Nwinasuami Thompson Vs The State (1972) LLJR-SC

Nwinasuami Thompson Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, JSC

The appellant was tried in the High Court, Port Harcourt, on a charge of murder. He was alleged to have mudered one Baridom Ziidee at Kpaa Village, Ogoni, on the 11th day of March, 1971.

The case for the prosecution was that the appellant, Baridom Ziidee, (the deceased), and others including the 2nd P/W were returning home from work on the day in question. All of a sudden, while they were all walking along the road leading to the village, the appellant attacked the deceased with a matchet, dealt him several blows on the head and neck, and inflicted serious wounds on him. The doctor who examined the deceased at the Ogoni General Hospital soon after the attack testified as follows:-

“I examined him and saw major incised wounds on the right side of the head and neck involving the major arterial branches on the right side. There was also a compound fracture of the roof of the right orbit with a complete expulsion of the right eye. There were also fractures of the right zygomac arc and of the right ascending ramus of the mandible. Any sharp, heavy instrument, such as matchet, could cause these injuries. I operated on the tissues because I could not have treated him without doing the operation. Surgical operation was quite necessary and so I did it. The operation was not successful because many of the injuries were beyond surgical control. The patient died of these injuries. In my opinion, death was caused by severe uncontrollable haemorrhage due to severe injuries to major vessels.”

The appellant denied attacking the deceased. He explained further that on their way home on the day in question, they heard shouts that someone had been killed and that that news blurred his vision and he ran home not knowing what he was doing.

In a reserved judgment, the learned trial Judge said that he believed the version of the incident as given by the witnesses called by the prosecution. He rejected the defence put forward by the appellant and then found as follows:-

“There is no evidence on the part of the defence to suggest any doubtful state of mind on the part of the accused – either medical or family history. I cannot accept any suggestion to that effect. That accused ran away after the infliction of the matchet cuts on the deceased, hid the matchet in the grass behind his house and walked to the police – all negative the defence put forward and confirm that accused knew he did something wrong and therefore he knew what he did.”

He then convicted the appellant as charged after finding finally that it was the voluntary act of the appellant which caused the death of the deceased in circumstances amounting to murder.

Before us on appeal, the learned counsel for the appellant had nothing to urge in his favour. As we also saw no reason to interfere with the verdict, we dismissed the appeal at the hearing on 5th October, 1972, for the reasons which we now give.


Other Citation: (1972) LCN/1346(SC)

Philip Giwa Vs The State (1972) LLJR-SC

Philip Giwa Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

COKER, JSC.

The appellant was charged on 21 counts of stealing and falsification of accounts. The evidence given by the prosecution at his trial portrayed a vivid story of frequent and continuous manipulations of the books and documents which in the course of his employment he was obliged to keep.

Indeed, in the course of a rigorous cross-examination, the appellant virtually admitted all the wrong entries. It was contended on his behalf that the wrong entries must have been made falsely or with an intent to defraud. We think the intent is manifest on the face of the transactions. Although the appellant gave out receipts for stated sums of money, in all the cases charged, except count 21, he had entered in the cash-book amounts which were less than these actually received. There was no explanation of what happened to the difference in money and although the appellant stated that he had placed these on deposit, there are no entries establishing anywhere these deposits and we think the learned trial Judge was right to disbelieve the defence.

With respect to count 21, the learned trial Judge himself stated that the prosecution had failed to establish it but he nonetheless convicted the appellant on the count. We are not sure whether or not he would have accepted the evidence in support of that charge or that he did accept it and we cannot guess his mind. In the circumstances we think that the conviction on that count is not safe.  

In the result, the appeal succeeds on that count, i.e., No. 21, and the conviction of the appellant on that count is quashed and his sentence on the count is set aside and a verdict of acquittal and discharge is entered in his favour on that count. With respect to counts Nos. 1 – 20, the appeal is dismissed and the conviction and sentences of the appellant on them are affirmed. As the appellant is in court, he will be taken into custody forthwith to serve his terms.


Other Citation: (1972) LCN/1590(SC)

Olushegun Haruna & Ors Vs The State (1972) LLJR-SC

Olushegun Haruna & Ors Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

On 1st March, 1971, all the accused persons were convicted in the High Court of the North-Western State sitting at Sokoto by Mu’Azu Muhammad Ag. J., in Charge No. SO/8C/1970 containing twenty counts.

Of these twenty counts, all five of them were convicted on one count of criminal conspiracy punishable under section 97 subsection (1) of the Penal Code. Olushegun Haruna, the first accused, was alone convicted on eight counts for the offence of using a forged document punishable under section 366 of the said Code, and on three counts of cheating punishable under section 325 of the said Code, Muhammadu Yunusa Doko, the second accused, was alone convicted on one count for the offence of wearing the uniform of the Nigerian Army although he was not a solider which offence is punishable under section 133 of the said Code.

The third accused (Ibrahim Mohammed) was alone convicted on three counts for the offence of using a forged document and on three counts of cheating punishable under sections 336 and 325 respectively of the said Code. The fourth accused (Paul Omolo) who was charged alone with the offence of wearing the uniform of the Nigerian Army although he was not a soldier which offence was punishable under section 133 of the said Code was found not guilty of that offence; we will have more to say about this later.

The facts which are relatively straightforward may be summarised as follows. Some time between the months of September and October, 1968, the first accused, accompanied by the second accused, called on the third accused in the house where the third accused was staying in Lagos. When the third accused inquired what the visit was about, they informed him that they “had made proper arrangements in connection with certain deals about contract vouchers which are to be tendered and cashed at Bida.” After the 3rd accused had asked the 1st and 2nd accused a few questions about the plan they left. After their departure, the third accused called on the fifth accused who was at the material time a staff-sergeant in the Nigerian Army and told him of the proposal. The fifth accused advised him to wait for further details.

The next day, the 1st accused called on the 3rd accused again, bringing with him a payment voucher (in quadruplicate) which had been checked, signed and passed for payment at the Bida Sub-Treasury. The 1st accused then gave the 3rd accused the payment voucher and informed him that the 2nd accused would call later. The payment voucher was made out in the name of one Mallam Abubakar Yunus, Local Food Supplier, c/o Bida N.A. The 3rd accused described what transpired thereafter in his written statement (exhibit 46) to the police, made after his arrest, as follows:-

“I was convinced by them. So Mohammed Yunusa Doko, Olushegun Haruna, Festus Rone, Paul Omolo, and lastly myself unanimously agreed that we should try this. In actual fact Mohammed Yunusa Doko dressed up in full army captain officer’s uniform followed by staff-sergeant Rone travelled to Bida, but hinted to me to be on the watchout if I should get their message through Olushegun I should travel down and meet them at Bida. Three days later I got their message through Olushegun Haruna asking me to proceed immediately to Bida along with Paul Omolo. On getting to Bida two of us met Mohammed Yunusa Doko and Festus Rone at the Catering Rest House where we were informed that we should meet up at the Treasury the following day … The following day we went to the Sub-Treasury under the guidance of a taxi driver to meet Mohammed Yunusa Doko and Festus Rone from where I was informed that I have got a voucher to be paid to me in the name of Abubakar Yunus, Local Food Supplier from where I was given a cheque for 690pounds. I took the cheque to the bank together with Mohammed Yunusa Doko where I was paid the money. I later handed the money to Mohammed Yunusa Doko from where we left together with Festus Rone and Paul Omolo down to Lagos … Precisely I cashed three vouchers for Abubakar Yunus all at Bida. The other three vouchers were cashed by Olushegun Haruna who is the initiator and brain behind the whole business. This is all I know about the six cheques now in question in respect of the vouchers at Bida.”

Pursuant to the discussions referred to by the 3rd accused in the above statement, the five accused persons, between the months of September and October 1968, agreed to use as genuine forged payment vouchers for the purpose of obtaining money from the Sub-Treasury at Bida. In consequence of the agreement, the 1st and 3rd accused with the aid of the 2nd and 5th accused who were dressed in army uniform at all material times, used as genuine eight and three forged vouchers respectively knowing them to be forged. By using the said forged payment vouchers, the 1st and 3rd accused dishonestly induced Aliyu Jibirin (P.W. 15) the cashier and Usman Kutigi (P.W. 1) the Sub-Treasurer of the Bida SubTreasury to deliver to each of them three Government cheques to the value of 13,722Pounds which they cashed and the proceeds of which they appropriated to their own use. The particulars of the false payment vouchers tendered at Bida as genuine by the 1st accused for payment and duly paid are as follows:-

(i) P.V. No. 14009 for 690 pounds (exhibit 7) on 7/10/68.

(ii) P.V. No. 14010 for 460 pounds (exhibit 8) on 7/10/68.

(iii) P.V. No. 14013 for 1,955 pounds (exhibit 10) on 11/10/68.

(iv) P.V. No. 14014 for 1,575 pounds (exhibit 11) on 11/10/68.

(v) P.V. No 14017 for 2,415 pounds (exhibit 13) on 14/10/68.

(vi) P.V. No. 14018 for 1,875 pounds (exhibit 14) on 14/10/68.

Particulars of those tendered also at Bida by the 3rd accused and also duly paid are as follows:-

(i) P.V. No. 14017 for 690 pounds (exhibit 1) on 25/9/68.

(ii) P.V. No. 14027 for 1,495 pounds (exhibit 3) on 28/9/68.

(iii) P.V. No. 14008 for 2,567 pounds (exhibit 5) on 7/10/68.

Again on 21st October, 1968, the 1st accused, this time without success, also used as genuine, at the same Bida Sub-Treasury, two other forged payment vouchers, one for the sum of 3,850 pounds (exhibit 16) and the other for the sum of 1,575 (exhibit 17).

How they achieved their objective was described by Usman Kutigi (P.W. 1) the Sub-Treasurer at Bida at the material time as follows. On 22nd September, 1968, in answer to an invitation to come there, he went to the Catering Resthouse at Bida at about 5.30 p.m. There he met the 2nd and the 5th accused in Chalet No.4. They were both in army uniform. During the discussion P.W.1 had with both of them, the 2nd accused informed him that the Army Headquarters in Lagos was annoyed with him as a result of his delay in making payments to the army food contractors. They then warned him that many army food contractors were going to present payment vouchers in due course for payment and that these vouchers when received should be paid promptly. P.W.1 then told them about a telegram which he had earlier received in connection with the same matter from the office of the Accountant-General of the Federation in Lagos. Incidentally, this telegram was also a hoax and was not in fact sent by any member of the staff of the Accountant-General. The two accused then said they would call at the Treasury the following day to see this telegram.

Still dressed in army uniform, they duly called the following morning and P.W.1 showed them the telegram from Lagos. They then left for Boko and returned to the Treasury on 25th September, 1968. While in the Treasury the 3rd accused turned up with a payment voucher (exhibit 1) in respect of food supplied for the feeding of the members of the armed forces. The 3rd accused introduced himself as Abubakar Yunus the person shown as the payee in the said voucher. On seeing the 3rd accused and after scrutinising the payment voucher (exhibit 1), the second accused said to the 3rd accused:-

“Yes, you actually reported the Sub-Treasurer, Bida and that was why Brigadier Hassan got annoyed with him.”

In consequence of what the second accused told him about the payment vouchers, P.W. 1 then called Aliyu Jibirin (P.W.15) his cashier and instructed him to “go and deal with the payee.” Thereupon, the 3rd accused followed P.W. 15 who duly gave him a cheque for 690 pounds (exhibit 2) in payment for the amount shown in the payment voucher (exhibit 1).

The 3rd accused returned on 28th September, 1968 to the Sub-Treasury where he asked p. w. 1 whether he had received any other payment voucher in the name of the 3rd accused by post from Lagos. On looking through his mail when it arrived, p.W. 1 found another payment voucher made out in the name of Abubakar Yunus, the name used by the 3rd accused for these transactions. The payment voucher (exhibit 3) was also for food supplied to the armed forces and had been checked and passed in Lagos. As before, P.W.1 asked his cashier P.W. is to pay the third accused who was consequently given a cheque for 1,495 pounds in payment of the amount shown on the payment voucher.

The 3rd accused visited the Bida Sub-Treasury again on 7th October, 1968, but this time, he was accompanied by Olushegun Haruna (1st accused). The 3rd accused brought a payment voucher for 2,567 pounds (exhibit 5) made out in his name, while the 1st accused brought two payment vouchers, one for 690 pounds (exhibit 7) and the other for 460 pounds (exhibit 8). All three payment vouchers were duly paid by P.W. 15 by cheque as before.

Four days later, on 11th October, 1968, the first accused alone returned to the Bida Sub-Treasury and handed to P.W. 1 two payment vouchers which had been duly checked and passed in Lagos for payment to the 1st accused. The first voucher (exhibit 10) was for 1,955 and the second (exhibit 11) was for 1,575 pounds. They were both in respect of food supplied to the armed forces. P.W. 15, as before, issued a cheque to the 1st accused in payment of the two vouchers in question.

On 14th October, 1968, the first accused returned again to the Sub-Treasury with two payment vouchers which, as usual, had been duly checked and passed at Lagos for payment to the first accused at Bida. Both were for payment for food supplied to the armed forces. P.W. 1 passed the two payment vouchers to P.W.15 for payment and they were duly paid. One (exhibit 13) was for 2,415 pounds and the other (exhibit 14) was for 1,875 pounds.

At this stage, P.W.1 had become suspicious of the whole series of transactions and it was this suspicion which started the chain of events which eventually led to the arrest of the accused persons. Consequently, when on 21st Octqber, 1968, the first accused turned up again with two payment vouchers which had been duly checked and passed at Lagos for payment in Bida – one (exhibit 16) for 3,850 pounds and the other (exhibit 17) for 1,575 pounds. P.W. 1 complained that the amounts involved were rather heavy. To this complaint the 1st accused replied that he had come to clear the Treasury of P.W 1 that day. Following his suspicion, P.W. 1 reported the matter to the District Officer in charge of Bida. The District Officer then questioned the first accused about his name and the purpose of his visit to Bida. The first accused replied that his name was Olushegun Haruna and that he had brought payment vouchers from Lagos for payment.

It is pertinent to point out at this stage that Abraham Odunaike (P.W. 3), a Higher Executive Officer in the Federal Ministry of Defence from where all the payment vouchers were supposed to have emanated and who was then the officer controlling Head 30 Sub-head 9 shown on the vouchers, testified to the effect that all the eleven vouchers were false documents and that he had never seen any of them in the Federal Ministry of Defence.

As a result of these disclosures made during the investigation of the matter, all the five accused were arrested. Various sums of money were later recovered by the police from their respective bank accounts.

In one of the statements (exhibit 44) made to the police after his arrest, the 1st accused said:-

“Now that it has become evidently plain from manifest proceedings that one Alhaji Abubakar Yunus has been using me as an instrument for unlawful acquisition of money, the voice of reason demands the TRUTH should be glorified. For on this alone hangs my salvation.”

The first accused then went on to state how after Abubakar Yunus (the name by which the 3rd accused was known during the transactions at Bida) had introduced him to P.W. 1 and his assistant, he (3rd accused) had sent him to Bida on successive occasions in the course of which he (1st accused) received payments totalling 38,970 pounds in respect of the payment vouchers (exhibits 7, 8, 10, 11, 13 and 14). He, however, admitted in the statement that all the payment vouchers were made out in his (1st accused’s) name. He then concluded his written statement (exhibit 44) as follows:-

“This is the truth. I am not a food supplier. I have never supplied foodstuff to the army. And as such, I am not officially entitled to Government money. Every amount collected so far have been on behalf of Abubakar Yunus. I have been in his service.”

The case against the 2nd accused is based partly on his confessional statement (exhibit 45) made after his arrest and partly on the confirmation of relevant portions of it by P.W. 1, the Sub-Treasurer of the Bida Sub-Treasury. The statement reads:-

“I have been invited by Abubakar Yunus to his house, there I met Olushegun Haruna. He was a Major. I don’t know whether he is real army, I don’t know. He told me that I should go to Bida with him so that we should get money. He brought some forms, and made a draft to type on the forms, I typed the letter and he told me that he will be going to Bida and I should prepare to go, when we reach I should wear his army uniform with one staff-sergeant, when we reached Bida and the Major came I lodge at C.R.H. and he gave instruction that I should tell the Sub-Treasurer that if he receive army payment vouchers concerning local food supplies and also family allotment he should pay without delay, as I was discussing with Sub-Treasurer, the Mallam Abubakar came in and then he handed over the envelope to the Sub- Treasurer, after he opened the envelope, the Treasurer told me that he is one of the contractors … I actually knew Abubakar Yunus by name Ibrahim Mohammed but he uses Abubakar Yunus … Abubakar Yunus told me that I should open eye for Sub-Treasurer and when he comes, I should blame him why he report to Brigadier Hassan Katsina that they don’t use to pay them in time and family allotment which Sub-Treasurer promised to act on instructions … I invited Sub-Treasurer to come and see me at C.R.H. Chalet 4, when he came I told all what the Major told me.”

When the 3rd accused was arrested on 27th October, 1968, in Lagos, and was brought to 1st accused, p.w. 18 said that the 1st accused referred to him as Abubakar Yunus while one Olun said “that is Ibrahim Mohammed who sent me to Bida.” P.W. 18 also testified that when the 3rd accused was cautioned by him on 31st October, 1968 the 3rd accused made a written statement (exhibit 46) to which we had referred in extenso earlier in this judgment. In this statement (exhibit 46) the third accused had not only confessed to his complicity in the agreement which they had unanimously reached in Lagos “in connection with certain deals about contract vouchers which are to be tendered and cashed at Bida” but also to the fact that he had uttered forged vouchers with the knowledge that they were forged. After his arrest, Paul Omolo (the 4th accused) also made a written statement to the police. Part of the statement (exhibit 66) reads:-

“I happen to meet Ibrahim (accused 2) one day then he took me to Doko’s (accused 3’s) place. He then told me that Doko has a business which he may like me to do together. He said that Doko has some vouchers that we shall prepare one to go and catch the money. Before this time Doko and Rone went to Bida first and arrange the business how it can be possible. Ibrahim met up Doko at Bida with a voucher but when they came back they told me that they did not honour the voucher they went with, but they arrange at Bida and get a new voucher there and that the money they collected was six hundred and nine pounds and that I should have only seventy five pounds alone. They said they were going back there again, at this time I decided to follow them down, at this time Ibrahim and Richmond Gold (accused 1) went with vouchers and they collected the money there. They shared me three hundred and twenty pounds. We came back to Lagos. After this trip Richmond Gold went alone and I was given two hundred and sixty pounds.”

He further added to that statement that he received altogether the sum of 655 pounds as his share of the money obtained at Bida. He did not know that the others had been returning to Bida or that in all they realised the total sum of 13,000 pounds.

The case against the 5th accused was mainly that he was a party to the conspiracy hatched in Lagos and that he was seen at the Catering Rest House at Bida by the Bida Sub-Treasurer (P.W.1) on 22nd September, 1968. According to P.W. 1, both the 2nd and 5th accused, who were dressed in army uniform, after warning him about the delay in the payment of claims by army food contractors informed him that many army food contractors were going to present payment vouchers in due course for payment and that the claims should be paid promptly. Of all the five accused persons, only the 5th accused testified in his own defence. He narrated how after he had moved into the house of the 3rd accused, the 3rd accused asked him to accompany the 2nd accused to Bida and how they left Lagos for Bida on 21st September, 1968. He testified as to the visit he and the 2nd accused paid to the Bida Sub-Treasury on 23rd September, 1968 and as to what had taken place there which was almost identical with the version given by P.W.1.

As we have stated earlier, the 1st, 2nd, 3rd and 4th accused did not testify in their defence. The 1st accused did not call any witness while the 2nd accused called one witness whose testimony was considered by the learned trial judge, quite rightly, as irrelevant to the offences with which he was charged. The 3rd accused called two witnesses but their evidence was also rightly found by the learned trial judge to be irrelevant. The 4th accused also called two witnesses whose testimony the learned trial judge flatly rejected.

After considering the totality of the evidence adduced before him both by the prosecution and by the defence (both by their cross-examination of the prosecution witnesses and by witnesses called by them) he accepted the version of the incidents as enumerated by the prosecution and rejected the defence of each accused person on all the counts except that of the offence of wearing army uniform without authority with which Paul Omolo (4th accused) was charged under section 133 of the Penal Code. In respect of this offence the trial judge found as follows:-

“Now, as far as this charge is concerned, because the prosecution has not been able to lead satisfactory evidence in proof of it, it has not discharged that duty imposed on it by law. The learned principal state counsel has, in fact, rightly conceded this fact. Accused 4 is therefore entitled to be acquitted of this charge. Accused 4 is therefore hereby discharged and acquitted of the charge under section 133 of the Penal Code. ”

The learned trial judge thereupon convicted all the accused persons of the charge of conspiracy and the 1st, 2nd and 3rd accused persons of the various other offences as charged.

All the five accused persons have now appealed to this Court against these convictions. The grounds of appeal argued by Chief Rotimi Williams who appeared for Olushegun Haruna (the 1st appellant) read:-

“1. The learned trial judge erred in law in failing to observe that having regard to his finding that the acts constituting the offence charged on the first count occurred in Lagos or outside the NorthWestern State, the appellant and his co-accused cannot lawfully be charged and tried for the said offence before the High Court ofthe said State nor do the relevant provisions of the Penal Code apply to the acts aforesaid.

  1. The learned trial judge misdirected himself in law in holding as follows:-

‘ … by section 4(2)(b) of the Penal Code Law, (not the schedule which is commonly referred to as the Penal Code) although the conspiracy itself was conceived in Lagos, since the subsequent illegal acts perpetrated in consequence thereof were committed at Bida within the North-Western State by tbe accused persons who have admitted to having come to Bida, this court therefore has jurisdiction to try these accused persons as well as all the offences before it including the conspiracy (page 375 lines 13-22).’

Particulars of Misdirection

Section 4(2)( b) of the Penal Code Law does not cover the charge of conspiracy on the facts of this case. The said subsection only applies where at least:-

(i) the doing of any act or the making of any omission is made an offence under the Penal Code;

(ii) such offence comprises several elements; and

(iii) some of the acts, omissions or events comprising the offence occur within the North-Western State whilst the other acts, omissions or events comprising the said offence occur outside the State.

  1. The conviction of the appellant ought to be quashed because he was charged jointly with the other accused persons (and jointly tried) in circumstances not authorised by section 221 of the Northern Nigeria Criminal Procedure Code nor by any other law in force in the North-Western State of Nigeria.
  2. The conviction of the appellant ought to be quashed because charges for offences alleged to have been committed by him were joined with charges for offences alleged to have been committed separately by other accused persons and all the said charges were tried together. ”

Because of the relative significance of the contentions canvassed before us by learned counsel at the hearing of this appeal, the arguments adduced on behalf of both this appellant and the respondent will be set out in more detail than is usual.

The main plank of Chief Williams’ argument in respect of grounds (1) and (2) is on the competence of the High Court of the North-Western State to try the appellants for the offence of conspiracy. His submission in this respect may be summarised as follows. The offence of conspiracy is committed at the moment of accord. Specific offences committed in pursuance of the accord are separate and distinct from the conspiracy. In the instant case, the learned trial judge found that the conspiracy was conceived in Lagos, that the follow-up offences were committed in Bida in the North-Western State, and that they could therefore be tried at Bida. The learned trial judge erred in considering the provisions of section 4(2)(a) and (b) of the Penal Code because the situation envisaged in that section did not arise in the present case. That section provides for a situation where in the commission of a particular offence some of the acts, omissions or events comprising the offence occur within the NorthWestern State whilst other acts, omissions or events comprising the offence occur outside the State. The offence of conspiracy is committed, not by the overt act, but at the point of concord or agreement and since the agreement in the instant case was reached in Lagos, the trial of the appellants for the offence of conspiracy pursuant to this agreement in the High Court of the North-Western State instead of in the Lagos High Court is a nullity.

With regard to grounds 3 and 4 Chief Williams submitted as follows.

Excluding the offence of conspiracy with which they were all charged, the 1st appellant was charged with eleven specific offences, the second with one, the third with six, and the 4th with one; the 5th appellant was only charged with the offence of conspiracy. There was no allegation that they were joint offences. While he was not saying that a number of persons could not be charged and tried together, this could only be done under the provisions of section 221(d) of the Criminal Procedure Code. To bring these offences under that section they must have arisen out of the same transaction. In the instant case, there were at least six transactions. the first one was on 25th September, 1968 involving the 2nd, 3rd and 5th appellants and was in respect of a sum of 690 pounds; the three of them could have been charged and tried together for this transaction but only the 3rd appellant was charged in respect of it. The second transaction was a solo effort by the 3rd accused on 28th September 1968 and it involved an amount of 1,495:0s:0d; the third was by the 1st and 3rd appellants on 7th October, 1968 each collecting the sums of 1,150pounds and 2,567pounds respectively: the fourth, another solo transaction by the 1st appellant whereby the sum of 3,530 pounds was collected on 11th October, 1968; and the 5th, also a solo transaction on 14th October, 1968 by the 1st appellant whereby he used two payment vouchers (exhibits 13 and 14) to collect a cheque for 4,290pounds. The last transaction, according to Chief Williams, was on 21st October 1968 whereby the 1st appellant unsuccessfully attempted to collect two sums of two payment vouchers 3,850pounds on exhibit 16 and 1,545pounds on exhibit 17.

Chief Williams then referred to section 221(d) of the Criminal Procedure Code again and submitted that different persons can be charged with different offences and be tried together only if the offences arose out of the same transaction. If the offences did not so arise, the joinder would be bad. Learned counsel, however, conceded that if the charge of conspiracy was valid, a different consideration would arise because all the various overt acts carried out in pursuance of the conspiracy could be regarded as acts in the same transaction and offences arising therefrom could be tried together.

In the instant case, learned counsel then submitted, once the charge of conspiracy is proved to be a nullity, all the specific offences charged in pursuance of it would have no support, and for that reason the conviction for these offences should not be allowed to stand. In support of this contention Chief Williams finally referred us to the decision of the Privy Council in Babulal Choukhani v. The King-Emperor 65 L.R. Indian Appeals 158, or (1939-40) 31 Coxs Law Cases 44 where the provisions of section 239 (d) of the Indian Code of Criminal Procedure which are identical with those of section 221(d) of the Criminal Procedure Code of the NorthWestern State were considered.He also referred us to the case N. A. Subramanya lyer v. The King-Emperor 28 L.R. Indian Appeals page 257 where it was held that non-compliance with the provisions of section 239 was fatal to the prosecution’s case.

The second appellant who appeared in person adopted the arguments of Chief Williams and said he had nothing to add. None of the other three appellants appeared to argue their grounds of appeal.

In a reply which is both commendable and particularly helpful, Mallam Kalgo, Ag. Deputy Solicitor-General, North-Western State, for the respondent, conceded that because of the provisions of section 4(1) of the Penal Code Law, those of section 4(2)(b) would not apply to a charge of conspiracy because such a charge would not comprise “several elements” in the sense in which the words were used in that subsection. The subsection, learned counsel submitted, applies to the other charges because the appellants were in the North-Western State at the time they committed each of these offences; moreover, if the substantive acts constituting these offences were done in pursuance of the conspiracy, the appellants could be charged with the conspiracy in the North-Western State although it was conceived elsewhere. In support of this proposition, we were referred to Archbold’s Criminal Pleading, Evidence and Practice 37th Edition paragraph 92 at page 37; and Brisac and Scott v. The King 102 E.R. 792.

In answer to the submission of Chief Williams under grounds 3 and 4 of the grounds of appeal, learned counsel submitted that section 221(d) of the Criminal Procedure Code, which is the same as section 239(d) of the Indian Criminal Procedure Code, should not be considered in isolation but should be read with section 96 of the Penal Code. He then submitted that in order to determine whether the offences arose out of the same transaction what should be looked at is the proximity of time and space between the conspiracy and the various overt acts. In the present case, immediately after the conspiracy had been hatched in Lagos, the payment vouchers were being submitted at Bida and cashed; the timing, as it were, connecting the conspiracy with the acts. The test, learned counsel pointed out, was the continuity of purpose. Referring to the case of Babulal Choukhani (supra), first cited by Chief Williams, learned counsel finally submitted that all the charges were legally in order and that the appeal be dismissed.

The first point, and indeed the most crucial point, to be considered in this appeal is whether the charge of conspiracy involving all the five appellants could be tried as it was in the High Court of the NorthWestern State. In deciding the point, we must emphasise the fact that the definition of the offence of conspiracy which is in force in the six Southern States is different from that of the Penal Code in force in the six Northern States including the North-Western State. Conspiracy as an offence is nowhere defined in the Criminal Code (which is in force in the Southern States) but since the common law is in force in Nigeria the word must bear the same meaning as in England. It means, under the common law, an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means; (see Archbold 37th Edition paragraph 4051). In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code. With respect to the venue of trial for the offence where the overt acts are committed in places other than the place where the conspiracy was conceived, the decision in Brisac and Scott v. The King 102 E.R. 792 is in point. In that case, the prosecution proved that there was a conspiracy conceived on the high seas, between the captain and purser of a Man-of-war for preparing false vouchers to cheat the Crown. It was held that the offence of conspiracy was triable in the county of Middlesex upon proof there of the receipt by the Commissioners of the Navy of the false vouchers sent to them by one of the conspirators through the post. In dealing with the objection as to venue, Grose J., rightly in our view, held as follows:-

“It is objected that the misdemeanour charged on this indictment was committed on the high seas, and as that offence is, by virtue of the statute 39 Geo. 3, now made triable under the King’s commission, to be granted by virtue of Statute 28 Hen 8c. 15, that it cannot properly be tried within the body of any county in England. As to which, it may be in the first place observed, that that statute makes no difference in this case; … If it were necessary on this occasion to consider how far every count in this information had been established by the evidence adduced, so as to bring everyone of them within the jurisdiction of this Court, it would be recollected that conspiracy is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them, and which hardly ever are confined to one place; and that from analogy, there seems to be no reason why the crime of conspiracy, amounting to a misdemeanour, may not be tried wherever, one distinct overt act of conspiracy is in fact committed.”

From the above, it seems to us that under the common law, the charge of conspiracy conceived in one place could be tried in another place where the various overt acts were carried out.

What then is the position under the penal code in force in the NorthWestern State The offence of criminal conspiracy is defined in section 96 of the said Code as follows:-

“96 (1) When two or more persons agree to do or cause to be done:-

(a) an illegal act; or

(b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.

(2) Notwithstanding the provisions of subsection (1), no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreementis done by one or more parties to such agreement in pursuance thereof” (The italics are ours).

From the above, it seems to us that while the agreement reached by the appellants may well constitute the offence of conspiracy under the common law in Lagos, it also constitutes by virtue of the provisions of section 96(2) of the Penal Code referred to above, the offence of criminal conspiracy in Bida as soon as the appellant submitted the first payment voucher No. 14017 for 690pounds (exhibit 1) on 25th September, 1968, and received a cheque in payment of the amount stated therein. That being the case, all the appellants, notwithstanding the fact that the agreement to do the illegal act was reached in Lagos, were properly tried and convicted in the NorthWestern State for the said offence of criminal conspiracy. Consequently, we are unable to discern any merit in the argument of the learned counsel for the 1st appellant based on the venue of the trial of that particular charge. We therefore think that the trial and conviction of the appellants for criminal conspiracy in the High Court of the NorthWestern State were in order. Grounds one and two of the grounds of appeal therefore fail.

With respect to the points urged upon us by Chief Williams concerning grounds three and four, we agree with the submission of Mallam Kalgo that, in deciding whether all the charges brought in respect of the overt acts of the conspirators arose out of the same transaction, what should be looked at is the proximity of time and place, and the continuity of action. The test must always be, do these acts, considered together, portray any continuity of purpose If they do, all the charges relating to them will be considered as having arisen out of the same transaction.

In the instant case, the claiming by the conspirators of large sums of money, even at such close but irregular intervals (a total sum of 13,722.0.0d was thereby obtained between 25th September and 14th October, 1968), for fictitious purchases of food stuff for the army is, to our mind, one grand operation having regard to the evidence which the learned trial judge believed. Moreover, section 221(d) of the Criminal Procedure Code, when read with section 96 of the Penal Code, is intended to apply to a case such as the one under consideration. The section reads:

“221. The following persons may be charged and tried together namely:-

(d) persons accused of different offences committed in the course of the same transaction;” …

The scope of a similar provision in section 239(d) of the Indian Criminal Procedure Code was considered by Sarkar in the 3rd edition of his book on the said Code at page 400. According to Sarkar, and we are also of the same view, whether two or more acts constitute the “same transaction” depends on proximity of time and place, continuity of action, and community of purpose or design relative to the particular acts.Therefore the phrase “in the course of the same transaction” has been understood to include both the immediate cause and effect of an act or event and also its collocation, the other necessary antecedents connected with it at a reasonable distance of time, space and cause and effect; (see Ring 53 Indian Law Reports (Bombay) page 479). Thus, in order to constitute one transaction all the acts from the very beginning should be either in contemplation or should form the component parts of a whole. There can be no doubt, bearing in mind the original agreement in Lagos and the elaborate arrangements made for doing the overt acts which followed at Bida, that the appellants had each of these acts in contemplation.

Therefore, no matter how we look at it, it is not possible to come to any conclusion other than that the conspiracy was hatched and the overt acts were done undoubtedly in the course of the same transaction. It was, therefore, right and proper to charge and try all the appellants together.

In this connection, the observation of Lord Wright at page 50 of the judgment of the Privy Council in Babulah Choukhani v. The King- Emperor (supra) which we endorse, is particularly relevant. The observation deals with the provisions of section 239(d) of the Indian Criminal Procedure Code which, as we have pointed out earlier, are identical with those in section 221(d) of Criminal Procedure Code of the North-Western State. It reads:-

“Nor is there any limit of number of offences specified in section 239(d). The one and only limitation there is that the accusation should be of offences ‘committed in the course of the same transaction.Whatever scope of connotation may be included in the words ‘the same transaction’, it is enough for the present case to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators) these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it.”

We therefore see no merit in the third and fourth grounds of appeal which also fail. There seems to be an element of calm and calculated deliberation in the commission of the offences. We are accordingly quite satisfied there is nothing which would justify our interfering with the verdict of the learned trial judge and all the appeals against conviction are dismissed.


Other Citation: (1972) LCN/1399(SC)

B. O. Famuyiwa Vs Folawiyo & Ors (1972) LLJR-SC

B. O. Famuyiwa Vs Folawiyo & Ors (1972)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

On 27th November, 1959, Isaac Fafiolu (5th P.W.), a motor driver in the Ministry of Agriculture, Western Region, was driving one of the Ministry’s vehicles (identification No. 009856) from Ilaro to Abeokuta. The plaintiff (now appellant) then a 3200(pounds) per annum road overseer in the said Ministry, was one of the passengers in the said vehicle.

At a place called Ibese, Isaac Fafiolu saw a tipper lorry (identification No. LD 4429) driven by Ogundeji (2nd defendant) approaching in the opposite direction. When they met, the tipper lorry passed so close to the vehicle in which the plaintiff was travelling that it “brush passed” the said vehicle and severely injured the plaintiff who sustained a fracture of the right arm as a result. Having found that the 1st defendant was the owner of the said tipper lorry, the plaintiff commenced proceedings in the Lagos High Court in which he claimed against the two defendants as follows:

Particulars of Claim

The plaintiff’s claim against the defendants is for the sum of 317,000(pounds) being damages suffered by the plaintiff from the negligence of the second defendant in the driving and management of a motor vehicle No. LD 4429 at Ibese Village on the 27th November, 1959, as a servant or driver of the 1st defendant and in the course of his (2nd defendant’s) duty, whereby the said motor vehicle was driven with great force and speed against the vehicle No. 009856 in which the plaintiff was travelling and he (plaintiff) was severely injured and was thereby put to great pain and incurred and suffered loss.

Particulars of Personal Injury

The plaintiff sustained a fracture of his right arm and shoulder; he suffered severely from shock and had his right arm permanently injured.

Particulars of Negligence

The second defendant:-

(a) drove the said motor vehicle at an excessive speed;

(b) failed to keep a proper look-out;

(c) failed to keep properly to the left side of the road;

(d) failed to manage his motor vehicle as to avoid “brush passing” the vehicle in which the plaintiff was travelling;

(e) failed to keep the said motor vehicle under proper control.

Particulars of Damage

Loss of earning 2,000(pounds)

Pain and suffering 1,500(pounds)

Loss of capacity for the enjoyment of life 2,500(pounds)

Shortening of expectation of life 5,000(pounds)

Injury to health 2,500(pounds)

Future loss of earning 3,500(pounds)

………..

17,000 ………..

After pleadings had been ordered and duly delivered by the plaintiff and the 1st defendant (the 2nd defendant did not file any statement of defence), the learned counsel for the 1st defendant, on an application made ex parte on 10th November, 1964, obtained the leave of the court to issue and serve a “Third Party Notice” on the 3rd defendant. Paragraphs 4 and 5 of the affidavit in support of the ex parte application read:-

“4. By a policy of insurance dated 18th February, 1959 and made between myself of the one part and the Northern Assurance Company Limited of No. 40 Marina, Lagos of the other part, the Northern Assurance Co. Ltd. covenanted to indemnify me against the plaintiff’s claim herein.

  1. I claim to be indemnified by the said Northern Assurance Company Limited against the whole of the plaintiff’s claim against me in this action, and I ask leave to issue and serve on the said Northern Assurance Company Ltd. a third party notice claiming such indemnity.”

On 14th December, 1964, the Northern Assurance Co. Ltd. made an unsuccessful attempt to set aside the third party notice. It must be noted that the object of the third party notice is to prevent multiplicity of actions and to enable the court to settle disputes between all parties to them in one action (See Baxter v. France [1895] 1 Q.B. 591 as per Lord Esher M.R. at p. 593). It is also to prevent the same question from being tried twice with possibly different results (See Benecke v. Frost (1876) 1 Q.B. at p. 422 per Blackburn J.).

Thereafter, the 1st defendant served his own statement of claim (not the statement of defence which he had filed in answer to the plaintiff’s statement of claim) on the third party (that is, Northern Assurance Co. Ltd.). Paragraphs 2-5 of the said statement of claim read:-

“2. The 1st defendant states that if the claim which ‘he contends’ is none the less sustained, he is entitled to be indemnified by the third party to the extent of the plaintiff’s claim and costs (including the 1st defendant’s costs) by virtue of a policy of insurance entered into between the 1st defendant and the third party on or about the 18th February, 1959, whereby the third party covenanted to indemnify the 1st defendant against all sums which the 1st defendant shall become legally liable to pay in respect of bodily or other injury to any person arising out of the use of the aforementioned vehicle.

  1. The 1st defendant avers that sometime in 1959, his solicitors, Thomas, Williams and Kayode, gave notice of an alleged accident to the third party and warning them of their responsibility on the policy should the 1st defendant be held liable for the alleged accident.
  2. By another letter dated 21st April, 1964, the 1st defendant by his solicitors wrote to the third party informing them of the plaintiff’s claim and reminding the third party of their duty under the said policy of insurance.
  3. The third party has refused or neglected to indemnify the 1st defendant under the said policy in the event of the plaintiff succeeding in his claim against the 1st defendant. Whereof the 1st defendant claims to be indemnified by the third party to the extent of the plaintiff’s claim against the 1st defendant should the plaintiff succeed on the said claim.”

The third party’s reply to the above averments is in paragraph 3-9 of their statement of defence and reads:-

“3. Paragraphs 2 and 3 of the 1st defendant’s statement of claim are denied by the third party.

  1. The third party admits the receipt of the 1st defendant’s solicitor’s letter dated 21st April, 1964, and gave a reply by letter dated 27th April, 1964, denying the receipt of any alleged notice from Thomas, Williams and Kayode, Solicitors or from anybody in 1959 as alleged or at all.
  2. The 1st defendant insured with the third party under policy No. MB.605426/L and as a result of non-compliance with the terms of the said policy by the 1st defendant, the third party by letter on 22nd August, 1960 repudiated all liability to him under the said policy for the alleged accident. The third party will refer in detail to the terms and conditions under the said policy at the trial.
  3. It was a term of the said policy of insurance that the 1st defendant shall within 12 months of such repudiation refer the matter to arbitration.
  4. The 1st defendant did not refer the matter to arbitration within 12 months as provided in the policy and did not do so at any time.
  5. Further it was a term of the said policy that the making of any award by an arbitrator shall be a condition precedent to any right of action against the third party by the 1st defendant and that such condition precedent has not been fulfilled.
  6. That no dispute has arisen between the third party and the 1st defendant in the matter.

Whereupon the 1st defendant is not entitled to be indemnified by the third party.”

From the above averments, it is clear and beyond dispute that the liability of the third party in the present claim was a matter between them and the 1st defendant. No issue existed and none was joined between them and the plaintiff.

At the hearing on 12th January, 1966, Dr. Bailey (1st P.W.) an orthopaedic surgeon gave evidence as to the extent of the injuries sustained by the plaintiff from the motor accident. The plaintiff himself also testified that day in support of his claim. In answer to a question put to him under cross-examination by the leamed counsel for the third party, the plaintiff replied as follows:-

“Following the accident I was paid 212=12=6d(pounds) compensation by my employers. This was under the Workmen’s Compensation Act.”

On 1st February, 1966, the 2nd defendant appeared at the hearing in person. As we had pointed out earlier he filed no statement of defence. At the hearing that same day, Isaac Fafiolu (5th pl.w.), the driver of the plaintiff’s vehicle, testified as to circumstances leading to the collision between the 1st defendant’s tipper lorry driven by the 2nd defendant and his own vehicle and how the plaintiff’s right arm was fractured as a result. He was followed by Moses Abohwo (6th pl.w.) the policeman to whom the accident was reported and who went to the scene of the accident not long after. Another witness called by the plantiff is James Olabode Idowu (7th p.w.) a clerk in the Ministry of Agriculture, who was in charge of Establishment and Records at the material time. He testified as to the record of service of the plaintiff and how, because of his inability to continue his work as Field Overseer due to the injuries he sustained from the motor accident, he had to be invalided out of the service. To a question asked by the learned counsel for the third party under cross-examination, this witness replied:-

“I have no record of any payment having been made to the plaintiff as a result of this accident.”

The case was then adjourned to 23rd February, 1966.

At the resumed hearing on that date, the Court granted an application by learned counsel for the third party to amend the third party’s statement of defence by the addition of a paragraph 10 which reads:-

“10. If there is an indemnity as claimed by the 1st defendant which is denied the third party will contend that the plaintiff has no cause of action at common law.”

In his defence, the 1st defendant testified as follows:-

“The 2nd defendant was not my driver. I have never employed him. He never drove in the course of my employment. It was on my return from Europe that I was informed that the vehicle had been involved in an accident; that was in December 1959.”

He then testified about the communication which he had with the third party through his solicitor with respect to the accident. In answer to a question asked by the court, he admitted that the driver (2nd defendant) was employed at the material time by a firm known as the Construction Supplies Company of which he was one of the partners. He also admitted that it was another partner (Mr. Akinwunmi) who informed him of the accident on his return from Europe.

In his own testimony, the 2nd defendant admitted that he was the driver of the tipper lorry No. LD. 4429 on the material date but denied colliding with the plaintiff’s vehicle on that day or at all. He said he was employed by one Mr. Akinwunmi to drive the lorry and not by the 1st defendant. Under cross-examination, he admitted that the 1st defendant was one of the owners of the business for which he was working as a driver.

The third party called one David Greig. He said that the 1st defendant did not report the accident to them nor did he complete any accident report form up till the time he gave evidence in court. He further stated that it was the plaintiff’s solicitors who informed them of the accident.

In his judgment, the learned trial judge, when considering the position of the third party, observed as follows:-

“The third party, the insurers of the 1st defendant’s vehicle, had on the 4th January, 1965 been joined by an order of the Honourable Court made by Adedipe J., on an application made to him in that behalf by the 1st defendant. The purport of the application was to enable the assured to be indemnified by the insurers should plaintiff succeed in his claim.”

He then proceeded to find as follows:-

“In his final submission, it was contended by Mr. Sofola for the insurance company that the plaintiff had exercised the option open to him under the Workmen’s Compensation Act and the present claim is no longer maintainable. It was contended by Mr. Molajo for the plaintiff that the Workmen’s Compensation Act was not pleaded and consequently the defence could not rely on it to bar the plaintiff’s claim. But in Willis’s Workmen’s Compensation Act 37th Edition at p. 546, it is there stated by the learned author that:-

‘If it is proved during the hearing of the action against a stranger that the plaintiff has already recovered compensation from his employer, it is submitted that the judge is bound to give effect to the section and to give judgment for the defendant and that this right to judgment is not prejudiced by the fact that the defendant had knowledge of such recovery and has not given notice of the defence … .’

There is evidence that the defence knew that the plaintiff had been paid compensation under the Act. The plaintiff himself … under cross-examination. Even if the defence knew and did not plead it, the court would still be obliged to give effect to the provisions of section 26(a) of the Workmen’s Compensation Act aforesaid-vide Oliver v. Nautilus Steam Shipping Co. Ltd. [1903] 2 K.B. 639 ….

The question here is whether, in view of the provision of section 26(a) of the Workmen’s Compensation Act, a plaintiff who has already been paid compensation by his employers can maintain a subsequent action for damages based on the same injury My answer to the question is clearly in the negative.

The result therefore is that this action fails and is hereby dismissed.”

The plaintiff has now appealed against this judgment. His grounds of appeal are:-

(1) that the learned trial judge misdirected himself in law by holding that because the plaintiff accepted compensation for the injury from his employers under the Workmen’s Compensation Act he could not succeed at common law when there was no evidence that the plaintiff made an irrevocable option or that he knew that he had a right of action at common law apart from the right to compensation under the said Workmen’s Compensation Act.

(2) that he erred in law in failing to direct his mind to the evidence before him and thereby failed to consider whether the plaintiff would have failed or succeeded on the facts had he not received the compensation alleged; and

(3) that the judgment is against the weight of evidence.

In support of the first ground of appeal, Mr. Molajo for the plaintiff/appellant submitted that before the plaintiff/appellant could be debarred from claiming damages at common law there must be evidence that he was aware of the option open to him at the time he accepted the compensation under the Workmen’s Compensation Act (Cap. 222). Learned counsel then referred to section 27 of Cap. 222 (which is the same as section 29 of the English Workmen’s Compensation Act of 1925) which provides that there should be a written agreement signed by the plaintiff/appellant before he could be debarred from claiming. He then submitted that not only did the plaintiff/appellant not sign any written agreement as required by section 29, no evidence was adduced to show either that he was literate or that he was aware of his right to claim damages at common law at the time when he received the compensation. He then referred us to four cases namely Western Nigeria Trading Co. v. Ajao (1965) N.M.L.R. 178; Burke and Unsworth v. Elder Dempster Lines Ltd. [1939] 3 All E.R. 339; Deane v. H.F. Edwards and Co. Ltd. [1941] 2 All E.R. 274 at p. 281; Young v. Bristol Aeroplane Co. Ltd. [1946] 1 All E.R. 98 at p. 104; and Olsen v. Magnesium Castings and Products Ltd. [1947] 1 All E.R. p. 333. We agree that these cases show that if a plaintiff does not know that he has an option under the Workmen’s Compensation Act between accepting compensation under the Act and claiming damages at common law, he would not be debarred from claiming such damages. Thus in Young v. Bristol Aeroplane Co. Ltd. (supra) it was held that where a workman accepted some payments under the Act, in ignorance of the option, the alternative remedy was not lost. Again in the recent case of Knipe v. British Railways Board [1972] 2 W.L.R. at p. 131, Lord Denning, M.R., made some pertinent observations with respect to section 29 of the English Workmen’s Compensation Act of 1925. The observations show that the views of the English courts as to awareness of the option by the workman are still the same. This is what Lord Denning said:-

“British Railways said that, under section 29 of the Act of 1925, Mr. Knipe had an option either to take workmen’s compensation or to claim damages at common law. They said that he had received five weeks’ workmen’s compensation and thereby exercised his option ….

Cussack J. has found here that, although Mr. Knipe received payments, he did not know they were workmen’s compensation payments. He thought they were sickness benefit. In any case, it is plain that he did not know he had an option of claiming one or the other. He is, therefore, not barred by section 29 of the Workmen’s Compensation Act, 1925.”

It must be pointed out, however, that all these cases deal with acceptance of compensation under section 29 of the English Act, (the equivalent section in our own Act is section 27). That section deals with a claim in respect of an injury caused by the personal negligence or wilful neglect of the plaintiff’s employer or of some other person for whose act or default the employer is responsible. None of them applies to the circumstances of the instant case where the plaintiff has claimed not against his employer who had paid him compensation but against a stranger whose negligence caused the injuries for which he claimed damages. The relevant section in this respect is section 30 of the English Act or section 26 of our own Act and on which the judgment now appealed against was based.

The next question, therefore, is whether the views expressed in the cases to which learned counsel had referred us and which apply to section 29 of the English Act apply equally to a claim made under section 30 of the said Act. Section 26(a) of our own Act which is similar to section 30 reads:-

“26. Where the injury in respect of which compensation is payable under this Ordinance was caused in circumstances creating a legal liability in some persons other than the employer to pay damages in respect thereof:-

(a) the workman may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Ordinance for such compensation, but shall not be entitled to recover both damages and compensation.”

The section was considered in Elligott v. Nebbett [1948] 1 All E.R. 514.

In that case an injured workman received payments from his employer on the understanding that they were not to prejudice his right of action at common law against a stranger in respect of his injury, and would be repayable by him in the event of his succeeding in such action, but would otherwise be treated as payments of workmen’s compensation. When the plaintiff claimed damages from the defendant for the injury on these facts, the defendant pleaded that the plaintiff was precluded from claiming damages by section 30(1) of the English Act of 1925 because he had already recovered workmen’s compensation from his employers. The court held that the plaintiff had not recovered compensation in such circumstances as to make the bar imposed by section 30( 1) of the English Act available to the defendant. This decision, with which we entirely agree, shows, albeit by implication, that the law applies to a defence raised under section 26 of our own Act and that the acceptance of compensation by a workman under our Act is a bar only if the workman knows or is deemed to know that he has an option as to whether to accept compensation under the Act or to claim damages from the stranger at common law.

In the case in hand there was no evidence before the learned trial judge that the plaintiff knew, or ought to have known, of this option at the time he accepted compensation from his employers. That being the case the learned trial judge should not have dismissed his claim on the ground that he had accepted such compensation.

With respect to the second and third grounds of appeal, learned counsel for the appellant contended that since the 1st and 2nd defendants never pleaded the acceptance of compensation under the Workmen’s Compensation Act as a defence to the claim, that defence was therefore not open to them and the learned trial judge should not have used the plea of the third party in their amended statement of defence to dismiss the plaintiff’s claim. It was further submitted that on the admissible evidence as it stood, both the evidence given by the plaintiff in answer to questions asked by the learned counsel for the third party as well as the defence of the third party should have been ignored and judgment given on the merits. For the respondents, it was submitted that even if the defence available under section 26 had not been pleaded, it was the duty of the court to take notice of it and to refuse the plaintiff’s claim if the defence was sustained.

As part of the judgment of the learned trial judge to which we had earlier referred, the court held that even if the defence knew and did not plead section 26(a) of the Workmen’s Compensation Act, the court would be obliged to give effect to it and relied on Oliver v. Nautilus Steam Shipping Co. Ltd. [1903] 2 K.B. 639, and a quotation from Willis’ book on Workmen’s Compensation as authority for this view. Having looked at Oliver’s case we are convinced that that case is no authority for the proposition that the Workmen’s Compensation Act need not be pleaded by any person relying on it. The whole of the quotation from Willis’ on which the learned trial judge also relied reads:-

“Procedure-If it is proved during the hearing of the action against a stranger that the plaintiff has already recovered compensation from his employer, it is submitted that the judge is bound to give effect to the section and to give judgment for the defendant; and that this right to judgment is not prejudiced by the fact that the defendant had knowledge of such recovery, and has not given notice of the defence under Order IX rule 4 of the County Court Rules, 1936.”

In the first place, this quotation merely puts forward the submission of the learned author and not a single authority was cited in support. Moreover, it is obvious that the learned author had the County Court Rules, 1936, in mind in his submission. We do not think we should be mesmerised by the authority of print particularly when the submission of the learned author is at variance both with our Rules of Court and with a long line of authorities such as Akwei v. Akwei 9 W.A.C.A. III at p. 115; NIPC v. Bank of West Africa Ltd. [1962] 1 All N.L.R. 556 at pp. 565-566; Paul v. George (1959) 4 F.S.C. 198 at p. 201; Ochonma v. Unosi (1965) N.M.L.R. 321; and Yassin v. Barclays Bank D.C.O. (1968) N.M.L.R. 380, where it had been held that a defendant must plead facts or statutes (or facts indicating the defence under such statutes) on which he intends to rely. In this connection, we also refer to Order 32, rule 13 of the Supreme Court Rules (Cap. 211 of the Laws of Nigeria, 1948 applicable in Lagos State) to which we refer in Yassin v. Barclays Bank (supra) which read:-

“The defence must allege any fact not stated in the statement of claim on which the defendant relies in defence, as establishing, for instance, fraud on the part of the plaintiff, or showing that the plaintiff’s right to recover or to any relief capable of being granted on the petition, has not yet accrued, or is released, or barred or otherwise gone. ”

This rule clearly shows that the fact that the plaintiff/appellant had received compensation from his employers must be specially pleaded by the 1st and 2nd defendants/respondents if they wish to rely upon it. A submission by Willis in his book cannot override the rule of court. It is our view that as they had not pleaded it the court should not have relied upon it when considering the plaintiff/appellant’s claim against them.

We will now proceed to consider the averment of the third party in paragraph 10 of their amended statement of defence which reads:-

“If there is an indemnity as claimed by the 1st defendant which is denied the third party will contend that the plaintiff has no cause of action at common law.”

We must point out that the third party had never disputed the plaintiff’s claim against the 1st and 2nd defendants/respondents. As a matter of fact their amended statement of defence was filed in answer to the averments in the statement of claim filed, not by the plaintiff/ appellant, but by the defendants/respondents wherein they claimed an indemnity against the third party. Throughout the proceedings the third party did not ask for, nor was he granted, leave to join as defendant in the action brought by the plaintiff/appellant against the defendants/ respondents. As a result, the third party never filed a defence to the plaintiff/appellant’s statement of claim. All the third party disputed, having regard to their pleadings, was their liability to indemnify the defendants/respondents who had claimed an indemnity against them.

The procedure with respect to a third party is clear. If a third party disputes the defendant’s liability to the plaintiff, the court may, on the application of the defendant, give directions which may include a direction that the third party shall have liberty to defend the action. The third party will then ask for leave to defend. We refer, in this respect, to the Order 16, rule 4(4) of the English Rules of the Supreme Court which is applicable and which reads:-

“(4) On an application for directions under this rule the Court may give the third party leave to defend the action, either alone or jointly with any defendant, upon such terms as may be just, or to appear at the trial and to take such part therein as may be just, and generally may make such orders and give such directions as appear to the Court proper for having the rights and liabilities of the parties most conveniently determined and enforced and as to the extent to which the third party is to be bound by any judgment or decision in the action.”

Where the third party obtains leave to defend the action against the plaintiff he will in general be allowed to do so upon any grounds which would have been available to the original defendant as a defence to the plaintiff’s claim. (See Callendar v. Wallingford (1884) 53 L.J.Q.B. 569). An insurer will, however, not be allowed to be added as defendant merely to enable a declaration of liability to be obtained where, as in the instant case, no dispute exists between him and the plaintiff. (See Carpenter v. Ebblewhite [1939] 1 K.B. 347 at pp. 357-358; and New India Assurance Co. Ltd. v. Odubanjo S.C. 85/1969 (unreported) of 8th October, 1971.)

In the present case, although the defendants/respondents applied for directions, none was given by the court and so no leave was granted to the third party to defend against the plaintiff/appellant’s claim. Instead, the court, on 22nd February, 1965, merely ordered pleadings as between the defendants/respondents and the third party, the defendants/ respondents to file their statement of claim within 30 days and the third party to file their statement of defence within 30 days thereafter. The effect of this was that the third party were neither parties to the plaintiff/appellant’s claim against the defendants/respondents nor did they file any defence to the plaintiff/appellant’s statement of claim, the amendment to their statement of defence notwithstanding. For this reason, the learned trial judge, since no defence under section 26(a) of the Workmen’s Compensation Act was properly raised against the plaintiff/ appellant’s claim even by the the third party should not have based his decision on it. He was therefore in error in holding that the payment of compensation was a bar to the plaintiff/appellant’s claim.

For the reasons which we have given above, this judgment, based as it were on a defence not put forward by the defendants/respondents and which was not therefore in issue between them and the plaintiff/appellant, cannot be allowed to stand. The defence was raised by the third party who, as we have shown, were not competent to raise it against the plaintiff/appellant having regard to the particular circumstances of the case.

The appeal is therefore allowed and the judgment of the Lagos High Court in Suit No. LD/443/63 delivered on 9th May, 1966 is hereby set aside. The case is accordingly remitted to the High Court for Lambo Ag. C.J., who originally heard the case, to decide the claim on the merits. Costs of this appeal in favour of the plaintiff/appellant are assessed at 72 guineas while the costs in the court below will abide the result.


Other Citation: (1972) LCN/1437(SC)

Sule Iyanda Salawu V. The State (1972) LLJR-SC

Sule Iyanda Salawu V. The State (1972)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

On February 24, 1971, the accused was at the Oshogbo High Court convicted by Ogunkeye, J., of the murder of one Ramota Abeo and sentenced to death. His appeal to the Western State Court of Appeal was dismissed and the conviction and sentence were affirmed on June 28, 1971. When his appeal to this court was heard on August 14, 1972, we dismissed it, and now give our reasons for so doing.

The facts were briefly as follows: the 2nd to the 5th prosecution witnesses deposed that they, the deceased and the appellant lived in the same house at Ogbagba village in the Ede District of Western State of Nigeria, and that the 2nd prosecution witness is appellant’s uncle, the 3rd prosecution witness is his mother, the 4th prosecution witness is his father, the 5th prosecution witness is appellant’s uncle’s (2nd P.W.’s wife), while the deceased was appellants’s father’s (4th P.W.’s) junior wife.

They further deposed that on April 16, 1968, all six of them had their evening meal together in the common hall of their house, and retired to their respective bedrooms between 9 and 10 p.m; that, shortly thereafter, they heard a loud exclamation in Yoruba “Sule pa mi o!” meaning in English “Sule is killing me!” or “Sule, you are killing me!”; that, on rushing out of their rooms, they found Ramota Abeo lying on the floor of the common hall covered with blood and already dead, but showing a severe laceration at the back; that the accused, who shared his father’s room because he had no separate one of his own, was nowhere to be found.

The appellant’s uncle (2nd prosecution witness) then set out that night for Ede where he lodged a complaint at the Local Government Police Station whence he was directed to the Nigeria Police Station at Oshogbo where four police constables were detailed to accompany him back to Ede. There, the appellant, who had apparently been arrested and detained by the Ede Local Government Police, was found and taken to Ogbagba village by the four policemen and the 2nd P.W.

On arrival at the scene of the crime, the party saw the corpse of the deceased, collected it together with an axe found by the side of the body and removed them to Oshogbo, where the 1st Prosecution witness, the Medical Officer in charge, performed a post mortem examination on the corpse. In order to obtain the Pathologist’s opinion in respect of the suspected blood stains on the clothing and the axe, the latter were sent to the Forensic Science Laboratory at Oshodi in Lagos. When, in due course, the appellant was charged with the deceased’s murder, he made a statement, Exhibit A (A1 in English translation) to the 6th prosecution witness, the investigating police officer, and later confirmed it before the 7th prosecution witness, a superior police officer, who countersigned Exhibit A.

The appellant at the trial denied having made the statement (Exhibit A), but admitted that part of the statement which said that he fought the deceased because she did not give him food. He also said that he could not remember the time of the deceased’s death or any subsequent event until his arrest by the Ede police. After a careful and detailed review of the evidence, the learned trial Judge convicted the appellant of the murder of Ramota Abeo and sentenced him to death.

Of the five additional grounds of appeal filed by Mrs. Solanke, learned counsel for the appellant, only the following three grounds were argued before the Western State Court of Appeal:

“1.  The learned trial Judge erred in law by his failure to investigate whether or not the appellant was of sound mind in view of:-

(a)  the following finding by the Judge: ‘Here indirectly in my view, the defence was raising the defence of insanity. I have to say that the fact that a person makes a meaningless or inconsistent statement does not prove he is insane at any particular time.

(b) The nature of the evidence of the appellant in his own defence.

2. The learned trial Judge misdirected himself when he held that upon the circumstantial evidence before him, the guilt of the appellant was the only reasonable inference which was possible and thereby came to a wrong conclusion.

3. The learned trial Judge misdirected himself when he held as follows:-

There are facts, in my view, outside the confession which make it probable that the accused did make it, particularly that he did say he used an axe to inflict a cut on the back of the deceased. I therefore find that the statement attributed to the accused was made by him and being a confessional statement, it concludes the case against him’”.

The learned trial Judge pointed out the confessional statement, though retracted in court at the trial, was independently corroborated by the evidence of the 2nd to the 5th prosecution witnesses in all essential particulars. Moreover, the doctor’s post mortem report corroborated the fact that the deceased had a laceration at the back, and the evidence of Yakubu Abudu (6th prosecution witness) confirmed that the appellant was arrested at Ede and thence taken to his village. In our view, the Western State Court of Appeal was, therefore, right in accepting the learned trial judge’s treatment of the appellant’s confessional statement as evidence of what had happened. The prosecution witnesses, including the appellant’s father and mother as well as his uncle, gave an unchallenged account of how they found in the common hall the corpse of the deceased, following her exclamation “Sule pa mi o!”. The Court of Appeal, quite rightly in our view, accepted his declaration as “res gestae”, a point conceded by Mrs. Solanke, learned counsel for the appellant. See Oruakpo Okokor v. The State (1967) NMLR 189. The Court of Appeal was equally in order when it dismissed the appellant’s counsel’s contention that there was discrepancy between the charge which gave April 16, 1968 as the date of death and the post mortem report which would seem to suggest April 15, 1968, in these words:

“We are of the view that the doctor’s evidence, although an opinion of an expert, would not necessarily be given with mathematical precision. On opinion evidence as to time and dates of deaths, ages or other matters where opinion of an expert is sought for, it is sufficient if it is given with near correctness giving due allowance to minimal and negligible inaccuracies as it is in this case. Such minor inaccuracies cannot be held to be fatal to the charge.”

With regard to the first ground of appeal about insanity, Mrs. Solanke argued that the learned trial Judge should have directed that an investigation be conducted into the mental condition of the appellant in view of the latter’s statement in Exhibit A1:

“Yesterday night on 16/4/68 after we have taken our last supper about 8 p.m. myself and Ramota Abeo fought because she did not give me food to eat.”

The Court of Appeal found that the learned trial judge had been right in holding that the appellant “was telling a lie and was only looking for a reason for the crime to justify his action.” The court also pointed out:

“Apart from the passage in the statement referred to, everything in it is in sequence, coherent and rational. If the appellant was insane why did he wait for the cover of the night before the attack Why did he allow everybody apart from himself and the deceased to leave the common hall before the attack Why did he run away immediately after the shout and before the 2nd to the 5th P.Ws. came out Why did he run to Ede his hometown Why was he able to remember all the sequence of events apart from the unintelligible part which was in our view a naive defence on his part We are of the view that the comments and finding of the learned Judge on the question of supper did not raise any question of insanity as to warrant the conduct of any enquiry on the matter.”

The learned Justices of the Western Court of Appeal then concluded as follows:

“We cannot find anything in the record to justify the conclusion that the appellant was on account of either physical or mental condition unable to follow the proceedings nor could it be said that there were circumstances warranting the inference that the learned trial Judge never had it in his mind that whether or not the appellant was fit to stand his trial was a common concern to him as it was to the defence as otherwise he could not have adjourned for a month for the defence counsel to conduct an  investigation as to the appellant’s antecedent. We are of the view that the first ground of appeal must also fail.”

We think that this was a right conclusion on the part of the Western State Court of Appeal. Mr. Akinola, learned counsel for the appellant said before us that he had nothing to urge in favour of the appellant.

For these reasons we dismissed the appeal.


SC.240/1971

United Nigeria Insurance Co V. Muslim Bank (West Africa) Ltd (1972) LLJR-SC

United Nigeria Insurance Co V. Muslim Bank (West Africa) Ltd (1972)

LawGlobal-Hub Lead Judgment Report

ELIAS, C.J.N.

 In suit No. LD/597/67 in the High Court of Lagos, the plaintiffs claimed against the defendants the sum of 550 pounds as damages suffered by the plaintiffs from the defendant’s negligence in failing to make inquiries about a customer upon opening an account and collecting the plaintiff’s crossed cheque for the said sum dated February 14, 1967, and drawn in favour of one Mr. Olatunde Odubiyi, a barrister-at-law of Abeokuta, which said cheque was wrongfully dealt with by the defendants.

After due hearing, the learned trial Judge, Sowemimo, J., (as he then was), found the defendants not liable on the claim and awarded them fifteen guineas costs. He, however, made an order that the defendants refund to the plaintiffs the sum of 300 pounds. 10/, being the amount then standing in the name of one Olatunde Odubiyi who kept an account with the defendant Bank and who had since disappeared. From this judgment appellants have appealed to this court.

The facts were that the plaintiffs, an insurance company, drew a cheque for 550 pounds on their bankers, the Standard Bank of West Africa Ltd., Marina Branch, Lagos, now known as the Standard Bank of Nigeria Limited, in favour of Mr. Olatunde Odubiyi, barrister-at-law, for value in settlement of an insurance claim arising out of a motor accident which occured on or about July 13, 1966, along the Lagos-Abeokuta Road on behalf of his client, Madam Simbiatu Popoola. The cheque was endorsed “Not negotiable A/C/ Payee only” and was crossed. The cheque having apparently been stolen was presented to the defendants with a forged endorsement upon it purporting to have been made by the said Olatunde Odubiyi. The amount of 550 pounds on the cheque was collected by the defendants from the plaintiff’s bank for this man who had opened an account in the sum of 3 pounds with the defendant bank. The plaintiffs had on demand paid to the said Olatunde Odubiyi another amount of 550 pounds in settlement of the insurance claim.

It was the plaintiffs’ case that the defendants as bankers acted negligently and in bad faith in collecting from the plaintiffs’ bank the cheque for 550 pounds. The defendant’s alleged specific acts of negligence and bad faith consisted, according to the plaintiffs in failure to obtain necessary references on opening of the account for the fictitious Olatunde Odubiyi, failure to obtain necessary authority from the Standard Bank before parting with the proceeds of such a large cheque, failure to make necessary inquiries from the plaintiffs, (who are well known), as to whether the said cheque was in order before collecting the proceeds thereof and parting with the same which inquiries could have been promptly and easily made, failure to take into consideration the unsatisfactory banking record and dealings of the “stranger and/or thief” and failure to conform with the code of procedure adopted by members of the Nigerian Bankers Committee in dealing with new customers and crossed cheques. The defendants, on the other hand, had averred in his Statement of Defence, that one of their customers named Olatunde Odubiyi deposited into his account with them the cheque in question for 550 pounds on February 25, 1967, that this cheque was subsequently collected for him from the bank on which it was drawn, that they received payment of the cheque from the paying banker in good faith and without negligence, that the person for whom they collected the cheque was a customer, and that, as the cheque was crossed, they claimed all the protection afforded by the Bills of Exchange Act to collecting bankers.

What happened was that Mr. Olatunde Odubiyi opened a savings account with the sum of 3 pounds on February 23, 1967, and two days later, on  February 25, 1967, he lodged a cheque for 550 pounds with the bank. On March 3, 1967, he withdrew 2 pounds.10/ and, on March 6, 1967, he withdrew a further sum of 250 pounds, leaving a balance of 300 pounds.10/ in the account.

The police officer (Sergeant Albert Ogunro) to whom a report was made about the stolen cheque, tendered the bank statement of account, and said that, on inquiry at the address given him by the defendant bank, he found the customer Olatunde Odubiyi had never lived there; he added that the alleged customer had never been produced up to the date of  hearing of the case in Court.

The defendants alleged having received from the customer a letter of introduction from the plaintiffs who, on being shown, denied ever having issued such a letter. The police officer then returned the forged letter to the defendant bank, but it was never produced at the trial. The learned trial Judge observed that “the letter was not produced either by the police officer who investigated the case or the defendants”, and later in his judgment, “I have not been told why that letter has not been produced. If the defendant bank had acted on that letter I do not see what other enquiries they were expected to make.”

The learned trial Judge rejected the plaintiffs’ allegations that failure to obtain the necessary authority before parting with the proceeds of such a large cheque, to enquire of the plaintiff whether the cheque was in order before collecting the same, and to take into consideration the unsatisfactory banking record and dealings of the said Olatunde Odubiyi amounted to negligence.

But we consider that the learned trial Judge should not have rejected the allegations of negligence relating to the defendants’ failure to obtain necessary references and to follow necessary banking practice on the opening of an account. As regards the ground of negligence alleged to consist in the defendants’ failure to conform with the code of procedure adopted by members of the Nigerian Bankers Committee in dealing with new customers on crossed cheques, the only evidence adduced by the plaintiff was that of the Chief Clerk of the Standard Bank of West Africa- Mr. Alfred Adeyemi Beckley, who had admitted not being himself a member of that Committee; it was nowhere shown in evidence that he was a member. We are prepared to ignore the submission by Mr. Sofola, learned counsel for the appellants that Mr. Olatunde Odubiyi was not a customer of the defendant Bank, but we disagree with the learned trial Judge that “no negligence had been proved against the defendant bank.” It may be asked: On what ground did the learned trial Judge order that the balance of 300 pounds.10/ still standing in the bank account of the said Olatunde Odubiyi, who had since disappeared, be paid to the plaintiffs

Mr. Sofola, in his submissions argued all the grounds together in order to avoid repeating himself, since the grounds as filed tend to overlap. He cited Baker v. Barclays Bank Ltd. (1955) 2 All ER 571, in support of his contention that there is a universal practice for collecting banks to require reference before paying cheques. The court observed however, that whereas in the Baker case (supra) the bank in question gave evidence in the case on appeal, the defendant bank had given none at the trial. Mr. Sofola also referred us to Motor Traders Guarantee Corporation Limited v. Midland Bank Ltd., (1937) 4 All ER 90, at p. 95, as supporting his submission that the collecting bank must have regard to the customer’s banking history, which in this case covered only the three items in the relevant statement of account. We consider that R.E. Jones Ltd. v. Waring and Gillow Ltd., (1926) AC 170 to which he next referred us, which was a case of an attempt to recover money paid by mistake, has no relevance to a collecting banker’s responsibility for the payment of cheques. Mr. Sofola finally cited Mafiani & Co. Ltd. v. Midland Bank Ltd. (1968) 2 All E.R. 573, where the collecting bank had obtained only one of the two references it demanded and had on the strength of that one reference opened an account for a new customer who within a week rapidly ran down the account and disappeared. The Bank in that case was held not negligent for the purpose of the English Cheques Act, 1957.

There, Lord Wright’s dictum in Lloyds Bank Ltd. v. Savory (1933) AC 201 had been
referred to as being in support of the view that it is the duty of a banker, when opening a new account, to ascertain the name of the customer’s or customers’s spouse’s employer, in addition to obtaining suitable references. Mr. Sofola, therefore, submitted that the defendant bank had been negligent in opening an account for a new customer without having obtained any reference as to identity and character; and that, by so doing, it had not followed the standard of the reasonable banker, as it had failed to give evidence of a satisfactory mode of conducting its banking business.

Mr. G.O.K. Ajayi for the respondents submitted that the defendant bank had not been negligent. He said he would rely on Section 2(2) of the Nigerian Bills of Exchange Act, 1964 which he claimed to be in pari materia with Section 88 of the Federal Bills of Exchange Act, 1909, of Australia.

He cited Commissioners of Taxation v. English. Scottish and Australian Bank Ltd. (1920) 36 TLR 305 and quoted extensively from the judgment the facts of which he stressed were hardly distinguishable from those of the defendants’ case, and in which the Privy Council had ruled that the collecting bank was not liable in negligence. Counsel tried to show by means of Exhibit K that the defendant bank had taken all necessary steps to obtain a reference and so prevent fraud, but he could not satisfy us as to why his clients had failed to produce the alleged letter at the trial. He, however, insisted that the defendants were not put on enquiry as to the cheque presented by the customer (who had soon thereafter disappeared) was regular on the face of it, it having been unnecessarily endorsed at the back by the payee to himself. He, too, cited Motor Traders Guarantee Corporation Ltd. v. Midland Bank Ltd., (supra) in support of this his final submission.

We must first point out that the Commissioners of Taxation Case (supra) on which Mr. Ajayi rested his case was in the later case of Savory & Co. v. Lloyds Bank Ltd., (1932) 2 KB 122 distinguished and clarified, per Lawrence LJ., at p. 144., as follows:

“In the later case (Commissioner of Taxation v. English, Scottish and Australian Bank) Lord Dunedin, in delivering the judgment of the Board, after stating that the standard of care to be taken by bankers which had been laid down by the Chief Justice in the High Court of Australia as not being less than a man invited to purchase or cash a cheque for himself might reasonably be expected to take, was inapposite, said at p. 306: “If, therefore, a standard is sought, it must be the standard to be derived from the ordinary practice of bankers, not individuals. In my judgment neither of the pronouncements so relied upon was intended to cover such a case as the present, where bankers, solely for the convenience of their customers, have adopted a system with an inherent and obvious defect which no reasonably careful banker could fail to observe. The respondent bank did not adduce any evidence tending to justify the system from the point of view of the true owner of the cheques collected under it:
….
“In my opinion, bankers who have disregarded their statutory duty towards the true owner of the cheques collected by them for a customer cannot, when challenged by the true owner, successfully plead that they have acted without negligence in his case because for a long time they and other bankers have acted in disregard of their statutory duty in other cases.”

In Lloyds Bank v. Savory & Co. (1933) AC 201, on appeal before the House of Lords, P. and S. were clerks in the employment of a firm of London Stockbrokers and managed to have crossed cheques of certain of their employers’ customers paid into the London bank’s two country branches at one of which P had an account and, at the other, Mrs. S. had an account, The manager of P’s country branch bank knew he was a stockbroker’s clerk but did not know and did not ask the name of his employers. Mrs. S’s branch bank knew nothing of S. Both P and Mrs. S. had, however, given references which appeared satisfactory to the respective branch managers. P. stole many cheques and paid them in at one or other of the bankers’s London branches. The stolen cheques were in each case received by the London Officer and sent to the Clearing House. When P’s acts were discovered, the stockbrokers sued the bankers for conversion of the stolen cheque, and the bankers pleaded Section 82 of the Bills of Exchange Act, 1882, alleging that they had in good faith and without negligence received payments of the cheque for their customers P and Mrs. S. It was held by a majority of 3:2 of the House of Lords, confirming the court of Appeal which had earlier affirmed the trial Judge’s ruling, that the managers of the crediting branches had omitted to make sufficient inquiries when accepting P and Mrs. S. as customers and that, in the circumstances, the bankers had failed to prove that they had acted without negligence, and consequently, that they were liable. Lord Wright was particularly instructive regarding the scope of the Commissioners of Taxation, when he said, at pp. 230-1:
“It is true that the question of absence of negligence must be considered separately in regard to each cheque, but it is also true that the matter must be considered as Lord Dunedin says in Commissioners of Taxation v. English, Scottish and Australian Bank (supra), in view also of all the circumstances antecedent and present. There may thus be relevant negligence in connection with the opening of the customer’s account by the banker. It is now recognised to be the usual practice of bankers not to open an account for a customer without obtaining a reference and without inquiry as to the customer’s standing; a failure to do so at the opening of the account might well prevent the banker from establishing his defence under Section 82 if a cheque were converted subsequently in the history of the account: this rule was applied by Bailhache, J., in Ladbroke v. Todd 11 L.T. 43, who on that ground held that the banker had not made out his defence under Section 82.”
It is clear law that if X draws a crossed cheque, marked “A/c Payee Only” on the Y bank in favour of Z and sends it by ordinary post in the course of which is stolen and comes into W’s hands who personates Z by forging his signature and opening an account with a banker with the stolen cheque, the banker will be liable in negligence and will not be protected under Section 82 of the Bills of Exchange Act, 1882 if he fails to make necessary inquiry about W’s identity or character before collecting the cheque for W’s account: Ladbroke & Co. v. Todd (1914) 11 LT 43, approved in Lloyds Bank v. Savory (1933) AC 201.

We, therefore, hold that the defendant/appellant bank was negligent in not obtaining satisfactory references when opening the savings account for Mr. Olatunde Odubiyi or when the latter came to deposit the cheque for 550 pounds two days later especially as they had failed to make an initial inquiry about the prospective customer. The defendant/appellant had failed to observe the standard expected of the reasonable banker.

The appeal is accordingly allowed with costs assessed at 36 guineas.

The judgment and order of the High Court of Lagos in Suit No.LD/ 597/67, including the order for costs, are hereby set aside. Judgment is entered for the plaintiff in the sum of 550 pounds as claimed, with costs assessed and fixed at 60 guineas.


SC.193/1969

Ilu Garba Vs The State (1972) LLJR-SC

Ilu Garba Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

SOWEMIMO, AG. JSC.

We now give our reasons for dismissing this appeal which was heard on the 5th of April, 1972.

The accused was charged with culpable homicide punishable with death contrary to Section 221 of the Penal Code. The particulars of the charge were that the accused on or about the 27th April, 1969,“caused the death of Hamadu Adamu by doing an act, that is, you shot him with an arrow on the left side of the neck with the intention of causing his death.” The incident took place at Ngelshongel Village in Fune District in the North Eastern State.

The appellant was tried before Hague, Ag. J., at the Maiduguri High Court and on 7th July, 1971, he was found guilty and sentenced to death. It is against this conviction that he has appealed to this court.

The facts as found by the learned trial Judge are as follows. The 2nd P. W., one Danso Chindo, went in the evening of the material date to fetch water from a well. On her way there she heard the accused shout the name of the deceased, Amadu, and she observed that the accused had shot the deceased with an arrow at the base of the neck. The arrow head was still hanging from the neck of the deceased. The accused then dragged this witness into the bush to prevent her from reporting the incident at the village. The 2nd P.W. said that, as she was being dragged, the 6th P.W., Umaru Ali, met them. Both 2nd and 6th P.Ws. agreed in their evidence that the accused was carrying a bow and a quiver containing some arrows.

The 2nd P.W. said in the presence of 6th P.W. that the accused had killed someone and, if she the 2nd P.W. did not follow the accused, she also would be killed.

On the evening of the day of the incident the 3rd P.W., one Mohammadu Bagga, said that the deceased came to him with an arrow sticking out of the base of his neck. He asked the deceased twice what had happened, but he was unable to reply. He pulled out the arrow from the neck of the deceased and observed a hole in the wound. Both he and the deceased then went out to look for medicine to apply to the wound, but the deceased collapsed and died before any medicine could be procured. He stated that a friend of the deceased’s father had brought an antidote for the deceased to take but that, by that time, “his jaw had set close” and he could not take it. He left the corpose of the deceased at the scene just as an uncle of the deceased and a Dispensary Attendant arrived.

The 1st P.W. is one Bata Dikwa, a dispensary attendant, who had had 23 years’ experience after his training at the Maiduguri General Hospital which included the examination of corpses. He was at the material date, 28th April, 1969, stationed at Damagun. On receipt of a report at 1 p.m. of that day he proceeded to Ngelshongel which was about 38 miles to Damagun. He arrived there at 6 p.m. and saw the corpse of the deceased.

He took a ‘probe’ with him and examined the wound which he found on the deceased. He described his observation thus:-

“ I uncovered a cloth from the body and examined it. Near the left side at the bottom of his neck there was a wound. It was 21/2 inches deep, half an inch wide and half an inch long. I saw no external blood. I then authorised burial.”

According to 1st P.W. the nearest hospital to Damagun is at Potiskum which is about 58 miles away. As he had no transport he could not convey the corpse to the General Hospital, Potiskum, for examination by a doctor.

The village Head, one Alhaji Buba, gave evidence as the 10th P.W. On receipt of a report he visited the scene where he saw the corpse of the deceased. He observed a wound at the base of the neck and also saw an arrow by the side of the body. The 1st P.W. was then also at the scene beside the body. He then went in search of the accused whom he found with 2nd P.W. and one other person. In his evidence he said that the accused admitted that he shot the deceased because whenever he the accused had occasion to travel out, the deceased “used to go and sleep” with his wife. He then took the accused to Damagun and handed him over to the Sergeant of the Local Authority Police. The 11th P. W., one Mohammed Kawalji, accompanied the accused and the 10th P.W. to Damagun and later to Maiduguri. He acted as interpreter when the accused volunteered a statement to the Police. The accused spoke in Fulani, which was interpreted by him to the police officer in Kanuri, but which was recorded in Hausa. He identified Exhibit A as being a correct statement of the accused which he had interpreted. Exhibit 2 (English translation) reads:-

“I, Ilu Garba I said this with my own mouth, I shot Hammadu Adamu with one arrow near his neck at Ngelshongel and died. What made me to shoot him was that about two years ago now Hammadu was chasing my wife Lami and I saw them with my own eyes. That’s why I shot him.”

Exhibit A2 was made on 4th August, 1969. On the 5th July, 1971, the accused gave evidence in his defence at the trial and denied the contents of Exhibit A. He stated that all that he told the investigating Police Officer was that he had not committed any offence. He denied all that 2nd P. W., 6th P. W. and 10th P. W. stated in court. He said that he was on his way to a well to fetch water for his cattle when he was arrested and that he carried no weapon except a small stick.

The learned trial Judge reviewed the evidence of both the prosecution and the defence and concluded thus:-

“It is a troublesome point in this case that the bow alleged used was never produced and there are discrepancies concerning what accused carried at various times during the incident described by the witnesses. This aspect of the case is unsatisfactory, but I accept what 2nd P.W. said as substantially true. It is obvious she must have been in a distressed condition at her treatment, consequently did not notice at which stage accused abandoned his bow and remaining arrows. I find that he must have done this before 10th P.W. apprehended him, because taking the case as a whole the guilty (guilt) of the accused is overwhelmingly proved and beyond any reasonable doubt it was by his act that the deceased was intentionally shot and killed. There will be a conviction under Section 221 of the Penal Code.”

He then sentenced him to death.

On appeal before us Mr. F. O. Akinrele, the learned counsel for the appellant said that he had nothing to urge in favour of the appellant. On the evidence before the High Court and the findings of the learned trial Judge we are of the view that he had come to a correct verdict. For these reasons we dismissed the appeal.

We observe with some concern the period which the appellant spent in custody between his arrest which was sometime in April, 1969, and his trial at the High Court, Maiduguri which commenced on 14th April, 1971, a period of about two years and two months. We have had occasion in the past to draw attention to this unjustifiably long period of keeping accused persons in custody awaiting trial. In this appeal there is nothing in the record explaining or justifying the long delay.

We wish that this situation should be brought to the notice of the authorities concerned in order to obviate any recurrence. We also wish to re-emphasise that it is of the essence of criminal justice, especially in a capital offence, that there should be a speedy trial.


Other Citations: (1972) LCN/1461(SC)

Amusa Ajani Popoola Vs Pan African Gas Distributors & Ors (1972) LLJR-SC

Amusa Ajani Popoola Vs Pan African Gas Distributors & Ors (1972)

LawGlobal-Hub Lead Judgment Report

ELIAS, CJN

This is an appeal from the judgment of the Western State Court of Appeal delivered on June 3, 1971, reversing the decision of Somolu, CJ., in the High Court of Ibadan delivered on June 8, 1970, in which damages in the sum of £1,831: 18/- and £105 costs were awarded in favour of the plaintiff against the defendants jointly and severally. The plaintiff’s writ of summons in the High Court was endorsed as follows:-

“1. The Plaintiff’s claim against the defendants jointly and severally is for the sum of £2,000 (Two Thousand Pounds) being special and general damages suffered by the plaintiff when on 24/4/68 the second defendant who was the driver of vehicle No. LK 5808 carrying filled Gas Cylinders both properties of the first defendants, parked same in front of the plaintiff’s house situate and being at Ode-Ona, Ibadan, without the plaintiff’s knowledge and consent and both the second and third defendants negligently and or recklessly tampered with the said filled Gas cylinders in the cause of their employment and the Gas Cylinders exploded into fire flames which destroyed the plaintiff’s said house at Ode-Ona, and his properties contained therein.

The second and third defendants were at the material time the servants and/or agents of the first defendants and were at the said material time acting in the cause of their employment as servants and/or agents of the said first defendant.”

The relevant paragraphs of the Statement of Claim are as follows:-

“5. The Plaintiff is the bona fide owner of the house situate at Odo-Ona, Ibadan, erected in 1953.

7. On or about the 28th April, 1966, the second and the third defendants both employees, servants or agents of the first defendant during the course of their duty parked, without the consent of the Plaintiffs, a lorry loaded with filled Gas Cylinders in the premises of the house of the Plaintiff at Odo-Ona.

8. The second and third Defendants after off-loading the said Gas Cylinders in the premises of the Plaintiff deliberately and negligently tampered with the said filled Gas Cylinders and thereby caused them to explode.

9. As a result of the explosion caused by the negligence of the second and third defendants (during the course of their duty), the Plaintiff’s house at Odo-Ona, Ibadan, and all the properties therein were completely destroyed.

11. The Plaintiff will contend at the trial that it was the negligence of the second and third defendants (both employees of the first Defendant) that caused the total destruction of his house and property therein.

12. The Plaintiff will further contend at the trial that the principle of Res Ipsa Loquitor applies with reference to the said explosion.”

The 1st defendant admitted in his Statement of Defence that the 2nd and the 3rd defendants were his employees at the material time, but otherwise denied paragraphs 7, 8, 9, 10 and 11 of the Statement of Claim. It is to be noted that the 1st defendant, who alone defended the action in the Court below and who alone appealed against the judgment, did not deny paragraph 12 of the Statement of Claim on the issue of the plea of Res Ipsa Loquitor. The two other material paragraphs of the Statement of Defence are as follows:-

“4. The 1st defendant will contend at the trial that the 2nd and 3rd defendants were not on the 1st defendant’s business when they stopped and parked in front of the house of the plaintiff.

5. The 1st defendant will contend at the trial that the 2nd and 3rd defendants’ acts in front of the plaintiff’s house were a deliberate breach of their employment with the 1st defendant and against the 1st defendant’s interest.”

The two issues, therefore, which the High Court had to decide were whether the second and the third defendants had been negligent and whether the first defendant as their employer was vicariously liable for their default, if any. In this connection, it is pertinent to recall this finding of the court:

“The first defence witness was James Olubobade, Ibadan Branch Manager, for the 1st defendants since January 1966. He told the Court that the 2nd defendant was employed as a delivery driver on 2nd November, 1964, while the 3rd defendant was employed as a fitter in July 1963, but that he dismissed both of them on 29th April, 1966, as a result of the fire incident at Ode-Ona area on 28th March, 1966.”

After reviewing the evidence before him, the learned Chief Justice said:

“The essential facts in this case are not in dispute, and they are that the 2nd and 3rd defendants who were servants of the 1st defendants on the day in question went in the company’s vehicle which carried several gas cylinders and parked it in front of the plaintiff’s house. There was an explosion involving the gas cylinders in the vehicle and the plaintiff’s house and personal property were completely destroyed. The only dispute was as to whether the two servants were there in the course of their employment or were there on their own business, on a frolic as it were. I must say right away that by the defence raised in paragraphs 4 and 5 of the Statement of Defence, the onus lies squarely on the 1st defendants to establish the contention raised therein by cogent evidence. Once it was agreed that the two men were servants of the 1st defendants on the material date, that they were found in their vehicle at the material time with one of them (i.e. the 2nd defendant) actually driving it and both attending to their masters’ gas cylinders also at the time of the explosion and the fire, there was a prima facie evidence that they were someone for whose negligence the 1st defendants were responsible if there was no evidence to rebut that presumption. See James Onuchuku v. Christiana Williams 12 NLR page 19: Hibbs v. Ross (1866 LR 7 Q.B.) page 534 and Bernard v. Sully (47 TLR 557).”

The learned Chief Justice then went on to adopt the following opinion of Lord Pearson in the House of Lords decision in Henderson v. Henry Jenkins & Sons & Anor. (1969) 3 WLR 732, at p. 745.

“…In an action for negligence the plaintiff must allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial, the Judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants, and if he is not so satisfied the plaintiff’s action fails. The formal burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raised a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the plaintiff’s favour unless the defendants by their evidence provide some answers which are adequate to displace the prima facie inference. In this case there is said to be an evidential burden of proof resting on the defendants………..”

He then concluded:-

“On the whole therefore, I find the 1st defendants liable on the claim for negligence on the evidence before the court, and on the law. In respect of the 2nd and 3rd defendants, I find the case against them also proved, especially also because they have offered no defence to the action.

Similarly, the learned Chief Justice disbelieved the only evidence of D.W.1 in support of first defendant’s denial of liability by the claim that “the two men had no common business to be together on that day, or to be at the place where they were found, i.e., at Odo-Ona.” He, therefore, found for the plaintiff on the claim both for the negligence on the 1st defendants’ servants and for their vicarious liability for the latter’s default in the sum of £840 for the house, £191: 18/- for the properties destroyed therein and £800 as general damages, all totalling £1, 831: 18/-.

From this decision the 1st defendants appealed to the Western State Court of Appeal on the following 4 grounds, the first of which is the original and 2-4 are the additional ones which the Court permitted to be argued:

“1. The decision is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.

2. The learned Chief Justice erred in law when he, on his own motion, and not at the instance of the Plaintiff nor the Defendant, recalled the First Defence Witness, and thus based his finding of facts on the evidence so obtained, to wit: that the first defendant was an occupier of the damages and what he called “Clarification of certain points as a result of the evidence of third defence witness and the contents of Exhibit ‘C’ and this has led to a miscarriage of Justice.

3. (a) The learned Chief Justice erred in law when he based his acceptance of the estimate of the value of properties damaged given by second plaintiff’s witness in his evidence in chief on his visit to the scene of incident (locus in quo) when the record of the visit was not made part of the proceedings and this had led to miscarriage of justice.

(b) Alternatively the learned Chief Justice erred in-law and in fact when he failed to make the said visit to the scene of incident (locus in quo) part of the proceedings and this has led to a miscarriage of justice.

4. The learned Chief Justice erred in law when he granted a motion by the plaintiff for judgment in default of defence again


Other Citation: (1972) LCN/1303(SC)

Chief Obade Oje Vs The State (1972) LLJR-SC

Chief Obade Oje Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N. 

At the High Court of the Ubiaja Judicial Division in the Mid-Western State, the accused was convicted on 24th December, 1971 of the murder of one Theresa Godwin, contrary to section 257(1) of the Criminal Code, Cap. 28, Vol. 1 of the Laws of Western State 1959, applicable in the Mid-Western State and sentenced to death. We heard and allowed the appeal on 19th October, 1972, and now give our reasons therefore.

The facts of the case may be summarised as follows. The evidence of Raphael Egbeade (5th prosecution witness), the only witness called by the prosecution as to the identity of the accused, was that, at about 5 a.m. on 31st December, 1969, as he lay in bed in his house, he heard the voice of someone crying outside and saying “Onogie has killed me, Obade has killed me.” As the noise was coming nearer and nearer, he went to open his door and saw the accused (the Onogie) carrying somebody on his shoulder; the accused quickly dumped the person by the side of his house and started to run away. Fifth prosecution witness said that he gave chase shouting “Obade has killed somebody and dumped the person by my house”, until the accused ran into his own compound and the 5th prosecution witness “ran past the lane leading to the accused’s house and went on to the Military road-block” where he met one soldier, Igbakula Orohilega (2nd prosecution witness), to whom he reported the incident. Second prosecution witness then followed 5th prosecution witness to the scene where 2nd prosecution witness “pointed his torch-light at the person and they saw it was a woman. It was then that he (Raphael) recognised the person as Theresa, the daughter of Isibor, the 4th prosecution witness.” Fifth prosecution witness later reported the matter to the police at Uromi whence he was redirected to Ewohimi police station where he made a report. On his return home he found that the accused had already been arrested and taken away by the soldiers. Under cross-examination 5th prosecution witness said that, although the body of the deceased was carried on the shoulder, yet the face of the accused was not shielded by the body and that he saw the face of the accused. He also admitted that he was not friendly with the accused who had once beaten him up for taking sides with a tenant of 5th prosecution witness who was challenged on the ground of showing disrespect to the accused, and who had also imposed on 5th prosecution witness a fine for adultery with the wife of one Samson Inegbenebo (a councillor). He further deposed that the Onogie of Iromi had later settled the matter between them.

Mathias Unuareokpa (7th prosecution witness), the investigating police officer, described how the accused was brought to the Ubiaja police station on 31st December, 1969, by one Godwin (a soldier) and some other soldiers and “persons in mufty.” The next day the accused volunteered a statement (exhibit B).

The accused also gave evidence in his own defence. He said that he was a natural ruler and the Onogie of Ugbegun, that on the night of 30th December, 1969, he was in his palace with his family, that he slept that night with his wife, Onuwaghagbe, in her apartment till day-break. She testified to this effect. The accused said that on the following morning, as he was supervising his boys who were moulding blocks for him some 200 yards from his palace, about seven soldiers, including Godwin, set upon him, beat him up, stripped him naked and dragged him to a spot where they put him in a taxi-cab next to “a certain woman who had injuries on the body.” His hands were tied for about three hours and his fingers were stiff, so that he could not write his statement to the police until the following morning. The accused stated in his statement (exhibit B) that he was “in no way connected with the wounding of this woman in question.” It is pertinent to say here that 7th prosecution witness had under cross-examination admitted that throughout the course of his investigation it did not occur to him that somebody else might have committed the offence, that his enquiry concerning the background of the deceased revealed that she had just then had a baby and that on her return from her mother-in-law in Warri she had spent two days with her husband (Godwin) in Ugbegun before she went over to her father’s place in the same Ugbegun. Isibor Eichie (4th prosecution witness), the father of the deceased, said that the deceased came to him to complain about her mother-in-law, that as he was afraid to harbour her because the husband and his family might make trouble if he did since he (4th prosecution witness) had been paid the full dowry on her, he had sent her to report the matter to the Onogie, and that it was on the next day that he learnt that she had been killed. He said under cross-examination that he did not accompany her and that he did not know whether she went to her husband’s house that day or not. On this point the learned trial judge himself observed:-

“Of course, although it may be assumed that Theresa went to the accused in obedience to her father, it cannot be presumed-for that will be against common sense-that she went at all or even reached the palace of the accused. So, Isibor Eichie’s evidence, standing on is own does not implicate the accused at all.”

The learned trial judge went on to pose the question:-

“Having reviewed the evidence on either side, I find that the crucial question to answer is: Who was that man that Raphael Egbeade saw carrying someone on his shoulder, that man depositing the person by Raphael’s house, the man running back towards the Ugbegunj/Opoji road and followed for quite a while by Raphael, that man branching off at the lane leading to the palace of the accused”

After examining the possibility that 5th prosecution witness’s evidence against the accused might be one of mistaken identity, the learned trial judge concluded that he believed that it was the accused that 5th prosecution witness saw on the day in question. He accordingly proceeded to find the accused guilty of the murder of the deceased.

From that decision the appellant has appealed to this court on the following grounds:-

“(1) The learned trial judge erred in law by attaching undue weight to the evidence of the 5th prosecution witness despite previous inconsistent statements made by him in respect of the same case in exhibit D touching upon the identity of the accused.

(2) The learned trial judge erred in law in failing to consider the defence of alibi set up by the appellant.

(3) The learned trial judge having held that ‘It is not certain, however, whether it was the accused who personally inflicted the injuries on Theresa Godwin’ erred in law in finding the accused guilty on the ground that ‘since the accused was seen to be carrying the injured woman, not with any aim of helping her, the only inferences to draw are that either he inflicted the injuries on her or he was a participes criminis and knew something of how those serious injuries described by the doctor came about.’

(4) The decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.”

Mr. Koku, learned counsel for the appellant, began by arguing ground 3 first. He said that the accused must be proved by the prosecution to have killed the deceased or to have taken an active part in the killing. The prosecution has failed to establish that the accused killed the deceased. He further argued that the doctrine relating to the responsibility of participes criminis under sections 7 and 8 of the Criminal Code of Western Nigeria does not apply and should not have been applied in the present case, because the charge as well as the evidence led throughout the proceedings was simply that the accused killed the deceased, not that he acted along with anyone else. Finally, learned counsel submitted that an appellate court, in a case involving homicide, must disregard the verdict of a trial court if the requisite degree of certainty as to the murderer is wanting: see The Queen v. Abdulahi Isa [1961] 1 All N.L.R. 668; Daniel Itodo v. The State (1968) N.M.L.R. 1; and The Queen v.Obiasa [1962] All N.L.R. 651, at page 658. We agree with this submission of learned counsel in view of the learned trial judge’s own finding as follows:-

“It is not certain, however, whether it was the accused who personally inflicted the injuries on Theresa Godwin.”

In arguing ground 1 next, Mr. Koku pointed out that there was a discrepancy between the deposition made by 5th prosecution witness at the preliminary investigation when he said the person being carried covered the face of the carrier, and the evidence given by him at the trial when he said that he in fact saw the face of the carrier (the accused). We think that there is substance in this submission of learned counsel when one considers exhibit D, the deposition of 5th prosecution witness at the preliminary investigation. Exhibit D reads:-

“I now say that I saw someone dumping a body. I knew it was the accused. The deceased was carried on the shoulder. The body of the deceased covered the face of whoever carried her. As soon as I shouted the person took to his heels.”

Learned counsel also drew attention to the fact that, whereas 5th prosecution witness said he could and did recognise the accused at 4 a.m. 5th prosecution witness and 2nd prosecution witness stated that they could recognise the deceased at 5 a.m. only with the aid of a torch-light. The learned trial judge, he finally submitted, should have rejected the evidence of 5th prosecution witness, who was shown to have had a grudge against the accused, as it was unsafe to found on such improbable pieces of evidence: Gabriel Sofolahan Joshua v. The Queen [1964] 1 All N.L.R. 1; R. v. Golder [1960] 1 W.L.R. 1169; 45 Cr. App. R. 123. Learned counsel chose, quite rightly in our view, to abandon ground 2 and not to argue ground 4 which he admitted was defective in that the words “weight of” had been wrongly inserted therein.

We agree with all the points put forward by the learned counsel for the appellant, and we think that they should have raised serious doubts in mind of the learned trial judge both as to the identity of the person who was seen carrying the deceased on the night in question and also as to who inflicted on the deceased the injuries that caused her death.

For these reasons we allowed the appeal on 19th October, 1972, set aside the conviction and sentence, and acquitted and discharged the appellant.


At the High Court of the Ubiaja Judicial Division in the Mid-Western State, the accused was convicted on 24th December, 1971 of the murder of one Theresa Godwin, contrary to section 257(1) of the Criminal Code, Cap. 28, Vol. 1 of the Laws of Western State 1959, applicable in the Mid-Western State and sentenced to death. We heard and allowed the appeal on 19th October, 1972, and now give our reasons therefore.

The facts of the case may be summarised as follows. The evidence of Raphael Egbeade (5th prosecution witness), the only witness called by the prosecution as to the identity of the accused, was that, at about 5 a.m. on 31st December, 1969, as he lay in bed in his house, he heard the voice of someone crying outside and saying “Onogie has killed me, Obade has killed me.” As the noise was coming nearer and nearer, he went to open his door and saw the accused (the Onogie) carrying somebody on his shoulder; the accused quickly dumped the person by the side of his house and started to run away. Fifth prosecution witness said that he gave chase shouting “Obade has killed somebody and dumped the person by my house”, until the accused ran into his own compound and the 5th prosecution witness “ran past the lane leading to the accused’s house and went on to the Military road-block” where he met one soldier, Igbakula Orohilega (2nd prosecution witness), to whom he reported the incident.

Second prosecution witness then followed 5th prosecution witness to the scene where 2nd prosecution witness “pointed his torch-light at the person and they saw it was a woman. It was then that he (Raphael) recognised the person as Theresa, the daughter of Isibor, the 4th prosecution witness.” Fifth prosecution witness later reported the matter to the police at Uromi whence he was redirected to Ewohimi police station where he made a report. On his return home he found that the accused had already been arrested and taken away by the soldiers. Under cross-examination 5th prosecution witness said that, although the body of the deceased was carried on the shoulder, yet the face of the accused was not shielded by the body and that he saw the face of the accused. He also admitted that he was not friendly with the accused who had once beaten him up for taking sides with a tenant of 5th prosecution witness who was challenged on the ground of showing disrespect to the accused, and who had also imposed on 5th prosecution witness a fine for adultery with the wife of one Samson Inegbenebo (a councillor). He further deposed that the Onogie of Iromi had later settled the matter between them.

Mathias Unuareokpa (7th prosecution witness), the investigating police officer, described how the accused was brought to the Ubiaja police station on 31st December, 1969, by one Godwin (a soldier) and some other soldiers and “persons in mufty.” The next day the accused volunteered a statement (exhibit B).

The accused also gave evidence in his own defence. He said that he was a natural ruler and the Onogie of Ugbegun, that on the night of 30th December, 1969, he was in his palace with his family, that he slept that night with his wife, Onuwaghagbe, in her apartment till day-break. She testified to this effect. The accused said that on the following morning, as he was supervising his boys who were moulding blocks for him some 200 yards from his palace, about seven soldiers, including Godwin, set upon him, beat him up, stripped him naked and dragged him to a spot where they put him in a taxi-cab next to “a certain woman who had injuries on the body.” His hands were tied for about three hours and his fingers were stiff, so that he could not write his statement to the police until the following morning. The accused stated in his statement (exhibit B) that he was “in no way connected with the wounding of this woman in question.” It is pertinent to say here that 7th prosecution witness had under cross-examination admitted that throughout the course of his investigation it did not occur to him that somebody else might have committed the offence, that his enquiry concerning the background of the deceased revealed that she had just then had a baby and that on her return from her mother-in-law in Warri she had spent two days with her husband (Godwin) in Ugbegun before she went over to her father’s place in the same Ugbegun.

Isibor Eichie (4th prosecution witness), the father of the deceased, said that the deceased came to him to complain about her mother-in-law, that as he was afraid to harbour her because the husband and his family might make trouble if he did since he (4th prosecution witness) had been paid the full dowry on her, he had sent her to report the matter to the Onogie, and that it was on the next day that he learnt that she had been killed. He said under cross-examination that he did not accompany her and that he did not know whether she went to her husband’s house that day or not. On this point the learned trial judge himself observed:-

“Of course, although it may be assumed that Theresa went to the accused in obedience to her father, it cannot be presumed-for that will be against common sense-that she went at all or even reached the palace of the accused. So, Isibor Eichie’s evidence, standing on is own does not implicate the accused at all.”

The learned trial judge went on to pose the question:-

“Having reviewed the evidence on either side, I find that the crucial question to answer is: Who was that man that Raphael Egbeade saw carrying someone on his shoulder, that man depositing the person by Raphael’s house, the man running back towards the Ugbegunj/Opoji road and followed for quite a while by Raphael, that man branching off at the lane leading to the palace of the accused”

After examining the possibility that 5th prosecution witness’s evidence against the accused might be one of mistaken identity, the learned trial judge concluded that he believed that it was the accused that 5th prosecution witness saw on the day in question. He accordingly proceeded to find the accused guilty of the murder of the deceased.

From that decision the appellant has appealed to this court on the following grounds:-

“(1) The learned trial judge erred in law by attaching undue weight to the evidence of the 5th prosecution witness despite previous inconsistent statements made by him in respect of the same case in exhibit D touching upon the identity of the accused.

(2) The learned trial judge erred in law in failing to consider the defence of alibi set up by the appellant.

(3) The learned trial judge having held that ‘It is not certain, however, whether it was the accused who personally inflicted the injuries on Theresa Godwin’ erred in law in finding the accused guilty on the ground that ‘since the accused was seen to be carrying the injured woman, not with any aim of helping her, the only inferences to draw are that either he inflicted the injuries on her or he was a participes criminis and knew something of how those serious injuries described by the doctor came about.’

(4) The decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.”

Mr. Koku, learned counsel for the appellant, began by arguing ground 3 first. He said that the accused must be proved by the prosecution to have killed the deceased or to have taken an active part in the killing. The prosecution has failed to establish that the accused killed the deceased. He further argued that the doctrine relating to the responsibility of participes criminis under sections 7 and 8 of the Criminal Code of Western Nigeria does not apply and should not have been applied in the present case, because the charge as well as the evidence led throughout the proceedings was simply that the accused killed the deceased, not that he acted along with anyone else. Finally, learned counsel submitted that an appellate court, in a case involving homicide, must disregard the verdict of a trial court if the requisite degree of certainty as to the murderer is wanting: see The Queen v. Abdulahi Isa [1961] 1 All N.L.R. 668; Daniel Itodo v. The State (1968) N.M.L.R. 1; and The Queen v.Obiasa [1962] All N.L.R. 651, at page 658. We agree with this submission of learned counsel in view of the learned trial judge’s own finding as follows:-

“It is not certain, however, whether it was the accused who personally inflicted the injuries on Theresa Godwin.”

In arguing ground 1 next, Mr. Koku pointed out that there was a discrepancy between the deposition made by 5th prosecution witness at the preliminary investigation when he said the person being carried covered the face of the carrier, and the evidence given by him at the trial when he said that he in fact saw the face of the carrier (the accused). We think that there is substance in this submission of learned counsel when one considers exhibit D, the deposition of 5th prosecution witness at the preliminary investigation. Exhibit D reads:-

“I now say that I saw someone dumping a body. I knew it was the accused. The deceased was carried on the shoulder. The body of the deceased covered the face of whoever carried her. As soon as I shouted the person took to his heels.”

Learned counsel also drew attention to the fact that, whereas 5th prosecution witness said he could and did recognise the accused at 4 a.m. 5th prosecution witness and 2nd prosecution witness stated that they could recognise the deceased at 5 a.m. only with the aid of a torch-light. The learned trial judge, he finally submitted, should have rejected the evidence of 5th prosecution witness, who was shown to have had a grudge against the accused, as it was unsafe to found on such improbable pieces of evidence: Gabriel Sofolahan Joshua v. The Queen [1964] 1 All N.L.R. 1; R. v. Golder [1960] 1 W.L.R. 1169; 45 Cr. App. R. 123. Learned counsel chose, quite rightly in our view, to abandon ground 2 and not to argue ground 4 which he admitted was defective in that the words “weight of” had been wrongly inserted therein.

We agree with all the points put forward by the learned counsel for the appellant, and we think that they should have raised serious doubts in mind of the learned trial judge both as to the identity of the person who was seen carrying the deceased on the night in question and also as to who inflicted on the deceased the injuries that caused her death.

For these reasons we allowed the appeal on 19th October, 1972, set aside the conviction and sentence, and acquitted and discharged the appellant.


Other Citation: (1972) LCN/1344(SC)

Paul Iro Vs Robert Park & Ors (1972) LLJR-SC

Paul Iro Vs Robert Park & Ors (1972)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

The arguments on this appeal have been rather elaborate but the matters to be decided fall within a very narrow compass. The short question is whether an order made by Lambo, J., (High Court, Lagos) pursuant to the provisions of Section 128 of the Companies Decree, 1968 was justified by the powers conferred on the court by that section.

The 1st respondent before us was the applicant before the High Court, Lagos, and the Registrar of Companies was the original and only respondent to an application which was by way of an originating summons stated to have been taken out pursuant to the provisions of Order 120 Rules 2-3 of the English Rules of the Supreme Court. We shall advert later in this judgment to the implications of that procedure.

The application concerns the affairs of a company registered in Nigeria and known as Tarstone and Company Limited, and the amended originating summons was headed “In the matter of the Tarstone & Co. Ltd. and in the matter of Sections 31 and 128 of the Companies Decree, 1968”. The originating summons is endorsed in part as follows:-

“Let all parties concerned attend the Judge sitting in the High Court, Lagos, Tafawa Balewa Square, Lagos, on Monday, the 28th day of October, 1968 at 9 o’clock in the forenoon on the hearing of an application on the part of Robert Park, the applicant for an Order empowering the applicant to call, hold and conduct a meeting of the Company within the next one week in Lagos and for ancillary and consequential and directions as follows:-

(a) That the applicant be empowered generally to direct, manage and run fully the affairs of the company in accordance with the provisions of its Memorandum and Articles and the Companies Decree, 1968.

(b) That the applicant be empowered to appoint additional directors in place of Paul Iro, the only other member who had absconded since July, 1967.

(c) That the said applicant be empowered to appoint a reputable firm of auditors to value the shares of the company and pay to the credit of the said Paul Iro  his full entitlements up to the end of 6 months after his abscondment.”

The summons is supported by an affidavit sworn to by the applicant, that is Robert Park. That affidavit deposed to facts showing that the applicant and the present appellant, i.e. Paul Iro, were the founders and only two shareholders and directors of Tarstone & Co. Ltd., that each of them held shares of 7 pounds,500 each in a paid-up capital set-up of 15 pounds,000 and that the present appellant was as well a creditor of the Company to the extent of the balance shown in the Account of the Company which he had invested in the Company. The affidavit further shows that during the absence of the applicant to Europe, the appellant, Paul Iro, “absconded from Lagos and made away with the Company’s money amounting to 1 pounds,400 without any authority by the Company”; that it had been impossible to get in touch with him; that debts were being incurred by the Company and those had to be paid; that a number of substantial contracts were due to be executed by the Company and in particular paragraph 10 of the accompanying affidavit states:-

“10.  Since the disappearance of my only partner in the company I have been faced with immense difficulties as follows:-

(a) No valid statutory meetings of the company or its directors could be held;

(b) No valid appointment of the company’s auditors could be made;

(c) The company’s balance sheets, annual returns and other necessary statutory requirements by the Registrar of Companies could not be properly and legally authenticated;

(d) The company’s programme of expansion has been completely stultified;

(c) The company’s customers have been very wary in giving out major contracts simply because the number of members had been reduced to one;

(f)  I am exposed to the danger of losing all my life’s savings if anything happens to my life without putting the company in a proper legal position.”

Copies of the Memorandum of Association and the Articles of Association (being an adaptation of Table A with some additional provisions) were attached to the affidavit as accompanying annexures. The present appellant was not in court nor was he represented when the application was heard in court. As stated before, he was not a party to the proceedings. At that time the only respondent was the Registrar of Companies. The application was not opposed in court and the learned trial Judge ruled thus:-

“Ordered as prayed in terms of the Originating Summons filed on the 15th October, 1968 as well as the Amended Originating Summons filed on the 23rd October, 1968.

3 pounds:3 : costs to respondent.”
Consequent upon this, a drawn-up order was prepared and was duly signed by the learned trial Judge. The drawn-up order reads in full as follows:-

“Upon Reading the Affidavit of Robert Park, British subject, Company Director of No.2, Point Road, Apapa, Lagos sworn to and filed on the 15th October, 1968. And upon Reading the Affidavit of Olu Babatunde Akin-Olugbade, Nigerian Legal Practitioner of No.2, Aggrey Avenue, Yaba sworn to and filed on the 23rd October, 1968 and After Hearing Chief O. B. Akin-Olugbade, of counsel for the Applicant and Owoyele Esquire, of counsel for the respondent not opposing:

It is Ordered:

1.  That the Applicant be and is hereby granted leave to Amend the Originating Summons filed on the 15th October, 1968 to read as the Amended Originating Summons filed on the 23rd day of October, 1968.

2.  That the Applicant be and is hereby empowered to call, hold and conduct a meeting of the Company within the next one week in Lagos.

3.  That the Applicant be and is hereby empowered generally to direct, manage and run fully the affairs of the company in accordance with the provisions of its Memorandum and Articles and the Companies Decree, 1968.

4.  That the Applicant be and is hereby empowered to appoint additional Directors in place of Paul Iro, the only other member who had absconded since July, 1967.

5.  That the said Applicant be and is hereby empowered to appoint a reputable firm of Auditors to value the shares of the Company and pay to the Credit of the said Paul Iro his full entitlements up to the end of 6 months after his abscondment.
It is further Ordered that the Applicant do pay 3 pounds:3s: costs to the respondent.”
It was common ground that the present appellant was a person of East-Central State origin and that during the material time there was a Civil War in this country and consequently a large exodus of such persons from other parts of the country to the East-Central State. In the events which had happened , the present appellant, in course of time, returned to Lagos, sought leave to appeal against the order of the High Court out of time and the present appeal is the sequel to these events.

At the hearing of the appeal, apparently in view of the implications of the order of the High Court now on appeal, the following persons sought to be joined as respondents to this appeal and they were respectively joined as follows:-

(a)    Tarstone & Co. Ltd., as the 3rd respondent.
(b)    D. V. Phillips as the 4th respondent.
(c)    Mrs. H. Park as the 5th respondent.
(d)    Mr. Akin Davies as the 6th respondent.

The 1st respondent is Mr. Robert Park and the 2nd respondent the Registrar of Companies. On the application for joinder, it was claimed for the 3rd respondent that the Company is directly interested in the outcome of the appeal as it relates to the re-organisation, management and operation of the said Company as directed by the order of the Lagos High Court. On the application of Mr. D.V. Phillips, it was claimed that the appeal relates to the reorganisation, management and operation of the 3rd respondent/Company and also that ” the applicant is one of the major shareholders” of the Tarstone & Co. Ltd., and as such he is directly interested in the outcome of the appeal. On the applications of Mrs. H. Park and Mr. Akin Davies, it was claimed that “as Directors and shareholders of the Company they are substantially interested in the outcome of this pending appeal”.

At the hearing before us, all parties were duly represented by counsel. For the appellant it was argued by learned counsel that Section 128 of the Companies Decree on which the application is based gives the court powers only to make an order for the holding and conduct of a meeting and does not postulate the other matters expressed in the drawn-up order. For the 2nd respondent, it was argued on behalf of the Registrar of Companies that the order as drawn up was manifestly outside the provisions of Section 128 of the Companies Decree and that it should be set aside. For the other respondents it was submitted by learned counsel (Chief Sowemimo and Mr. H. T.O. Coker) that the order was competent in as much as it was made in the interest of the company and at a time when in breach of the provisions of Section 31 of the Companies Decree, the Company was being illegally run by the only director available. It was further submitted by learned counsel on behalf of those respondents that at the material time the Company was in dire financial circumstances and in any case the several appointments to the directorate of the Company by virtue of which those respondents came into the Company were made in virtue of a meeting called pursuant to the drawn-up order.

The point in issue is whether the order of Lambo, J., made on the 28th October, 1968, in consequence of the originating summons filed by Mr. Robert Park, i.e., the 1st respondent, was in accordance with law. Section 128 of the Companies Decree provides as follows:

“128.(1)  If for any reason it is impracticable to call a meeting of a company in any manner in which meetings of that company may be called, or to conduct the meeting of the company in the manner prescribed by the articles or this Decree, the court may, either of its own motion or on the application of any director of the company or of any member of the company who would be entitled to vote at the meeting, order a meeting of the company to be called, held and conducted in such manner as the court thinks fit, and where any such order is made may give such ancillary or consequential directions as it thinks expedient; and it is hereby declared that the directions that may be given under this subsection include a direction that one member of the company present or by proxy shall be deemed to constitute a meeting.
(2) Any meeting called, held and conducted in accordance with an order under subsection (1) of this section shall for all purposes be deemed to be a meeting of the company duly called, held and conducted.”

Thus, it is clear that the provisions of Section 128(1) should be invoked where “for any reasons it is impracticable to call a meeting of a company” and that in such circumstances as described in the section, the court may “order a meeting of the company to be called, held and conducted in such manner as the court thinks fit”. The sub-section also empowers the court  to make “ancillary or consequential directions” as the court thinks expedient in circumstances in which it may be necessary for such directions to be given as would make the holding and conduct of the meeting possible and/or effectual. Section 128(2) validates the deliberations and decisions taken at such a meeting insofar as such meeting is held in accordance with the provisions of Section 128(1).

We reject without any hesitation whatsoever the argument that Section 31 of the Companies Decree creates an offence; indeed it does not. It merely prescribes the consequences that follow where in the events that had happened a company is being kept on for a period of six months after the number of members should have dropped below two in the case of a private company or seven in the case of a public company. Section 31 of the Companies Decree provides thus:-

“31.  If at any time the number of members of a company is reduced, in the case of a private company, below two, or in the case of any other company, below seven, and it carries on business for more than six months while the number is so reduced, every person who is a member of the company during the time that it so carries on business with fewer than two members, or seven members, as the case may be, shall be severally liable for the payment of the whole debts of the company contracted during that time, and may be severally sued therefor.”
Clearly the section does not prescribe the company affected or otherwise restrict or deny the existence of it as such a company: the section warns the management or existing member or members of the nature of the consequent liability to which he or they shall be exposed. With respect to the case in hand, it was not alleged that the appellant had ceased to be a member of the Company and there was consequently no basis for the invocation of Section 31 of the Companies Decree.

Turning again to the order now on appeal, it is impossible to find support for it within the plain provisions of Section 128(1) of the Companies Decree. That section postulates that the affairs of the Company have approached “an impracticable situation” and obviously includes and contemplates a situation where only one member is available to hold a meeting. See Jarvis Motor (Harrow) Ltd. & Anor. v. Carabott & Anor. (1964) 1 WLR 1101 (esp. per Ungoed-Thomas, J., at pp.1104/1105).
In re El Sombrero Ltd. (1958) Ch. D. 900, Wynn-Parry, J., dealing with the provisions of a section of the English Companies Act, 1945 (i.e. section 135 which is in pari materia with Section 128 of the Companies Decree) ordered the holding of a meeting at which one member present might constitute the quorum and such meeting to be held in the offices of the company’s solicitors.

The result is that the legislation had not interfered with the internal running of any company. That is a matter which the law had wisely kept in the hands of those who own the company and direct its affairs. What Section 128(1) says is that the court may direct the calling and holding of a meeting and give ancillary and consequential directions concerning such a meeting but the deliberations and the decisions remain that of the meeting and are specifically validated by the provisions of Section 128(2). Some ingenious arguments have been addressed to us to the effect that the respondents other than Mr. Park, the Tarstone & Co. Ltd., and the Registrar of Companies had been appointed members at a meeting of the Company. We completely reject this subtle suggestion which is neither contained in the affidavits accompanying the application for the joinder of these respondents nor based upon any information or material before us other than the ipse dixit of learned counsel appearing for these respondents.

The removal of the appellant as a director and member of the Company, the appointment of other members or directors and other such acts done by virtue of the order under appeal, are clearly not valid as the order on which they were all based is invalid insofar as it does more than authorise the holding of a meeting.Insofar as it empowers the applicant to hold and conduct a meeting, it gives no ancillary or consequential orders to make the meeting possible or effectual and considering the contents of the affidavit in support of the originating summons and the undisputed events and circumstances of the Company, including the abscondment of the only other member of the Company, the order must be considered of no real practical utility.

Thus, in respect of the only portion as to which the order was right, it lacks the necessary ancillary or consequential directions and in respect of the other portions of it the order was ultra vires the court and invalid. Learned counsel for the respondents has referred us to the cases of Baillie v. Oriental Telephone & Electric Co. Ltd. (1950) 1 Ch. D. 503 and In re Jermyn Street Turkish Baths Ltd. (1971) 1 WLR 1042 and argued strenuously that the action of the 1st respondent, Mr. Robert Park, should be regarded as having been taken in good faith and without oppression to anybody. The argument is untenable primarily because it cleverly begs the question at issue. It is not being enquired whether the action of the respondent was taken or done in good faith or whether it was oppressive; the question was whether it was competent for the order on which his actions were based to be made in the form in which it was made and executed and then one must refer to paragraph 12 of the affidavit in support of the originating summons which reads as follows:-
“12.  The interest of the absentee partner will in no way be prejudiced by the order sought to enable the company to continue to serve the country.”

It is difficult to see the strength of an argument to the effect that an order which removes the present appellant from his post as a director of a company despite his share-holding of 7 pounds,500 and the money he had invested in the company as a loan did not operate to his prejudice.

Learned counsel for the appellant had also attacked the form of the originating summons and argued that it was not properly constituted with respect to the parties who should have been cited to it. In view of our findings and conclusions on the first part of the argument on appeal, we do not now propose to deal in full with this part of the argument. We will point out however that in the affidavit  by which the joinder of Tarstone & Co. Ltd., as a party to this appeal was sought, it was stated on behalf of that respondent that the Company should have been made a party to the proceedings. So we think as well. It was the shares of the Tarstone & Co. Ltd., that are being arranged or re-arranged and the appointed members are expressed in their respective affidavits to belong to the Company or its directorate or subscribers. See the observations of this court in respect of necessary parties to proceedings in Amodu v. Olusanya, SC.313/68, delivered on the 23rd March, 1971.

We have come to the conclusion that the order of the High Court, Lagos, now on appeal cannot be justified and that it does not come within the provisions of Section 128(1) of the Companies Decree. The appeal therefore succeeds and it is allowed. The order of the High Court, Lagos, made on the 28th of October, 1968, including the orders for costs in Suit No. M/161/68 is set aside. In place of that order it is directed that the originating summons be dismissed with costs. This shall be the judgment of the court. The appellant is entitled to his costs in this court which we fix at 70 guineas against all the respondents jointly and severally. We make no order for costs in favour of the appellant in the court below since he was not a party to those proceedings.


Other Citation: (1972) LCN/1280(SC)