application with the above facts and forward it to the Oba of Benin for approval.
5. An approval once given remains valid until it is revoked by the Oba.
6. If evidence is subsequently produced of a prior approval for the same plot of land, then the second approval will be set aside by the Oba” (Underlining for emphasis)

It will be observed  from the foregoing in relation to the circumstances of exhibit CU 2 that there is evidence that as at the time in 1974 when the property situated at No. 101 Forestry Road, Benin City was purportedly given to the 1st appellant it had already been allocated to his father by the same Oba of Benin. The conclusion is that as at 1974 Clause No.4 (above) was not strictly complied with before exhibit CU 2 was issued and approved through a signature which is not discernible. The suspicion surrounding exhibit CU 2 therefore becomes obvious with regard to its authenticity. It is even more so when Clause 5 (above) is to the effect that an approval once given remains valid until revoked by the Oba. There is no evidence that the earlier approval given to Chief Usiobaifo over the same parcel of land Claimed by the 1st appellant had been revoked by the Oba of Benin before the second approval was given in 1974. The foregoing being an issue of law, it was in order for the learned trial Judge to make a finding by declaring exhibit CU 2 null and void. The trial court is not duty bound to make such pronouncement. The following principle enunciated in U.A.C. V. MACFOY (supra) and approved in the cases of SKENCONSULT NIG. LTD. V. UKEY (supra) and OLOWOFOYEKU V. A.G. OF OYO STATE (supra) allow it:

“If an act is void then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado; though it is some times convenient to have the Court declare it to be so and every proceeding which is found on it is also bad and incurably bad you cannot put something on nothing and expect it to stay there, it will collapse.”

What the learned trial Judge did with the finding on exhibit CU 2 was (exercise of judicial power by considering and pronouncing on all the issues in the case before him. Issue No. 4 is also answered in the affirmative.

In the final analysis, the appeal lacks merit and it is dismissed. The decision of the lower court is affirmed. The appellants shall pay the respondents costs N3, 000.00

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Other Citations: (2000)LCN/0796(CA)

Emmanuel Uzoma V. Felix C. Okorie (2000)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A. 

This is an appeal from the decision of Njeribeako, J., sitting at the then Imo State High Court, Umuahia. The plaintiff’s claim against the defendant was as follows:

“(a) Declaration that the plaintiff is entitled to the statutory right of occupancy of Plot “B” New Town Layout otherwise known as No.12 Macaulay Street, Umuahia – Ibeku in the Umuahia Judicial Division the subject of grant by the Governor of Imo State of Nigeria.

(b) Order of an account for rents received by the defendant from the tenants who occupied and still occupying the plot and building in dispute and to hand over the balance to the plaintiff.

(c) The sum of N50,000.00 (Fifty Thousand Naira) only as general damages for trespass.

(d) Injunction permanently restraining the defendant, his servants, agents and or workmen from entering into, interfering and or in any way dealing thereon known as and numbered No. 12, Macaulay Street, Umuahia-Ibeku within jurisdiction”.

His case, in a nutshell, was that he bought the plot in dispute from the defendant, who passed the document of title, i.e., the lease the latter had from the Eastern Nigerian Government, in the presence of witnesses after he had paid the full purchase price of ?320. The defendant put him in possession of the plot which he later developed and put tenants in. Then came the civil war and he was forced to abandon it when Umuahia became a battle’97field. After the war the plot was left standing in its damaged and overgrown state until 1981 when the defendant, probably in the belief that the war had consumed the plaintiff, sneaked back into possession. He repaired house and put in tenants against all protest from the plaintiff who, by some providence had survived and come to Umuahia at the right time. He has been collecting rents from the tenants.

The defendant admitted that there were negotiations between the plaintiff and him for the former to purchase the plot. They arrived at the purchase price of ?700.00 out of which he plaintiff paid only ?300 and refused to pay the balance. He denied putting the plaintiff into possession. As far as he was concerned, the transaction had fallen through and so he continued to enjoy the plot.

He invited the plaintiff to collect his money. After hearing the witnesses called by the parties the learned Judge, on 6/11/87, delivered his judgment granting all the prayers sought by the plaintiff. He concluded his judgment thus on page 166 of the record:

“In the final result, in the light of my findings, the plaintiff is entitled to succeed and judgment will be and is hereby entered for him. I declare in favour of the plaintiff title to statutory right of occupancy over the land in dispute i.e. No. 12 Macaulay Street, Umuahia Ibeku within jurisdiction. I make an order for the defendant to give an account of rents received from the property from 1982 till October 31st, 1987. The defendant is allowed 30 days from today to file the statement of account and serve same on the plaintiff. I hereby order perpetual injunction restraining the defendant, his servants and/or agents from any further interference with the said property in dispute i.e. No. 12 Macaulay Street, Umuahia-Ibeku”

After the account had been filed he awarded the plaintiff the sum of N18,100.00 against the defendant being the rents the latter had collected on the property during the relevant period. He awarded costs of N2,500.00.

Aggrieved, the defendant has appealed to this court on two original grounds. With leave of court seven additional grounds were filed on his behalf. The following four issues for determination were formulated in the appellant’s brief of argument:

1. Whether in view of the provisions of Order 42 rule 9 of the High Court Rules then applicable to Imo State, and section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979 the judgment is not a nullity.
2. Whether in view of the accepted oral evidence the trial Judge had made proper appraisal and evaluation of the evidence and rightly found that respondent was entitled to judgment.
3. Did appellant sign exhibits A, B, and K? Are A, B, and K genuine documents?
4. Whether the respondent could be declared to be entitled to statutory right of occupancy in respect of No. 12 Macaulay Street, Umuahia when the appellant’s state lease is subsisting and has not been revoked.”

The respondent’s counsel did not formulate any real issues. What he described as issues are mere subsidiary question arising in the issues formulated on behalf of the appellant. I shall, therefore, decide the appeal on the basis of those issues.

The first point taken by the learned Senior Advocate was that because no oral addresses were taken from counsel for the parties, no address at all could be said to have been taken. This, according to him, is because Order 42 rule 9 of the High Court Civil Procedure Rules applicable in Imo State made provision for oral address and not written addresses. Nor did the 1979 Constitution, then applicable, make any provision for written addresses in the High Court.

If no addresses were taken, then the three-month period within which the court in this case was obliged to deliver its judgment commenced from the date when the evidence of the last witness was taken. The learned Senior Counsel then pointed out that DW6, the last witness in the case, concluded his evidence on 25/3/87. He then drew attention to the date on which judgment in the case was delivered, which was 6/11/87. This being outside the three month limit prescribed by section 258(1) of the Constitution, rendered the judgment a nullity. The judgment, Senior Counsel contended, was not saved by subsection (4), introduced into the section by an amendment, because the denial of the appellant of the opportunity of address had resulted in and occasioned a miscarriage of justice. For all these reasons senior counsel urged us to hold the entire proceedings to be a nullity.

At the conclusion of the evidence of D.W. 6 the court adjourned the case to 22/5/87 for addresses.

Mr. I.F. Ogbuagu, for the respondent, attached to his brief of argument as Appendix I a copy of what he said were the proceedings of 22/5/87, 9/7/87 and 29/7/87. Going by it, on the first of those three dates, both counsel asked for an adjournment to another date. The case was then adjourned to 9/7/87 for address.

On that day defendant/appellant’s counsel informed the court that the plaintiff/respondent’s counsel had filed a written address. The learned Judge retorted that he “did not make an order for counsel to file written addresses.” The plaintiff’s counsel then explained that he had just inherited the case and decided on his own to file a written address. The defendant’s counsel was recorded as saying he was not opposed to file his own. He was then given 14/7/87 to do so. The case was then adjourned to 29/7/87 “for amplification of any points counsel may wish to make.”

On that day, the defendant’s counsel informed the court that he had filed his own brief. He requested and was allowed to make some amendments to it. The case was then adjourned to 30/10/87 for judgment. If all this was correct, then all the elaborate arguments by the appellant’s counsel on the point of being denied the right to address the court has been so much waste of time and material. Even if the Rules of Court had made no provision for the filing of written address, the appellant’s counsel cannot be heard to complain now as he not only willingly agreed to file one, but also in fact asked that he be allowed to do so. In such circumstances, the proceedings cannot be nullified just because the rules have not been strictly compiled with.

The appellant has not filed a reply brief to contend that Appendix I to the respondent’s brief did not reflect the proceedings of the days specified. I have no reason, therefore, not to hold that the appended document represents proceedings of the three days.

Assuming however that it does not, I still cannot agree with the learned senior advocate that the filing of written briefs, in the circumstances, warrants the nullification of the proceedings. It has not been denied, indeed the learned senior counsel made it clear, that a written address was filed on behalf of the appellant. There has been no suggestion that any protest was made on his behalf at this alleged breach of the Rules. I think, therefore, that it is too late in the day to make one now.

All things considered, I see no merit in the issue sought to be made on the appellant’s behalf about the filing of written address instead of making oral addresses.

On the judgment being delivered out of time, there can be no doubt that it was. The matter of addresses were concluded on 29/7/87 when the appellant’s counsel was allowed to make amendments to his own. Judgment was, however, not delivered until 6/11/87. It ought to have been delivered on or before 29/10/87. It was, therefore, out of time by about 8 days.

Subsection (4) introduced into section 258 by amendment stipulates that:-

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

This provision shows clearly that the delivery of judgment outside the prescribed period no longer automatically nullifies the proceedings as was the case in the days when Ifezue v. Mbadugha (1984) 1 SCNLR 427; (1984) 5 SC 79, relied on by the appellant, was decided. The words I have italicised show beyond doubt that before a judgment can be set aside for non-compliance, the person pressing for it to be set aside has the onus of satisfying the appellate or reviewing court that the noncompliance has caused a miscarriage of justice to him. As has been seen, the appellant wants the present proceedings set aside because his counsel had been denied the opportunity of addressing the court. We have seen that not only did his counsel have the opportunity of addressing the court, he in fact took the opportunity and addressed the court in writing. He voluntarily elected to address in writing instead of orally. The result is that the appellant has not satisfied me that the judgment under attack by him ought to be set aside for non-compliance with the provisions of section 258(1) of the 1979 constitution.

Issue 1 is resolved against the appellant.

Issues 2, 3 and 4 can be taken together. They raised the purely factual question whether or not, on the evidence before him, the learned Judge was justified in giving judgment for the plaintiff/respondent. The first subsidiary question here is whether or not the evidence before the court justified the Judge’s conclusion that the appellant had effectively transferred his interest in the land to the respondent.

The learned Senior Advocate, for the appellant, submitted that the respondent failed to establish that the appellant had assigned his interest in the disputed plot to him because:-

“The alleged Power of Attorney, Exhibit B were not based on the appellant’s subsisting lease. Furthermore, exhibits A, B and K were all founded on a Deed of Lease which had expired”.

With the profoundest respect to the learned Senior Advocate, I do not see what the fact that the lease on which Exhs. A, B and K were based has expired has to do with the matter in hand. From the argument of counsel, these exhibits had allegedly been made before the expiry of the lease. This is clear from the following passage on p.13 of the respondent’s brief:

“Assuming that Exhibit A is valid document, it is submitted that it was a Power of Attorney granted in respect of and based on a lease dated 15th day of December, 1961 for a term of seven years. The said lease Exhibit C expired in 1968. All Powers of Attorney or assignments made in respect of the title or interest conferred by the lease automatically determined on the expiration of the head lease”.

Even if the head lease expired in the circumstances related by learned Senior Counsel and the assignment to the respondent by the appellant of the latter’s interest automatically determined, what business of the appellant’s one may ask, is it? If he had indeed divested himself of his interests in favour of the respondent before the expiration of the head lease, then the matter can only be between the respondent and the head lessor. The more relevant question, in my view should be whether or not the appellant in fact divested himself of his interest in the plot in favour of the respondent. The learned Judge’s consideration of and conclusions on the point are contained on page 160, line 11 to page 162, line 33:

“In assessing the evidence with regard to the negotiations for the sale of the land in dispute and the putting up a house in the land, certain aspects of the defendant’s evidence stand out in bold relief. They met at Umuahia. Although he did not say where at Umuahia; he told the court those who were present during the negotiations Godwin Onyenze P.W. 3 was present. He is a relation of the defendant. The defendant described him so in paragraph 11 (a) of the amended statement of defence. At the risk of repetition let me reproduce what Mr. Onyenze told the court. He said:-

‘I know the plaintiff and defendant. In 1960s, I remember I connected the parties with regard to a piece of land along Macualay Street, Umuahia. The defendant had that piece of land and intended to sell it. One gentleman call Igbe now late brought the plaintiff to my house and introduced him as someone who was interested in buying the defendant’s land. The defendant was then living at Ikot Ekpene. I sent for him. He and the plaintiff negotiated in my house in my presence. They settle.

It is also clear from Mr. Onyenze’s evidence that the parties fully negotiated and came to a definite agreement…

This piece of testimony was not in the least challenged and I accept it as true. I find as a fact the negotiation was done in the presence of P.W.3 Gabriel Onyenze in Mr. Onyenze’s house. I also find as a fact that indeed it was Mr. Onyenze who brought the plaintiff and defendant together.

It is also clear from Mr. Onyenze’91s evidence that the parties fully negotiated and came to a definite agreement. It was after this agreement that the parties agreed to go to a solicitor to draft an agreement for them. There was not the slightest suggestion that when the parties negotiated in Mr. Onyenze’91s house, a solicitor was there. It was only after they had come to an agreement that the question of solicitor was raised. The plaintiff had intimated that he would pay the purchase price after the necessary documents had been drafted. This was how P.W.3 Gabriel Onyenze put it, “the defendant agreed to sell the land to the plaintiff for ?320’97(N640.00). The plaintiff agreed to pay but said he would do so after the deed of conveyance had been prepared.”

Mr. Onyenze impressed me as a very responsible gentleman and the fact that he is a relation of the defendant did not at all lead him to give biased evidence. Some lesser character, would have studiously suppressed the truth.

I accept the evidence of P.W. 3 and find as a fact that the plaintiff and defendant agreed on a purchase price of ?320’97 (N640.00) for the land. I also accept the evidence that thereafter the parties went to a solicitor’97Mr. Ogwuegbu now a Justice of the Appeal Court who drafted the documents received as exhibit A and B in these proceedings.

The defendant told the court that the plaintiff paid only ?300’97 (N600.00). Plaintiffs evidence amply supported by P.W 3 Gabriel Onyenze who was present when the purchase price was paid, was very clear and I believe it. This was how P.W. 3 put it:’97″In my presence the plaintiff and defendant signed the documents. The plaintiff paid ?320’97 in my presence to the defendant. The defendant was deliberately suppressing the truth. He lied to the court. He accepted the agreed purchase price of ?320 ’97(N640.00) and also singed the document exhibits A and B.

On a preponderance of evidence, the scale tilts very heavily in favour of the following findings i.e. (a) the plaintiff offered to sell the property in dispute to the defendant and the defendant accepted the offer in the presence of Mr. G. Onyenze P.W.3 (b) that the purchase price was fixed at ?320’97 in the presence of P.W.3 (c) that after the parties had agreed they approached Mr. Ogwuegbu to draft the documents exhibits A and B. (d) that both plaintiff and defendant and also P.W.3 Onyenze signed the documents exhibits A and B (e) That the plaintiff fully paid the agreed purchase price of ?320’97 to the defendant in the presence of P.W.3 Gabriel Onyenze. I am satisfied from a preponderance of evidence that the plaintiff has successfully discharged the burden of proof which lied on him to establish the above facts.

I am equally satisfied that after he had received the agreed purchase price, the defendant voluntarily handed to the plaintiff several documents including the original lease which bore the defendant’s name i.e. Exhibit C, and other documents which I will refer to later.

The appellant has not challenged the finding of the Judge that the parties firmly agreed for the sale of the plot to the respondent before going to the lawyer to reduce the transaction into writing. Nor has he challenged the findings that the respondent paid the purchase price and the appellant handed over all the documents of title to him. The only aspect that the learned Senior Advocate has dealt with is the evidence of P.W.3 relating to whether or not Exh A or B or K was signed. Senior Counsel tried to pick holes in the evidence of this witness in this regard. Having regard to the finding that parties had agreed to the entire arrangement and only came to the lawyer to reduce it into permanent form, the arguments here are not very helpful.

Considering the evidence before the court and all the circumstances of the case, I feel very reluctant to interfere with the findings of the learned Judge. If the appellant had not given the document of title i.e., the head lease, Exh. C. to the respondent, how did the latter get them? He tendered them in evidence. Did he steal them? The appellant has not said so. He claimed in his statement of defence that he had left them in the custody of P.W.3, his own relation. The latter however, gave this claim the lie when he testified unchallenged that in his presence the appellant handed them over to the respondent.

The next question is whether or not the house on the plot was built by the appellant before he sold the plot to the respondent or the latter built it after he had acquired it. There is also the question of who was responsible for paying the rates and other bills after the war.

Here again the learned Judge made some unchallenged findings of fact thus on page 163, line 1 to page 165, line 20:

“Was the land vacant when the defendant offered to sell the land to the plaintiff? P.W 3 who brought the plaintiff and defendant together told the court that he knew the land very well and described it as a vacant parcel of land when the defendant sold it to the plaintiff. The evidence that it was a vacant parcel of land was not challenged. I find as a fact that the land was not developed at the time. It was vacant. The next question is who latter developed it?”

To answer the question posed above, I now go to the evidence of the plaintiff, P.W.1, P.W.2 Peter Ebinum P.W. 3 Gabriel Onyenze, the defendant D.W 1 and D.W.4 Gabriel Eze, first, Gabriel Eze D.W. 4. He is the elder brother of the defendant’s wife. He was invited to tell the court that the defendant used to give money to pay the contractor who put up a building for the defendant in the land.

He said that, he saw the building in progress and that it was completed in 1967. The witness struck me as a very irresponsible person. He was merely suborned to support his sister’s husband. He lied to the court. Of course he did not make payments to anybody and the defendant did not give him any amount for any house. It was an extreme act of desperation on the part of the defendant to suborn his brother-in-law to come to court to give false evidence. The defendant did not at all put up any house in the land after he sold it to the plaintiff in 1963.

I accept the evidence of the plaintiff and his witness PW2 Peter Ebinum that plaintiff employed the services of the one R. C. Amobi & Sons who was the employer of P.W.2 at the time to put up his building in the land in dispute. I accept the evidence of the plaintiff and P.W.2 that the house was started in 1964 and completed in 1967. I accept the evidence of P.W.2 and find as a fact that he was the plaintiffs caretaker in the house. He, P.W.2 in fact put in tenants who paid rents to him. I accept the evidence that when Umuahia Town became a war theatre during the civil war all the inhabitants of the town fled for safety. P.W.3 Gabriel Onyenze himself confirmed that it was the plaintiff who put up a house in the land before the outbreak of the civil war and added that there was no trouble at all between the parties then.

Now, the trouble between the parties is traceable to events which occurred after the civil war. It is common knowledge that most of the houses in towns which became war theatres during the civil war were destroyed when Umuahia became a battle ground. For a period of nearly ten years after the end of the civil war the plaintiff was not seen. In the meantime, the Land Office was understandably calling on the defendant to pay land rents. I have used the word “understandably” because after the defendant had sold the land to the plaintiff, the parties did not complete all the formalities to get the lease in the name of the plaintiff before the outbreak of the civil war. The lease therefore still in the name of the defendant. I accept the evidence by P.W.3 Gabriel Onyenze that the defendant sought his advice when the land office made demands for land rent. I accept the evidence by P.W.3 that by a rare stroke of chance he sighted the plaintiff at Etiti as he was returning to Umuahia from his home sometime in 1981. He stopped walked into compound where he sighted the plaintiff and met him. He asked the plaintiff why he had not tried to visit them since the end of the civil war and the plaintiff replied that he was teaching in Bendel State. P.W.3 advised him to see the defendant. Let me pick up the evidence of P.W.3 from that point:

“I advised him to see the defendant and that the defendant was complaining. He agreed to do so. Then I left him. But for a long time he was not seen. The defendant complained to me that the land office was threatening to take the land and that he would reconstruct the building and give it out for rent. This was about 1981. Then I said he could do so. I advised him to keep record of his expenses.

He proceeded to repair the building.”

P.W3 spoke the truth. I believe the above evidence as true. The defendant adopted a completely wrong, strategy in this matter and this lead him to resort to very mean and despicable tactics full of infidelity and dishonesty. There was no need for him to deny the obvious.

If, as the learned Judge found, the appellant had sold the property to the respondent and the latter was responsible for putting up the building on it and for paying the outgoings on it, then it must follow as the day follows the night that the respondent is entitled, as between the appellant and himself, to all the reliefs he sought. In the result I hold that the learned Judge was justified in granting them. The appellant has also complained about the arbitrariness and excessiveness of the costs of N2.500.00 awarded against him. It is true that what the learned Judge took into consideration is not evident on the fact of the record. It cannot, however, be disputed that the case took almost six years to conclude, with many adjournments. Papers had to be filed and counsel had to be transported to and from court. These are matters that a court may take into consideration when fixing the amount of costs without expressly so stating. I think before one can conclude that costs awarded are arbitrary one has to consider all the factors I have highlighted and see whether the amount fixed is justified by them. I do not think that the amount of N2,500.00 was in the circumstances of this case, excessive and the fact that the Judge did not put his reasoning process on paper did not necessarily make his decision on costs arbitrary. In the result this complaint also has no merit.

In the final result, the entire appeal fails and is according dismissed. The decision of the trial court is affirmed in all its ramifications. The appellant shall pay cost of this appeal assessed at N4,000.00

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Other Citations: (2000)LCN/0795(CA)

Chief Yele Oyeneyin & Anor. V. Dr. Akinkugbe & Anor. (2000)

LawGlobal-Hub Lead Judgment Report

IBIYEYE,  J.C.A.

This is an appeal against the judgment of Olamosu J. sitting in the High Court of Justice in Ondo delivered on the 20th of February, 1995.

The 1st and 2nd plaintiffs now 1st and 2nd respondents in this appeal filed subsequent to an amended writ of summons, a joint statement of claim and reply and defence to the counter claim which were amended several times over and were eventually titled further amended statement of claim with the plaintiff’s reply and defence to the 2nd defendant’s counter claim. The 1st and 2nd defendants who are the 1st and 2nd appellants in this appeal on the other hand filed separate statement of defence with counter claim albeit amended respectively. The 1st and 2nd plaintiffs sought the following reliefs in their paragraph 27 of the further amended statement of claim against the 1st defendant.

“27. Where upon the plaintiffs claim against the 1st defendant:

(i) Possession.

(ii) N100 per day from 1st December, 1989 as agreed penalty until possession is given up.

(iii) N100,000 damages for trespass committed by the defendant, his agents and privies to Chief E. A. Akinkugbe (Deceased) land (sic) to the North and West of the area granted to the 1st defendant by plaintiffs in 1972 which is verged black in survey plan drawn by Mr. G.F. Okusanya licensed surveyor dated 2nd June, 1992.

(iv) Perpetual injunction restraining the 1st defendant, his agents and privies from committing further acts of trespass over the land referred to in (iii) above”.

Both defendants joined issues with the plaintiffs in the further amended statements of defence and the matter proceeded to hearing. The plaintiffs adduced evidence in person and called two other witnesses. The resume of their evidence is that, the plaintiffs traced their root of title to the land in dispute to grants made to their late father, Chief E.A. Akinkugbe, the Sasere of Ondo by Okedoko and Loduti and Ajaka families as reflected in Exhibits A and B respectively. The said two conveyances were made in 1962. Other documents tendered by the plaintiffs to establish ownership are the landlord and tenant agreement with the 1st defendant, letters of probate incorporating the will of Chief E. A. Akinkugbe, notice of plaintiff’s intention to terminate tenancy and recover possession and two survey plans of the land in dispute which are Exhibits H, F, G, S and K respectively.

The defendants equally testified in person and called four other witnesses. The 1st defendant’s case was that he was put in possession of the land in dispute by the 2nd defendant’s family under a lease in 1970. He cleared the land which was thick forest and commenced his sawmill business. Thereafter the plaintiffs claimed ownership of the land and he thereupon took a fresh lease from them (the plaintiffs). The 2nd defendant in 1989 equally laid claim to the same land and threatened the 1st defendant that if he did not renew the lease he (the 1st defendant) would be forcibly ejected.

The 2nd defendant’s case is that the land does not belong to the plaintiffs but to him through inheritance. He thereupon filed a counter claim seeking a declaration of title against the plaintiffs. The plaintiffs replied by countering the relief sought in the counter claim by saying that the land in dispute was part of the large parcels of land granted to their father by Okedoko family by a conveyance (Exhibit A).

At the close of hearing, the learned counsel for both parties addressed the court. The trial court in a reserved judgment partially allowed the reliefs sought. Thus, it allowed the first relief, stepped up the second relief to N2,000.00 per annum in accordance with Sections 5 and 6 of the Landlord and Tenant Law Cap 55 Laws of Ondo State of Nigeria volume III making a total of N10,500.00 for the preceding five years and three months when the 1st defendant was a tenant at will instead of N100.00 per day penalty agreed to by both the plaintiffs and the defendants. N25,000.00 was granted the plaintiffs for the trespass committed by the 1st defendant in respect of the parcel of land West of the sawmill but dismissed the claim for trespass on land North of the sawmill including the two buildings and wall fence in favour of the 1st defendant having found that the plaintiff’s family had not only sold that area to the 1st defendant but had also acquiesced and waived their right on the said portion of land. Perpetual injunction was granted only in respect of the sawmill and area West of it as well as areas described in Exhibits A and B shown on Exhibit K without the two buildings of the 1st defendant.

The defendants, now appellants are utterly dissatisfied with those parts of the judgment against them and appealed to this court on fourteen original grounds of appeal. The appellants subsequently, sought and got leave of this court to substitute those fourteen original grounds of appeal with only twelve grounds of appeal.

Parties filed and exchanged briefs of argument in accordance with the rules of this court. The appellants distilled the following twelve issues from their grounds of appeal:

“3.01 Whether the trial Judge was right in not dismissing the plaintiff/respondent’s claim in their entirety when the deed of gift by which the land in dispute was purportedly granted to the late father of the respondents in 1954 as recited in Exhibit ‘A’ i.e. Deed of conveyance dated 16th December, 1962 and registered as No.32/32/592 of the Lands Registry, Ibadan were not pleaded in evidence and when no evidence of the purported gift was also given at the trial; and whether the said Exhibits A and B can have any binding effect on the Loduti and Ajaka family.

3.02 Whether Exhibits ‘A’ and ‘B’ can confer any title in the land in dispute or any land at all on the late father of the respondents when the grants made vide Exhibits A and B are void ab initio,

3.03. Whether the trial court was justified in awarding the sum of N25,000.00 damages for destruction of economic trees on the land in dispute West of the sawmill area when no such claim was made by the respondents in their writ of summons and the amended statement of claim and when the said award was not proved strictly as required by law.

3.04. Whether the trial Judge was right in restraining the 2nd defendant/appellant family from further acts of trespass on the land West of the sawmill when that relief was not sought against the 2nd defendant/appellant’s family at the trial and whether the court has jurisdiction to award a relief not claimed in the pleading before it.

3.05. Whether the trial court ought to have given judgment in favour of the 2nd defendant/appellant in respect of the counter claim of Loduti and Ajaka family,

3.06. Whether the trial court was justified in law to have ignored and failed to consider the evidence of D.W.3, Olaloye Akinlosotu that the land in dispute is that of Loduti and Ajaka family and not of his (Okedoko) family.

3.07. Whether there was any basis of the trial Judge in holding that the 2nd defendant’s family had divested itself of the ownership of the land in dispute.

3.08. Whether by the evidence before the trial court and the plans filed and the visit to locus by the trial court, it could rightly be held that the identity of the area claimed by the 2nd defendant/appellant in the counter claim is not clear.

3.09. Whether by the evidence and the facts before the trial court, Exhibit M could rightly be described as a ruse and whether the holding by the court that Exhibit M is a ruse has not occasioned a miscarriage of justice to the defendants/appellants.

3.10. Whether Idoko family was a party in Suit No.HOD/27/74 and whether the finding by the trial court that either side in Suit No.HOD/127/74 was wooing the plaintiffs herein to its side is not erroneous and whether this error has not led the trial court to a wrong decision that has occasioned miscarriage of justice to the appellants.

3.11. Whether there is justification for the award of costs of N2,000.00 against the defendant/appellant and N4,000.00 against the 2nd defendant/appellant.

3.12. Whether on the totality of the evidence led at the trial, the orders made against the defendants/appellants by the trial court in its judgment and which formed the basis of the appeal by the defendants/appellants against the said orders complained of can legally be supported”.

The respondents on their part distilled the following three issues from the grounds of appeal for the determination of the appeal.

“i. Whether or not the learned trial Judge was right to have granted respondent’s claim for possession of the piece of land used by the 1st appellant as sawmill shown in survey plan dated 2nd June, 1992 drawn by G. F. Okusanya licensed surveyor.

ii. Whether or not the learned trial Judge was right to have dismissed the 2nd appellant’s claim for declaration of title and injunction restraining the respondents from collecting rents on the entire parcel of land in dispute.

iii. Can it be said that the damage awarded in favour of the respondents were based on wrong principles”.

From the respondent’s cross appeal which were premised on three grounds, three issues were formulated as follows:

“(i) Whether or not the learned trial Judge was right in giving any consideration whatsoever to the evidence of the 1st defendant that he bought the land to the North of the sawmill from a member of the plaintiff’s family.

(ii) Whether or not of (sic) the doctrine of laches, acquiescence and standing by could be invoked against the plaintiffs as regards their conduct in relation to the North of the sawmill.

(iii) Does the order of the learned trial Judge awarding the sum of N2,000 per annum against the 1st defendant from the 1st day of December, 1989 to the date of the judgment instead of N100 per day as agreed upon by the parties in Exhibit 11 not amount to rewriting the agreement for the parties?

The 1st cross respondent identified the following two issues as calling for determination:

“(i) Whether or not the trial court was wrong in giving effect to the intention of the parties in Exhibit H to the extent permitted by the law bearing in mind the combined effects of Sections 5, 6 and 30 of the Landlord and Tenant Law Cap 55 Vol. III, Laws of Ondo State of Nigeria 1978 and the attitude of Court of Equity to such penalty clauses in agreements.

(ii) Whether or not the plaintiffs would still be entitled to judgment with the area North of the sawmill premises assuming the trial court did not give consideration to or even expunge from the record the evidence of the 1st defendant that he bought the land North of the sawmill premises from a member of the plaintiffs; in the face of the plaintiffs/cross-appellant’s pleadings and evidence of sale and overwhelming evidence of estoppel, waiver and/or acquiescence given by the cross-appellants themselves at the trial”.

At the hearing of both the appeal and the cross appeal, the learned counsel for parties adopted and relied on their respective briefs and orally amplified certain issues therein.

I shall first of all consider the issues raised for determination in the appeal.

I shall in view of the encompassing nature of the issues formulated by the appellants, adopt them for the determination of this appeal.

On issue No. 1, A.A. Suleiman Esq., the learned counsel for appellants, referred to the recital in Exhibit A (Deed of Conveyance) dated 16th December, 1962 which states –

“… the Deed that a gift of the land in dispute comprising the sawmill premises in dispute in this case was made to the late father of the plaintiffs/respondents, Chief Sasere Emmanuel Akindolani Akinkugbe, as the grantee by the individual members of Okedoko family mentioned in the said conveyance as the grantors in 1954 via a Deed of Gift”.

He argued that failure to exhibit the ‘Deed of Gift’ made in favour of the respondents in 1954 was fatal to this case. The only gift referred to in Exhibit A is that of 1962. He further argued that since the deed of 1954 was the origin of the respondent’s title to the land in dispute and it is not in evidence, the trial Judge was in error to have given judgment to the respondents. The respondents did not consider this issue in their brief. It should be pointed that the recital reproduced above is not the same as the one in Exhibit A. The recitals in Exhibit A are instead the following:

“Whereas long before 1954, the grantors, were seized according to native law and custom of the piece or parcel of land hereinafter described and assured in unencumbered fee simple absolute in possession.

And whereas by a deed of gift made in 1954 the said land was granted to the said grantee by the said grantors. And whereas since the land had been given to the grantee, now proper conveyance of the land has been executed in accordance with land registration ordinance (Nigeria) and now that the grantee is desirous that a proper Deed of Conveyance conferring simple absolute in possession be executed in his favour, he has now requested the said grantors to execute these presents which they have now agreed to do in the manner following”.

The purport of the foregoing recitals, is that grantors are the absolute owners of the land described in Exhibit A and that land had by 1954 been informally given to the respondents/grantees and that at the grantees’ request, a formal Deed of Conveyance on the land was given to him in 1962. Exhibit A has done no more than complying with the provisions of the Land Registration Ordinance and I hold that that recourse was regular and it is even one of the recognized modes of establishing root of title to land. See Bala v. Bankole (1986) 3 NWLR (pt. 27) 141. The instant case is different from the case of Lawal v. G.B. Ollivant (Nig.) Ltd. (1972) All NLR 207 where it was held that a reference in a pleaded document to another document which is not pleaded is not tantamount to pleading that other document and it is not open to the court to act on such unpleaded document. The import of Exhibit A is that Chief E. A. Akinkugbe had legal interest in the land described in the Deed of Conveyance. There is no merit in this issue and it is resolved against the appellants.

On issue No.2, the learned counsel argued in essence that the land conveyed to Chief E.A. Akinkugbe by Exhibit A was not family land of Okedoko family and that all those who made the grant in point did so as beneficial owners. He further argued that none of the grantors in Exhibit A testified that that was the status of the land granted to the respondent’s father. He submitted that there is no evidence that Okedoko family land has been partitioned.

In the response, the learned counsel for the respondents contended that where a party in a land case relies and proves a conveyance as his root of title, it does not need to go beyond his vendor and proceed to prove the vendor’s title. He relied on the case of Dosunmu v. Joto (1987) 4 NWLR (Pt. 65) 297 at 312. In the instant case, he submitted that the respondents having tendered Exhibit A, being a certified true copy of the registered deed executed in favour of the respondent’s father by the Okedoko family there was no need for them to prove that the said conveyance was duly executed and he relied on the case of A. T. Jules v. R. Ajani (1980) 5-7 S.C. 96 at 110 and 113.

It is trite to say that a land in the family which has not been partitioned is prima facie family land. Four members of Okedoko community mentioned in Exhibit A and three members of Oke Otunba Quarters mentioned in Exhibit Bare not only members of the communities but also family heads and principal members. This assertion found support in particularly the evidence of the D.W.3 who was the appellant’s witness while being cross examined said that the persons mentioned in Exhibit A are the family head and the principal members of the family.

Furthermore, the items of evidence by the P.W. 2, P.W. 3 testified, inter alia, in order to establish title that the respondents won an earlier suit against one Johnson Olorunfemi when the latter trespassed on their father’s land whereas the 2nd respondent who brought a similar action against the same Johnson Olorunfemi lost. There is also unchallenged evidence by the P.W. 3 that the Loduti and Ajaka family gave land to his father in 1962 and that neither the 2nd appellant nor any other person challenged his family title to that land which is the subject of conveyance in Exhibit B. In these circumstances, there is no basis to hold that Exhibits A and B are void ab initio. The issue is resolved in the affirmative.

Issue No.3, the learned counsel urged the court to hold that the award of N25,000.00 as damages for trespass for felling economic trees is erroneous and devoid of legal foundation and that that amount which was for trespass simplifier was excessive as there was no evidence to justify it. He urged the court to set aside the award. He argued that since the claim was for cutting of economic trees, it should be in the nature of specific damages. It is obvious from the argument of the learned counsel for the appellants that he admitted the fact that trespass has been established. It is trite that proven tort of trespass attracts only general damages for which there is no strict proof. It is not enough for learned counsel to urge the court to reverse the finding of the trial court on damages without specifying areas of impropriety by the learned trial Judge. It is settled law that an award of damages is a matter for the trial Judge and normally an appeal court will not interfere with such award unless:

(1) Where the trial Judge has acted under a mistake of law.

(2) Where he has acted under a misapprehension of facts.

(3) Where he has acted in disregard of principles.

(4) Where he has taken into account irrelevant matters or failed to take account of relevant matter; or

(5) Where injustice would result if the appeal court does not interfere. See Union Bonk Nigeria Ltd. v. Odusote Bookstores Ltd. (1995) 12 SCNJ. 175 at 202 and 203, (1995) 9 NWLR (Pt. 421) 559 at 585. Solanke v. Ajibola (1968) I NMLR 253, 1 All NLR 46 and Zik’s Press Ltd. v. Alvan Ikoku 13 WACA 188.

The learned counsel failed to show that any of the foregoing circumstances existed in the approach of the learned trial Judge to this issue. The award of N25,000.00 remains as damages for destruction of economic trees. I also answer this issue in the affirmative.

Issue No.4 is the order of permanent or perpetual injunction made against the 2nd defendant/appellant. Learned counsel for the appellants submitted that it is wrong for the trial court to make an order of perpetual injunction against the 2nd appellant in respect of the area of land west of the sawmill as neither in the amended writ of summons and in the amended statement of claim nor in evidence did the respondents make or seek such relief. He further submitted that the learned trial Judge acted without jurisdiction when he made that order. He equally submitted that no court has the power to grant a relief not claimed in the writ of summons or statement of claim and he relied on the cases of Bola v. Bankole (1986) 3 NWLR (pt. 27) 141 at 149 and 150; Ekpeyong & Ors. V.Nyong (1975) 2 S.C. 71 at 80; Emiansegen v. Stephen (1985) 3 NWLR (Pt. 11) 154 Seaview Investment v. Toyin Munis & 2 Ors. (1991) 6 NWLR (Pt. 195) 67 at 86.

I have carefully considered the amended writ of summons, the amended statement of claim and evidence adduced in support of the averments in the amended statement of claim and I failed to find where the plaintiffs/respondents sought the relief of permanent injunction against the 2nd defendant/appellant in respect of the land west of the sawmill or at all. I agree with the submission of the learned counsel that no court has the right to grant a relief not sought. A trial court should instead confine itself to the reliefs raised by the parties in their pleadings and not venture into reliefs not pleaded. There is merit in this issue and it is resolved in the negative.

On issue No.5, the learned counsel submitted that since no evidence was led by the plaintiffs/respondents in support of the facts pleaded in their defence to the counter claim, judgment ought to have been entered on the reliefs sought therein in favour of the 2nd defendant/appellant.

It is not true that the respondents did not adduce rebuttal evidence to the reliefs sought in the appellants counter claim. Thus there is pungent evidence adduced by the respondent’s witnesses that the respondents have a better title to the land in dispute than that of the 2nd appellant. This is evidenced by Exhibits A, B, F, G, H, J and K which are deeds of conveyance, letters of administration, notice of owner’s intention to repossess, agreement between the plaintiffs and the 1st defendant and survey plans respectively. Aside the foregoing, it is apparent from the record that the 2nd appellant relied heavily on the traditional history given by the D.W.2. That reliance was misplaced as shown in the record of appeal that his items of evidence on title were ostensibly inconsistent. It is settled that a witness who testifies falsely on matters which are within his knowledge leaves no room for any Judge to credit him with any credibility on issues in contest before him. See Nnajiofor v. Ukonu (No.2) (1986) 4 NWLR (Pt.36) 505 at 521. There is no merit in this issue and it is resolved in the negative.

On issue 6, it is not true that only the D.W. 3 testified on the root of title to the land in dispute. The plaintiffs and their witnesses equally testified with more convincing documents such as Exhibits A, B, J and K that the land in dispute belonged to the plaintiff’s family at the time material to this case. I doubt if there is much to consider in the evidence of the D.W. 3 who is of Okedoko family and not Loduti and Ajaka family. He is even an errand man. The evidence of the D.W. 3 was damnified by the observation of the learned trial Judge who had the advantage of seeing and hearing the D.W 3 and he observed that he is a liar. See page 188 of the record of appeal. This is a finding of fact and this court shall not interfere with it as the trial court had made proper use of that opportunity.

See Woluchem v. Gudi (1981) 5 S.C. 291 at 295, 296326-329, Nwobodo v. Onoh (1984) 1 S.C. 1 at 53 and Ifeanyi Chukwu Osondu Co. Ltd. v. Akhigbe (1999) 11 NWLR (Pt. 625) 1 at 18. This issue lacks merit.

On Issue No.7, there is basis for the trial court’s finding that the 2nd defendant and his family had divested themselves of interest in Okedoko and Oke Otunda quarters through the grants made by the principal members of their family through Exhibits A and B. It is trite to say that a valid sale or transfer of family land has been effected where all the principal members actively participated in the transaction of its disposal.

Issues No.8 and 9 appear interrelated as they deal with the survey plans filed in the instant case. I shall accordingly deal with them together. The learned counsel for the appellants submitted in the main that since the area in dispute is well known and accepted by the parties to the action to be the same, the trial court could have relied on any of the plans before it. The trial court could not have done that because Exhibit L on which the 2nd appellant relied for describing the land and title to it is unreliable and inadequate. This is so because the D.W.4 who drew the plan testified that he had misgivings about it as it has no co-ordinates and the direction to the North is not shown on it (Exhibit L) as required by regulations. The D.W.4 further observed some discrepancies. Thus he said that while the dimension of the land in dispute on Exhibit B is 24.93 acres where as he indicated in Exhibit L that the respondent’s land covers an area of 400 feet by 400 feet. On the other hand, the authenticity of Exhibit Band K relied upon was not shaken. As regards visit to the locus in quo, it is observed from the record that the 2nd appellant testifying as tile D.W.2 who claimed to be farming on the land in dispute could not point out the location of his farm on the land in dispute to the learned trial Judge. The holding of the trial court that Exhibit M is unreliable has not occasioned any miscarriage of justice because of abundant evidence to that effect. I accordingly resolve the two issues in the affirmative.

I agree with the submission of the learned counsel for the appellants on Issue No.10 that Idoko family was not a party in Suit No. HOD/27/74 but I do not consider that that extraneous issue is pungent enough to occasion miscarriage of justice in view of the contention on the land in dispute which originally belonged to the Okedoko and Loduti and Ajaka families.

Issue No.11 is on the excessiveness of the costs of N2,000.00 and N4,000.00 awarded against the 1st and 2nd appellants respectively. The appellants are aggrieved by the excessiveness of the costs in point and directly appealed to this court on it. It is instructive to note that the object of awarding costs is not to punish the unsuccessful litigant but to compensate the successful litigant for his expenses. See Inneh v. Obaraye (1957) 2 F.S.C 58 at 59. Costs are also matter within the discretion of the trial Judge. As a rule, this court will not interfere with the Judge’s discretion except it is injudiciously exercised. See Ojeigbe v. Ubani (1961) 1 All NLR 277 and Haeo v. Brown (1973) 4 S.C. 149

In support of this issue, the learned counsel argued that the respondent’s learned counsel initially left it at the discretion of the court but that at the insistence of the trial court, the said learned counsel asked for N10,000.00 without showing any basis for that demand. He therefore urged the court to hold that the costs awarded are excessive. They should either be set aside or substituted with what is reasonable. I have considered pages 375 and 376 of the record of appeal but I failed to see where the learned trial Judge insisted that the learned respondent’s counsel should ask for costs. It is true that the respondent’s counsel said he would leave the issue of costs to the court’s discretion but in almost the same breathe he asked for N10,000.00 as costs. In backing up the demand for that amount, the respondent’s counsel said that the respondents employed the services of ‘a very senior surveyor’. It is settled that costs awarded are based on the principle of genuine and reasonable out of pocket expenses. In the instant case, the appellant’s counsel did not contest the status of the ‘very senior surveyor’ said to have been employed by the respondents. It should be recalled that the learned respondent’s counsel asked for the sum of N10,000.00 as costs but the learned trial Judge awarded only N6,000.00. In view of the undisputed fact that the respondents employed the services of a very senior surveyor towards the preparation for the suit before the trial court, I do not think the amount of N6,000.00 is excessive nor has the learned trial Judge exercised his discretion injudiciously. I shall accordingly not interfere with the award.

In retrospect, the evidence before the trial court substantially justifies the orders made against the appellants and they, save the order of permanent injunction against the 2nd appellant, shall not be disturbed. Issue No. 12 is also resolved in the affirmative.

The issues identified by the cross-appellants and the 1st defendant/cross respondent in their respective briefs have already been reproduced. I shall adopt the issues formulated by the cross appellants for the determination of the cross appeal.

On issue No. 1, the learned counsel of the cross appellant submitted that the evidence of the 1st defendant to the effect that he bought the land North of the sawmill from a member of the plaintiff’s family is inadmissible because it was not pleaded. Although he admitted that the plaintiffs pleaded the fact of the sale by the 2nd plaintiff to the 1st defendant, he went on to argue that the latter (1st defendant) could not rely on that averment in the pleading of the former.

In response, the learned counsel for the cross respondent admitted that the 1st defendant/respondent did not plead the fact of sale to him by the plaintiffs in the further amended statement of defence. He, however, argued that since the plaintiffs/cross appellants pleaded it and testified on it through the 2nd plaintiff that a known member of the plaintiff’s family sold the land to the 1st defendant/cross respondent, the 1st defendant/cross appellant could take advantage of it to strengthen his case that title in that land had passed to him. He therefore submitted that the uncontradicted evidence of the 2nd plaintiff has supplied the much needed legal evidence by the 1st respondent.

It is trite law that a plaintiff has to rely on the strength of his case and not on the weakness of the defence. See Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (pt. 7) 393 at 429; Kodilinye v. Odu (1935) 2 WACA 336 at 337. It is the duty of the plaintiffs/cross appellants to adduce credible evidence to satisfy the trial court of their claim to the land North of the sawmill. The plaintiffs instead of doing that, adduced evidence to found title in the 1st defendant. Since the plaintiffs supplied legal evidence on which the 1st defendant relied, I am of the view that the trial court was right to have made use of that unchallenged evidence and hold that the title in the land North of the sawmill had passed to the 1st defendant/cross respondent. I therefore resolve this instant issue in the affirmative.

On issue No.2, the learned counsel for the cross appellants submitted that the learned trial Judge was wrong to have relied on the doctrine of laches, acquiescence and standing by in dismissing the plaintiff’s claim for damages for trespass and injunction in respect of the land to the North of the sawmill. He argued that the doctrine could not operate because there is evidence that the 2nd plaintiff challenged the 1st defendant when he was erecting permanent structures on the land.

I am of the strong view that the circumstances of the land to the North of the sawmill do not admit of the operation of the doctrine of laches, acquiescence or waiver because there is unchallenged evidence albeit by the 2nd plaintiff that that parcel of land was sold to the 1st defendant by a member of the plaintiff’s family for N3,000.00. It will, however, be pointed out that the learned trial Judge did not only base his finding on the doctrine of acquiescence and laches but he heavily relied on the fact that property in the land to the North of the Sawmill had passed to the 1st defendant/cross respondent. I accordingly hold that reliance on the doctrine of acquiescence by the learned trial Judge is supplementary to the apparently substantial reason that title had passed. This appraisal notwithstanding, there is no doubt that the learned trial Judge invoked the doctrine of acquiescence and the principle of standing by in the determination of this case. There was no basis before him for such recourse. I therefore resolve this issue in favour of the cross-appellants.

On issue No.3, the learned counsel for the cross appellants submitted that the learned trial Judge was wrong when he awarded the sum of N2,000.00 per annum from the 1st day of December, 1989 to the date of judgment instead of the terms agreed by the plaintiffs and the 1st defendant in Exhibit H. He argued that from available evidence the agreement reflected in Exhibit H was voluntarily entered into by the parties. He submitted that the court being a stranger to the agreement should not have added or subtracted anything from it and he relied on the case of Obimiami Bricks & Stone (Nig.) Ltd. v. A. CB. Ltd. (1992) 3 NWLR (Pt. 229) 260 at 313. He contended that the learned trial Judge was wrong to have invoked the provisions of Section 5 and 6 of the Landlord and Tenants Law of Ondo State Cap. 55 Laws of Ondo State. He therefore submitted that the amount payable by the 1st defendant to the plaintiffs as agreed in Exhibit H is N186,200.00.

In response, the learned counsel for the cross respondent submitted that although the rules of Common Law and Equity recognize the right of parries to enter into a contract and impose on themselves terms and conditions as they intend to be bound, this right is not a blank cheque for those parties as such right is subject to the substantive provisions of statutes. He contended that parties are not allowed to enter into contract contrary to an express provision of the statute on the substantive issue involved in their transaction.

It is common ground that Exhibit H was voluntarily entered into by the plaintiffs/cross appellants and the 1st defendant/cross respondent. The 1st defendant/cross respondent who was aware of the implication of a breach is bound by the provisions of that agreement, in this case, Exhibit H. It is settled law that the court of trial is enjoined to enforce agreements between the parties and not to speculate or question the reasons for their entering into any agreement unless such agreement is illegal or contrary to public policy. See Obimiami Bricks Stone (Nig.) Ltd. v. A.C.B (supra) a page 313. There is no evidence in the instant case that the agreement in point (Exhibit H) is illegal. It should therefore be enforced as it is.

It is apparent from the record of appeal that the trial court failed to invoke the penalty clause in Exhibit H. It instead imported the provisions of Section 5 and 6 of the Landlord and Tenant Law of Ondo State Cap 55, Laws of Ondo State. I am of the strong view that that approach by the trial court was irregular. It is settled that a trial court, being a stranger to an agreement entered into by parties to it, should not add or subtract from it or import any provisions into it. See Nimanteks Associates v. Marco Construction Co. Ltd. (1991) 2 NWLR (Pt. 174) 411. I agree with the cross-appellants that the recourse of the trial court in importing the provisions of Ondo State Landlord and Tenant Law amounted to re-writing the agreement between the cross-appellants and the 1st defendant/cross-respondent. I therefore resolve this issue in favour of the cross-appellants.

In the final analysis, I find no merit in the appeal and it is dismissed. I award costs of N3,000.00 against the appellants. There is, however, merit in the cross appeal and it is allowed with costs of N3,000.00 against the 1st defendant cross respondent.

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Other Citations: (2000)LCN/0794(CA)

African International Bank Limited V. Purification Techniques (Nigeria) Limited & Anor (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an interlocutory appeal against the decision of Adeniji J. of the Lagos State High Court delivered on 30/4/93 refusing to dismiss the plaintiff’s action on the grounds that the latter action was not caught by the plea of issue estoppel as the issue of fraud had not been pleaded and tried in the previous action.

The facts giving rise to the appeal stem from an action filed by the first respondent in 1988 against the appellant in Suit No. LD/1125/88. The claims against the appellant were as follows:

“(a) An order directing an account to be taken of all banking transactions between the plaintiff and the defendant.
(b) Payment over by either party to the other of whatever sum may be found due after taking such account.

The appellant who was the defendant in the earlier case filed a statement of defence whereby it relied on the defence that there was an account stated and settled between the parties pursuant to a letter of 31/12/86.

Evidence was led by both sides on the issues raised and on the 26/7/86 Famakinwa J. delivered judgment whereby he upheld the plea of the appellant Bank that there was an account stated and settled between the parties which made it inexpedient to reopen the transaction between the parties. He consequently dismissed the respondents’ case. They immediately appealed against the judgment. That appeal is now pending before this Court of Appeal No. CA/L/90/93.

The respondents, had as well however, filed another action in 1991 against the appellant Bank in Suit No. LD/1603/91 in respect of Account No. 01005016 which is the same as adjudicated upon in Suit No. LD/1125/88. The respondents were claiming, inter alia:

“(i) An order setting aside any account stated and consequently the judgment in Suit No. LD/1125/88 based on the account stated between the plaintiff and 1st defendant with respect to the operation of Account No. 01005016 on the ground of fraud and/or misrepresentation.
(ii) A declaration that the plaintiff is only indebted to the defendant in the sum of N1,009,818.73 (One Million Nine Thousand, Eight Hundred and Eighteen Naira, Seventy Three Kobo) as at 25th May, 1988 when the external guarantee was called in to liquidate plaintiff’s indebtedness with respect to Account No. 01005016.”

The appellant filed a statement of defence in opposition to the claim and subsequently brought an application in the lower court seeking a dismissal of the action on the grounds that it was frivolous, vexatious and tantamount to an abuse of the process of the court as the issues being raised were one and the same with those which had been comprehensively and conclusively dealt with in the judgment of Famakinwa J. in Suit No. LD/1125/88.

In his Ruling, Adeniji J. as already observed, refused to dismiss the plaintiff’s action on the grounds stated above. It is that Ruling which is the subject-matter of this appeal by the appellant.

Four grounds of appeal without the particulars are as follows:

“(i) The learned trial Judge erred in law in holding that a plea of cause of action estoppel was not available to the defendant/appellant in this case as the issue of fraud had not been raised in the earlier Suit No. LD/1125/88.

(ii) The learned trial Judge erred in law in holding that the plaintiff could relitigate on the issue of fraud when the plaintiff’s averment in its further amended statement of claim was not that the judgment in the earlier Suit No. LD/1125/88 was obtained through fraud being practiced on the court.

(iii) The learned trial Judge misdirected himself on the facts in holding that the issue of fraud was not raised in the Suit No. LD/1125/88 when the claim in the earlier Suit was all-encompassing of the plaintiff’s claims against the defendant/appellant as regards Account No. 01005016.

(iv) The learned trial Judge misdirected himself on the facts in holding that the defence of cause of action estoppel and/or issue estoppel was not available to defendant/appellant when the issue of fraud was one which could have been raised in the earlier suit.”

The single and main issue raised for determination by the appellant is as follows:

“Whether the issues raised in Suit No. LD/1125/88 are one and the same as the issues raised in Suit No. LD/1603/91 such as to give rise to a valid and sustainable plea of resjudicata and/or issue estoppel.”

The respondents adopted the issue raised for determination by the appellant. Now in determining whether or not the claim, raised and determined in Suit Nos. LD/1125/88 and LD/1603/91 are co-terminus it will be quite necessary to refer to the nature of claims made by the parties in their pleadings.

In Suit No. LD/1125/88 the 1st respondent in this appeal as plaintiff in June, 1988 claimed against the appellant as defendant then known as “African International Bank Limited”, in respect of current Bank Account maintained by the 1st respondent with the appellant at its Branch at 42/44 Warehouse Road, Apapa. Paragraphs 3 and 4 of the amended statement of claim read thus:

“3. The plaintiff avers that the defendant has failed to exercise due and proper care in accounting to the plaintiff with regard to the said account and has failed to maintain proper accounts of its banking transactions with the plaintiff.
4. The plaintiff avers further that once its said account No. 01005016 ceased to be a mercantile account current for mutual transactions, any right the defendant may have had to charge compound interest upon the sums owed to it thereon by the plaintiff automatically ceased. Accordingly the plaintiff shall contend that all charges of compound interest upon its said account are unjustified.”  (Italics by the plaintiff).

In paragraphs 13, 14 and 15 of its further amended statement of defence the relevant averments of the appellant were as follows:

“13. The defendant avers that there is a stated and settled account as recited in the plaintiff’s letter of 31st December, 1986 and as such the action is not maintainable and should be dismissed with substantial cost.
14 .The defendant avers further that by the terms of the external guarantee furnished to secure the plaintiff’s indebtedness to it, matters relating to the plaintiff’s indebtedness are triable only in Geneva, Switzerland.
15. The defendant denies the plaintiff’s account ever ceased to be a mercantile account current for mutual transactions and further avers that the defendant by the customs and practice of Banks is entitled to charge compound interest on the plaintiff’s indebtedness.”

The short and simple issue raised in Suit No. LD/1125/88 for the determination of the trial court was whether or not the 1st respondent was entitled to have an account ordered of the banking transactions between it and the appellant. The learned trial Judge Famakinwa J. resolved the issue in favour of the appellant on the ground that there was an account stated and settled between parties since December, 1986 and the court was not inclined to permit the parties to re-open the matter.

In Suit No. LD/ 1603/91 the 1st respondent claimed against the appellant and the 2nd respondent as defendants. I reproduce herewith paragraphs 11, 12 and 13 of the further amended statement of claim as follows:

“11. Prior to Suit No. LD/1125/88 being filed plaintiff through its solicitor complained to the 1st defendant about improper account with respect to the transaction between it and the 1st defendant.
12. After the judgment in Suit No.LD/1125/88 aforesaid the plaintiff consulted a firm of Financial Consultants Messrs Goldmine Finance Limited to look into the account with a view to ascertaining correctness of the said account.
13. The Financial Consultants aforesaid looked into the said account together with all the relevant documents sent to plaintiff by the 1st defendant and thereupon discovered that 1st defendant had been most fraudulent in the operation of plaintiff’s said account resulting in the huge financial indebtedness of plaintiff to 1st defendant.

Particulars of Fraud
(1) Fraudulently charging plaintiff commission on letters of credit over and above Bankers proved tariffs.
(2) Fraudulently debiting plaintiff’s excess amounts for payment of foreign bills.
(3) Fraudulently debiting plaintiff’s account with an amount said to be loan when the plaintiff was not granted any loan.
(4) Fraudulent excess interest.
(5) Fraudulently charging interest on the various amounts wrongly debited on plaintiff’s said account.”

From the above, it can be seen that in the action, from which this appeal is brought, the 1st respondent has alleged that the appellant operated its account in a fraudulent manner. That the fraud was discovered by the Financial Consultant after the judgment in Suit No. LD/1125/88, when the said consultants looked into the account of the appellant to ascertain its correctness.

It is the submission of the appellant’s counsel in the brief that the issues raised in Suit No. LD/1125/88 are one and the same as raised in Suit No. LD/1603/91 such as to give rise to a valid and sustainable plea of Res judicata and/or issue estoppel.

The respondents’ counsel on the other hand submitted that the issues raised by the two actions are totally separate and distinct. It is conceded that if an issue could have been raised in an action and it was not so raised, the party who ought to have raised such issue will be precluded from revising it in subsequent proceedings between the same parties. However, the learned counsel for the respondent has submitted that where it is contended that the previous proceedings have been tainted by fraud, there will be no estoppel per rem judicatam. He referred to Halsbury’s Laws of England, 4th Edition para. 1553 Volume 16.

It is well settled and well known that for the ambit of the doctrine of res judicata to operate, it must be shown that the parties, issues and subject-matter were the same in the previous case as those in the action in which the plea of res judicata is raised. Once the plea is made out the claim filed by the other party would be dismissed on the ground that the court lacks jurisdiction to allow parties to relitigate the same issue again.
The rule requires that where a final decision is given by a court of competent jurisdiction the parties cannot be heard to contradict that decision in any subsequent litigation between them respecting the same subject matter. See Ijale v. A-G. Leventis (1965) 1 All NLR 176 at 180; Okorodudu v. Okoromadu & Anor. (1972) 2 SC 21 at 31-32. See also recent decisions: In Daniel Mbionwu v. Agorji Obi (1997) 2 NWLR (Pt.487) 298 at 310; Alabi Aro v. Adisa Aro (2000) 3 NWLR (Pt.649) 443 at 457.

Having outlined the applicable principles above, the question now remains, whether the issue raised in the two cases were co-terminus or co-extensive in nature so as to have been caught by the plea of res judicata. The appellant raised this plea in paragraphs 17 and 18 of the statement of defence filed in relation to Suit No. LD/1603/91. I reproduce the paragraphs as follows:

“17. The defendant will contend at the hearing of this action in as much as the defendant admits paragraph 9 of the plaintiff’s statement of claim, the said judgment referred to in paragraph 10 of the plaintiff’s statement of claim fully determined the issues between the plaintiff and the defendant and this present action is an attempt to relitigate issues already decided by the Court of Law of Lagos State of Nigeria.
18. The defendant will contend at the trial of this action that the plaintiff is estopped from raising or having tried all the issues raised in its statement of claim as it has been the subject matter of a previous action the plaintiff and the defendant at the Lagos High Court in Suit No. LD/1125/88 and as such the principle of res judicata does apply.”

As earlier indicated, the learned trial Judge in his Ruling refused the appellant’s application on the grounds that the issue of fraud had not been raised and canvassed in the previous suit. I respectfully disagree with the learned trial Judge. He was wrong in his conclusion that the claim in Suit No. LD/1125/88’s touched the entire operation of the respondent account from 1980 – 1981. 1st respondent as plaintiff, in that suit had posited that proper accounts had not been rendered to it and that there were some discrepancies in the statement of account furnished to it. The present appellant, as the defendant then served a notice for further particulars on the plaintiff which thereafter consequently enumerated the areas of dissatisfaction. It would appear to me that the correctness of the accounts was then fully tried before Famakinwa J. He came to the conclusion that the accounts rendered to the 1st respondent were correct and that there was nonetheless an account stated and settled between the parties which the court ought not to reopen.

It would appear that the issue of fraud being raised in the present proceedings was at all material times subsumed in the issues raised in the action before Famakinwa J. In any event it is quite clear that issue of fraud which is being raised now could have and ought to have been raised in the previous suit. The basis for the complaint was in existence at the time Suit No. LD/ 1125/88 were filed. This fact is manifestly clear from the averments in paragraphs 11 to 13 of the further amended statement of claim. I have earlier reproduced above. All the issues raised in paragraphs 11 – 13 were in fact canvassed at the trial before Famakinwa J. and addressed in his judgment. I refer to pages 9-24 of the records of proceedings. In the course of judgment, the learned trial Judge clearly alluded to the terms of the plaintiff counsel’s answer to the notice for further particulars thus:

“…In particular our client demands details of all sums paid into its account from the account of Molaroid (Nigeria) Limited further to that company’s written instruction dated 1st July, 1982. Furthermore, our client demands details of commission, interest and other charges made by the Bank in respect of our client’s account during the stated periods and the basis upon which their charges were made.”

(Reference is made to page 16, lines; 37 – 46 of the Records)

The learned trial Judge in the course of his judgment further held at page 23 of the records thus:

“However, the mere fact that there is a correspondence between the plaintiffs counsel and the defendant is not per se sufficient reason in my mind, to re-open the matter, more importantly in the case the plaintiff has not been able to establish any error on the account.”

Given the terms of the claims as were placed before the learned trial Judge, Famakinwa J., and his subsequent judgment, it can be seen that his Lordship Adeniji J., was clearly in error when he refused to uphold the appellant’s contention that Suit No. LD/1603/91 was caught by the plea of res judicata and ought to be dismissed. This issue of fraud raised by the 1st respondent has been clearly an underlying consideration in Suit No. LD/1125/88 as the correctness of the entire account between the parties had been put in issue.

I have carefully examined the issues raised in Suit No. LD/1125/88 and those raised in Suit No. LD/1603/91. I hold that the issues are the same and this gives rise to a valid and substantial plea of res judicata raised by the appellant. In the final analysis this appeal succeeds and it is accordingly allowed. The Ruling of Adeniji J., delivered on 30/4/93 is hereby set aside. Accordingly I make an order dismissing the 1st respondent’s Suit No. LD/1603/91 on the ground that it was frivolous, vexatious and an abuse of the process of the court, I award N3,000 as costs against the respondents in favour of the appellant.

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Other Citations: (2000)LCN/0793(CA)

New Nigeria Bank Ltd. V. J. A. Edoma & Ors (2000)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

This is an appeal against the judgment of the Bendel State High Court sitting in Benin Judicial Division delivered on 23/3/89 in suit No.B/22/87. The 1st respondent who was the plaintiff before the trial court claimed against the appellant who was the 2nd defendant in paragraphs 19 and 20 of the amended statement of claim as follows:-

“(i) Whereof the plaintiff claims the said sum of N139,036.78 and interest at the rate of 6% per annum from 20th October, 1981 until the whole debt is paid off.

(ii) The plaintiff can pay the amount claimed plus interest and costs.”

Pleadings were ordered, amended and exchanged by parties. The parties called no witness but their counsel consented to admit all documents presented by the plaintiff/1st respondent. Thereafter, counsel addressed the court.

The learned trial Judge, E. Akpomudjere, J. delivered judgment on the 23rd day of March, 1989 and inter alia held:

“I am satisfied that the plaintiff has proved his case against the defendants as required by law and judgment is entered in its favour against the defendants jointly and severally for the sum of N139,036.78 with costs of N350,00.”

The facts of this case are simple and not in dispute between the parties, is as follows:-

The plaintiff, Onward Paper Mill Limited, is a major exercise and notebooks manufacturing company. The 1st defendant, J. A. Edoma, (Trading under the name and style of Green Sanders & Co. Nig.) secured a contract to supply notebooks and exercise books to the Bendel State Government. The plaintiff who is the 1st respondent in this appeal, demanded for an assurance of payment before supplying the 1st defendant with any notebook or exercise book in a letter dated 25/2/81 admitted in evidence as Exhibit “C1”. The 1st defendant thereafter secured an assurance or undertaking to pay the plaintiff through a letter from the New Nigeria Bank Limited, the 2nd defendant/appellant by a letter dated 6th August, 1981 admitted in evidence as Exhibit “C”. The plaintiff thereafter, supplied the said books to the Bendel State Government which duly accepted them. The Managers of the 1st defendant signed C2 and a letter dated 28th May, 1981, also admitted as Exhibit “C3”. The outstanding sum of N139,036.78 was owed by all the defendants to the plaintiff hence the institution of this appeal. Aggrieved by the decision, the 2nd defendant/appellant appealed to this court by a notice of appeal filed on 13/4/89 containing two grounds of appeal which read as follows:-

(i) The learned trial Judge erred in law when he held that the documents exhibits C2 and C3 constituted a guarantee by the 2nd defendant/appellant in the event of the failure of 1st defendant to pay same.

(ii) The judgment is against the weight of evidence.

When the appeal came up for hearing on 17/2/2000, all the three counsel representing the parties adopted and relied on their respective briefs of argument. From the two grounds of appeal, the appellant formulated the following issues for determination.

(a) Does the letter Exhibit C2 constitute a guarantee in strictu sensu between the appellant and the respondent when it was not made under seals?

(b) If the answer to issue No. 1 above is YES, then is the appellant’s honouring of the letter not based upon the happening of an event to wit: the receipt of payment from Bendel State Government by the appellant into 1st defendant’s account with the appellant?

(c) Finally, is the appellant bound to pay the sum of N139,036.78 to the respondent on behalf of the 1st defendant on the basis of Exhibit C2 when as a matter of fact, the condition in Exhibit C2 i.e. the money had not been paid into 1st defendant’s account with appellant by the Bendel State Government or at all?

The 1st respondent in his brief formulated only one issue which reads:-

“1. Whether the learned trial Judge was right in holding the appellant liable jointly and severally with the other defendants to the claim based on the undertakings, representations and assurance in exhibits C2 and C3.”

In the 3rd respondent’s brief of argument the issue formulated for determination is as follows:-

“Whether the 3rd respondent is bound by an unknown contract made between the plaintiff, 1st and 2nd defendants whereby the appellant made an undertaking to guarantee the action of the 1st defendant.”

The learned counsel for the appellant in his brief of argument submitted that Exhibit C2 is not a guarantee but if anything it is an undertaking. He further submitted that, the Manager who signed Exhibit C2 has no authority and there is no evidence that the conditions spelt out in Exhibit 3 had been complied with by the respondent. He contended that only the Directors or Chief Executive Officers of the appellant can sign guarantee which must be under the appellant’s common seal before it binds the appellant.

The learned counsel for the 1st respondent, in his brief of argument, submitted that the learned trial Judge was right in holding that the joint effect of Exhibits C2 and C3 were to make the appellant liable for the debt of N139,036.78 with cost of N350.00. On the issue of the capacity of the Managers of the appellant to sign Exhibits C2 and C3, learned counsel for the 1st respondent, submitted that the appellant did not plead that issue and it is trite law that parties are bound by their pleadings. He further submitted that evidence was not led at all in this case by the parties consequently there was no evidence on the issue of capacity of the Managers to sign the said Exhibits. Learned counsel urged us to dismiss the appeal as the appellant did not deny the supply and acceptance of the books by the 1st respondent. Since the issue formulated by the 3rd respondent does not appear to be based on the grounds of appeal, I will ignore the submission of the 3rd respondent on the issue which is incompetent as it is not tied to a ground of appeal. The learned counsel for the 3rd respondent however, stated in the 3rd respondent’s brief that the 1st defendant was a customer to the appellant and that guaranteed the contract to supply books but without the knowledge of the 3rd respondent.

The learned trial Judge in his judgment at pages 51-58 of record held;

“Regarding the argument of counsel for the 2nd defendant about its guarantee, I have examined Exhibits C2 and C3 very carefully and hold the view that the 2nd defendant was not merely to set as a conduit pipe in the whole arrangement as contended by counsel for the 2nd defendant. The 2nd defendant would have made all its charges sticking out its neck in the type of deal that was involved. Also there was no evidence from the 2nd defendant that the Manager who signed Exhibit C2 had no capacity to sign on behalf of the 2nd defendant. I am in agreement with the submission of counsel for the 1st defendant that the 2nd defendant cannot extricate itself from liability in this matter.

I am satisfied that the plaintiff has proved its case against the defendants as required by law and judgment is entered in its favour against the defendant jointly and severally for the sum of N139,036.78 with cost of N350.00.”

Before embarking on the consideration of the issues, I would like to state that there is a proliferation of issues in this appeal. The appellant, filed only two grounds of appeal, the second ground of appeal is the omnibus ground of appeal; whereas no evidence was led at all by the parties before the trial court and formulated three issues for determination from the one ground of appeal, in other words having more issues than the grounds. It is wrong for counsel to formulate issues for determination in excess of the grounds of appeal filed. Nevertheless, I will proceed to consider the appeal on its merits as no objection was raised before us on the matter.

It appears to me that the issues formulated by the appellant are academic, having accepted in his brief that Exhibits C2 and C3 which form the basis of the action against the appellant are undertakings not a guarantee. It should be noted that the suit against the appellant and two others is for a claim of the cost of exercise and note books, jointly and severally against the parties.

In my view, Exhibits C2 and C3, which I have carefully studied, here established the connection between the appellant and the 1st respondent justifying the institution of the action against the appellant as 2nd defendant. I am therefore in complete agreement with judgment of the learned trial Judge and I also hold that the appellant is estopped from denying Exhibits C2 and C3 and the effect of the said exhibits. I am fortified in holding that view by the decision of the Supreme Court of Nigeria, in Nassar and Sons (Nig) Ltd. v. L.E.D.B. (1959) SCNLR 607, (1959) 4 FSC 242, 250-251, cited in the 1st respondent’s brief where the court inter alia held;

“It is impossible to commend the Board for what took place at the time when the appellants were, to its knowledge, negotiating for the assignment of the lease, but I do not consider the Board owed any duty to the appellants on which an estoppel can be founded. Oral authority for development was not sufficient, and the appellants should have known this. It is otherwise, however, as regards the letter to the Bank. The Board was under no obligation to inform the Bank of the stage which negotiations had reached, and it can hardly have supposed that the Bank asked for the information out of idle curiosity. In the absence of evidence to the contrary it seems to me clear that the Board knew that the Bank was likely to allow the appellants to incur additional liabilities in consequence of the letter and intended that the letter should influence the Bank in reaching its decision. This being so, I consider that the Board is now estopped from submitting that the appellants are not entitled to any compensation at all.”

The main function of an Appeal Court, in my view, is in the first place, to determine whether an error has been committed by the trial court. If it finds such an error committed, it will then consider its gravity and magnitude to justify the reversal of the judgment of the trial court. It is not every error committed by a trial court that would automatically lead to reversal of its decision. Such an error must have substantially and materially affected the decision of the trial court.

In the instant appeal, I have already held that the learned trial Judge was right in his decision and even if I am wrong (I believe I am not), I hold that the error is neither substantial nor material to warrant the reversal of the judgment of the trial court.

In the result, having regard to the foregoing, I hold that the appeal lacks merit and is hereby dismissed, I hereby affirm the judgment of E. Akpomudjere, J., delivered on the 23/3/89, Appellant to pay costs assessed at N2,000.00 to each respondent.

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Other Citations: (2000)LCN/0792(CA)

Cedar Stationery Products Ltd. V. International Bank for West Africa Ltd. (2000)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

The judgment or ruling being sought to be cross-appealed by the respondent was delivered on 21st of August, 1990. The record of appeal was received in this court as the number of appeal suggests as far back as 1991. The appellant’s brief of argument which was filed out of time on 19/12/95 was deemed as properly filed and served on 30th January, 1997.

The applicant has made two unsuccessful attempts to cross-appeal the last of which was dated 26th June, 1998 and filed on 29th June, 1998. It was struck out like the previous one. In the present application, the applicant is seeking for the following reliefs:-

“(i) Leave of the court to raise a fresh issue on this appeal.

(ii) Leave of enlargement of time within which the applicant may file and serve a respondent s notice of cross-appeal against the judgment of the Federal High Court Kano in suit No. FHC/K/M5/85 dated the 21st August, 1990.

(iii) An order deeming as duly filed and served the respondent’s notice of cross-appeal exhibited to this application.

(iv) An order enlarging the time within which the applicant may file and serve the respondent’s brief of argument in this appeal”.

The applicant abandoned prayer three thereof seeking the deeming of the notice of cross-appeal to be properly filed and served.

I wish to observe that prayers 2 and 3 are clumsy or inelegantly drawn up. In one breath, prayer 2 is seeking for leave and in another it is asking for an enlargement of time to appeal. It equally created doubt as to the intention of the applicant. It is not clear whether he is asking for leave to file a respondent’s notice or he is praying for enlargement of time to cross-appeal.

The application is supported by affidavit, a further affidavit and a further and better affidavit. There is no counter-affidavit nevertheless the application was strenuously opposed by Miss O. O. Bello of counsel.

In moving the application, the learned counsel for applicant, Mr. Offiong, postulated that in considering prayer (ii) there are two requirements to be met by a prospective appellant and the two conditions are embodied in Order 3 rule 4(2) of the Court of Appeal Rules, namely good and substantial reason why the appeal was not brought within the prescribed time as well as grounds of appeal showing good cause why the appeal must be heard. He referred to paragraphs 7-14 and 16-18 as showing the reason why they did not appeal within time.

Learned counsel contended that the competence of the trial court is challenged by the grounds of appeal. He argued further that where the jurisdiction of the trial court is being put in issue or contested on the authority of In Re-Famart Produce and Shipping Line v. E De Comm (1971) NSCC 246 and Victor Ugwu v. Chief Mark Bunge (1997) 8 NWLR (Pt. 518) 527, 541 the relief must be granted.

On prayer 1, he contended that grounds (i) and (ii) of the proposed notice of appeal are grounds of law in respect of which no fresh evidence would be required: P.D.C. Okenwa v. Military Governor of Imo State & Others (1996) 6 NWLR (Pt.455) 394, 407.

Learned counsel in respect of prayer (iv) that is application for extension of time for filing respondent’s brief of argument he informed the court that the reason is contained in paragraph 14 of the affidavit in support. He then urges the court to grant the application.

Learned counsel for respondent, after indicating her intention to oppose the application, referred to paragraphs 7, 8 and 9 of the affidavit and contended that they offend against the provisions of the Evidence Act. She further contended that the applicant is a limited liability company and there is nothing throughout the 21-paragraph affidavit showing nexus between Mr. Hadad, the deponent and the applicant. She referred to section 88 and 89 of the Evidence Act and urged upon the court to strike out those paragraphs.

On prayer 2, learned counsel for respondent contended that the fresh point contained in the proposed notice of appeal marked as Exhibit EZMI centres on whether there was a verifying affidavit sworn to in the trial court. She submits such relief should not be granted. Attorney-General of Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Pt. 92) 1, 23.

She went on to contend that, in application of this nature, the applicant is required to set out the fact that will persuade the court to act in his favour and also has to show that fresh evidence will equally not be required and the applicant failed to show this in his affidavit. Ejiofodomi v. Okonkwo (1982) 11 SC 74, 97. On the second prayer learned counsel for respondent argued that there is no reason in the affidavit why the appeal was not filed within the prescribed period even if the court is mindful of considering paragraphs 7 and 8, which is not conceded, and submitted that ignorance of law is no excuse. She then observed that applicant had more than 7 years to appeal if it had intended doing so. She urged the court to refuse all the prayers except prayer iv which is for enlargement of time to file respondent’s brief.

In reply, learned counsel for applicant conceded that he did not show the relationship between the applicant and Mr. Hadad because the respondents have once in an affidavit sworn to the fact that he was the Managing Director of the applicant.

The learned counsel for applicant did not state or give the nature or particulars of the fresh issue he proposed to raise on which fact he prevaricated. He first directed the court to the affidavit in support and when told that affidavit is evidence and the relief sought should not be garnered from evidence he graciously admitted that he did not show the nature of the relief sought in his first relief. Can the court gloss over such omission? I do not strictly think so otherwise the court may end up issuing an applicant with a blank cheque to raise all sorts of fresh issues. The discretion should, therefore, not be exercised strictly. Since the grounds of appeal on which applicant proposes to predicate its point are of law, I think it is in the overall interest of doing substantial justice to overlook such omission.

It is incumbent on a party seeking leave to raise fresh point for the first time in the Court of Appeal to show the fact that the point involves “a substantial point of law and no further evidence would have been adduced which would affect it are matters which would be taken into account”. Fadiora & Another v. Gbadebo & Another (1978) 3 SC 219, 249 and Abinabina v. Enyimadu (1953) AC 207, 215 and P.D.C. Okenwa v. Military Governor of Imo State & Others (1996) 6 NWLR (Pt.455) 394, 407.But I disagree with the learned counsel for respondent that applicant’s affidavit has to show that fresh evidence will not be required to be adduced. The applicant in the instant application can easily scale that hurdle, as he did, in the instant case, that the matter revolves around existence or otherwise of a verifying affidavit. It does not require adducing further evidence to show whether the petition was accompanied by a verifying affidavit or not. Once there is a verifying affidavit on the record it ipso focto follows that there was a verifying affidavit and if otherwise it necessarily follows that there was none in existence.

Before I close this line of reasoning I think it is incumbent on the court to examine the issue of existence of substantial substantive point of law. This will necessitate my reading the grounds of appeal contained in the applicant’s proposed notice of appeal. The grounds are 3 in number and read as follows:-

“(i) The lower court erred in law in not adverting to the fact that a precondition for maintaining a winding up petition viz: filing a verifying affidavit sworn to after petition has been presented had not been fulfilled and thus the court lacked the jurisdiction to entertain and adjudicate upon the petition.

(ii) The lower court erred in law when it entered upon the adjudication of a petition not backed by a verifying affidavit which thus had no prima facie evidence to support and thus cast the onus of proof on the respondent.

(iii) The lower court erred in law in not adverting to its lack of jurisdiction in that the petition for winding up in this case related to an action which was strictly not a winding up proceedings but involved issue which required enquiries or investigations as to the existence or non-existence of a debt and the owed quantum for which the lower court as a winding up a court unsuited for.

(Italics supplied)

These grounds smack more of respondent’s notice to affirm the judgment on grounds other than the ground relied upon in the judgment especially so when the learned trial Judge made no adverse finding against the applicant consequently making it an aggrieved party. All the learned trial Judge did was to decline jurisdiction. But that is not the application before the court. The one before us is for enlargement of time to appeal and leave to raise fresh point, which was not raised at the trial, on appeal.

Grounds (i) and (ii) are the grounds on which the leave to raise fresh point which was not raised at the trial to be raised at this stage of the proceedings. The two grounds on close scrutiny are variant of each other. They seek to challenge the competence of the court which has itself declared itself incompetent. It is on this basis that learned counsel apparently to show that it raised “substantial substantive” point of law but the bottom seems knocked out of their case by ground three whose particular conceded that “this related to an action which was strictly not a winding up proceedings”. If the case is strictly not a winding up proceedings how then did a verifying affidavit become a sine qua non? The grounds consequently, do not raise substantial substantive point of law which warrant the court exercising its discretion in favour of the applicant. Undoubtedly granting leave to raise a point which was not canvassed at the trial court before an appellate court is a discretionary power which does not require citing of an authority but if one is required, I refer to the cases of A.D.E Ejiofiodomi v. Okonkwo (supra) and Fadiora v. Gbadebo & Another (supra) 248.

Finally on this issue, learned counsel for applicant is seeking to raise a fresh point, which was not taken at the trial court before this court. The fresh point is contained in the proposed notice of appeal marked EZMI attached to the affidavit in support. The fresh point according to learned counsel for respondent centres on whether a verifying affidavit was filed in the court below or not. I am however, unable to associate myself with her submission that the applicant is seeking to raise a new line of defence, which should not be allowed, for the simple reason that their defence has always been want of jurisdiction in the trial court to entertain the petition. That being so they are only seeking to canvass a new line of argument and not raising a different defence from what it put up at the lower court. The case of Attorney-General of Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt.92) 1, 23 is not directly in point as it is within the right of a litigant to change his argument at any stage of proceedings.

Inspite of this, application for leave to raise a fresh point, which was not taken at the trial court, before this court is refused.

On the prayer (ii) seeking enlargement of time to appeal, it is common ground that rules of court namely order 3 rule 4(2) expressly provides that an application of this nature must be supported by an affidavit setting forth good reason why the appeal was not brought within the stipulated time. It is equally trite that there should be ground of appeal showing prima facie why the appeal must be heard and not why it should succeed.

On the reason why the applicant failed to bring the appeal within the time fixed by law, applicant relied on paragraphs 7-14 and 16-18. Paragraph 14 deals with extension of time to file respondent’s brief and not with failure to appeal within time. The relevant paragraphs read as follows:-

“7. That Mr. Hadad informs me and I believe him that since the judgment in this case 1990 he was not aware that this matter was pursued until his wife returned to Nigeria in January, 1997 and found that an order of substituted service had been made on the respondent and this was executed.

8. That Mr. Hadad informs me and I believe him that not being a lawyer, he thought that once the case had been finished in the lower court it was an end of the matter.
9. That Mr. Hadad informs me that it is when his present legal adviser received the record that they advised him on the need for the respondent to cross-appeal.
10. That Mr. Offiong informs me and I believe that he initially thought that the point to be agitated on behalf of the respondent could be done through a respondent’s notice and accordingly he filed a respondent’s notice.
11. That Mr. Offiong informs me and I believe that up till the 9th June, 1997 when he appeared at the Court of Appeal to argue this matter he erroneously still thought respondent’s notice will suffice though he need to ask for leave to raise fresh issue.
12. That Mr. Offiong informs me that it was after his return from Kaduna on the 9th June, 1997 he was able to undertake the research necessary to clarify the position when he found that he needed a substantial notice of appeal hence the present application. A copy of the proposed notice of appeal shown to me attached herewith and marked EZMI.
13. That Mr. Offiong informs me and I believe that he med an application in terms exactly the same as this since on 3rd November, 1997 which came up for hearing all the 19th January, 1998 and was struck out for non-appearance of counsel who regrettably arrived the court late due to transport problem just as the ruling striking out the motion was being read.
14. That Mr. Offiong informs me that on the 20th January, 1998 we filed another motion seeking to relist the motion of3rd November, 1997 struck out on the 19th January, 1998 and when the motion to relist came up for hearing on the 6th May, 1998 this Honourable court advised that we should lile a fresh application altogether in the same terms as are contained in the application of 3rd November, 1997 instead of asking to relist it.
15. That Mr. Offiong informs me and I believe him that all the 26th June, 1998 he filed another application on behalf of the applicant but this was again struck out today the 19th of October, 1999 as counsel regrettably arrived the court at 9.15 a.m. due to vehicle problems when the court had sat and called the case in his absence hence the present application.

(Italics supplied)

The applicant maintained studied silence on the fate of its respondent’s notice to affirm the judgment on ground other than the grounds relied upon by the learned trial Judge. There is no where in the affidavits where the applicant averred that the application was ever struck out by the court suo motu or at the instance of the applicant. In the absence of evidence showing that the previous remedy of respondent’s notice had been terminated the conduct of the applicant in bringing the present application tantamounts to abuse of court process. It is prima facie vexatious and oppressive to initiate two concurrent proceedings asking for virtually the same relief in the same court. The applicant filing application for extension of time to appeal while the application for respondent’s notice to affirm the judgment of the trial court on ground or grounds other than those relied upon by trial court was pending was improper and the new one must be struck out. Olubunmi Morgan & Others v. West African Automobile & Engineering Co. Ltd. (1971) 1 NMLR 219.

It concerns an abuse of court process. The Supreme Court held bearing in mind that it has been its practice not to exercise its discretion to take point suo motu unless it thinks in the circumstances of the case justice demands it Odiase & Another v. Agho & Others (1972) 1 All NLR (Pt.1) 170, (1972) 3 SC 71; Anibi v. Okoromadu & Another (1977) 3 SC 29, 30, 31. I am further strengthened in considering the question of abuse of court process, though suo motu, in view of the dictum of the Supreme Court in the case F.S. Uwaifo v. Attorney-General of Bendel State & Others (1982) 7 SC 124, 187 where it observed that “no Judge can be expected to treat something which is before his eyes as though it was not there”.

I am not expected to close my eyes to such glaring case of abuse of court process staring me in the face as if it were not there.

The other problem of this application is the vehement onslaught mounted against the validity of or competence of the averment contained in paragraphs 4, 8 and 9 of the affidavit in support when respondent’s counsel rightly, in my view, contended that they offend against the provisions of Evidence Act. It is in these paragraphs along with some others already set out in his ruling that the applicant sought to show reason why it failed to cross-appeal within the time prescribed. All the paragraphs referred to in the submission of the learned counsel for applicant without an exception viz paragraphs 7,8,9, 11, 12, 13, 16, 17 and 18 do not comply with the provisions of sections 88 and 89 of the Evidence Act, Cap. 62 of the Laws of Federation of Nigeria,1990. It is incumbent on a person who deposes to his belief in a matter of fact, and whose belief is based on any source or sources other than his own personal knowledge, unequivocally must disclose the facts and circumstances forming the basis of his belief. Furthermore, when the belief is founded upon information received from another person, the name of his informant must be stated in the affidavit and must state reasonable particulars of such an informant including the time, place and the circumstances of the information.

In the instant case, the deponent woefully defaulted in stating the particulars of the various informants from whom he derived his information nor place nor time nor the circumstance of the information: Banque De L’Afrique Oceidentale v. Alhaji Saba Shafadi & Others (1963) NNLR 21; Iris Winifred Horn v. Robert Rickard (1963) NNLR 67; (1963) 2 All NLR 40. The paragraphs deposed to by a staff of Mr.Offiong without due heed to the provisions of Sections 88 and 89 of the Evidence Act, Cap. 90 deserve to be struck out and are accordingly struck out by me.

In any case, the substance of Mr. Hadad’s affidavit is that he is not aware that there are channels of appeal from the decision of the court below hence the failure of the applicant to appeal within time. Mr. Hadad more than many is expected to be knowledgeable about our legal system than he professes to. Whatever be the extent of his experience about court proceedings the excuse he proffered is based on ignorance of law which is no excuse.

Learned counsel for respondent, in addition, submitted that particulars of Mr. Hadad from whom the deponent claimed to derive his information was not sworn to. She argued that the applicant, being a private limited liability company, Mr. Hadad’s relationship to it ought to be disclosed. This was not to be, learned counsel for applicant however countered this argument on the ground that the respondents are estopped from feigning ignorance of the relationship of Mr. Hadad and the respondents having previously deposed to affidavit identifying him as the respondent’s Managing Director. The affidavit was not exhibited to the present application neither is any of the previous applications allegedly made and struck out exhibited to the present application to demonstrate applicant’s good faith and diligence. I am of the firm view that a mere unsubstantiated averment is grossly inadequate. To return to the crux of the matter it is doubtful if averment of the respondent in a previous affidavit meet the justice of this case. The law, to wit, the provision of the Evidence Act requires the deponent to give the particulars of the source of his information his failure to do so, to my mind, is not cured by existence or otherwise of a previous affidavit. All the facts must be placed before the court which cannot rely on personal knowledge of either party.

There is no averment in the affidavit on the Mr. Hadad’s whereabout when the notice of appeal was served by substituted service. There is no evidence, before the court, explaining the cause of Mr. Hadad, who had not been alleged to have left the country, at the material time, failing to see the relevant document until arrival of his wife who was nowhere shown to have left the country. Apart from the inference that can be drawn from paragraph 7 of the affidavit that his wife left the country the fact of her departure as well as her return remain unsubstantiated. A mere assertion, and no more, cannot establish her absence from the country at the material time. In my considered opinion evidence of department and returning to the country can only be established by exhibiting to the affidavit in support of the motion certified copies of relevant page or pages of her passport showing her departure and arrival dates in the country. This was not done. The aforesaid in the same mauner applies to Mr. Hadad if it is his case also that he was outside the country at the time material to the service of the notice of appeal otherwise the facts of their respective absence from the country remain unproven.

The applicant has consequently not satisfactorily shown good and substantial reason why the appeal was not filed within the time prescribed for doing so.

Next to be considered is the grounds of appeal showing prima facie reason why the appeal must be heard. Where the ground or grounds of appeal challenge the competence of the suit and, therefore, the jurisdiction of the court, the court should be lenient in considering the reason for failure to appeal within time stipulated and not that the application should be granted as a matter of course contrary to the contention of the learned counsel for applicant. I have examined the three grounds of appeal contained in paragraph 3 of the proposed notice of appeal. Although the first two which are variant of each other tend to suggest that the trial court lacked competence to entertain the matter in the first instance, the third ground of appeal seems to take wind out of the applicant’s sail. The ground alleges that the petition was nor strictly one seeking the winding up of the applicant company. If on the showing of the applicant, that is their case, it would no longer be necessary to make existence of a verifying affidavit a condition precedent for hearing the petition as it is now being contended strongly on behalf of the applicant.

The competence of the court ceases to be in issue any longer. Furthermore, if the court had on its own declined jurisdiction the first two grounds of appeal questioning the jurisdiction are therefore otiose.

The grounds of appeal are not such that establish prima facie good reason why the appeal should be heard. There is therefore, no basis for considering the reason or reasons adduced for failure to appeal with leniency.

The application for extension of time to file respondent’s brief is with concurrence of counsel extended for 30 days from today. The application fails and it is refused. I award costs of this application assessed at N2,000.00 in favour of respondent.

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Other Citations:(2000)LCN/0790(CA)

Ben Agwuegbo V. Sam Dan Kagoma (2000)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

: This appeal is against the judgment of Abiriyi, J. of the Kaduna State High Court of Justice, Kaduna delivered on 25/11/96 granting an order of certiorari quashing the judgment of the Kaduna State Rent Tribunal No.2 of 27/8/96. The appellant as the plaintiff before the Rent Tribunal dragged the respondent as the defendant to recover a rented premises known as No. 1 Old Market Road, Barnawa, Kaduna and arrears of rent. At the end of the proceedings before the Rent Tribunal, the respondent was ordered to vacate the rented premises and pay arrears of rent. In addition, the Rent Tribunal without any relief claimed before it by the appellant as the plaintiff, also suo motu made the following order convicting and sentencing the respondent for an offence punishable under section 20(2) of the Rent Control and the Recovery of Premises (Amendment) Edict, 1996. The order at page 8 of the record reads:-

“The Tribunal will not close its eyes to the attitude and behaviour of the defendant who deliberately and intentionally harassed and annoyed the Landlord by deceiving him to occupy a room and later reporting him to the police for alleged trespass as a result of which the plaintiff was arrested. This the defendant clearly stated in his testimony. By so doing this Tribunal finds it necessary to invoke the provisions of section 20(2) of the Rent Control and the Recovery of Premises (Amendment) Edict of 1996 and it is accordingly ordered that the defendant is guilty of an offence of harassing and annoying his Landlord and is accordingly convicted under the above cited section and he is accordingly (sic) sentenced to fine of N1,000 or 1 month imprisonment in lieu of fine.”

Aggrieved with this decision, the respondent after paying the fine, with the leave of the Kaduna High Court initiated certiorari proceedings before that court for the purpose of quashing the decision of the Rent Tribunal on grounds among others that he was denied fair hearing in that he was convicted, sentenced to fine or imprisonment without being charged, tried or given the chance to defend himself. The High Court after hearing the application granted the order of certiorari as prayed and quashed the entire proceedings and judgment of the Rent tribunal containing the conviction and sentence passed on the respondent. In addition, the High Court also awarded the sum of N50,000.00 damages to the respondent against the appellant for the embarrassment, trauma and ridicule suffered by the respondent as the result of the wrongful conviction and sentence. It is against that judgment which was delivered on 23/11/96 that the appellant has now appealed to this court. In line with the requirements of the rules of this court, briefs of argument were duly filed and served on behalf of the appellant and the respondent by their respective learned counsel. In the appellant’s brief, the following 5 issues were identified for the determination of the appeal:-

“(a) Whether the High Court still has jurisdiction to quash the proceedings of the Rent Tribunal in view of the Rent Control and Recovery of Premises (Amendment) Edict No.4 of 1996.

In the alternative whether it was proper to go by way of judicial review instead of an appeal when the very remedy sought for were clearly stated to be available on appeal and there was no manifest error on the face of the record.

(b) What is the proper mode of instituting a case of the Kaduna State Rent Tribunal i.e. Are parties expected to file pleadings at the tribunal?

(c) Whether by the provision of section 7 of the Rent Control and Recovery of Premises Edict No.4 of 1996 of Kaduna State, a trial thereunder violates or complies with section 5(2) of the Criminal Procedure Code of Kaduna State and whether a Rent Tribunal lacks jurisdiction to try an offence created by the said section.

(d) Whether it is proper for a court to speculate and rationalise in the absence of necessary evidence to support same or to give judgment/ruling based on the evidence available.

(e) Whether the learned trial Judge was right in awarding the sum of N50,000.00 when same was not proved against the 1st appellant”.

In the respondent’s brief which contains a preliminary objection to the appeal, 4 Issues were formulated for the determination of the appeal. The issues are:-

“(i) Whether the Rent Tribunal Kaduna State has been conferred with criminal jurisdiction by Kaduna State Edict No.4 of 1996; and if its has, whether the Criminal Procedure Code and the 1979 Constitution of the Federal Republic of Nigeria (as amended) are applicable.

(ii) Whether the High Court has the jurisdiction to listen to and determine the certiorari proceedings filed before it by the respondent.

(iii) Whether the High Court rightly found that there was no application before the Tribunal written by the appellant as required by section 8 (1) of the Rent Control and Recovery of Premises Law Cap. 132, Laws of Kaduna State, 1991.

(iv) Whether the High Court was right in awarding N50,000.00 to the respondent as damages.”

I shall first dispose of the preliminary objection contained in the respondent’s brief of argument which was filed with the leave of this court on 29/9/98. The preliminary objection relates to grounds 1, 4, 5 and 6 of the appellant’s grounds of appeal. However, as the result of the objection, the appellant duly filed a motion on notice on 22/3/99 to amend the affected grounds of appeal in reaction to the preliminary objection. All the reliefs sought by the appellant in that motion including leave to appeal were granted by this court on 25/11/99 which effectively took care of the respondent’s preliminary objection which therefore was no longer alive on 23/3/2000 when this appeal was heard. As the amended grounds of appeal are not those being challenged in the preliminary objection of the respondent, I shall ignore the objection in the determination of the appeal.

Looking at the 5 issues in the appellant’s brief and the 4 issues identified in the respondent’s brief, it is plain that issues (b) and (c) in the appellant’s brief and issue (i) in the respondent’s brief earlier quoted in this judgment were formulated in relation to the proceedings and decision of the Kaduna State Rent Tribunal which is not directly on appeal before this court. What is on appeal before this court is the decision of the Kaduna State High Court of Justice which granted the respondent’s reliefs in certiorari order quashing the proceedings and judgment of the Kaduna Rent Tribunal. Therefore as the appellant’s issues (b) and (c) and the respondent’s issue (i) do not relate to the decision of the High Court now on appeal, the issues are incompetent and are accordingly hereby struck out. See Ogoyi v. Umagba (1995) 9 NWLR (Pt.419) 283 at 293 where Ogwuegbu, JSC faced with similar situation now at hand struck out the grounds of appeal and the issues arising from them which complained on the errors of the High Court rather than those of the Court of Appeal after stating the law as follows:-

“By Section 219 of the 1979 Constitution, only the Court of Appeal has jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal High Court, the High Court of a State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State. This court is therefore not competent to hear appeals straight from the High Court, Sharia Court of Appeal or Customary Court of Appeal.”

It is for the same reason that I hold that this court has no jurisdiction to determine this appeal an appellant’s issues (b) and (c) and the respondent’s issue (i) which relate directly to the proceedings of the Rent Tribunal in respect of which only the Appeal Tribunal constituted under section 21 of the Rent Control and Recovery of Premises Law, Cap. 132 Laws of Kaduna State as amended by Edict No.4 of 1996, has jurisdiction to entertain. See also Adio v. The State (1986) 2 NWLR (Pt.24) 581 and Harriman v. Harriman (1987) 3 NWLR (Pt.60) 244. The issues remaining for the determination of the appeal are appellant’s issues (a), (d) and (e) and the respondent’s issues (ii), (iii) and (iv) respectively which are virtually the same although differently worded. The issues as framed in the respondent’s brief of argument are more comprehensive and I shall proceed to determine the appeal on the remaining 3 issues in the respondent’s brief of argument.

First to be determined is whether the High Court has jurisdiction to listen to and determine the certiorari proceedings filed before it by the respondent. Learned counsel to the appellant had submitted that section 8(21A) of the Rent Control and Recovery of Premises Edict No.4 of 1996 of Kaduna State empowered the High Court only to hear appeals against any conviction and sentence in respect of offences created under section 20 of the Edict which in law over-rides the provisions of Order 42 of the High Court (Civil Procedure) Rules. That not having come by way of appeal against decision of the Rent Tribunal, the lower court had no jurisdiction to entertain the reliefs sought by the respondent for certiorari order.

It was the contention of the respondent however, that his application for certiorari order under Order 42 of the Kaduna State High Court (Civil Procedure) Rules was proper before the lower court which had supervisory jurisdiction to correct the proceedings of all inferior courts and tribunals of which the Rent Tribunal was one particularly where such inferior courts or tribunals acted in excess of their jurisdiction. That the appellate jurisdiction conferred on the High Court in respect of the offences created in the Rent Edict relates only to offences that have validly and properly tried by a court of competent jurisdiction. But where such offences were tried by a Tribunal which has no jurisdiction to try them, the trial is a nullity and therefore certiorari can issue to quash the proceedings particularly when the Tribunal was not conferred with the jurisdiction to try the offences under the Edict. That having regard to the case of The Queen v. The Governor-in-Council, Western Nigeria Ex-Parte Laniyan Ojo (1962) WNLR 62 at 63, the certiorari proceedings taken by the respondent at lower court were in order.

In the determination of this Issue of whether the lower court has jurisdiction to entertain the respondent’s application for certiorari order to quash the proceedings and judgment of the Kaduna Rent Tribunal, the answer does not lie in the Kaduna State Rent Control and Recovery of Premises Law Cap. 132 of the Laws of Kaduna State, 1991 as amended by the Kaduna State Rent Control and Recovery of Premises (Amendment) Edict No.4 of 1996 as strongly viewed by the appellant in his argument. The answer certainly lies in the provision of the 1979 constitution and any rules made under it, the Kaduna State High Court Law and the Kaduna State High Court (Civil Procedure) Rules, 1987.

The prerogative writ or order of certiorari is designed to check the excesses and arbitrary decisions of inferior courts and tribunals whereby such courts and tribunals are compelled to bring up their records, proceedings and judgments to the High Court for correction or to be quashed in appropriate cases. The Kaduna State High Court, like all other State High Courts created under the 1979 Constitution, apart from its general jurisdiction conferred under section 236 of the Constitution, is also conferred with special jurisdiction under section 42 of the Constitution to deal with cases of alleged violation of Fundamental Rights conferred on persons under Chapter IV of the 1979 Constitution. Section 42(1) and (3) of the 1979 Constitution where this special jurisdiction is conferred on the High Court of each State reads:-

“42(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

(2) …

(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purpose of this Section.”

In the Fundamental Rights (Enforcement Procedure) Rule 1979 made pursuant to sub-section (3) of section 22 of the 1979 Constitution above by the Chief Justice of Nigeria which came into force on 1/1/1980, Order 3 of the rules made specific provisions for certiorari application where rule 1(2) of this Order states:-

“(2) Where an order to remove any proceedings for the purpose of their being quashed is made, in any such case, the order shall direct that the proceedings shall be quashed forthwith on their removal into the court which heard the application.”

In the present case where the respondent’s application at the court below was centered on denial of fair hearing by the Rent Tribunal, the application was quite in order and the lower court has jurisdiction to hear and determine the application as it did having regard to the right conferred under the 1979 Constitution. It is observed however that the application which is the subject of the present appeal was not brought pursuant to the right under the 1979 Constitution.

The lower court also has jurisdiction to entertain and determine the respondent’s application for certiorari order to quash the proceedings and judgment of the Kaduna Rent Tribunal by virtue of the provisions of section 24 of the Kaduna State High Court Law Cap. 67 Laws of Kaduna State, 1991 which provides:-

“24. The prerogative writs of mandamus requiring an act to be done or an order of prohibition prohibiting any proceedings, or matter, or an order of certiorari removing any proceedings cause or matter into the High Court for any purpose may be issued by the court in accordance with the rules and procedure applicable in the court or where the rules do not make any provisions in accordance with a provision which the court thinks just and reasonable.”

The procedure for the exercise of this special jurisdiction by the High Court is specified in Order 42 of the Kaduna State High Court (Civil Procedure) Rules 1987 rule 1(1) of which states:-

“1(1) An application for;

(a) an order of mandamus, prohibition or certiorari; or

(b) an injunction restraining a person from acting in any office in which he is not entitled to act; shall be made by way of an application for judicial review in accordance with the provisions of this Order.”

It is quite plain therefore that by virtue of section 24 of the High Court Law and Order 42 of the High Court (Civil Procedure) Rules of Kaduna State, the lower court also has jurisdiction by way of application for judicial review to hear and determine the respondent’s application for certiorari order. Inspite of his right to appeal against the judgment of the Rent Tribunal conferred by section 21 of the Rent Control and Recovery of Premises Law of Kaduna State as amended, the respondent’s right to opt for a relief by way of an application for certiorari order at the High Court to quash the proceedings and judgment of the Rent Tribunal for having acted in excess of its jurisdiction is also preserved under section 42 of the 1979 Constitution of the Federal Republic of Nigeria and section 24 of the Kaduna State High Court Law Cap. 67 of the Laws of Kaduna State, 1991. For the foregoing reasons therefore, the lower court indeed has jurisdiction to hear the certiorari proceedings filed by the respondent.

The second issue for determination is whether the lower court was right in granting the application having regard to the grounds relied upon by the applicant in support of the application. On this issue it was argued by the appellant that in compliance with section 8(1) of the Rent Control and Recovery of Premises Law Cap. 132 of the Laws of Kaduna State 1991, his application by way of writ of summons was duly filed at the Rent Tribunal before his case was heard by the Tribunal which granted him reliefs in its judgment. That for this reason, the finding by the lower court that there was no application filed at the Rent Tribunal by the appellant who was the plaintiff is therefore perverse on the authority of the cases cited and relied upon one of which is Odubeko v. Fowler & Anor (1993) 9 SCNJ 185 at 198, (1993) 7 NWLR (Pt. 308) 637. On the conviction and sentence of the respondent by the Rent Tribunal, it was argued for the appellant that the conviction and sentence were in order as the Rent Tribunal and Recovery of Premises Law Cap. 132 of the Laws of Kaduna as amended which created the offence for which the respondent was convicted, by inference gave the Rent Tribunal jurisdiction to try the respondent. As for the procedure adopted by the Rent Tribunal in convicting the respondent, learned counsel for the appellant contended that the case having been specifically adjourned to allow the respondent the chance to cross-examine PW1, give his own evidence and call his own witnesses, the proceedings cannot be said to have offended section 33 of the 1979 constitution taking into consideration the case of Kotoye v. Saraki (1994) 7-8 SCNJ 524 at 561-562, (1990) 7 NWLR (Pt. 357) 414.

The reaction of the respondent on this issue is that the record of proceedings do not show that there was any application to the Tribunal by the appellant seeking any relief before the hearing. That by virtue of section 8 of the Rent Control and Recovery of Premises of Kaduna State, 1991, the exercise of any jurisdiction by the Rent Tribunal is predicted on the filing of an application before it and that in the absence of an application the Tribunal shall not have any jurisdiction in a matter before it. Relying on the case of Odua Investment Company Ltd. v. Talabi (1997) 10 NWLR (Pt.523) 1 at 21, the respondent’s counsel concluded that the lower court having found that a fundamental condition precedent for the exercise of jurisdiction by the Tribunal namely an application duly filed by the respondent, was missing and its existence could not be presumed, the lower court was right in granting the certiorari order.

The question whether or not an order of certiorari will issue does not only depend on whether the errors complained of are errors of law or fact but that such errors must disclose excess of jurisdiction or errors in law on the face of the record of the inferior court or tribunal which is the subject of the application. Therefore when a court is considering whether or not an order of certiorari would issue against the findings of an inferior court or tribunal, such court must be guided by the principle that it is not acting in appellate capacity but in supervisory capacity. This supervisory jurisdiction extends not only to seeing that the inferior courts or tribunals keep within their jurisdiction but also to seeing that they observe the law. In this regard therefore the court exercising supervisory jurisdiction must not substitute its own views for those of the inferior courts or tribunals. See State v. Boundary Settlement Commissioner (1985) 3 NWLR (Pt.12) 335; In Re Kubeinje (1974) 11 SC 79 and Ugoh v. Benue State Local Government Service Commission & Ors. (1995) 3 NWLR (Pt.383) 288 at 319. In the present case, what was in issue was whether the Rent Tribunal has jurisdiction to try and convict persons for the offences created under section 20 of the Rent Control and Recovery of Premise Law Cap. 132 of the Laws of Kaduna State as amended by Edict No.4 of 1996 and whether the respondent was given a fair hearing before his conviction and sentence.

The issue of jurisdiction is fundamental to the question of the competence of the court adjudicating. See Kalio v. Kalio (1975) 2 SC 15. Hence, it is crucial for any court adjudicating first to determine the issue. See Barclays Bank v. Central Bank (1976) 6 SC 175. The leading case of Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 587; (1962) 2 SCNLR 341. The principle therein stated have been restated in subsequent decisions of the Supreme Court in Ogunsanya v. Dada (1990) 6 NWLR (Pt.156) 347 Attorney-General v. Sode (1990) 1 NWLR (Pt.128) 500 and Odofin v. Agu (1992) 3 NWLR (pt.229) 350. One of the essential elements for the exercise by the court of its jurisdiction is that the subject-matter of the case which is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. Another element is that the case that comes before the court is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. In the present case, although by section 8 of the Rent Control and Recovery of Premises Law Cap. 132 of the Laws of Kaduna State 1991, as amended, the jurisdiction of the Rent Tribunal is to be invoked by an application by a party seeking relief, the record of the trial Rent tribunal which was the subject of certiorari application does not show that any application was filed to invoke the jurisdiction of the Tribunal. Without such application, it is not possible to determine the nature of the claim before the Tribunal and the date it was filed. Although the appellant claims in his brief of argument that the action at the Tribunal was initiated by a writ of summons, no page of the record was stated where the said writ of summons could be found. The document contained at page 1 of the record referred to at the index to the record as “Writ of Summons” is not a writ of summons but a hearing notice or hearing summons which does not contain any specific claim whatsoever. Therefore as the action at the Rent Tribunal was not initiated by due process of the law and upon the fulfillment of the condition precedent to the exercise of jurisdiction namely, filing an application, the Tribunal lacked jurisdiction in granting the appellant’s claim and consequently the lower court was right in exercising its jurisdiction in granting the certiorari order quashing the entire proceedings and judgment.

The other aspect of this issue is the fact that there is nothing in the Rent Control and Recovery of Premises Law Cap. 132 of the Laws of Kaduna State 1991 and the Rent Control and Recovery of Premises (Amendment) Edict No.4 of 1996 which shows that any criminal jurisdiction to try offences created under section 20 of the law and which gave right of appeal against any conviction under section 21 of the law, had been conferred on the Rent Tribunal. As the Rent Tribunal therefore has no jurisdiction to try and convict the respondent for any offence under the law, the conviction and sentence passed on the respondent by the tribunal are a nullity thereby giving the lower court the power to quash the conviction and sentence in the order granting the respondent’s reliefs in his application for a certiorari order.

Another glaring gross error in law disclosed on the face of the record of the Rent Tribunal which supported the respondent’s application for certiorari order at the court below, is the fact that the conviction and sentence passed on the respondent by the Tribunal was not preceded by any criminal trial for the offence by which the respondent could have been charged and given adequate opportunity as required by section 33(6) of the 1979 Constitution, to defend himself. Thus having been denied this fundamental right of fair hearing by the Rent Tribunal, the respondent was indeed entitled to apply as he did to the High Court for certiorari order to quash the conviction and sentence which was rightly granted by the lower court.

The last issue for determination is whether the lower court was right in awarding N50,000.00 to the respondent as damages. Relying on the case of Eseigbe v. Agholor & Anor (1993) 12 SCNJ 82 at 92, (1993) 9 NWLR (Pt. 316) 128 learned counsel to the appellant pointed out that there was no evidence whatsoever before the lower court that the appellant was responsible for the publication of the respondent’s conviction in the New Nigerian Newspaper to justify any award of such damages against him. That the lower court merely relied on speculations in making the award which must be set aside particularly when the publication had clearly indicated its source to one Emmanuel Osisiogu who has nothing to do with the appellant.

Learned counsel for the respondent is however of the view that since the respondent was convicted on 27/8/96 and the publication in respect of the same appeared in the paper on 14/9/96 the publication was made to spite the respondent and that this could not have been done by any person interested in the conviction of the respondent other than the appellant. For this reason, learned counsel to the respondent concluded that the lower court was right in awarding the damages to the respondent.

In the respondent’s application for certiorari order at the lower court, one of the reliefs sought by the respondent is one for general damages which reads:-

“3. General damages of N250,000 (two hundred and fifty thousand Naira) for the harassment, trauma and ridicule suffered by the applicant as a result of the wrongful conviction and sentence on the applicant by the 2nd respondent.”

What is quite plain from the above relief is that it does not indict the appellant who was the 1st respondent in the application before the lower court, of being responsible for the harassment, trauma and ridicule suffered by the respondent as the result of his conviction by the Rent Tribunal. Nor did the respondent lead evidence in the affidavit in support of his application that the appellant was responsible for his suffering as the result of the conviction or that the appellant was connected in any way with the publication of the conviction in the New Nigerian Newspaper edition of 14/9/96 which appeared to be the ground for the respondent’s claim for damages. Since the respondent himself in the relief claimed in this respect and in his evidence contained in his affidavit in support of his application at the court below did not direct the claim at the appellant or stated in any way that the appellant was liable to him in damages being claimed, the finding of the learned trial Judge at page 98 of the record of this appeal that:-

“The only reasonable inference is that the 1st respondent caused the publication in order to hurt the applicant who was refusing to leave the premises which he so desperately wanted to move into.” is glaringly most unreasonable. There is therefore no basis at all for the award of damages against the appellant as the claim was not directed at him and there is no evidence whatsoever to support the claim against him. This issue is thus resolved in favour of the appellant.

In the result, this appeal succeeds in part. The appeal against the award of N50,000.00 damages against the appellant having succeeded is hereby allowed.

The order of the lower court in respect of the award of N50,000.00 damages to the respondent is therefore set aside and the claim of the respondent as applicant for this relief is dismissed. However, the appeal against the order of certiorari quashing the proceedings, judgment, conviction, sentence and other orders made by the Kaduna Rent Tribunal having failed is hereby dismissed.

I am not making any order as to costs having regard to the outcome of this appeal.

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Other Citations: (2000)LCN/0789(CA)