Madam R. Onyechie V Mrs. R. Shadiya (1966) LLJR-SC

Madam R. Onyechie V Mrs. R. Shadiya (1966)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

This appeal is from the judgment of Sowemimo J., in the High Court of Lagos upholding the magistrate.

The dispute between Madam R. Onyechie and Mrs R. Shadiya (hereafter referred to as the tenant and the landlord respectively) is whether the landlord gave the tenant a rent-free tenancy for life of the premises occupied by the tenant at No. 133 Bamgbose Street, Lagos. Shortly put, the tenant’s case is that in consideration of her providing money to rebuild the premises the landlord agreed that she should live in them rent-free as long as she liked, which she submits is a tenancy for life: the landlord’s case was, in short as we understand it, that the money was a loan and the tenant was to live in 394 Supreme Court of Nigeria Law Reports 1966 the premises for two years, but has been living there since without paying rent, or to some similar effect.

The landlord sued for recovery of possession twice in the Magistrates’ Court but without success. She next applied to the Magistrate to fix the rent of the premises under s. 11 (1) of the Rent Restriction Act, which provides that-

“Any landlord or tenant or other person interested may apply to a court for an order fixing the rent of any premises.”

The tenant objected that as an issue of title was involved the Magistrate had no jurisdiction; the learned Magistrate held that there was no issue of title and went on to say–

“It is the general principle of law that the rent is attached to the property. Whether or not the respondent should pay such rent to be fixed by the court cannot be entertained in this application. I am of the view that by section 11(1) of the Rent Restriction Act, the court is empowered to fix the rent of any premises.”

And he proceeded to fix the rent.

The tenant repeated her point on jurisdiction on appeal to the High Court of Lagos. Sowemimo, J., writes in his judgment as follows:-

“I hold that on the facts as proved on the two previous judgments” [viz., of the magistrates who refused recovery of posses-sion] “title was never involved and the decision of the lower court on the application before it” (viz., to fix the rent] “did not decide on the question of title.”

Lower down the learned Judge writes as follows–

“It is contended that for those two Acts” [viz., the Rent Restriction Act and the Recovery of Premises Act] “to be called in aid of any claim there must be the relationship of landlord and tenant. The words tenant and landlord are well defined in section 2(1) of the Recovery of Premises Act Cap. 176 of Vol. V Laws of Nigeria and on the findings of the two former cases Exhibits A and C definitely decided the relationship of appellant and respondent.”

Therefore he held that it was competent to the magistrate to make the order fixing the rent of the premises.

There is a relationship of landlord and tenant, but the tenant’s point, that there is no competent decision on her case as to the precise terms of that relationship, does not seem to have been appreciated. The learned Judge’s note of the argument for the tenant reads as follows:

“On Ground 2” [viz., that the Magistrate had no jurisdiction] “refers to section 11 of Rent Restriction Act. Bannister v. Bannister [1948] 2 All E.R. 133. The appellant is a life tenant and therefore title is involved. In deciding the issue the learned Magistrate must decide the status of the parties.”

The last sentence is not quite clear, the last but one is: that “the appellant is a life tenant and therefore title is involved.” A life tenancy, though not an estate of inheritance, is a freehold estate, and the grant may be rent-free or subject to rent. That is English law; and it is not suggested that such an interest in land is unknown to native law and custom.

On the evidence in the case there is a bona fide issue of ‘title’ to or ‘interest’ in land within the meaning of section 14(2) of the Magistrates’ Court (Lagos) Act, which provides that–

“(2) Subject to the provisions of any other Ordinance, a chief magistrate shall not exercise original jurisdiction in any cause or matter which – (a) raises any issue as to the title to land, or to any interest in land;” (etc., irrelevant here).

We have not been referred to any overriding provision in any other Act, and are of opinion that the magistrates could not decide the issue raised by the tenant, which requires to be tried and decided in the High Court.

It is true that a landlord may apply under s. 11(1) of the Rent Restriction Act to a court for an order fixing the rent of any premises, but the court is not bound to make an order: subsection (2) provides that –

“Where an application is made to a court under this Ordinance the court may refuse to make an order or may make an order authorising the receipt or recovery of the whole or any part of any increased rent or an order fixing the amount by which the rent may be increased or may by order fix the rent.”

This case was one in which rent ought not to have been fixed, as it was brought to the magistrate’s notice that there was a bona fide dispute on the nature of the tenant’s title or interest and on her liability to pay rent which could not have been decided by the magistrate. There is a grave risk in this case, particularly in view of the High Court judgment, that the landlord will sue for rent and use that judgment and the magistrate’s order as props for her claim; and this in our opinion she is not entitled to do in the circumstances of this case.

In our view the issue raised by the tenant ought to be decided first.

The appeal is allowed with sixty-seven guineas costs in all the courts against Mrs. R. Shadiya in favour of Madam R. Onyechie, the Lagos High Court judgment of 15th March, 1965 in LD/83A/64 and the magistrate’s decision of 30 July, 1964, in MR.585/63 are hereby set aside; either party is at liberty to sue or counter-claim in the High Court for a declaration on the nature and terms of the tenancy of the premises at 133 Bamgbose Street, Lagos, occupied by Madam R. Onyechie and add any other claims or counter-claims that may properly be added.

Other Citation: (1966) LCN/1323(SC)

A.C.E. Jimona Ltd V Nigerian Electrical Contracting Co.ltd (1966) LLJR-SC

A.C.E. Jimona Ltd V Nigerian Electrical Contracting Co.ltd (1966)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

This is an appeal by the defendants from a judgment of the High Court of Lagos (Caxton Martins Ag. J.) in which judgment was entered for the plaintiffs for £5,189-13s.-6d. with costs. The matter had begun as three separate suits in respect of three different contracts alleged to have been made between the parties and these three suits had been consolidated for hearing in the High Court. The first objection taken by the defendants/appellants on theappeal is that the learned trial judge was wrong to hold that the contention of the defendants that there was no binding contract was inconsistent with the defence as pleaded.

This necessitates an examination of the pleadings and it is to be observed that though very similar the Defence is not the same in each case. In suit LD 222/63 the plaintiff in paragraph 3 stated as follows:-

“By a letter dated the 17th day of January 1961, the defendants accepted the plaintiffs’ tender of £1,852 less 5% discount for electrical installations on 2 blocks of buildings at police barracks, Ije-Apapa, built by the defendants for the Federal Ministry of Works and Surveys under their contract No. 580-578.”

The Defence to this suit did not deny this paragraph though in paragraph I there was a general traverse. It did however in paragraph 5 of the Defence state as follows:-

“The defendants aver that the plaintiffs only did a small portion of the job agreed upon and in such an unsatisfactory manner that the defendants were compelled to enter into a fresh agreement with another firm of contractors who eventually did the job over again.”

In suits LD 223/63 and LD 224/63 there was in each case a similar paragraph 3 of the Statement of Claim to that in suit LD 222/63 but in these suits the Defence did in each case specifically deny paragraph 3 and “put the plaintiffs to strict proof thereof’, following this paragraph in each case with a further paragraph similar to paragraph 5 of the Defence as set out in suit LD 222/63. Now the main objects of pleadings are twofold namely to clarify what is the issue between the two parties and not to mislead the other side. It was contended by Chief F. R. A. Williams for the defendants that it was permissible to plead in the alternative and when so doing to put forward what would otherwise be inconsistent defences.

He relied on the cases Berdan v. Greenwood And Another (1878) 3 Ex. D. 251 and In re Morgan 35 Ch. D. 492. Whilst this is a valid point it presupposes that the defence was pleaded in the alternative and we do not find it was so done in these suits and we do not consider it proper to infer it. Now the effect of a general traverse was explained in Warner v. Sampson [1959] 1 Q.B. 297 at 310 by Lord Denning when he stated:

“Since so much effect has been given to this general denial, I would say a word about it. It is used in nearly every defence which goes out from the Temple. It comes at the end. The pleader has earlier gone through many of the allegations in the statement of claim and dealt with them. Some he has admitted. Others he has denied. Whenever he knows there is a serious contest he takes the allegation separately and denies it specifically. But when he has no instructions on a particular allegation, he covers it by a general denial of this kind, so that he can, if need be, put the plaintiff to proof of it at the trial. At one time the use of this general denial was said to be embarrassing: see British and Colonial Land Association Ltd. v. Foster and Robins (1888) 4 T.L.R. 574, but since 1893 it has been recognised as convenient and permissible: see Adkins v. North Metropolitan Tramway Co. (1893) 10 T.L.R. 173. Sometimes the pleader ‘denies’, sometimes he ‘does not admit’ each and every allegation; but whatever phrase is used it all comes back to the same thing. The allegation is to be regarded’ as if it were specifically set out and traversed “seriatim.” ‘In short, it is a traverse, no more and no less. Now the effect of a traverse has been known to generations of pleaders. It ‘casts upon the plaintiff the burden of proving the allegations “denied” ‘: see Bullen and Leake on Precedents, (3rd ed., p. 436).

So this general denial does no more than put the plaintiff to proof. Mr Scarman did suggest at one stage that it might indirectly involve a positive averment. For instance, he said that, if pleaded in a libel action, it would involve a denial that the words were false and hence it would carry the implication that they were true and would amount to a plea of justification. But he did not pursue this illustration, and I think it clearly untenable. There are some denials which do involve an affirmative allegation (see MacLulich v. MacLulich); but not this general denial. It only puts the plaintiff to proof.”

In this case whether there be a specific denial of the paragraph of the Statement of Claim dealing with the formation of the contract as in suits LD 223/63 and LD 224/63 or a general traverse as in suit LD 222/63 the effect is in our judgment solely to put the plaintiff to proof that the defendants did accept the plaintiffs’ stated tender. The Defence did not deny the contract as such and paragraph 5 of the Defence when it refers to “the defendants will contend that the plaintiff only did a small portion of the job agreed upon and in such an unsatisfactory manner that the defendants were compelled to enter into a fresh agreement with another firm of contractors who eventually did the job over again,” (our underlining), clearly contemplated that there was an agreed contract but that it was not performed satisfactorily. In our judgment this was not a plea in the alternative but a defence arising out of unsatisfactory performance of the contract which followed quite logically the putting of the plaintiff to proof of his allegations as to the formation of the contract. To read the Defence otherwise would not be to give it its natural meaning and in our view the plaintiff could, if it was so construed as being in the alternative, certainly have claimed that he was misled as nowhere was it suggested in the Defence that the defendants were not the proper other party to the contracts at issue.

The next point taken on the appeal by the defence was that there was no contract with the defendants but only with Associated Construction and Engineering. We have already dealt with this point from the pleadings aspect but whilst it is correct that no evidence was offered establishing that Associated Construction and Engineering and A.C.E. Jimona Ltd. were, to all intents and purposes, the same firm, albeit that the latter was a limited company, the evidence of the 1st defence witness Mr A. A. Agoreyo goes a long way to establishing their mutual dependence. The defence that A.C.E. Jimona Ltd. was not a party to the contract, was not, as has been stated, pleaded and one finds that A.C.E. Jimona Ltd., the defendants, specifically wrote to the plaintiffs in “Ex. B.” and stated “we maintain on our part, that at the time of award of contract to you, no set pattern of payment conditions were made,” when the letter was headed as dealing with all three contracts the Area Of Law of this litigation and no reference was made to Associated Construction and Engineering.

Furthermore, the defendants themselves conceded in respect of suit LD 223/ 63 that they wrote a letter (Ex. 2) on note-paper headed A.C.E. Jimona Ltd. with underneath printed “Associated Construction and Engineering,” though the letter was signed solely on behalf of A.C.E. Jimona Ltd. and that accordingly they were bound in respect of that contract, and in fact they wrote a letter (Ex. 19) on similar headed note-paper in respect of suit LID 224/631.

Their own employee, Mr A. A. Macaulay, when swearing affidavits on their behalf when the defendants sought leave to defend the actions, specifically referred to sub-contracts entered into with the plaintiffs by the defendants A.C.E. Jimona Ltd. We are therefore clearly of the view that by their conduct A.C.E. Jimona Ltd. accepted that it was equally with Associated Construction and Engineering obtaining the benefit of the contracts, which in effect they had taken over, and they are now estopped by their conduct from denying that. In our judgment no question of assignment arises and the learned trial judge did not so accept the defendants’ contention in this regard.

The defendants however next contended that if the Court found that there was a contract between the plaintiffs and the defendants, and this Court accepts that the learned trial judge rightly so found, then it was not proved that the plaintiff was entitled to interim payments if the work was not satisfactory. Now the plaintiff in paragraph 4 in his Statement of Claim in suit LD 222/63 stated “In accordance with the usual practice of the Association of Royal Institute of British Architects and under the Articles of Agreement and General Conditions for the Federal Ministry of Works, i.e. P W D., tenders, both the plaintiffs and the defendants further agreed that interim payments for work done would be made by the defendants to the plaintiffs on the issue of monthly certificates by the P.W.D. or in accordance with progress reached by the plaintiffs from stage to stage,” (our underlining) and in paragraph 4 of his Statement of Claim in suit LD 223/63 stated “Both the plaintiffs and the defendants agreed further to be bound by the usual practice as to payment of the Association of Royal Institute of British Architects and under the Articles of Agreement and General Conditions for the Federal Ministry of Works, i.e. P.W.D., tenders, and in particular that interim payments would be made by the defendants to the plaintiffs on the latter’s presentation to the defendants of demand notes for such payments in accordance with progress reached from stage to stage,” (our underlining) and in paragraph 4 of his Statement of Claim in suit LD 224/63 stated “Both the plaintiffs and the defendants agreed further to be bound as to payment for work done under the contract by the usual practice of the Royal Institute of British Architects and under the Articles of Agreement and General Conditions for the Federal Ministry of Works (P.W.D.) tenders, and in particular that interim payment would be made by the defendants to the plaintiffs on the latter ‘s presentation to the defendants of demand or request notes for such payments in accordance with progress reached from stage to stage.” (our underlining).

It is to be noted that the defendants objected that the plaintiffs did not prove either the usual practice of the Royal Institute of British Architects or the general conditions for the Federal Ministry of Works tenders but in suit LD 222/63 there was the alternative claim “or in accordance with progress reached by the plaintiffs from stage to stage” and in the other two Statements of Claim there were the words “and in particular that interim payment would be made by the defendants to the plaintiffs on the latters presentation to the defendants of demand notes for such payments in accordance with progress reached from stage to stage,” so that this objection was not fatal to the plaintiffs case. The plaintiffs established that previously they had received interim payments from the defendants in respect of a contract with them in regard to Queen’s College Yaba and the defendants’ own witness, Mr Haastrup, stated “as usual I made request for interim payments as work progressed. It was the agreement between the defendants and myself.” We do not consider the learned trial judge was wrong to find that it was proved that interim payments should be made and it must be kept in mind that the plaintiffs had no privicy of contract with the P.W.D. so they could not ask for the P.W.D. to certify their work, as the defendants submitted that they should have done, as only the defendants could do that. The plaintiffs for their part conceded that they had not finished the work on any of the three contracts but they gave credit for this in each claim to the defendants when they submitted their final invoices. Having made their claims as to the work done for which they were entitled to be paid it was for the defendants to object if they were not satisfied, but on their own admission they did nothing, not even having the ordinary business courtesy to acknowledge these submitted claims of the plaintiffs.

Instead they brought in another contractor, Mr. Haastrup, and when he inspected the work, and as he says, found it unsatisfactory, the defendants asked him to complete the contracts without calling in either any independent witness to assess the value of the work done or anyone from the P.W.D. nor did they give the plaintiffs any opportunity to be present when the work was inspected and valued. Indeed the defendants did not value the work or, at any rate, they offered no evidence at the trial of the value of the work done but sought to say that it should be the agreed price less any monies paid to Mr. Haastrup, overlooking the fact that Mr. Haastrup was an interested party to make the work as expensive as possible and that he did not give evidence of the value of the work actually done by the plaintiffs.

We therefore do not consider the defendants offered satisfactory evidence negativing the plaintiffs claim for the work done and Mr. Ogunsanya in reply for the defendants himself conceded that he thought there was merit in a quantum meruit assessment of the plaintiffs’ work but could not suggest how this could now be satisfactorily calculated otherwise than by deducting the payments made to Mr Haastrup. In our judgment the defendants had the opportunity to make the necessary assessment of the value of the work done and not having taken it they are bound now, due to their own inactivity, to the terms of the plaintiffs’ claims

All the grounds of appeal argued having failed, the appeal is dismissed with thirty guineas costs.

Other Citation: (1966) LCN/1327(SC)

Adewale Sholuade V The Republic (1966) LLJR-SC

Adewale Sholuade V The Republic (1966)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

The appellant was tried in the High Court of Lagos before Adedipe J., sitting with a jury and was convicted of murder.

The case for the prosecution was that in the evening of the 8th of May, 1965 in Obadina Street, Lagos, the appellant struck the deceased once on the head with an axe as a result of which he fell down and had to be taken to Dr O. O. Hunponu-Wusu who treated him for a laceration on the head and after stitching it discharged him from the Lagos General Hospital, only for him to be readmitted shortly thereafter.

He subsequently died and in the post-mortem examination conducted on the 11th May, 1965 by Dr J. M. Uku, Senior Specialist Pathologist, he found that “there was a laceration 3/4” long on the left side of the scalp. I also found that the skull was broken on the right side. There was bleeding just under the skull at the site of the fracture. I found other organs to be normal. In my opinion the fracture of the skull is consistent with a blow to the skull. In my opinion death was due to fracture of the skull and bleeding into the cavity of the skull.” The appellant in a statement to the police admitted that he had hit the deceased on the head with an axe but said that he only did this after a fight and after the deceased’s mates had started to box him.

When the appellant gave evidence at the trial he stated that he had been abused by the deceased as a prophet of the Cherubim and Seraphim who drank, had his tumbler at a party in Smith Street, Lagos, which he was attending, knocked out of his hand by the deceased and as a result he then held the deceased whereupon the deceased’s friends started to beat him to make him release the deceased. He then ran off pursued by the deceased till he fell down, whereupon the deceased sat on him while the deceased’s friends beat him with sticks and belts. While he struggled to get away the appellant stated that he stretched out his hand, held something and flung the object backwards not seeing what happened to it and he was later shown the object which was an axe but this was only after he found himself in the Lagos General Hospital to which he had been taken. He also said that he did not receive the injuries which were inflicted on him from the crowd that arrested him.

Now Mr Cole filed a number of grounds of appeal which he argued on behalf of the appellant. Two grounds which he argued together were that “The learned trial judge misdirected the jury in that he stated or implied that the jury will not be released unless they arrive at a unanimous verdict. The appellant complains against this misdirection as amounting to putting pressure upon the jury to appear to come to a conclusion though they had not in fact done so.

The learned trial judge failed to direct or indicate to the jury that they were entitled to disagree and make a report of such disagreement to the court,” in support of which he cited R. v. Davey [ 1960] 3 All E.R. 533 and R. v. Mills [1939] 2 All E.R. 299 but in neither case do we consider that it is applicable to the facts of this appeal as the former turned upon whether the judge had suggested to the jury that the need for unanimity had been relaxed and that they might concur in a verdict for the sake of conformity whilst in the latter case the decision was that the direction to the jury must not give the impression a minority may acquiesce with a verdict with which they do not agree. In this appeal the learned trial judge asked the jury to consider their verdict and told them they might come back into court if they had any questions and that they should not hurry, ending by saying “you must not call the court unless you arrive at a unanimous verdict.”

When the judgment is read as a whole we do not consider the learned trial judge would have been misunderstood by the jury but that the jury would have realised he was telling them that a verdict of guilty of murder or of manslaughter or not guilty must be a unanimous one but that would not preclude them coming back to the court with any question if they could not arrive at a unanimous decision. It is not and never has been in our experience the practice in summing up to tell the jury specifically, as Mr Cole argued, that they could disagree. We do not consider in this appeal that any undue pressure was brought upon the jury to arrive at a unanimous verdict.

Mr Cole further argued that the learned trial judge in his summing up indicated his opinion very freely, usually if not invariably, against the appellant and thus deprived the appellant of the substance of a fair trial. In support of this contention he cited Broadhurst v. The Queen [1964] 1 All E.R. 111, where in a murder appeal from Malta the Privy Council held that while the opinions of the presiding judge at a criminal trial on issues of fact can often be of great assistance to the jury, yet it is very important that the jury should be told that they are not bound by them nor relieved thereby of the responsibility of forming their own view and even if a proper warning is given an appellate court can still intervene if it considers the judge’s opinions are far stronger than the facts warranted so that there was a danger of the jury being overawed by them.

In that case the presiding judge in fact gave no warning, in contrast to this appeal where the learned trial judge several times warned the jury that they were not bound to accept his suggestions but could reject them as they must make the findings of facts. Although Mr Cole has pointed out a number of opinions of the learned trial judge which might have been better expressed we do not consider in this appeal he could be said to have in any way over-awed the jury and, as has been stated, he did warn them that they were not bound to accept his suggestions. So far as his opinions were concerned he left the issues to be determined by the jury and he was entitled to express himself strongly as shown in R. v. O Donnell, 12 Cr. App. R. 219.

Mr Cole next took the point that though the trial judge had told the jury there were inconsistencies in the prosecution case these were minor and immaterial, but he did not refer the jury to such inconsistencies. Mr Cole, rightly in our view, pointed out that the learned trial judge did not deal satisfactorily with the inconsistency in the medical evidence because Dr O.). Hunponu-Wusu when he examined the deceased on the evening of the incident did not find any fracture of the right side of the skull whilst Dr Uku who conducted the post-mortem examination was of opinion that death was due to fracture of the skull and bleeding into the cavity of the skull. Dr Wusu only found a laceration of the skull which Dr Uku found to be on the left side. No questions were put to Dr Uku to find out if he thought it was possible for Dr Wusu to have missed this fracture, and no clear evidence was offered to prove whether the fracture of the skull occurred before or after Dr Wusu’s examination. We consider this inconsistency in the medical evidence was so vital that it should have been explained to the jury as one of the inconsistencies to which the learned trial judge was referring, always assuming it in fact was one to which he intended to advert.

There is a second inconsistency which is in our judgment even more vital and to which the learned trial judge did not draw the jury’s attention, and that is the inconsistency between the witness Dabiri whose evidence from his deposition was read to the jury and that of the 7th prosecution witness Adekunle Ogunmuyiwa as to what actually happened when the accused struck the deceased. The learned trial judge referred the evidence of each of them to the jury without suggesting there is any inconsistency and said the prosecution asked them to accept both witnesses as witnesses of truth. Dabiri however said there was a shout from the appellant “where is he” to which the deceased replied “I am here,” and the appellant then struck him a blow on the head, but the 7th prosecution witness said this was never said “unless this was said before I got there” yet both purported to be at hand describing the same incident.

Moreover, the 7th prosecution witness said he saw the accused holding the deceased and then he took an axe from the ground and struck him on the head with the blade of the axe, whilst Dabiri could not say with what the appellant hit the deceased but said the appellant asked “where is he” which implies he was not holding him or he would not have so asked. When dealing with this vital prosecution evidence as to the incident the learned trial judge further did not draw the jury’s attention to the fact that they had not seen Dabiri in the witness box but only heard his deposition whilst the 7th prosecution witness had given evidence in person before them. We consider these inconsistencies ought to have been brought specifically to the attention of the jury and it was a serious misdirection amounting to a miscarriage of justice to fail to do so.

Mr Cole finally also submitted that the learned trial judge wrongly put on the defence the onus of proof of the defence of self-defence. It is clear from the record that whilst in one place the learned trial judge indicated to the jury that the onus was on the prosecution to negative the defence of selfdefence put up by the accused, in another place he implied the onus was on the accused to establish self-defence. As R. v. Oshunbiyi [1961] All N.L.R. 453 clearly shows the onus remains in the prosecution to disprove self-defence once it is set up and we accordingly find that this too was a serious misdirection of the learned trial judge. We further note, though it was not a ground of appeal, that when the learned trial judge left to the jury, as the prosecution suggested he might, the determination whether the death was accidental he also wrongly put the onus on the accused rather than as he should have done on the prosecution to disprove accident. Having regard to the serious misdirections amounting in our view, as we have indicated, in each such case to a miscarriage of justice, we allow the appeal and the conviction is quashed and a judgment and verdict of acquittal is entered.

Other Citation: (1966) LCN/1326(SC)

Agbonmabge Bank Ltd V C.F.A.O (1966) LLJR-SC

Agbonmabge Bank Ltd V C.F.A.O (1966)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

In this appeal the Agbonmagbe Bank Ltd. complains of the judgement given by Adedipe J., in the Lagos High Court Suit No. LD/344/1963 on 6th July, 1964 in favour of the C.F.A.O. for £9,865-4s-4d.

The C.F.A.O. had a customer by the name of Esther Abiola Amushan, who gave the company a number of cheques on the Agbonmagbe Banks Branch at Shagamu between the 7th August, 1957 and the 5th October, 1957 amounting to £10,197 -8s-4d; the company handed the cheques to the Bank of West Africa Ltd., for collection, and this Bank sent them to the headquarters of the Agbonmagbe Bank at Ebute Meta, which returned the cheques dishonoured on the 10th October, 1957 in a bunch. The C.F.A.O. wrote to the Agbonmagbe Bank headquarters to complain that the delay of their Shagamu Branch in returning the cheques caused them loss for which the company held the Bank responsible, but received no reply. The C.F.A.O. sued Mrs. Amushan and obtained judgement against her for what she owed the company-£ 13,829-0s-1Od, which included the amount of the cheques; the company managed to collect £250 from her and could collect no more; so they sued the Agbonmagbe Bank for the amount of the cheques in question. The companys manager testified as follows:

‘When the cheques were not returned within reasonable time, my company assumed that they must have been paid. If the cheques had been returned within a week or so we would have stopped delivering further goods to Mrs. Amushan and our loss would have been minimised. We lost the value of the cheques as a result of the delay occasioned by the defendant.’

The C.F.A.O. manager agreed in cross-examination that the Agbonmagbe Bank were not his companys bankers; but there was no cross-examination on the companys assumption that as the cheques were not returned within a reasonable time they must have been paid. That there was undue delay on the part of the Agbonmagbe Bank was proved by a manager of the Bank of West Africa who testified on bank practice; he was not cross-examined. The Agbonmagbe Bank offered no evidence in defence.

The learned trial judge was of opinion that cheques sent from Lagos to Shagamu should, if not paid, have been returned within a week, and in his opinion the Agbonmagbe Bank had failed to fulfil its duty of returning them in the ordinary course of business to the Bank of West Africa within a reasonable time with an intimation that they would not be paid. The learned judge recognised that there was no privity of contract between the C.F.A.O. and the Agbonmagbe Bank; he relied on Donoghue v. Stevenson [1932] A.C. 562, for his view that the Bank was liable for negligence.

In that case Lord Atkin gave his view of negligence in tort (at p. 580) as follows:

‘At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances …. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be-persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing- my mind to the acts or omissions which are called in question.’

Adedipe J., states in his judgement that it was clear on the cheques that the Bank of West Africa was the agent of the C.F.A.O. for the purpose of collection, and that the Agbonmagbe Bank had a duty of care in dealing with the cheques which were sent to it for collection, but it was negligent and the C.F.A.O. suffered damages owing to its negligence. Hence the judgement in favour of the C.F.A.O., from which the Agbonmagbe Bank has appealed.

The objections to the judgement made on the Banks behalf are two

(1) that the judgement against Mrs. Amushan was a bar to a suit against the Bank;

(2) that the Bank had no duty of care to the C.F.A.O.

The court approaches an appeal on the principle that the appellant must show that the decision was wrong.

The Court is not persuaded that the judgement was wrong in the first respect, having regard to the fact that the claim against Mrs. Amushan was based on contract but that on the Bank was based on tort. There were two separate causes of action against two distinct persons, and the judgement against Mrs. Amushan did not extinguish the right of the C.F.A.O. to sue the Bank, even though it was in respect of the same cheques. What was important was that the C.F.A.O. should not recover the money on those cheques twice. They tried to recover it from Mrs Amushan and only sued the Bank when they could not recover it.

Mr. Makanju sought to support his argument by referring to Gawain v. U.A.C. Ltd,. [1961] All N .L.R. 785, and to Scarf v. Jardine (1882) 7 App. Cas. 345. sued the U.A.C. Ltd. twice for breach of one and the same contract, which is not possible: he ought to have made all his claims arising out of the breach in the first action. In Scarf v. Jardine the facts were these, Jardine had dealings with a firm known as W. H. Rogers & Co., earlier it consisted of Scarf and one Rogers; they dissolved the partnership and Scarf retired; Rogers took one Beech as partner, and they continued trading as W. H. Rogers & Co.; Jardine sold goods to the firm not knowing of the change. After he had notice of it, he sued Rogers and Beech, who later went into liquidation; Jardine proved in the liquidation, and then sued Scarf. The decision was that Jardine could have sued either Rogers and Scarf as the old firm, and that Scarf would have been liable by estoppel under the doctrine of agency between partners, as he had had no notice of the dissolution when he sold the goods, or could have sued Rogers and Beech as the new firm to whom he actually supplied the goods; but he could not have sued Rogers and Beech and Scarf together; and having elected to sue Rogers and Beech he could not sue Scarf any more. It is to be noted that there was only one cause of action, and the basis of it was contract. Neither Gafais case nor Scarfs is similar to the case in hand, and the first objection must fail.

The Court is also not persuaded that the trial judge erred in deciding that the Bank had a duty of care towards the C.F.A.O. Mr Makanju relied on Schroeder v. Central Bank of London. Ltd. (1876) 34 L.T.R. (N.S.) [735]. It is true that a banker is ordinarily not liable to the payee of a cheque for non-payment of the cheque: a cheque is not an assignment of debt in English law. But that case is on there being no privity of contract between the payee and the banker on whom a cheque is drawn. Here the C.F.A.O. is suing the Bank on the basis of negligence in tort.

Mr. Makanju has pointed out .that the principle of the decision Donoghue v. Stevenson (supra) is summed in these words of Lord Atkin (at p. 599):

“….a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumers life or property, owes a duty to the consumer to take that reasonable care.’

That certainly was the decision on the facts of the case. Donoghue drank some ginger-beer at a cafe out of an opaque bottle that was sealed with a cap; her case was that there was a decomposed slug in it, and that she suffered in health. There was no privity of contract between the plaintiff and the manufacturer, but he had a duty to take care towards potential consumers. Why? Because, as stated earlier by Lord Atkin at p. 580 in the passage first quoted in our judgement, the consumers are persons whom the manufacturer ought reasonably to have in contemplation as closely and directly affected by his acts or omissions. The decision is an application of the principle stated at p. 580 to the facts of the case.

The learned counsels reference to the passage at p. 599 was doubtless designed to show that it was only in that type of case that there was a duty to take care in the law of tort. Lord Macmillan in Donoghues case made it clear that the duty was not so restricted; he said as follows (at p. 619):

‘What, then, are the circumstances which give rise to this duty to take care? In the daily contacts of social and business life human beings are thrown into, or place themselves in, an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in that relation to each other. The categories of negligence are never closed …’

Mr. Lampejo, for the C.F.A.O., referred to Hedley Byrne & Co. Ltd. v.Heller &Partners Ltd. [1964] A.C. 465, as showing that bankers may be liable to persons who are not their customers for tort negligence which causes them pecuniary damage. In that case the defendants, who were merchant bankers, were asked by a bank on behalf of the plaintiffs, a firm of advertising agents whose name was not stated to the defendants, about the creditworthiness of a company who were customers of the defendants; and the decision was that the defendants were careless in what they said but escaped liability because they expressly disclaimed it in their answer. The case shows that bankers normally owe a duty of care to persons whose bank is making such an enquiry on their behalf.

There is a business practice among bankers in regard to cheques, and we think that the defendant Bank ought to have followed it, to avoid it being thought, as it would reasonably have been thought by the C.F.A.O., that Mrs. Amushans cheques were being paid. On the limited evidence in the case we do not think the learned judge erred in deciding that the Bank had a duty of care towards the C.F.A.O. and was liable for damage caused by its negligence, and the second o

Other Citation: (1966) LCN/1325(SC)

S. O. Akinsete V Emmanuel Akindutire (1966) LLJR-SC

S. O. Akinsete V Emmanuel Akindutire (1966)

LawGlobal-Hub Lead Judgment Report

ONYEAMA, J.S.C

The appellant was the judgment creditor in a suit for debt commenced in the Magistrate’s Court at Ibadan. The respondent who was the judgment debtor appealed to the High Court at Akure and applied for a stay of execution of the judgment of the magistrate pending determination of the appeal in the High Court: he was unable to fulfil the conditions on which a stay was ordered and the appellant eventually obtained an order in the High Court to attach and sell by way of execution of the judgment of the magistrate the immovable property of the respondent.

Pursuant to this order a bailiff of the court attached and sold a storey house with two stores at Fagbo, Ondo, and a storey house at 24 Odojomu Street, Ondo, belonging to the respondent on the 14th of December, 1963; the two houses which were about fourteen miles apart were sold to the same purchaser, one Gbakaba, and each was sold for £145 although it was said to be worth about £2,000.

The respondent moved the High Court for an order setting aside the sales on the ground of irregularities in the conduct of the sales: these irregularities were said to be:

(a) That the judgment creditor’s son kept bidders away by threatening to shoot any one who came to bid with a double-barelled shot gun which he carried.

(b) That the two houses were sold at a gross under-value.

There were a number of affidavits filed in the High Court deposing to facts on which the allegations of irregularities were based; these affidavits were sworn by a number of deponents who claimed to be occupiers of the houses and by the judgment debtor and his landlord. On the other hand, the bailiff and the judgment creditor’s son swore to affidavits denying in detail the allegations made against them relating to the conduct of the sales.

The learned trial judge considered the affidavits and heard arguments of counsel: he was impressed by the facts that houses worth £2,000 each were sold for £145 each and that “two houses, situated about fourteen miles apart, were sold on the SAME day, bought by the SAME person, and each for the SAME amount” and accepted the allegation that bidders were scared away at the time of the sale.

In the face of the direct conflict of affidavits on crucial facts, the learned judge, we think, should have heard oral evidence from the deponents or such other witnesses as the parties may be advised to call. The judgment of Bannerman, J., on appeal which the West African Court of Appeal upheld in Government of Ashanti v. Adjuah Korkor, etc. 4 WA.C.A. 83 is authority for this.

It is, of course, open to the court to act on affidavit evidence in cases in which the facts are not disputed or in which the parties agree that this should be done; and it is only fair to say that in the present case neither side asked to be allowed to cross-examine any of the deponents or to call any witness. We do not however think that this omission by the parties can be taken to amount to consent that affidavit evidence be used in this case in which the facts in issue were irreconcilably in conflict.

For these reasons we allow the appeal. It is ordered that the order of the High Court at Akure (Fatayi Williams, J.) dated the 20th March, 1964, in Suit M/5/63 between S. O. Akinsete and Emmanuel Akindutire including the order for costs be and is hereby set aside, and that the application of Emmanuel Akindutire be reheard by another judge.

The respondent Emmanuel Akindutire will pay to the appellant S. O. Akinsete the costs of the appeal assessed at 52 guineas; the costs of the hearing in the High Court will abide the result of the rehearing.

Other Citation: (1966) LCN/1324(SC)

Iyede Nwango Vs The Queen (1963) LLJR-SC

Iyede Nwango Vs The Queen (1963)

LawGlobal-Hub Lead Judgment Report

MORGAN JSC

The appellant filed a petition against his wife in the court below praying for the dissolution of their marriage on the grounds of his wife’s adultery with the co-respondent and cruelty. The respondent cross-petitioned for the dissolution of the marriage on the same grounds of adultery and cruelty and cited one Clementine Ngori Usuma as the woman with whom her husband committed adultery. Both the petition and the cross-petition were dismissed by Mr. Justice Coker on the 18th day of August, 1961.

According to the evidence before the court below, the relationship between the two spouses at the material time had become very bad. Then, on the 28th May, 1960, the petitioner came to Lagos from Ibadan. On his arrival, he received certain information concerning his wife and, in consequence of it, started to look for her.

At about 1.30 a.m. he returned home to 39 Jebba Street, Ebute Metta, where his wife was living with his mother but found that his wife had still not returned home. At about 2.30 a.m. an Opel Kapitan saloon car drew up in front of the house and both the respondent and the co-respondent came out of it and walked towards the house. At the entrance to the house, the co-respondent embraced the respondent and kissed her. The appellant attacked the co-respondent and a fight ensued.

The petitioner’s witness, Comfort Taiwo, held the petitioner and took him into the house. She then went back outside and entreated the respondent to go into the house. According to the witness, the respondent was very drunk. She abused her husband, told him that she had had sexual intercourse with the co-respondent and said that he could please himself. The witness left the respondent because she was drunk but some four days later she called both the respondent and the petitioner together and advised the respondent to go back with her husband to Ibadan and consider the interest of their children. Both of them refused to come together again and the respondent said that she had already had five children by the petitioner and that she was going to have children for the corespondent.

We shall not deal with the evidence of both the petitioner and the respondent in respect of their counter-allegations of cruelty against each other, or the wife’s allegations of adultery against the husband because in the case of the petitioner he abandoned the ground of appeal dealing with cruelty and in the case of the respondent, because there is no cross-appeal by her against the decision and because the learned Judge found that even if the petitioner had been guilty of adultery the respondent had condoned.

Four other grounds of appeal were filed and argued by the petitioner/appellant and these are as follows:-

1. The decision is against the weight of evidence.

2. The learned Judge misdirected himself in law by not holding the admission of adultery by the respondent against her even though the said admission was accepted and believed by the learned Judge.

3. The learned Judge misdirected himself in law on the questions of familiarity and opportunity required to establish adultery and erred by holding on the evidence before him that no opportunity existed for adultery to be committed.

4. The learned Judge erred in law in dismissing the petition because both parties (i.e., the petitioner and the respondent) were at fault.

The co-respondent was represented at the hearing of this appeal but the respondent did not appear either in person or by counsel.

Before dealing with the arguments addressed to us, it will be useful to refer to some portions of the judgment of the learned Judge. They are as follows:

1. “The respondent was a very difficult witness and gave her evidence in an indifferent and nonchalant manner. I think the relationship between her and the co-respondent was of an entirely different nature from that described by her. Even if the co-respondent was a friend of her family that position is not inconsistent with the relationship described by the petitioner. I accept and prefer the evidence of Mrs Comfort Taiwo to the effect that she, respondent, was drunk when she returned back home on the night of the 28th May, 1960 and that she did utter the statements attributed to her by that old lady . I do not, however, propose to hold as against the respondent the statements made by her under the influence of alcohol or in the heat of passion as admissions of liability by her. I take the view that if she was cool and sober she would not have made any such statements.”

2. “There is, however, apart from the evidence of the respondent and the co-respondent no other evidence of their itinerary on the night of the 28th May, 1960 and immediately thereafter. They both said that they went to Chez Peter’s Hotel then to the Island Club and thereafter to the Rendezvous at Customs Street, Lagos. The sister-in-law of the respondent did not follow them to these latter places and although she was to meet them up at the Island Club she did not do so. I take the view that she was not expected to come back to them even if she had originally left the house with them. I do not think that she was ever in the company on that night. I am satisfied that the respondent and co respondent chose to go out together alone on that Saturday night and they did so. There is no clear evidence as to where they both went on that night. It seems to me unlikely that they had gone to the home of the co-respondent. For my part I do not accept the testimony of the respondent and co-respondent as to the places which they stated they had gone on that night. I think the story is a clever afterthought.

3. “Adultery is seldom capable of direct proof but in my view evidence must be forthcoming which will support an irresistible inference that adultery had been committed.”

4. “They both lied as to their itinerary that night. The embrace and kiss which occurred at Jebba Street that morning were hangovers from their escapades of the previous night.”

It is clear law that even if the learned Judge regarded as a confession the respondent’s statement as to her past adultery with the co-respondent and as to her future intention to have children for the co-respondent this would be evidence of confession of adultery by the respondent alone and would not be evidence against the co-respondent unless she made the statements in his presence and he acknowledged the truth of the statements by his conduct at the time the statements were made. But this is not the case because on both occasions in question the co-respondent was not present. Therefore the first extract from the judgment relates only to the charge of adultery against the respondent.

On the question of the weight to be attached to the confession, we disagree with the view of the learned Judge that because the respondent was drunk when she first admitted having committed adultery with the co-respondent that an admission made in such a condition although rightly admitted in evidence did not carry weight. Furthermore, even if the learned Judge thought that the first admission was made when the respondent was under the influence of alcohol what of her admission of adultery with the same man some four days later? Confessions of adultery are regarded with suspicion, in particular, in cases where the party making the confession desires a divorce. But it is our view that the respondent’s repetition of her confession of adultery some four days after her first admission of it as well as the events of the 28th May, 1960 as found by the learned Judge are sufficient corroboration to support a finding that the respondent was guilty of adultery.

We shall now consider the evidence before the Court below as against both the respondent and the co-respondent as well as the standard of proof required to support a finding of guilt in cases of adultery. The learned Judge stated in his judgment that, in order to prove adultery, familiarity as well as opportunity must be established, and found that there was clear evidence of familiarity. He stated, however, that the evidence in support of a finding of adultery must raise an irresistible inference that adultery had been committed and found that on the facts before him there was no evidence of opportunity.

The learned counsel for the co-respondent cited some authorities to us on the issue as to whether there was opportunity for the respondent and co-respondent to have committed adultery, and has asked us to hold that the learned Judge was right in deciding that there was none. He submitted further that in the circumstances of this case this court should not disturb the finding of fact made by the learned Judge to the effect that there was no opportunity for the respondent and the co-respondent to have committed adultery.

In respect of the second point made by the learned counsel for the co-respondent, we shall briefly refer to the following passage in Lord Thankerton’s speech in Watt (or Thomas) v. Thomas [1947] A. C. 484 [at p. 487] as to the test to adopt:

“(I). Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion;

(II). The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence;

(III). The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”

As regards the question of whether or not adultery was committed, we are of the opinion that the learned Judge was in error in his application of the standard of proof required to the facts found by him to have been proved. It has frequently been held that, as with all other matrimonial offences, the standard of proof required in respect of adultery is proof beyond reasonable doubt. But it has also been held that it is not necessary to adduce direct evidence, because, as it is rare to obtain direct evidence, there would be no protection for the wronged spouse if the rule were otherwise. (See Preston Jones v. Preston-Jones [1951] A.C. 391 at p. 401; Woolf v. Woolf [1931] P. 134 at p. 144).

In Farnham v. Farnham (1925) 41 T.L.R. 543 at p. 544, Lord Merrivale, P., said.

‘“The inference of adultery arises when there is proof of the disposition of parties to commit adultery together, with the opportunity for committing it.”

Lord Buckmaster said in Ross v. Ellison (or Ross) [1930] A.C. 1, at p.7:-

”It is easy to suggest conditions which can leave no doubt that adultery has been committed, but the mere fact that people are thrown together in an environment which lends itself to the commission of the offence is not enough unless it can be shown by antecedent conduct that the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence.”

Lord Atkin at page 21 of the same judgment said:- “But from opportunities alone no inference of misconduct can fairly be drawn unless the conduct of the parties prior, contemporaneous, or subsequent justifies the inference that such feelings existed between the parties that opportunities if given would be used for misconduct.”

From the foregoing it will be seen that the fact that adultery has taken place is an inference from all the surrounding circumstances of each case. And such inference may be drawn from confessions, admissions, undue familiarity, suspicious circumstances and improper behaviour. For instance, in Roast v. Roast [1938] P.8, 17, it was decided that for the purpose of ascertaining the truth, the court was entitled to consider whether the party alleged to be guilty of adultery was the author of a certain filthy literature found in her bag.

Therefore, if there is evidence of undue familiarity, suspicious circumstances, and improper behaviour, the court is entitled, upon a consideration of each particular case, to find as a fair inference that such behaviour leads as a necessary conclusion to adultery. (See Loveden v. Loveden 2 Hagg. Cons. 1, 2; Allen v. Allen [1894] P. 248, 252). And where there is evidence of a guilty inclination or, in the words of the learned Judge in this case, clear evidence of familiarity, and this is coupled with evidence of opportunity, this is strong prima facie evidence of adultery.

As we have stated, the learned Judge found that there was clear evidence of familiarity but that there was not sufficient evidence of opportunity. With respect, we are unable to agree with him that a man who took a woman whom he knew to be another man’s wife away from home for about five hours during the hours of darkness, from about 9.30 p.m. till about 2.30 a.m., and whom he was found to be embracing and kissing near the door of the woman’s mother-in-law’s residence, had no opportunity of committing adultery with her.

And this in spite of the findings of the learned Judge that both the respondent and co-respondent lied as to their movements during the period of five hours when they were alone together, and that their embracing and kissing of each other was a hangover from what the two of them had been doing during the period they were alone together! For, as Denning, J., as he then was, said in Miller v. Minister of Pensions [1947] 2 All E.R. 373, in regard to proof beyond reasonable doubt:-

“It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.

For the foregoing reasons we are of the opinion that the first, second and third grounds of appeal succeed. With regard to the fifth ground of appeal, we cannot find any authority in support of the view of the learned trial Judge that when both parties are at fault the petition must be dismissed. In the result we allow the appeal and set aside the decision of the court below and hereby grant the appellant a decree nisi. We decree that the marriage had and solemnized at the Marriage Registry in Lagos, Nigeria, on the 16th day of September, 1948 be dissolved by reason that on the 28th May, 1960 the respondent committed adultery with the co-respondent, Mr. Morris, unless sufficient cause be shown to the court below within three months from the making of this decree why it should not be made absolute. We hereby remit to the court below for determination the petitioner’s claim for custody of the children of the marriage.

OTHER CITATIONS: (1963) LCN/1034(SC)

Stephen O. Akinyemi V Rosella A. Akinyemi (1963) LLJR-SC

Stephen O. Akinyemi V Rosella A. Akinyemi (1963)