Calabar Central Co-operative Thrift & Credit Society & Ors. V. Bassey Ebong Ekpo (Substituted by Edet Bassey Ekpo) (2001)

LawGlobal-Hub Lead Judgment Report

EKPE, J.C.A.

By an Originating Summons issued at the instance of the plaintiff now respondent by Calabar High Court of Cross River State, against the defendants now appellants, the respondent sought for the determination of the following question:

“Whether, in accordance with the Land Use Decree 1978, valid title has been passed from the plaintiff to the 1st defendant arising from the agreement of 25th January, 1987, over the plaintiff’s property situate at No. 3C Enebong Avenue, Calabar.”

(a) A declaration that the purported conveyance is null, void and of no effect whatsoever and is against the provisions of the Land Use Decree of 1978.

(b) An Order directing the 1st defendant, its agents, servants, privies, assigns to vacate the property situate at No. 3C Enebong Avenue, Calabar.

(c) An Order directing that the original documents of the survey and building plans and the agreement originally conveying the plot/parcel of land known as 3C Enebong Avenue, Calabar to the plaintiff be returned to the plaintiff.

(d) The sum of N400,000.00 (four hundred thousand naira) as general damages.”

The respondent filed an affidavit of 18 paragraphs in support of the Originating Summons with Exhibits A, B, and C and later further and better affidavits in support thereof. The appellants filed a counter-affidavit with Exhibits A, B, and C to C4 and D and a further and better counter-affidavit in opposition to the Originating Summons.

From the affidavits and counter-affidavits of the parties, the pertinent facts of the case of each side, leading to this appeal may be stated thus: The respondent’s case is that he was employed as a Clerk by the 1st appellant in July, 1964, and by May, 1974, he had risen to the position of a Senior Travelling Secretary, in the 1st appellant’ company. On 24th June, 1987, the respondent was suspended from duty by the 1st appellant pursuant to a letter of suspension, marked Exhibit B annexed to the respondent’s main affidavit. In Exhibit B, the respondent was accused of having perpetrated some fraudulent acts which tended to tarnish the image of the 1st appellant and he was therefore, ordered to go on immediate suspension pending the result of an investigation into the matter by the 1st appellant. The 2nd and 3rd appellants were the president and member respectively of the management committee of the 1st appellant company. Consequent upon the accusation, the respondent was arrested by the police at the instance of the appellants and was taken to the police station Atakpa, Calabar, where he was detained for interrogation and investigation. He was later released on bail on the same day. This was followed by the second and third arrests by the police. Upon the third arrest, the respondent was taken to the Police Headquarters at Diamond Hill, Calabar, where he was shown round the police cells by the police. The cells were occupied by hardened criminals, murderers and rapists. After showing him the cells, the police told him (the respondent), to sign a deed of “Mortgage” over his property situate at No. 3C Enebong Avenue, Calabar, by which his ownership of the said property would be given to the appellants, in exchange for or discharge of an alleged debt of N80,000.00 owed to the 1st appellant by the respondent and that, if he refused so to do, he would be thrown into the police cell, where the criminals were detained. The said deed of “Mortgage” is Exhibit ‘A’ annexed to the main affidavit of the respondent, which turns out to be a deed of conveyance. It is the case of the respondent, that in view of the psychological trauma, the shame of having been arrested several times by the police, the imminent torture that he was likely to undergo in the police cell, by the said criminals and the frail state of his health, he was obliged to sign Exhibit ‘A’ and to hand over all the original documents pertaining to his said property to the appellants. He maintained that after signing Exhibit ‘A’, he was eventually freed from further intimidation by the appellants, but he had no house to go into, as he had given away his only house at No. 3C Enebong Avenue, Calabar, to the appellants by virtue of Exhibit ‘A’. The respondent also asserted that, up till the time of his instituting this action, the appellants had not released the result, of their investigation or informed him of the outcome of any wrong doing or fraud, he was alleged to have committed. He maintained that, the appellants exercised undue influence or duress over him to sign Exhibit ‘A’ and by so doing, the appellants had defrauded him of his said property. The respondent denied defrauding or owing the appellants any sum of money whatsoever, or as was indicated in Exhibit ‘A’.

The case of the appellants on the other hand is an absolute refutal of the respondent’s story. They stated that the respondent who was an employee of the 1st appellant, was suspended from duty as he was found to have in the course of his duty defrauded the 1st appellant to the tune of N80,000.00 which later increased to N100,000.00, following the audit of the 1st appellant’s accounts by auditors. The appellants claimed that the respondent had admitted his role in the fraud at a management committee meeting of the 1st appellant. The minutes of the said meeting were annexed to the appellant’s main counter-affidavit as Exhibit ‘A’. Hence, the appellants reported the matter to the police. The appellants denied intimidating the respondent in executing Exhibit ‘A’, the deed of conveyance and insisted that the respondent executed Exhibit ‘A’, when it dawned on him (the respondent) that he was neck-deep in the fraud, and was likely to face a multiplicity of criminal prosecutions and civil suits from the 1st appellant and so the respondent offered to sell his said property to the 1st appellant in settlement of the debt he owed, to the 1st appellant as arising from defrauding the 1st appellant of the amount involved. The appellants annexed Exhibit ‘B’ to their main counter-affidavit, to show that there was no intimidation of the respondent, but that the respondent expressed his desire to sell his said property to the 1st appellant.

In a considered ruling dated 20/11/95, after hearing the Originating Summons, the learned trial Chief Judge, Ecoma, C.J. at pages 41 to 42 of the main record of appeal stated thus:

“On the whole, I hold the view that fraud against the plaintiff (respondent) has not been proved. If so, the plaintiff should have been charged to court. The idea of converting what should have been a criminal case, into a civil one is wrong. The purported exchange of a house for the sum of N80,000.00 as contained in Exhibit A, is completely wrong in law. Exhibit ‘A’ itself from (sic) the foregoing is not valid in law, the transaction being a nullity…

Having regard to all the foregoing, I think I should accede to the reliefs sought and do so accordingly, by making the following orders of this court.”

The learned trial Chief Judge finally granted reliefs A, B, and C claimed by the respondent, but as regards, relief D, he awarded the sum of N100,000.00 as general damages to the respondent.

Being dissatisfied with the ruling of the learned trial Chief Judge, the appellants have appealed against it to this court on seven grounds of appeal. Later, the appellants by application on notice dated 29/7/99 and filed on 30/7/99, in this court sought for leave to amend their notice and grounds of appeal. The application was granted on 23/11/99 by this court and the amended notice and grounds of appeal were deemed as properly filed and served. There are six amended grounds of appeal, which are reproduced as follows:

“1. Ground One

The learned trial Judge erred in law in deciding the case vide the Originating Summons procedure. The wrong adoption of this procedure therefore, occasioned a miscarriage of justice to the defendants/appellants.

Particulars

viva vocae (sic) evidence which would have enabled the cross-examination of witnesses were shut cut.

2. Ground Two

The judgment is against the weight of evidence.

3. Ground Three

The learned trial Judge erred in law when he held that failure to obtain Governor’s consent prior to the transaction between the parties herein rendered the agreement null and void.

Particulars

Failure to obtain Governor’s consent only renders the transaction incomplete and not void.

4. Ground Four

The learned trial Judge erred in law, when he failed to find that it was the plaintiff/respondent’s duty to obtain Governor’s consent for the transaction in issue and therefore, failed to arrive at the appropriate legal effect/ consequence of that failure which error occasioned a miscarriage of justice to the defendant/appellants.

Ground Five

The learned trial Judge erred in law when he ordered the return of the property No. 3C Enebong Avenue, Calabar, to the plaintiff/respondent, but failed to order the return of the purchase money to the 1st defendant/appellant.

Particulars

Where consideration fails, money paid should be returned.

Ground Six

The 2nd and 3rd defendants/appellants were wrongly joined as none of the reliefs sought was exactable from the 2 of them jointly or each severally.”

The parties filed and exchanged briefs of argument. In their brief of argument, the appellants identified seven issues for the determination of the appeal, namely:

“(a) Whether or not the question of nullity/voidity of a document/instrument particularly on ground of coercion/fraud (see basis of claims at P.1 and judgment at P.38 lines 10-11 of proceedings) is a question of interpretation of the document and therefore, fit to be taken vide the Originating Summons procedure or an issue to be proved on hard facts by viva vocae (sic) evidence allowing cross-examination of witnesses. Did this non-receipt of viva (vocae) evidence by the learned trial Judge, occasion a miscarriage of justice to the defendants/ appellants?

(b) Whether the totality of the evidence supports the judgment?

(c) Whether the learned trial Chief Judge was right at law, when he held that the transaction between the plaintiff/respondent and the 1st defendant/appellant was void because, the consent of the Governor was not first sought and had?

(d) Whether or not it is competent for a party to benefit from his own omission to the detriment of another party to the same transaction?

(e) In the unlikely turn that the learned trial Chief Judge was right in his judgment, should he not have ensured restitutio in integrum by ordering the refund of the purchase money. Should the plaintiff/respondent keep both the house and the money, particularly the sums paid by the 1st defendant/appellant to the plaintiff/respondent’s creditors.

(f) Whether or not the 2nd and 3rd defendants/appellants are personally liable jointly, the 2 of them along with the 1st defendant/appellant or severally each of them, for any of the reliefs sought in the lower court.

(g) Whether or not in the circumstances of this case the Court of Appeal is competent to enter a proper judgment herein.”

The respondent in his own brief of argument identified two issues for determination to wit:

“1. Whether on the evidence before the learned trial Judge, the respondent proved his case and was entitled to judgment in his favour.

2. Whether there is a binding and enforceable contract between the appellants and the respondent.”

Prior to the hearing of the appeal, the respondent had filed a notice of preliminary objection to the competency of the appellants’ amended notice and grounds of appeal and issue No. G, in the appellants’ brief of argument. The objection was fully argued in the respondent’s brief. The appellants also filed the appellants’ reply brief in response to the preliminary objection by the respondent.

Before going into the merits of this appeal, I shall firstly deal with the arguments on the preliminary objection raised by the respondent and replied to by the appellants. The preliminary objection is three pronged. Firstly, there is the objection against the validity and competency of grounds 1, 4, 5 and 6 of the appellants’ amended notice and grounds of appeal in that they do not relate to or arise from the judgment of the lower court, nor do they relate to the issues raised at the trial. Secondly, there is the objection to grounds 2 and 3 of the appellants’ amended notice and grounds of appeal in that they cannot be argued together with grounds 1, 4, 5 and 6 of the grounds of appeal which are considered incompetent. Thirdly, the objection here is centered against the competency of Issue No. G of the appellants’ issues for determination of the appeal. I shall now deal with the above three pronged attacks in the notice of preliminary objection to this appeal seriatim.

Objection No.1

The respondent has argued that grounds 1, 4, 5 and 6 of the amended grounds of appeal, do not relate to and are not based on the issues canvassed at and decided by the lower court. It was submitted that the appellants’ right of appeal is circumscribed within the parameters of the judgment appealed against and that an appellate court will not allow a ground of appeal, which impugns the judgment of the lower court on ground of error other than that contained in the judgment. It was also submitted that there should be a correlation between the grounds of appeal and the judgment being challenged on appeal and that the two must not be at variance. The following cases were alluded to:- Federal College of Education v. Anyanwu (1997) 4 NWLR (Pt. 501) 533; Ojo v. Gharoro (1999) 8 NWLR (Pt.615) 374 at 386: Bello v. Aruwa (1999) 8 NWLR (Pt.615) 454 at 468 to 469; Oba v. Egberongbe (1999) 8 NWLR (Pt.615) 485 at 489 to 490. It was further submitted that, apart from the fact that the said grounds of appeal are not based on the judgment appealed against, the appellants cannot also seek to raise issues, that were not canvassed or raised at the court below. The respondent contended that the appellants never raised at the court below arguments on grounds 1, 4, 5 and 6 of the amended grounds of appeal for determination by that court and they cannot seek to raise them in this court. The cases of Abiola v. Abacha (1997) 6 NWLR (Pt.509) 413 at 425; Omosowan v. Chiedozie (1998) 9 NWLR (Pt.566) 477 at 488; Federal Mortgage Bank of Nigeria v. Nigeria Deposit Insurance Corporation (1999) 2 NWLR (Pt.591) 333 at 359 to 360 were referred to. It was therefore, urged on this court to discountenance and strike out grounds 1, 4, 5 and 6 as incompetent for being irrelevant to the judgment now challenged by the appellants.

In the reply brief, the appellants contended that ground one of the grounds of appeal complains against the procedure adopted by way of originating summons in the commencement of this action and submitted that it constituted part of the hearing and as such it is a proper subject of appeal having by itself constituted a miscarriage of justice and referred to Balogun v. Labiran (1988) 3 NWLR (Pt.80) 66 where it was held by the Supreme Court that it will interfere with concurrent findings of the courts below when there has been some violation of some principles of law or procedure. Also cited are Otogbolu v. Okeluwa (1981) 6-7 S.C 99; Ibodo v. Enarofia (1980) 5-7 S.C. 42; Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 643. It was argued that if a violation of a procedural principle can justify the disturbance of concurrent findings, then it must necessarily justify the disturbance of one finding and that the procedure for doing this is by an appeal upon a proper ground. In answer to ground 4 of the grounds of appeal complained of by the respondent, the appellants argued that this ground of appeal was properly raised in the proceedings and referred to page 34 line 17 and page 35 line 12 of the record of appeal, and therefore, submitted that it fell for determination before the trial court and is a fit subject of appeal to this court. On ground 5 of the grounds of appeal, the appellants adopted the line of their argument proffered in respect of ground 4 above. As regards ground 6 of the grounds of appeal it was argued that the 2nd and 3rd appellants were unnecessary parties at the trial before the court below and in this court and even if this appeal succeeds nothing can be exacted from them in their personal capacities.

I have closely and carefully, considered the submissions by counsel for both parties. It is a settled principle of law by a long line of decided cases both in the Supreme Court and in the Court of Appeal that grounds of appeal against a decision or judgment must of necessity relate to the decision and be based on the issues in controversy or canvassed in the court below. Where a ground of appeal cannot be fixed and circumscribed within a particular issue in controversy in the judgment challenged, such a ground of appeal cannot justifiably be regarded as related to the decision. In Saraki & Ors v. Kotoye (1992) 9 NWLR (Pt.264) 156; (1992) 3 N.S.C.C. 331 at page 345 Karibi-Whyte J.S.C. had this to say:

“It is a well settled proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.”

In Bello v. Aruwa (1999) 8 NWLR (Pt.615) 454 it was held that grounds of appeal are not formulated in abstract. They must arise from the judgment in the same way as the issues arise from the grounds of appeal. And however meritorious a ground of appeal may be, it must be connected with the controversy between the parties at the trial court. In Abiola v. Abacha (1997) 6 NWLR (Pt.509) 413 it was held that the grounds of appeal must stem from the decision of the court below. See Onwuchekwa v. Onwuchekwa &Anor (1991) 5 NWLR (Pt.194) 739; Oba v. Egberongbe (1999) 8 NWLR (Pt.615) 485.

After a hard look at grounds 1, 4, 5 and 6 of the amended grounds of appeal complained of in the notice of preliminary objection, and guided by the authorities cited above, it is my firm view that grounds 1, 5 and 6 thereof, do not relate to or arise from the decision or the judgment being challenged by the appellants. They were not canvassed at the court below and indeed, they are extraneous matters to the decision of the court below. Clearly, therefore, grounds 1, 5, and 6 of the amended grounds of appeal are incompetent. They are hereby struck out. See Salami v. Mohammed (2000) 9 NWLR (Pt.673) 469. Consequently, issues Nos. (a), (e) and (f) respectively, formulated from the incompetent grounds 1, 5 and 6 aforesaid are also incompetent. In law, issues for determination of an appeal can only be validly formulated from valid and competent grounds of appeal. Where grounds of appeal are incompetent and are struck out, the issues formulated from them cannot stand-alone. An appellate Court will not entertain any argument or submission on issues not covered by competent and subsisting ground or grounds of appeal. See Akpan v. The State (1992) 6 NWLR (Pt.248) 439; Agundo v. Gberbo (1999) 9 NWLR (Pt.617) 71, Accordingly, issues Nos. (a), (e) and (f) are hereby struck out.

There is yet another angle to this matter. The appellants have strongly argued that the said ground one of the amended grounds of appeal, raises the issue of wrong procedure adopted by the trial court which has occasioned a miscarriage of justice and therefore, is a proper ground of appeal. It is pertinent to note that, the procedural issue raised in ground one of the amended grounds of appeal is being raised for the first time in this appeal, in this court. It was not raised by the appellants in the court below at the trial, where that court would have, if it was then raised, had the benefit of the views of the parties’ counsel on the issue and resolved the issue one way or the other, in order to form a proper subject of appeal. The appellants were contended with the procedure adopted at the trial for the commencement of the action, and defended the action to the very end. And now that the judgment is against them, behold, they are raising in this court, the issue of wrong procedure with the attendant violation of procedural principle, which they asserted has occasioned a miscarriage of justice to them (the appellants). The law is well settled that as appellate court will not normally allow a party to raise for the time a fresh point or issue which was not taken in the court below. Where, however, a party wishes to raise on appeal a new issue not canvassed previously at the court below, leave of the appellate court is necessary as it is a condition precedent, and the party ought to seek and obtain such leave before raising the new issue. See Manuel Misa v.Raikes Currie & Ors (1876) AC 554 at 559; Banbury v. Bank of Montreal (1918) AC. 626 (H.L.); Seismograph Services (Nigeria,) Ltd. v. Eyuafe (1976) 9-10 S.C. 135 at page 155; Oredoyin v. Arowolo (1989 4 NWLR (Pt.114) 172 at 192; Atoyebi & Anor v. Governor of Oyo State & Ors. (1994) 5 NWLR (Pt.344) 290; Salami v. Mohammed (2000) 9 NWLR (Pt.673) at 469. In Skenconsult (Nigeria.) Ltd, vs Sekondy Ukey (1981) 1 S.C. 6 at page 18, the Supreme Court stated thus:

“It is clear that this court will not allow a party on appeal to raise a question not raised in the court of trial or grant leave to a party to argue new grounds not canvassed in the lower courts, except where the new points or new grounds involve substantial points of law, substantive or procedural which need to be allowed to prevent an obvious miscarriage of justice.”

The Supreme Court in the Sken Consult case did, not decide that a party should not obtain the leave of the court to raise or argue a fresh issue or ground involving a substantial point of law, substantive or procedural in nature, on appeal. I concede that the fresh issue raised by the appellants on ground one of the amended grounds of appeal is on procedure, but I hold the view that there was need for the appellants to first seek and obtain the leave of this court before raising the fresh issue. There is no evidence that the appellants sought and obtained the leave of this court to do so. In the circumstances therefore, the appellants cannot be allowed to raise in this court the fresh issues not raised or canvassed in the court below. In my view, the objection has merit and it is hereby sustained.

As regards ground 4, of the amended grounds of appeal, I agree with the appellants that this ground of appeal was canvassed in the court below, as can be seen at page 34 line 17 and page 35 line 12, of the record of appeal. Indeed, ground 4 is an extension of ground 3 and it is quite in order. The objection to ground 4 fails.

Objection No.2

The gravamen of this objection is that grounds 2 and 3 of the amended grounds of appeal cannot be argued together with grounds 1, 5 and 6 of the grounds of appeal, which I have already declared incompetent, because this court lacks jurisdiction to entertain grounds 2 and 3, which are contained in the same amended notice of appeal with the incompetent grounds of appeal. The respondent conceded that grounds 2 and 3 of the grounds of appeal are competent by themselves, but argued that they are rendered incompetent by reason of the fact that, they are mixed together with the incompetent grounds of appeal. It was further argued that it is not the duty of this court to carry out a “surgical operation” on the grounds of appeal by exercising the defective or incompetent grounds of appeal from the competent grounds as the amended notice of appeal is a nullity and so are all the issues formulated from the grounds of appeal therein. It was submitted that under Order 3 rule 2(7) of the Court of Appeal Rules 1981 (as amended), this court has the power to strike out the amended notice of appeal of the appellants. The cases of Agundo v. Gberbo (1999) 9 NWLR (Pt.617) 71 at pages 86 and 87; Emecheta v. Ogueri (1998) 12 NWLR (Pt.570) 502 at 517; A.S.R. Co. Ltd. v. Blosah (1997) 11 NWLR (Pt.527) 145 at 155 were cited in support. In their reply, the appellants contended that even though the court lacks jurisdiction to entertain a bad and incompetent ground of appeal, it has jurisdiction to entertain a good and competent one, in the same notice and grounds of appeal. Reference was made to Ojukwu v. Onyeador (1991) 7 NWLR (Pt.203) 286, where the Court of Appeal after declaring some of the grounds of appeal as incompetent, nevertheless, went on to entertain the other grounds of appeal in the same, notice of appeal which were found to be competent and the court did not strike out both the good and the incompetent grounds of appeal. The cases of Obimiami Brick & Stone (Nig.) Ltd. v. A.C.B. (1992) 3 NWLR (Pt.229) 260; Guda v. Kitta (1999) 12 NWLR (Pt.629) 21; Obala of Otan-Aiyegbaju v. Adesina (1999) 2 NWLR (Pt.590) 163 at 179 to 180, were cited to buttress the argument.

I have carefully, considered the arguments on Objection No.2. I will say straightaway that, there is a serious misconception by the learned Counsel for the respondent in his argument. I am unable to find any authority in support of that argument. The law is well settled that where there exists competent grounds of appeal and also incompetent grounds of appeal in one notice of appeal, the Court of Appeal has jurisdiction after so declaring the incompetent grounds of appeal and striking them out, to entertain the appeal on the grounds of appeal found to be competent. See First Bank of Nigeria Plc v. Ejikeme (1996) 7 NWLR (Pt.462) 597; Ojukwu v. Onyeador (1991) 7 NWLR (Pt.203) 286; Obaia of Otan-Aiyegbaju v. Adesina (1999) 2 NWLR (Pt.590) 163 at pages 179 and 180. In Ansa v. Ishie (1999) 7 NWLR (Pt.610) 277, this court (Calabar Division) struck out the incompetent grounds of appeal and retained the only competent ground of appeal. It did not, so to say, throw away the baby with the dirty water. This is consistent with the duty of the court to do substantial justice devoid of legal technicalities.

In the instant case, this court has found that grounds 1, 5 and 6 of the grounds of appeal are incompetent and has struck them out. In my view, grounds 2 and 3 which have rightly been conceded to be competent, are hereby retained with ground 4 to sustain the amended Notice of appeal. The cases relied upon by the respondent’s counsel do not apply. This objection shall also fail.

Objection No.3

The objection here focuses on Issue No. (g) in the appellants’ brief of argument for the determination of the appeal. It reads:

“Whether or not in the circumstances of this case, the Court of Appeal is competent to enter a proper judgment herein.”

The respondent has argued that issue No. (g) is not based on or distilled from any of the grounds of appeal, filed as required by law and therefore, the issue is incompetent and liable to be struck out. He referred to A.G. of the Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt.618) 187 at 229; Bank of the North Ltd. v. Saleh (1999) 9 NWLR (Pt.618) 331 at 343; Giwa-Amu v. Guardian Newspapers Ltd (1999) 8 NWLR (Pt.616) 568 at page 579 to 580. The appellants offered no reply to the submission and they are therefore, deemed to have conceded to it. In my view, the objection is unanswerable, to say the least, I entirely, agree with the learned Counsel for the respondent. Simply stated, it is trite law that issues for determination in an appeal, must be based on or distilled from the grounds of appeal filed and where such is not the case, the issues are incompetent and should be struck out. In the instant case, issue No. (g) is not based on or distilled from any of the competent grounds of appeal of the appellants. Therefore, issue No. (g) is incompetent and it is hereby struck out. In the final result therefore, the preliminary objections on the incompetence of grounds 1, 5 and 6 of the amended grounds of appeal and on issue No. (g) hereby succeed and are allowed. Grounds 1,5 and 6 and issue No. (g) are hereby, struck out. However, in respect of grounds 2, 3, and 4 of the grounds of appeal, the preliminary objection are not sustainable and are accordingly refused and dismissed.

Having disposed of the preliminary objection to this appeal, I now deal with the merit of the appeal. We are left with grounds 2, 3 and 4 of the grounds of appeal, which are the competent grounds and issues Nos. (b), (c) and (d) respectively, related thereto as the competent issues for the determination of the appeal. After a careful perusal of the issues above-mentioned and the issues formulated by the respondent, I formed the view that, the two issues identified by the respondent are germane and more preferable for the determination of the appeal and I therefore, adopt them. For the sake of repetition the two issues read:

1. Whether on the evidence before the learned trial Judge, the respondent proved his case and was entitled to judgment in his favour?
2. Whether there is a binding and enforceable contract between the appellants and the respondents?

I take Issue No.1 first. This issue relates to ground 2 of the appellants’ amended grounds of appeal. In brief of argument, the appellants have argued that, there was no reason for the learned trial Judge to make finding against the documentary evidence before him, without calling witnesses and this rendered the judgment of the learned trial Judge perverse and thereby, occasioned a miscarriage of justice. It was submitted that there was no coercion on the respondent to sign Exhibit ‘A’, and even if there was any pressure on the respondent during his arrests by the police, the pressure was no longer there, when the respondent signed Exhibit ‘A’ on 25th January, 1987. It was also submitted that on the state of the evidence before the trial court, no coercion was proved, and that fraud was neither pleaded nor proved, yet the learned trial Judge declared that Deed of Conveyance (Exhibit ‘A’) void. It was submitted that Exhibit ‘A’ does not bear two dates as was found by the learned trial Judge, and that the action was not timeously commenced. In his reply, the respondent referred to paragraphs 9, 11 and 12 of the affidavit in support of the originating summons to show that Exhibit ‘A’ was procured under duress and as such Exhibit ‘A’ was not enforceable. He referred to the finding of the learned trial Judge in his judgment at page 38 lines 24 to 30 of the record of appeal. It was the argument of the respondent that the appellants made the issue of commission of fraud and embezzlement by the respondent the foundation of their case, leading to the suspension of the respondent from his work, and their decision to punish the respondent by seizing his said property at No. 3C Enebong Avenue, Calabar, and fixing a false purchase price of N80,000.00, which was neither owed to the appellants nor collected by the respondent from the appellants, instead of prosecuting the respondent in a court of law on the allegations of fraud and embezzlement leveled against him. The respondent condemned this type of sharp practice and referred to Sadiq v. Bandi (1991) 8 NWLR (Pt. 210) 443,447. It was further argued that the statutory declaration of house ownership, Exhibit B, annexed to the main counter-affidavit of the appellants, by which the respondent declared his intention to sell his said property at No. 3C Enebong Avenue, Calabar, to the 1st appellant at a price to be agreed upon by both parties, is a very unusual practice by a willing vendor with a proper title. As to the long delay before the respondent commenced the action, it was contended by the respondent that the action was not time-barred at the time it was commenced, and that the appellants never cited any statutory authority or law to show that the suit was time-barred. It was therefore, urged upon the court to hold that the respondent duly proved his case and was entitled to the judgment the trial court gave in his favour.

The paramount consideration in determining issue No. 1 is whether there was evidence of coercion or duress on the respondent to sign Exhibit A, the deed of conveyance and the subject matter of the action. In Black’s Law Dictionary, 6th Edition at page 504, the word duress, is defined as any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise could not (or would); subjecting a person to improper pressure, which overcomes his will and coerces him to comply with a demand to which he would not yield if acting as free agent.

From paragraphs 9, 10, 11, 12 and 13 of the affidavit in support of the Originating Summons, the respondent has asserted that there was duress or coercion on him. The said paragraphs are reproduced hereunder as follows:

“9. That as a consequence of the contents of Exhibit ‘B’ (i.e. the letter dated 24th June, 1987, suspending the respondent from duty by the appellants) wrongfully accusing me of fraud, I was immediately, arrested at the instance of the 1st – 3rd defendants by the police and taken to the police station, Atakpa, Calabar, for interrogation and investigation into the aforesaid accusation. I was later on released the same day on bail.

10. That two weeks after my first arrest aforesaid, I was again arrested and taken to the police station, Atakpa, Calabar, for further investigations and I was subsequently forced to spend a night in the police cell, before being released.
11. That I was arrested again for the third time and after two weeks of the last arrest mentioned in the preceding paragraph and taken to the police Headquarters, Diamond Hill, Calabar, where I was shown round, by a police officer, the cells occupied by hardened criminals, murders and rapists and thereafter, I was told in a no uncertain terms that if I did not sign Exhibit ‘A’, which in effect purported to give ownership to the Ist-3rd defendants, I would be thrown into the police cell with the criminals etc.
12. That in view of the psychological trauma, the shame of having been arrested several times, the imminent torture I was likely to undergo in the cell and the frail state of my health, I was thus, obliged to sign Exhibit ‘A’ and hand over all the original documents pertaining to my property at No. 3C Enebong Avenue, Calabar, which included the survey and building plans and the agreement conveying the said land to me.
13. That on signing Exhibit ‘A’, I was eventually freed from further intimidation by the defendants, but with no house to go to as the only one I had had been given away via Exhibit ‘A’.”

(Italics mine for emphasis)

The appellants denied the duress or coercion and in reaction to the respondent’s averments in the foregoing paragraphs of the affidavit, the appellants deposed in paragraphs 10, 11 12, 13, 14 and 16 of their counter-affidavit the following:

“10. That paragraph 9 of the affidavit is denied, but in answer thereto the defendants’ counsel tells me and I verily believe him that, the plaintiff was suspended only after he had admitted at a Management Committee Meeting, his role in the fraud. The defendants only reported the matter to the police. A photocopy of the Report of the committee meeting is attached hereto and marked Exhibit ‘A’.

11. That the defendants are not in a position to admit or deny the contents of paragraphs 10 and 11 of the affidavit as they are issues within the peculiar knowledge of the plaintiff, this the defendants’ counsel tells me and I verily, believe him.
12. That the defendants deny paragraphs 11 and 12 of the affidavit but state in further answer thereto, that after the meeting referred to in paragraph 10 above further investigation reveal that the plaintiff had embezzled over N80,000.00 (eighty thousand Naira) made up of members’ thrift savings, special savings, loan refund, rent etc, all property of the 1st defendant.
13. That the defendants deny paragraph 12 of the affidavit as being false and misleading but inform me and I verily believe them that, when it dawned on the plaintiff that he was neck-deep in the fraud and was likely to face a multiplicity of criminal prosecutions and civil suits from 1st defendant and even some individual members, he (plaintiff) offered to sell the said building in settlement of the debt aforesaid. A copy of an affidavit by plaintiff expressing his desires to sell the building to the 1st defendant is attached hereto and marked Exhibit’B’.
14. That the defendants have informed me and I believe them that in furtherance of his intention, the plaintiff acknowledge (sic) some of his indebtedness to the 1st defendant, but because his entire indebtedness had not been ascertained, he could not state the purchase (price) in the affidavit, (Exhibit ‘B’).
15. The defendants deny ever intimidating the plaintiff as stated in paragraph 13 of his affidavit, but repeat that the plaintiff executed the deed of sale as a result of the facts contained in paragraphs 12, 13, 14 and 15 hereof.”

This K. E. Owuru Esq. Tells me and I believe him. (Underlining for emphasis).

In order to determine whether or not there was duress or coercion on the respondent to sign Exhibit ‘A’ (the Deed of Conveyance), regard must be had to the affidavit evidence and the documents attached thereto before the court. Undoubtedly, there are material conflicts between the affidavits of the parties as set out above. On this basis, it was contended by the appellants that the learned trial Judge should have called for oral evidence from witnesses in order to resolve the conflicts, but he did not do so. It has to be emphasised here that, it is not only by calling oral evidence that conflicts in affidavit evidence could be resolved as there may be authentic documentary evidence, which supports one of the affidavits in conflict with another and which is capable of resolving the conflict and tilting the balance in favour of the affidavit which agrees with it. Documentary evidence is a yardstick with which to assess oral testimony. Where, therefore, there are documents which will enable the court to resolve the affidavits which are materially in conflict, there is no need for oral evidence. See Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) 35 at page 48; Monica Ego Kanno v. Mrs. Banigo Ibiani Kanno & Ors. (1986) 5 NWLR (Pt.40) 138 at 139; Lijadu v. Lijadu (1991) 1 NWLR (Pt.169) 627 at 649.

I have carefully, perused the documentary exhibits annexed to the affidavits of both parties and I am not convinced that duress can be discerned or ascertained from them. By no stretch of the imagination can one find any evidence of duress in the documents especially in Exhibit A, which is said to have been procured by duress or coercion on the respondent. The learned trial Chief Judge in his ruling at page 38 lines 24 to 27, of the record of appeal held thus:

“Paragraphs 9, 11 and 12 of the plaintiff’s affidavit contain evidence of relevant facts to show that Exhibit A was procured by duress.”

With due respect, the learned trial Chief Judge fell into a serious error by so holding without any regard to paragraphs 10, 11, 12, 13, 14 and 16 of the appellants’ counter-affidavit which in material particular denied the respondent’s claim of duress or coercion in his supporting affidavit, and without anything in exhibit A to show clearly, any evidence of duress or coercion on the respondent. This is not an issue of credibility of witnesses where this court cannot interfere with the evidence. Paragraphs 9, 10, 11, 12 and 13 of the respondent’s main affidavit considered by the learned trial Judge are mere ipsi dixit of the respondent and are admissible pieces of evidence resting on the assertion of the respondent who made them. But having been seriously challenged by the appellants in their counter-affidavit, they are not enough for deciding the issue of duress without calling for oral evidence from witnesses. It was not the business of the Judge to speculate on the issue of duress. Therefore, I disagree with the learned trial Judge, and I hold the view that there is no evidence to show that Exhibit A was procured by duress. Even though the circumstances of this case leading to the signing of Exhibit A, the Deed of Conveyance, by the respondent are not salutary, I am however, not prepared to accept the view that there was duress on the respondent to sign Exhibit A. Indeed, I frown at the conduct of the appellants in compromising with the respondent and the police the case of fraud and embezzlement reported against the respondent, and their colluding with the respondent to give away his property by signing Exhibit A, without prosecuting the respondent for the criminal allegations in a court of law. Then after about eight years of signing Exhibit A, the respondent was aroused from his complacency to challenge in the court his signature on Exhibit A, claiming that it was procured by duress or coercion on him. It is apparent to me from the surrounding facts of this case, that the parties were interested in settling the criminal allegations against the respondent out of court by agreeing with the respondent to sign Exhibit A and also make Exhibit B (the Statutory Declaration of House Ownership) in discharge of the purported debt of N80,000.00 owed by the respondent to the 1st appellant, which sum of money was equivalent to the said sum of N80,000.00 allegedly defrauded and embezzled by the respondent, rather than prosecute the respondent in the court. The whole idea behind the execution of Exhibit A was to conceal the true facts and show the existence of an imaginary debt of N80,000.00 by the respondent to the 1st appellant, when in actual fact there was none. In my view, therefore, the respondent did not on the evidence before the court below prove that there was duress on him to entitle him to judgment on that score.

Issue No.2 in the respondent’s brief relates to grounds 3 and 4 of the appellants amended grounds of appeal. On this issue, the appellants have attacked the ruling of the learned trial Judge that non-compliance with Section 22 of the Land Use Act 1978, rendered Exhibit A void. It was submitted by the appellants that the effect of not obtaining the consent of the Governor rendered Exhibit A, the instrument or conveyance, inchoate and not void, and they cited Solanke v. Abed (1962) NRNLR 92; Ogbo v. Adoga (1994) 3 NWLR (Pt. 333) 469 at page 476. It was contended that the conveyance, Exhibit A, is binding on the parties and those having notice of it. The appellants argued that section 20(1) of the Land Use Act 1978, does not render invalid any alienation of a statutory right of occupancy without the consent of the Governor. It was further submitted that the decision of the lower court occasioned a miscarriage of justice. References were made to Adedeji v. N.B.N (1989) 1 NWLR (Pt.96) 212; Savannah Bank (Nigeria.) Ltd. v. Ajilo & Ors. (1989) 1 NWLR (Pt.97) 305 at 307; Awojugbagbe Light Ind. Ltd. v. Chinukwe (1995) 4 NWLR (Pt.309) 379,(1995) 4 K.L.R. (Pt.30) 707 at 747 to 748. It was also argued that a party cannot take advantage of his own default. Onuwaje v. Ogbeide (1991) 3 NWLR (Pt.178) 147 and Ekanem v. Akpan (1991) 8 NWLR (Pt.211) 616 at 622 were alluded to in support of the contention.

In his reply, the respondent stressed that the learned trial Judge was right to hold that the requirement of section 22 of the Land Use Act 1978, was not complied with and in effect therefore, the transaction was null and void. He referred to sections 22 and 26 of the Land Use Act 1978. It was submitted that the Supreme Court in the case of Savannah Bank Ltd. v. Ajilo & Ors. (1989) 1 NWLR (Pt.97) 305; (1989) 1 NSCC 135, held that it was not bound by the case of Solanke v. Abed (supra) because the court reasoned that it was called upon to interpret sections 22 and 34 of the Land Use Ac-t 1978, and not to consider equitable principles. The respondent disagreed with the submission of the appellants that the transaction between the parties in this case was inchoate or incomplete as the transaction was not in stages, that is, the first stage of making an agreement to sell the property and the second stage of obtaining the Governor’s consent to complete the sale. On whether the respondent benefited from his own default in not obtaining the consent of the Governor, It was submitted that the respondent did not benefit from the transaction but rather he was the loser, having been coerced into parting with his property for the alleged offences of fraud and embezzlement reported by the appellants to the police, for which the respondent was not charged to a court of law and tried in accordance with the provisions of the law.

Section 22 of the Land Use Act 1978 provides as follows:

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

Provided that the consent of the Governor –

(a)

(b)

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

I shall also reproduce the provision of Section 26 of the Land Use Act 1978 as follows:

“Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Decree (Act) shall be null and void.”

In his ruling at page 40 lines 13 to 21, of the record of appeal, the learned trial Chief Judge stated the position thus:

“It is clear that by virtue of Section 34 (2) of the Land Use Decree 1978, the land known as No. 3C Enebong Avenue, is one which is deemed to be subject to statutory right of occupancy. The requirements of the Land Use Decree have not been followed and the acts of the parties would be null and void. The law is that an act which is a nullity, is devoid of legal effect. Macfoy v. U.A.C. Ltd, (1962) AC 152; (1961) 4 W.L.R. 1405 at 1409.”

I entirely agree with the learned trial Judge, and I will go further to postulate the legal position that the combined effect of sections 22 and 26 of the Land Use Act 1978, is to render null and void any alienation or transfer of a statutory right of occupancy or interest or right thereunder without the consent of the Governor first had and obtained. The effect of section 22 of the Land Use Act 1978, fell for interpretation by the Supreme Court in the well known case of Savannah Bank (Nigeria.) Ltd. & Anor v. Ajilo & Anor (1989) 1 NWLR (Pt.97) 305; (1989) A.N.L.R. 26. The facts of the case are that the plaintiffs/respondents mortgaged their interest in a piece of developed land in Lagos to the defendants/appellants to secure a loan. The deed of mortgage was executed and registered in the Deeds Registry. The plaintiffs/respondents defaulted in redeeming the mortgage and in an attempt by the defendants/appellants to foreclose the mortgage, the plaintiffs/respondents sued and claimed a number of reliefs based on the ground that the deed of mortgage was null and void in that the consent of the Military Governor was not obtained prior to entering into the mortgage. The High Court of Lagos State, granted the reliefs sought by affirming that the deed was null and void as the consent of the Military Governor was not obtained, in view of section 22 of the Land Use Act 1978. On appeal to the Court of Appeal, the decision of the lower court was upheld by the Court of Appeal. The defendants/appellants further appealed to the Supreme Court. In a unanimous decision of the full court, the Supreme Court affirmed the decision of the High Court and the Court of Appeal and held that the deed of mortgage was null and void as the consent of the Military Governor was not obtained, and it dismissed the appeal. It was stressed in the judgment of Karibi-Whyte J.S.C. that prior consent in writing by the Governor to alienation is a statutory requirement, which will be inconsistent with any contrary provision.

The case of Ogbo v. Adoga (supra) cited by the appellants’ counsel is radically different from the instant case. In that case, no conveyance or instrument of transfer of the property was prepared and executed by the parties, let alone obtaining the consent of the Governor to alienate the property. Indeed, at the stage the action was filed in the High Court, Makurdi, there was no conveyance as it was still an agreement by the vendor to convey to the purchaser. The Court of Appeal in that case regarded the transaction as an inchoate agreement which was not void. In the instant case, there is the deed of conveyance (Exhibit A) which does not bear the consent of the Military Governor as provided by section 22 of the Land Use Act 1978. It is therefore, my firm views in the instant case that the deed of Conveyance Exhibit ‘A’ is null and void and of no effects whatsoever.

Finally, the question of the respondent being allowed to benefit from his own fraud or to take advantage of his own default is non sequitur. The respondent cannot be said to have benefited from the fraud and embezzlement alleged against him which were not established in a court of law. The learned trial Judge was right in my view to hold in his ruling that he was not satisfied that the allegation of fraud had been established against the respondent and the question of his being allowed to benefit from his fraud did not arise. Also at page 42 lines 16 to 23 of the record, the learned trial Judge in his ruling stated:

“On the whole, I hold the view that fraud against the plaintiff has not been proved. If so the plaintiff should have been charged to court. The idea of converting what should have been a criminal case into a civil one is wrong. The purported exchange of a house for the sum of N80,000.00 as contained in Exhibit A is completely wrong in law. Exhibit A itself from the foregoing is not valid in law, the transaction being a nullity.”

I agree with him. There is no appeal against the above finding of the learned trial Chief Judge and therefore, there is no basis for this court to disturb it. In the absence of the appellants establishing that there was infact and in reality a genuine debt of N80,000.00 owed to the 1st appellant by the respondent for which the respondent’s property at No. 3C Enebong Avenue, Calabar, was conveyed to the 1st appellant by Exhibit A in discharge of the said debt, there is nothing that the respondent can be said to be taking advantage of. The appellants in the court below were unable to establish a genuine indebtedness and so cannot complain. Issue No. 2 is therefore, resolved against the appellants.

In the final result therefore, I hold that this appeal lacks merit and it is hereby dismissed. I award the sum of N5,000.00 costs to the respondent.

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Other Citations: (2001)LCN/0974(CA)

Uchenna Nwachukwu & Anor V. The State (2001)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

Each of the two appellants, was convicted on the 21st day of July, 1995, of the murder of one, Benjamin Iheama, hereinafter called deceased, contrary to section 319(1) of Criminal Code, by the Owerri High Court, and sentenced to death by hanging.

The prosecution called three witnesses. Each of the appellants testified, but called no witness. None of the witnesses that testified for the prosecution, was an eye-witness to the events leading to the death of the deceased. The case for the prosecution against the 1st appellant, was based on circumstantial evidence and Exhibits B and C, said to be confessional statements, made by him to the police. The case for the prosecution against the 2nd appellant, was also based on circumstantial evidence. The evidence led by the prosecution showed that he was a mere victim of circumstances, his involvement being that he was serving both the deceased and Anthony Nwachukwu, who is still at large, and that he got to know of the death of the deceased, after it had taken place. He was not 16 years old, at the time of the commission of the offence.

The defence of each appellant was a complete denial of the charge. The 1st appellant alleged that, the police forced him to make Exhibits C and B, and that parts of them did not represent what he had stated. While the 2nd appellant admitted, he was the sales boy of the deceased and the brother of Anthony Nwachukwu, who was alleged to have masterminded the murder of the deceased, he denied that he had any connection with it.

At the end of the trial, and in a reserved judgment, the learned trial Judge convicted the appellants and sentenced each of them to death by hanging as earlier noted.

Aggrieved by his conviction, each appellant has appealed to this court and learned Counsel filed a brief of argument for each of them.

In respect of the 1st appellant, counsel identified the following issues for determination:

“1. Whether the learned trial Judge was right in convicting and sentencing the 1st appellant to death, when the prosecution failed to prove the charge of murder beyond reasonable doubt?

2. Whether the learned trial Judge was right in relying on Exhibits “B” and “C” held to be confessional statements, and finding the 1st appellant guilty without investigation or inquiry or trial within trial?
3. Whether the learned trial Judge was right in relying on Exhibit ‘F’ namely evidence given in the previous proceeding before another Judge and finding the 1st appellant guilty, contrary to the provision of section 34(1) of Evidence Act?
4. Whether the circumstantial evidence relied upon in convicting the 1st appellant and sentencing him to death, was sufficient to establish the guilt of the 1st appellant?”

In respect of the 2nd appellant he identified the following issues for determination:

1. Whether there was credible evidence from the prosecution on which a reasonable tribunal would convict, especially when the prosecution conceded that the charge against 2nd appellant had not been proved beyond reasonable doubt?
2. Whether the learned trial Judge was right in invoking the provisions of sections 7, 8 and 10 of the Criminal Code, when the prosecution neither based its case against the 2nd appellant on those sections, nor was the 2nd appellant given the opportunity of defending himself, under those sections and when both counsel were not called upon to address court on the issue of invoking those sections?
3. Whether the learned trial Judge was right in relying on Exhibit ‘F’ being evidence of previous proceedings before another Judge and finding the 2nd appellant guilty?

As the respondent did not file any brief of argument, the appeal was heard by us solely on the appellants’ briefs.

I shall consider the appeal of the 2nd appellant first.

I think all three issues formulated on his behalf can be taken together. They all raise the simple question whether or not the learned trial Judge was justified in convicting this appellant in view of the concession by the prosecution, that no offence had been proved against him.

Mr. A. Nwaiwu, for him submitted in his brief of argument, that nowhere was a link or nexus alleged between the 2nd appellant and the killing of the deceased. Nor did any witness either directly or indirectly, link him with the death of the deceased. Learned Counsel drew attention to the concession made by the prosecuting Deputy Director of Public Prosecutions that no case had been proved against this appellant. It was learned Counsel’s contention that, in view of this concession, the learned Judge was in error to have proceeded under sections 7, 8 and 10 of the Criminal Code to scrounge for evidence with which, to convict the appellant. In counsel’s view, this was the more condemnable, having regard to fact that the appellant had not been given any opportunity of being heard on the applicability of the provisions of the code in question. It was counsel’s contention also, that the reliance by the Judge on evidence given in a trial before another Judge was, in the circumstances, wrong. I think these submissions are well founded. There is no evidence that the 2nd appellant did anything either directly or indirectly, to cause the death of the deceased. There was no finding of fact made by the court below, that implicated the 2nd appellant in the murder of the deceased. In his statement, Exhibit D, he denied taking part in the murder of the deceased and he maintained that stance in his evidence on oath in the court below. Mr. J.C. Duru the learned D.D.P.P., Imo State, who prosecuted the case before the learned Judge, appreciated this fact. In his written address (p. 123, 11.5 – 11 and p. 124, 11.1 13 of the record) the learned D.D.P.P. had this to say –

“As for the 2nd accused -CHIBUZOR NWACHUKWU, I see him as a victim of circumstance – his involvement being that, he was serving both the deceased and the runaway, ANTHONY NWACHUKWU, at the material time, and knew of the killing of the deceased, without more.

In that regard, it is my dispassionate view that time is now ripe for his liberty to be restored.”

…I have already conceded that the case against him, has not been proved by the Prosecution beyond reasonable doubt which should therefore be resolved in his favour – he, being, in my view, a victim of circumstance.

In final result, I urge Your Lordship to:

1. Find the 1st accused – UCHENNA NWACHUKWU (alone) guilty of the murder of the deceased – BENJANlIN IHEAMA

(as charged) and convict him accordingly.

2. Find the 2nd accused – UCHENNA NWACHUKWU (alone) not guilty of the murder of the deceased BENJAMIIN IHEAMA and acquit and discharge him, of the offence charged.” “(Italics mine)

One would have thought that the matter would end there with the 2nd appellant being discharged and acquitted, especially as the learned Judge took particular note of the concession by the prosecution. He expressly stated that he would consider that concession, “which tallies with that of the defence counsel”. At the end of the exercise, however, the learned Judge did nothing of the sort. Rather, he looked into the statement of the 2nd appellant to the police (Exh. D) in search of evidence with which to convict him. He also looked in the evidence of the three prosecution witnesses, and evidence given before another Judge. Thus, where D.D.P.P., nor I, for that matter, could not see any evidence incriminating the 2nd appellant, the learned Judge saw enough to enable him hold at p.173, 11-1-11 of the record that –

“It is evident from the evidence of the prosecution witnesses and the statement of the second accused, which he adopted as his defence that the second accused was an accessory before and after the murder of the deceased having regard to the Provisions of sections 7, 8 and 10 of the Criminal Code… the second accused is also guilty of the charge of murder against him.”

This finding is not supported by the evidence led before the learned trial Judge. I see nothing in Exh. D or the evidence of the prosecution witnesses to support it. The learned Judge set out the entirety of Exh. D at pp. 167 – 169 of the record. I shall do the same to show how wrong the Judge was in his conclusion:

“I, Chibuzor Nwachukwu, having been duly cautioned in English language, that I am not obliged to say anything, unless I wish to do so and that whatever I say, will be taken down in writing and may be given in evidence, voluntarily state as follows:

I know Benjamin Iheama, I also know Anthony Nwachukwu. Anthony Nwachukwu is my brother while Benjamin Iheama was my cousin. I also know Uchenna Nwachukwu, he is my brother of the same father and mother. I know Christopher Ndulaka, he is a friend of Anthony Nwachukwu. Christopher Ndulaka, has no work doing. Anthony my brother, brought me to work with him, in the business between him and Benjamin. I am a salesman in their company. I could remember around January 10th, Anthony sent me to go to Orji and called Uchenna, and Christopher Ndulaka

for him. When they came, three of them entered into a hotel and started to discuss some matters. I do not know what they discussed about. I observed that from the period they use to meet together, in the same hotel and discuss matters. None of them tells me, what they discussed. I saw Benjamin lheama, last on 20/1/85, that was on a Sunday, I asked Anthony about Benjamin lheama, he told me that Benjamin travelled to Lagos.

On 28/1/85, Christopher Ndulaka told me to be careful over Anthony. I asked him if all is well. He asked me to call Anthony for him. I called Anthony for him. Anthony Nwachuku told Christopher Ndulaka, that he should not tell me any thing, if I asked him. As Christopher Ndulaka was going away, I followed him and he told me that Benjamin was no more alive. That himself and Anthony had killed Benjamin lheama. I proposed to report the information to my mother the following day, being 29/1/85. On 29/1/85 Policemen came and arrested me.

I could remember in the month of Jan. 1985. I observed that Benjamin and Anthony, were discussing over sales of Fridge, which we sold and hand over the money to Anthony, which Anthony did not account to Benjamin. Benjamin asked me about it, I told him that we sold the Fridge for N470.00, and handed over the money to Anthony. Anthony accused Benjamin of taking some money, with which he cleared his brother’s car from the wharf.

On 28/1/85 when Christopher Ndulaka told me that they have killed Benjamin, I did not inform Timothy, the senior brother of Benjamin, because he is not always in his Store. Since that date, I have not tell anybody about the information. I did not take part in killing Benjamin. I was not in conspiracy to kill Benjamin lheama.”

On this statement, the learned Judge commented at pp.169 – 170 of the record:

“…it contains the very vital information, that this 2nd accused was the person run-away, Anthony Nwachukwu, sent to summon the first accused, Uchenna Nwachukwu and Christopher Ndulaka (now deceased), for their conspiratorial meeting, and the three of them met regularly, according to second accused in the same hotel from 10th January, 1985, until Benjamin was killed on 20th January, 1985. This same second accused, was the person who told the driver of PW1 on 22nd January, 1985, that the deceased had travelled to Lagos, yet he visited the yard according to him by 10.30 .m. on Sunday 20th Jan. 1985 – the same day, the deceased was killed. This same second accused voluntarily, handed over to PW3 a Policeman the proceeds of his sales in his shop which he said belonged to his elder brother Anthony Nwachukwu and the deceased even when he did not know according to his evidence in-chief that Benjamin his master had died. All these sound too good to be true …”

With the profoundest respect to the learned Judge I see nothing sinister in the errand run by the 2nd appellant. He was categorical that he did not know what the three elder men were discussing even when he asked they refused to tell him. There is no credible or legal evidence from any of the prosecution witnesses that he knew that the “conspirators” were planning a murder. It is true that PW 1 testified-in-chief that the 2nd appellant knew of the arrangement to kill the deceased. Yet this was a witness who, on his own admission, knew nothing about how his brother, the deceased, met his death.

Parts of his cross-examination are instructive in this regard:

“Q. Everything you told the Court yesterday, about how your brother was killed, were stories told to you by others you were not there?

Ans: I was not there.

Q. You never had personal knowledge of how your brother was killed?

Ans: I do not have personal knowledge of how he was killed.”

If he did not have personal knowledge of how his brother had been killed, how did he know that there was an arrangement, and that the 2nd appellant knew of it? Was he told so, by someone else? If so, who told him, and why was that person not called as a witness to confirm it? As the witness had not explained how he came to know, that the 2nd appellant knew of the arrangement to murder the deceased, not, on his own admission, knowing it of his own personal knowledge, no reasonable tribunal could or should have believed him. If he had been told the fact by someone else, then, in the circumstances, his repetition of it was hearsay, which is not legal evidence.

Without the knowledge on the part of the 2nd appellant of what the so-called conspirators were planning, how could he be described as an accessory before the fact of that thing? And where is the evidence, that after the alleged fact he did anything to facilitate the escape from justice of the culprits? For who, after all, is an accessory, before or after, the fact? The former, according to Jowitt’s Dictionary of English Law, 2nd Ed., is

“one who directly or indirectly procured by any means the commission of a felony…”

According to the same source, the latter is –

“one who with the knowledge that a felony had been committed… in any way secured or attempted to secure the escape of the felony, whether by harbouring him or otherwise.”

In the case of the former, the keyword is “procured”. This is a simple English word, the primary meaning of which is “to obtain”. This clearly, implies knowledge on the part of the person who procures of the thing procured. You cannot obtain something about the existence of which you are unaware.

With all due respect to the learned trial Judge, there is no way, on the evidence before him, the 2nd appellant could be said to be an accessory before and after the fact of the killing of the deceased. The available legal evidence, as highlighted by me, in Exh. D earlier set out, is to the effect that 2nd appellant, knew nothing about the plot to kill the deceased. When he summoned (to borrow the learned Judge’s language) the alleged conspirators together, he did so like a true Nigerian youngster, running an errand for an elder brother. He did not have to know and, as the evidence showed, he did not know, why his elder brother had sent him to call the other people. It is not the province of a Nigerian youth to query his elder on the latter’s reason for sending the former to call somebody.

By summoning them together he may in a loose sense have facilitated the conspiracy by the conspirators (and this is even debatable). One sense of the term “to procure” is “to bring about”. So when the 2nd appellant brought the three men together he brought about the opportunity for them to conspire. This involuntary facilitation, however, is not in my view, what the law sets out to punish. As I pointed out before, the only legal evidence available, is the evidence of the 2nd appellant, that he knew nothing of any conspiracy to kill and that he was arrested soon after he got to know of how the deceased died, before he had the opportunity to tell anybody. As there was no contrary legal evidence and as it was not intrinsically incredible, the Judge was bound to accept it. He had no choice.

Inspite of this, the learned Judge rejected the concession made by the prosecution and started looking for incriminating evidence, against the 2nd appellant despite the admission that the charge against him was not proved beyond reasonable doubt as required by law. The wise observation of Eso, JSC. in State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548, at 577 is apposite here:

“And so, I ask, where did the trial court find that piece of evidence on emotion, mind and fear? It is a question that must determine this appeal. And the answer is, as learned Counsel for the State, submitted to the Court of Appeal, the case of a judge making-

‘his own speculation and presumptions not supported by any legal evidence or the Law of Evidence.’

It is a case of a speculator upon-

‘possible defences open to accused person’

Our law does not permit of such speculations judges! It is the case of a Judge who made it his business-

‘to scrounge for evidence, which may have the effect of raising one type of defence or the other in answer to the charge.’

It is unknown to the Law. A Judge of first instance, decides on evidence led by the parties to a case before him. He does not, with respect, concoct evidence. He does not imagine evidence. He interprets a situation as per the cold facts before him not as per what he would have preferred the facts to be. It is unfortunate, that the trial Judge in this case went on that voyage, even unsolicited by the defence. It is more unfortunate, that a Court of Appeal should permit such fancy to thrive!”

In that case, the two lower courts scrounged for evidence in favour of the accused., It was condemned by the Supreme Court. It must be doubly condemnable when the scrounging for evidence was done, as in this case, to rope in a citizen presumed innocent until proved guilty by legal evidence.

I find the learned Judge’s reliance on sections 7, 8 and 10 of the Criminal Code objectionable, not only because the evidence did not warrant it, but also because the prosecution neither based its case against the 2nd appellant on those sections, and the 2nd appellant was not given the opportunity of defending himself under those sections. The Judge brought those sections up in his judgment.

Condemnable also was the reliance by the Judge on Exh. F, the proceedings before another Judge. Page 170 to page 172, of the record shows clearly, that the learned trial Judge relied heavily on the evidence of PW 1, PW 2 and P W3 to which his attention was drawn by the prosecutor. These witnesses testified in the previous proceedings in Exhibit F, but did not testify in these proceedings in convicting the 2nd appellant. Such evidence could only be used for cross-examination as to credit of such person or persons, called to testify in the latter case.

See Alade v. Aborisade (1960) SCNLR 398; (1960) 15 FSC 167.

The learned trial Judge was therefore, wrong in relying on the evidence of PW1, PW2 and PW3 in Exhibit F, in arriving at the guilt of the 2nd appellant.

From all that I have said, I am of the view that it will be unsafe to allow the conviction of the 2nd appellant to stand. I accordingly, allow the appeal of the appellant, set aside the conviction and order that he be acquitted and discharged.

I now come to the 1st appellant’s appeal. Like the case of the 2nd appellant, all the issues formulated on behalf of the 2nd appellant, can be taken together. They all boil down to the same single question, was the guilt of the appellant proved beyond all reasonable doubt? Mr. Nwaiwu, beautifully summarised the complaints giving rise to the issues thus:

“(i) The failure to resolve the material contradictions in the evidence of prosecution witnesses and which raised doubt on the guilt of the 1st appellant.

(ii) The failure of the learned trial Judge to cause investigation or inquiry or trial, within trial to be conducted in the face of statements of 1st appellant namely: Exhibit ‘B and ‘C’ being made under duress.

(iii) The improper application of section 34(1) of the Evidence Act in relying on Exhibit ‘F’ being evidence given in previous proceedings before another Judge.

(iv) The circumstantial evidence not being conclusive especially in view of the issue of involuntariness of Exhibits ‘B’ and ‘C’.

The failure to prove the charge beyond reasonable doubt.”

The first point made by learned Counsel was that, the cause of death of the deceased was not proved, because PW2 and PW3 alleged that the deceased was tied with electric wire, from the neck to the penis, but the wire was not tendered in evidence. It was also learned Counsel’s contention that the autopsy report, was silent on whether the wounds or scars allegedly caused by the 1st appellant on the deceased, were likely to or did cause the death of the deceased. Counsel relied on a litany of cases, including Queen v. Izobo Owe (I961) 1 SCNLR 354; (I961) 1 All NLR 680 and Omogodo v. The State (I981) 5 SC 5,26 – 27.

It is trite, that while medical evidence to prove death is desirable in homicide cases, this is not absolutely essential.

To make the accused criminally liable in case of murder there must be clear evidence, that the death of the deceased was the direct result of the act of the accused. See R. v. Johnson Nwokocha (I 949) 12 WACA 453

Medical evidence in proof of death is, however, not essential in circumstances where –

(i) there is evidence of the death of the deceased; and

(ii) there is evidence that the death was the result of the unlawful and intentional act of the accused person.

Death can be established by sufficient evidence, other than medical evidence showing beyond reasonable doubt, that death resulted from the particular act of the accused. [Adekunle v. The State (I972) 3 SC 153.]

In the instant case, there is evidence that one, Dr. Ihezue, who had travelled overseas for further studies performed post mortem examination on the deceased and issued Exhibit E to PW.3. It is he, who stated that death was caused by asphyxiation, following strangulation. Failure to tender the electric wire was, in my view, therefore, totally irrelevant since the cause of death was known.

Learned Counsel further submitted that there were material contradiction as to the medical doctor, who had performed the post mortem examination because PW2, counsel pointed out, referred to Dr. Njemanze as the doctor who had performed it, while PW3 referred to Dr. H. Ihezue as the doctor who had performed it. He also submitted that, there were material contradictions in the evidence of PW2, as to who took them to the grave because PW3 said it was the 1st appellant, who took them there while in his previous evidence when he testified as PW6 before another Judge, he had said that it was the 1st appellant who described the place himself and Charles Anyanwu traced the place. This, according to him, was in conflict with the evidence of PW2 and PW3.

On the alleged contradiction in the case of the prosecution, I would like to refer to page 165, of the records where the learned trial Judge said:

“…I hold that there are no contradictions in the evidence of the prosecution witnesses, and any contradiction elicited are not material contradictions and they do not go to the root of the matter. It is important to remember that the prosecution witnesses were giving evidence from recollections of events, which took place about eight or nine years before they testified and in such circumstances it is not unusual for witnesses to be a little imprecise.” [Enahoro v. The Queen (1965) NMLR 265]

Having myself read the record, I cannot help agreeing with these observations and conclusion. The contradictions referred to in the case of the prosecution are minor contradictions, which are not sufficient to occasion miscarriage of justice, and the learned trial Judge was quite right in ignoring them. Despite the obvious mix-up as to the name of the doctor who performed the autopsy, there can be no question that a doctor performed it. The medical certificate, Exh. F, shows clearly that Dr. Ihezue was the one. The fact that one of the witnesses gave the name as Dr. Njemanze, is not serious enough to affect the fact that autopsy was in fact carried out. As to how the police found the grave where the deceased was buried, the pieces of evidence highlighted by counsel, as being contradictory are not even so in my view. They all point to the 1st appellant as being instrumental to the discovery of the grave. There may be some discrepancy, which, in my view, is not material.

It was also the submission of learned Counsel that the learned trial Judge was wrong in relying on Exhibits ‘B’ and ‘C’ and holding them to be confessional statements and without investigatory inquiry or trial within trial. He further argued that this failure by the trial Judge occasioned a miscarriage of justice to the 1st appellant because he relied on the statements to convict him. He relied on the cases of Auta v. The State (1975) 4 SC 125 at 134 – 135 and R. v. Igwe (1960) SCNLR 158; (1960) 5 SC 55.

I agree with the observation of learned Counsel that, the learned trial Judge did not hold a trial-within-trial before admitting the statement of the 1st appellant in evidence. It is, however, settled law when a confession is challenged on the ground that the accused never made it at all, that question is a matter to be decided at the conclusion of the case and, the confession can properly be admitted when tendered by the prosecution. In such a case, a trial-within-trial is not called for. Such trial-within-trial is called for, only where the objection to the admission is that the accused had made the statement but not voluntarily. The trial-within-trial is to test the voluntariness or otherwise of the alleged confession, not the fact whether or not the accused made the statement at all. This is the clear import of sections 27(2) and 28 of Evidence Act, Cap. 112, Laws of the Federation, 1990, which provide –

“27(2) Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.

A confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature.” (Italics mine)

Addressing himself to these provisions, Agbaje, JSC, in Obibiozo v. State (1987) 4 NWLR (Pt. 67) 748, at 760 – 76 1, said,

“It is clear law that if evidence of a confession is objected to on the ground that the confession is not made voluntarily, the Judge sitting alone should hear evidence on the point which may be tendered, and then rule on its admissibility, before receiving the confession in evidence. See R. v. Onabanjo (1936) 3 WACA 43 and R. v. Kassi Ors. (1939) 5WACA 154. It is equally clear law that, it must be shown affirmatively on the part of the prosecution that the statement was made voluntarily. I may remark that in R. v. kassi (supra) when the statements of the accused persons in the case were being tendered in the course of the case for the prosecution counsel for the defence, objected to their being received in evidence on the ground simpliciter that they had been made under duress or were induced by promises. In other words, the ground of the objection was simply that the statements were not voluntarily made. One can therefore say that when an objection is taken to a statement on the ground simpliciter that it was not voluntarily made by an accused person, a trial-within-trial must be held to determine the admissibility of the statement before it can be admitted in evidence.

After R. v. kassi (supra) there is the case of R v. Igwe [1960] 5 FSC 55 where it was held as follows:

‘It is now too late to question the rule whether voluntariness or otherwise of a confession must be decided by the Judge before its admission, even where the judge is sitting without a jury, since the courts of this country have applied that rule for many years; but we see no reason to extend the scope of the rule to cases, where a confession is challenged, not because it is alleged that it is not voluntary, but because it is alleged that the accused never made it at all. We are of opinion that, in such a case the question whether the accused made the confession is a matter to be decided by the Judge, in his fact-finding capacity at the conclusion of the case, and that the alleged confession can properly be admitted as part of the evidence, when it is tendered by the prosecution.’

Referring to R. v. Igwe (supra) the Federal Supreme Court said in The Queen v. Imadebhor Eguabor (1962) 1 All NLR 287 at 292 held:

‘as this Court held in R. v. Igwe (1960) 15 FSC 55, it is only where an issue arises as to whether a confession was made voluntarily, that the exceptional procedure of holding a kind of trial within a trial should be adopted, and if an accused person, wishes to deny that he made a statement attributed to him, or that his statement was correctly recorded, the time for him to do so, is when he comes to make his defence. It follows that he should not be permitted to say anything, whether by way of admission or denial, when the statement is tendered by the prosecution; a fortiori he should not be invited to say anything, though it is not clear whether or not that was done here.’

So it can be confidently said on the authorities of R. v. Igwe and The Queen v. Eguabor ( supra) that, where an issue arises as to whether a confession was made voluntarily, a trial within a trial must be adopted to determine the admissibility of the confession, before it is ever admitted in evidence. On the other hand, when the issue was whether the accused made the statement or not, or that the statement was correctly or incorrectly recorded, the statement can be admitted in evidence without holding the exceptional procedure of a trial within a trial, there then being no issue as to whether the confession was made voluntarily.” (Italics mine.)

Now, upon what ground did learned Counsel for the 1st appellant object to the admission of Exhs. B and C? It becomes pertinent to look at the record at this juncture. The learned D.D P.P. began his move to tender Exh. B. at p. 52, 1.28. The record from there up to p. 54, 1.30 reads:

“Duru applies to render same in evidence as in exhibit – the same is shown to defence Counsel, who took the statement to the first accused, and he looked at it for a very long time and the defence Counsel, then informed the court after a long conference with the accused, that the accused is alleging that he cannot now see properly; that he was forced to sign a document and he cannot say whether the document now shown to him is the one he was forced to sign. Defence counsel then says that he is objecting to the document being received in evidence on that ground.

Duru for the prosecution replies and says that, since 1st accused is saying that his sight is failing him, since he cannot see, he cannot say whether this is the document he signed.

Onuzuluike says that his objection is based on the fact that 1st accused said he was forced to sign a document, even though he cannot now recognise the signature thereon, because of his bad eye-sight.

COURT TO ONUZULUIKE: The accused persons including present 1st accused was defended by one Jacob Duke, when on 22/3/89 – PW 3, PW4 and PW5 testified and this same document, was received in evidence as Exhibit ‘C’ without objection, when present accused had very good sight. The proceedings were before F.I.E. Ukatta, J. as he then was what has made this same document now inadmissible in evidence before this Court?

Answer: I was not present at that trial and I am only relying on what the accused is telling me.

COURT TO ONUZULUIKE: Find out from 1st accused, can he sign his signature now so that I compare same with the one on the document sought to be tendered?

Answer: 1st accused says that he cannot see and he cannot write or sign his signature.

COURT TO CLERK OF COURT: Read out and interpret to the 1st accused, the document sought to be tendered since the accused says he can hear and is not yet deaf, whether that is what he told the witness and which the witness recorded.

After the said document was read to him and interpreted to the witness, he denied that that was not his statement to the police.

COURT: I have conducted some sort of trial within a trial in this matter, and I find as a matter of fact that, the present first accused, Uchenna Nwachukwu, is trying to deny his statement out of mischief and after a long stay in prison custody, since 1985. This document sought to be tendered, was read over to the 1st accused before a superior police officer, a D.S.P. on 8/2/85 and the accused accepted same as correct, and signed before the superior police Officer on 8/2/85. Four years later, on 22/3/89, this same document was tendered in evidence without his objection by the then defence Counsel and the accused before Ukattah, J. as he then was who heard this case, but could not conclude same because of creation of States. I disbelieve the denial of the accused and shall receive and I do hereby, receive the said document in evidence and mark same Exhibit ‘B’.”

The record in connection with Exh. C starts from p. 56,1.4 to p.57, 1.20, and reads:

“Duru now applies to tender the said statement in evidence.

Onuzuluike for the accused says, that the witness has requested that the document be read to him because he cannot see as to identify his signature. The first accused remembers making a statement to the police on 25/1/85.

First accused remembers that, the said statement was read over to him by the recorder and she accepted the statement in part and that he told defence Counsel, who was defending him so when this same statement was received in evidence as Exhibit ‘C’ before the High Court on 22 March, 1989, before Mr. Justice F.I.E. Ukattah as he then was.

Onuzulike for accused persons now requests that, the statement of the witness be read to him before he decides to oppose the admission of the statement or not.

COURT TO ONUZULUIKE: Refer me to the law that says that the statement of a witness to the police must be read to him, before you as defence Counsel, will decide whether the statement is that of the accused or not especially as you have told me that you have in your case file – the proof of evidence where the entire contents of the statement of the accused to the police now sought to be tendered, is fully recorded and set out and the proof of evidence was served on the first accused since 1985, before his alleged blindness.

ANS: Since I am satisfied that it is this same statement now sought to be tendered that was tendered before your Learned Brother F.I.E. Ukattah, J. as he then was in an earlier proceeding in this matter, when it was marked Exhibit ‘C’ on 22/3/89, I will not object to its being tendered in evidence now. I will only ask respectfully that the witness be recorded as having said that he did not accept part of that statement when it was tendered on 22/3/89 before F.I.E. Ukattah, J. as he then was.

COURT: The accused persons are being charged to Court for murder. It is left for the prosecutor, if he so wishes in the light of the submissions of defence Counsel to adduce additional evidence, to counter the submissions of defence Counsel mean-lime the statement of the 1st accused to the police is hereby received in evidence without objection and marked Exhibit ‘C’.” (Italics mine.)

From the portions of the record relating to Exh. B, that I italicised, it is clear that the 1st appellant complained that he had been forced to make a statement. When the contents of the statement sought to be put in evidence were read aloud to him he denied that it was the statement he made under duress. It is my view that, in the circumstances, the need for trial-within-trial became irrelevant. The voluntariness or otherwise of the statement ceased to be an issue. The issue became whether or not he made the statement tendered. That issue became a matter for the trial court to decide at the end of the trial.

With regard to Exh. C, the issue of the voluntariness or otherwise of the statement never arose. The only ground of objection was that part of the contents did not represent what he had told the police. The question of trial-within-trial did not, therefore, arise.

It follows from all these that the complaint about the admission of Exhs. B and C without first holding a trial-within-trail is baseless.

The next crucial question is whether or not the learned trial Judge was right in regarding Exhs. B and C as confessional statements.

Section 27(1) of the Evidence Act defines “a confession” as an admission made at any time by a person charged with a crime, stating or suggesting the inference that she committed the crime.

Let us now see whether or not Exhs. B or C, or either of them fits this definition. Exh. B is short and merely adopts what was stated in Exh. C. It also carries an endorsement that the 1st appellant was taken before a superior police officer who read over the statement to the appellant, who confirmed its contents as his statement. Exh. C is on pp. 178, 181 and reads:

“I Uchenna Nwachukwu voluntarily elect to state as follows:- I could remember some time this month, my senior brother Anthony Nwachukwu, told me that he has a trouble with Benjamin, from my mother’s place. I asked him what was the trouble, because Anthony Nwachukwu and Benjamin, have combined business in an electronic at No, 4 Douglas Road, Owerri. He refused to tell me what was their trouble and added that he will kill Benjamin. I told him that he should not kill Benjamin, because he is our brother and our mother’s relation.

On 20/1/85 at about 0700 hrs, my brother Anthony Nwachukwu, came to my house at Umuchoke Orji, and told me to come and help him to kill Benjamin. I told him that I cannot do such a thing. He rebuked me and said that I should follow him. I refused, later I followed him to his house at No. 454 Ikenegbu Layout Owerri. When I got to my brother’s house I saw Christoper Ndulaka and the deceased Benjamin, in my brother’s house. Before this time, my brother had informed Christopher Ndulaka, about the killing of Benjamin and he Christopher, agreed with my brother, but I refused to agree because he was my brother.

At about 0730 hrs, as we were all together in my brother’s bedroom, at last floor of the house, my brother Anthony Nwachukwu and Christopher Ndulaka, held Benjamin and started to strangulate him. When I saw this, I ran away. Only my brother leaves in that flat. I ran down stairs and was staying there, because I do not want to be there. After about 30 minutes, I went back to my brother’s room and saw that Benjamin is dead. My brother and Christopher were all there. I did not see any, injury on the body of the deceased.

After this incident all of us went to our homes.

At about 2100 hrs of 20/1/85, my brother Anthony came and collected Christopher Ndulaka and myself to his house in my brother’s house, he told Christopher and myself to help him bring down the body of Benjamin, from the second floor. Three of us brought the body down. We put the body into the booth of Car No. IM315 WB belonging to the deceased Benjamin. Later my brother drove the car and three of us went along Urratta Express Road Owerri, where they buried him in a shallow pit. It was Christopher Ndulaka, who brought the two shovels they used in digging sand with which they covered the grave. After the burial, my brother dropped me in my house at Orji, he dropped Christopher at Umuahu Orji before me, and finally went away with the car. On 29/1/85, my brother came to my house at about 0900 hrs and asked me why I did not open my shed at Orji, I told him that it was because of money.

On 30/1/85, at about 1700 hrs, I went to my brother’s store at No.4 Douglas Road Owerri, to see my brother, but he was not there. My junior brother Chibuzor told me that my brother went out but did not tell me where he went. My brother Anthony is not married. It was today 31/1/85, that two policemen came and invited me to their office, and told me that they have contract for me. When I got there, I was informed that my brother has killed Christopher Ndulaka, I shouted and told them that I do not know anything about that. I told the Policeman that I would like to see my brother and the person, where I saw Christopher being admitted in the hospital.

I saw that Christopher had injury on his right side of the stomach. Since 29/1/85 that my brother visited me, I have not seen him again. I am a native of Amaegbu Ogwa in Mbaitolu Ikeduru, Owerri.”

What I can gather from this statement is that the 1st appellant maintained that he never wanted to kill and did not take part in killing the deceased. He admitted, however, that he was aware all along of the plan to kill the deceased and was present when the killing began. He said he however left immediately it started, because of his aversion to it. Although he admitted following the other two to where they buried the body, he never took any part.

The only wrong that I find the 1st appellant to have admitted, is that he knew of the plan to kill the deceased but did nothing to prevent it. He did not admit taking any active part in it. Indeed, as has been seen, he denied any such participation. To this extent, therefore, I must agree with the 1st appellant that the learned Judge was wrong in regarding Exhs. B and C as confessional statements in relation to the offence of which he was convicted.

The next question is whether or not, the learned Judge relied on evidence given in Exh. F in convicting the 1st appellant.

Learned Counsel submitted that the learned trial Judge was wrong in relying on the evidence given in the previous proceedings before another Judge in convicting the 1st appellant without adverting his mind to section 35(1) of the Evidence Act. Reliance was placed on the cases off Jonathan Ajijola v. The State (1976) 6 SC 13; Nahman v. Odutola (1953) 14 WACA 381;R. v. Nwa lkpe 381 (l960)FSC 180.

I rnust say straight away that this submission is misplaced because the learned trial Judge did not rely on the evidence given in a previous proceeding, before another Judge in convicting the 1st appellant. At this stage, I would like to reproduce pages 163 – 164 of the record, where the learned Judge indicated upon what evidence he relied on, in convicting the 1st appellant:

“I have already in this judgment, reproduced in full verbatim the aspects of the statements of first accused to the police, which he denied. I do not still accept his denials. In saying so, I like to point out that those two statements were made on different days at one week’s interval- one on 31/1/85, and the other on 8/2/85, and first accused countersigned each of those two statements, before a superior Officer. It is my view, and I so hold that with or without his denials his statements amount to a clear, unequivocal admission of his guilt. I am reinforced in my view by the evidence in chief of the first accused himself, when he gave evidence on oath in his own defence, when he told the court inpart that, when the police came to his house and promised to award him a contract, he went with them to the Police station and later, to the hospital and after narrating to the court, what late Ndulaka, told him he continued, that in the presence of the police the hospitalised late Ndulaka, stated that late Benjamin Iheama was killed by his run-away brother Anthony Nwachukwu; himself Christopher. That part of his evidence has already been reproduced in this judgment.

It is in the circumstance my view, and I so hold that inspite of the denials of the accused, which denials I reject his evidence on oath as a whole tallies in material particulars, with his rather confessional statements to the police Exhibits ‘B’ and ‘C’ in these proceedings. There is also the evidence of PW2 in these proceedings, the relevant part of which I have reproduced in this judgment. That evidence of PW2 is purely circumstantial evidence, and having regard also to Exhibits ‘B’ and ‘C’ in these proceedings, I am convinced and I hold as a fact, that the entire evidence in this case in respect of first accused, Uchenna Nwachukwu and in particular the circumstantial evidence provided by PW2 are very cogent, very complete, compelling and irresistable and they lead to no other conclusion than that first accused Uchenna Nwachukwu, was one of those who voluntarily without any extra-ordinary emergency being very same and without any accident, killed late Benjamin Iheama, and convict him accordingly.’ (Italics mine)

It is clear from this that the learned trial Judge, did not rely on the evidence given in a previous proceeding before another Judge in convicting the 1st appellant. He relied on the evidence of PW2 supported by that of the 1st appellant himself.

The final and most crucial question, is whether or not the learned Judge was right in concluding that the prosecution proved its case against the 1st appellant beyond all reasonable doubt.

Learned Counsel submitted that, the circumstantial evidence led by the prosecution is not sufficient to establish the 1st appellant’s guilt. He submitted that the evidence of PW2 was based on hearsay and therefore, inadmissible. He stressed that if his evidence is expunged, there would be insufficient circumstantial evidence left to convict the 1st appellant. Reliance was placed on the case of Subramanian v. Public Prosecutor (1956) 1 WLR 965 at 969. He further contended that the statements of the 1st appellant Exhibits ‘B’ and ‘C’ were equivocal, and do not amount to admission of guilt and as such, the learned trial Judge was wrong to have admitted the evidence of PW.2 and relied on the statements in convicting him.

In order to sustain a conviction based on circumstantial evidence, the circumstances relied upon by the prosecution must lead conclusively and indisputably, to the guilt of the accused person.

While dealing with the appeal of the 2nd appellant, I demonstrated that the evidence of PWI was hearsay. He admitted that his evidence was based not on his personal knowledge, but on what he had been told. For all practical purposes, therefore, his evidence can be discounted. I have also demonstrated that neither Exh. B nor Exh. C is a confessional statement, in relation to the charge on which the 1st appellant was convicted. Therefore, standing by themselves, they can not ground a connection for the offence charged. They are, however, as held by the learned trial Judge voluntary statements. In the circumstances of this case, I have no reason to disagree with this finding. The fact that they are not confessional statements, does not mean that they cannot contain circumstances that, in conjunction with other circumstances, can lead to a conviction.

Now, I have already set out the portion of the judgment showing that, the learned Judge relied on the evidence of PW2 in preference to the 1st appellant. There was also the evidence of PW3. These two witnesses were corroborated by the 1st appellant, in some material particulars. The learned Judge preferred the story as told by the witnesses, that the 1st appellant told them the story of how he and the others, had killed the deceased and buried him. He preferred their story that he showed them the place of burial to his denial.

Having read the record myself I find myself unable to agree with the 1st appellant that the learned Judge was not justified in his preference. He was the one who saw and heard the witnesses as they testified.

On the evidence before him, particularly the evidence of PW2 and PW3, the learned Judge came to the right conclusion that the prosecution had proved beyond all reasonable doubt. I must, therefore, dismiss the appellant’s appeal and affirm the decision of the learned trial Judge.

In summary, I allow the appeal of the 2nd appellant and enter an acquittal for him. I however, dismiss the appeal of the 1st appellant and affirm the decision of Maranzu, J. convicting him and sentencing him to death.

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Other Citations: (2001)LCN/0973(CA)

Igwe Josiah Agu & Ors. V. Ozo I. O. U. Anyalogu & Ors. (2001)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A.

This is an appeal against the ruling, handed out by Ugwu, J., as he then was, sitting at Enugu High Court, on 16th April, 1997.

It is apt to state briefly, the background facts leading to the above stated ruling under fire. On 3-5-94, Onyia, J. made an order in favour of the plaintiffs/appellants herein, against the defendants/respondents in the following terms:-

“An interlocutory injunction restraining the defendants jointly and severally by themselves, their agents, privies and servants from installing the 1st defendant as the first Esaa or Esaa I of Ngwo Asaa or in any manner whatsoever, holding out himself as the Igwe or Igwe elect of Ngwo Asaa by whatever name called pending the determination of the substantive suit.”

The 1st defendant/respondent felt dissatisfied with the ruling. He appealed to this court and the suit number of that appeal is CA/E1105/96. He filed appellant’s brief of argument, dated 12-6-96 therein. Same was served on the present appellants’ counsel.

Vide the motion on notice, dated 12-2-97 and filed on the same date, the appellants herein prayed for an order committing the 1st respondent to prison for disobeying court order. Reliance was placed on Order 35 of the High Court Rules, 1988.

A notice of preliminary objection, dated 18-2-97, was filed on behalf of the respondents in this appeal. Relevant grounds of objection, as deposed to in supporting affidavit, are that there is an appeal pending on the ruling in this court and Forms 48 and 49 were not served on the 1st respondent. In substance, the respondents maintained that the application for committal of the 1st respondent to prison for contempt was incompetent.

Counsel for both sides, addressed the trial Judge. In the well considered ruling of 16-4-97, he upheld the preliminary objection and dismissed the plaintiffs/appellants’ application for committal dated and filed on 12-2-97.

The appellants herein, being dissatisfied, filed their notice of appeal which complained against the ‘whole decision’. Three grounds of appeal accompanied the notice of appeal. From the three grounds of appeal, each side of the divide formulated two issues for determination in this appeal.

The appellants couched their own two issues for determination as follows:-

“(i). Whether Order 35 of the High Court Rules of Anambra State, 1988, applicable to Enugu State, is a valid enactment and applicable in the circumstances, and if so, whether the plaintiffs complied with its provisions.

(ii) Whether the fact that the defendant had appealed against the order against which the said contempt was committed divested the trial court of its jurisdiction to entertain the said application for committal in the absence of an order for stay of execution of the said order or an application for same.”

The two issues formulated on behalf of the respondents herein are as follows:-

“1. Where an appeal has been entered in the appellate court, does the court from which the appeal emanates continue to exercise jurisdiction over the proceedings between the parties.

2. Whether proceedings for committal for contempt can validly be taken under Order 35 of the Anambra State High Court Rules of 1988, without regard to the provisions of Order 9 rule 13 of the Sheriffs and Civil Process (Judgments Enforcement) Rules.”

When this appeal was called for hearing on 8-2-2001, the appellants were absent. No counsel represented them. Since a brief of argument had been filed on their behalf, this appeal was taken as argued by them. This tallies with the dictates of Order 6 rule 9 (5) of the Court of Appeal Rules, 1981, as amended.

Though couched in different forms, issue No.2 of the appellants points to the same direction with issue number 1 of the respondents, It touches on the competence of the trial court to continue exercising jurisdiction over the proceedings between the parties after an appeal had been entered in this court. It is neater to consider this issue at this point in time since it relates to the competence of the trial court.

Arguing this issue, S.I. Chime Esq., learned Counsel for the appellants, contended that the learned trial Judge wrongly applied the case of Ezomo & Anor v. A-G., Bendel State (1986) 4 NWLR (Pt.36) 448, (1986) 2 NSCC (vol. 17, Pt.2) 1154 to the case before him. Learned Counsel observed that uptill the time the objection was taken at the trial court, there was no order for stay of execution of the order of interlocutory injunction appealed against by the respondents herein. He maintained that there was infact no application pending in any court praying for stay of execution. He referred to section 18 of the Court of Appeal Act, 1976, which provides that appeal in civil cases does not operate as a stay of execution. Learned Counsel cited the case of L.B. Ezekiel-Hart v. Chief George E. Hart (1990) 1 NWLR (Pt.126) 276, (1990) NSCC (Vol.21 Pt. 1) 184. Learned Counsel, on this issue, finally submitted that the trial court was clearly in error to have cited the pendency of the respondents’ appeal as one of the grounds for dismissing the plaintiffs/appellants’ motion for committal of the 1st respondent to prison.

Arguing the common issue, Mrs. A.J. Offiah, learned Counsel for the respondents, observed that there is agreement that when the motion for committal was filed and served on the respondents, the appeal filed by them against the interlocutory ruling of the High Court had been entered in this court. The record of proceedings had been transmitted to this court. The present respondents, as appellant therein, had filed their brief of argument.

Learned Counsel submitted that an appeal is ‘brought’ when the notice of appeal had been properly filed at the trial court and is deemed to have been ‘entered’ when the appeal court has received the record of appeal. Learned Counsel referred to the cases of Ogunremi v. Dada (1962) 2 SCNLR 417, (1962) 1 All NLR 663; Margaret Ezeokafor v. Emmanuel Ezeilo (1999) 9 NWLR (Pt.619) 513 at 524,525-527,536.

Learned Counsel submitted that as soon as an appeal is entered in the appellate court, the lower court ceases to have jurisdiction. She contended that the position has to be so to obviate the possibility of both the lower court and the appellate court entertaining various applications simultaneously and making orders which may turn out to be conflicting. She also cited Ezomo v.A.-G. Bendel State (1986) 4 NWLR (Pt.36) 448.

Learned Counsel asserted that this issue calls for a close examination of the true meaning and effect of Order 1 rule 22 of the Court of Appeal Rules, 1981. As soon as an appeal is entered in the appellate court, it becomes seised of the whole of the proceedings as between the parties. She submitted that in effect, the jurisdiction of the High Court to entertain proceeding for contempt under Order 35 of the High Court Rules or even under Order 9 rule 13 of the Judgments Enforcement Rules in respect of the suit abates after appeal was entered in this court and until disposal of the same. She referred to Ezeokafor v. Ezeilo (supra) where the Supreme Court considered the effect of entry of appeal under Order 8 rule 11 of the Supreme Court Rules, 1985, which is in pari materia with Order 1 rule 22 of the Court of Appeal Rules. Learned Counsel then urged that this appeal be dismissed.

It is necessary to ascertain when an appeal is ‘brought’ and when it is ‘entered’. It is now beyond dispute that an appeal is ‘brought’ as soon as the original notice of appeal with attendant ground or grounds of appeal is filed at the trial court. It is from same that one can readily surmise whether it was filed within time or not. An appeal is deemed to be entered when the appellate court has received the record of appeal. The cases of Ogunremi v. Dada (supra); Adewoyin v. Adeyeye (1962) 1 SCNLR 91; Ezeokafor v. Ezeilo (supra), all cited by the learned Counsel for the respondents, are directly in point and of moment.

It is not in contention that the appeal against the ruling of the trial court dated 3-5-94, has been entered in this court. The suit number of that appeal is CA/E/105/96. The appellants’ brief of argument therein has been filed. Same was said to have been served on the present appellants’ counsel. Put clearly, the issue here is whether with the position of things as stated, the appellants herein can be allowed to cite the 1st respondent herein for contempt with a view to committing him to prison? If allowed to proceed with their ‘prosecution’ of the 1st respondent in the prevailing circumstance, can such be taken as realistic?

I must say here, that those behind the making of Rules of court have considerable foresight. This is why they insert provisions to plug loop-holes which can lead to absurdity and ensuing mishaps.

Order 1 rule 22 of the Court of Appeal Rules, 1981, as amended, which is in pari materia with Order 8 rule 11 of the Supreme Court Rules, 1985, is one of such provisions dictated by fore-sight and ingenuity.

In dealing with the issue presently under consideration, it is imperative to closely examine the real essence and effect of Order 1 rule 22 of the Court of Appeal Rules, 1981, as amended. It reads as follows:-

“After an appeal has been entered and until it has been finally disposed of, the Court shall be seised of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in these Rules, every application therein shall be made to the court and not to the court below, but any application may be filed in the court below for transmission to the court.”

It is clear from the above quoted rule that, as soon as the appeal was entered in this court, it becomes seised of the whole proceedings as between the parties over the res. As defined in Black’s Law Dictionary, 5th Edition at page 1218, ‘to be seised of’ means ‘to be in possession of’. As soon as the appeal was entered in this court, the res in the proceedings ceases to be in possession of the trial court. This court and the trial court cannot be seen to compete over the res.

In Ezeokafor v. Ezeilo (supra) the Supreme Court considered Order 8 rule 11 of the Supreme Court Rules, 1985. In the case, it is common ground that the appeal in respect of the lower court’s ruling on the application for order of injunction was entered in the Supreme Court on 14-6-90. Achike, JSC, maintained pointedly that by the clear provisions of Order 8 rule 11, he agreed with the Court of Appeal that it was correct to decline to entertain the application for injunction after appeal against the ruling of the court below had been entered in the Supreme Court.

Ezeokafor v. Ezeilo (supra) is quite apposite with this present matter. See also Ezomo v. A.-G., Bendel State (1986) 4 NWLR (pt.36) 448 at page 451. Therefore, by parity of reasoning, I respectfully agree with the trial High Court that it was correct, when it declined to entertain the application for the committal of the 1st respondent after the appeal against the ruling of the Court below had been entered in the Court of Appeal.

I commend the trial Judge for standing his ground despite all undue prompting in the negative direction. His stance was backed with a lot of sense as the position has to be so to obviate the possibility of both the lower court and the appellate court entertaining various applications simultaneously and making orders which may turn out to be conflicting. Without mincing words, I resolve this common issue in favour of the respondents herein.

Appellants’ 1st issue appears to point to the same direction with the respondents’ 2nd issue for determination. It is whether proceedings for committal for contempt can validly be taken under Order 35 of the Anambra State High Court Rules of 1988, without regard to the provisions of Order 9 rule 13 of the Sheriffs and Civil Process (Judgments Enforcement) Rules.

In arguing this issue, appellants’ counsel asserted that Order 35 of the High Court Rules covered his application to commit the 1st respondent to prison for contempt. Learned counsel submitted that the learned trial Judge was in serious error when he considered compliance with the Sheriffs and Civil Process Rules as a condition precedent to an application for committal under Order 35 of the High Court Rules. He maintained that a court should not ‘fill in the gap’. He referred to I.B.WA. Ltd. v. Imano (Nig.) Ltd. & Anor (1988) 3 NWLR (Pt.85) 633, (1988) NSCC (vol. 19) (Pt. 11) 245; Magnor & St. Melons Rural District Council v. Newport Corporation (1952) A.C. 189 at 191; D. E. Okumagba v. W.G. Egbe (1965) N.S.C.C. (vol.4)46; Chief D.O. Ifezue v. Mbadugha & Anor (l984) I SCNLR 427 at 447; Bronik Motors Ltd. & Anor v. Wema Bank Ltd (1983) 1 SCNLR 296; Osita Nwosu v. Imo State Environmental Sanitation Authority & Anor (1990) 2 NWLR (Pt.J35) 688, (1990) 2 NSCC vol. 21 (Pt. 11) 108.

Learned Counsel further contended that if the two rules are held to be equally applicable, section 57 of the Interpretation Law, Cap. 73 Laws of Anambra State, 1986, applicable to Enugu State, provides that an offender should be prosecuted under either of the laws. He felt that the provisions of Order 35 of the High Court Rules, apply to disobedience to interlocutory orders while the Judgments (Enforcement) Rules apply to final orders of court. He felt strongly that the application was rightly taken under Order 35 of the High Court Rules, 1988.

In arguing the 2nd issue, learned Counsel for the respondents observed that Order 35 of the High Court Rules emanates from a State Legislation, while Order 9 rule 13 of the Judgments (Enforcement) Rules made pursuant to section 71 of the Sheriffs and Civil Process Act/Law derives both from a Federal Act and a State Law. She felt that the two rules are designed to achieve the same purpose and that both should be invoked on the doctrine of covering the field. She referred to Chikelue v. Ifemeludike (1997) 1 NWLR (Pt.529) 390 at page 403. She contended that applying the above principle, the appellants were obliged to adopt the procedure provided by Order 9 rule 13 of the Judgments (Enforcement) Rules made pursuant to section 71 of the Sheriffs and Civil Process Law. Learned Counsel then maintained that Forms 48 and 49 were necessary so as to give the contemnor adequate opportunity of purging himself. She referred to the cases of Ojeme v. Momodu II (1995) 6 NWLR (Pt.403) 583 at 587, lkimi v. Godwin Omamuli (1995) 3 NWLR (Pt.383) 355; Kadiri v. Kadiri (1990) 2 NWLR (PU53) 65.

Learned Counsel for the appellants made submissions galore on his pet idea that the learned trial Judge tried to ‘fill in the gap’ when he said that the 1st respondent ought to have been served with Forms 48 and 49 as dictated by the Sheriffs and Civil Process Rules. He cited a host of authorities with relish. With due diffidence to the learned Counsel, I strongly feel that due consideration of those authorities should be reserved for an appropriate occasion.

The learned trial Judge appreciated that as a Judicial officer, he is a custodian of the liberty of the citizen. While being called upon to commit the 1st respondent to prison, the learned trial Judge retained his milk of human kindness and wit. He had to be fair in his trial of the 1st respondent and firm as well. The aims and objects of Order 35 of the High Court Rules and Order 9 rule 13 of the Judgments (Enforcement) Rules are designed to achieve the same purpose. Vide Order 9 rule 13 of the Judgments (Enforcement) Rules, Forms 48 and 49 must be duly served on the contemnor. These are designed to give him adequate opportunity to purge himself of the contempt and comply with the court order failing which proceedings for his committal could be commenced. Order 35 of the High Court Rules has no similar provisions. I agree with learned Counsel for the respondent that contempt proceedings, being quasi-criminal in nature, requires adequate compliance with legal requirements. I see no reason why the more liberal provisions in Order 9 rule 13 of the Judgments (Enforcement) Rules should be discarded as strongly contended by the appellants’ counsel. I cannot trace any sound reason why the provisions of both rules should not be married together for the ‘trial’ of the 1st respondent out of abundant caution and for fairness to the 1st respondent. This court, at it’s Benin Division, in Ojeme v. Momodu II (supra) at page 588 had occasion to pronounce on a similar issue. Ubaezonu, JCA, put his view graphically as follows:-

“I do not think that the law of this country regarding the freedom of individual has descended to such abysmal depth of ‘rough and ready justice’ of medieval era that a person shall be thrown into prison for contempt… without giving him an opportunity to retrace his steps. It is therefore, my firm view that in a committal preceding the two laws shall be married together by observing the provisions of S.63 of the Sheriffs and Civil Process Law and complying with requirements of Order 9 rule 13 of the Judgments (Enforcement) Rules. It is after that, that an application under Order 42 of the 1988 Edict, shall be made to the court. Failure to comply with the aforementioned procedure makes the committal proceedings patently defective and any order made thereon a nullity.”

The above quoted pronouncement, to date, remains inviolate. I only need to say the obvious that I endorse same. I strongly feel that the learned trial Judge rightly applied the relevant ratio in Ojeme v. Momodu II (supra) as it is apposite to the facts and Laws/Rules applicable to this matter.

In passing, I should state that since the res is no longer in possession of the trial court as earlier found, application of Order 35 of the High Court Rules or even Order 9 rule 13 of the Judgments (Enforcement) Rules becomes an impossible task. A court cannot operate rules when it has no res. I resolve appellants’ 1st issue, which is the respondents’ 2nd issue in favour the respondents.

In conclusion, the appeal against the ruling of the trial Judge, dated 16-4-97, lacks merit. It is accordingly, dismissed in its entirety. The appellants shall pay N3,000 costs to the respondents.

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Other Citations: 2001)LCN/0971(CA)

Alhaji Ado Ibrahim & Company Ltd & Anor V. Eldestein (Nigeria) Ltd (2001)

LawGlobal-Hub Lead Judgment Report

A. BA’ABA, J. C. A.

This is an appeal against the judgment of Edo State High Court, sitting in Auchi Judicial Division, delivered on the 12/10/94. The action was founded on trespass of a piece or parcel of land, measuring 35.00 hectares located at Afokpella village, Etsako East Local Government Area, Edo State.

By its paragraph 19 of the amended statement of claim dated 25/11/93, at pages 107-108 of the records, the respondent as plaintiff claimed the following reliefs:-

(a) A declaration that the plaintiff company is entitled to possession of the piece or parcel of land, measuring 35.00 hectares located at Afokpella village, Etsako East Local Government Area, Edo State, covered by Quarrying License No. 21392, of 15/5/92 and any renewal thereof, and licences Nos. 21393 and 21394.

(b) A declaration that the plaintiff and its officials and employees are entitled to conduct its quarrying operations on the said piece or parcel of land, without any interference, disturbance or harassment by the 1st and 2nd defendants, either acting directly or through their servants, agents or privies during the validity of the Quarrying Licence Nos. 21392 of 15/5/92, and any subsequent renewal thereof, and licences Nos. 21393 and 21394.

(c) An order of injunction restraining the 1st and 2nd defendants from interfering, disturbing or preventing (either by themselves, their agents, servants or privies) the plaintiff company or any of its officials, from possession of and prosecution of their lawful duty of quarrying operations.

(d) As against the third defendant.

An order of injunction restraining the 3rd defendant either by himself or through his agents, servants, subordinates or privies from harassing, intimidating, disturbing or preventing the plaintiff and its officials, workers, contractors and licencees from occupying and carrying on their quarrying operations on the piece of land, situated at Afokpella village area, covered by quarrying licences Nos. 21392, 21393 and 21394.

(e) N20 million (twenty million naira) damages against the defendants jointly and/or severally arising from disruptions to the plaintiff’s operations by the defendants.

Pleadings were ordered, filed and exchanged. The respondent amended their statement of claim dated 25/11/93, while the appellants as defendants filed and relied on their statement of defence dated 4/10/93 at pages 77-82 of the records.

At the trial, in proof of its case, the respondent as plaintiff called seven witnesses, while the appellants who were defendants called two witnesses.

The learned trial Judge gave judgment in favour of the plaintiff/ respondent. It is against this judgment that the appellants have now appealed to this court.

With the leave of this court granted on 14/10/98, the appellant amended the original notice of appeal contained at pages 149-152 of the record.

Briefs were filed and exchanged. Learned Counsel for the appellant formulated three issues for determination:

“1. Whether the High Court of Justice of Edo State, rightly assumed jurisdiction to hear and determine the cause, in view of the provisions of section 2 of the Federal High Court (Amended) Decree No. 60 of 1991; and section 230(1) of the Constitution (Suspension and Modification) Decree No. 107 of 1993.

2. Whether on the admissible evidence available to the trial court, the award of N4.0 million as (general) damages was not arbitrary and excessive?
3. Whether the order of injunction made by the trial court, was not vague in its terms and over an unascertainable area of land?”

The respondent adopted the issues for determination formulated in the appellants brief of argument.

The learned Counsel for the appellants, Mr. Fola Ajayi, in the appellant’s brief of argument commenced his submission on issue No.1, by stating that though the issue of jurisdiction was not raised at the trial, it is settled law that it can be raised at any time, citing a number of authorities in support of his submission. He referred to the respondent’s claims in the amended writ of summons and amended statement of claim and submitted that the claims, particularly the reliefs sought by the respondent, determine whether the trial court has jurisdiction or not to entertain the matter.

According to the learned Counsel for the appellant from the reliefs claimed by the respondent, the respondent claimed exclusive mining rights over the minerals field comprised in Quarrying Licence Nos. 21392, 21393 and 21394 respectively, and that paragraphs 11, 12,14 and 17 of the amended statement of claim show clearly, that the dispute between the parties is pertaining to the extent and quality of the minerals deposit. Learned Counsel for the appellant relied on section 7 of the Federal High Court (Amendment), Decree No. 60 of 1991, and further submitted that the dispute between the parties arose from the conflicting mining rights of the parties, consequently the trial court lacks jurisdiction as the High Court does not have concurrent jurisdiction with the Federal High Court on the matter by virtue of the provisions of sections 5 and 6 of the Decree. He also relied on section 230(1)(0) of 1979 Constitution of the Federal Republic of Nigeria, which vests exclusive jurisdiction on the Federal High Court, to hear and determine civil causes arising from or pertaining to mines and minerals fields, citing a number of cases to buttress his submissions.

Relying on the case of Madukolu & Ors. v. Nkemdilim (1962) 1All NLR (Pt.4) 587, 589-589, a leading authority on jurisdiction, learned Counsel for the appellant urged us to hold that the trial court lacks jurisdiction to entertain the matter and for that reason, the judgment delivered on 12/10/94, by the learned trial Judge, should be declared a fortiori a nullity.

On issue No. 2, learned Counsel for the appellant contended that assuming (without conceding) that the trial High Court had jurisdiction, over the subject matter, the award of general damages of N4.0 million was wrong because, the trial court failed to give reason for the award and there was no indication of the facts considered by the trial court in arriving at that amount. It is the submission of the counsel for the appellant on this issue that the award of N4.0 million general damages is extremely high and an erroneous estimate of the damages to the respondent. He therefore, urged us to interfere with the award. Submitting on the appellant’s last issue, learned Counsel for the appellant referred to relief 19(c), granted to the respondent and contended that the order of injunction failed to state the area of land over which the order of injunction is applicable. He further argued that the area of land, over which the order of injunction was granted was not proved. Learned Counsel pointed out that the learned trial Judge failed to ascertain the said area and contended that, unless the area is ascertained an order of injunction cannot be granted. He concluded his submission by urging us to allow the appeal.

In reply, Mr. Esosa M. Eremwanarue, holding brief for Ken. E. Mozia Esq., in the respondent’s brief, started by referring to the respondent’s reliefs for which the counsel said, uncontradicted evidence was led in proof of the appellant’s trespassory activities on the respondent’s land. Learned Counsel for the respondent referred to the evidence of DW2 at page 118 lines 19-22 of the record, where DW2 confirmed the trespass by the appellants. He further submitted that by virtue of section 20 of the Evidence Act, Laws of the Federation of Nigeria, 1990, statements made by an agent to any party in a suit such as that of DW2 is admission and that sections 21 and 22 of the Evidence Act are apposite, citing a number of cases in support of his submission.

It is further contended for the respondent, that the nature of a cause of action determines jurisdiction. That it is the claim of the plaintiff, that determines the issue of jurisdiction and not the statement of defence, citing Attomey-General, Kwara State v. Olawale (1993) 1 NWLR (Pt.272) 645 at 651; Shell-BP Petroleum Dev. Co. Ltd. v. Onasanya (1976) All NLR (Pt.1) 425 to buttress his submission.

Learned Counsel for the respondent further submitted that, from the nature of the claims and the evidence adduced, it is evident, that the core issue before the court was founded on trespass by the appellants, injunction and damages, which were matters over which only the High Court has jurisdiction to entertain. He further explained that the issue was whether the appellants over stopped their area of operation and thereby, trespassed into respondent’s own area of operation. Learned Counsel pointed out that the learned trial Judge properly identified the issue germane for the determination of the case as shown in the finding of the learned trial Judge at page 143 of the record.

Learned Counsel stated that in fact, ownership and/or title to the land in dispute was proved and conceded to the respondent by the appellants.

It is further submitted that the case was not hinged on the conflicting mining rights of the parties, as argued by the learned Counsel for the appellants in the appellant’s brief. Furthermore, learned Counsel for the respondent submitted that, the provisions of the Federal High Court (Amended) Decree No. 60 of 1991, in its strict interpretation is not intended to cover an area of land, over which there is an established valid mining licence. He emphasized that the law is well settled by a long line of cases, that a statute ousting the jurisdiction of the court to entertain any matter must be construed strictly, relying on Kotoye v. Saraki (1994) LRCN 68,88, (1994) 7 NWLR (Pt.357) 414 On issue No.2, learned Counsel for the respondent pointed out that at the conclusion of the evidence of both parties, during address, the appellants’ counsel on behalf of the appellants, conceded reliefs (a) and (b), claimed by the respondent in the amended statement of claim at page 120 of the record. He argued, relying on the authority of Nwankwo v. Nwankwo (1995) 5 NWLR (Pt. 394) 153 at 171, that the appellant’s counsel concession to reliefs (a) and (b) is binding on the appellants. Counsel for the respondent concluded his submission on issue No. 2, by submitting that the learned trial Judge was therefore, quite in order to award damages in favour of the respondent. Reference was made in details by the learned Counsel for the respondent, to the evidence adduced which he contended was neither challenged nor controverted, citing a number of cases, learned Counsel submitted that the learned trial Judge had the benefit of receiving the facts from the witnesses, who after a thorough assessment made findings of fact consequently, this court should not interfere, unless such findings of fact are perverse. He concluded his submission on this issue by stating that the learned trial Judge was right in making the award.

It is submitted on issue No. 3 in the respondent’s brief, that the order of injunction made by the trial court was not vague in its terms, and neither was it to cover an unascertained area of land as argued by the learned Counsel for the appellants.

Learned Counsel for the respondent stated that the area of the land claimed by the respondent, was properly described in paragraph 19(a) of the amended statement of claim.

Furthermore, learned Counsel submitted that reliefs A and B of the respondent’s claim having been proved, admitted and conceded, the order of injunction made was quite in order. He finally urged us to dismiss the appeal.

In the appellant’s reply brief, learned Counsel for the appellants, conceded that at page 118 lines 20-22, DW2 admitted encroaching but contended that, by virtue of section 26 of the Evidence Act such an admission is not conclusive and inconsequential on the face of the more fundamental issue of jurisdiction raised by the appellants.

He disagreed with the submission of the learned Counsel for the respondent on the issue of jurisdiction and maintained, that the lower court lacked jurisdiction, repeating his earlier submission in the appellants’ brief. Learned Counsel for the appellants still maintained that the award of N4.0 million damages is patently erroneous.

The first issue for determination in this appeal, challenging the jurisdiction of the trial court, is a fresh issue which was not raised before the trial court.

However, leave was granted by this court to the appellants, to amend its original notice of appeal which contains a ground of appeal upon which the issue of jurisdiction, which can be raised at anytime was formulated.

Dealing with the issue of the determination of jurisdiction, the Supreme Court of Nigeria, in the case of A.-G., Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645, 675, cited to us by the learned Counsel for the respondent, had this to say;

“It is however well settled that where the endorsement on the writ of summons, and the statement of claim are clear and unambiguous as to facts from which the issue of jurisdiction could be settled one way or the other, it is the proper material for determination of the issue.

When this is done, the issue is settled on the plaintiff’s pleading in his statement of claim and not on the defendant’s answer in his statement of defence” See Adeyemi & Ors. v. Opeyori (1976) 9-10 SC 31.

Hence, when the issue of jurisdiction has been clearly established on the writ of summons and statement of claim, it is not necessary to consider the statement of defence. Jurisdiction already assumed, cannot be divested on the strength of a valid defence to the action.”

In the instant case, it is clear from the amended writ of summons, the amended statement of claim as well as the evidence adduced before the trial court, that the core issue for determination by the trial court, was founded on trespass by the respondents, injunction and damages which were matters over which the trial High Court has jurisdiction to entertain. It is not the case of the respondent that, there was a dispute over conflicting mining rights of the parties and no evidence whatsoever was adduced before the trial court to that effect.

Apart from the admission of trespass of the respondent’s land by DW2 at page 118 of the record, the learned Counsel for the appellants at the trial court, conceded to reliefs (a) and (b) claimed by the respondent herein reproduced. It appears to me that the appellants know fully well, that the dispute between the parties is in respect of the land or area of the land, rather than mining rights as averred in paragraph 12 of the appellants statement of defence which reads:-

“12. With regard to paragraph 17 of the statement of claim, the 1st and 2nd defendants admit that the area covered by ML 18400 as shown in survey plan No. KWSM.14 dated 4th October, 1977, and attached to mining lease No ML 18400, is distinct from the area covered by Quarry Licence Nos. 21392, 21393 and 21394, but the 1st and 2nd defendants, contend that the plaintiff abandoned the area of their holdings and moved into the area of the 1st and 2nd defendants holding to carry out mining operation.”

As can be seen shortly from the findings of the learned trial Judge, the appellants did not only abandon their claim in paragraph 12 of the statement of claim, but admitted reliefs (a) and (b). At pages 141-143 of the record, the learned trial Judge, clearly identified the issue and held:

“I have given careful consideration to the evidence adduced in the whole of this case, the submissions of learned Counsel for the parties and the legal authorities cited by the learned Counsel. In this case, the plaintiff’s claims 5 reliefs against the defendants, as per paragraph 19 of the amended statement of claim. Initially, there were 3 defendants, but the plaintiff later withdrew against the 3rd defendant (i.e Commissioner of Police).

Consequently, the plaintiffs have now applied to have relief 19(d) which was specifically against the 3rd defendant struck out.

I think this would be a proper starting point in dealing with this matter. In all, the plaintiffs fielded 7 witnesses, while the defendants fielded 2 witnesses. The defendants did not contend the striking out of relief 19(d). I am of the view that relief 19(d) ought to be struck out, since the plaintiff have withdrawn against the 3rd defendants. Relief 19(d) is hereby accordingly struck out.

On the issue of reliefs 19(a) and (b) both the plaintiff and defendants appear to me to be on common ground, although each party arrived at that common ground by different routes. While Chief Orifunmishe, learned Counsel for the defendants concedes these reliefs on the basis of the evidence of PW1, PW2, PW3, PW4 and PW5 takes together, Mr. Aihiokhai, learned Counsel for the plaintiff on the other hand contended and I quote:-

“We urged the court to grant these reliefs not on the basis given by my learned friend, but on the ground that we have proved the fact that we are in actual and effective possession (of the land) until we were harassed in 1992.”

I accept and believe the evidence of PW1, PW2, PW3, PW4 and PW5. These witnesses are professional. Their testimonies are clear, straight forward and to the point.

Exhibits ‘A’ and ‘B’ show clearly that North of the green line which runs through them used to be Kwara State, while South of the green line used to be part of Bendel State, but now Edo State. The property of the plaintiff lies South of the green line which is Edo State, while property of the defendant lies North of the green line. ML. 18400 is North of the green line. It is located in Kogi State. It is the property of the defendants. Quarrying lease Nos. 1636, Quarrying Licence Nos. 21394,21393 and lies South of the green line. It follows therefore, that the property of the plaintiff and that of the defendants are not located in the same geographical area. They do not over-lap. At the material time during which the plaintiff were harassed and their operations interrupted they were legally, properly and strictly within the confines of their property. On this point, I prefer the plaintiff’s case to that of the defendants, I accept the view that the plaintiff has proved its case on a balance of probabilities. I so hold.

With regard to paragraph 17 of the statement of claim the 1st and 2nd defendants admit that, the area covered by ML. 18400 as shown in Survey Plan No. KWS M.14 dated 4th October, 1977, and attached to Mining Lease No. ML. 18400, is distinct from the area covered by Quarry Licence Nos. 21392, 21393 and 21394 but the 1st and 2nd defendants contend that the plaintiff abandoned the area of their holding to carry out mining operations.”

It follows from the above and relying on the authority of A.-G., Kwara State (Supra) that the trial court had jurisdiction to hear and determine the action as rightly in my view submitted by the learned Counsel for the respondent consequently issue No. 1 is resolved in favour of the respondent against the appellants.

On issue No. 2, dealing with the award of damages, the learned trial Judge, in my humble opinion, carefully reviewed the evidence adduced before him on that aspect, along with the submission of both counsel on the matter at pages 143-147 and inter alia, held as follows:-

“Having satisfied myself that the plaintiffs have been injured by the illegal invasion of their property and ejection therefrom by the defendants, the plaintiffs are entitled to an award of damages. Their legal rights have been violated. The duty of this court therefore, is to make estimate of the damage suffered by the plaintiff. The law requires that I should award the plaintiff damages on the basis of compensation. All that the Judges and court can do, is to award sums which must be regarded as giving reasonable compensation.

Admiralty Commissioner v. Susquehanna (1926) AC 655. There has to be the need for uniformity in awards, but I am afraid I have been unable to lay hands on any comparable cases in this jurisdiction.

It seems to me that my task here is to look at the facts and to start by asking the question what sort of sum would it have been proper to award for damages in this case – Drane v. Evangelon (1978) 1 WLR 455 ‘CA). For Lawton L.J. In all the circumstances of this case, I would make an award of N4,000,000.00 (Four million naira) damages. The plaintiffs having succeeded in all their claims, I hereby enter judgment in their favour as claimed in paragraph 19 of the amended statement of claim as follows:-”

In Nwobosi v. A.C.B. Ltd (1995) 6 NWLR (Pt 404) 658 at 680, the Supreme Court of Nigeria, per Onu, J.S.C., set out the guiding principles upon which an appellate court will act in reviewing an award of damages, as follows:-

“Indeed, this court in Obere v. Board of Management, Eku Baptist Hospital (1978) 6-7 SC 15 at page 24 which was later cited with approval in its decision in Uwa Printers (Nig.) Ltd. v. Investment Trust Co. Ltd. (1988) 5 NWLR (Pt. 92) 110, has set out the guiding principles where an appellate court can or will perforce interfere with an award of damages by a trial court thus:

“The principles upon which an appellate court will act in reviewing an award of damages are not well settled and can be summarized as follows:

“An appellate court is not justified in substituting a figure of its own for that awarded by the lower court simply because it would have awarded a different figure it had tried the case at first instance. Before the appellate court can properly interfere, it must be satisfied either that the Judge in assessing the damages applied a wrong principle of law, such as taking into account some irrelevant factors or leaving out of account some relevant factors or that the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of the damage.”

I am bound by the decision of the Supreme Court of Nigeria, referred above which I respectfully follow in resolving issue No.2. From the evidence adduced, the reasoning and conclusion of the learned trial Judge, applying the guiding principles enunciated in Nwobosi (supra), I disagree with the submission of the learned Counsel for the appellants that the award of damages is arbitrary and excessive and have no reason whatsoever to review the award of damages in the instant case. I therefore, resolve issue No.2 against the appellants in favour of the respondent.

There is no doubt as I earlier stated that there was admission by DW2 that the appellants trespassed the respondent’s land. Reliefs (a) and (b) for declaration were also conceded by the learned Counsel for the appellants at the trial court which the learned trial Judge took into consideration in his judgment, particularly in granting the order of injunction. However, the issue of admission was still contested between the parties before us. True, admission on its own, is not an issue formulated for determination but I am of the view that the determination of the issue of admission and its effect particularly in a civil case like the instant case, will have a far-reaching effect on the determination of other issues formulated, hence, the necessity of dealing with the said issue. I find the case of the Supreme Court of Nigeria, per Iguh, JSC, in Nwankwo v. Nwankwo (1995) 5 NWLR (Pt. 394) 153 at 171, helpful, in both the classification and effect of admission, as clearly set out at page 171, as follows:-

“It is certainly not the law that all admission are necessarily conclusive against the maker, as each and every admission must be carefully evaluated and considered by the court, against the particular circumstances under which it was made.

Admission are either formal or informal. Formal admissions are admissions made by a party to a civil proceeding so as to relieve the other party of the necessity of proving the matters admitted. They are usually contained in a pleading as facts admitted in a pleading need not be proved any longer, but are taken as established. Formal admissions may also take the form of clear admissions filed or made by a party to a civil proceeding or by his counsel in the course of the trial of a civil suit. See Chief Aaron Nwizuk and Others v. Chief Waribo Eneyok and Others (1953) 14 WACA 354 and Re Beeny (1894) 1 Ch. 499. The court, however, even in the case of a formal admission in a civil proceeding, has discretion to require the admitted fact to be proved by some other evidence other than by the admission itself. See the proviso to section 74 of the Evidence Act.

Informal admissions, on the other hand, do not necessarily or strictly speaking, bind their maker and may therefore, be explained or contradicted. The weight of an informal admission depends on the circumstances under which it was made, and these circumstances may always be proved to impeach or enhance its credibility. Thus, an informal admission, unless it amounts to an estoppel, may be established by the party against whom it is tendered to be incorrect, untrue or to have been made under a mistake of law or fact or some compelling or vitiating circumstances. Accordingly, the value of an informal admission depends on the particular circumstances, under which it was made and it is for the trial court to determine the issue and to give due weight to the alleged admission and the explanatory circumstances thereof. See Nii Abossey Okai II v. Nii Ayikai II (1946) 12 WACA 31 and Joe Iga and Others v. Ezekiel Amakiri and Others (1976) II SC 1. It is like any other evidence, and the court is duty bound to consider all the surrounding circumstances, under which it was made and to take a decision on whatever weight, if any, that must be attached to it. Such an admission is therefore, not conclusive proof of the matters admitted although, as I have already pointed out, it may in an appropriate and established case, operate as estoppel against the party, against whom it is tendered.”

In view of the above, I with respect, disagree with the learned Counsel for the appellants, that the admission in the instant case is not conclusive. That being the case, the grouse of the appellants on issue No. 3, that the learned trial Judge was wrong in granting an injunction as the area claimed, was not ascertained in irrelevant having regard to the admission of DW2 and the concession to reliefs (a) and (b) by the learned Counsel for the appellants.

Having regard to the claim, the evidence adduced and the fact that DW2, who testified for the appellants admitted trespassing on the land of the defendants as well as the concession to reliefs (a) and (b) of the claim, I am of the view that ground of appeal No.1 and issue No.3, formulated therefrom, does not appear to relate to the judgment in the instant case. A ground of appeal must ground a complaint, upon which an issue for determination is formulated pertaining to the judgment or any aspect of the judgment, requiring the determination of the appellate court.

As ground of appeal No.1, is not relevant in the instant case, where the area of the land claimed is not in dispute, the question of ascertaining the area of the said land does not even arise. I do not think it can be denied that the order of injunction automatically follows reliefs (a) and (b) of the claim, having been granted. It appears to me therefore, that ground of appeal No.1 and issue No.3, formulated thereon, is in abstract consequently, ground of appeal No.1, is incompetent and is struck out along with the issue.

It is trite law that where evidence tendered by a party to any proceedings, was not challenged or put in issue by the other party who had the opportunity to do so, it is always open to the court seized of the matter to act on such unchallenged evidence before it. See Isaac Omoregbee v. Daniel (1980) 3-4 SC 108 at 117; Odulaja v. Haddad (1973) II SC 357; Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79 at 81; and Boshali v. Allied Commercial Exporters Ltd. (1961) All NLR 917.

In the result, having regard to the foregoing, the appeal fails and is hereby dismissed. The judgment of the learned trial Judge, Okunega, J. delivered on 12/10/94, is hereby affirmed by me, with costs assessed at N5,000.00 in favour of the respondent against the appellants.

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Other Citations: (2001)LCN/0970(CA)

Miss Clementine Ricketts & Ors V. Oba a. K. Hassan (2001)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A. 

The appellants were the plaintiffs in suit No. ID/584/89, before the Ikeja High Court, and had claimed against the respondent (as the defendant) for the following:

“(i) The sum of Two thousand naira damages for trespass.

(ii) A perpetual injunction restraining the defendant, his servants and or agents from trespassing on the said tract of land.

(iii) A declaration that they are entitled to a certificate of occupancy over the land in dispute.

The parties filed and exchanged pleadings. The suit was tried by Longe, J. On 15-4-94, the learned trial Judge in his judgment dismissed in their totality, the claims of the plaintiffs. Dissatisfied, the plaintiffs have brought this appeal. In their appellants’ brief filed on 28/1/2000, the issue for determination was identified as the following:

“Which of the parties before the court established better title to the land in dispute.”

The respondent in his brief filed on 28/4/2000, identified two issues as arising for determination, namely:

“(i) Whether the appellants, through Exhibit ‘2’ proved a good title to the land in dispute.

(ii) Whether on the state of evidence before the lower court, the appellants were entitled to succeed on their claims.”

The two issues formulated by the respondent, are covered by the appellants’ issue. In this judgment, I start a consideration of that issue, by examining the pleadings of the parties in order to determine the nature of the titles put in issue. In paragraphs 4 to 8, of their Amended Statement of Claim, the plaintiffs pleaded:

“4. The late J.A. Ricketts, purchased a large tract of land at Agbowa-Ikosi, in the Ikorodu Division of Lagos State, in a public auction from the descendants of Ademuyiwa Haastrup, in 1939.

5. The purchase was evidenced by a Deed of Indenture, made on 22/2/39, and registered as No.9 page 9, in volume 403, of the Lands Registry at Lagos.
6. Ever since the purchase, J.A. Ricketts and his descendants (the plaintiffs herein), have been in undisturbed possession of the said tract of land, shown on Survey Plan No. SEW/L/1059/4, dated 7/3/89 prepared by M.A. Seweje, a licensed Surveyor. Attached herewith, is a copy of the said survey plan.
7. The plaintiffs exercised their rights of possession on the land in dispute, by constructing directling houses and a school on the said land. Sometime in 1988, the defendant trespassed on the said tract of land, and started a cassava farm thereon, on the portion outlined in Yellow in the said survey plan.”

The defendant in paragraphs 3, 4, 5, 6, 7, 10, 11 and 12 of his amended statement of defence pleaded:

“3. The defendant avers that the large tract of the land coloured “Red” in the plaintiff’s Plan No. SEW/L/l059/4 dated 7th March, 1989, originally, belonged to his predecessors-in-office and their Chiefs who held same in trust for the natives of Agbowa. The defendant’s predecessor-in-office granted same to one Ademuyiwa Haastrup who, as a stranger, in Agbowa requested for and was granted a portion of the said land, as a licensee for farming purposes. At the time of the said grant, His Highness, Oba Momodu-Ope Adeloju, was then in office and the grant was not absolute.

4. The defendant states that, Ademuyiwa Haastrup planted food crops such as apples, grapefruits, banana, pawpaw and pineapples on the said land.
5. The defendant avers further that, a portion of the land, during the reign of His Highness, Oba Edward Okuneye Olufuwa, had a school built on same, known as Ikosi Central Industries school, Agbowa, which later became known as Methodist High School, Agbowa.
6. The defendant pleads that the land the subject-matter of this suit, had continuously been in effective possession of his predecessor-in-title as pleaded in paragraphs 3 and 5 of the amended statement of defence exercising diverse acts of ownership and possession, by way of grant to licencees, farming thereon, establishment of institution of higher learning and outright sale to purchasers.
7. And in exercise of acts of possession and ownership, the defendant planted various food crops on a portion of the land in dispute, more particularly cassava and sometimes in 1987, the plaintiffs destroyed some of the food crops planted by the defendant and the defendant lodged a report at Epe Police Station, which led to the arrest of the crops destroyed.
8. With particular reference to paragraph 1, of the amended statement of claim, the defendant avers that the 1st, 3rd and 4th plaintiffs, are not beneficiaries in law of the Estate of J.A. Ricketts, and have no valid title in law vested in them, in so far as the land pleaded in paragraphs 4 and 6, of the amended statement of claim in concerned.
9. The defendant shall contend at the trail that, in so far as the land in dispute as pleaded in paragraph 4, 5 and 6 of the amended statement of claim was not legally vested in the predecessor-in-title of J.A. Ricketts by the Executors of the estate of Ademuyiwa Haastrup, the 1st, 3rd and 4th plaintiff’s predecessor-in-title purchased nothing at the Public Auction capable of being vested in law in the 1st, 3rd and 4th plaintiffs.
10. With particular reference to paragraph 2 of the amended statement of claim, the defendant denies that the 2nd, 5th and 6th plaintiffs are administrators of the estate of J.A. Ricketts and avers that, the land pleaded in paragraphs 4, 5 and 6 of the amended statement of claim does not form part of the estate of J.A. Ricketts, capable of being administered by the 2nd, 5th and 6th plaintiffs.”

From the pleadings of parties, it is apparent that, the plaintiffs relied for their title on the purchase by their father Mr. J. A. Ricketts, from the descendants of Mr. Ademuyiwa Haastrup, in 1959. It was not pleaded however, how Mr. Ademuyiwa Haastrup, has derived interest in the land, which was transferred by his descendants to J.A. Ricketts.

On the pleadings, one notices that as no presumptions of law as in section 130 of the Evidence Act operated in plaintiff’s favour on the Deed of Conveyance from the Haastrup’s family to J.A. Ricketts, the plaintiff’s title was manifestly weak, and their claim for declaration of title nebulous.

The defendant on the other hand, pleaded that the land in dispute originally belonged to his “predecessor-in-office and their chiefs who held same in trust for the natives of Agbowa.” The defendant was/is the Oba or head chief of Agbowa, and would appear to have pleaded that the land in dispute belonged in succession to those who held the Obaship or head of chieftaincy before him. But the defendant did not plead who the first of these was, how he came to own the land and how the land has descended over the years till it came to his turn. The omission to state these matters would obviously not impact, as heavily on the defence case as it would on the plaintiffs.

This arose from the fact that, the defendant had merely come to defend the action and has not raised a counter-claim.

At the trial, the plaintiffs called four witnesses including their surveyor. They also tendered in evidence as Exhibit 2 the Deed of Conveyance in favour of their father J. A. Ricketts. More importantly, they testified as to the possession of the land in dispute by their father, until he died in 1976, and theirs, after his death. In his judgment, the trial Judge at page 68 of the Record of Appeal held:-

“I have carefully compared this (sic) submission of counsel what (?) of plaintiff’s counsel and I found it irresistible but to agree with defence counsel that Exhibit 2, though registered has not sufficiently proved that Ademuyiwa Haastrup, had any land fit to be publicly auctioned and sold to the late Ricketts, plaintiff’s father.

Thus, the claim of the plaintiffs for a declaration that they are entitled to the statutory right of occupancy over the land in dispute, since it is based on Exhibit 2 cannot succeed on that ground and it fails.”

Now in Elias v. Omo-Bare (1982) SC 25 at 47, the Supreme Court per Udoma JSC, observed:

“The burden in such a case which rests squarely on the plaintiff, is a heavy one; for it has as far back as 1935, been laid down as a matter of law that a plaintiff seeking a declaration of title to land must establish to the satisfaction of the court by the evidence brought by him, that he is entitled to such a declaration. The plaintiff must succeed on the strength of his own case and not on the weakness of the case of the defendant whose duty is merely to defend. If the onus of proof is not discharged, the weakness of the defendants case will not help him and the proper judgment is for the defendant. See J.M. Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337.”

See also Melifonwu v. Egbuji (1982) 9 SC 145 and Jules v. Ajani (1980)5-7 SC. 96 at 108-109.

There is no doubt that the plaintiffs’ case for declaration for title, deserved to fail as they had not pleaded how their predecessor-in-title; Mr. Ademuyiwa Haastrup, acquired his interest in the land, which his descendants could transmit to J.A. Ricketts, the plaintiffs father. The lower court was clearly correct in dismissing plaintiffs’ claim for declaration of title.

The plaintiffs also claimed for damage in trespass. For the claim in trespass, a different consideration should apply. In Oluwi v. Eniola (1967) NMLR 339 at 340, the Supreme Court observed:-

“The claim for trespass, however, is not, in our view, dependent on the declaration of title as the issues to be determined on the claim for trespass, were whether the plaintiff has established his actual possession of the land and the defendant’s trespass on it, which are quite separate and independent issues to that on his claim for a declaration of title.”

See also Amakor v. Obiefuna (1974) 3 SC 67.

In Okolo v. Uzoka (1978) 4 SC 77 at 87, the Supreme Court, discussing the nature of an action in trespass said:

“It is the law and this court has so held times without number, that trespass is actionable at the suit of the person in possession of the land (Amakor v. Obiefuna (1974) 1 All NLR (Pt.1) page 119; Adeshoye v. Shiwoniku (1952) 14 WACA 86; Emegwara and Others v. Nwaimo and Others (1953) 14 WACA 347; Tongi v. Kalil (1953) 14 WACA 331.

The slightest possession in the plaintiff, enables him to maintain trespass if the defendant cannot show a better title (Whittingdom v. Boxall (1943) 12 L.J.Q.B. 318; Nwosu v. Otunola (1974) 1 All NLR (Pt.1) 533.”

And similarly in Akano v. Okunade (1978) 3 SC 129, the Supreme Court per Obaseki, JSC at 137 said:-

“As regards the question of recovery of possession, possession in itself is a good title against everyone, except the true owner, and if one who has been in possession is wrongly dispossessed, he is entitled to recover possession against the wrongdoer, notwithstanding that the true title may be shown to be in a third person (see Halsbury Laws of England, 3rd Ed. Vol. 32 paragraph 662 at page 375.”

The questions are (1) were the plaintiffs in possession of the land in dispute? And if they were, did the defendant show a better title?. At page 70 of the record of appeal, the trial Judge found that the plaintiffs satisfactorily established that they were in possession of the land in dispute. He however, reasoned that as the land belonged to the Agbowa Community, the defendant had shown a better title to the land. The trial Judge in his reasoning relied on Udoakpu Eze v. Samuel Igiliegbe and 5 Others (1952) 14 WACA at 70 to 71, the trial Judge wrote:

“One other strong point the plaintiff has based, is the long possession of the Ricketts and the exercise of ownership of the land for a long time without being challenged. The plaintiffs have shown that by Exhibit 3, 5, 6 and 7, they have been dealing with the land, for several years and they have built schools and churches on it.

It is said, other people including the defendants have reorganised their presence on it. The defence testimony on that aspect is that, the Ricketts family came to Agbowa as a Missionary. The community therefore, gave them land to build schools and churches. It is said, government has paid compensation for the schools, when it took it over and that since it is the community that gave land to the Ricketts to build such schools, the land still belonges to the community. In fact in Exhibit 7, the defendant during his testimony in the Magistrate Court, Epe, did not hide the fact that it was the Agbowa community, that gave land to the Ricketts family just like to other families.

Mr. T.E. Williams, has argued that long uses and acts of ownership is sufficient to have found trespass, against the defendant. Mr. Okunuga however, submitted that while it is conceded that possession can give right of trespass to the possessor, he contended that such possession must be a rightful possession. He cited the case of Fasoro v. Beyioku (1988)2 NWLR (Pt.76) 263-277, that acts of possession community serve and be good for trespass, only it is based on good title which is established. He submitted that plaintiffs have failed to establish their title or possession through Haastrup. It cannot therefore, be claimed that the acts of ownership for several years has given them good possession to predicate trespass.

From the evidence available in this case, the plaintiffs have not found their possession on any other ground except through Exhibit 2. I therefore agree that Exhibit 2 having failed to give title, any possession derivable from Exhibit 2 can itself not stand. The challenge to the land is not on Ricketts simpliciter, but on Ricketts through Ademuyiwa Haastrup. However having accepted defendant’s contentions on Exhibit 2 one is bound to inquire whether that by itself has observed the defendant’s trespass since the defendant himself admitted the land in dispute belongs to the community.

The land in dispute is agreed by all parties to be with Agbowa community. It is therefore, a community land except and until it is proved or established that such part of a community land, has been granted to individuals either by way of licence or absolute grant.

In his Book: Nigerian LandLaw by Professor B.O. Nwabueze Re: Characteristics of Communal Land in Nigeria, have been well treated in pages 149-191. In this book expretions, are set out in the positions of the chiefs of the community as the caretaker or trustee of the community land, the rights of each member to the communal land can be said to have been given out absolutely. Nwabueze’s exposition has clearly come up in the case. Udeakpu Eze v. Sameuel Igiliegbe and 5 Others 14 WACA.”

With respect to the learned trial Judge, I think he was in error to have accepted without proof that the land in dispute, had originally been the communal land of the people of Agbowa. The case of Eze & Ors. v. Igiliegbe & 5 Ors. relied upon by the trial Judge as the basis of that decision, was a case that emanated from a Native court. The plaintiff in the case had testified concerning the customary law of the neighbourhood to the effect that land was communally owned. The native court had accepted the evidence of the plaintiff as against that of the defendants. The defendants had contended that the land was individually owned. Cousey, J.A. at pages 61-62 of the report summarised the facts leading to the appeal thus:-

“Put shortly, the plaintiffs proved that, the land in question is owned by the people of Nze as a whole, that for many years and up to the events previous to this suit, Nze as a whole, had granted portion of the land to strangers that, the rents had been collected for the community as a whole, but that in latter years, the defendant alone had placed Aku tenants on the land and received rents and tribute from them and had not given such rent and tribute to the plaintiffs and failed to account therefore.”

It was on the basis of the evidence available before the native law as to the applicable custom of the Nze people that the native court, the High Court and the West African Court of Appeal, held that the land in dispute in the case was communal land. It is not the general principle of land law, that in a dispute over the ownership of land in Yoruba Land, the court must proceed from the initial premise that land was always communally owned. This was a dispute fought in the High Court, in which parties used pleadings. Under the principle of pleadings, the parties needed to plead and prove by evidence the facts upon which they relied. In the instant case, if it was the case of the defendant, that land in Agbowa was always communally owned, he had to plead such custom and lead evidence as to it. The defendant never pleaded who first settled on the land. He did not plead how his predecessors-in-office as Oba of Agbowa came to own the land and how the land had devolved over the years until it came to his (the defendant’s) possession. All that the defendant did was testify that the land was communal land. Surely, that was insufficient to show that the defendant had a title superior to plaintiffs’ possessory title.

In the way the trial Judge approached the matter, it would mean this: In a land dispute, whenever a party pleads that a land in dispute is communal land and repeats the same in evidence, the land must be adjudged to be communal land, even if there is no evidence of the custom or traditional history under which the land came to belong to the community. I think that approach was wrong.

The plaintiffs led evidence that they and their father before them, have been in possession of the land since 1939, when Exhibit 2 was made in favour of J.A. Ricketts. Even if the plaintiffs had no title and were mere trespassers, they were entitled to keep their possession, until someone with a better title displaces them. They could successfully maintain an action against anyone who disturbs their possession and could not show a better title. As the defendant in this case failed to show a title better than the plaintiffs, plaintiffs’ case in trespass should have succeeded.

Accordingly, this appeal succeeds. The judgment of Longe, J. given on 15/4/94, including the award of costs is set aside. In its place, I make the following orders (1) The sum of Two thousand naira, being damages for trespass is awarded in plaintiff’s favour against the defendant. (2) The defendant, his servants privies and or agents are perpetually restrained from committing further acts of trespass on the land in dispute.

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Other Citations: (2001)LCN/0969(CA)

Alfred Yahaya V. Felix Chukwura (2001)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.C.A.

This is an appeal from the Judgment of S.O. Adagun, J. sitting in the Biu Judicial Division of Borno State, in Suit No. BU/18/89, dated 31/10/91, wherein the respondent herein, as plaintiff in the court below was awarded N15,000.00 (Fifteen Thousand Naira) general damages after his claim for special damages had been dismissed. As a passing remark, Adagun, J. had transferred his services from the Borno State Judiciary, to the Lagos State Judiciary, shortly after he had delivered this judgment now on appeal. Indeed, he has voluntarily retired from the High Court Bench, after having attained the statutory age of sixty five years.

Naturally, the appellant felt aggrieved with the award made by the court below of general damages after the main claim had failed. On 5/1/92 therefore the appellant filed, through his counsel a notice and grounds of appeal containing one ground of appeal. Much later on 15/5/2000 and upon an application filed on 17/2/2000, this court granted the appellant leave to file an amended notice and grounds of appeal containing five grounds of appeal. The lone ground of appeal in the original notice and grounds of appeal was incorporated in the amended notice and grounds of appeal. Thus, in all the appeal, contains five grounds of appeal.

In compliance with the rules of this court, parties, by their counsel filed and exchanged briefs of argument. Each party however, had to seek for and obtain extension of time to do so after the time allowed by the rules of court had expired. In his brief of argument, learned Counsel for the appellant identified three issues as arising for determination from the five grounds of appeal. The issues are the following:

(a) Whether the learned trial Judge was right in giving judgment on a statement of claim that was not before him.

(b) Whether on the pleadings and evidence adduced, the lower court, was right in giving judgment for the respondent in the sum of N15,000 as general damages.

(c) Whether the learned trial Judge was right in dismissing the appellant’s counter-claim moreso, that there was no defence filed by the respondent.”

On his part and as contained in the respondent’s brief of argument, learned Counsel also identified three issues for determination namely:

“(a) Whether from the record, it can be said that the respondent did not file a further amended statement of claim.

(b) Whether from the totality of the evidence before the court, the learned trial Judge was right in awarding damages of N15,000.00 to the respondent.

(c) Whether the appellant proved his counter-claim and was entitled to judgment.”

For a just disposition of this appeal, I shall consider the arguments of both learned Counsel on their respective issues. I shall however, consider the issues together such that issues identified by learned Counsel for the appellant shall be considered along with the corresponding issues formulated by learned Counsel for the respondent as it appears clear that the corresponding issues seem to address the matters in difference in the light of the perception of learned Counsel. The conclusion one would arrive at however. would settle the issues without the necessity of having to view them separately.

The facts which gave rise to the suit before the court below are themselves product of another suit. The defendant at the court below (the appellant herein) inherited from his deceased father, a landed property. The property was being occupied by the plaintiff, who established and operated hotel business therein even before the death of the defendant’s father. The plaintiff continued to be the tenant of the defendant, after the latter had inherited it. Sometime in the year 1987, the defendant increased the rental amount from N2,000.00 to N8,000.00 per annum. As the plaintiff would not have it, the defendant issued him with a quit notice. Having failed to quit and deliver up possession, the defendant sued him at the Upper Area Court, Biu seeking for the recovery of the premises. Judgment was given in his favour and the plaintiff was ordered to vacate the premises immediately. This the plaintiff did.

Be that as it may, the plaintiff was not satisfied with the said judgment of the Upper Area Court. It seems as a result, he appealed against the judgment at the court below. Almost simultaneously, he filed an application at the said High Court praying to have the judgment of the Upper Area Court (which incidentally had been executed) stayed. The learned trial Judge granted the application. When the defendant failed to return the keys of the demised premises as ordered by the court below, the plaintiff filed yet another application seeking to commit the defendant for being in contempt of the court order. Realising the looming danger in which he would find himself, the defendant obliged. The order of the court below dated 25/9/87 staying the execution of the judgment of the Upper Area Court was only complied with on 25/7/88. Informed by the above, the plaintiff filed the suit giving rise to this appeal seeking for special damages as itemised in the plaintiff’s amended statement of claim, dated 30/8/89 being loss of earning occasioned by the failure of the defendant to handover the keys to the demised premises as ordered by the court below. Paragraph 19 of the said amended statement of claim dated 30/8/89 gave particulars of the items of special damages claimed. I reproduce it hereunder:

“That the plaintiff by reason and in consequence of the defendant action has suffered loss of earning as a Hotelier from the said premises as from the 25th September, 1987, to the 5th day of July, 1988, and claim as follows:

(a) The sum of N57,570.00 being special damages sustained due to the loss of earning for the use of the premises as a hotel and itemised as:

(1) Five lodging rooms at the rate of N3 per room as from 25th September, 1987 – 5th July, 1988 (285 days) == N4,275.

(2) N90 daily for the sale of beer as from 25th September, 1987 – 5th July, 1988 == N25,650.00

(3) N60 daily for the sale of soft drink as from 25th September, 1987 to 5th July, 1988 == N17,100.00

(4) N5 daily from the restaurant as from 25th September, 1987 to 5th July, 1988  == N1,425.00 (5) N30 daily for the sale of hot drink for the same == N 8,550.00

(6) N2 daily from the sales of the provisions for the same period. N 570.00

TOTAL == N57,570.00

Plus the cost of this proceeding including the counsel professional charges.”

In response to the suit, the defendant filed a statement of defence incorporating a counter-claim on 8/9/89. From the record, it does appear that the plaintiff did not file any reply or defence to the counter-claim and the suit was fought as such at the court below. Evidence was led on both sides at the end, of which learned Counsel made their submissions viva voce.

After considering the whole case, the learned trial Judge dismissed the plaintiff’s claim for his case. He however, granted special damages on the ground, that he had failed to prove the plaintiff general damages in the sum of N15,000.00. He gave reason why he had to award the general damages. Said he, at page 20 of the judgment:-

“In the age old celebrated case of Hardly v. Baxendale (1854) Exch 341, the rule had been laid down that defendant would be liable for the actual loss caused by him, provided that, in light of the knowledge actual or constructive possessed by him at the time of the contract he ought reasonably to have foreseen that the loss of earning was likely to occur by his act in breaching the contract.

As in this case, the defendant knowing fully that the plaintiff had been using the premises for hotel business for over seven years ought to have known that by his interference with his business without giving him sufficient notice to quit his premises would result to his loss of his earning.

As this has been proved by preponderance of evidence, the plaintiff will be entitled to the general damages of N15,000 as reasonably assessed by this court.”

The learned trial Judge also adverted to the counter-claim and dismissed it for want of evidence. The defendant felt thoroughly aggrieved. He accordingly, filed his appeal. Henceforth, I shall refer to the defendant as “appellant” and the plaintiff as “respondent” accordingly.

The corresponding issues for determination seek an answer to the question, whether a further amended statement of claim was infact filed and whether the judgment of the court below was based on a statement of claim that was not before it. In arguing the issue, learned Counsel recounted how the respondent who had filed a statement of claim dated 16/3/89, sought for and was granted leave to amend it. That as a result the respondent filed an amended statement of claim dated 30/8/89. Learned Counsel further recalled that in the course of proceedings, respondent again applied for and was granted leave to further amend the amended statement of claim but that no such pleading was ever filed. He pointed out that the learned trial Judge in his judgment alluded to another statement of claim filed on 12/6/91 and upon which he based his judgment. He submitted on the above score that failure to file a further amended statement of claim for which leave was duly sought and obtained left the respondent without any valid pleading. In other words, he contends that the grant of leave to file a further amended statement of claim tantamount to abandoning the amended statement of claim. He submitted therefore, that there was no pleading on the side of the respondent and that evidence adduced by him accordingly went to no issue as a party is generally only permitted to adduce evidence in support of his pleading. He cited and relied on the cases of Sadhwani v. Sadhwani (Nig.) Ltd. (1989) 2 NWLR (Pt. 101) 72 at 79 and Umenyi v. Ezeobi (1990) 3 NWLR (Pt. 140) 62.

Continuing in submissions, learned Counsel said the reliance placed by the learned trial Judge on a further amended statement of claim in coming to findings as he did occasioned complete failure of justice. He reasoned that since the respondent had no pleading in the eyes of the law, the only option open to the court was to dismiss the suit. He urged the court to hold that there was no valid statement of claim upon which evidence would be called in proof.

On his part learned Counsel for the respondent argued that the learned trial Judge was perfectly right in basing his judgment on the further amended statement of claim. He submitted that apart from the amended statement of claim there were two further amendments to it even though the amendments are not contained in the record of appeal. Learned Counsel referred to the order of court, dated 20/9/90 and submitted that it was based on that that the respondent filed a further amended statement of claim incorporating the defence to the counter-claim. He contended also that the court below infact referred to yet another amendment to the statement of claim filed on 10/5/91 and to which learned Counsel for the appellant referred to in his final address. Continuing with the discovery of more amendments to the statement of claim, learned Counsel said the learned trial Judge had also acknowledged another filed on 12/6/91, which was endorsed with a counter-claim. Learned Counsel reasoned that with all the references made to the amendments above by the learned trial Judge, there is a presumption of regularity namely that the pleadings were amended as recounted. He relied on Q. v. ljoma (1960) WNLR 130 and Amako v. The State (1995) 8 NWLR (Pt.399) 11 at 17. He submitted that even if leave was granted (as indeed it was) to the respondent to amend his pleading dated 30/8/89, failure to so file an amendment in compliance with the leave does not render the last subsisting pleading invalid in the absence of an express application to withdraw it. He relied on Agbahomowa v. Eduyegbe (1999) 2 SCNJ 94 at 102; (1999) 3 NWLR (Pt.594) 170, on the principle that where a pleading is amended with leave of court the pleading so amended does not cease to exist as it still forms part of the proceedings. He therefore, submitted that it was erroneous to assume that the further amended statement of claim, dated 30/8/89 is rendered invalid. He urged that the issue be resolved in the favour of the respondent.

I must from the onset acknowledge that, the record of appeal as compiled contained an amended statement of claim dated 30/8/89. Infact that is the only pleading to be found in the record as filed by the respondent. The appellant on his side filed a statement of defence, dated 8/9/89 which incorporates a counter-claim. It is remarkable that the counter-claim was not addressed at all in the amended statement of claim. It does appear from page 25 of the record of appeal that on 20/9/90, the court below had granted the respondent leave to amend his amended statement of claim dated 30/8/89. He was granted seven days from the date of the order to file a further amendment to the amended statement of claim. This the respondent failed to do. In order to justify an obviously unjustifiable act Mr. Babati for the respondent made the below quoted submissions.

“Babati – The defence counsel submitted that we have not filed the amended statement of claim and the defence to the counter-claim as ordered by this court on the 20/9/90, to file the same within 7 days. I submit that 7 days start from 21st of September, 1990, expired by 2/10/90, because 20th September, 1990, ends on the 1/10/90, which was public holiday. When the order was given, I drafted the amended statement of claim and defence to counter-claim and gave it to Chief Superintendent of Police to give it to the plaintiff so that it could be filed in court. The plaintiff informed me that he filed the papers on the 2/10/90 and official receipt R.C.R. No. 300812 was issued to him since the papers had been filed, and the defence had not received the amended statement of claim but acknowledge the receipt to the counter-claim. It is our submission failure to serve him with the amended statement of claim is the fault of the Registry and not our own fault.”

One needs put no industry at all to see how scraggy the reasoning of learned Counsel is. If the respondent was ordered to file an amendment to the amended statement of claim within 7 days from 20/9/90, the order should be complied with latest, on 28/9/90. Even if there was an intervening Sunday, which is an excluded day the process should have been filed on 29/9/90. This is because by the provision of section 6(b) of the Interpretation Law, Cap. 52 of the Laws of Northern Nigeria, 1963 (applicable to Borno State) in computing time for the purpose of any law, if the last day of the period is Sunday or a public holiday, the period shall include the next following day. Thus, Sunday or public holiday is an excluded day. So when the respondent filed an amendment by virtue of the court’s leave only on 2/10/90, it becomes clear as crystal that the order was not complied with and the process so filed is rendered invalid.

It is idle to contend as Mr. Babati did that an order made on 20/9/90, granting leave to file a process within seven days from that date would expire only on 2/10/90. That is an astonishing reasoning to say the least. In any case the further amendment to the amended statement of claim upon which much furore is raised is not contained either in the main record of appeal or the supplementary record. Since the amendment of 2/10/90, alluded to does not infact exist in the record of appeal or anywhere for that matter, reference to it, just as reference to amendments filed on 10/5/91 and 12/6/91, are absolutely irrelevant. They are simply speculative make belief. The reliance placed by learned counsel for respondent on presumption of regularity is ill-founded and misconceived. Learned Counsel himself failed to point out any application moved by the respondent for which leave was secured and as a result of which the purported amendments filed on 10/5/91 and 12/6/91 are based. Infact, learned Counsel only referred to the amendments because the learned trial Judge made reference to them. The truth however is that they do not exist in fact. Learned Counsel vehemently supports their existence not because they are infact shown to be in existence but because the learned trial Judge in his judgment alluded to them. Even if they do exist (although there is no evidence to that effect) they could not have been valid pleadings since they purport to be amendments to processes of court in respect of which no leave was sought and obtained. Pleadings properly filed are only amended when leave to do so is duly applied for and expressly granted by the court. It is not a matter of free for all or a process by which a party with fine tricks on his side would overreach the other.

Each step taken in our adversarial system is governed by the rules of court. As far as this appeal is concerned, the only valid and subsisting pleadings upon which parties contested the suit at the court below, are the amended statement of claim dated 30/8/89 and the statement of defence dated 8/9/89, which incorporates a counter-claim.

I do not share the view of learned Counsel for the appellant, that the grant of leave to the respondent to further amend his amended statement of claim presupposes the withdrawal of his said amended statement of defence. Far from it, the respondent’s pleading is very much valid and subsisting and shall be used until the amendment is effected in terms of the order and within time. Where, as in this case, the respondent had failed to file any amendment as duly applied for and granted within the time specified by court, the pleading intended to be amended shall subsist. The pleading only becomes irrelevant when it is expressly withdrawn and accordingly struck out. But even where a statement of claim or defence is amended with leave of court, it does not ipso facto cease to exist. It still forms part of the proceedings and the court cannot shut its eyes against it. See Aghahomova v. Eduyegbe (supra) cited by learned Counsel for respondent.

Having said that and in the light of the issue raised, the learned trial Judge was in very grave error in referring to and relying on further amended statement of claim dated 10/5/91 and another filed on 12/6/91, in his judgment when there was no prior leave sought and obtained from the court to so amend and when the amendments alluded to infact are not contained in the proceedings of the court below. The amendments to the amended statement of claim in respect of which the learned trial Judge, so much devoted considerable energy do not infact exist. They exist only in his imagination. My answer to the first issue identified by the appellant is in the negative. That also settles the first issue identified by the respondent in the affirmative, since from the record the respondent did not file any further amended statement of claim.

The second issue for determination posits the question whether from the pleadings and the evidence adduced, the court below was right in giving judgment for the respondent in the sum of N15,000.00 as general damages. In arguing the issue, learned Counsel for the appellant referred to paragraph 19 of the amended statement of claim and stressed that the respondent’s claim was for special damages clearly itemised therein. Learned Counsel submitted that the respondent had failed to prove any and all the items of special damages, He drew his conclusion from the evidence of 4th PW, 6th PW and 7th PW and said that all of them failed to establish the various items of special damages, He cited a number of decisions on the strict nature of proof of items of special damages including A.-G., Oyo State v, Fair Lakes Hotels (No,2) 1989) 5 NWLR (PU2l) 255 at 278; Okoronkwo v. Chukwueke (1992) 1 NWLR (Pt.216) 175 at 194 and Osuji v. Isiocha (1989) 3 NWLR (Pt.11) 623, Learned Counsel submitted that because the respondent had failed to prove the special damages he claimed, there was no basis for the trial court to have awarded him general damages. Learned Counsel stressed that even if it was the statement of claim purportedly filed on 12/6/91 that was used by the court below, it was immaterial that the respondent claimed general damages when infact the heads of the claim are for anticipated profits and are therefore items of special damages, He submitted on the above score therefore, that going by the evidence before the court below, the learned trial Judge was in error in his finding that the failure of the appellant to hand over the keys of the disputed property as ordered by the court had caused the respondent loss of earning. He urged this court to allow the appeal on this ground.

In arguing the issue and as contained in the brief, learned Counsel for the respondent firmly stressed that learned Counsel for the appellant only belaboured the issue of proof of special damages. He said the learned trial Judge had put in clear focus the need far strict proof of items of special damages, That he accordingly, held that paragraph 19 of the statement of claim was not proved, Learned Counsel continued and argued as hereunder, reproduced viz:

“It is imperative to submit that the learned trial Judge was handicapped in awarding damages for loss of earnings as claimed, not because he did not believe the respondent’s case, Rather, the respondent could not have the benefit of this award because as it happened, his business was not yet sophisticated as to properly document daily sales and earnings in either of the items claimed, that could be examined by the court and opposing party,”

In continuation, learned Counsel recapitulated the findings of the court below and submitted that the award of N15,000.00, general damages made by the court was proper moreso that the court applied the correct test of causation and foresee ability of the damages eventually occasioned. He submitted that an award of damages by the court needed not be based on positive findings of fact. He cited and relied on Ijebu-Ode Local Government v. Balogun & Co. (1991) 1 NWLR (pt.166) 39 at 158. He further referred to few other authorities on the import of general damages and the basis of its assessment.

Learned Counsel found the submission of the appellant that the respondent had found an alternative business premises almost immediately, as absolutely unhelpful since all that the respondent did was to mitigate the loss as the law expected him to do. He urged that the appeal be dismissed on this issue.

Perhaps it is just to point out that both learned Counsel are in agreement that the learned trial Judge had dismissed the special damages claimed by appellant and as contained in paragraph 19 of the statement of claim. In arriving at that finding and in order to justify the award of general damages, the learned trial Judge found as follows at page 19 of the record:

“However, as there is credible evidence from the plaintiff that immediately the Biu Upper Area court ordered for the plaintiff (sic) eviction from the premises and he had established a new Unity Hotel and had resumed his hotel moreover, the record for the sale of all items stated in the paragraph 19 of the statement of claim could not be tendered, as there is no record kept, plaintiff would only be considered for the claim on general damages, which the statutory notice of six months could have been given to the plaintiff for determining the tenancy agreement.”

Learned Counsel for the respondent himself, realising that the respondent claim for special damages had been dismissed by the learned trial Judge emphasized as follows at page 5 of the brief:

“Appellant’s counsel in this issues (sic) is entirely misconceived in that he failed to affirm that the learned trial Judge equally appreciated the strict proof required to sustain a claim on loss of earning and consequently – declined to award same to the respondent.”

(Underlining mine)

Based on the above, I too, find the much laboured argument about the failure of the respondent to prove the items of special damages he claimed as a worthless exercise. The learned trial Judge himself found the claim unproven and accordingly dismissed it. Reference to whether the special damages had been proved, in my judgment is but only much-talk-about-nothing.

Be that as it may, from my discussions on issue No.1, I arrived at a clear decision that the latest amendment to the statement of claim on which the respondent’s case stands is the amended statement of claim dated 30/8/89. There is no further amendment to it even though the court below had, on 20/9/90, granted the respondent seven days from that date within which to file an amendment to the amended statement of claim. That was not to be because none was filed before, the expiry of the seven days. All the amendments referred to in the judgment like the amendments of 10/5/91 and 12/6/91, are but old woman’s tale. They do not exist either as court orders or in fact none of the amendments actually exists in the record of appeal and both learned Counsel appear to appreciate their purported existence only from the judgment. The learned trial Judge, with all due respect to him, did not help matters as he only referred to the amendments by the dates they were made without saying what they are all about or when they were sought for and granted by the court. But from the record before this court the only last valid and subsisting amendment to the statement of claim is the amended statement of claim dated 30/8/89.

Attention should now be drawn to the propriety of granting reliefs by courts of law. With specific reference to special and general damages, there is no doubting that they must be claimed and specifically averred. A claim or relief, it must be emphasized, has to be proper, precise and certain. A claim for general damages, must be averred and should be shown to have been suffered although the quantification of the measure of damages is entirely a Jury question. Therefore, before a court of law grants any relief, it must infact be one that has been claimed. See Nwobosi v. A.C.B. Ltd. (1995) 6 NWLR (Pt. 404) 658; West African Shipping Agency v. Kalla (1978) 3 SC 21; Badmus v. Abegunde (1999) 11 NWLR (Pt.627) 493 at 504. It has been emphasized in a long line of decided authorities that courts ought not grant reliefs that are not sought for except of course those reliefs that are ancillary or incidental in order to make the relief effectual. See Atanda v. Lakanmi (1974) 3 SC 109; Okhideme v. Toto (1962) 2 SCNLR 8; (1962) 1 All NLR (Pt.1) 309; Oyediran v. Amoo & Ors.(1970) 1 All NLR 313 at 317; Omoboriowo v. Ajasin (1984) 1 SCNLR 108at 131; Ademola v. Sodipo (1992) 7 NWLR (Pt.253) 251.

With reference to the appeal at hand, there is no doubting the fact that the respondent did not claim any relief in the nature of general damages. I have elsewhere in this judgment, reproduced the claim of the respondent. He only itemised the heads of the special damages he was claiming but said nothing about any claim for general damages. Since therefore, the respondent did not ask for general damages, there was no basis for the court below to have granted him one. The respondent clearly lost on all items of special damages he claimed. The learned trial Judge, rightly too in my view, dismissed the claim. Having lost on all the items of special damages, he cannot be presumed to have lost anything which the law would presume to flow in his favour deserving compensation in the nature of genera] damages. See U.B.A. Ltd. v. Achorn (1987) 1 NWLR (Pt.48) 172; Nzeribe v. Dave Eng. Co. Ltd. (1994) 8 NWLR (Pt.361) 124; 140; UBN Plc. v. Odusote (1995) 9 NWLR (Pt.421) 558; Onwu v. Nka (1996) 7 NWLR (Pt.458) 1.

Taking into consideration the award made by the court below in respect of which the respondent made no claim, the whole of the award made is gratuitous. Indeed, the award was made because the respondent lost on his items of special damages and the learned trial Judge felt it expedient to compensate him for the losses he suffered in his projected earnings. As records, the reasons for the learned trial Judge himself found at page 20 of the award of general damages are primarily because:

“In the old celebrated case of Hardley v. Baxendale (1854) 9 Exch. 341, the rule had been laid down that defendant would be liable for the actual loss caused by him, provided that, in light of the knowledge actual or constructive possessed by him at the time of the contract he ought reasonably to have foreseen that loss of earning was likely to occur by his act in breaching the contract. As in this case, the defendant knowing fully that the plaintiff had been using the premises for hotel business for over seven years ought to have known that by his interference with his business without giving him sufficient notice to quit his premises would result to his loss of earning.

As this have (sic) been proved by preponderance of evidence, the plaintiff will be entitled to the general damages of N15,000.00 as personally assessed by this court.”

Although the case of Hardley v. Baxendale discussed above, drew attention to actual loss suffered (which is a matter of special damages) nevertheless the learned trial Judge used the principle to justify the award of general damages, which in the first place was not claimed for, after having found the claim of special damages unproven. Clearly, the award is made as a restitutio ill opulalltum, coming as it was, as a windfall in order to compensate the respondent for having failed to prove his items of special damages. I am of the view therefore that this court ought to interfere with the award of general damages made by the learned trial Judge. This is so particularly because the award was not premised on any claim in the pleading at all. A court of law not being a charitable organisation would under no circumstances grant a relief which is neither claimed nor pleaded by the party in whose benefit it is awarded. See Edebiri v. Edebiri (1997) 4 NWLR (pt. 498) 165; Otanioku v. Alli (1977) 11-12 SC 9; Ilodibia v. Nig. Cement Co. (1997) 7 NWLR (Pt.512). Neither can it be said that it was an ancillary or incidental claim, since at any rate all the items of special damages claimed had failed.

It appears plain from the argument of learned Counsel that they are based on the false premise that there is a relief claimed by the respondent in the nature of general damages. Counsel are clearly oblivious of the reality of the pleading of the respondent, who did not find it expedient to ask for any general damages. It is accordingly unnecessary for me to consider arguments that are pitch forked on the view that there is a valid relief made for general damages. For all that I have said above, I hereby set aside the award of the sum of N15,000.00 as general damages. Issue No. II therefore, is answered in the negative. Consequently grounds 1, 3 and 4 from which the issue is formulated accordingly succeed.

The third and last issue, is whether the learned trial Judge was right in dismissing the appellant’s counterclaim. Learned Counsel for the appellant who recounted the claim in the counter-claim, pointed out that there is no reply to the said counter-claim. He submitted therefore, that where a counter-claim is served and the defendant fails to serve a reply to it, he is deemed to have admitted all the averments therein contained and that no evidence need be called in proof of it. He referred to Orah v. Nyam (1992) 1 NWLR (Pt. 217) 279 at 286. He urged this Court to allow this issue and enter judgment for the appellant on his counter-claim.

On his part, learned Counsel for the respondent referred to page 2 of the supplementary record and page 25 of the main record and submitted that the respondent had filed a reply to the counter claim. May I here say parenthetically, that page 2 of the supplementary record does not show that there was a defence filed to the counter-claim. Rather, it is a casual passing remark made by the learned trial Judge who referred to an amendment made to the statement of claim containing a reply to the counter-claim filed on 12/6/91. However, that purported amendment was the one I found to exist only in the imagination of the court below. As I have already found, that amendment was never sought for and/or granted by the court below.  Most seriously, the amendment does not exist infact. It is neither contained in the record of appeal nor has any of the parties or the court below appears to know of its existence. That explains why beyond the purported filing of it on 12/6/91, nothing is known about it. The only known amended statement of claim is that dated 30/8/89. It is remarkable to note that that amendment contains no reply to the counter-claim.

Learned counsel further submitted that the respondent had led evidence on his defence to the counter-claim without objection and that that showed the existence of the reply to the counter-claim. He submitted in the main that the appellant had failed to prove the counter-claim by credible evidence.

Learned Counsel had an alternative submission. He said, assuming without conceding that there was no defence filed to the counter-claim, the appellant had led credible evidence to warrant getting judgment in his favour. He urged this court to affirm the dismissal of the counter-claim.

The conclusion I reached earlier on in this judgment is that, the respondent had filed no reply to the counter-claim as can be found from the record of appeal. Even if it were possible to bend over back wards, to accommodate the purported amendment to the amended statement of claim said to have been filed on 12/6/91, the reality is that it does not infact exist. It cannot be found anywhere in the record and it is anybody’s guess what the reply is. Thus, the only valid and subsisting pleading of the respondent is the amended statement of claim dated 30/8/89 and that amendment contains no reply to the appellant’s counter -claim. It must be emphasized that a counter-claim, for all intents and purposes is a separate and independent action and it is joined to the main suit only for reason of convenience and speed. See Oyegbola v. Esso W.A. (1966) 1 All NLR 170; Ogbonna v. A.G., Imo State (1992) 1 NWLR (Pt.220) 647 at 675. Thus, where the defendant incorporates in his statement of defence a counter-claim, the plaintiff is duty bound to file a reply in defence to the counter-claim. This is because a counter-claim in law is treated as a separate and independent action. See Hassan v. Reg. Trustees of the Nigerian Baptist Convention (1993) 7 NWLR (Pt. 308) 679, where the plaintiff fails to file a reply to the counter-claim, as in this appeal, the court is entitled to assume that there is no defence to the counter-claim and in an appropriate case, may enter judgment for the defendant accordingly. It is understandable because where the plaintiff has failed to file a reply to the counter-claim it becomes clear as crystal that no issue is joined that is triable and the court may, in the circumstance, enter judgment for defendant, especially where the defendant moves the court for judgment in terms of the counter-claim.

I must however say that the case of Orah v. Nyam (1992) 1 NWLR (Pt.217) 279 at 284 so heavily relied upon by learned Counsel for appellant is no authority for the proposition he advanced that where the Plaintiff failed to file a reply to the counter-claim, no evidence need be called in proof of the counter-claim. It all depends on the nature of the claim and the view of the trial Judge as to whether evidence ought be adduced. Where the counter-claim is for a declaratory relief, the defendant has to lead evidence that satisfies the trial Judge that he is entitled to the declaration sought regardless of the failure of the plaintiff to file a defence. See Ogbonna v. A.-G., Imo State (supra).

I keep in my mind’s eyes, the fact that the respondent has not applied for judgment in default of reply to the counter-claim. In my judgment, the learned trial Judge was right in allowing the appellant to lead evidence on his counter-claim and to assess the evidence in the light of the pleading, since it is not the law that a defendant shall get judgment in his favour, on his counter-claim once the plaintiff fails to file a reply.

Learned Counsel for respondent appears to make heavy weather of the evidence led by the respondent on his purported reply to the counter-claim. He said because there was no objection to the admission of the evidence, it cannot now be questioned and that the court below was right in relying on it to dismiss the counter-claim I think, nothing can be further from the truth. The law is that where evidence is adduced or attempted to be adduced on facts not pleaded, such evidence should not be allowed to be given. And where the evidence is given, it should be discountenanced or expunged. See Njoku, & Ors. v. Eme & Ors (1973) 5 SC 293; Okafor & Ors. v. Okitiakpe (1973) 2 SC 49; Emegokwue v. Okadigbo (1973) 4 SC 113; Onamade v. ACB Ltd. (1997) 1 NWLR (Pt. 480) 123; Shell Dev. Co. v. Ambah (1999) 3 NWLR (Pt.593) 1; Alli Otaru & Sons Ltd. v. Idris (1999) 6 NWLR (pt. 606) 330. So it is immaterial that the appellant had raised no objection, when the respondent led evidence in proof of facts that have not been pleaded as no reply was filed in defence of the counter-claim.

The counter-claim in question, for ease of reference, is hereunder reproduced vide:

PARTICULARS OF COUNTER-CLAIM

“The defendant claims from the plaintiff the sum of N13,333.28 (Thirteen thousand, three hundred and thirty three Naira twenty-eight kobo), being arrears of rent owed the defendant by the plaintiff at the rate of N8,000 (Eight thousand Naira) per annum, for the period of May, 1987, to December,1988 and mense profits at the rate of N666.66k (Six hundred and sixty-six Naira, sixty-six Kobo) monthly for the period January – 1989 to June, 1989.

The plaintiff had been defendant’s yearly tenant in the premises House No. H.M. 608 Birikuthi Bin at the yearly rent of N2,000 till April, 1987, when defendant reviewed the rent to N8,000 yearly, whereupon plaintiff failed, delayed and refused to pay the rent and still occupied the premises till December, 1988, when defendant through his Solicitors, served him notice to quit, but still occupied the premises till June, 1989, when plaintiff gave up possession of the said premises.

The defendant also claim general damages from the plaintiff in the sum of N30,000 (Thirty thousand Naira) and the cost of this suit.

The defendant shall rely on the statement of facts in this defence.”

While giving evidence on the counter-claim, DW1 so well made out his case on how he unilaterally increased the rents. The evidence as contained at pages 17 & 18 of the record of appeal is hereunder reproduced. Viz:

“As earlier on testified, the plaintiff has been my tenant before 1/6/87. The rent for the premises was N1,200 per annum, I increased the rent to N8,000 per annum. The plaintiff left the premises in June, 1989, that is, he gave up the possession of the premises. Up till June,1987, the rentage of the premises was N8,000; since I increased the rent, the plaintiff has not paid me. I gave him quit notice on the 20/11/88. He replied to the notice to quit on the 5/1/89, that the matter is over and he had ceased to be tenant from that, and he received the notice in good faith. Since he replied to the notice to quit, he has never or did not vacate the premises. He vacated the premises in June, 1989. I want the plaintiff to pay me the rent arrears from May, 1987 to June, 1989. I want him also to pay the General damages, +xmn. by Mr. Babati- I did not collect advance payment of N12,000 from the plaintiff for the rent of the premises. I did not write a letter admitting that I collected money of N2,000. I remember writing a letter to the plaintiff increasing rent from N1,200 to N8,000. I can remember the letter Exhibit ‘AA’ was the one written by me for increasing the rent. I have no reason why I did not take the possession of the premises but he did not vacate the premises by then. I remember in July, 1988, the court ordered me to release the key of the premises to the Registrar of this court and I did not. I remember I have applied to this court on the 29/5/89 and collected the keys of the premises on the 29/5/89, or in July, 1989. The plaintiff vacated the premises in June, 1989. Since the Upper Area Court ordered the plaintiff to vacate the premises and the High Court ordered in July, 1989, the hand over of the keys to the plaintiff who has been in physical possession of the premises. The keys I handed over to the Registrar of this court, are the actual keys for the premises. I never allowed him into the premises whereas the key of the premises are with me. I did not take him to Rent Tribunal before I increased the rent from N1,200 to N8,000.00”

The above pieces of evidence were neither challenged nor controverted. The evidence led by the respondent purportedly in line with a reply to the counter-claim that was not filed is understandably of no moment for the evidence cannot, by any shred of imagination be said to be legally admissible. I discountenance the evidence. The obvious syllogism is that the evidence led by the appellant on his counter-claim stands unchallenged.

The findings of the learned trial Judge based on the unchallenged evidence of the appellant also in my view, are sound. The learned trial Judge found as follows at pages 20 to 21 of the supplementary record of appeal:

“With regards to the counter-claim of the plaintiff, there is no positive evidence that the parties – plaintiff and defendant, ever agreed with the proposal of the reviewing rent of N8,000 put up by the defendant before the defendant instituted the action against the plaintiff in the Upper Area Court, Biu. It was true that defendant made an offer of new rent of N8000 to be paid by the plaintiff but the offer has not been accepted by the plaintiff, hence he requested for notice from the landlord to quit the premises. The advance of N2000 made to the defendant by the plaintiff ipse dixit was not the rent and it was not agreed that it would be a rent which would establish a new tenancy agreement between the parties. The amount N2000 was different from what had been agreed before. (See the case of Alhaji R. A. Afolabi Trading as Ofolodum, Bros. v. Polythera Industries (Nigeria) Ltd (1977) 1 All NLR). An offer cannot be accepted by any one, except the person to whom it is made and acceptance means the assent of that person signified in the mode required by the terms of the offer. See Halsbury Law of England, 3rd Edition page 72.

There as there was no breach of any contractual obligation on the parties of the plaintiff that he would pay N8000 per annum as offered by the defendant, the arrears of rent claimed in that respect could not be sustained.

If the defendant has properly determined the tenancy agreement in accordance with the law, that is, in accordance with section 8 of the Recovery of Premises Act, as there were no express agreement between the plaintiff and defendant, at any rate, no deed of agreement was tendered by either side, stipulating the notice which ought to be given before the determination of the tenancy agreement; therefore, statutory notice of six months half yearly notice, could have been given. And since the defendant held on the keys of the premises when he was asked to be delivered, to the Registrar of Upper Area Court, Biu for the enlargement collection of the plaintiff and refused to do so. I could not see in what way he could claim mesne profits on his counter-claim. It is therefore dismissed for want of evidence.”

I hold the view that the above decision is right. So also are the reasons given. If the appellant had unilaterally increased the rents which had not been accepted by the respondent, there seems to be no justification for the respondent to be asked to pay rents above the amount the parties were in agreement. As things are, the learned trial Judge was right in holding that there was no breach of contract. I also share this view. For the reason of non tendering of the tenancy agreement, I too would agree with the learned trial Judge on his finding reacting to the claim for mesne profit. Issue No.3 is hereby answered in the affirmative. Thus, the issue is resolved against the appellant. Accordingly, ground 5 of the grounds of appeal from which it is formulated fails.

On the whole, this appeal succeeds in part. It is allowed in its entirety as it affects the main suit at the court below and is dismissed as lacking in merit as it affects the counter-claim before the court below. As far as the main suit in suit No. BU/18/89 before the High Court of Borno State is concerned, the judgment of Adagun J. dated 31/10/91, is hereby set aside. In its place, there shall be judgment dismissing the respondent’s case before the court below. The said judgment however, is hereby affirmed as it affects the counter-claim in the suit.

The appellant is entitled to costs, which I assess and fix at N4,000.00.

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Other Citations: (2001)LCN/0968(CA)

Abdullahi Pate & Anor. V. Mohammed Gali (2001)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE J.C.A,

The respondent in this appeal commenced proceedings in the Upper Area Court Zaria against the appellant for the recovery from the appellant, the sum of N48,000. The said sum, the Respondent as plaintiff alleged is for payment for 120 tonnes of fertilizer, which he sold to the Appellant as defendant sometime, at a time not stated. The Upper Area Court took evidence in the suit and struck out same, saying it had no jurisdiction. The plaintiff/appellant was not satisfied with the observation made by the court in the Upper Area Court, and he appealed to the High Court Kaduna State which court takes appeal from the Upper Area Court. In the High Court, the appellate court granted leave to the appellant to file and argue additional grounds of appeal. In the appellate court Coram Mukaddas and A.D. Yahaya J.J. The grounds of appeal filed were considered after the addresses of both counsel.

This is how the court ruled:

“We agree with Mr. A.Z. Yusuf that this appeal has merit and should succeed. The plaintiff in his statement of claim to the trial court had claimed for 120 tons of fertilizer supplied to the defendant at the cost of N48.000.00. He therefore prayed for the sum of N48.000.00 to be paid to him. The defendant in his statement of defence at the trial court did not deny that he received fertilizer worth N48.000.00. He talked about two lorry loads, but there is no evidence of how many times 2 lorry loads would carry. Since the defendant did not deny in law he is deemed to have accepted the claim of N48.000.00 by the plaintiff. etc, etc. We therefore hold that all the grounds of appeal have merit and they succeed the appeal is allowed. We think this ls not a proper case for retrial. etc. etc. There is also failure to discharge the burden of payment of the admitted sum etc. etc. In place of the decision of the Upper Area Court, since there is preponderance of evidence and admission, the plaintiff has proved his case and we hereby order the respondent to pay the admitted sum of N48,000.00 cost of the fertilizer he received to the plaintiff/appellant.”

The Defendant/Respondent in the Appellate High Court was dissatisfied with the judgment of the High Court, he filed in the court below four grounds of appeal, and formulated for determination in this court four issues they are:

(1) “Whether the learned Justices were right in holding that the appellant had admitted the Respondents claim, formulated from ground 2 of the appeal.

(2) “Were the learned Justices right in ordering the payment of N48,000.00 to the Respondent where there is no evidence on the record showing that 120 tonnes of fertilizer or 2 lorry loads of fertilizer worth N48.000.00 ground 3.

(3) “Was the transaction between the appellant and the Respondent not tainted with illegality and therefore unenforceable in law.

(4) “Whether the judgment of the learned Justices was not against the weight of evidence ground 1.”

The respondent formulated three issues namely:

(a) “Can a party who voluntarily submit to judgment argue an appeal against his own interest in favour and support of opponents appeal, clearly, implicitly and unequivocally concedes an appeal to his opponent (whether tactically or otherwise) appeal against any judgment given upon the grounds conceded submitted to or argued by him? Put in another way, can a party duly represented by a counsel be allowed to approbate and reprobate on an appeal conceded by him?

(b) Whether or not the transaction between the parties was tainted by illegality”

(c) Whether or not the respondent was entitled to judgment having regard to the claim by the plaintiff, evidence before the trial court, as well as the admission by the appellant. Alternatively was the High Court right to enter judgment in favour of the respondent having regards to the weight of evidence”?

I wish in this appeal to start with a consideration of issue (a) in the respondents issue for determination. The respondent has submitted that the issue is against the entire appeal and urged the court to dismiss the entire appeal for incompetence. The issue so formulated by the respondent was the reason why the Appellant filed a reply brief. The said reply brief was deemed filed on 12/12/00, and it is part of the courts proceedings. In the reply brief, the Appellant submitted that issue (a) of the Respondent was in fact and substantially a preliminary objection to the entire appeal of the appellant but that preliminary objection failed to comply with the rules of the court of appeal. For instance the Respondent/appellant submitted, did not file a notice of preliminary objection under order 3, rule 15. The appellant submits further that the said issue (a) of the Respondent does not derive from the grounds of appeal filed by the appellant. He cited OSHOBA VS. AMUDA (1992) 6 NWLR Pt.250 at 690. Appellant urged the court to strike out the issue.

On this issue, (a) of the Respondents brief, the immediate observation is that the issue (a) is verbose, and prolix. The averments made therein namely that the Appellant had admitted the claim in the courts below, when the appellant has profusely denied this, makes the issue argumentative. Therefore as the fact really is, the appellant deny that he admitted the Respondents claim, the issue becomes, not an issue but an argument. It is settled practice that an issue formulated for determination of an appeal should not be prolix and should constitute a challenge to the rationes of the court EGBE VS. ALHAJI (1990) 11 NWLR Pt.128 at 340 while arguments may be advanced on the issue for determination, the issue itself should be intelligible and not per se be an argument.

Respondent’s issue (a) does not derive from any of the grounds of appeal filed by the Appellant. A plethora of authorities exist which decide that an issue in an appeal which does not derive from a ground of appeal is deemed to create no issue and it is deemed abandoned UAC OF NIGERIA VS. FASHEYITAN & ANR. LTD. (1989)7 KINGS LAW REPORT PER BELGORE JSC

(ii) ODIFE & ORS. VS. GODFREY ANIENIEKA (1992) 7 NWLR (pt.257) at 25 & 42

(iii) ANIE & ORS. VS. UZOIKA & ORS. (1993) 8 NWLR (Pt.309) 1 & 17

(iv) ODUBEKO VS. FOWLER (1993) 7 NWLR (Pt.308) 653

Since the issue formulated by the Respondent does not arise or derive from any of the grounds of appeal filed by the appellant, it is deemed abandoned, and not competent. It should be struck out. It is struck out.

Issue 3 of the appellant postulates the same argument as issue (b) of the Respondents brief and will be considered together. In the appellants brief, issue 3 asked “was the transaction between the appellant and Respondent not tainted with illegality and therefore unenforceable in law?” and the respondents issue (b) asked “whether or not the transaction between the parties was tainted with illegality.” The appellant said that the learned Justices of the appellate High Court remarked that the transaction of sale between the respondent and the appellant may have arisen from the sale of stolen fertilizer, since the respondent was once a subject of investigation by his erstwhile employer for the theft of fertilizer. If that was the case, the appellant submitted that the transaction of sale of fertilizer to himself by the respondent is not actionable by the respondent, even if it is true that he did not pay, which he denied. The appellant therefore relied on the maxim “ex turpi causa oritur non actio.” The Appellant therefore urged the court to set aside the judgment of the court below. i.e High Court decision and dismiss the plaintiff’s claim i.e Respondents claim.

The Respondent denied that the transaction of sale by the Respondent with the Appellant is affected by any illegality. He said the defendant/appellant herein has testified in the court below that the transaction between himself and the plaintiff/Respondent took place in May, 1989, whereas the subject of enquiry to which the plaintiff/Respondent was a candidate by his employer took place in 1990. The respondent submitted that the fertilizer sold to the appellant was not the one for which the respondent was sent to an enquiry; as the sale to appellant took place before the enquiry. The Respondent submitted further that where there is an allegation of the committal of a crime in a civil proceedings, such crime should be proved beyond reasonable doubt. He referred to section 138 Evidence Act and to NWOBODO VS. ONOH (1984) 1 SCNLR 1 at 17. 27-28. He urged the court to dismiss the appellant’s issue 3, thereon in this appeal.

It is a trite principle of law, that any crime alleged even in a civil proceedings must be proved beyond reasonable doubt. OKOTIE VS. OLUGROR (1995) 5 SCNJ 217 at 230-231.

In the instant case there is no proof of any kind to show that the fertilizer sold by the Respondent to the Appellant was stolen, and what is more, at no time did the appellant in his brief raise or plead the issue of crime against the respondent. The rule of court and practice require that such an issue should be an issue of trial on which the court below should if properly raised before it would have ruled on. The appellant in his brief said the appellate judge raised the issue as to the illegality of the transaction. It is clear to me that the passing remark of the judge in the trial does not make the issue one of the issues of contest between the parties, and there was no ruling of court on the issue of illegality. The judex is not a party to the proceedings, and as the judges did not make any ruling on the issue of alleged taint of the transaction with criminality as contained in ground 4 in which issue 3 is filed, the issue on appeal, cannot therefore be entertained without more. In actual fact therefore as the issue of alleged criminality of the transaction does not attract any ruling of the court below; It is a fresh issue on appeal for which the appellant did not obtain the leave of the court as required by the rules of this court see: EJIOFODOMI VS. OKONKWO (1982) 11 SC. 74 at 93 – 98 or (1982) Vol. 1 NSCC at p.422 (11) ADEGOKE VS. ADESANYA (1989) 3 NWLR (Pt.109) 250.

Ground 4 of the ground of appeal being on an issue not canvassed by the parties in the court below is a fresh issue which requires the leave of court before it can be heard in the court of appeal. The appellant did not obtain such leave, the said ground of the notice of appeal filed on 2/4/96 is struck out.

The respondent formulated issue C as follows:

“Whether or not the respondent was entitled to judgment having regards to the claim by the plaintiff’s evidence before the trial court as well as the admission by the appellant”, he said also, “Alternatively was the High Court right to enter judgment in favour of the respondent having regards to the weight of evidence?”

However the respondent’s issue C is viewed, it seems to me to be relevant in material particulars with the appellants issue (1) which asked “whether the learned Justices were right in holding that the appellants had admitted the Respondents claim.” The congruence in the two issues, of the appellants issue one, and the respondents issue (c) when it is seen that the judgment of the court below was awarded to the Respondent because the court below held that the appellant had admitted the claim of the plaintiff/Respondent, brings into consideration the whole facet of the appeal. On the issue to be determined on both issues therefore is this. Was the court below right when it held that the defendant now appellant has admitted the plaintiff’s claim?, and therefore awarded judgment in favour of the plaintiff respondent? To determine the issue the testimony of the parties before the court below have to be considered. On his writ of summons in the Upper Area Court Zaria the plaintiff/Respondent claimed from the Defendant/Appellant, the sum of N48,000.00 as cost of 120 tons of fertilizer sold by the plaintiff/Respondent to the Defendant/Appellant. Except for a chance reference by the defendant in his testimony to sometime in 1989, no date was given by the plaintiff/Respondent of when the transaction of sale between them took place. The 1st defendant/appellant in his testimony at page 2, lines 19 – 22 deposed that he received (at a time not stated,) 2 lorry loads of fertilizer from the plaintiff? and paid for it the sum of N23,400.00. It is the submission of the appellants that the fertilizer to which he deposed that he received, is not the same as is being claimed by the Respondent. The Appellant submitted that the onus is on the plaintiff to make a proof of the supply in the court below by evidence in proof of his claim for N48,000.00 for the supply of fertilizer of 120 tons. The appellant said the plaintiff/Respondent had the onus to show that 120 tons of fertilizer is the same as is contained in the two lorry loads of fertilizer which he said he received.

He submitted that once the defendant now appellant had denied that the two lorry loads he received is not the same as the 120 tons of N48,000.00 claimed by the plaintiff, the onus is on the plaintiff/Respondent to prove it. The Appellant said the admission that he received 2 lorry loads of fertilizer does not constitute an admission that he received from the respondent 120 tons of fertilizer at a cost of N48,000.00. The Appellant submitted therefore that the lower appellate court was in error of law to conclude that he had admitted the plaintiff’s claim for N48,000.00.

It is important to observe here that the Respondent referred in his brief. to his issues as a, b, c. but proceeded in the body of the brief to rechristian the same issues as number 1,2,3, thus causing a confusion of his issues with the appellants numbered issues which preferred the use of numerals, and maintained the same numbering throughout in the appellants brief. It is important for counsel to maintain in their brief a continues form of identification of their issue to avoid confusion. In this judgment therefore issue C. of the early part of the respondents brief is the same issue the respondent also referred to as issue 3 in the latter part of his brief.

In the respondents issue C or 3 he submitted that the Appellant have admitted the claim of the plaintiff/Respondent, when the defendant appellant admitted the receipt of two lorry loads of fertilizer for which the appellant claimed to have paid the sum of =N=23.400.00. The Respondent said the Appellant in the court below did not specifically deny that he did not receive the 120 tons of fertilizer costing the sum of =N=48.000.00. The respondent submitted that the onus is on the defendant/appellant, as defendant to prove that he did not receive the other 60 tons of fertilizer once the plaintiff/respondent had shown that the respondent sent to Appellant 120 tonnes of fertilizer, and asked;

“is there no irrefutable presumption of law that having conceded to have received 60 tons of fertilizer by agreeing with the evidence of PW2, and as he is not contesting the plaintiffs claim that 120 tonnes is valued at =N=48,000.00. That there has been a clear proof of at least half the sum of money =N=24,000.00.”, and therefore for the balance?”

The question posed by the respondent above on which the respondent assumed proof of the receipt by the Appellant of 120 tonnes of fertilizer at =N=48,000.00 is unknown to our law. Certainly the admission of liability by defendant for half the sum of plaintiff’s claim is not proof of the whole claim by the plaintiff. The rule of proof known to law in a civil claim is proof on a balance of probabilities by the plaintiff. The plaintiff has in the suit the onus probandi see ABIODUN VS. ADERIN (1962) 1 ALL NLR 550. What is the probabilities in this appeal of proof by this claim? It is that the first onus of proof of the claim is on the plaintiff, ABIODUN VS. ADERIN (1962) 1 ALL NLR 550 see section 138 of the Evidence Act. It is upon that first proof that the Defendant needs to respond.

In the instant appeal, the defendant has denied the entire claim; there is therefore no proof of the claim by the plaintiff. Proof of half of the claim by the plaintiff cannot be said to be proof of the whole if the defendant denies any part of the plaintiff’s claim. The onus of proof reverts to the person who will lose if no further evidence is adduced. The plaintiff therefore has the burden of evidential proof. See: ONYEMAH VS. AMAH (1988) 1 NWLR Pt.73, 772.

In the instant case between the plaintiff/Respondent and the Defendant/Appellant, the plaintiff will lose if no further evidence is adduced in court since he desired the claim and took the case to court. There is no onus on the defendant to deny other than to say. “I received 2 lorry loads of fertilizer not 120 tons.” The implication of this is that he did not receive 120 tons of fertilizer, the plaintiff must prove it. As the defendant/appellant has not acknowledged the receipt of 120 tons of fertilizer from the Respondent, there can be no presumption in law, that the Defendant/Appellant had received 120 tonnes of fertilizer claimed by the plaintiff/Respondent. The onus of proof is on the plaintiff/Respondent to establish his claim on a balance of probabilities or fail. In this case he failed.

Generally an appellate court who was not opportuned to see the witnesses does not lightly interfere with issue of facts and substitute the decision of the lower court with his own. See: EBBA VS. OGODO (1984) 1 SCNLR 372.

In the instant case when the decision of the court below was not arrived at by the established rule of evidence, the proper course to take is to review the evidence on the record to arrive at a just decision according to law. On the facts stated in this appeal, the plaintiff in the Upper Area Court who appealed to the High Court against which decision the defendant/appellant has appealed now, the Respondent in this appeal has failed to adduce further evidence, when the appellant, the defendant in Upper Area Court said he received two lorry loads of fertilizer not 120 tons of fertilizer. The respondent now should have failed on the facts and should not have been awarded judgment in the court below and in the court.

In the result the court below was in error of law to assume, and presume the liability of the defendant/appellant only on the basis of the acceptance by the appellant of receipt of 2 lorry loads of fertilizer from the plaintiff/Respondent. It is infact the interpretation of the plaintiff/Respondent that two lorry loads of fertilizer is 60 tonnes, and so half of the 120 lorry of fertilizer claimed by the plaintiff. There was no such evidence before the court. There are clear omissions in the facts of the case, but these cannot now be supplied at the stage on appeal. There is for instance no specific evidence by the Defendant that the 2 lorry loads of fertilizer were supplied to the defendant by the plaintiff at a stated time. The court below failed to consider the issues for the purpose of the law of limitation of action.

On the facts, as they stand in the court below, the appellant in that court and the respondent in this appeal would have lost in the Upper Area Court if no further evidence was adduced and none was adduced and the plaintiff’s claim in the court below should have failed. The plaintiff/Respondent claim for N48,000.00 fails, and this issue is resolved in favour of the appellant.

In sum, the simple answer is yes to the enquiry of the appellant when he asked, “whether the judgment of the learned Justices is against the weight of evidence.” In the face of the rules of proof of fact, as prescribed by the rules of evidence, in the Evidence Act, Cap.112 Laws of the Federation of Nigeria, it is an error of law to hold that an admission by defendant of part or half of a claim of the plaintiff in a civil claim in a court of law is proof of all the claim. Furthermore a claim in special damages such as this must be proved strictly. The plaintiff in the court below who is the respondent in these proceedings on appeal has failed in the court below to prove his claim on a balance of probabilities, his claim should fail. The appeal succeeds.

The court below was in error in law and the judgment of that court delivered on 14/10/1993 is set aside, in its place, the claim of the plaintiff/respondents who was the appellant in the High Court below is dismissed. There will be order as to costs for N3.000.00.

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Other Citations: (2001)LCN/0967(CA)

Major Bukar Alibe (Rtd) V. Alhaji Yaro (2001)

LawGlobal-Hub Lead Judgment Report

C. NZEAKO, J.C.A. 

At the High Court of Justice, Borno State of Nigeria, the appellant herein, was the plaintiff. By a writ of summon filed on 20/3/93, he sought the following relief:

1. N30,000 damages for trespass.
2. An injunction restraining the defendant from further acts of trespass, on plaintiff’s piece of land lying and situate immediately, behind plaintiff’s residential house on No. 24 Waziri Kolo Street, Gamboru Liberty, Maiduguri.

After parties filed and exchanged pleadings and led evidence, the learned trial Judge dismissed the plaintiff’s claim in its entirety.

Dissatisfied, the plaintiff has appealed to this court by notice of appeal upon 2 grounds.

Ground 1: That the decision is against the weight of evidence.

Ground 2: That the learned trial Judge erred in law and misdirected himself on the evidence before him, when he held in his judgment, thus:-

“…I believe the evidence before me, that the owner of the plot Talba sold the plot to both the plaintiff and the defendant. The defendant however bought it in 19/7/1991, by Exhibit ‘C’ whereas, the plaintiff bought it after on 18/3/92. The defendant therefore, was on the plot before the plaintiff.”

Counsel for the parties filed and exchanged briefs of argument. Appellant’s brief was filed on 20/11/96, pursuant to the order of this court of the same date. The respondent’s filed on 7/10/97, pursuant to the order of the court made on 20/1/98 was deemed properly filed and served.

In his brief of argument, learned Counsel for the appellant S.B. Bess Esq., identified the following two issues for determination, said to relate to the two grounds of appeal:

1. Whether or not the learned trial Judge was right in holding that by the evidence before him, the owner of the piece of land sold same to both appellant and respondent?
2. Considering the evidence adduced before the trial court, who between the parties, had a better title to the land as at the time of commencing this action in the High Court?

For the respondent, learned Counsel, M. Monguno Esq., adopted the two issues as framed by the appellant and also urged that the following 2 other issues arise for determination:-

(i) Was there any conclusive and legally admissible evidence before the trial High Court, that the sale of the land in dispute to the respondent was set aside by any court?

(ii) Assuming there was a court order setting aside the sale of the land in dispute to the respondent, can such order be binding on the respondent, and the vendor (Talba Alkali) when they were not joined as parties to the case?

It seems to me that the two issues mutually adopted by the parties will answer the controversy in this appeal. In answering to those issues, the two additional issues being proposed by the respondent will be taken care of. They arise within the argument on the two issues agreed upon, which I adopt for this judgment. The background to this appeal was that, the appellant brought this action claiming damages for trespass and injunction, against the defendant over a piece or parcel of land, which belonged to one, Talba. The appellant claimed that he bought the land from Baba Talba Alkali on 18/3/93. as shown on his receipt admitted in evidence as Exhibit ‘A’. The purchase price was N10,000. The appellant averred in his statement of claim, thus:

Paragraph 8:” The plaintiff further avers that the defendant without any justification unlawfully entered into the piece of land sold to him started to develop it by trying to erect a building on the piece of land.

Paragraph 9: Efforts by the plaintiff to stop the defendant from further acts of trespass on the land, failed as the defendant continued to develop the piece of land.

Paragraph 10: The plaintiff states that, the defendant falsely claimed to be the owner of the same piece of land and claimed to have bought it from one, Bukar Bulama for N11,000.00.

Paragraph 11: The plaintiff avers that the purported sale of the piece of land in dispute by Burkar Bulama to the defendant, Alhaji Yaro, was declared null and void by Lamisula Area Court as that sale, was in contravention of certain Islamic rules, as the court found that there was no valid sale of the piece of land by the original owner, Baba Talba Alkali to the Bukar Bulama.

Paragraph 12: The Plaintiff shall at the trial rely on the judgment of the Lamisula Area Court in Suit No. 268/91 delivered on 11/10/91.

Paragraph 13: An appeal to the Upper Area Court No.2 Maiduguri against the decision of the Lamisula Area Court, was also dismissed and the decision of the trial court affirmed.

Paragraph 14: The plaintiff avers that the entry by the defendant into the piece of land, when he was aware of the nullification of the sale to him was unlawful and is in law an act of trespass into the said piece of land. The plaintiff shall at the trial of this suit, rely on the judgment of Upper Area Court 2 Maiduguri in Suit No. 38/91 delivered on

pleaded.”

The respondent on the other hand pleaded that he had title to the land, which he bought from the owner Talba on 9/7/91 at N11,000.00 as evidenced by Exhibit ‘B’ – Local Government Alienation Permit issued to Baba TaIba, the seller, and him, Yaro as buyer, dated 19/7/91, and Exhibit ‘C’ acknowledging payment of N11,000.00 by the respondent to Talba. In his statement of defence, the respondent also averred as follows:-

Paragraph 6: The defendant denies the averments in paragraph 6 of the statement of claim and pleads that, the said TaIba Alkali did not sell the plot, to the plaintiff for N10,000.00, nor was there any payments as alleged.

Paragraph 7: Further to paragraph six (6) hereof, the defendant avers that the said Talba Alkali sold the plot only to the defendant as per a written sale agreement and upon a permit to alienate the plot numbered 15466 duly issued by the Maiduguri Metropolitan Council, which are hereby pleaded.

Paragraph 8: The defendant in reply to paragraph (7) of the statement of claims avers that, there was no valid sale to the plaintiff and the plaintiff was not in Maiduguri, when the plot was sold to the defendant who is now the lawful, legal and equitable owner of the plot.

Paragraph 9: In answer to paragraph eight (8) and nine (9) of the statement of claim, the defendant denies the allegations of want of justification and unlawful entry, into the plot, but admits the erection of building on the plot, which was after the sale was completed in favour of the defendant. The defendant further denies being put on notice by the plaintiff to stop the development of the plot, except briefly, at the instance of this honourable court.

Paragraph 10: In answer to paragraph ten (10) of the statement of claim, the defendant avers that he bought the Plot from the lawful owner, Talba Alkali (simply referred to sometimes as “Baba Talba”) and not from Bukar Bulama whose role in the transaction, if any was that of an estate agent.

Paragraph 11: In reply to paragraphs 11, 13 and 14 of the statement of claim, the defendant hereby, avers that, he was not a party at all to suit No. 268/91.

Paragraph 12: The defendant further avers that the Plot is situated less than two kilometers from the Shehu of Borno’s Palace, here in Maiduguri, and was developed at the time of the competence of that court to entertain the said suit, will be raised at the trial of this case.

Paragraph 13: The defendant hereby avers that no Islamic rules or the rules of any other law, was contravened in the sale to the defendant and that no title was passed to Bukar Bulama by Baba Talba Alkali as alleged in paragraph 11 of the statement of claim.

Paragraph 14: The defendant in reply to paragraph 15 of the statement of claim hereby, denies the ownership of the plaintiff.”

In the above manner, the respondent put the appellant’s title to the piece of land, in issue. After hearing the parties, the learned trial Judge, gave judgment to the effect that the title of the respondent was better than that of the appellant’s. He dismissed the appellant’s claim. This brought about this appeal. At the hearing of the appeal, learned Counsel for each party, adopted his brief of argument, having nothing more to urge. I will now consider the two issues for determination.

In Issue No.1: parties canvassed the correctness of the finding of the court below that, Talba sold the plot of land in issue to both parties, which the appellant had complained about.

In his judgment the trial Judge stated, thus:-

“I have considered the evidence before me. I have studied the demeanour of all the witnesses, who testified before me. I believe the evidence before me that, the owner of the plot Talba sold the plot to, both the plaintiff and the defendant. The defendant however, bought it in 19/7/1991, by Exhibit ‘C’ whereas, the plaintiff bought it after, on 18/3/1992. The defendant was therefore, on the land before the plaintiff. It is trite law that, the defendant has an earlier and better title. The plaintiff in his evidence said, when he went to inspect the plot, he met the defendant there working and warned him, but the defendant did not heed. I think it was when the plaintiff wanted to buy it and they discovered that the defendant has been there before him, that they decided to go to Lamisula Area Court….”

I have italicized the portion of the judgment which the appellant singled out for complaint. I have set it out within the con in which it was given by reproducing what went immediately before it and after. It must be pointed out that before the above appraisal and findings, the trial Judge had gone to some length to review the case for each party and the testimony of his witnesses. For each party had testified and called two witnesses.

In answering this issue, learned Counsel for each party had, in his brief of argument, put forward argument and legal authorities in support of their respective cases. I will itemize the points made by the appellant in his brief and those by the respondent. I must say that the careful presentation in the respondent’s counsel’s brief in numbered paragraphs has been most helpful.

For the appellant

(I) His grudge “is the conclusion reached by the trial court at page 17 lines 10 – 19 of the records (supra).

(2) It was rightly in my view conceded:-

(i) That the learned trial Judge might have considered the evidence and, studied the demeanour of the witnesses.

(ii) That doing those, is the exclusive preserve of the trial Judge, who had the advantage of seeing and hearing the witnesses.

(3) But the gist of appellant’s main grudge that going by the printed record, and the testimonies recorded by the trial Judge, it was not believable that the owner of the land sold same to both parties.

(4) The law that the party first in time, has a better title applies only where both parties have established by credible evidence, that they bought the same land at different times, not where the respondent led inconsistent and discreditable evidence as against appellant’s simple straight forward evidence, and the owner testified that he sold to the appellant, not to the respondent.

In his view, the evidence of the appellant and his witnesses that the owner, PW3 sold the land to him at N10,000.00, was not contradicted. On the other hand, according to the appellant, this was not the case with the respondent, whose evidence was full of inconsistencies, which he identified on pages 11 lines 6-8 and 25-29 of the records. These inconsistencies, counsel said, show that he did not know who sold the land to him. Appellant took up the testimonies of DW2 and DW3, and tried to discredit them, pointing out that, no reasonable tribunal would believe the respondent’s story, to hold that the land was sold to him, as the trial Judge did.

Counsel for the appellant cited authorities to show that not withstanding the lower court’s advantage of seeing and hearing the witnesses, an appellate court has power to interfere with the finding of fact, which is manifestly illegal or wrong, as in this case. He urged that this court, can reverse the finding that the owner, Talba, sold the land to both parties. He cited these cases in support:- Chukwuocha v. Onuoha (1991) 4 NWLR (Pt. 84) 234 at 241 A- C, Fatoyinbo v. Williams, 19561 FSC 87, Woluchem v Gudi (1981) 5 SC 291; Obodo v. Ogba (1987) 2 NWLR (P.54) 1 per Oputa JSC.

For the respondent, it was submitted that the finding of the trial Judge, that Talba sold to both parties, was right. Learned Counsel M. Monguno Esq argued that:

From the content of Exhibit ‘C’ which was executed on the 4th July, 1991, and Exhibit ‘A’ which was executed on the 18th March, 1992, it was sufficiently clear and unambiguous, that the owner of the land, who testified as PW3 first sold the land to the respondent and that the appellant was not happy about that sale. These the appellant asserted that he challenged the sale in court (i.e the Lamisula Area Court, Maiduguri) which set aside the sale of the land to the respondent, clearing the way for a second sale of the land to the appellant as per Exhibit ‘A’ (see page 8 lines 20-27, page 9 lines 22-31 and page 10 line 6-23).

2. Counsel pointed out that at the trial, the trial Judge granted an adjournment to the appellant to enable him produce before him the judgment of that court, if any, which was said to have set-aside the sale of the land to the respondent, but appellant failed to produce any such judgment or order of court as was alleged to exist and the production of that is mandatory, under section 132(1) of the Evidence Act. In the circumstance, counsel urged, the learned trial Judge was right in holding that, there were two sales and that the first in time prevails.
3. He further contended that since the owner of the land sold the land to the respondent first, title had passed to the respondent as per Exhibit ‘C’. The owner therefore, had become divested of his title and any subsequent sale by him as in Exhibit ‘A’, is a nullity. This is expressed in the maxim “Nemo dat quod non habet” (i.e no one gives, who possesses not or no one may convey what no longer belongs to him) as held by the Supreme Court in the case of Tewogbade v Obadina (1994) 4 NWLR. (Pt. 338) 326 ratio No.1 at Pages: 347-348, which the learned trial Judge followed. Also, Ugbo v Aburime (1994) 8 NWLR (Pt 360) 1 at page 19.

With the foregoing, the case for the parties will now be examined. The complaint of the appellant is against the specific finding of fact, made by the learned trial judge. For those findings, the Judge gave his reason based on what he saw of and heard from the witnesses and the demeanour of those witnesses, who testified before him. This is so, notwithstanding that, the learned trial Judge did so in minimal number of words. The appellant complains that the finding was wrong, having regard to the evidence on record. We are invited to interfere with that finding. Can the Court of Appeal do so? The law applicable is well settled.

The starting point is that, where there has been a proper appraisal of the evidence by the trial court, an appeal court ought not to embark on a fresh appraisal. Also, if the trial court unquestionably evaluates the evidence before it. It is not the business of the Court of Appeal, to substitute its own views for the views of the trial court, so the Supreme Court decided in, Woluchem v Gudi (1981) 5 SC 291, 319 also (1981) NSCC 216 at 229 per Nnamani JSC: Balogun v. Agboola (1974) 10 SC 111; Akinlove & Anor v Eyiyola & Ors. (1968) NMLR 92. As rightly admitted by learned Counsel for the Appellants, the duty to evaluate evidence is one squarely thrust on the trial courts, not on the appellate court except, in the circumstances which the courts have identified and recognized. In Obodo v Ogba & Ors, (1987) 2 NWLR (Pt. 54) 1(1987) 1 All Nig. L.R. (Pt. 1) 157 at 163 and 165, Oputa JSC had this to say:-

“The appellate court would not descend into the arena to usurp the function of the trial Judge in the evaluation and assessment of evidence, unless it is clear that the trial Judge had failed in that particular and peculiar function of his.”

The learned Justice of the Supreme Court identified what he terms, “Principle No. 2,” which is that, it is not the function of the appellate court to disturb the findings of fact of the trial court, unless such findings are shown to be unreasonable or perverse and not a result of a proper exercise of discretion.”

He went on at page 165 of the Report:

“…The authorities on this branch of the law confirm that, there is universal reluctance on the part of the appellate court, to reject a finding on specific facts particularly, where such finding is based on demeanour, bearing or credibility of witnesses, who testified before the trial court” (Italics supplied).

See also Federal Commissioner for Works v. Lababedi (1977) 11-12 SC 15 at 24 per Obaseki JSC. Kuma v. Kuma (1936) 5 WACA 4 at page 9 (A Privy Council decision, MacJaja v. Ibok (1974) 12 WACA 148 at 149 – 5.

To underscore the importance of these principles which may be regarded as sacrosanct, the Supreme Court went further to add in Obodo v Ogha (supra) that where the appellate court is in doubt as to whether the trial court was right or wrong, it was bound to resolve it in favour of the trial court, the point being that, the onus is on the appellant to satisfy the appellate court, that the decision appealed from was wrong. Where doubt exists, then that onus on the appellant has not been discharged.

In another more recent case, the case of Akpan v. Otong (1996) 10 NWLR (Pt 476) 108, the Supreme Court reiterated these principles that, where the findings of fact of a trial court are adequately supported by evidence on record and they were neither established to be perverse nor reached as a result of a wrong approach to the evidence or any principle of substantive law or procedure, an appellate court may not interfere with such findings of fact. See also Enang- v. Adu (1981) 11-12 SC 25 Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.

In the light of these legal authorities, therefore, the starting point in the matter before us is to see if the findings now complained of, are adequately supported by the evidence on records. For this purpose, I will start with the evidence of the plaintiff-appellant and his witnesses, and what the court below made out of it. In doing this,I am guided by another well established principles held to heart by the courts. This is that, in civil cases, it is the plaintiff who must first prove his case and make it strong enough to support his pleadings and any weakness or failure on the part of the defendant, cannot alleviate this primary burden on the plaintiff.

It is observed that in his judgment, the learned trial Judge carefully reviewed the evidence of the witnesses, taking them one by one outlining their testimony before him. Thereafter, he applied what he had been heard and observed including their “demeanour.” There was the documentary evidence tendered by the parties – Exhibit ‘A’ tendered by the appellant as appellant’s receipt or evidence of payment of N10,000.00 and with Talba, as seller, and Exhibits B and C tendered by the respondent being evidence of payment of N11,000.00, also with Talba, as seller. Exhibit ‘A’ shows that the appellant bought from Talba on 18/3/92 and Exhibits B and C, that the respondent bought from Talba earlier, on 19/7/1991. The learned trial Judge also found rightly in my view from the testimony of the appellant, that the respondent was on the land before him. The learned trial Judge said in his judgment at page 17 lines 17-19:

“The plaintiff in his evidence said when he went to inspect the plot, he met the defendant working and warned him but the defendant did not heed.”

Thereafter he added,

“I think it was when the plaintiff wanted to buy it and they discovered that the defendant has been there before him, that they decided to go to Lamisula Area Court….”

It is significant that the appellant did not attack this later part of the judgment, containing the inferences which the learned trial Judge drew from the evidence before him. In other words, the appellant accepted those findings, The findings and those complained of, seem to me to be amply supported by evidence and the testimony of the plaintiff/appellant himself, and his PW2 and 3 and thus, cannot complain. It is recorded at page 8 from line 22 to line 28 of the records, that the plaintiff testified, thus:

“I inspected the land. Similarly, I was aware of the hand writing on it. It was the defendant on the land. I asked my brother to go and find out. He said he bought the land. I asked the defendant to stop developing the land. He did not stop, I went to Lamisula Area Court. I sued the Ward Head and Talba… The sale of the land to the defendant was nullified….”

The above evidence and its sequence, show that the learned trial Judge was not wrong in his findings. It shows that the respondent bought from Talba, and that the respondent was in possession as a result. The ward head was privy to it all. The appellant acknowledged this. For otherwise, why sue Talba and the Ward Head? Why nullify sale to the defendant by suing Talba? At page 9 line 79, the plaintiff said in cross-examination:

“I did not identify who owned the land before paying the N10,000,00.”

PW2 at page 9 lines 16 – 21 said.

“I know the Plaintiff Major Alibe (rtd), we are friends, I know the defendant, Alhaji Yaro. Yaro had a piece of land after his house. He bought it from one, Taiba Alkali. I was there, during the sale. It was sold for N10,000.00 to Major Alibe. Talba gave the plaintiff evidence of purchase. I can recognize the evidence, it was a document.”

What else, one would ask, could anyone make out of what the plaintiff and his witness said, other than what the learned trial Judge found? The underlined part of their oral evidence obviously show that the defendant bought from Talba, and was on the land before the plaintiff bought. Talba was the common denominator between them and for whatever interest, each of them had. Plaintiff in his evidence also said that he, “sued the ward head and Talba” and, “The sale of the land to the defendant was nullified.”

If TaIba did not sell, or was not a privy to the sale to the defendant, why did the plaintiff sue Talba and said so? Even from the evidence of Talba himself and its sequence, the same findings are discernible.

This is so inspite of the lack of coherence which characterized or seems to characterize the testimony of all the witnesses, as recorded. No wonder, the learned trial Judge had to resort to using their “demeanour” to get out of the mess they all created.

Talba testified as follows:

“I know the Plaintiff Major Alibe. I know him in Lamisula Area Court in respect of a plot. I was the owner of the plot. The plot was already sold. The case went to Lamisula Area Court , From there to Upper Area Court II Maiduguri, where they affirmed with Lamisula. I was given the Plot back. I sold it to Major Alibe, the plaintiff at N10,000.00. I wrote him a receipt… I only saw Alhaji Yaro at Area Court. I never knew him. I did not sell the same plot to Alhaji Yaro.”

What meaning and facts did the plaintiff/appellant want the above testimony of his witness Talba to convey? – “The plot was already sold.” To whom? “The case went to Lamisula Area Court” …. Plaintiff sued. Then he said “I was given the plot back.” From who? Obviously the person to whom it was “already sold”. Then, I sold it to Major Alibe the plaintiff…” It is obviously after the case at the Area Court that he sold it a second time, if there was such a case at all, I will return to this later. Yet, Talba also said of Alhaji Yaro, the defendant, “I never knew him. I did not sell the same plot to Alhaji Yaro.” Then to questions in cross-examination Talba went on,

“I sold the land to Major Alibe.I don’t know who bought it before Major Alibe, I was not sued by the Lamisula but was called after the case was over. I was not a party to the appeal.”

Question – what is the truth? It will be recalled, that the plaintiff testified that he sued the ward head and Talba. Clearly, looking at the evidence particularly the italicizing in the testimonies of the plaintiff and his witnesses, someone is not speaking the whole truth. The plaintiff said he sued Talba. Talba said he was not sued but was called after the case. Talba said he did not know who bought the land before the plaintiff, but he had earlier said the land had been sold. After the case at the Area Court, from whom was he given back the land?

The obvious deduction is that Talba with some agent or privy of his, already sold the land to Yaro, the defendant/respondent. Major Alibe wanted the same land, which happened to be behind his house as PW2 stated. Some plan to nullify the sale to Yaro was contrived. Talba then sold it to Alibe, the appellant.

I must say that whether the plan to nullify the earlier sale to the respondent by Talba succeeded, is a matter for another time. For the moment however, from the evidence from the side of the plaintiff, I must say, that the findings of the learned trial Judge that Talba sold to both parties, was inevitable and he was not in error.

I have, in examining the matter, concentrated at this stage, only on the case of the plaintiff and the testimony of his witnesses, at the court below, as ought to be. For, the applicable principles are that the plaintiff must succeed or fail on the strength of his case, and the evidence which he brought to court, any weakness in the defence notwithstanding. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337; Cobblah v. Gbeke (1947) 12 WACA 294 at 295.

I have taken that course to underscore these principles and to set the issue on the correct legal focus. For counsel for the appellant had quite erroneously, in my respectful view, spent considerable part of his submissions on issue N0.1, pointing out the weakness in the respondent’s case. He submitted that the evidence of the appellant was strongly supported by PW2 and Talba, PW3. That is clearly not so with regard to Talba, selling to both parties. He extolled the appellant’s and his witnesses evidence, stating that in contrast was the evidence of the respondent and his witnesses. In particular, he picked on the respondent’s identification of his vendor (see pages 4 and 5 of the appellant’s brief). From what had been stated and found, regarding the evidence of the plaintiff and his witnesses, it does not possess those great virtues attributed to it by learned Counsel. I believe that had learned Counsel for the appellant called up the principles in Kodilinye’s case (supra), he would have realised the futility in his line of argument. For, no matter how manifestly unreliable or weak the case of the defence may be, the plaintiff to succeed in his claim, has the primary function of convincing the court that he has a good case. Whether a defendant adduces or does not adduce any evidence at the trial, that fundamental and primary burden which the law at the onset places on a plaintiff, who wishes to succeed in his claim, remains. Umeojiako v. Ezeanamuo (1990) 1 NWLR (Pt.126) 253 at 272.If we stop this far, the appellant’s evidence and Exhibits A, B and C support the lower court’s findings.

There is appellant’s submission that the law that the party first in time has a better title, applies only where both parties have established by credible evidence, that they bought the same land at different times, not where the respondent led in consistent and discreditable evidence as against the appellant’s simple and straight forward evidence and the owner testified ,that he sold to the appellant not to the respondent.

All that I had earlier stated, have virtually answered this submission. Let me add that all that show also that the evidence of the appellant and his witnesses, has not been that simple and straight forward as he claims. One clear thread ran through and that is that, Talba sold to both parties, to the defendant/respondent first, in 1991, and then, to the plaintiff/appellant in 1992. The equivocations and contradictions in the testimony of the plaintiff and his witnesses were quite obvious too.

As to the evidence of the respondent and his witnesses, learned Counsel for the appellant picked on the respondent’s evidence, as to the name of his vendor, I must say that there are some substances therein. When page 11 of the records is examined, it is observed that the respondent’s vendor was called various names – “Baba Kelea” the respondent said,

“I own the land. I bought it from Baba Kelea. Baba Kelea came with me with a paper in respect of the plot from the metropolitan.”

“Baba Talba Alkali.” He said,

“He is Baba Talba Alkali .

“I know Bulama Mustapha, I know Tela. It was Tela, who sold the land to me not Mustapha. Bulama, is the village head of the area, the custodian of the place. The idea of sale was led to me by Mustapha and Tela. I negotiated with them, before payment to Tela.”

Like the rest of them i.e the plaintiff and his witnesses, no one can miss all that equivocation from the respondent, but, Exhibits A, B, and C show the name of the vendor of the plot to be Talba. The learned trial Judge was therefore, not wrong as the plaintiff sought to daub his findings of fact.

Based on the foregoing, it is my respectful view that, it cannot be said to be “unbelievable” that the owner Talba, sold the plot to both the appellant and the respondent, as was being urged for the appellant. This case does not qualify for the exceptions set out in the various authorities (supra), or those urged on us for the appellant, which would compel us to interfere with the findings of fact, made by the court below. For, watching the demeanour of the parties and their witnesses, seeing and listening to them, he made his findings as the law required him to do.

In my respectful view, the findings are not perverse or unreasonable. I cannot say that they are not the result of proper exercise of judicial discretion or that they are wrong, and the appellant has not satisfied us, that the findings are wrong for they are supported by the evidence on record. In the premises, issue No.1 is answered in the positive in respondent’s favour.

The second and last issue for determination raises the question, who between the appellant and the respondent had a better title as at the time of the action in the trial High Court?

By his pleadings, the defendant had put title to the land in issue. The plaintiff, as a result, had two pronged onus facing him, proving that he was entitled to bring the claim which he initiated, and/or in the process, proving that he had a better title than the defendant.

The learned trial Judge in his judgment had decided thus:

”The defendant was on the plot before the plaintiff. It is trite law that the defendant has at (sic) earlier and better title… The defendant was right to have been on the land. His title is superior to that of the plaintiff.”

It is this part of the judgment that the appellant is challenging. The appellant seems to rely on the purported setting aside of the earlier sale to the respondent by the Lamisula Area Court in his assertion of better title, than the respondent. On the other hand, the respondent has on his side, the date of the sale to him in 1991, earlier in time than the appellant’s. Respondent’s being in possession and appellant’s failure to prove the Area Court proceedings and judgment. I consider it helpful to identify the matters arising under issue No. 2 and counsel’s submission in relation thereto, with important land marks already established from the evidence already on record, while dealing with issue No.1

1. It has already been determined that the learned trial Judge rightly found that Talba the land owner, sold to both the appellant and the respondent, but that the respondent’s title obtained on 19/7/91, as per Exhibits B and C, was earlier in time than the appellant’s which was on 18/3/92 as per his Exhibit ‘A’. The Exhibits speak for themselves.
2. Learned Counsel for the appellant claims the above facts, notwithstanding that he has a better title. Having regard to the above finding, it is difficult to appreciate his reasons, which virtually defeat themselves. His reasons can be summarized as follows:

(i) The evidence of the appellant at page 8 lines 4-9,22-31 shows that it was after the land was sold to the appellant, he saw the respondent on the land and that the respondent was claiming that it was sold to him. That was why he sued the Ward Head and Talba before the Lamisula Area Court.

(ii) The sale of the land to respondent was nullified by the Area Court and an appeal to Upper Area Court was dismissed.

(iii) Although the proceedings were not tendered at the High Court, that was not necessary. For, the respondent was not a party to the suit and the sale of the land having been nullified, appellant was bound to treat him as a trespasser and had a right to do so.

(iv) The respondents hasty development of the land does not help his claim of being the first to buy the land and even if he was the first, he was aware that whatever right he had bought, had been extinguished by the decision of the Area Court.

(v) Even if Exhibit ‘C’ established that the piece of land was sold to the respondent in 1991, that transaction had been validly set aside.

Counsel for the respondent, had rightly pointed out that Exhibit ‘A’ was not stamped, signed or witnessed by the ward head and village head of the area where the land is situate. This is evident on the face of Exhibit ‘A’ itself. There was also no “Maiduguri Metropolitan Council permit to alienate” the land in favour of the appellant as admitted by the appellant at page 9 lines 3-5. It is pointed out that these standard requirements for land transactions were fully complied with in respect of the respondent. His Exhibits ‘B’ and ‘C’ were duly stamped and witnessed by the Ward/village head as shown on their faces. (see also page 11, lines 7-21 of the records). The appellant also did not conduct any search before purportedly buying the land. For, he stated at page 9 line 7:

“I did not identify who owned the land before paying the N10,000.00”. The appellant pleaded and testified before the court that the sale of the land to the respondent was set-aside by the Lamisula Area Court.

It was shown earlier that, the sequence of events as given in appellant’s evidence and his PW3 seem to show that it was consequent upon the purported unproved Area Court decision, that the sale to him ‘by Talba, the owner, took place in 1993. It is clearly not as submitted by his counsel. The respondent was not made a part to the alleged suit at the Area Court. It would appear that Talba Alkali, the owner of the land, as he testified was not a party. This is recorded on page 11 lines 22-25 and 30-31 of the record of proceedings. The appellant said Talba was a party to the suit. Yet, Talba said he was not. See page 10 lines 15-20. The record of the alleged proceedings and judgment of the Lamisula Area Court which the appellant’s counsel submitted and as claimed by the appellant, had set aside the sale of the land to the respondent, was not tendered in evidence by the appellant. The appellant in his brief submitted that it was not necessary to tender it because, the respondent was not a party to that suit. Yet, he heavily relied on it both in his pleadings, brief before us and in his evidence in court.

The respondent on the other hand had insisted that no court validly set aside the sale of the land to him by Talba. For, neither himself nor Talba, was a party to any suit at the Area Court. As learned Counsel for the respondent rightly pointed out, at the trial, the appellant’s counsel was granted an adjournment to enable him produce and tender the record of judgment. This is correct and it was at his request as shown at page 10 lines 24-25 of the records. He never produced it. The respondent was in possession of the lands. Both parties testified to this. The appellant was never in possession.

The law is quite clear on these issues raised by the parties. To maintain an action in trespass, a plaintiff must have a present possessory title Will v. Will 5 NLR 76; Wallis v. Hands (1893) 2 ch, 759 Renner v. Daboh 2 WACA 250.

A defendant who is legally in possession, cannot be sued in trespass – Olawole v. Oyewale (195556) WRNLR 41. In Amakor v. Obiefuna (1974) 3 SC 67 at 75, the Supreme Court held that trespass to land is actionable by the person in possession of the land. That person can sue in trespass even if he is neither the owner, nor a privy or agent of the owner. See also Olowolagba v. Bakare (1998) 3 NWLR (Pt. 543) 528.

If it is alleged that someone in possession of land is a trespasser, the person so alleging has an onus of showing that he has a better right to possession, which was disturbed. Unless that onus is discharged, the person so alleging cannot defeat the rival party. In effect, a plaintiff who is, not in possession can defeat the defendant who is, if he can prove a better title to the land than the defendant. See Ude v. Chimbo (1998) 12 NWLR (Pt.S77) 169 SC; Amakor v. Obiefuna (supra).

The foregoing underscores the onus on the appellant in the face of the respondent’s possession of the piece and parcel of land in dispute. Also acts of possession and enjoyment of land such as the respondent showed may be regarded as evidence of ownership or of right of occupancy of the piece of land in issue. See section 46, of the Evidence Act and Okechukwu v. Okafor (1961) 2 SCNLR 369, (1961) 1 All NLR 68S, SC.

Therefore, prima facie, the respondent who had been in possession and developed the land, would be deemed to be the owner. The opposite party has the onus to rebut that and the party here is the appellant. In the present case, has the appellant who is not in possession rebutted that, and proved a better title? I think not.

The appellant who has not been in possession seems to appreciate that he has to prove better title than the respondent who has been in possession, his ploy was this story about a suit in Lamisula Area Court which he said nullified the sale to the respondent. If indeed, there was such a suit and sale was lawfully nullified and the appellant duly purchased the piece and parcel of land from Talba, the owner, his title would be genuine.

As things stand, the appellant did not prove the existence of that case. Neither the proceedings, judgment or order made there under was tendered at the trial and the learned trial Judge said so and made findings of fact based on this and other evidence before him. He could not apply any information about that case, which was not proved for reasons which I will address later.

Under the first issue, it had been determined that the appellant and the respondent derived their interest from Talba who sold to both of them, but that the respondent who bought his in July 1991, had better title than the appellant whose was in March, 1992. The principle of law has, always been that where two competing parties trace their title to a common grantor, the later in time must give way to the earlier one and he cannot maintain an action against the one who first obtained title or interest in the property. Tewogbade v. Obadina (1994) 4 NWLR (Pt. 338) 326 at 347-348 where Iguh, JSC succinctly explained the rationale of the principles thus:

“The reason is obvious as a grantor having successfully divested himself of his title in respect of the disputed piece or parcel of land by the first grant would have nothing left to convey to a subsequent purchaser under the elementary principle of “Nemo dat quod non habet,” as no one may convey what no longer belongs to him: Boulos v. Odunsi (1958) WRLR 169; Coker v. Animashaun 1960 LLR 71; Adams Akeya v. Chief Suenu (1925) 6 NLR 87 and Egbuche v. Chief Idigo 11 NLR 140 were all cited with approval.”

In the light of this, the respondent’s right is supported by the law. This would have disposed of this issue, but for the appellant’s other point. As to the submission for the appellant that the sale of the land had been nullified by the Area Court and an appeal to the Upper Area Court was dismissed, there was no evidence tendered at the lower court and we saw none in the records, to establish the existence of any such proceedings, the judgment, the parties or what the suit was about. Oral evidence is inadmissible. It is trite law that proceedings and judgments of courts of law are proveable by the production of the documents or duly certified copies thereof. See sections 132(1),96 and 97 of the Evidence Act.

Thus, every piece of evidence concerning the purported Area Court proceedings must be expunged from the records. Why did the appellant not produce and tender them? The inference which the law permits could be rightly drawn, is that he withheld them because they would have been unfavourable to his case. See Section 149(d) of the Evidence Act. See also Tewogbade v.Akande & Co. (1968) NMLR 404.

Failure to produce the proceedings is fatal to his case. His reason set out in his brief (supra) for not producing them, is to say the least only an attempt at drawing red herring over people’s eyes and it cannot avail him, Learned Counsel for the respondent, rightly submitted that the respondent’s acts of possession coupled with Exhibit ‘c’ gave him better title. He cited the case of Umeojiako v. Ezenamuo (1990) 1 NWLR (Pt. 126) 253 at 272.

One important question in this matter is this, did the appellant establish the facts necessary to prove the actual case which he brought to the court below? The authorities earlier cited, the evidence, and the decision earlier reached herein, show that he did not. When his title became an issue as a result of the respondent’s pleadings, in which he asserted his interest in the piece of land, one would have thought that the appellant would have proceeded to lead authentic evidence to prove his own title and one better than the respondent’s. This, he also failed to do and his claim must fail. See Amako v. Obiefuna (1974) 3 SC 67 at 78 per Fatayi Williams JSC.

It is in the light of this, I would answer issue No. 2 in favour of the respondent, who undoubtedly had a better title than the appellant, when the suit was commenced in the court below. This appeal is indeed without merit. As the two issues for determination have been decided against the appellant so have his two grounds of appeal failed. The appeal must therefore, be dismissed and it is hereby dismissed. The judgment of Adefila, J. of the High Court of Justice, Borno State, dismissing the appellant’s suit, delivered on 23/2/95 is affirmed.

There will be N5,000.00 costs in favour of the respondent against the appellant.

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Other Citations: (2001)LCN/0966(CA)

Hycin Sun Hydraulic Machinery (Nig.) Ltd. V. Ringim Galadanci (Nig.) Ltd. (2001)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE J.C.A.

The issues formulated for determination in this appeal are averred by the appellant to have been made from eight original grounds of appeal contained in the notice of appeal filed on 17th day November, 1998, and the four additional grounds of appeal, which with the leave of court the appellant filed on 26/7/99.

The issues are as follows:

(1) Whether the learned trial judge did raise and determine crucial issues not borne out by the evidence on which the parties did not raise or have opportunity to address him on.

(2) Whether the affidavit in support of the appellants notice of intention to defend did not raise a good defence or triable issues.

(3) Whether the trial court had jurisdiction to hear the case on the undefended list.

The three issues are formulated from the thirteen grounds of appeal filed by the appellant against the ground of appeal filed. The respondent filed a notice of preliminary objection and proceeded to argue the grounds in his respondents brief of argument. Notice of the preliminary objection was filed under order 3, rule 15 of the court of appeal rules. In the respondents brief filed by leave of court, and deemed filed on 5th October, 2000, the respondent took objection to ground 13 of the additional ground of appeal, and submitted that the said ground which raised the issue of jurisdiction of the court below on the subject matter was not canvassed by the parties at the lower court.

He said the issue was not determined at the lower court, therefore the court of appeal cannot determine the issue because it does not flow from the decision of the lower court. Respondent submitted that any complaint raised in the ground of appeal which does not derive from the issues canvassed by the parties and the same pronounced upon, by the lower court amounts to raising a fresh point on appeal without the leave of court. Ground 13 of the appeal. Respondent submitted. should be discountenanced and struck out. Secondly the Respondent submitted that the said appellants ground 13, is incompetent as it is in breach of order 3 rule 2 of the court of appeals rules, in that the allegation contained therein is vague and general in terms. He urged the court to strike it out.

On the third objection, the Respondent submitted that grounds 2-12 of the grounds of appeal are incompetent as they offend the provisions of order 3, rule 2 (2) of the Court of Appeal rules. Respondent submitted that the allegations of error in each of the grounds 2-12, do not show a quotation of the record where the alleged error is contained. Respondent referred to AMOJAINI VS. EGUEGU (1996) NWLR pt.242. and urged the court to strike out grounds 2-12 of the grounds of appeal.

On the 4th ground of objection the respondent observed that the questions were not formulated by the appellant to cover grounds 1, 2, 5, 6, 7, 8, 9, 10, 11 and 12.

In particular the Respondent submitted that the issues were not formulated on ground 11 and 12, and where these occur the grounds are deemed to be abandoned. Respondent urged the court to hold those grounds abandoned and strike out same.

It is therefore the submission of the Respondent that the appellant has abandoned grounds 1, 2, 5, 6, 7, 8, 9, 10, 11 and 12 of the grounds of appeal consequently respondent declared that he cannot formulate any issue on the abandoned ground of appeal. The respondent formulated issues on grounds 3 and 4 only of the grounds of appeal, which combined Respondent recorded as follows:-

“Whether having regard to the entire circumstances of the affidavit evidence and numerous documents annexed thereto as exhibits, the learned trial judge was justified to have entered judgment in favour of the Respondent.”

In the appellant reply brief, the appellant submitted that ground 13, in the notice of appeal raised an issue of jurisdiction, and it was filed without a previous leave of the court because the ground of jurisdiction may be raised at any stage of the proceedings even on appeal.

The appellant cited MAKINDE vs. OJEYINKA (1997)4 NWLR (Pt.497) 80. Appellant said the learned trial judge lacked jurisdiction to hear the case on the undefended list since the plaintiff did not first seek and obtain the order of the court to place and hear the same on the undefended list. Appellant submitted that a ground of appeal need not supply particulars if the words are properly couched and the ground criticize the judgement and it is self explanatory. Ground 13 is therefore in his submission valid and competent.

On the second issue of respondents ground of objection on the grounds in the notice of appeal. number 2-12, the appellant submitted that particulars in the form of narratives were supplied to each of the ground of appeal 2-8 and 10-12 as required under rule 2 of the court of Appeal rules. The appellant acknowledged the fact that he has abandoned grounds of appeal No.9 and 11 and applied to abandon the said ground as he acknowledged. That he has not formulated issues on the grounds of appeal on ground 9 and 11.

The appellant in his reply to the Respondent objection to the ground submitted that his grounds 1, 2, 4, 5, 8, 10 complain in all the issues that the learned trial judge suo motu raised and ruled on issues which was not in dispute between the parties and which did not arise at the hearing, and that it was on these grounds that he has formulated the issues. In considering the preliminary objection of the Respondent on ground 13 of the grounds of appeal. which the appellant said can be raised at any stage of the proceedings, it is instructive to quote here verbatim ground 13 of the appellant notice of appeal on which the issue was founded. Ground 13 is contained in the notice of additional ground of appeal filed with the leave of court on 26/7/99, it reads:

“The learned trial judge lacked jurisdiction to hear the case on the undefended list since the plaintiff did not first seek and obtain the leave of court to place and hear same on the undefended list.”

On the ground, the appellant has formulated the issue as follows in his brief.

“Whether the trial court had jurisdiction to hear the case on the undefended list.

I find nothing, vague in the issue formulated on the ground of appeal 13 which has stated clearly that the leave of court was not obtained as required under order 23 of the Civil Procedure Court of Kana State. If as glaring in the issue on which ground 13 is based that indeed the prior leave of court was not obtained before an undefended list procedure is commenced, the issue has raised the complaint of lack of jurisdiction of the trial court for non compliance with the rules of court. A complaint of lack of jurisdiction may be raised at any stage of proceedings, even in the apex court and no leave of court is required before an issue of jurisdiction may be raised. See: ALHAJI OLOYEDE ISHOLA vs. MEKUDE AJIBOYE (1994) 6 NWLR (Pt.352) per IGUH JSC. in par F.U. P.589.

I am of the view and I so rule that the said issue 3 in the appellant brief is well derived from ground 13 filed by the appellant. See: UGBUCHOLEK HADUEMERE & 2 ORS. vs. OLE OKAFOR & 4 ORS. (1996) 4 NWLR (Pt.445) at 644.

In the event. I overrule the objection of the Respondent on ground 13 of the notice of appeal, upon which issue 3 of the appellant’s issue for determination is founded. I hold and rule that issue 3 in the appellants brief is competent and properly before the court.

The Respondent alleged that grounds 1-12 of the appellants ground of appeal are incompetent grounds because each of the grounds filed by the appellant which allege error of the trial court does not contain the particulars of the error. The Respondent submits offends order 3 rule 2 (2) of court of Appeal rule 1981. Starting from ground one in the notice of appeal as contained on page 40 of the notice of appeal, in the printed record, the appellant has subscribed that “the decision of the court is against the weight of affidavit evidence adduced in the proceedings.”

Ground 2 the learned trial judge erroneously held that the parties did not arrive at a consensus ad idem on the supply of a new machine (as opposed to a second hand one) and the price of the said new machine. Ground 3 of the appellants notice of appeal continued on the facts before the trial court as supplied by affidavit evidence in grounds 3, 4, 3, 6, 4, 3, 8. In each of the ground the appellant supplied narratives which show intelligible appreciation of the fact in issue and attack the judgment of the court below. These constitute the facts and particulars of the ground of appeal 1, 2, 3, upon which issue one is formulated as to whether the court raised issue on which no evidence exists. All the grounds 1-3 over 4, in my view relate and are the foundation of issue one. What is required in order 3, rule 2 (2) is that the issue founded on the ground is intelligible and show dissatisfaction with the judgment by its attack. See: EGBE vs. ALHAJI (1990) 1 NWLR Pt. 546 at 590.

The narration supplied as particulars to show the alleged error in the ground of appeal, (where as in this case, a narration of the event, rather than the quotation of the event of the error) is sufficient to give the nature of the error. While the rule is clear as provided in the rules of order 3 rule 2 sub rule 2, that the passage in the judgment where the error is alleged should be quoted, I am of the view that the concern of the rule is the identification to the appellate court of the nature of the error of the court below. Where therefore as in the instant case precise words the trial court in the judgment cannot be quoted without an explanation, it is profitable to narrate as the particulars, the event which identifies the nature of the error.

This is what the appellant has done in ground 1-12 of his appeal, and I allow it as competent.

I hold and rule that the said grounds 1, 2, 3, 4, 5, 6, 7, 8, 10 and 12 are competent and that issues 1 and 2 in the appellants brief derive from the said grounds. The Appellant has conceeded that no issues are formulated on grounds 9 and 11. The two grounds are by law deemed abandoned. See: PHILIP OBIORA vs. PAUL OSELE (1998) 1 NWLR (Pt.97) at p.279.

In the expectation that the appellants grounds 1, 2, 5, 6, 7, 8, 9, 10 and 12 will be struck out because of the submissions of the Respondent, he did not formulate issues on the said grounds, and the respondent said the said grounds are deemed abandoned.

The Respondent therefore formulated issues on grounds of appeal 3 and 4 only. In the submission of the Respondent, the only issue for determination is:

“Whether having regard to the entire circumstances of the case, the affidavit evidence and numerous documents annexed thereto as exhibits the learned trial judge was justified to have entered judgment in favour of the Respondent.”

It is hereby relevant to reproduce the issues formulated by the appellant.

I quote the issues here in reverse order. I quote issue 3 first:

“Whether the trial court had jurisdiction to hear the case on the undefended list.

(2) “Whether the affidavit in support of the appellants notice of intention to defend did not raise a good defence.”

(3) Whether the learned trial judge did raise and determine issues not borne out by the evidence on which parties did not raise or have opportunity to address him on.”

On issue 3, the complaint of absence of jurisdiction is a fundamental issue. It is settled law that any decision made by a court which has no jurisdiction is a nullity. See: MADUKOLU VB. NKEMDILIM (1962)1 ALL NLR. 587 at 595. In EJIKE vs. IFEADI (1990)4 NWLR (Pt.142)89 CA. jurisdiction of a court is described as the power or authority of the court to adjudicate on a particular matter.

The Appellant has complained in issue three of the appellant’s brief that the court has no jurisdiction to adjudicate on the plaintiffs claim under the undefended list procedure by reason of the fact that the Respondent failed to seek and obtain the leave of court before the claim was placed under the undefended list procedure. To ascertain this I quote hereunder the relevant provisions of “order 23. the undefended list” of the Kano State Civil Procedure rule:

“Where an application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidate money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based, and stating that in the deponents belief there is no defence thereto, the court shall if satisfied that there is no defence thereto enter the suit for hearing in what shall be called the “undefended list”, and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.”

2. There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summon as aforesaid as many copies of the above mentioned affidavit as there are parties against whom relief is sought” etc. etc.”

In his issue for determination three, the appellant has submitted that the plaintiff on his own, without an order of court placed the writ on the undefended list, and that the court was in error of the law on order 23 of the rules to have heard the matter so solely placed, without regard to the rules, whereas the rules of the court should be obeyed. The court therefore has no jurisdiction to hear the claim. The Respondent is deemed to know the implication of the appellants complaint, and should have responded to the complaint by a denial or proof that the rule of order 23 Kano Civil Procedure rules was not breached. Respondent did not. What the respondent did was to raise a preliminary objection to the ground upon which the issue is based, in the hope that the issue will fail when the ground is struck out, as believed by the Respondent. The ground of appeal raises the issue of jurisdiction. As I have written earlier in this judgment, a complaint of lack of jurisdiction may be made at any stage of the proceedings. The ground of appeal raised for the first time in this appeal is valid and competent and the issue founded on the ground is properly before the court. I have seen nowhere in the Respondents brief where he has responded directly to the complaint of the Appellant. The printed record does not show that the leave of the court to place the plaintiff claim on undefended list as required by the rules was ever given. The rules of court must be complied with. Failure to comply will deny the party the facility of the court of law.

The failure to observe the rule clearly removes from the court below in Kana Court the jurisdiction of potence to hear the claim under the undefended list; for non compliance with the rules of court.

In the event I agree with the submission of the appellant that the learned trial judge did not possess the jurisdiction to hear the plaintiff/Respondents claim on the undefended list procedure. This my view is sufficient ground to allow the appeal, and strike out the plaintiff claim in the court below.

In case the respondent should feel that the other issue of his would have been successful I hereby for the avoidance of doubt decide to rule on the other issues of Appellant and of the Respondent. I therefore choose to consider and rule on the other two issues formulated by the appellant. Incidentally the two issues of the appellant meet in substance the one issue formulated by the Respondent, who asked;

“Whether having regard to the entire circumstances of the case, the affidavit evidence and numerous documents annexed thereto as exhibits, the learned trial judge was justified to have entered judgment in favour of the Respondent.

The submission of the Respondent on the issue above is that the affidavit of intention to defend the suit does not show a defence on the merit. The appellant however formulated in issue 2. as follows:

“Whether the affidavit in support of the appellant notice of intention to defend did not raise a good defence or triable issue.”

To consider and determine the two opposing submissions of both counsel it is necessary to go into the substance of the affidavit of both parties before the court. It is also an opportunity to state the facts of the case. In the court below the Respondent was the plaintiff, who filed an affidavit of 5 paragraphs in which he deposed that he deposited with the defendant who is appellant, the sum of N2 million for a brand new extruding machine in the month of June, 1998 and the money, the deponent deposed was to assure the appellant of the Respondent’s seriousness. He deposed that there was no written or binding agreement to deliver the machine to the Respondent. When the plaintiff considered that there was an undue delay in delivering the machine, and the defendant refused to refund the said sum of N2 million he filed a suit purportedly under the undefended list procedure for the refund from the Respondent, then defendant or for the recovery of the said sum of N2 million. The appellant (defendant in the court below filed a notice of intention to defend the action supported by an affidavit. The action of the plaintiff in the court below was against first and second defendants. In his affidavit of intention to defend, the 2nd defendant, now appellant one Mr. Lee deposed that he is an official of the 1st defendant/appellant and cannot be made liable. That the machine ordered by the plaintiff/Respondent was shipped from Korea between 27/08/98, and 09/09/98 within the 90 days agreed between the parties and he deposed that defendants are not liable for undue delay. The plaintiff respondent said the defendant have delayed. The Defendants do not deny that they issued exhibit B1 and B2, but the Respondent/plaintiff say the document are proforma, and do not amount to an agreement between the parties to supply new extruding machine. Exhibit B1, is said to refer to a second hand machine, while B2 does not, the plaintiff deposed and referred to any machine, the plaintiff also deposed that the defendant had allowed the 90 days to supply to elapse, upon which reason, the plaintiff sought a refund from the defendant the sum of N2 million under the undefended list procedure which was filed in court on 26th October, 1998. From the above facts, the questions formulated in the appellants and respondents brief can be answered in this manner. The appellant has made the complaint that his affidavit shows a triable issues and an intention to defend, despite of which the court refused to place the plaintiffs suit on the general cause list for trial and determination. Whereas the plaintiff/respondent said the evidence in his affidavit is sufficient to determine the issue, and grant judgment to him as was done by the trial court.

The main determinant in the hearing and determination of a suit under the undefended list procedure is the exhibition in the affidavit of the Respondent a triable issue. If a triable issue is shown by the defendant, then the claim will be sent to the general cause list for hearing and determination. If there is no issue to be tried and the affidavit does not show any defence to the plaintiff’s claim for example because there is a certain debt owing by the defendant to the plaintiff, a claim to which the defendant has no defence, then the claim will be properly determined under the undefended list procedure. A triable issue has been described as one which imports an argument in which the defendant has a genuine contest to the plaintiff’s claim. Such matters are properly tried when placed on the general cause list, not determined on the undefended list procedure of order 23, Kano State Court Procedure rules. In the instant case, the defendant appellant does not deny the receipt of the sum of N2 million Naira from the plaintiff/Respondent. The plaintiff agreed with the defendant that the money was for either a deposit, or part payment for the purchase of a new extruding machine. (not an old one as ruled by the court below) See the writ of summons, it is for a claim for refund of money deposited for a brand new extruding machine page 3 of the printed record. The parties do not agree that the time of delivery of the machine of 90 days have elapsed, see the plaintiff and the defendant affidavits.

It is pertinent to observe that it is upon the expiration of the 90 days that the sum paid by the plaintiff/Respondent, whether as a deposit or as part payment will the sum become refundable. The parties are not agreed as to whether the sum paid by the plaintiff to the defendant was a part payment for the brand new extruding machine or as a deposit for the machine. The parties are not agreed on whether an agreement exists between themselves or whether the plaintiff or the defendant made an offer to treat. In my view there are more issues in the transaction on which the parties do not agree than the issues on which they agree. For a better determination of the facts in dispute between the plaintiff/Respondent and the defendant/appellant, it should in my respectful opinion have been better to send the matter to a general cause list. Since the two sets of affidavits are in deliberate opposition to each other. In answer first to the respondents tone issue viz: whether in the circumstances of the case, the learned trial judge was justified to have entered judgment in favour of the Respondent. I will answer that the facts contained in the affidavit of the Respondent, and the averments contained in the Appellants affidavit do not support the decision to try and conclude the case on the undefended list procedure. Instead the arguments and disagreement on the face of the affidavit of intention to defend show that the claim is better resolved at a trial where each side can ventilate his claim and defence. In the event. I rule that the appellant has shown in his affidavit a strong ground for defence, and the defendant should have been allowed to present the defence in a hearing in the general cause list. The issue is resolved in favour of the Appellant.

In issue one in the appellants brief, the appellant complained that the learned trial judge raised and determined issues not borne out by evidence, or one which the parties did not have opportunity to address him on. In a hearing under the undefended list procedure the right of the parties to address the court does not exist. Under the undefended list procedure, even where the court finds that he can resolve issues on the affidavit. Once the resolutions requires that he will take evidence. He must send the matter to the general cause list, as he cannot dispence with the evidence See: (1) ANGRO MILLERS LTD. vs. C.M.D. (1997) 1 NWLR Pt.525 at 77 par. E-11 (11) DANIEL vs. SONIADI NIG. LTD. (1997) 7 NWLR Pt.514, 673 CA.

In this case, the trial judge decided suo motu that the sum of N2 million from the plaintiff to the defendant was for a second hand extruding machine. No such evidence existed before the court because the parties have agreed on a new machine. The learned trial judge also concluded that the plaintiff did not accept the price quoted by the defendant for the brand new extruding machine. This is untrue.

Infact in the affidavit of the Defendant/Appellant he deposed that he accepted the price contained in the proforma which he handed over to the plaintiff/Respondent before the order for a brand new extruding machine was made. The conclusions recorded above were made in the judgment of the learned trial judge, and they are conclusions not derived from the evidence of the plaintiff and defendant. No opportunity was given by the court to the litigants before him to address the court on those issues. It is evident that the trial judge has formulated evidence on which he ruled and thereby made himself a party to the hearing, and a judge in his own cause. This is against the rule of natural justice.

It is trite that a court of law should limit itself to issues raised before him and not go into issues not canvassed by the parties. ALLIED BANK VS. AKUBEZE (1976) 6 NWLR Pt.509-374 SC. See also LADIPO VS. AFANI (1997) 8 NWLR Pt.517 356.

In the event, the judgment of the court below cannot be said to be free of perversion and the said judgment should be set aside. I hereby so order. The Respondent did not profer any response on the above issue. I accept the submission made by the appellant on issue one and resolve same against the respondent. I find merit in the appeal and hereby set aside the judgment of the court below. In my view the real issues in the claim of the respondent have not been determined. I direct that the claim be placed on the general cause list before another judge in the state. In any case the trial judge in the court below, has deprived himself of jurisdiction when he failed to order that the undefended claim filed be so placed because no such application was made by the Respondent. The issue of jurisdiction can be raised at any stage of the proceedings. It was properly raised in this appeal. See: IGBONGIDI vs. UHELO (1993) 9 SCNJ. 258 at 263.

The appeal is allowed. The judgment of the court below is set aside. There will be costs of N3,000.00 to the Appellant.

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Other Citations: (2001)LCN/0965(CA)

Egevafo Ekpeto & Ors V. Ikono Wanogho & Ors (2001)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

The applicants brought this motion pursuant to section 16 Court of Appeal Act; section 33 of the Constitution of the Federal Republic of Nigeria 1999 and the inherent jurisdiction of this Honourable Court praying for the following relief namely:-

“An order restoring/relisting this appeal No. CA/B/109/99 struck out/dismissed on 10/2/2000 for lack of diligent prosecution.”

The grounds upon which the application has been brought are:

1. The order was made in the absence of the appellants.
2. As at the time the order was pronounced the appellants’ brief of argument and motion for extension of time had been filed.

The motion is supported by a 21-paragraph affidavit and 5 annexures marked Exhibits A, B, C, D and E. The application was opposed. To this end, Mr. Peter Oniovwiona Wanogho, the principal partner in the Law firm of P. O. Wanogho and Associates deposed to a 16-paragraph counter-affidavit. This prompted Mr. A. O. Giwa learned counsel for the applicants to depose to another 7 paragraphs reply to the Counter-affidavit. Paragraphs 4, 5a, 5b, 6a, 6b, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the affidavit in support contain the following averments:-

“4 That on 10/2/2000, I got to the Court of Appeal Benin, before the Court sat.

5(a) That I wrote my name on the attendance register for members of the bar.

5(b) Indeed, I wrote it twice because I was appearing in two matters that day i.e. this appeal listed as No.4 and CA/B/247/98 which was listed as No. 13. A copy of the register of the court on which Counsel were requested to put down their names is annexed herewith and marked Exhibit “A”.

6. That thereafter, I went to the Registry of the court within the precincts of the Court and delivered two processes to the Assistant Chief Registrar of the court in charge of filing processes for filling i.e.

(a) Motion in this case for extension of time within which to file the appellants brief and to deem the brief attached as duly filed (15 copies).

(b) Twenty-one copies of the brief of argument itself.

7. The Assistant Chief Registrar, Mr. A. K. Lawal, took the processes from me and initiated them well before the Court started to sit.
8. That thereafter I carried the processes to the cashier and paid for them. The front pages of the motion is annexed herewith as Exhibit “B” and the brief as Exhibit “C” while the receipt is Exhibit “D”.
9. That while the cashier was endorsing the processes. I came back to the open court. The court had still not sat. I looked out for Counsel for the respondent Mr. P. O. Wanogho but he was outside the court room and standing by the car park.
10. That I went to the car park and inform Mr. Wanogho who is also a member of the respondent family, that I was filing a motion for extension of time and the brief and I asked him what to do in the circumstance with his motion to dismiss the appeal for want of diligent prosecution. He informed me that he would ask for an adjournment to enable him study whatever I had filed. At this point, court was announced to our hearing and it convened.
11. I then left for the cashier’s cubicle/office and collected the endorsed copies to Mr. Lawal who signed same and gave five copies to the messenger to take to the open court.
12. He gave me two copies after I signed that I was going to serve. The messenger took the five copies to the court in the company of one of the appellants, Chief Joshua E. Ozero though not a named appellant but one of those represented.
13. That I endorsed the original which was with the Registrar to the effect that I would serve the respondents, thereafter, I noticed that the cashier omitted to endorse one of the two I had. Thinking that my case being No.4 on the cause list, it would not have reached my turn so soon, I stopped by the cashier’s desk for her to endorse the omitted ones.
14. Meanwhile, the messenger had long sent the five copies to the court room and handed them over to Alhaji Bako and the Judges support staff/clerks.
15. That I then rushed into the court myself. At the stage I got into the court, I met that the court was already writing the ruling dismissing the appeal for failing to file the brief.
16. That I immediately enquired from Mr. Wanogho (Counsel for the respondent), what transpired in my absence and he told me the case was called and that he informed the court that I was filing papers in the Registry. He did not tell me then that he had moved his motion to dismiss the appeal. It was later at Oleh High Court he told me that when he told the court that I was filling papers in the registry, the court asked him if he was also appearing for my clients, the appellants. He was left with no option according to him but to move his motion briefly in terms of the motion paper.
17. That I apologised to the court profusely for coming late into court and sought to explain that I had already filed a motion for extension of time and the appellants’ brief.
18. That thereafter, I waited till the court rose and applied for a record of proceedings and the order which are annexed herewith and marked as Exhibit E.
19. That I filed the motion and the brief before the court sat and before the case was called and before the order was written and/or read out and pronounced, but the brief and motion were not in their Lordship’ files”.

In opposing the application the respondents’ Counsel averred in paragraphs 5, 6(a), 6(b), 7, 8, 9, 10, 11, 12 and 13 of the 16 paragraph counter-affidavit as follows:-

“5. That in further answer to paragraph 10 of the supporting affidavit that is vehemently denied, I hereby state that on 10/2/2000, it was the motion to dismiss the appeal dated 29/6/99 but filed on 30/6/99 that was listed for hearing in the cause list of this honourable court. It is true that the deponent to the affidavit met me and informed me that he intended to file a motion for extension of time within which to file the brief in this appeal, within the precinct of this Honourable Court before the court sat on 10/2/2000 and he, deponent informed me that he would ask for adjournment. There was no time, I informed the deponent that I will apply for adjournment when my motion was listed for hearing without a counter-affidavit or motion for extension of time.

6(a) That in further reply to paragraph 16 of the affidavit in support of the motion which is vehemently denied, I hereby state that as at 10.47 a.m. on 10/2/2000 when neither the deponent nor his clients were present in court, this honourable court allowed me to move the motion filed on 30/6/2000. As at the time the deponent entered the court hall, this honourable court had already completed writing the ruling and was only considering the issue of cost. The deponent neither showed the motion he purportedly filed on 10/2/2000 that was not in the court file to the court nor to myself. I did not at any time discuss with the deponent when the proceedings were on in court on 10/2/2000 and/or thereafter.

(b) That after on 10/2/2000, at the premises of the Oleh High Court, the deponent who is senior to me at the bar met me and was bullying me that why should I move my motion on 10/2/2000 without telling the Court that he was around but I told the deponent that the court allowed me to move the motion since I cannot represent my clients and the deponent’s clients in one suit.

7. That in further answer to paragraph 17 of the affidavit in support of the motion, I hereby state that the deponent did not show any motion to this honourable court before this honourable court delivered its ruling of 10/2/2000. The deponent only explained to court that he was in the court registry filing process after the court had delivered its ruling of 10/2/2000
8. That in further answer to paragraph 19 of the supporting affidavit that is denied, I hereby state that the deponent did not file any motion before the court sat on 10/2/2000. The deponent was in the registry filing the motion as at the time the court was sitting hence the deponent was not in court.
9. That in further answer to paragraphs 20 and 21 of the supporting affidavit, I hereby state that there is no evidence before the court on 10/2/2000 or thereafter to show that the surviving 3rd appellant was ill any time. The application is brought in bad faith.
10. That the appellants/applicants have never been diligent in pursuing their appeal. The judgment on appeal was delivered on 7/6/94 and the applicant did nothing to transmit the records of appeal from the lower court to this honourable court until March, 1999 (a period of five(5) years).
11. That after the transmission of the records of appeal from the lower court to this honourable court the applicants did nothing after the expiration of the statutory period allowed the applicants by Rules of this honourable court within which to file the appellant’s brief of argument. That on 30/6/99, the respondents filed a motion to dismiss the suit.
12. That on 17/8/99, the applicants filed a motion asking for three (3) reliefs including extension of time within which to “file the appellants brief in line with amended grounds of appeal”. The motion that was originally fixed for 27/10/99 was granted on 25/11/99 and the motion filed on 30/6/99 to strike out the appeal was adjourned to 10/2/2000 for hearing should the applicants fail to file their brief.
13. That between 25/11/99 and 10/2/2000 in further demonstration of the applicants’ lack of diligence in pursuing the appeal, the applicants did not only fail to file their appeal but waited till 10/2/2000 to file another motion for extension of time long after the time granted on 25/11/99 had again expired”.

As I stated earlier, this counter-affidavit prompted applicants’ Counsel to depose to a further 7 paragraphs affidavit which he headed “reply to counter affidavit” in which he stated that he had already filed the brief and a motion but the court ignored him and proceeded to dismiss his appeal.

In arguing the application, learned Counsel for the applicants Mr. Giwa submitted that even though the appeal was dismissed based on Order 6 rule 10 Court of Appeal Rules, it contemplates the principle of fair hearing. He conceded that he was not in court when Counsel for the respondents applied to the court to dismiss the appeal under Order 6 rule 10 but contended that the brief of argument and the motion for extension of time had been filed in the registry of the court at 10.00am on 10/2/2000 before the ruling was delivered. He also conceded in his oral submission that the motion and the brief were not in the Court’s file on 10/2/2000 at the time the court pronounced the ruling.

He however, cited Jideonwo v. Chukwuma (2000) 1 NWLR (Pt.641) 397 at 405; and Ekiyor v. Bomor (1997) 9 NWLR (Pt.519) 1 at 11 & 15 to urge us to grant the application.

Mr. Wanogho, learned Counsel for the respondents opposed the application and submitted that the application is frivolous and has no basis in law and therefore should be dismissed. He placed reliance on the counter-affidavit and contended that this court has no jurisdiction to revive and/or relist an appeal dismissed under Order 6 rule 10 citing Babayagi v. Bida (1998) 2 NWLR (Pt.538) 367 at 373; Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt.583) 632 and Ichado v. Apeh (1992) 8 NWLR (Pt.260) 506 at 511 – 512 to buttress his argument.

The legal position is that an appeal dismissed under Order 6 rule 10 Court of Appeal rules 1981 as amended in 1984 cannot be revived or relisted by the Court of Appeal as it is rendered functus officio. See: Olowu v. Abolore (1993) 5 NWLR (Pt.293) 255; Babayagi v. Bida (1998) (supra); Akujinwa v. Nwaonuwa (supra). See also the decision of this court in U.B.A. Plc. v. Ajileye (1999) 13 NWLR (Pt.633) 116 and Jideonwo v. Chukwuma (supra). In U.B.A. Plc. v. Ajileye (supra) at page 124, this court held following the view of Karibi- Whyte, JSC in Olowu v. Abolore (supra) that “it is however doubtful if this court can exercise the power to set aside the order of dismissal of the appeal even if the order was made in error”.

In Olowu v. Abolore (supra) Karibi-Whyte, JSC had stated at page 270:-

“Stricto sensu an appellate court does not exercise any jurisdiction other than that conferred by statute. It does not exercise any inherent powers other than those of courts of record. The exercise of appellate jurisdiction is statutory. In this case, it is limited to that prescribed by the Court of Appeal Act, 1976 and Court of Appeal Rules, 1981 as amended in 1984.”

The reliance which learned Counsel for the applicants placed on Jideonwo v. Chukwuman (supra) and Ekiyor v. Bomor (supra) to urge us to grant the application to restore or relist the appeal are of no assistance. Ba’aba, JCA held in Jideonwo v. Chukwuman relying on the dictum of Obaseki, JSC in Obiora v. Osele (1989) 1 NWLR (pt.97) 279 which Karibi-Whyte, JSC echoed in Olowu v. Abolore (supra) held that this court which is bound by the decision of the Supreme Court cannot vary its decision to relist an appeal which has been dismissed by this court. Also in Ekiyor v. Bomor (supra), the Supreme Court did not make a pronouncement that the Court of Appeal could set aside its order dismissing the appeal where there is a breach of the rule of fair hearing, What the Supreme Court decided is that there was a breach of the rule of natural justice audi alteram partem when the plaintiff’s motion to dismiss defendant’s appeal was granted without considering the counter-affidavit which had been brought to the notice of the court and this led to a miscarriage of justice. Where such a situation occurs, it will lead to setting aside of the order of dismissal by the appellate court. To my mind the court which will exercise jurisdiction to set aside the order of dismissal of the appeal is not the Court of Appeal but the Supreme Court.

I deem it necessary to draw a distinction between an appeal dismissed under Order 3 rule 20(1) Court of Appeal Rules for non-compliance with conditions of appeal and an appeal dismissed under Order 6 rule 10 for want of diligent prosecution of the appeal. If the appeal is dismissed under Order 3 rule 20(1), the appellant may apply by notice of motion to have the appeal restored. Order 3 rule 20(1) & (4) provides:-

“(1) If the appellant has not complied with any of the requirements of rules 10 and 11 of this Order, the Registrar of the court below shall certify such fact to the court, which shall thereupon order that the appeal be dismissed either with or without costs, and shall cause the appellant and the respondent to be notified of the terms of the order.

(4) An appellant whose appeal has been dismissed under this rule may apply by notice of motion that his appeal be restored and any such application may be made to the court which may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”

Thus, a dismissal of an appeal under Order 3 rule 20(1) is tantamount to striking out of the appeal which can be restored but where the appeal is dismissed under Order 6 rule 10, the court becomes functus officio and the dismissal order can be set aside only by the Supreme Court. Consequently this court has no power to restore or relist the appeal which was dismissed on 10/2/2000 and the application is hereby struck out.

I find it necessary to comment on the reply to the counter-affidavit. It is most unsavory. Even if this court ignored Counsel when he wanted to arrest the ruling dismissing the appeal from being delivered, it is not in good taste to begin to name individual Justices and the role they played in the ruling.

If the standard of practice is to be enhanced, Counsel should not be encouraged to be sloppy in filing of processes. It is to be observed that learned Counsel for the appellants was heard on 25/11/99 and his motion asking for extension of time to file the appellant’s brief was granted. Before this time, the respondent had filed his application to dismiss the appeal dated 30/6/99. This motion was kept pending when time was extended for the appellants’ Counsel to file his brief was granted.

I leave the issue of fair hearing of this application to be determined by the Supreme Court at the appropriate time. Suffice it to say that this court lacks jurisdiction to restore or relist this appeal which was dismissed under Order 6 rule 10 Court of Appeal Rules. I award N2000 as costs against the applicants/appellants in favour of the respondents.

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Other Citations: (2001)LCN/0948(CA)