Tosin Ajayi V. Oba John Ojomo & Ors (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A. 

The plaintiff (herein after referred to as the respondent) commenced an action against the defendants including the present appellant in the High Court of Lagos (Coram Martins J.) for the following reliefs:

1. “A declaration that (1) the acquisition and/or (2) the revocation of his right of occupancy by Lagos State Government of his land at Opebi Village, Ikeja, covered by his registered deed of conveyance dated 7th July, 1977 and registered as No. 94 page 94 volume 1635, Lagos State is a nullity in so far, as it relates to the plaintiff’s land.
2. An order for immediate possession of the land subject-matter of the plaintiff’s deed of conveyance.
3. Mesne profit in the sum of N2,000,000 per annum with effect from 1st January, 1996 until possession is yielded up”.

The 3rd defendant (hereinafter referred to as the “appellant” filed his statement of defence, while the 1st and 2nd defendants did not.

At the trial respondent called four witnesses. The appellant did not give evidence or call any witness.

On 12/11/96 the learned trial Judge entered judgment for the respondent in the terms of claims as made save for the mesne profit which was given in the sum of N100,000.00 per annum with effect from 1st January, 1986 until possession is yielded up.

The appellant’s counsel had applied on 2/8/96 for the striking out of the action on the ground that the trial court lacked jurisdiction in that:-

(a) the action is statute-barred; and

(b) the plaintiff lacked locus standi as the land was acquired in 1974 before the plaintiff had his Deed of Conveyance in 1977.

The respondent filed a notice of preliminary objection that the application was incompetent as the issue of jurisdiction was not raised in time. After argument by counsel on this issue the trial Judge on 27/9/96 in his ruling on jurisdiction sustained the objection of the respondent and held that he had jurisdiction to determine the suit as constituted. The appellant appealed against the ruling on jurisdiction on 2/10/96; filing 5 grounds of appeal. The second amended notice of appeal, dated and filed on 1/11/99 by order of this court, contained 4 grounds of appeal.

The appellant identified 4 issues for determination as follows:-

1. “Whether the learned trial Judge had jurisdiction to determine the ownership of the land in view of the Lagos State Government Notice No. 140 (Public Land Acquisition Law Chapter 113) published in Lagos State of Nigeria Gazette No.11 Vol. 71 of 16/4/74.
2. Whether the learned trial Judge was right in closing the 3rd defendant’s case on 27/9/96, the date fixed for ruling and not for hearing.
3. Whether the learned trial Judge was right in continuing with the trial of the case whilst there were pending applications relating to the pleadings before the court.
4. Whether the trial Judge properly evaluated the evidence before him”.

The respondent for his part formulated altogether three issues for determination in the two appeals against the ruling and the final judgment.

The two issues formulated for determination in the appeal against the ruling 27/9/96 are as follows:-

1. “Whether the learned trial Judge was right when he upheld the objection of the plaintiff and held that the 3rd defendant should put up his defence and at the end of his defence raise the point of law on issue of jurisdiction.
2. Whether it is open to a defendant after parties have joined issue and that the plaintiff has closed his case to allow the defendant to isolate certain issues for determination of the whole case in the circumstances of this case.

The 3rd issue formulated by the appellant for determination in the appeal against final judgment dated 12/11/96 is as follows:-

3. “Whether the learned trial Judge was right when he held that the acquisition notice is null and void in so far as it relates to the portion of the plaintiff’s land which falls within the notice of acquisition”.

On 10/5/2000 when this appeal came up before us for hearing Kemi Pinheiro who appeared for the appellant adopted the appellant’s brief filed on 2/6/98 and urged that the appeal be allowed.

P. O. Jimoh-Lasisi learned SAN with Kunle Hassan Esq. appeared for the respondent and adopted the brief filed on 5/10/98.

Briefly, the fact of this case is that the respondent, as plaintiff by his writ of summons and amended statement of claim sued the defendants jointly and severally for declaration and possessive reliefs in respect of 1st the piece of land situate at Opebi, Ikeja – Lagos.

The Lagos State Government had acquired a large parcel of land at Opebi including the parcel of land in dispute by Lagos State of Nigeria Gazette No. 11 Volume 7 (Public Lands Acquisition Law Cap. 113) of 16/4/74.

The respondent relied as his root of title, the deed of conveyance dated 7/7/77, registered as No. 94 vol. 1635 of the Land Registry, Lagos State.

I have carefully considered the issues formulated by the parties for the determination by this court. I am of the firm view that the 3 issues raised by the respondent and the 4th issue raised by the appellant are quite apt and appropriate. I shall accordingly be guided by these issues in the determination of this appeal. The first issue is therefore that whether the learned trial Judge was right when they upheld the objection of the plaintiff and held that the 3rd defendant should put up his defence and at the end of his defence raise the point of law on issue of jurisdiction.

This issue arises in the appeal against ruling of the learned trial Judge on 27/9/96 sustaining the objection of the respondent and held that he had jurisdiction to determine the suit as constituted. He said thus:

“Application dated 2/8/96 is hereby dismissed in its entirety, the 3rd applicant should now put up his defence and at the end of his defence he would be allowed any point of law the learned Senior Advocate may wish to put up. Accordingly, I so rule”. The defence counsel when asked to proceed replied thus:

“…This matter was fixed for ruling today and not for hearing. It is after ruling that we can know whether we are proceeding to trial or not, the 3rd defendant is out of the country probably on medical ground. That is why we cannot proceed to trial today. This adjournment is sought to enable us get in touch with the 3 defendant.” (italics mine)

The learned trial Judge in his ruling of the same date refused the application for an adjournment by the appellant’s counsel and closed the appellant’s case holding, inter alia that:

“I am satisfied that the Honourable court has done its best to give the 3rd defendant the opportunity to be heard since he has refused to take advantage, this Honourable court has no alternative than to close the 3rd defendant’s case. In the circumstance, the defence of the 3rd defendant is hereby close”.

The learned trial Judge after rejecting the reasons canvassed in support of the oral application for adjournment closed the 3rd defendant case and fixed the case for address.

The appellant has submitted that he was completely shut out of trial as he had no opportunity to address the court before judgment was delivered.

On 13/9/96 the learned trial Judge adjourned the ruling on preliminary objection heard on that day and 27/9/96 for ruling. When the appellant was called upon to open his case counsel informed the court that the appellant was out of the country “probably” on medical ground since the matter was fixed for ruling and not for continuation of trial.

The issue raised here touches on the exercise of the discretion of a Judge to grant or refuse an adjournment and the correct procedure to be followed.

In Odusote v. Odusote (1971) 1 All NLR 219 at 222 the Supreme Court per Udoma JSC observed:

“The question of adjournment is a matter in the discretion of the court concerned and must depend on the facts and circumstances of each case. For, in matters of discretion, no one case can be authority for another; and the “court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion”.

Also Solanke v. Ajibola (1968) 1 All NLR 46 at 54 the Supreme Court observed:

“We must say clearly and firmly that we do not consider that a judge is obliged to grant an adjournment solely because counsel on each side ask for one. That is a factor certainly to be taken into consideration but a Judge must also bear in mind the necessity for ensuring speedy justice to the contesting litigants and he must also bear in mind that by adjourning a case on a day fixed for hearing, it means further delay to other litigants who might otherwise have had their cases heard then. We would moreover, add that it is sometimes in our view, little less than scandalous that delays to a case are caused by the greater number of adjournments that on records to us have occurred in simple and straight forward cases”.

Recently in United Shipping & Trading Co. Inc. v. Agro. Allied Development Ent. Ltd., (Unreported) Appeal No. CA/L/292/98, (delivered 20/3/2000); this court, Lagos Division, per Oguntade JCA. referring to Solanke case (supra), said:

“The above statement (in Solanke) was made by the Supreme Court over thirty-years ago. Since then the situation has worsened. Cases needlessly drag because parties and their counsel now employ the court, an institution set up to deliver justice, as a vehicle to stall the realisation of the rights of their adversaries which happen to be tied up in litigation. No civilised system of court ought to accept the practice”.

I have already reproduced the relevant notes of the lower court proceedings of 13/9/96 all through. However, I observe that this suit was filed at the lower court on 29/7/91. Pleadings have been completed. Summons for directions was granted and the case proceeded to trial. In the course of the trial the plaintiff closed his case on 7/3/96. It was for the defendants to go on with their case on the 3/5/96, but on that day learned counsel Abak Esq. sought for an adjournment as the respondent was away overseas. He suggested May and the case was accordingly adjourned to 24/5/96. Before that day the defendant filed an application to amend his statement of defence. It was taken and argued and dismissed. Three other adjournments were sought thereafter at the instance of 3rd defendant (appellant).

With these numbers of adjournments at the instance of the appellant, the impression one gets is that he was not diligent. It is a useless course for a party to continuously employ tactics to delay the disposal of cases expeditiously. The case was adjourned on 3/5/96. By 28/9/96, even after series of adjournments, the appellant’s counsel was not sure of where the appellant was. Hence, the learned trial Judge was correct not to accede to further request for an adjournment as ample opportunity to hear his own side of the story has been given.

The appellants motion of 2/8/96 was brought pursuant to Order 22 of the High Court (Civil Procedure) Rules 1972. Rule 2 provides for a party to raise by his pleadings any point of law and unless the court otherwise orders any point so raised shall be disposed of by the Judge who tries the cause at or after the trial. Unless leave of court is obtained all matters should be tried by oral and documentary evidence. And after the commencement of trial it is not open to a party under the rules to isolate certain issue for determination. Cases are not to be tried in piece meal after evidence is taken especially when the matter is part-heard.

Apart from delaying tactics employed by the appellant throughout the trial at the lower court, he waited after 5 years after the service of the writ on him before raising the issue of acquisition of the land which he alleged was carried out in 1974. From the amended statement of claim, it would appear that the respondent was challenging the notice of acquisition: He claimed on page 23 of the statement of claim that the land in dispute falls outside the land covered by the Lagos State Government Notice No. 140 purporting certain lands. If so, the validity and the extent of the notice of acquisition in relation to the land in dispute can only be determined after hearing of evidence on both sides.

The determination of the dispute in relation to the land acquired by the Government and the issue of validity or otherwise of the notice of acquisition based on lack of service are issues that can only be determined after hearing evidence not on affidavit evidence as the appellant wanted the court to rely on his application.

The learned trial Judge was quite right when he upheld the objection of the respondent’s counsel and directed the defendant to put up his defence and raise the point of law at the conclusion of the trial. So also is the issue of jurisdiction. It requires evidence. It cannot be easily determined on affidavit evidence.

The second issue is repetitive of the first above. Its relevance is the case of Carlen (Nigeria) Limited v. University of Jos & Anor. (1994) 1 NWLR (Pt.323) 631 at 660. In his observations of Ogundare, JSC, said:

“I must not end this judgment without making some observations on the conduct of the defendants in this case. Parties filed and exchanged their respective pleadings and subsequently amended same. The case eventually proceeded to trial and plaintiff after calling it witnesses closed its case. The defence opened. It was at that stage the defendants brought their application praying the trial court to dismiss or strike out the action for lack of competence. At the hearing of their application they raised issues out of the purview of their prayer. The learned trial Judge should not have entertained that application but should have proceeded with the trial to conclusion”.

That is what happened in the instant case. The respondent and the appellant had joined issues on their pleadings. No where did the appellant plead facts raising issues of notice of acquisition and limitation arising from public acquisition law, which he now sought to raise in his summons for direction of 2/8/96. Respondent had closed his case and the 3rd defendant had sought several adjournments but now brought the summons. The summons is definitely misconceived and was designed merely to further halt the proceedings of the lower court.

The third issue is whether the learned trial Judge was right when he held that the acquisition is null and void in so far it relates to portion of the respondent’s land which falls within the notice of acquisition, Exhibit ‘D’. Evidence of PW2 is that no notice of acquisition was served on the respondent. This was not challenged. The purpose for which the land was acquired was not so clearly stated in Exhibit ‘D’.

Exhibit ‘D’ was issued on 9/5/74. It was not followed by the certificate of title which vests the title to the acquiring authority. If this is not done, Exhibit ‘D’ is incomplete document and cannot vest title in Lagos State Government as no certificate of title was registered at the Lands Registry at the material time. See Atunrase & Ors. v. Fed. Commissioner For Works And Housing (1975) 1 All NLR (Pt.1) 331.

In revoking a right of occupancy for public purpose or for any purpose or reason, it is the requirement of the law that the Governor should accord all those aggrieved or likely to be aggrieved by the revocation fair hearing as enshrined in section 36(1) of the 1999 Constitution: See Osho and Anor v. Foreign Finance Corp. (1991) 4 NWLR (Pt.184) 157 at 195; Bello v. The Diocessan Synod of Lagos & Ors. (1973) 3 SC 103.

No evidence is shown in the instant case of service of notice revocation on the respondent, whatsoever.

The fourth issue is whether the trial Judge properly evaluated the evidence before him. It is the submission of the learned counsel for the appellant that there was only evidence of the respondent’s witnesses before the court. It is contended that the trial Judge unilaterally closed the defence of the appellant. Similarly, that the trial Judge refused the application of the 1st and 2nd defendant to file their defence.

I have already held earlier on that the appellant was given ample opportunity to defend his case but failed to do so. (Refer to pages 76-92 also pages 128-130 of the Record).

This last issue is distilled from ground 2, of the notice of appeal dated 18/12/96. Taking a hard look at ground 2 it is a complaint against the interlocutory decision of 27/9/96. This ought to have been filed within 14 days from the date of the decision. Ground 2 though couched as a ground of law, the particulars clearly show that the complaint is against a question of fact namely that the 3rd defendant was in England on medical ground, a plea the learned trial Judge rejected when he found it very difficult to accede to the counsel’s request for adjournment as she was not very sure why the appellant was not in court.

The notice of appeal dated 12/11/96 contains ground 2 which is complaining against the decision to close the case of the appellant. It was filed on 19/12/96, a period of eighty-three days from the date when the decision was delivered.

Where a party intends to appeal against interlocutory decision in a notice of appeal against the final judgment he must apply for extension of time to seek leave to appeal against the interlocutory decision: See Tijani v. Akinwunmi (1990) 1 NWLR (Pt.125) 237; Ajani v. Giwa (1986) 3 NWLR (Pt.32) 796.

It is to be noted however, that Order 1 rule 20(7) of the Court of Appeal Rules does not restrict the powers of the court in respect of an appeal by reason of any interlocutory order for which there has been no appeal. Also Order 3 rule 22 provides that no interlocutory order from which there has been no appeal shall operate as to bar or prejudice the court from giving decision upon the appeal as may be seen just. These provisions are clear, but the submission of learned counsel in Ajani’s case seems to suggest that he could be heard as of right because the relevant rules confer on their court the discretionary power stated therein. Be that as it may, in a situation such as in the case at hand, to my mind the appellant should at least, seek leave to argue the ground relating to such an interlocutory order or ruling. A more acceptable procedure could have been for the appellant to file an application for extension of time to seek leave and to appeal against the interlocutory ruling or order if he has valid reasons for the tardiness.

It is in view of this that ground 2 contained in the notice of appeal is considered incompetent. It is struck out. Therefore arguments on the issue of closure of the appellant’s defence does not arise. It is hereby discountenanced. Besides, I have already held the view in issue one that the learned trial Judge was right when he upheld the objection of the respondent that the appellant should put up his defence and the point of law after evidence was led. In the final analysis, this appeal fails entirety. Accordingly I hereby affirm the decision of the learned trial Judge. Costs is assessed at N3,000.00 to the respondent.

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Other Citations: (2000)LCN/0856(CA)

Alhaji Abdu Usman Maidara V. Alhaji Shehu Halilu (2000)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A. 

The plaintiff’s claim against the defendant is for the sum of N149,500.00, being the balance of money collected from him for the purchase and supply of fertilizer, which the defendant refused or neglected to pay, inspite of several demands and an agreement, in which the defendant gave an undertaking to refund the same by 31st December, 1999. The writ of summons was caused to be issued, under undefended list, pursuance of Order 22 rule 1 of the Kaduna State High Court (Civil Procedure) Rules, 1987.
The defendant filed notice of his intention to defend supported by affidavit disclosing defence on the merit. The suit was eventually transferred from the undefended to the general cause list.

Pleadings were consequently ordered, filed and exchanged accordingly a statement of claim and amended statement of defence. The plaintiff’s claim adumberated in paragraph 33 of his statement of claim reads inter alia as follows: “In consequence of the matters aforesaid, the plaintiff has suffered loss and damage whereof he claims against the defendant as follows:-
1. Special damages: N64,500 being the balance of plaintiff’s principal sum of N203,000.00 with the defendant.
2. General Damages: N80,000.00 for psychological trauma and general discomforts suffered by the plaintiff as a result of the fraudulent acts of the defendant.
3. 21 percent interest on the balance of the plaintiff’s money with the defendant which is N64,500.00 from the date it remained unpaid to the date judgment is delivered (if in favour of the plaintiff) and the date the defendant finally liquidates his total indebtedness to the plaintiff.
Total : N144,500.00 plus 21% interest on N64,500.00.”

The defendant filed a sixteen paragraph statement of defence containing a fourteen paragraph particulars of counter claim. It was averred in paragraph 16 of the statement of defence thus:-
“That in further reply to paragraph 29 – 33 the defendant avers as follows:-
(i) That the plaintiff pleaded with the defendant to borrow him some money and the defendant borrowed him N57,000.00 in the presence of one Ahmadu and later N65,000.00 and subsequently N5000.00 all totaling N142,000.00 which the plaintiff collected and has refused to repay same to the defendant inspite of repeated demands but the defendant did not give the said money to the plaintiff in payment of any purported debt.
(ii) …
(iii)…..
(iv) … AND the defendant hereby counter claims against the plaintiff as follows:-

SPECIAL DAMAGES:
1. N50,000 – Cost of defendant 1515 fertilizer jointly supplied to NTC with the plaintiff which the plaintiff has converted to his own use
2. N3,500 – Being defendant’s share of the N7 ,000.00 profit realised from the supply of fertilizer to NTC which the plaintiff has wrongfully converted to his own use.
3. N142,000 – Being money borrowed by the plaintiff from the defendant which the plaintiff has refused to pay inspite of repeated demands.

GENERAL DEMAGES:
4. N200,000 – Being loss of earning suffered by the defendant caused by the plaintiff’s refusal to pay the money, under heading 1,2 and 3 above totaling N105,000.00
5. N20,000 – General damages for defendant’s conversion of the plaintiff’s N195,000.00.
———–
N235.500.00   Special and General damages.”

The plaintiff testified and called three other witnesses in support of his claim. The defendant also gave evidence, in addition to two other witnesses, he called in support of his defence and counter-claim. Learned counsel for either party addressed the court viva-voce. Thereafter, learned trial Judge, in a reserved and well considered judgment, concluded as follows:-

“I have come to the irresistible conclusion that the claim of the plaintiff succeeds in part and is granted while the counter-claim of the defendant has failed and is dismissed. Judgment is hereby entered in favour of the plaintiff as against the defendant in the sum of N64,500.00 being balance of his N203,000 advanced to him in the course of this transaction. Plaintiff is also awarded N10,000 as general damages. The claim of 21% interest is refused. As for the defendant his counter-claim fails and is dismissed.”

The defendant is dissatisfied with the decision and has appealed to this court on 9 original and 1 additional grounds of appeal. The notice of appeal dated 27/6/97 appears to carry 10 original grounds the truth is that there are only 9 grounds of appeal. The false impression emanates from ground 3 being numbered as ground 4. In accordance with practice and procedure of this court, briefs of argument were settled and exchanged respectively at amended appellant’s and respondent’s brief.

Issues were formulated in each of the brief of argument. In the appellant’s brief these issues were identified as calling for determination:-

“1. Whether the Islamic Law principles of Sharikat Al Mudharaba means, a contract where respondent supplies capital for a business transaction which business is to be performed by appellant so that the 2 parties share the profit accruing thereby.
2. If the definition above is correct whether the contract between the 2 parties in this matter is governed by principle of Sharikat Al Mudharaba.
3. Whether the lower court was right in holding that the transaction between the parties ” was a clear case of simple contract offer and acceptance with the attribute of consideration and meeting of the mind otherwise known as consensus ad idem”.
4. Whether the onus of proving that the plaintiff was robbed on Lagos was static and never shifted in the circumstance of this case to prove the contrary.
5. Whether in the circumstances that the lower court held that there was no proof that the respondent had suffered any psychological trauma to the tune of N80,000.00 claimed under what principle did he awarded N40,000.00 costs.
6. Whether from both the pleadings and evidence before the trial court, the court was right in dismissing the appellant’s counter-claim.”

The respondent, who was the plaintiff in the trial court, framed the following issues:

“1. Whether the trial Judge was right in holding that Islamic law principle of Sharikat al-Mudharaba does not apply to the transaction between the respondent and the appellant and that the transaction between parties was a simple contract of offer and acceptance.
2. Whether the trial Judge was right in rejecting the appellant’s evidence on the alleged robbery in Lagos.
3. Whether the trial Judge was justified in entering judgment for the respondent on the facts of this case.
4. Having regard to the pleadings and evidence of the appellant in support of his purported counter claim whether the trial Judge was justified in dismissing same.”

I doubt the validity of the appellant’s issues 1 and 6 which are purely academic. Neither is directed at a particular ratio decidendi of the judgment of the court below. Examination of the additional ground of appeal shows its scope and limitation. The ground reads as follows:-

“The learned trial Judge erred in law when he held at page 98 of the record that: “As submitted by A.L. Yusuf Esq. that this is a proper case where the provisions of order 20 rule 3(2) should be applied to award same, I do not share that view at all as it is the duty of the plaintiff herein the counter-claimant to establish by credible evidence that he has a claim against the (plaintiff/defendant) here. The defendant has woefully failed to prove such counter claim and same is dismissed for lack of merit”. Thereby occasioning a miscarriage of justice.

PARTICULARS OF ERROR :
(a) The plaintiff (defendant to the counter claim) did not file a statement to the counter claim nor led evidence to rebut same.
(b) The evidence of the defendant/counter-claimant in proof of his counter claim was not controverted.
(c) Any pleading and or evidence that is not challenged or denied is to be deemed proved and established by court.”

The appellant related the additional ground of appeal to issue 6. Clearly the ground or the issue that could be identified from it should deal with exercise of discretion of the learned trial Judge. The learned trial Judge, in the circumstance of this case, had discretion either to enter judgment in favour of the counter-claimant, at defendant’s instance, in default of pleadings or in the alternative to call upon him to prove his case with minimal of evidence. The appellant was required by Order 26 rule 2 to move the court to give him judgment for the amount claimed. See provisions of Order 26 rules 2 and 9 of High Court (Civil Procedure) Rules Cap 68 of the laws of Kaduna State of Nigeria, 1991. Order 26 rule 2 provides for the appellant, as the counter-claimant, to move the court to enter judgment in respect of the counter-claim in event of default of pleadings. He failed to move the court accordingly. Consequently, the matter went into hearing with appellant’s full participation and without breathing a word against the measure taken. It is rather too late in the day to cry. Order 26 rule 9 merely equates consequence of default of defence to a counter claim to what prevails in event of default of defence to a statement of claim under rule 2 thereof.
By appellant’s failure to move the trial court to enter judgment in his favour, in default of defence to counter-claim, pursuance of Order 26 Rules 2 and 9 of the High Court (Civil Procedure) Rules, Cap 68, he is deemed to have waived or slept on his right. What then is a waiver? It has been held in Kudu v. Aliyu (1992) 3 NWLR (Pt.213) 615 at 635 that where a person having full knowledge of his rights, interests, profits or benefits conferred or accruing to him under the law but he intentionally decides to give up all these or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights. He should be held to have waived those rights. Therefore, a person will generally not be allowed to complain of an irregularity he has himself accepted and condoned. See also generally Adene v. Dantunbu (1994) 2 SCNJ 130; (1994) 2 NWLR (Pt.328) 509,528. The appellant, having failed to exercise the right conferred on him by reading rules 2 and 9 of order 26 of the High Court (Civil Procedure) rules, Cap 68, together at the trial court, is estopped from raising the matter here on appeal.

The learned trial Judge had an option, when the plaintiff failed to serve a defence to the counter-claim, either to enter judgment for the defendant in respect of his counter-claim or to invite him to produce evidence. In the present appeal, learned trial Judge impliedly exercised his discretion in favour of the appellant calling evidence in proof of his counter-claim. He also found in the passage quoted above that the appellant failed to establish his counter-claim on balance of probability by credible evidence.

This ground alone is capable of evolving two distinct issues, one of exercise of discretion by the learned trial Judge and the other in respect of discharge of onus of proof. Either of the putative issues demands different considerations. The consideration for wrongful exercise of discretion is different from one for review and evaluation of evidence and ascription of probative value to witnesses.

It is not always that a party who produces unchallenged and uncontroverted evidence that judgment is entered in his favour. The unchallenged and uncontroverted evidence might be worthless or might fall far short of tilting the imaginary scale in favour of a party tendering unchallenged and uncontroverted evidence. Unchallenged and uncontroverted evidence is not synonymous with prove by credible evidence.

Not only did the appellant, under this issue, canvass wrongful exercise of discretion by opting to take evidence instead of entering judgment in his favour he also canvassed ascription of probative value to the witnesses as well as quantum of damages. Under this same issue, learned counsel tacked argument in respect of his claim for interest. The learned counsel for appellant under his issue 6 argued four different questions, some covered by the grounds while others were not covered. One thing after the another otherwise there will be a muddle. The additional ground of appeal raised issues which are incompatible, the two issues arising therefrom should in their own rights be placed or constituted into separate grounds of appeal and if they were they could not possibly have been argued together. To further compound the problem, issues that could not arise, in ones wildest imagination from the ground, were argued thereunder. The ground of appeal ought to be struck out and it is hereby struck out. I did this because the two sets of particulars questioning the judgment on different basis are incompatible. A set of the particulars ought to be struck out but I do not know which of them counsel proposes to give up. Even if he could be put to his election, and were permitted to elect and one or two particulars, consequent upon his election, were struck out on the authority of Honica Sawmill Nigeria Ltd. v. Mary Okojie Hoff (1994) 2 NWLR (Pt.326) 252, 262 the remaining particulars are rendered otiose. They become irrelevant on account of the inability of the court to carry out a surgical operation on the ground by excising argument in respect of bad part from the appellants argument in respect of the issue: Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; Bereyin v. Gbogbo (1989) 1 NWLR (pt.97) 372, 380; Ayologu v. Agu (1998) 1 NWLR (Pt.532) 129, 143. It is not for the court to separate the chaff from the grains in the argument advanced in support of issue 6 in the appellant’s brief of argument consequently the argument arising from issue 6 are hereby struck out simply because additional ground of appeal or ground 10 from which it is framed is incompetent.

Issues 1 and 2 are related to ground 2 and are argued together in the appellant’s brief of argument. Since appellant counsel decided to argue these issues together I do not propose to discuss them further than to observe that only an issue should ideally be framed from one ground of appeal. A number of grounds of appeal may give rise to a single issue such grounds are argued together under that issue. If such issue is resolved against the appellant, the grounds from which it was formulated fail and are dismissed otherwise the grounds succeed and are allowed.
Where a ground of appeal is divided into several issues and the argument in support of it under one issue is resolved against the appellant and it is dismissed it is no longer proper to further discuss the same ground of appeal which had been dismissed under another issue. It is undesirable to split a ground of appeal into more than one issue.
Proliferation of issue in a brief is not ideal. It results in confusion and muddle. The court may thereby lose sight of the real issue. See Alhaji Sule Agbetoba & others v. The Lagos State Executive Council & others (1991) 6 SCNJ 1, 12, (1991) 4 NWLR (Pt.188) 664 where the Supreme Court said:-
“The ideal is to formulate an issue as encompassing more than one ground of appeal. It is not only undesirable but also confusing to split a ground of appeal into more than one issue. The practice of splitting grounds of appeal is likely to confuse consideration of principal issues with subsidiary issues.”
See also Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385; Chevron Nigeria Ltd. v. Onwugbelu & others (1996) 3 NWLR (Pt.437) 404; Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) 139; Aniekwe & others v. Okereke (1996) 6 NWLR (Pt.452) 60 and Adisa v. The State (1991) 1 NWLR (Pt.168) 490. Appellant’s issue 3 could conveniently be taken along with the first two as respondent did.

Learned counsel for appellant contended that it was on record that the parties were to share the profit from the supply of fertilizer to the Nigerian Tobacco Company from the money supplied by the respondent. He argued that since respondent who testified as first plaintiff witness was a Muslim as well as the appellant who testified as first defence witness the transaction entered into by them was presumed to be governed by Islamic Law. It needed not to be stated either orally or in writing, as that law is their way of life, it binds them. Learned counsel referred to the testimony of both the respondent and the appellant on the nature of the transaction as well as evidence of second and third defence witnesses who testified as experts on Islamic Law, the lower court ought to have held that the transaction between the parties was Sharikat Al-Mudharaba. He submitted that the trial court erred when it failed to hold that the transaction between two Muslims was governed by al-mudharaba.

It was further submitted that the evidence of second and third defence witnesses should have been taken as establishing that the transaction between the parties “was akin” to the principles of Al-Mudharaba laid down: Modupe v. The State (1988) All NLR 371, 375.

In this connection, learned counsel for respondent contended that neither the respondent nor the appellant raised the issue of Sharikat al-Mudharaba in their original pleadings. Learned counsel then submitted that the importation of Sharikat al-mudharaba after the respondent had closed his case was an after thought.

Learned counsel further submitted that it was not sufficient to show that parties are Moslem and argued that for Islamic law to apply parties must be shown to have agreed to be bound by it. Learned counsel drew a distinction between Islamic Personal Law and Islamic Law of Contract.

The introduction of the principle of Islamic law of Sharikat al-mudharaba into the defence of the appellant was during the cross-examination of the first plaintiff witness, who is incidentally the respondent in the instant appeal. The applicability of this principle of Islamic law was not raised in the appellant’s original statement of defence. The aspect of Sharikat al-mudharaba was formally brought into the case when the respondent and his witnesses had testified and respondent’s case closed. The introduction of the defence, at that stage, is not only an after thought but intended to over-reach the respondent. It clearly answers the adage which says that a drowning man would cling unto anything including a straw.

I agree with the submissions of the learned counsel for respondent that there is a distinction between application of a personal law and other aspect of sharia. Islamic personal law such as marriage, succession and inheritance applies to all Muslim simply because they are Moslem.

But Islamic Law of Contract including Sharikat al-mudharaba and muravalat is not applicable to a contract merely because the parties are Muslims. The appellant, in the circumstance, had a burden of proof that there was cooperation or partnership agreement between the parties to pull their resources together. There must be evidence that respondent agreed to supply the capital and the appellant agreed to contribute his expertise as well as sharing of the profit (if any) before the principle of Sharikat al-mudharaba could be invoked. The respondent when cross-examined whether the parties agreed to be bound by this principle of Islamic law denied it. The witnesses appellant summoned to testify on this aspect of the case, second and third defence witnesses, were not in a position to give credible evidence on the matter. The reason for their short coming was not in them but in the appellant who called them as witnesses. The two witnesses were complete strangers to the transaction. The negotiation of the contract was not done in their presence. They can therefore have no personal knowledge thereof not to talk of their adducing evidence in that regard. The two witnesses do not know the terms of the contract and cannot testify on it.

The appellant having raised the defence of Sharikat al-mudharaba the onus of proof was on him. He is the party who asserts or who will fail if no evidence is adduced on the issue: Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) 799; Ogomo v. Ejeh (1987) 4 NWLR (Pt.64) 216, 239; Bakare v. ACB Ltd. (1986) 3 NWLR (Pt.26) 47, 57 and S.137(1) of the Evidence Act, Cap. 112 of the laws of the Federation of Nigeria, 1990 which provides as follows:-
“137(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against who the judgment would be given if no evidence were produced on either side regard being had to any presumption that may arise on the pleadings.”
See also Akun v. Mangu L.G.C. (1996) 4 NWLR (Pt.441) 207, 215. On the applicability of Sharikat al-mudharaba the evidential burden was on the appellant who would lose on the issue. This burden he failed to discharge.

It is settled that parties are bound by the condition and terms of their contract and it is not open to one of the parties thereto, in the absence of novation, to unilaterally change or vary the terms of the contract by incorporating into it one or more terms that had not been agreed upon by both parties.

There is no substance in the submission of the learned counsel for the appellant that the question of simple contract was raised suo motu by the learned trial Judge without first inviting learned counsel to both parties to address him on it. The learned trial Judge, both on the pleadings and evidence, could not justify application of the Islamic law principle of Sharikat al-mudharaba, belatedly raised by the appellant, to the case in hand. And in rejecting it reasoned that there was sufficient material before him pointing irresistibly to a simple contract of offer and acceptance with its usual attributes of consideration and meeting of both minds otherwise known as consensus ad idem. His answer or reasoning for rejecting appellant’s case under Islamic law on which issue both parties exhaustively addressed him, does not require further address from counsel. The case of Nwoke v. Okere (1994) 5 SCNJ 102, 118; (1994) 5 NWLR (Pt.343) 159 cited in the appellant’s brief is, in the circumstance of this appeal, inapplicable.

Finally, it seems to me that the contention of the learned counsel for appellant, both at the trial court and in this court, that Islamic law of Sharikat al-mudharaba was applicable to this case was an obligue attack on respondent’s suit on the ground that it did not disclose a reasonable cause of action. But whether a suit discloses a reasonable cause of action is a matter to be determined from the writ of summons and particular of claims filed along with it or statement of claim. It is not a matter to be considered on the statement of defence but the statement of claim or writ of summons discloses cause of action. “In point of law…every cause of action is a reasonable one” per Chitty, J. in Republic of Peru v. Peruvian Guano Co. 35 Ch. D 495.

A reasonable cause of action means no more than a cause of action with some chance of success when only the allegations contained in the pleading are considered: Drummond-Jones v. British Medical Association (1970) 1 WLR 688 (1970) 1 All ER 1094. So far the statement of claim or the particulars disclose some cause of action, or raise some question fit to be decided by a Judge the mere fact that the case is weak and not likely to succeed is no ground for striking it out: Davey v. Bentinck (1893) 1 QB 185; Moore v. Lawson 31 TLR 418; Wenlock v. Moloney (1965) 1 WLR 1238; (1965) 2 All ER 871.

The answer to appellant’s issues 2 and 3 are respectively answered in the negative and positive. Grounds 1,2 and 4 related to them fail and are dismissed by me. The appellant’s issue 1 is academic and could not have arisen from the ratio decidendi of the trial court.

On appellant’s issue 4, learned counsel for appellant conceded that the burden of proving that there was robbery was on the appellant and contended that the onus was discharged. Learned counsel for appellant then reviewed appellant’s evidence adduced which counsel contended was not contradicted or demolished. Learned counsel, on the authority of Section 137(1), (2) and (3) of Evidence Act, Cap. 112 contended that the onus then shifted on the respondent to prove to the contrary. The Learned counsel argued that it was an error, in the face of the appellants uncontradicted evidence and the two exhibits, for the court to hold that appellant woefully failed to establish that he was robbed. He cited the case of Union Bank of Nigeria v. Ozigi (1994) 3 SCNJ 42 at 64, (1994) NWLR (Pt.333) 385.

The learned counsel for respondent, in the respondent brief, contended that there was onus of proof on the appellant, being the party alleging the robbery, to prove it by credible evidence. Counsel referred to Sections 135 – 138 of the Evidence Act and Akun v. Mangu L.G.C. (supra). Learned counsel submitted that there was no credible evidence led by the appellant and argued that appellant instead engaged in incredibilities.

I agree with the learned counsel for appellant that the burden of proof in civil matter is on preponderance of evidence which onus is never static but shifts from side to side. It is the law that the onus of proof, in a civil case, rests squarely on the plaintiff: Abiodun v.Adehin (1962) 1 All NLR 550; (1962) 2 SCNLR 305; Tewogbade v. Arasi Akande (1968) NMLR 404, 408 where Western State Court of Appeal said:-
“In a civil case, the burden of proof lies on the person who would fail, assuming no evidence had been adduced on either side. Further, in respect of particular facts, the burden rests on the party against whom, judgment would be given if no evidence were produced in respect of those facts.”
See also the cases of Union bank of Nigeria v. Ozigi (supra); Are v. Adisa (1967) NMLR 304 and Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC. 79, 86.

The question now agitating ones mind is whether the appellant creditably discharged himself. The appellant, as the first defence witness, told the court that he was pushed out of a moving car and was dispossessed of his bag containing N253,700 of which N203,000 belonged to the respondent by other passengers of a taxi cab. He went to court to report the incident where he was given a document.
The document allegedly given to him at the High Court turned out to be an affidavit he personally deposed to. The affidavit is Exhibit 6 in these proceedings. He later went to report the matter to the police which after two days gave him another hand written document, Exhibit 7 herein. I agree with the learned trial Judge that when a crime is committed the institution to turn to is the police and not the court. It is the police and not the court that is equiped to combat and investigate crimes. The learned trial Judge in his judgment stated thus:-
“Turning to the issue of robbery in Lagos, has the defendant established that he was robbed in Lagos? Is there any evidence outside Exhibit 6 to suggest that robbery has been established? The clear answer to my mind is No. It is not enough to allege without credible evidence in proof of same. Robbery… that the defendant cannot afford to treat it lightly by going to a court of law without more to swear to an affidavit that he has been robbed and to later report to the police. There must be evidence acceptable to the court that the defendant was in fact robbed in Lagos and if there was a report made that report must be made available as well as the outcome of the investigation carried out into such a report. This, to my mind, is what is expected in satisfaction with the requirement of the law. Here too, the defendant has woefully failed to establish that he was indeed robbed in Lagos. This defence to my mind is an afterthought which must be rejected out rightly and I reject same.”

I concur. The appellant who claimed that he was pushed out of a moving taxi cab in Lagos also claimed that he sustained no injury apparently to forestall being asked to produce evidence of treatment he received from an hospital. He was assisted at the scene by a faceless good Samaritan who guided or escorted him to report commission of offence of armed robbery to the High court rather than escorting him to the police. There the appellant deposed to affidavit claiming that he was robbed. His ghost friend did not make a corresponding affidavit in support of the averments contained in the appellant’s affidavit. Neither was he called to testify before the trial court nor is there evidence before the trial court that the appellant and his friend made statement to the police in connection with this alleged horrendous crime. Exhibit 7 which he collected from the police does not seem to have taken the appellant’s case any further. It is not a police investigation report as such.

The document admitted as Exhibit 7, reads inter alia as follows:-
“The above named person came to the station with sworn affidavit and reported that he took a flight from Kaduna to Lagos on business trip with the sum of two hundred and fifty-three thousand seven hundred Naira (N253,700.00). He further stated that on getting to Murtala Mohammed Airport Ikeja, he boarded a taxi-cab to his destination, and he was attacked and pushed out from the vehicle by some gang of armed robbers and went away with the underlisted items:-
N253,700.00 cash, one big box, identity card, two caps, two pairs of shoes and his vehicle particulars and other things. And all efforts made to trace or recover the above items proved abortive hence he reported action. An entry was make in police diary for record purpose.”
(underlining  mine)

Clearly the appellant was merely acting a script, otherwise why should one delay reporting a case of armed robbery committed at 11.30a.m. on  23rd November, 1992 at Airport Road Ikeja to 25th November, 1992. The Olodi Apapa where the commission of the crime was reported was not only several kilometres away it is separated by more than one local governments from the scene of crime. One is however, not surprised that the police at Trinity Police Station Olodi Apapa accepted the complaint because it was mainly meant for their information or record purpose and not for investigation. One would be strengthened in the view that it was a futile attempt to cover the appellants’ crime of criminal breach of trust when paragraphs 4 and 5 of the affidavit he deposed to are read. The two paragraphs read as follows:-
“4. That consequent to this event, all efforts to recover the above items proved abortive.
5. That this sworn affidavit is now needed for official record purpose. ”
(underlining mine)

What “official record purpose” was the affidavit required for? Neither the appellant nor the respondent was an official. The only “official record purpose” the appellant intended the two documents, Exhibit 6, affidavit and Exhibit 7, report to the police for was the grand design to cover his own crime. Exhibit 7 is purportedly signed by one Deputy Superintendant of Police whose name is not stated against his signature on the rubber stamp impression placed at the bottom of the document. It is not impossible that the rubber stamp was a faked one. Finally, the affidavit, Exhibit 7, was “Sworn to at the High Court Registry Apapa the 23rd day of November, 1992”. I am not sure if there is a High Court at Apapa. Exhibit 7 itself questioned the authenticity of the document. The query arising from the face of the document is that while it states that it was deposed to at Apapa the rubber stamp impression was that of “High Court Ikeja Lagos State”.

In the circumstance, the learned trial Judge rightly, in my view held the armed robbery case to be a product of appellant’s fertile imagination.

Appellant’s issue 5 is related to grounds 8 and 9 learned counsel, in the appellant’s brief submitted that the court below was not guided by any principle of law when it awarded N40,000 damages to the respondent. It was contended, on behalf of the appellant, that the award was gratuitous as there was no evidence in support of it: Uche William v. The State (1992) 10 SCNJ 74, 87. The only item of award appellant is contesting in this issue deals with award of N40,000.00 damages to respondent from suffering some psychological trauma and not the award of N64,000.00 as outstanding from the sum of N203,000.00. In the circumstance, the only pertinent contention in the respondent’s brief of argument is that it was gross misrepresentation of the law for counsel to the appellant to talk of general damages in terms of strict proof. He contended that the law does not require general damages to be pleaded or proved because they are presumed from the facts of the case- U.B.N. Limited v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) 558. He contended that respondent pleading and proving general damages was merely ex cautella abundanti.

The respondent claimed as follows:-
“General damages:- N80,000 for psychological trauma and general discomforts suffered by the plaintiff as a result of the fraudulent acts of the defendant.”

The learned trial Judge in his judgment said:-
“There is, however, no strict proof that plaintiff has suffered psychological trauma to the tune of N80,000 to warrant same being granted. In the circumstance of this case, the court has assessed the damaged suffered by the plaintiff as a result of the defendant’s retention of his money all this period taking into consideration the inflationary rate from 1993 to date at N40,000.00.”

I agree with learned counsel for respondent that he was not required to plead general damages not to talk of proving it strictly. It is sufficient if he pleaded it generally. In Lar v. Stirling Astaldi Ltd. (1977) 11 -12 SC. 53, 63 Supreme Court per Fatayi William, JSC (as he then was) said:-
“To our mind, general damages are such as the jury may give when the Judge cannot point out any measure by which they are to be assessed, except the opinion and management of a reasonable man.”
And in Omoruwa v. Wahabi (1976) 4 Sc. 37,50 Idigbe, JSC said:-
“The quantification of general damages in terms of money is, however, a matter for the court (i.e. jury) under proper direction from a Judge or by a Judge acting as jury where the trial is without a jury and in a majority of cases no precise measure can be indicated although the award necessarily includes compensation for damage incapable of exact proof in terms of money. But as stated by Martin, B., in an old case, general damages are such as the jury may give when the Judge cannot point out any measure by which they are assessed except the opinion and judgment of a reasonable man.”
See also Dumez (Nigeria) Ltd. v. Ogboli (1972) 1 All NLR 244, 252 where Lewis JSC, said:-
“It is axiomatic that special damages must be strictly proved unlike general damages, where, if he established in principle his entitlement to them, a trial Judge must make his own assessment of the quantum of such general damages and on appeal to this court such general damages will only be altered if they were shown to be either manifestly too high or manifestly too low or awarded on a wrong principle…”
And Supreme Court in Incar Motors v. Benson (1975) 3 SC. 117 said:”
“General damages is such a loss which flows naturally from the defendant’s act. It need not to be specifically pleaded, it arises by inference of law, and need not be proved by evidence. It suffices if it is generally averred.”(Underlining mine)

The appellant’s pleading and adducing evidence in proof of general damages ex cautella abundanti resulted in the holding of the learned trial Judge that it had not been pleaded and strictly proved. The finding subsists until it is set aside: Ijale v. Leventis & Co. (1959)2 SCNLR 386, Chukwunta v. Chukwu & others 14 WACA 341. The court is prohibited from enquiring into a matter already adjudicated upon.
A plea of res judicata ousts the jurisdiction of the court. There is no cross-appeal against this finding of fact as I observed earlier in this judgment that it subsists.

The learned trial Judge after he had found that the respondent failed to strictly prove that he suffered psychological trauma to the tune of N80,000.00 nevertheless went ahead to make an award of N40,000.00. The learned trial Judge, in the circumstance, in my considered view, -appears to be correct. At that stage, the learned trial Judge was considering quantum of damages and not whether respondent suffered a loss or injury or not. In his attempt to monitise the loss or damage, he considered N80,000.00 claimed for psychological trauma manifestly too high and reduced the same to N40,000.00. The relevant portion of his judgment which is clear, unambiguous and unequivocal should not be read to mean that the respondent failed to prove suffering psychological trauma. Rather, he carefully weighed the quantum of damage, rejected N80,000.00 for psychological trauma suffered and settled for N40,000.00. In the light of the authorities his conclusion is unimpeachable.

The award is not contested on the ground that it was a claim for interest which can be quantified and precise measure of damage undertaken. See Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370, 387 where the Supreme Court considered award of general damages for destruction of economic trees whose names, nature and economic values are known as improper. And also the issue of awarding general damages in contract. It is equally true that the matter, both at the trial and in this court, was not contested on the ground of respondent’s right to damages for psychological loss suffered or otherwise. The two questions will not be considered by this court since it is not in issue in this appeal.

The appellant failed to appreciate the import of the judgment concerning award of N40,000.00 general damages. If he did he would probably not have raised a finger against it or contest the same on grounds other than onus of proof and pleadings.

Issue 5 is resolved against the appellant grounds 9 and 8 related thereto fail and are dismissed. Ground 7 is not related to any of the issues canvassed in the appeal. I am not unaware that the respondent related it along with grounds 8 and 9 to his own issue 3. But he is not the owner of the appeal. He has no notice of appeal before us. Ground 7 is deemed abandoned and is struck out.

All grounds of appeal having failed, the appeal fails and it is dismissed. The decision of the learned trial Judge is affirmed with order as to costs assessed at N4,000.00 in favour of the respondent.

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Other Citations: (2000)LCN/0855(CA)

Job Kolawole Buremoh V. Alhaji Isiaka Akande (2000)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

This is an appeal against the judgment of the High Court of Kwara State sitting in Ilorin Judicial Division in suit No. KWS/186/92 delivered by Hon. Justice A. O. Bamigbola on the 4th day of March, 1998 in which he granted some of the claims of the respondent/cross appellant then as plaintiff against the appellant.

The facts of the case include the following. On the 21st day of September, 1992 the respondent/cross-appellant caused a writ of summons to be issued on the appellant claiming the following reliefs, to wit:

“The plaintiff’s claim is that the defendant on a purported purchase from persons who are not the owners of land and had no claim whatever over their parcel of land situate at Tanke Iledu, Ilorin measuring 8.711 Acres applied and was issued a Certificate of Occupancy No. KW3356 of 30/6/80 and effective 19/12/79 for commercial purposes, without the plaintiff’s knowledge and consent as the rightful owners of the land.”

Whereof the plaintiffs claim as follows:

i. A declaration that the defendant’s Certificate of Occupancy No. KW3356 of 30/6/80, and effective from 19/12/79 is vitiated by fraud, and thus null and void.

ii. A declaration that the parcel of land situate at Tanke Iledu, Ilorin measuring 8.711 Acres belongs to the plaintiff.

iii. An order of this Honourable Court restraining the defendant by himself, his agents, servants and privies from going unto the land subject of his purported Certificate of Occupancy No. KW3356.”

The respondent/cross-appellant then followed it up with a statement of claim in which the reliefs reproduced supra were repeated:-

15. “The plaintiff shall upon the particulars in paragraph 14 above contend that the defendant’s Certificate of Occupancy No. KW.3356 of 30/6/80, effective 19/12/79 and covering 8.711 Acres at Tanke Iledu, Ilorin, is fraudulent.
16. The plaintiff shall contend that his family has neither parted nor been divested of her title to the piece of land lying, being and situate at Tanke Iledu, Ilorin along University of Ilorin permanent site Road, and no title to the defendant whose activities on the land is in trespass.
17. The plaintiff shall rely on all rules of law and equity applicable to this case.
18. Whereof the plaintiff claims as follows:

i. A declaration that the defendant’s Certificate of Occupancy No.KW3356 of 30/6/80, and effective from 19/12/79 is vitiated by fraud, and thus null and void.

ii. A declaration that the parcel of land situate, and being at Tanke Iledu, Ilorin measuring 8.711 Acres belongs to the plaintiff.

iii. An order of this Honourable Court restraining the defendant by himself, his agents, servants and privies from going to the land subject of his purported Certificate of Occupancy No. KW3356.”

It is the case for the respondent/cross-appellant that he represents his family in the matter and that the land in dispute forms part of a large piece or parcel of land belonging to his family at Tanke Iledu, Ilorin which shares boundaries with the University of Ilorin in permanent site road, the road of Agbabiaka village and Bawa Tanke Gbugbu road. That the land in dispute is at the centre of this land. That their forefather, Aliyu Alao also settled on the land from time immemorial and was the first to settle on the land. After he died Mallam Kasum took over as the head of the family. He was succeeded by Adigun who also used the land before his death. He was followed by Iliyasu Akande Aso as the head of the family. After him came the respondent/cross-appellant. That they leased the land to people for farming in return for farm products such as yam and maize. They also gave plots to people to build houses.

That the appellant was first noticed on the land in 1980 and was driven away. That it was the time when PW2 and DW2 started selling the respondent/cross-appellant’s family land. That Aliyu Ayinla, the late brother to the respondent sued PW2 & DW2 to the High Court. That following a settlement out of court PW2 and DW2 were told that the land in dispute belongs to the respondent’s family. Exhibit P1 was tendered as evidence of the settlement. That following the settlement, the case was withdrawn from court. That the family never gave the appellant the land nor was DW2 given any authority to sell the land to the appellant. That the Certificate of Occupancy was obtained wrongly.

On the other hand, the appellant’s case is that he knew the respondent for the first time in 1992 when the respondent instituted an action against him at the Upper Area Court, Ilorin challenging his ownership of the land in dispute. He denied that the land belongs to the respondent and his family. That the land belongs to DW2 from whom he purchased same. He tendered Exhibit D1 as evidence of the purchase. He did obtain a Certificate of Occupancy from the Kwara State Government, No. KW3356 which he tendered as Exhibit D2. Exhibit D3 is the Survey Plan attached to the Certificate of Occupancy. He has built on the land and had been operating a block moulding industry on the land since 1982. That PW2 is not a relation of DW2 nor did PW2 measure the land for the sale to him. He said he dealt only with DW2 and the PW2 only witnessed Exhibit D1. That Exhibits D3 & D4 do not represent the same land. That PW2 never informed him that the land belonged to Kaa Isale family or people. That the suit in the Upper Area Court was struck out because the land is subject to a Certificate of Occupancy. That he had been exercising acts of ownership over the land unchallenged until 1992.

As stated earlier in this judgment, at the conclusion of the proceedings, the learned trial Judge gave judgment to the plaintiff now respondent/cross-appellant, in part. Dissatisfied, the appellant has appealed to this court while the respondent has also, with leave of court, cross appealed.

Learned counsel for both parties have filed their respective briefs of argument in this matter.

Learned counsel for the appellant, Prince J.O. Ijaodola filed the appellant’s brief on 23/3/99 in which he distilled ten issues for the determination of this appeal. The issues are as follows:

“i. Was fraud properly pleaded and properly established?

ii. Did plaintiff have locus when his claim for title was dismissed?

iii. Was the plaintiff’s suit not caught by section 2(a) of the Public Officers Protection Law?

iv. Could Exhibit P1 made in 1992 bind the defendant whose land was purchased in 1977 (Exhibit D1) and covered by Certificate of Occupancy issued in 1980 (Exhibit D2)?

vi. Was it proper for the concerned trial Judge to hold that PW2 was the defendant’s vendor despite the fact that PW2 was a witness and signatory to Exhibit D1?

vii. Was it right for the learned trial Judge to hold that PW1, PW2 and PW3 were witnesses of truth in the circumstances of the case?

viii. Was it necessary to cross-examine a witness on unpleaded facts or to give rebuttal evidence on such facts?

ix. Did the learned trial Judge meticulously try the case? and

x. Was the defendant’s statement of defence evasive and an admission of the plaintiffs averments?”

The respondent/cross-appellant on the other hand, through his counsel, J. S. Bamigboye Esq, filed his brief of argument on 10/5/99 in which he raised the following as the proper issues for determination to wit:

1. Whether the respondent established his family’s customary ownership to the land in dispute between the parties.
2. Whether, if the answer to issue No. 1 above is in the affirmative the appellant has extinguished the respondent family’s customary ownership over the land subject of his Certificate of Occupancy No. KW 3356 of 30/6/80 to validate the Certificate of Occupancy.
3. Whether the appellant established any credible and valid root of title to predicate his certificate of occupancy over the land in dispute.
4. Whether if the answer to issue No.3 is negative, the appellant’s certificate of occupancy is not fraudulent.
5. Whether the admission by PW2 Alhaji Yusuf Adisa, and DW2 Jimoh Aliyu evidenced by Exhibit P1 resulting from the Customary arbitration pursuant to the withdrawal of Suit No. KWS/98/85 is not admission against the interest of the appellant to vitiate the title which he found his Certificate of Occupancy.
6. Whether the respondent has the locus standi to institute this action.
7. Whether this suit as against the appellant is caught by section 2(a) of the Public Officer’s Protection Law.
8. Whether this suit is caught by the doctrine of laches and acquiescence.
9. Whether any reasonable Court or tribunal could have given judgment in favour of the appellant.

That apart, there is another issue formulated by the appellant in his amended reply brief filed on 7/3/2000 arising from the additional ground No. 17 of the grounds of appeal which he was granted leave by this court to file. This is “whether the High Court has original jurisdiction in view of claim II.”

I am of the view that the issues as formulated by both counsel arise from the grounds of appeal and are closely knit. I will however adopt the issues formulated by learned counsel for the appellant in this matter.

On issue No. 1, learned counsel for the appellant, J.O. Ijaodola Esq, submitted that fraud was not properly raised in the statement of claim and that it was clearly abandoned in the plaintiffs evidence. That paragraphs 14 and 15 of the statement of claim do not constitute fraud. That it is a fraud committed by the defendant which must be pleaded and proved. That there was no allegation that the defendant knowingly purchased from non-owners in 1977. He then urged the court to hold that fraud was neither properly pleaded against the defendant nor given in evidence against him. He cited and relied on Adeoye v. Jinadu (1975) 5 SC 102; U.A.C. Ltd. v. J. E. Taylor (1934) 2 WACA 70; Tamakloe v. The B.T.C. Ltd. (1940) 6 WACA 231; Usenfowokan v. Idowu (1975) 1 All NLR 183; Usen v. B.W.A. Ltd. (1965) 1 All NLR 244, 247; Egbase v. Oriareghan (1985) 2 NWLR (Pt.10) 884 (1985) 10 SC 80 at 92; Order 25 rule 6 of the Kwara State High Court (Civil Procedure) Rules 1989.

The respondent on the other hand treated the issue as No.4 in his brief of argument. He submitted that the appellant had neither extinguished the customary ownership of the respondent on the land in Exhibit D3 nor has he shown evidence of title to the land by the persons who he claimed sold the land to him. That the appellant having failed to establish a valid title to the land on which he predicates his certificate of occupancy, that certificate is fraudulent. That PW2 has testified to the fact that even on the very day he measured out the land for the appellant, he was challenged by Alfa Salami of the family of the respondent but rather than the appellant putting himself on guard, he chose to procure a certificate of occupancy to legalise his illegality. That the Supreme Court has held in Universal Vulcanizing (Nig) Ltd. v. Ijesha United and Transport Co.Ltd. (1992) 11-12 SCNJ 243, 255; (1992) 9 NWLR (Pt.266) 388; Nnanyelugo C. Odukwe v. Mrs E. N. Ogunbiyi (1998) 6 SCNJ 102, 119-120; (1998) 8 NWLR (Pt.561) 339 that where persons who have no authority to pass title, purport to pass title over a property such a transfer is not only mala fide but fraudulent.

That the respondent pleaded and gave evidence to these effect:

(i) That persons who purported to sell to the appellant never had the power or authority to do so.

(ii) That the appellant knew of the above fact by several challenges offered to his stay on the land.

(iii) That in fact, a court action, Suit No.KWS/98/85 was instituted against Alhaji Yusuf Adisa, whom Jimoh Aliyu, appellant’s vendor called his care-taker and agent. That the suit was settled out of court upon the appellant’s vendor’s admission that they had no power to sell the land in dispute.

(iv) That the appellant claimed not to be aware of Suit No. KWS/98/85 but his witness DW4 surveyor Ilesanmi admitted knowledge of the suit.

That fraud no matter by who and at whatever stage vitiates title. For this learned counsel relied on Braimah v. Abasi (1998) 10 SCNJ 85, 105; (1998) 13 NWLR (Pt.581) 167. He then urged the court to hold that the appellant’s certificate of occupancy is fraudulent.

It is trite law that for a plaintiff to succeed on a case based on fraud, he must not only plead and give particulars of fraud, he must also prove same by evidence. The question then is what then is the state of the pleadings on this matter. The relevant paragraphs of the statement of claim are paragraphs 13, 14 and 15 of the statement of claim not just paragraphs 14 and 15 of the statement of claim as contended by learned counsel for the appellant. These paragraphs are reproduced hereunder:

“13. The plaintiff shall contend that no member of his family ever sold or in any manner passed title of the land to the defendant herein and no person was mandated to do so on their behalf.

14. The plaintiff shall contend that the title passed to the defendant by persons who are neither members nor mandated by his family is fraudulent.
15. The plaintiff shall upon the particulars in paragraph 14 above contend that the defendant’s certificate of occupancy No. KW3356 of 30/6/80 effective 19/12/79 and covering 8.711 Acres at Tanke Iledu, Ilorin, is fraudulent.”

P.W.1 testified inter alia as follows: “I know the defendant in this case. The defendant came upon our land unlawfully and he was making use of it… We first sighted the defendant on our land in 1980. Myself and my brother called Ayo Ayinla drove the defendant away on the land. As at the time we drove away the defendant in 1980, Alhaji Yusuf Adisa came from Kaa Oke family, Tanke Iledu and one member of his family called Jimoh Aliyu who lived at Gaa Saka started selling our land … Mogaji told Alhaji Yusuf and Jimoh Aliyu that the land belonging to the Kaa Isale people was the land they had been selling and not their own land. Alhaji Yusuf Adisa agreed to release our land to us… we did not give authority to any body to sell our land to the defendant. When we sent the defendant away from the land he told us he was not leaving the land because he had a certificate of occupancy over the land. The number of the C. of O. is KW 3356 of 30/6/80. The C. of O. was obtained wrongly. The land belongs to our family. Jimoh Aliyu of Gaa Saka has no power over our land I want the court to nullify the C. of O which the defendant obtained on our land “See pages 88-93 of the record.

Now PW2, one of those who sold or was privy to selling the land to the appellant testified inter alia as follows:-

“I know the land in dispute it is situate at Tanke Iledu Ilorin. I know Jimoh Aliyu … is my junior brother…. The defendant in this case was brought to me that he needed a piece of land at Kaa Isale. I showed the defendant an area of land whether he liked it. He said yes. I then measured an area of the land for the defendant… At the time I was measuring the land for the defendant one Alfa Salami challenged me. He is from Kaa Isale family. I replied him that the land belonged to my family. One Ayo Ayinla also from Kaa Isale family sued me … I agreed that the dispute be settled between us.

They told me to leave the land belonging to Kaa Isale for them. I told them I had sold all the land. They instructed me to return the purchase price to the respective buyers … I called the defendant and explained to him that we had taken a decision that I should return his money to him or give him an alternative piece of land. I told him I had no authority over the land… I make the defendant realise that I had no right over the land.”

What did the court find in relation to the matter under consideration? At pages 160 to 161 of the record, the learned trial Judge found as follows:-

“In view of the totality of the evidence adduced on the sale of the land neither PW2 Yusuf Adisa who the plaintiff claimed sold the land to the defendant nor DW2 Jimoh Aliyu belonged to the plaintiffs family of Kaa Isale. Both the PW2 and DW2 belonged to Kaa Oke family. One can easily come to form the opinion that plaintiff was right to have claimed that the sale was without authority of the owners of the land, the plaintiffs family.”

Again, at page 162, the court found as follows … “I find that there was a sale of plaintiffs family land by PW2 who was not a member of the plaintiffs family to the defendant. There was also nothing to show that PW2 had the authority of the plaintiffs family who owned the land to sell their land to the defendant – PW2 had no title to pass to the defendant… The sale of the land in dispute to the defendant is not only without authority but it is mala fide and even fraudulent…”

I have had to go through the pleadings of the respondent, the evidence and the judgment of the learned trial Judge so as to demonstrate clearly the merits of the complaint of the appellant, or otherwise.

From the pleadings it is my considered view that the respondent duly pleaded the issue of fraud and did give sufficient particulars therein to ground that plea.

That contrary to the contention of learned counsel for the appellant that no evidence was adduced by the respondent in proof of the alleged fraud, there is abundant evidence to establish the plea and that the lower court was right in so holding.

I agree with the submissions of learned counsel for the respondent that it does not matter whether the fraud was committed by the appellant and at what point in time. The fact that those who purported to sell the property to him know that they had no title to it neither do they belong to the family that owns the land shows that they have nothing to sell and that any such purported sale is fraudulent as well as any certificate of occupancy founded on the fraudulent sale of the respondent’s property.

Fraud vitiates title see Braimah v. Abasi (1998) 10 SCNJ 85 at 105, (1998) 13 NWLR (Pt.581) 167; Universal Vulcanizing (Nig.) Ltd. v. Ijesha United Trading and Transport Co. Ltd. (1992) 11-12 SCNJ 243 at 255, (1992) 9 NWLR (Pt.266) 388 and Odukwe v. Ogunbiyi (1998) 6 SCNJ 119, (1998) 8 NWLR (pt.561) 339.

On issue No. 2 learned counsel for the appellant submitted that once the plaintiff’s claim for title was dismissed, he lacked locus to institute the suit and the other claims ought to have been dismissed. Learned counsel then referred the court to the case of Titiloye v. Olupo (1991) 9-10 SCNJ 22 at 154, (1991) 7 NWLR (pt.205) 519 at 549 where the Supreme Court held per P.K. Nwokedi JSC as follows:

“I must however opine that once the court is of the view that the appellants had failed to establish their claim to customary right of occupancy over the land in dispute all contentions about the exercise of the Governor’s powers under the Land Use Act become hypothetical because the appellant would have no locus standi to agitate the issues.”

In his reply, learned counsel for the respondent treated the matter under his issue No. 6. He submitted that the respondent instituted the action for and on behalf of his family and the court duly found as such. The respondent is also the head of Kaa Isale family. That apart, learned counsel submitted that the submission of his learned friend to the effect that because relief No. 11 which sought a declaration to a parcel of land meaning 8.711 acres was dismissed the respondent had no locus standi, is misconceived. That relief No. 11 was refused for reasons stated at page 151 of the record, “that the evidence adduced by the plaintiff in proof of the exact boundaries of the whole of his family land is not satisfactory…but in respect of the land covered by the Certificate of Occupancy No. KW 3356 of 30/6/80…the location and identity is known to both parties.”

That where a plaintiff claims a wide expanse of land but only proves a portion of same, as in this case, one is entitled to judgment in respect of that portion. That the issue of locus standi is completely misconceived and not well taken, learned counsel further submitted. That the court held at page 159 of the record that “…the plaintiffs family is the customary owner of the land in dispute” and urged the court to resolve the issue in favour of the respondent.

Now section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979 (hereafter) referred to as 1979 Constitution) being the applicable Constitution in this case is the foundation, on which the principles of locus standi is anchored.

It provides as follows:-

“(6) The judicial powers vested in accordance with the foregoing provisions of this section:-

(b) shall extend to all matters between persons, or between Government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”

(emphasis supplied).

In the case of Senator Adesanya v. President (1981) 2 NCLR 358 at 363 the Supreme Court per Justice Nnamani JSC held as follows:

“Section 6(6)(b) to my mind encompasses the full extent of the judicial powers vested in the courts by the constitution. Under it, the courts have power to adjudicate on a justiciable issue touching on the rights and obligations of the person who brings the complaint to court. The litigant must show that the act of which he complains affects rights or obligations peculiar or personal to him. He must show that his private rights have been infringed or injured or that there is a threat of such infringement or injury… The courts must operate within the parameter of the judicial power vested on them by section 6(6)(b) of the Constitution and that they can only take cognisance of justiciable actions properly brought before them in which there is a dispute, controversy, and above all, in which the parties have sufficient interest. The courts cannot widen the extent of this power which has been so expressly defined by the Constitution.”

It is trite law that a person includes a body corporate and a family as an entity. It follows therefore that any individual, body corporate or legal entity such as a family that has any matter for the determination of any question as to the civil rights and obligations of that person (body corporate) has the locus standi to approach the court by invoking the judicial powers of the country for the determination of the matters in controversy under the said section 6(6)(b) of the 1979 Constitution.

In the present case, the respondent, by the writ of summons sued the defendant for himself and the entire Kaa Isale, Tanke, Iledu and by paragraph 3 of the statement of claim the plaintiff averred that the land in dispute has been family land from immemorial. By paragraph 6 of the statement of claim the respondent averred that he is the present head of his family and did lead evidence in proof of these averment. It is trite law that the Head of family, a principal member and indeed a member of a family has the right and locus standi to sue either by himself or in a representative capacity to protect his interest as well as that of his kindred:- See Uzoechi v. Onyenwe (1999) 1 SCNJ 34 at 39, (1999) 1 NWLR (Pt.587) 339.

It is settled law that when a plaintiff claims a large parcel of land but fails to prove his title to same but succeeds in proving title to a smaller portion he is entitled to judgment to that portion proved. It is very clear from the pleadings and the evidence before the court that the land in dispute between the parties is one piece, not two and that it is covered by certificate of occupancy No. KW3356 of 30/6/80.

The court clearly found that piece of land belongs to the family of the respondent.

The lower court, held at page 159 of the record as follows:

“I hold that the plaintiffs family is the customary owner of the land in dispute.”

I agree with the learned counsel for the respondent that issue No.2 be resolved against the appellant and I accordingly do so. On issue No.3, learned counsel for the appellant stated that the plaintiff showed that he was aware that the defendant had obtained a Certificate of Occupancy since 1980 but did not file this suit until 1992. That the plaintiffs case was caught by section 2(a) of the Public Officers Protection Law. He referred the court to the case of Permanent Secretary, Ministry of Works etc. Kwara State v. Balogun (1975) All NLR 91.

On the other hand, learned counsel for the respondent treated the issue as No.7 and referred to section 277(1) of the 1979 Constitution for the definition of Public Officer and submitted that there are no facts to bring the appellant under that definition either as of the state or federal government so as to invoke the provisions of section 2(a) of the Public Officers Protection Law.

That the trial court had in an interlocutory ruling held that the claim against the appellant is not statute barred but the appellant has not appealed against that ruling and therefore cannot revisit the matter in the substantive appeal without leave of court.

That the appellant has not claimed to have acquired the land in dispute in the course of any public duty. He urged the court to resolve the issue against the appellant. I have carefully gone through the pleadings and evidence in this case. The statement of defence is at page 20 of the record and I am unable to see how this issue arises because it is no where pleaded in the statement of defence neither is there any evidence on record to establish same. It is trite law that submission of counsel, however brilliant, is no substitute for evidence. This is a clear example of such a situation. I am convinced that learned counsel for the appellant is confused. To make the position very clear, I reproduce the statement of defence hereunder:

“STATEMENT OF DEFENCE SAVE AND EXCEPT where the defendant expressly admits an allegation of fact in the statement of claim the defendant denies each and every allegation of fact in the statement of claim as if same were denied seriatim.

1. The defendant admits paragraph 2 of the statement of claim but says that the office at Taiwo Road, Ilorin, is a branch Office while the main office and block industry is covered by certificate of occupancy No.KW 3356 of 30/6/80 commencing from 19/12/79 which C of O the defendant hereby pleads and shall rely upon.
2. The defendant vehemently denies paragraphs 1, 3-18 of the statement of claim and avers that the plaintiff is a shameless liar as nobody ever challenged the defendant over the use of the land.
3. The defendant obtained the land now covered by C. of O. No KW3356 of 10/6/80 from Mallam Jimoh Aliyu of Gaa Saka via Ilorin as per an agreement dated 4/8/77, which the defendant hereby pleads and shall rely upon.
4. The defendant avers that the land now covered by the said C. of O. had been the Head Office of the defendant’s company Pro-Enter (Nig.) Ltd, since 1980 and that he established his block making industry on it since 1982, and the block making industry has been operative and operated since 1982 up till today without any interruption or interregnum whatsoever.
5. The defendant’s land is different and far away from the plaintiff’s land as shown by a compositive survey plan, which the defendant hereby pleads and shall rely upon.
6. The defendant also pleads the plaintiff/applicant’s motion dated 15/9… Which the plaintiff made ex parte for fraudulent reasons and these annexed Exhibits A and B both of which showed that the plaintiff’s land is different and distinct from the defendant’s land.
7. The defendant pleads the doctrine of laches and acquiescence.
8. Wherefore the defendant prays that the plaintiff’s suit be dismissed with substantial costs in favour of the defendant

Dated this 17th day of May, 1993.

Sgd

J. O. Ijadola

Defendant Counsel

Ileri Oluwa Law Office

27 Mubo Street, Ilorin.”

That is all there is to the statement of defence and there is no amended statement of defence in this matter. It is therefore clear that the submission of learned counsel for the appellant on the issue of Public Officers Protection Law is therefore more imaginary than real. In fact, the facts pleaded show that the appellant is not a public officer but a private business man who acted in his personal capacity and can therefore not take refuge under the Public Officers Protection Law. That apart, it is true that the appellant has not obtained the leave of either the lower court or of this court to argue the issue in view of the fact that he was earlier overruled in an interlocutory proceeding on the matter. That being the case issue No.3 is hereby resolved against the appellant.

On issue No.4, learned counsel submitted that the respondent’s suit was caught by the doctrine of laches and acquiescence. That the plaintiff’s evidence at page 92 lines 25-30 “shows that the defendant denied the title of the plaintiff and did not leave the land because he believed the validity of his C. of O.” That it is important to note that the defendant never dislodged his structures and continued to develop the land and operated his block-making industry on the land.

That the plaintiff ought to have gone to court long ago to judicially protect his alleged interest. He then urged the court to answer the issues in the affirmative. Learned counsel for the respondent treated this issue as his No.8 in his brief of arguments. He submitted that neither laches nor acquiescence is applicable to bar this suit. That the evidence of PW2 which is confirmed by DW2 is that he was challenged by one Alfa Salami of Kaa Isale family when he was seen measuring the land for the appellant That PW1 testified to the fact that when the defendant/appellant was sighted on the land around 1980 he was driven way and decided to sue PW2 who purportedly sold the land to the appellant in suit No KWS 98/85 which was later settled out of court. That DW4 stated that he was aware of that case even though the appellant claimed ignorance of same. That neither the respondent nor PW2 was cross-examined on the testimony relating to the challenge from members of the respondent family to the appellant’s presence on the land. That after the settlement of the suit out of court, the appellant was notified of the lack of authority in PW2 to sell the land to him but he decided to hold unto the land because he has a certificate of occupancy over the land. He then urged the court to hold that the doctrine of laches and acquiescence do not avail the appellant.

The learned trial Judge, at page 164 to 166 of the record, while considering this issue stated thus:

“Admittedly, if the defendant has been able to establish in court that he was misled into believing that the person who purportedly passed title to the land to him had the right to do so and that he had been exercising rights of ownership without let or hindrances, the doctrine of laches and acquiescence would come to his aid. Acquiescence implies fraud or the failure to act while the infringement was going on. Laches means the failure to take action for a long time after knowledge that the infringement had taken place… In this case evidence by the plaintiff and his witnesses which I prefer to that led by the defendant and his witnesses and believe did not show that the defendant came on the land and was using it without let or hindrance as claimed by him. The only persons who had legal capacity to deal with the land at the time the defendant purported to buy the land were the members of the plaintiff s family … In the instant case, however, the plaintiffs case which I preferred and believed shows that the defendant knew there was dispute over the land purchased by him. According to PW2 Yusuf Adisa a member of the plaintiffs family one Alfa Salami challenged the defendant when he first came on the land. He also stated he brought the decision in Exhibit P1 to the notice of the defendant that he (PW2) had no authority to sell the land to him. Also PW1’s evidence that in 1980 the defendant was driven away from the land by witnesses and his brother late Alhaji Ayo Ayinla when he was operating a block making industry on the land and did not come back there until sometime later.

The plaintiff (sic) cannot be taken seriously when he claimed that he was not aware of any dispute and even that court case in the High Court over the land in which his vendor was involved. This is because the defendant in that case PW2 herein whom I have found sold the land to the defendant and whose evidence I have believed testified that he was in contact with the defendant even after the sale to him and was briefing him DW4 licenced surveyor stated that he was very much aware of litigation between one Ayo Ayinla and Yusuf Adisa… I find it hard to believe the defendant. I am of the considered view having regard to the totality of evidence before me, that the defendant cannot claim that he built on the plaintiffs family land under a mistaken belief that the land was his own… I find the defendant is not entitled to a relief under the doctrine of laches and acquiescence.”

It is trite law that findings of facts is within the exclusive preserve of trial courts who have the opportunity to hear and observe the witnesses. It is also their duty to ascribe probative value to the evidence. In the present case the findings of the lower court supra is very much supported by the evidence which the trial Judge believed. The issue as to whether or not the doctrines of laches and acquiescence apply to his case, or is made out depends on the preliminary facts of the case as found by the learned trial Judge. By urging the court to hold that the doctrine apply amounts to asking this court to act on the unbelieved evidence of the appellant and his witnesses. This is never done. I see no reason whatsoever to interfere with the finding of fact painstakingly and ably made by this learned trial Judge. He did an excellent job in this respect and I commend him. It is therefore my view that based on the facts of this case the doctrine of laches and acquiescence do not apply to this case. Issue No.4 is therefore resolved against the appellant.

On issue No. 5 learned counsel for the appellant argued that Exhibit P1 of 1992 could not validly affect the defendant’s purchase of 1977 i.e. Exhibit D1. That it was not pleaded and there is no evidence that the defendant knew before buying the land that his vendor DW2 was not the lawful owner of the land. That the fact that DW2 was selling other plots in the vicinity justified an assumption that he was the lawful owner of the defendant’s plots. That Exhibit P1 cannot bind the defendant who was neither a party nor privy to that proceeding. He therefore urged the court to resolve this issue in the negative.

On his part, learned counsel for the respondent who treated the issue, also as No. 5 submitted that the admission by appellant’s purported vendors PW2 and DW2 both of Kaa Oke family as contained in Exhibit P1 that they do not have title to pass to appellant over the disputed land is binding on the appellant as admission against interest. That from the evidence as accepted by the trial court the appellant is a privy to both PW2 and DW2 from whom he allegedly derived his title to the land and is therefore bound by Exhibit P1, learned counsel further submitted that decisions of arbitrators are not only binding on the parties but on their privies for this learned counsel cited the case of Osunrinde v. Ajamogun (1992) 7 SCNJ 97 at 110, (1992) 6 NWLR (Pt.246) 156.

That Exhibit P1 is within the pleadings in paragraph 10 of the statement of claim.

I have gone through the records, the pleadings, evidence and judgment of the lower court as well as the relevant exhibits in this matter. It is clear that Exhibit P1 is adequately covered by paragraph 10 of the statement of claim which pleads as follows:-

“10. The plaintiff avers that the suit against the said Alhaji Yusuf Adisa was subsequently settled out of court and the plaintiff’s family by mutual consent had undisputed title over the entire parcel of land now in dispute.”

It is trite law that we plead facts, not the evidence with which the facts are proved. In this case, the fact of out of court settlement resulting in the title to the land indispute being affirmed in the respondent is pleaded. It is my considered view that Exhibit P1 is the evidence of that settlement and the facts so pleaded in paragraph 10 supra.

That apart, the lower court has found as a fact that the person(s) who sold the land to the appellant have no title to give to him. This means that as at 1977 when the appellant purported to buy, he bought nothing since it is a principle of our law that you cannot give what you do not possess. So it does not matter that the customary arbitration in 1992 confirmed the fact that the appellant’s alleged predecessors in title had no title, that confirmation relates back to the time they allegedly sold the land to the appellant. The contention that, Exhibit P1 cannot affect his title since it was made in 1992 while he had his title in 1977 is very much misconceived. What is void is void ab initio so says the law.

It is also important to note that from Exhibit P1 the trial court has held that there is evidence to prove that those who sold to the appellant had no title to the land in dispute. It is my view that having regard to the fact that the appellant allegedly derived his title from PW2 and DW2 who are bound by Exhibit P1, the appellant who is their privy is also bound by the said Exhibit P1. see Osunrinde v. Ajamogun ( 1992) 7 SCNJ 97, (1992) 6 NWLR (Pt.246) 156.

On issue No.6 learned counsel for the appellant submitted that Exhibit D1 cannot be modified by oral evidence of PW2 who was a witness to the sale. That PW1, PW2 and PW3 have colluded to disposses the defendant of his land unjustly. The issue is very much related to issue No. 7 which will be taken together. Under issue No 7 learned counsel for the appellant submitted that it was palpably wrong for the learned trial Judge, to accept PW1, PW2 and PW3 as witnesses of truth. That PW1 made efforts to give impression that DW1 left the land for some time and that the doctrine of laches and acquiescence do not apply. That PW2 was also unreliable. That he was a signatory to Exhibit D1 which states that DW2 sold the land to the appellant.

That PW2 later said the land involved in Exhibit D1 belongs to the respondent. That PW3 was not reliable too. He was a successor to the 2nd signatory to Exhibit D1 therefore a privy to Exhibit D1. On the other hand, learned counsel for the respondent argued that the evidence of PW1, PW2 and PW3 are constant, cogent and believable unlike the case of the appellant. That where grants are reduced unto writing, oral evidence is admissible to prove the capacity in which any person acted, for this learned counsel, referred to section 132(1)(a) of the Evidence Act. That DW2 who is alleged by the appellant to be his vendor testified as follows:

“I have never lived at Tanke – Iledu. We handed over the land to PW2 (Alhaji Adisa) to take care of the land. I and Yusuf Adisa are very close. In respect of the land at Tanke Iledu PW2 is my agent. I rely on the judgment of Yusuf Adisa … I cannot tell the extent of our land at Tanke Iledu. It is Alhaji Yusuf Adisa who knows the land. PW2 measured the land for defendant.”

That to all intents and purposes DW2 has said in effect that PW2 was the person who sold to the appellant and the court was right in holding that it was PW2 who sold to the appellant. That both PW2 and DW2 testified as appellant’s vendor and the counsel rightly found as such. As stated earlier in this judgment the findings of fact by the learned trial Judge which are not perverse cannot be interfered with on appeal particularly those that are based on credibility of witnesses, demeanour etc. The learned trial Judge has given credible reasons why he believes the evidence of PW1, PW2 & PW3. From the evidence it is true that it is the appellant who is very unreliable. PW1, PW2 & PW3 are consistent in their testimonies that it was PW2 who sold the land to the appellant, DW2 also stated the same in effect. That apart, the fact that PW2 and DW2 are from the same family was never challenged by the appellant nor was it also disproved. So whether the sale was by PW2 or DW2 as members of the same family that has no title to the land, the result is still the same no title passes to the appellant.

On issue No.8 learned counsel for the appellant submitted that an unpleaded fact goes to no issue and as such a party is entitled to ignore same. This issue has been adequately dealt with while dealing with the issues dealing with Exhibit P1. I did hold that the facts giving rise to Exhibit P1 were pleaded and Exhibit P1 is the evidence.

I am of the view that it was the duty of the appellant to cross-examine on the matter or call rebuttal evidence particularly as it is alleged that PW2 and DW2 are from the same family involved in the land dispute which decided that their family has no title to the land including the portion sold to the appellant.

On issue No. 9 learned counsel submitted that the learned trial Judge was not meticulous in considering the determination of the case before him. That the trial Judge was most casual in the treatment of the case from the beginning to the end. I think this is very much unkind to the learned trial Judge who has done his very best in this matter. I have gone through the record and I am satisfied that he did a very good job and deserves to be commended. When a lawyer has a bad case, he should be honourable and humble enough to acknowledge same. Also, learned counsel should be honourable enough to accept defeat without looking for a person to blame for his own inadequacies or a very bad case. It seems to me that learned counsel for the appellant is rather unhappy at the thoroughness of the learned trial Judge in this case. I hope learned counsel will desist from this very bad example to the younger ones at the Bar.

I commend the learned trial Judge, once more on the way he painstakingly evaluated the evidence in this case. The appellant put up a very poor case right from the pleadings and expected to win. When he lost of course he has to find an escape route in the trial Judge!

On issue No. 10 learned counsel submitted that it was wrong of the learned trial Judge to have held that the defendant’s statement of defence was a general denial and evasive and that the defendant had thereby admitted the plaintiffs averments.

I have earlier on in this judgment reproduced this statement of defence of the appellant in extenso. It will be seen clearly that the statement of defence is not only evasive but contains general denials. For instance, the appellant though denied that the land belongs to the respondent, failed to trace the root of title of his alleged vendor. In paragraph 2 for example he stated that he denies paragraphs 1, 3-18 of the statement of claim period.

In short, I am of the view that the learned trial Judge is right in saying that the appellant’s statement of defence is a general denial and evasive. Issue No. 11 is contained in the amended reply filed by the appellant on 7/3/2000. On it, learned counsel submitted that the learned trial Judge erred in law in not declining jurisdiction in view of claim II which raises an issue of customary title to the land. That original jurisdiction in such matter is in an appropriate Area Court. Learned counsel referred the court to section 41 of the Land Use Act and Oyeniran v. Egbetola (1997) 5 SCNJ 94, (1997) 5 NWLR (Pt.504) 122. Learned counsel for the appellant further submitted as follows and I quote:

“It is to be noted by my Lords that claims I & II are not incidental or ancillary to each other and each can stand alone. It was therefore wrong of the learned trial Judge to have exercised jurisdiction on the plaintiff/respondent/Cross-appellant’s claim of which are independent of each other.”

This is clearly a situation where we say that learned counsel was drawing a distinction without a difference.

However, in his reply learned counsel for the respondent submitted that the lower court had jurisdiction in the matter by virtue of section 39(1)(a) of the Land Use Act of 1978 because the action was commenced in respect of the competency of a certificate of occupancy No. KW 3356 of 30/6/80. That no Area Court has the power to inquire into such a matter. That the validity of the appellant’s statutory right of occupancy cannot be determined without an inquiry into the substance or otherwise of the respondent’s family’s customary ownership. Relying on the case of Akinfolarin v. Akinola (1994) 4 SCNJ, 30, 32 &43 (1994) 3 NWLR (Pt.335) 659 learned counsel submitted that where the substantive issue for determination is within the jurisdiction of the High Court the court is not precluded from adjudicating thereon merely because in the course of such an adjudication it becomes necessary to make other incidental or casual, into any matter in which jurisdiction vests in some other court. That the land is subject to a purported statutory right of occupancy the competence of which is the direct issue.

That section 41 of the Land Use Act is irrelevant in that the land is not subject to customary right of occupancy but statutory. He urged the court to hold that the High Court has jurisdiction in the matter.

I have gone through the record of proceedings and the judgment of the court below. To resolve the issue it is necessary to start from the pleadings of the respondent. This is important because we need to know whether there are two portions of land involved or just one and whether it is situate in a rural or urban area to make it subject to a customary right of occupancy or a statutory right of occupancy as unvisaged by the Land Use Act, 1978. The relevant paragraphs of the statement of claim are as follows:-

“13. The plaintiff shall contend that no member of his family ever sold or in any manner passed title to the land to the defendant herein and no person was mandated to do so on their behalf.

14. The plaintiff shall contend that the title passed to the defendant by the persons who are neither members, nor mandated by this family is fraudulent.
15. The plaintiff shall upon the particulars in paragraph 14 above contend that the defendant’s Certificate of Occupancy No.KW 3356 of 30/6/80, effective 19/12/79 and covering 8.711 Acres at Tanke Iledu, Ilorin is fraudulent.
16. The plaintiff shall contend that his family has neither parted nor been divested of her title to the piece of land lying, being and situate at Tanke Iledu, Ilorin … and no title to the defendant whose activities on the land is in trespass.
17. Whereof the plaintiff claims:

i. A declaration that the defendant’s certificate of occupancy No.KW3356 of 30/6/80 and effective from 19/12/79 is vitiated by fraud, and thus null and void.

ii. A declaration that this parcel of land situate, and being Tanke Iledu,Ilorin measuring 8.711 Acres belong to the plaintiff.

iii. An order of this honourable court restraining the defendant by himself, his agents, servants and privies from going to the land subject of his purported certificate of occupancy No.KW3356.”

From the pleading quoted supra, it is very clear and I hold that the piece or parcel of land involved in the dispute between the parties is one not two as the learned trial Judge and counsel for the appellant would want this court to believe.

That piece of land covered by certificate of occupancy No. KW 3356 of 30/6/80 is said to measure 8.711 Acres:- See paragraph 15 supra. It is the same certificate of occupancy No. and the acres that are repeated in paragraph 18(1)(ii) & (iii) supra. I therefore do not agree that there are two distinct pieces or parcel of land involved in the dispute between the parties: the totality of the pleadings does not even indicate so let alone say so.

So there is only one piece or parcel of land involved and is subject of a Statutory Right of Occupancy No. KW 3356 of 30/6180.

Now the appellant as DW1 testified at page 105 of the record to the effect that before this suit the plaintiff had filed one in the Upper Area Court which was struck out because the land was covered by a C of O. It was filed in September 1992.”

In order to resolve the issue as to who owns the land between the plaintiff’s family and those who allegedly sold the land to the appellant and in line with the pleadings of the parties and the evidence adduced the learned trial Judge had to go into the traditional history of the land involving customary law and practices.

What did the court find? At pages 151-152 of the record, the court made the following findings:

“In respect of the land covered by the C. of O. No. KW3356 of 30/6/80. Having regard to the pleadings and evidences, the court is left in no doubt that the location and identity of that land is known to both the plaintiff and the defendant parties, thus know the land covered by the C of O…

The onus is on the plaintiff to establish before the court the location, the size and extent of the land in dispute. The plaintiff has shown the land in dispute between the parties in this case is the land covered by the C. of O. in view of the evidence in court even though he did not tender any plan … I found the plaintiff even though unable to prove the exact boundaries of the whole land belonging to his family, he has through his oral testimony which I consider satisfactory shown to the court, the location and identity of the land in dispute between the parties…”

It follows therefore that with the land in dispute between the parties being subject to the statutory right of occupancy the High Court is the court with original jurisdiction to hear and determine the matter.

It must be remembered that relief No. II did not ask for a declaration that the plaintiff is entitled to a customary right of occupancy over the land in dispute. In any event, by the pleading and evidence the land in dispute is subject to a certificate of occupancy and therefore within the jurisdiction of the High Court of Kwara State. It is my view that the fact that the learned trial Judge found at page 159 of 282 the record thus:

“I hold that the plaintiff’s family is the customary owner of the land in dispute” and at page 164 as follows:

‘A customary right of occupancy is the title of a native or native community occupying lands in accordance with the rules of native law and custom, and which, therefore is not limited in time… “A customary right once acquired cannot be lost by mere none user or by waiver does not mean that the said land cannot be subject to a statutory right of occupancy. In section 5(1)(a) of the Land Use Act it is provided as follows:

“5(1) It shall be lawful for the Governor in respect of land, whether or not in an urban area:

(a) to grant statutory rights of occupancy to any person for all purposes.”

It is also provided in section 9(1)(b) of the said Land Use Act, 1978 as follows:-

9(1) It shall be lawful for the Governor:-

(b) When any person is in occupation of land under a customary right of occupancy and applies in the prescribed manner …to issue a certificate under his hand in evidence of such right of occupancy.”

Both parties are agreed that the land indispute is covered by a certificate of occupancy No. KW3356 of 30/6/80 granted by the Government of Kwara State. There is no evidence whatsoever that the land in dispute situates in the rural area neither have we been informed of any statutory instrument of Kwara State designating Tanke Iledu, Ilorin as a non urban area. In short there is overwhelming evidence that the land in dispute is within the urban area or being subject to the statutory right of occupancy issued by the Kwara State Government, is within the exclusive jurisdiction of the High Court of Kwara State and I so hold.

Now the respondent has by leave of this court, cross-appealed against the judgment under consideration and has filed a cross-appellant brief in which he raised a single issue for determination to wit:

“Whether the trial High Court was right in dismissing the cross appellant’s claim for a declaration of his family’s customary ownership to the land in dispute after holding that the plaintiffs family is the owner of the land in dispute.”

In his submissions learned counsel for the cross-appellant state that the plaintiff pleaded and gave credible traditional history of his family’s ownership of the land in dispute. That the identity of the land in dispute is not in doubt as Exhibit D3 is a survey plan produced by the appellant/cross-respondent of the land in dispute. That the cross-appellant is entitled to take benefit of the clear identity provided by Exhibit D3. That the lower court also found that the plaintiff established sufficient acts of ownership over the land in dispute consistent with this claim of title and held at page 159 of the record thus:

“I hold that the plaintiff is the customary owner of the land in dispute”

That the court was thus wrong in dismissing relief No.11 after the findings. That even if the land in relief II is now exactly 8,711 acres as claimed the court ought to have declared the appellant the owner of the land as Exhibit D3 to which he had held that the plaintiff has established customary ownership. That the reasonable consequence of the court’s conclusion that the plaintiff proved his family’s customary ownership to the land in dispute is a declaration that his family is the customary owner of the land. He then urged the court to so declare.

In his submissions learned counsel for the appellant/cross-respondent submitted that the land claimed by the respondent/cross-appellant is at variance with that in the certificate of occupancy which the appellant/cross-respondent was claiming. That according to Exhibit D3, the survey plan attached to the plaintiffs certificate of occupancy No. KW3356 of 30/6/80- Exhibit D2 – the land is 2.551 Hectares i.e. 6.304 Acres not 8.711 Acres as claimed by the respondent/cross- appellant. That the claim of the cross-appellant lacks definitive certainty. He then urged the court to dismiss the cross-appeal.

As earlier found in this judgment, when one looks at the totality of the statement of claim particularly paragraphs 15,18(i) (ii) and (iii) it is very clear that the land in dispute is one, not two though the respondent/cross-appellant pleaded and gave evidence to the fact that the said land in dispute forms part of a larger piece or parcel of land belonging to his family from time immemorial.

That notwithstanding both parties are agreed that the land in dispute between them is covered by the certificate of occupancy No. KW3356 of 30/6/80 which land is said to cover 8.711 Acres as pleaded in paragraph 15 of the statement of claim. It is very important to note the fact that the land in dispute between the parties is the land covered by certificate of occupancy No. KW 3356 of 30/6/80. When considering the case of the parties the learned trial Judge found at page 159 of the record as follows:

“In view of the above findings, I am of the view that the plaintiff has adduced sufficient evidence in proof of the traditional history as to his family’s ownership of the land as well as the family’s acts of ownership …

In the light of the foregoing and the authority of the Supreme Court, I found that the plaintiff has proved that his family has title to the land in dispute having proved by traditional evidence and the various acts of ownership.

I hold that the plaintiffs family is the customary owner of the land in dispute.” See also page 153 last paragraph.

As regards the larger portion of land belonging to the cross-appellant but not in dispute between the parties, the learned trial Judge found as follows at page 152 of the record:

“I found the plaintiff even though unable to prove the exact boundaries of the whole land belonging to his family, he has through his oral testimony which I consider satisfactory shown to court the location and identity of the land in dispute between the parties. Moreover, in view of the state of the pleadings and the evidence that the land covered in the certificate of occupancy was sold by PW2 to the defendant was part of the land plaintiff is claiming for his family, that DW4 did the survey plan Exhibit D3 used in processing the C. of O. Exhibit D2, the plaintiff can take advantage of that evidence and rely on Exhibits D2 the C. of O. and D3 the survey plan for his claim … Where plaintiff proves title to only a part of the land claimed, it is proper to grant him declaration of title to that only … I find plaintiff satisfied the requirement having proved the location and identity of the land in dispute.”

From the above quoted passages, the learned trial Judge is very consistent that the respondent/cross-appellant proved title to the land in dispute having established its location and identity. However, the whole thing changed when it carne to considering the reliefs claimed. At page 166 of the record, the learned trial Judge had these to say:

“Claim No. 11 by the plaintiff is praying for a declaration that the parcel of land situate at Tanke Iledu, Ilorin measuring 8.711 Acres belong to the plaintiff.” I have found earlier in this judgment that a plaintiff seeking a declaration of title to land must so describe the land to which it relates that the parties may know with a reasonable degree of certainty its location and its boundaries. A casual look at that leg of the claim will show it failed to meet that requirement, none of the parties gave the area of the land in dispute as 8.711 Acres. That claim fails…”

I am of the view that the learned trial Judge is in error in so holding. That error stems from the mistake in considering the land in claim II as being different from that covered by the certificate of occupancy No.KW 3356 of 30/6/80 which the court had consistently found to belong to the respondent/cross-appellant.

It is my considered opinion that the error committed by the learned trial Judge has resulted in a miscarriage of justice. It is therefore my view that the respondent/cross-appellant is entitled to the relief claimed.

In conclusion, it is my considered opinion that for the reasons assigned in this judgment the main appeal lacks merit and is accordingly dismissed. On the other hand, there are merits in the cross-appeal which is accordingly allowed. It is consequently ordered that the judgment of the High Court of Kwara State in suit No. KWS 186/92 delivered on 4th March, 1998 by Honourable Justice A. O. Bamigbola be and is hereby affirmed except as relates to relief or claim No. II therein which is hereby set aside and in its place judgment is hereby entered for the plaintiff/respondent/cross-appellant in the following terms:

Claim II: It is hereby declared that the plaintiff is entitled to Statutory Right of Occupancy over the piece or parcel of land situate and being at Tanke Iledu, Ilorin more particularly described and delineated in the plan attached to the Certificate of Occupancy No. KWS 3356 of 30/6/80 effective from 19/12/79.

There shall be no order as to cost.

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Other Citations: (2000)LCN/0854(CA)

Chief Chika Okafor & Anor. V. Alhaji Tijjani Hashim (Galadiman Kano) & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

The plaintiff/1st respondent took out a writ of summons dated 29th January, 1999 against the 3rd and 4th defendants/1st and 2nd appellants and 1st and 2nd defendants/2nd and 3rd respondents at the High Court of the Federal Capital Territory (FCT) Abuja seeking the following reliefs/declarations:

1. A declaration and an order that the certificate of occupancy No.FCT/ABU/KN 3641 dated 25th February, 1998 registered at the Lands Registry as FC 125 at page 125 in volume 82 on 17th March, 1998, convey to the plaintiff a valid legal title over Plot 1549 at Zone A4, Asokoro District, Abuja measuring 2204.91 Square Meters and demarcated with property beacons number PB 6326.

2 A declaration and an order that the certificate of occupancy No.FCT/ABU/KN.3641 granted to the plaintiff has not been validly revoked in pursuance to section 28 of the Land Use Act, 1978.

3. A declaration and order that the interests assumed by or purportedly granted to the 3rd and 4th defendants over Plot 1549 of Zone A4, Asokoro district, Abuja is null, illegal and void, having been assumed or granted concurrent to or during the pendency of Certificate of Occupancy No. FCT/ABU/KN.3641.
4. A declaration that the purported notice of Revocation of the certificate of occupancy No. FCT/ABU/KN.3641 dated 11th January, 1999 is null and void having been given in bad faith contrary to the spirit and letters of the provisions of the Land Use Act especially as no known conduct of the plaintiff constitutes either a probation, or a breach of any term or provisions governing the certificate of occupancy which in any case has never been brought to his attention.
5. An order setting aside the purported notice of revocation dated 11th January, 1999 on the grounds amongst others that;

(a) The basis upon which such a revocation can be founded under section 28(1) of the Land Use Act, 1978, does not exist at all or if it exists, notice of such grounds has never been communicated to the plaintiff as dictated by the ordinary norms of fairness.

(b) Failure to give the plaintiff a fair hearing of the allegations militating against his rights over the property conveyed by certificate of occupancy No.FCT/ABU/KN.3641 is ultra vires the binding provision of the Constitution of the Federal Republic of Nigeria, 1979 and is to that extent a nullity.

6. An order setting aside any assignment or other rights granted to or acquired by the defendants over Plot 1549 Zone A4, Asokoro District, Abuja during the pendency of or contrary to, the plaintiff’s right vested by Certificate of Occupancy No. FCT/ABU/KN.3641.
7. An order of injunction restraining the defendants by themselves, their servants, functionaries, agents, privies, any other person or persons whatsoever and whomsoever from entering upon, selling, alienating or otherwise interfering with the plaintiff’s legal right over Plot 1549 Zone A4, Asokoro District, Abuja covered by certificate of occupancy No. FCT/ABU/KN.3641, doing any further act or things inconsistent with the right and interests of the plaintiff at Law or in Equity over the aforesaid property.

The plaintiff/1st respondent on the 1st February, 1999 obtained the leave of the trial court to issue and serve the writ of summons outside the jurisdiction of the court, an order of substituted service on the 4th defendant and an order of interim injunction restraining the defendants from doing anything inconsistent with the rights of the plaintiff 1st respondent at law or in equity over the property known as Plot 1549, Zone A4, Asokoro District covered by Certificate of occupancy No. FCT/ABU/KN.3641 pending the determination of the motion on notice.

The order was served along with the writ of summons and the case fixed for 25th February, 1999 for the hearing of the motion on notice. On the 24th February, 1999 learned counsel for the 1st and 2nd defendants/appellants filed a notice of preliminary objection that the trial court lacked jurisdiction to entertain the matter. The said notice was moved on the 25th February, 2000 the day the motion was to have been heard, and on the 24th March, 1999 the court ruled that it had jurisdiction to hear the motion overruling the preliminary objection.

The 3rd and 4th defendants now appellants being dissatisfied with the ruling have now appealed to this court challenging the decision on two grounds of appeals.

The appellants filed a brief of argument whereby they formulated 2 issues based on the grounds of appeal for determination by this court. These two issues are:

1. Whether or not the High Court of Federal Capital Territory (FCT) is a Federal High Court or a State High Court.
2. Whether or not the High Court of the Federal Capital Territory has jurisdiction to entertain suit No. FCT/HC/CV/132/99 by virtue of section 230(1)(q)(r)(s) of the 1979 Constitution as amended by Decree No.107 of 1993.

In addition the respondent also filed his brief and framed the following three issues;

1. Whether the High Court of the Federal Capital Territory, Abuja has jurisdiction to entertain the suit No. FCT/HC/CV/132/99 or not.
2. What is the proper order to be made in respect of the suit if the trial court is found to lack jurisdiction?
3. Whether the High Court of the Federal Capital Territory, Abuja is a Federal High Court or not.

Issues one and three formulated by the respondents are similar to the two issues raised by the appellants, they will therefore be taken and treated together, while the 2nd issue formulated by the respondents will be treated separately.

ISSUE ONE

Whether or not the High Court of the Federal Capital Territory (FCT) is a Federal High Court or a State High Court.

Arguing this issue, it was the submission of the appellants that the Federal High Court was created by virtue of the provisions of section 228 and the High Court, Federal Capital Territory by virtue of section 261 of the 1979 Constitution, that the jurisdiction of each of the two courts is specifically provided for in the two sections and that section 263 of the 1979 Constitution makes the creation of the High Court of the Federal Capital Territory equivalent to those in the States contending that the High Court, Federal Capital Territory (FCT) cannot be said to be a Federal High Court.

The contention of the respondents on that, is that by virtue of the provisions of section 6 of the 1979 Constitution, the judicial powers of the Federation were vested in the Federal Courts of which Abuja High Court is one while the judicial powers of the States were vested in the High Court of the States. That the use of the term Federal High Court, to describe the Abuja High Court is more of a territorial description rather than jurisdictional description. The bone of contention in this issue is the finding of the trial court at page 23 lines 12 to 21 of the records where he said:

“Section 267 of the 1979 Constitution as amended direct that Abuja High Court as I understand that provision is that like the State High Court, which have powers to entertain actions emanating either from the State or against the Government, the Abuja High Court established for the Federal Capital Territory has the powers to entertain all actions against the Federal Government or any of its agencies within the Federal Capital Territory (FCT) so long as such conflict with the items stated for the Federal High Court under section 230(1) of the amended Constitution”.

I see nothing wrong with the above finding. It is a fact that the Federal High Court is established by virtue of section 228(1) of the 1979 Constitution, and its jurisdiction and powers derived from the provisions of sections 230 and 231 respectively.

Similarly, the High Court of the Federal Capital Territory is established by virtue of section 261 of the 1979 Constitution and derives its jurisdiction and powers from section 263 of the said Constitution. What is important here is that the courts in the Federal Capital Territory are established for the Federal Capital Territory and all judicial powers which are vested in the State Courts shall vest in the court of the Federal Capital Territory (FCT).

The Federal High Court and the High Court of the Federal Capital Territory (FCT) are each confined to their various jurisdictions.

The High Court of the Federal Capital Territory is confined to the Federal Capital Territory and cannot be seen to be exercising jurisdiction outside the Territory. Equating it to a State High court is not to my mind derogating its status but rather showing that they have concurrent powers in civil/criminal and appellate jurisdiction. A matter before the Niger State High Court cannot be tried before the High Court by the Federal Capital Territory and vice-versa. Each matter has to be decided in the jurisdiction where it arose, but for the purpose of exercising any jurisdiction conferred upon it by either the Constitution or an Act of the National Assembly the High Court of the Federal Capital Territory (FCT) shall have all the powers of the High Court of a State.

To answer the question raised in the issue, therefore, the High Court of the Federal Capital Territory is not a High Court of a State it however exercises similar powers and jurisdiction as a High Court of a State within the Federal Capital Territory.

ISSUE TWO

Whether or not the High Court of the Federal Capital Territory has jurisdiction to entertain suit No. FCT/HC/CV/132/99 by virtue of section 230(1) (q) (r) (s) of the 1979 Constitution as amended by Decree No. 107 of 1993.

It is the appellant’s submission on that issue that the Federal Capital Territory, Abuja High Court is not a Federal High Court both in creation and in statute it can therefore not assume jurisdiction to entertain suit No. FCT/HC/CV/132/99 by virtue of section 230(1) (q) (s) by Decree No.107 of 1993, that the said provisions excludes the jurisdiction of the State High Courts of which the Abuja High Court is one from hearing or entertaining any matter which involves the Federal Government or its agencies and urged us to hold that the trial Judge lacks jurisdiction to hear the case.

The respondent, on the other hand, submitted in his brief that the trial court has jurisdiction to entertain the suit before it pointing out that it is always the relief which is claimed before a court that determines the jurisdiction of a court to adjudicate on it. That the reliefs claimed by the respondent against the appellant as contained in paragraph 1.01-07 of the appellant’s brief and paragraph 1.01 of the respondent’s brief relate to a dispute over Plot 1549, Zone A4, Asokoro District, Abuja covered by a certificate of occupancy No.FCT/ABU/KN 3641 a clear land case. That the matter is not covered by section 230(1) (q) (r) and (s) of the 1979 Constitution as amended by Decree No. 107 of 1993. Submitting further that though the said provisions increased or enlarged the jurisdiction of the Federal High Court it does not make it unlimited as in the case of the State High Courts. Further contending that unlike the State High Court which is a court of unlimited jurisdiction, the Federal High Court is a court of limited jurisdiction which cannot exercise jurisdiction over any cause or matter outside that conferred on it by section 7 of the Federal High Court Act No.13 of 1973 which created it and as enabled by section 230 of the 1979 Constitution as modified by section 230(1) of Decree No. 107 of 1993.

Submitting that there is nowhere in Decree 107 where it was stipulated that any suit in which the Federal Government or its agency is sued must be justiciable only in the Federal High Court nor is there anywhere in the Decree where the Federal High Court is given jurisdiction to deal with matters relating to land. That a court cannot assume jurisdiction where none exists even when two of the defendants are Federal Government agencies urging us to hold that the trial court has jurisdiction to determine the matter.

It is of interest to note that by virtue of the provisions of section 230(q) (r) of Decree 107 of 1993 and section 251(1)(q) (r) of the 1999 Constitution the Federal High Court assumes jurisdiction in an action where the Federal Government or any of its agencies is a party.

There is however a provision to the above provisions in section 230(1) (s) of Decree 107 of 1993 and section 251(1) (s) of the 1999 Constitution which provides:

‘Provided that nothing in the provisions of paragraphs (p) (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its Agencies in an Action for damages, injunction or specific performance where the action is based on any enactment, law or equity’.

This court has in the case of Nigeria Deposit Insurance Corporation v. Federal Mortgage Bank of Nigeria, (1997) (Pt. 490) 2 NWLR 735 interpreted section 230(1)(d) and the proviso(s) while answering the question whether a State High Court has jurisdiction to entertain action between one bank and another held that:

1. The State High Courts have jurisdiction in the circumstances indicated in the provisior.
2. The Federal High Court shall not have exclusive jurisdiction in the circumstances indicated in the provisor.
3. The fact that the Federal High Court has exclusive jurisdiction in section 230(1) (d) shall not apply to matters falling within the circumstances of the proviso and does not entirely remove jurisdiction therein from the Federal High Court.
4. Both the Federal and the State High Court have and can exercise concurrent jurisdiction in such circumstances.

The matter to be adjudicated upon before the trial court is for a declaration and an injunction against the action of the Federal Government over a land matter. The two actions are both equitable.

The provisor to section 230 of Decree 107 of 1993 will come in to give the High Court of the Federal Capital Territory, which has unlimited jurisdiction, jurisdiction in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity even where the Federal Government or any of its agencies is a party.

Similarly, section 230(1)(r) of the said Decree will confer on the Federal High Court jurisdiction to determine the matter as the action at hand is based on an administrative action by the Federal Government:- Ona v. Atenda (2000) 5 NWLR (Pt. 656) 244.

It would appear therefore from the above that the two courts have concurrent jurisdiction to determine the matter at hand. The learned trial Judge was therefore right to hold that he has jurisdiction to determine the interlocutory application before him.

Having found on above, the third issue before us becomes academic. It is however trite that where a court rules that it lacks jurisdiction in a matter the proper order to make with regards to the case is to strike it out, and allow the parties to initiate the action before a proper court with the relevant jurisdiction.

On the whole this appeal lacks merit and I hereby dismiss it. The case is remitted back to the trial court for determination of both the motion and the substantive case before it. Costs of N5,000.00 (Five Thousand Naira) is awarded to the respondents.

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Other Citations: (2000)LCN/0853(CA)

Ayatu Abu V. Abdullahi E. Kuyabana & Anor (2000)

LawGlobal-Hub Lead Judgment Report

ODUYEMI, J.C.A.

By a writ of summons issued out of the Abuja Judicial Division of the High Court of the Federal Capital Territory (herein referred to as the “lower court”) on 16th June, 1999, the plaintiff Ayatu Abu by his Attorney, Shuaibu Abu instituted an action against (1) Abdullahi Kuyabana and (2) Mike Ozioko as 1st and 2nd defendants respectively. The writ of summons is endorsed with the plaintiffs claim thus:-

“1. A declaration that the plaintiff is the bonafide owner of the Land known as Plot 884 later conveyed and known as Plot 885 Maburshi District in Abuja Federal Capital Territory.

2. A declaration that the transfer of the land known as Plot 884 later known as Plot 885 in Maburshi District of the Federal Capital Territory by the 1st defendant to the 2nd defendant or any other person is null, void and amounts to fraud as the 1st defendant had transferred the same to the plaintiff first in time.
3. An order of injunction restraining the defendants, their agents, servants and privies from building, constructing or doing anything on the said land.
4. An order directing the defendants their agents, servants and privies to handover the Statutory Right of Occupancy or any other documents relating to the land known as Plot 884 later known as

Plot 885 Maburshi District in the Federal Capital Territory to the plaintiff.”

The two defendants duly entered their respective appearances.

However, simultaneously with the issue of the writ of summons, the plaintiff sought ex-parte for an interim order seeking inter alia the following reliefs:-

(i) interim injunction restraining the defendants agents, and assigns from carrying out any building whatsoever on the land in dispute;

(ii) an order directing the defendants to deposit into the custody of the lower court the Certificate of Occupancy, Power of Attorney or any other documents of title of the land in dispute, pending determination of the motion on notice.

The court heard the application ex-parte on 17th June, 1999. It granted prayer 1 in its considered ruling on that day but declined to give a ruling until the defendants have had an opportunity of having their say on the motion on notice.

However, in the course of the hearing of the motion on notice, the defendants by a motion filed in the lower court on 16th July, 1999 prayed the court for an order striking out the entire suit by the plaintiff for want of jurisdiction on the grounds that:-

“(a) Non-compliance with provisions of Sheriffs & Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990.

(b) Lack of locus standi on the part of the plaintiff/applicant’s Attorney to institute the suit.”

As this application was a challenge to the jurisdiction of the lower court it decided to suspend hearing on the application for interim injunction and to hear and determine the motion on jurisdiction.

Arguments were duly heard. In a considered ruling given on 30th July, 1999 the lower court found in favour of the defendants on the issue of the locus standi of the plaintiffs Attorney but not on the issue of non-compliance with the provisions of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990.

The argument which the learned Judge of the lower court upheld was that which related to absence of registration of the Power of Attorney granted by the plaintiff to his attorney as required by section 3(2) of The Land Registration Act, Cap.515 of the Laws of The Federation of Nigeria, 1990. Based on that finding he considered that the suit filed by the purported attorney was incompetent as the power of attorney fell short of statutory requirement for recognition of instruments affecting land.

He accordingly dismissed the suit.

The plaintiff has appealed against that ruling to this court. He has also filed a brief of argument.

Following the alleged failure by the respondents to file a respondent’s brief of argument, plaintiff filed an application on 19th November, 1999 for the appeal to be heard ex-parte in accordance with the Rules of this court.

However, the defendants contested that application on the ground that the records settled by the plaintiff with the Registrar of the lower court was incomplete in that certain documents vital for the due prosecution of the appeal by the respondents were not included in the records. Parties then agreed for the inclusion of those documents.

In the event, respondents have now filed in this court an application seeking the following orders:-

“a. An order of the court enlarging the time within which to file the respondents’ notices, to wit:-

1. Notice of Intention to contend that judgment should be affirmed on grounds other than those relied on by the court below.
2. Notice by respondents of intention to contend that decision of court below be varied.

b. An order of the court to deem as properly filed and served the respondents, notices above mentioned and exhibited in the affidavit in support of this application.

c. Leave of court to raise issues of mixed law and facts in the two notices aforesaid.”

When that application came for consideration, A. A. Izinyon, Esq. learned Senior Advocate not only opposed the application for enlargement of time but also vehemently opposed the two notices sought to be filed by virtue of the application.

Before setting out the arguments of both counsel on the application, it is necessary to set out the substance of the two notices:-

1. “NOTICE OF INTENTION TO CONTEND THAT JUDGMENT BE AFFIRMED ON GROUND OTHER THAN THOSE RELIED ON THE COURT BELOW – EXHIBIT ‘A’

TAKE NOTICE that upon the hearing of the above appeal, the respondents intend to contend that the decision of the court below dated the 30th of July, 1999 should be affirmed on grounds other than those relied on by the court below.

AND TAKE NOTICE that the grounds on which the respondents intend to rely are as follows:

1. That the learned trial Judge misdirected himself in law and facts when he failed to inquire into and make a finding on the submission of counsel for the defendants/respondents that:

a. There was no valid Power of Attorney supporting the institution of the suit by the plaintiffs’ Attorney Shuaibu Abu in that the purported Power of Attorney (Exhibit CA1) in evidence was not duly executed and did not bear the signature of the plaintiff (Ayatu Abu).

b. That the signature appearing on the said power of Attorney was not that of the plaintiff (Ayatu Abu).

c. That the signature appearing on the purported Power of Attorney is different and contrasts with the authentic signature of the plaintiff Ayatu Abu appearing in Exhibit C of the 2nd defendant/respondents’ counter -affidavit dated 24th of June, 1999.

2. That the learned trial Judge misdirected himself in law when he failed to strike out the substantive suit on the ground above mentioned.
3. That the learned trial Judge misdirected himself in law and facts when he failed to make a finding on the contention of the learned counsel for the defendants/respondents to the effect that the court should discountenance the purported Power of Attorney i.e. Exhibit CA1 which was shown to have been made in the United States of America but was not authenticated by a Notary Public in Nigeria pursuant to section 118 of the Evidence Act.
4. That the learned trial Judge misdirected himself in law when he failed to strike out the substantive suit on the above ground.”
5. “NOTICE BY RESPONDENTS OF INTENTION TO CONTEND THAT DECISION OF COURT BELOW BE VARIED:- EXHIBIT ‘B’

TAKE NOTICE that upon the hearing of the above appeal the respondents herein intend to contend that the decision of the court below dated 30th day of July, 1999 shall be varied as follows:”

It follows that the suit being incompetent must be and is hereby struck out.

AND TAKE NOTICE that the grounds on which the respondents intend to rely are as follows:-

1. The respondents in their motion paper specifically prayed for an order striking out the suit.
2. Evidence was not led by the parties on merit.
3. An order of dismissal was not asked for by the respondents.
4. The order of dismissal by the trial court may have been an error and should be corrected under the slip rule.

It is the contention of Mr. Okeke learned counsel for the respondent/applicants that the application has been made out of time for the reasons already stated in respect of the initial compilation of Records of Proceedings of the lower court. He urged this court to grant the three application in the interest of justice.

Opposing the application, learned Senior Advocate, Mr. Izinyon contended that the application is incompetent on account of the reliefs sought; he submitted that the two applications are inconsistent with the provisions of Order 3 rule 14(i) and (ii). It is his submission that applicants have to choose between whether they wish this court to affirm the decision of the lower court or whether to vary it; that the court cannot grant two respondents notices in one application.

Learned Senior Advocate then refers to prayer (c) which seeks leave of this court to raise issues of mixed law and fact. He contends that the proper application in the circumstance is for applicants to seek leave to cross-appeal.

It is the contention of learned Senior Advocate in particular that applicants who seek to challenge findings of facts by the lower court have no choice but to cross-appeal. He relies on: (i) College of Education (Warri) v. Odele (1999) 1 NWLR (Pt.586) 253 at 262. (ii) Chuke v. Federal Housing Authority (1999) 10 NWLR (Pt.624) 574 at 586. (iii) African Continental (Seaways) Ltd. v. Nigeria Dredging Roads and General Works Ltd. (1977) NSCC 323 at 324.

It is also submitted that even on its merits applicants have not complied with the provisions of 0.3 r. 4(2) of the Rules of this court in that they have merely stated what their counsel did and not what they did to comply with the Rules as to filing the papers timeously.

With utmost respect to learned Senior Advocate that submission cannot have been intended to be taken seriously by this court.

Obviously, respondents having engaged the services of counsel must rely on their professional expertise as to the appropriate procedure for the settlement of records of appeal and the appropriate contents of such Record in which they would need to prosecute the appeal.

The affidavit in support together with the earlier proceedings in this court on 22nd February, 2000 when appellants sought for the appeal to be heard on appellant’s brief alone for the failure of respondents; brief in which this court had to direct parties to agree on which documents to include in the Record of Appeal convince me that there is no substance in this ground of opposition to the application.

I therefore need only to consider the arguments on the need or otherwise for a cross-appeal.

Mr. Okeke in reply to the opposition of Mr. Izinyon in respect of 0.3 r.14 (i) and (ii) contends that those rules do not in any way preclude a respondent from filing and relying on Forms 11 and 12 as a respondent could both ask this court to affirm a decision of the lower court on grounds other than those relied upon by the lower court and also to ask this court to vary a part of the order. He therefore urges the court to give a literal interpretation to the provisions of 0.3 r.14 and grant the applications.

Order 3 rule 14 of the Court of Appeal Rules as amended provide thus:-

“(1) A respondent who, not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event as the case may be.

2. A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court must give notice to that effect specifying the grounds of that contention.”

There have been a number of cases in which the provisions of Order 8 rule 3(1) and (2) of the Rules of Supreme Court. 1985 which are in pari-materia with the provisions of 0.3 r.14(1) and (2) of the Court of Appeal Rules, 1981 as amended, have been considered by the Supreme Court and authoritative opinions given. However, the locus classicus case in which the history of that legislation commencing with 0.7 r. 13(1) of The Supreme Court Rules L. N. 96 of 1961; 0.7 r.13 of the Supreme Court Rules. 1977 to the present position under the 1985 rules were considered together with the notable cases thereon is the case of Williams v. Daily Times (1990) 1 NWLR (Pt.124) 1; Hon Justice Kayode Eso JSC., as he then was took the opportunity to review and comment on those earlier cases.

His Lordship found that:-

Notwithstanding the omission in the 1977 and the 1985 Rules of the opening words.

“It shall not be necessary for the respondent to give notice of motion by way of cross-appeal.”

From the corresponding Rule in the 1961 Rules a common thread of construction can still be detected in the several cases decided by the Supreme Court in all the cases ranging from; inter alia.

(i) L.C.C. v. Ajayi (1970) 1 All NLR 291;

(ii) L.C.C. v. Ogundemuren Suit No. SC 335/69 dated 26th November, 1971;

(iii) Oyekan v. B. P. Nigeria Ltd. (1972) 1 All NLR (Pt. 1) 47 to;

(iv) Adekeye v. Chief O. B. Akin-Olugbade (1987) 6 C 268; 3 (1987) NWLR (Pt.60) 214 and;

(v) Oguma Associated Co. Nig. Ltd. v. I.B.W.A. (1988) 1 NWLR (Pt.73) 658.

That thread, in its various shades, is that:-

(i) The provisions of the Rule were intended to facilitate a complaint by a successful party against a judgment of the court given in his favour and who seeks to support that judgment, if the party who lost… appeals and that these provisions could not be held to contemplate a situation wherein a respondent could seek a variation or confirmation of a judgment “on grounds other than those relied upon by the court” would be entitled to ask for the complete reversal in his favour of the finding of fact made or judgment of the court given against him on certain issues contested in the case. even though the applicant succeeded in the court below on a number of other issues per the review of the Ogundemuren case at P.21.

(ii) Another characteristic of 0.7 r. 13(1) is that it is applicable only where the respondent intends to retain the judgment but at the same time wants it varied; so where a respondent intends, for instance to dispute the jurisdiction of the court of trial or to contest the competency of the entire proceedings or to maintain the absence of a fundamental prerequisite, it seems he cannot come under this rule.  In that case, he has to file a substantive cross-appeal. The basis for this clear for a man cannot at the same time obtain an advantage by maintaining a particular stand-point and then seek to discard that same stand-point whilst keeping the advantage per the review of the L.C.C. v. Ajayi case at 21.

(iii) A party seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and not by an application to vary per the review of the African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. case at P.23-24 .

(iv) Since 1st September, 1977, any respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and shall not do so by an application to affirm or vary the judgment on other grounds Williams v. Daily Times (supra) at 28.Taking advantage of the position of the law on the relevant rule of court as reviewed by Hon. Justice Kayode Eso JSC., in Williams v. Daily Times (supra) one may now apply the principle of law to the particular application for confirmation or variation contained in Exhibits B and C to the Affidavit in support of the respondents/applicants application in this case:-

The substance of the decision of the lower court in this case in spite of the arguments and counter-arguments of counsel for and against the striking out of the suit for non-compliance with the provisions of the Sheriffs and Civil Process Act and for lack of locus standi by the attorney of the plaintiff is that the court found the Instrument by which power of Attorney was granted to the agent of plaintiff to be invalid for lack of registration under the Land Instruments Registration Act, Cap. 515 – LFN 1990. It therefore dismissed the suit.

The purport of Exhibit A is not only to reject the fundamental and crucial finding of want of registration of the instrument but also to reject the decision to dismiss the suit. It however wants this court to dismiss the suit on the grounds that:-

(i) The Power of Attorney was not validly executed and did not bear the true signature of the donor.

(ii) The Power of Attorney was not authenticated by a Notary Public pursuant to section 118 of the Evidence Act.

Obviously, so long as the Applicants reject the finding as to want of registration and the decision to dismiss the suit on account thereof the proper course open to them on the myriad of authorities reviewed above is to appeal or cross-appeal under the provisions of 0.3 r.2.

Similarly, the purport of Exhibit B to the application is to reject the vital and fundamental decision of the lower court to dismiss the suit while taking the advantage of the finding of non-registration of the Power of Attorney upon which that decision is based.

The above authorities did not permit the applicants to do that. In the case of Exhibit B, applicants have an option. That option is either to support the ground of appeal of the respondent (together with any issue framed thereon) relating to the decision of the lower court to dismiss the suit or to appeal or cross-appeal that decision themselves. The result in either case would be the same.

However, an application for variation under 0.3 r.14 would not avail applicants. Having considered each of the two notices separately and taken a decision to reject each, it is no more necessary for me to consider the submission of Senior Counsel, Mr. Izinyon that applicants have to choose between notice Exhibit A and notice Exhibit B.

For the above reasons, I uphold the objection to the appellants/respondents to the grant of the application of defendants/respondents in this appeal for extension of time within which to file respondents notices seeking affirmation and/or variation of the decision of the lower court under 0.3 r.14 of the Rules of this court as well as the other ancillary reliefs prayed for in that application.

I award costs of N5,000 in favour of appellants/respondents.

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Other Citations: (2000)LCN/0852(CA)

Agbolade Babatunde Osiyemi V. Societe Generale Bank Limited (2000)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A. 

 In the court below, High Court of Lagos State (Coram Adeyinka J.) the plaintiff (hereinafter referred to as appellant) had brought an action against the defendant (hereinafter referred to as respondent) claiming the following reliefs:

(1) An order that the purported termination is wrongful, illegal, null and void and of no effect whatsoever.
(2) An order that the plaintiff is still the Deputy General Manager (Administration).
(3) An order restraining the defendants their servants, agents, and/or privies from preventing the plaintiff from continuing his job as Deputy General Manager (Administration).
(4) An order of specific performance of the Housing Loan Agreement i.e. that the defendants be ordered to complete all their obligations under the term of the contract, or return to the plaintiff his title document to enable him find another mortgage.
(5) ALTERNATIVELY, N1,100,000.00 (One Million, One Hundred Thousand Naira) damages for wrongful termination of the plaintiff’s appointment.

The defendant/respondent filed a counter-claim wherein it counter-claimed against the plaintiff/appellant as follows:

(a) Payment of the sum of N142,716.59 being the sum received by the plaintiff as an unsecured housing loan from the defendant.
(b) Return of the Peugeot 504 SR motor car, registration No. LA 357 AM, the property of the defendant which is in the possession of the plaintiff or in the alternative N10,000.00 damages for detinue.
(c) Possession of premises situate at and known as No. Twins Obasa Street, Gbagada, Lagos, leased to the defendant on 13th March, 1984; and
(d) Payment for the use and occupation of the said premises at the rate of N45,000.00 per annum from 19th April, 1984 until possession is delivered up.
(e) Return of the amenities set out in paragraph 16 above or in the alternative N57,100.00 damages for detinue.

Suffice it to say that in paragraph 16 of the amended statement of defence and counter-claim, the defendant/respondents had averred that it expended a total sum of N57,100.00 in the provision of amenities for the premises occupied by the plaintiff as its employee. Such amenities included Air-conditioning units, Electric Fans and a Generating set which according to the defendant/respondent, the plaintiff/appellant was holding unto.

Pleadings were filed and exchanged between the parties. At the conclusion of evidence on both sides and after taking the addresses of counsel, the trial Judge, in a reserved judgment, found that the appointment of the plaintiff/appellant was lawfully terminated but entered judgment for the defendant/respondent in respect of his counter-claim for the sum of N248,966.00, with an order that upon the payment of that sum of N248,966.00 by the plaintiff/appellant, the defendant/respondent shall return to the plaintiff/appellant his title documents.

Dissatisfied with the said judgment, the plaintiff filed a notice of appeal with five grounds of appeal and one additional ground of appeal. The plaintiff/appellant identified five issues for determination and they are in the following terms:-

(i) Whether the plaintiff/appellant’s appointment was terminated in accordance with the agreements binding the parties.
(ii) Whether the trial court was right to hold the plaintiff liable for payment for use and occupation of the official residence on the basis that the right to use the premises automatically came to an end from the date of the termination of his appointment.
(iii) Whether the trial Judge was right in holding that upon the termination of plaintiff’s employment, the housing loan which was expressly agreed payable over 15 years automatically became repayable in one lump sum.
(iv) Whether the plaintiff was liable in detinue for the sum of N10,000.00 being the cost of the car alleged to be in the plaintiff’s possession at the time his appointment was terminated.
(v) Whether the trial Judge was right not to have awarded damages to the plaintiff in line with the authorities on the issue particularly the cited case of NWAGBANEBI v. NIGERIA PALM PRODUCE BOARD.

The respondent, for its part, raised three issues for the consideration of this court and they are as follows:

1. what were the terms and conditions governing the appellant’s employment?
2. whether or not there has been a breach of the said conditions of employment.
3. Is the appellant liable to the respondent as per the latter’s counterclaim and judgment of the trial court?

When this appeal came before us on the 3rd of May, 2000, Mr. Osiyemi, a legal practitioner, who appeared in person adopted his (appellant) brief filed on 11/2/98 and urged that the appeal be allowed. Mr. Nweze, learned counsel for the respondent adopted the respondent’s brief deemed to have been filed on 18/5/99 and urged that the appeal be dismissed.

Briefly, the case of the appellant is that upon his employment as Deputy General Manager (Administration) by the respondent with effect from 1st February, 1983, he was given a handbook which contains terms and conditions binding the parties. The handbook was tendered in evidence as Exhibit P5. It was also his case that his employment was permanent and pensionable as confirmed by his employer’s letter dated 10th November, 1983 tendered as (Exhibit P6). Sometimes in 1984 whilst he was attending an Advance Management Workshop at Ibadan the defendant requested him to return to Lagos immediately. He obeyed the directive only to be confronted with an allegation of improper behaviour in the matter of his housing loan consequently he was requested to tender his letter of resignation failing which a report would be forwarded to the meeting of the Board slated for 18th April, 1984. He was suspended and his appointment was later terminated by a letter dated 18th April, 1984 tendered as Exhibit P9. He further averred that the termination of his appointment was wrongful. In consequence of the wrongful termination it was his further case that he was entitled to be paid his salary and all his entitlements until he reached the age of 60 which was 14 years away from the time his appointment was terminated. In meeting the case formulated by the appellant, the respondent who was the defendant in the court below averred that the termination of the plaintiff’s employment was in accordance with the terms and conditions of the contract of service. It also counter- claimed against the plaintiff/appellant for re-payment of the housing loan granted to him (plaintiff), the return of the Peugeot 504 SR motor car assigned to the plaintiff or in the alternative the sum of N10,000.00 damages for detinue, possession of the premises assigned to him as the official residence and mesne profit at the rate of N45,000.00 per annum from 19th April, 1984 until possession is delivered up. In his viva voce evidence, the appellant has further said that his date of birth being 3rd December, 1937 he was supposed to retire from his employment at 60 which was 3rd December, 1997, he claimed his salary at N27,070.00 per annum for the period, his housing allowance for the period, at N45,000.00 per annum, his furniture allowance of 5% of his basic salary; yearly entertainment allowance of N3,000.00. Security guard’s yearly salary at N10,000.00. He said he got a loan of N30,000.00 to buy a parcel of land. He claimed that the housing loan was disbursed to him partially. He did not complete the house as his employers withdrew further disbursement of loan to him. He denied being in possession of the respondent’s official car. In its defence and counter-claim the respondent through its Legal Adviser tendered as Exhibit D5 the Minutes of the Committee of Directors on Staff Matters Item 11 page 8 thereof deals with Staff Housing known to the appellant. Evidence was led as to the equipment installed by the respondent in the premises occupied by the appellant; such equipment are a generator set, costing N39,000.00,three split air conditioners; one costing N2,150.00 while the remaining two cost N4,900.00; six ceiling fans each at N125.00. Evidence was further given that the appellant was still in possession of the said premises with the afore-mentioned equipment being intact. The official car which was yet to be returned was valued at N10,000.00 but the total disbursement to the appellant was N142,000.00.

I have said some where in this judgment that the trial Judge in a considered judgment held that the plaintiff’s employment was lawfully terminated. In addition to this finding, the trial Judge in the concluding part of his judgment said:-

I refer to my findings that the plaintiff is entitled to N35,000.00 being initial furniture allowance and the defendant to N142,716.00 loan disbursement N131,250.00 for use and occupation and N10,000 for the vehicle and hold that the defendant is therefore entitled to judgment on its counter-claim for N248,966.00 against the plaintiff.
Judgment is hereby entered for the defendant against the plaintiff for the sum of N248,966.00 plaintiff’s title documents to him forthwith on payment of the said judgment/debt.”

I have again had a careful study of the issues formulated by both the appellant and the respondent for determination by this court. I am of the view that the three issues raised by the respondent are apt and I shall be guided by them in the determination of this appeal. And issues 1 and 2 formulated by the respondent can conveniently be taken together and I shall so take them. I wish to start by saying that an employee who has a grouse as to the way and manner his appointment is put to an end or who in the conventional manner of complaint says that his employment has been wrongfully terminated has the duty:
(1) to put before the court the terms of the contract of his employment; and
(2) to prove in what manner the said terms were breached by the employer.

This statement is reinforced by the principle that the employer and employee is for all times, regulated by the term of contract of service. See (1) Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt.357) 379 and (2) Amodu v. Amode (1990) 5 NWLR (pt.150) 356. The case of the employee or the employer stands or falls by the terms of the said contract of service being what is binding on both of them and it is to that document-contract of service that a court of law must cast its searchlight and to nothing else. See (1) W.N.D.C. v. Abimbola (1966) NMLR 381 and (2) N.P.M.B. v. Adewunmi (1972) 11 SC 111.

In a contract of employment, which is of the ordinary nature other than one with statutory flavour where the terms provide for a length of notice being given before termination or salary in lieu thereof, the only remedy an employee who has his appointment wrongfully terminated can get is that period’s salary in lieu of notice and any other legitimate entitlements to which he may be entitled at the time the employment was put to an end, see the W.N.D.C. cited supra. The measure of damages will be the salary which the employee would have earned during the period of notice. The crux of the matter here is the ascertainment of the terms of the conditions of service applicable to the appellant. In so doing, the court below, in its judgment held:
“It was not in dispute between the parties that the letters of appointment and confirmation are Exhibits P1 and P6. It was the defendant’s contention on the amended statement of defence and counter-claim that the contract of employment between the parties was the letter of appointment Exh. P1 and that the Staff handbook Exh. p5 did not apply to the plaintiff while the plaintiff contended in the amended statement of claim that the contract of employment between the parties was the letter of appointment Exh. P1 and the Staff hand book Exh. P5. It is settled principle of law that parties are bound by their contract voluntarily entered into and the court will not go outside the contract to interprete its terms. However, the court will look outside the contract if the document makes reference to other documents.”

After having a careful study of Exhibit P1 and comparing same with Exhibit P5, the Staff hand book, the learned trial Judge found as follows:

“I hold upon the comparison of Ex. P1 and P5 and the conduct of the parties that the intention of the parties was to be bound by the letter of employment Exh. P1 and same provision of the Staff hand book, Exhibit P5. I also hold that the contract of employment between the plaintiff and the defendant was compromised in the letter of employment Exh. P1 and some provisions of the staff Hand Book Exh. P5.”

Exh. P6, the letter dated 10th November, 1983, is the confirmation of the Appointment of the appellant as Deputy General Manager (Administration) with effect from 1st November, 1983. In the said letter, the appellant was informed that his basic annual salary had been increased from N25,390.00 per annum to N27,070.00 per annum with effect from the date on the letter. I have a close study of Exhibit P1 as well and I do observe that certain portions of the Staff hand book, Exh. P5, has been incorporated into it. It is my view, therefore, that the terms of conditions of service under which the plaintiff/appellant was employed can be gathered only from Exh. P1, the letter of offer of probationary employment dated 19th January, 1983, Exh. P6, the letter of confirmation of appointment dated 10th November, 1983 and such portions of Exh. P5 – the Staff hand book that have been incorporated into Exh. P1, the letter dated 19th January, 1983. It is those terms that regulate the relationship between the respondent as employer and the appellant as employee. A careful reading of Exh. P1 shows that Exhibit P5 the Staff hand book was never intended as a whole to be part of the documents that regulate the master/servant relationship between the respondent and the appellant. The portions of Exh. P5 that were intended to be part of what would regulate that relationship have been lifted and incorporated into Exhibit P1. And Ex P6, the letter of confirmation of appointment to the extent to which it spelt out the basic salary of the appellant, is in furtherance of Ex P1. Reading Ex. P1 and P6 together the terms and conditions that govern the employment of the appellant are:-

(a) Basic salary – N27,070.00.
(b) Annual Leave Allowance – 5% of basic salary.
(c) Entertainment Allowance – N3,000.00.
(d) Fully-furnished residence which is maintained by the employer.
(e) Free electricity, gas and telephone (local Calls only).
(f) Monthly payment of N200.00 for domestic help.
(g) Free use of official car with a driver.
(h) Provision of security guards at residence.
(i) Provision of medical facilities and access to staff-end-of-service benefit.
(j) Car-Loan.
(k) Housing Loan.

The respondent also undertook to take over the existing commitments of the appellant towards his erstwhile employers; R. T. Briscoe (Nig.) Ltd. On the condition governing termination of appointment, the stipulation agreed to is thus:

“However, after your confirmation as a permanent member of our staff, you will be entitled to one month’s salary in lieu of notice, and will also have the right to resign your appointment by giving one month’s salary in lieu of notice.”

The above represents the terms and condition governing the appellant’s employment with the respondent. Ex. P9 is the letter communicating to the appellant the termination of his appointment. In the said letter, the respondent said inter alia:

“Consequently, your appointment with the bank is hereby terminated with effect from 18th April, 1984. Although, you are only entitled to the payment of one month’s salary in lieu of notice, it was decided that you should be paid three months salary in lieu of notice. The Accounts Department is accordingly notified by a copy of this letter, of the Board of Directors’ decision.
Kindly surrender all the Bank’s belongings in your possession including the Bank’s Car, staff Identity Card, and Cheque Book… You should also vacate immediately the Bank’s premises at Twins Obasa Street, Gbagada, Lagos which you are presently occupying at the expense of the Bank.
We attached herewith a statement of your indebtedness, which stands at N142,716.59 and look forward to receiving your cheque in settlement or at least a repayment programme.

From the totality of the evidence before the court below, both oral and documentary, the respondent cannot be held to have breached any of the conditions of employment. Rather, the respondent had been generous with its offer to pay three months’ salary in lieu of notice of one month. I wish to say further that from the nature of the contractual relationship between the parties which is one of ordinary master/servant relationship and does not savour statutory relationship a reinstatement of the appellant into the employment of the respondent will not meet with the favour of the law as it stands today. See ABIMBOLA’S case cited supra, and of course UNION BEVERAGES LTD. V. OWOLABI (1988) 1 NWLR (Pt.68) 128 cited in the respondent’s brief. I therefore answer issue 2 in the negative, there has not been a breach of the conditions of the employment of the appellant.

On issue 3 which poses the question as to whether the appellant is liable to the respondent as per counter-claim for N10,000.00 in detinue for not returning his official car to the respondent and also the sum N142,000.00 the housing loan due and payable by the appellant to the respondent, the evidence before the court below was so overwhelming that the reliefs sought in the counter-claim could not but have been granted.

From all I have said above, this appeal is adjudged by me to be unmeritorious. It is accordingly dismissed. There shall be N4,000.00 cost in favour of the respondent.

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Other Citations: (2000)LCN/0851(CA)

Bisi Dawodu & Ors V. The National Population Commission & Anor (2000)

LawGlobal-Hub Lead Judgment Report

DALHATU ADAMU, J.C.A.

In this appeal, the action arose after the conduct of the 1991 National Census which was carried out by the 1st respondent. Being dissatisfied with the exercise the Complainants in a representative capacity for themselves and on behalf of the Awujale of Ijebuland and the Obas and people of Ijebu Division comprising of Ijebu Ode, Odogbolu, Ijebu North and Ijebu East and Ogun Water-side Local Government Areas filed a complaint at the Second Census Tribunal holden at Abuja on 17/9/92. After filing the complaint and on 26/2/93, the complainants applied to the Tribunal for an order to direct the Respondents to make available to them certain documents which were used during the census exercise. This was granted by the Tribunal on 5/4/93. Earlier on, the Tribunal had directed on 27/10/92 that the hearing in the case shall be conducted on affidavit evidence to be filed by the parties within a prescribed time limit. In compliance with the order of the Tribunal on 5/4/93, the 1st respondent, made certain documents available to the complainants/appellants. Thereafter, the respondents proceeded to file their own affidavit evidence on 29/4/93 (within its own time limit). On the other hand, the complainants who could not file their affidavit evidence within time an applied for extension of time to do so and that was also granted by the Tribunal. After filing their affidavit evidence and on 4/5/93, the complainants applied for the Tribunal to enter judgment in their favour as per their claim and due to the refusal of the respondents to comply with the Tribunal’s order of 5/4/93 – i.e. to provide certain documents to the complainants. This application for judgment was heard by the Tribunal on 19/5/93 and was dismissed. The Tribunal then adjourned the case for judgment on 24/5/93. On 24/5/93, the Tribunal in its judgment considered the affidavit evidence of both parties before it and found the complaints’ case as unsubstantiated. It accordingly dismissed the complaint in its entirety.

Being dissatisfied with the judgment, the complainants as appellants filed their Notice of Appeal against it to this Court on 9/6/93. The Notice of Appeal at pages 169-171 of the record contains three (3) grounds of appeal.

Both parties in the appeal (hereinafter referred to as simply “the Appellants” and “the Respondents”) filed their respective briefs of arguments in accordance with e rules of this Court which were adopted on their behalf by their counsel at the hearing. In the appellants’ brief only one (sole) issue was framed as follows:-

“ISSUE FOR DETERMINATION

The sole issue for determination in this appeal is:-

“Was the Census Tribunal right in dismissing the Appellants’ case without according them a hearing on the merits?”

The Respondents also in their brief agree with or adopt the above sole issue formulated by the appellants as the only issue that arise for determination in the appeal (See paragraph 3 at page 3 of the said brief).

In arguing the only issue, the appellants’ brief mainly complaints against the refusal of the Tribunal to call upon the parties to proceed and prove or argue their case after the dismissal of their motion for judgment on 19/5/93. It is argued that after its ruling of 19/5/93, the Tribunal should have adjourned for the parties to prove or argue their cases based on the affidavit evidence they have filed or at least for their respective learned counsel to address the Tribunal before adjourning for judgment. It is pointed out in the brief that the judgment of the Tribunal was very scanty without any review of the facts and without any reasons given for the judgment. It is even asserted that the judgment consisted of only one short paragraph of only one sentence (as reproduced at paragraph 1.06 at page 2 of the brief). This is said to be contrary to the General Order of the Tribunal (paragraph 1 thereof) served on the appellants on 27/10/92 the provision of which is said to be analogous to “Discovery and Inspection of Documents” under the High Court Civil Procedure. Reference is also made to section 6 of the National Population Commission (Amendment) Decree No. 26 of 1992 which makes similar provision as follows:-

“Evidence need not be stated in the complaint, but the Tribunal may order such particulars as may be necessary to prevent surprise and unnecessary expense and to ensure a fair and effectual hearing in the same way as in the civil action in the High Court, and upon such terms as to costs and otherwise as maybe ordered.”

See also a similar but more elaborate provision in Section 45(1) of the same Decree.

It is pointed out that although the above provisions of the Decree (in their combined effect) which provide generally for the rules or practice and procedure of High Court to apply to the Tribunal do not specify which High Court Rules would apply, it is suggested in the appellants’ brief to take as a model the rules of practice of the High Court of the Federal Capital Territory, Abuja where the Tribunal was sitting. Thus the Abuja High Court (Civil Procedure) Rules Order 32 Rules 9 – 20 thereof are appropriate and they provide for the Discovery and Inspection of the Documents. Rule 20 of the said rules provides the sanction for non-compliance with the discovery order made by the Court in which event the party who fails to comply will be liable to committal for contempt or for the court’s judgment to be given against him or his interest. It is argued that in the present case when the respondents failed to comply with the Tribunal order of Discovery and Inspection made on 5/4/93, the said Tribunal did not apply the sanctions recommended by the Rules but instead resorted to unnecessary arguments which were only relevant before granting the earlier application for Discovery and Inspection. Thus in its ruling on the appellants’ subsequent application for judgment against the respondents for non-compliance, the Tribunal reviewed its earlier order for discovery and inspection which it had no right or power to do.

Also it is pointed out in the brief, the Tribunal compounded its error by fixing the date for judgment in the substantive suit without giving the parties any sort of hearing and without the addresses of their respective counsel. Thus the appellants’ case was not heard on its merits. This wrong procedure adopted by the Tribunal is said to be contrary to section 33 of the Constitution of the Federal Republic of Nigeria, 1979 which guarantees to every litigant a right to a fair hearing. It is asserted that the appellants were denied their right to a fair hearing of their case by the Tribunal – see OTAPO VS. SUNMONU (1987) 2 NWLR (Pt. 58) 587 at 605; ALADETOYINBO VS. ADEWUNMI (1990) 6 NWLR (Pt. 154) 98; and ONWUKA HI-TECH. VS. ICON LTD. (1990) 2 NWLR (Pt. 226) 733 cited in the brief in support of the submissions. We are finally urged in the brief to allow the appeal for the above considerations.

As stated earlier, the above sole issue of the appellants has been adopted and accepted the respondents’ brief as the only issue calling for determination in the appeal. The submissions in the respondents’ brief are therefore aimed at replying the appellants’ submissions on the said issue. It is emphatically submitted in the respondents’ brief that the appellants were given a fair hearing on the merits by the Census Tribunal. Reference is made in the brief to the Tribunal’s General Order made pursuant to section 6 of Decree No. 26 of 1992 which prescribed the mode of hearing the appellants’ complaint (or petition) filed before the said Tribunal (see page 19 of the record). It is clearly provided and prescribed in the said general order of the Tribunal that hearing of the case was to be by each party filing of an Affidavit Evidence rather than by oral evidence. The parties were also given the time limit for such purpose in view of the time-frame given to the Tribunal to finish its operation – as it was fact-finding Tribunal mainly dealing with figure and documents rather than strict legal principles. It is pointed out in the respondents’ brief that none of the parties or their counsel objected against the general order made or issued by the Tribunal with which they were or were deemed to be in agreement. In terms with the said order also both parties filed their Affidavit Evidence before the Tribunal – see pages 27 – 74 of the record (for the affidavit evidence of the Appellants) and pages 75 – 140 (for that of the Respondents). It is also pointed out in the said brief that the Tribunal gave its consider d judgment after or upon the evaluation of the affidavit evidence and the documents annexed thereto, of both parties. The statement in the appellants’ brief that the judgment of the Tribunal consisted of only short sentence or four-line paragraph (see page paragraph 1.06 of the appellants’ brief) is described in the respondents’ brief as misleading and fallacious. It is point out that the judgment (which covers pages 165 – 168 of the record) in actual fact consisted of four (4) full pages of evidence evaluation, assessment and final conclusion of the Tribunal in the case.

In another arm of the submissions in the respondents’ brief, it is argued that the appellants did not indicate their objection when the Tribunal adjourned the case for judgment after its proceedings of 19/5/93 (see pages 162 – 164 of the records). Neither did the said appellants apply to be allowed by the Tribunal to give or call additional oral evidence or for counsel addresses (whether written or oral). It is submitted that the situation or position of the appellants could have been different if they had applied to give further oral evidence or submission of their counsel and their application for that was refused or rejected by the Tribunal – they could then be said to have been denied the opportunity of a fair hearing. It is indicated in the brief that there is no mandatory rule which requires the Tribunal to take dresses from counsel and no such request was made by the appellants’ counsel to the said Tribunal. It is further pointed out that the case of the appellants at the Tribunal was founded purely on figures (i.e. undercounting) as per their affidavit evidence. As such there is no amount of address by their counsel that can prove their allegation in the absence of arithmetical figures. It is an established principle of law that counsel addresses no matter how brilliant they might be cannot take the place of probative evidence (oral or documentary) which is a factual rather than legal point, the brief reasserts. On the non-mandatory nature or requirement of Counsel’s addresses in a case the absence of which is or should not be fatal to the proceedings – see NIGER CONSTRUCTION VS. OKUGBENI (1989) 4 NWLR (Pt. 67) 787 cited in support of the submission.

On the appellants’ submissions regarding the non-compliance, by the respondents with the order of discovery or inspection of the Tribunal, while the respondents concede to the sanction or consequences of non-compliance as asserted in the appellants’ brief, it is argue in their brief that appellants’ application before the Tribunal did not seek or ask for either of the sanctions or consequences prescribed but rather sought for a judgment in default – i.e. asking for a wrong sanctions or remedy. It is pointed out that the sanctions prescribed by the rules of Court in the event of non-compliance with the court’s order of discovery are either a committal for contempt, or striking out of the respondents’ brief. However, the appellants instead of applying for either of the sanctions prescribed, wrongly applied for judgment to be entered in their favour in default or for the deliberate refusal of the respondents to comply with the order of the Tribunal (on discoveries). It is argued that this is an unknown sanction under the rules of court (even as stated by the appellants themselves in their brief).

Thus it is contended in the respondents’ brief that the application was rightly dismissed by the Census Tribunal (see pages 162 – 164 of the records). It is pointed out that there cannot be judgment in default at that stage after both parties had filed their respective affidavit evidence in the case which was thus ripe for consideration and judgment.

On the above submissions, the respondents’ brief concludes and urges us to hold that both the appellants’ application for judgment in default and their substantive case were heard on merit by the Tribunal and there was no infraction of their right to fair hearing at any stage of the proceedings. It is also pointed out that it can be seen from the records (pages 141 – 147) that the respondents had complied with the order of the Tribunal by providing the appellants with the documents required (or ordered) but the said appellants wanted more. In any event the appellants were able to file their Affidavit Evidence for which they need the documents. It could be a different thing (or story) if the said appellant were unable to file their Affidavit Evidence due to the respondents’ failure to comply with the order of discovery made by the Tribunal. We are urged finally in the respondents’ brief to hold that the appellants have failed to prove a denial of their right to fair hearing by the Trial Census Tribunal and their appeal has therefore failed. It should accordingly be dismissed for being frivolous.

Before resolving the sole issue in this appeal as argued above by or on behalf of both parties, I would like to make a passing remark (by the way) on the propriety or otherwise of pursuing or continuing with this appeal in view of its historical antecedents and the affluxion or expiry of a long period of time (9 years) after the census exercise of 1991 upon which it is based. It appears to me that no useful purpose would be achieved by this appeal because of the period that has expired after the census exercise in 1991.

The figures released by the Commission since that year have been in use since then and presently the government is arranging to make another census exercise. The Census Tribunal that tried and heard the appellants’ case which had only a short lifespan had since wound up after concluding its adhoc assignment. Unfortunately, as it was a swift exercise, there was no Census Appeal Tribunal established by Decree No. 26 of 1992 to cater for appeals against the decision of the Census Tribunals. It appears that this appeal was brought by implication arising from the general saving provisions in section 45(1) of the Schedule to the enabling Decree (supra) where it is provided that the practice and procedure of the Tribunal shall be assimilated as nearly as possible to the practice and procedure in the High Court with necessary modifications to render them applicable. Thus by implication since there is a right of appeal from the decision of the High Court to this Court under section 221 and 222 of the 1979 Constitution, there should be similar right to appeal against the decision of the Tribunal by virtue of the above provision. This is why even the Notice of Appeal (at pages 169 – 171 of the record) is couched in the usual form – Civil form 3 – used for regular appeals from the High Court and not in any special form as none is prescribed by the Decree. In any case the absence of appeal provision in the Decree No. 26 of 1992 indicates that no appeal was anticipated by the legislature against the decision of the Census Tribunal which, as stated in the respondents’ brief, is rather a fact-finding Tribunal established to deal swiftly with the complains or petitions that arose from the figures released by the adhoc National Population Commission otherwise known as Shehu Musa’s Commission aft the Census of 1991. Also if appeals against the decision of the Tribunal were anticipated special provision for an appellate machinery or proceedings would have been made in the enabling Decree (supra) similar to those made in the Election Decree(s). In my view the present appeal which was brought through the regular system of adjudication in our country (which has been prolonged) does not reflect the true intention of the Decree and can at this stage (after 9 years) amount to mere academic or hypothetical exercise which the Courts are normally enjoined avoid- See NNWOCHA VS. GOVERNOR OF ANAMBRA STATE (1984) 1 SCNLR 634, GOVERNOR OF KADUNA STATE VS. DADA (1986) 4 (Pt. 38) 687; EZEANYA VS. OKEKE (1995) 4 NWLR (Pt. 388) 142 and ALLI VS. AKINLOYE (2000) 6 NWLR (Pt. 660) 177 at 213.

It is also to be noted that although there is or presumed to be now an existing National Population Commission in existence established under the Constitution (see the 3rd schedule part I item J of the 1999 Constitution) and the National Population Commission Act, p 270 Laws of the Federation of Nigeria, 1990, it is not clear whether the current Commission has taken over or inherited the erstwhile adhoc commission of 1991 (i.e. Shehu Musa’s Commission). It is also interesting to note that there is a provision in section 29 of the Act (supra) expressly excluding or ousting the jurisdiction of the Courts from enquiring into the validity of any decision, action or order made or given under the Act. Thus, if the appeal herein is brought pursuant to the said Act, it is my view that it has been caught under the purview of the ouster provision and this Court’s jurisdictions to hear it has thereby been ousted. Unfortunately however when this appeal was heard, the learned counsel did not draw our attention on the above provisions on the competence of the appeal.

Neither did they provide us with the Deere No. 26 of 1992 under which the proceedings of the Census Tribunal was conducted in order to show that there a right of appeal granted in the said Decree from the decision of the Census Tribunal. There is also little time now to invite the learned counsel to address us on the issue so raised suo motu by this Court.

Be that as it may, despite the above points, I am of the view that since an appeal has been brought before us through an apparently normal and due process, it is our duty (i.e. the duty of this Court as the Court of Appeal) to consider and determine it on its merits. This is moreso when it is considered that the issue raised in the appeal is bordered on the breach of an important and constitutional principle or rule of fair hearing – which is treated as fundamental to every adjudication. After giving a careful consideration to the submissions in the two briefs on the sole issue for determination in this appeal, I am inclined to accept the submissions in the respondents’ brief on the issue in preference to those of the appellants. I agree fully with the respondent’s argument that the Census Tribunal gave its general order regarding the hearing of the complaint (see page 19 of the record) which both parties agreed with and accepted. None of the parties showed any objection or opposition to the said general orders as to hearing of the complaint by affidavit evidence rather than by oral evidence or submissions. The said order of the Tribunal was also validly made in accordance with section 6 of the Decree (supra). There was no objection on the part of/or on behalf) of either party to the general rules on the hearing of the case made by the Tribunal. They cannot therefore be heard now to co plain against the said rules which they did not object to at the Tribunal.

The law is settled that a party who acquiesced to an irregular procedure during the trial or who did not object to such procedure during the trial cannot be heard on appeal in his complaint against such procedure – see IPINLAYE II V. OLUKOTUN (1996) 6 NWLR (Pt. 453) 748; ICHIE VS. STATE (1996) 9 NWLR (Pt. 470) 83; DANMOLA VS. ADVISER ON LANDS (unrep.) judgment of FSC in appeal no. FSC 41/1958 of 6th June 1958 reported in Digest of Supreme Court cases 1956 – 1984 p. 590 and NOIBI VS. FIKOLATI (1987) 1 NWLR (Pt. 52) 619. I also agree with the respondents’ submissions that the appellants did not object when the Census Tribunal adjourned the case for judgment after the proceedings of 19/5/93. Neither did the said appellants indicate their intention (or applied for leave) to call oral evidence or to address the Court. It is also the law that counsel’s addresses are an integral and important part of a judicial proceedings and their absence can or is capable of vitiating the whole trial – see OBODO VS. OLOMI (1987) 3 NWLR (Pt. 59) 111 at 121 and AMOUGH VS. ZAKI (1998) 3 NWLR (Pt. 542) 483 at 490 and 491 – 492; NDU VS. STATE (1990) 7 NWLR (Pt. 164) 550 at 560; and SALAMI VS. ODOGWU (1991) 2 NWLR (Pt. 173) 291. I am however of the humble view that in the present case which can be distinguished from those cited above, the appellants’ counsel did not seek to address the Tribunal (either orally or in writing) and the said Tribunal did not hear the address of the adverse party while rejecting or refusing to their own address as happened in AMOUGH VS. ZAKI (supra). In the present case no address was heard from either party because of the urgency of the matter and the party’s case in the case did not indicate their desire to address which the Tribunal denied.

In my humble view the situation in the present case is similar to what happened in Ipinlaye’s case (supra at p. 167 of the report) where it was held by the Supreme Court as follows:-

“In general, where a party in a civil proceeding has consented to a procedure at the trial which is neither unconstitutional nor a nullity but merely wrong or irregular and in fact suffers no injustice and no miscarriage of justice is thereby occasioned, it would be too late to complain on appeal that the wrong procedure was adopted simply because he lost the case in the trial court. See AKHIUN VS. THE PRINCIPAL LOTTERIES OFFICER MID-WESTERN STATE & ANOR. (1972) ALL NLR (Pt. 1) 229 at 283; AYANWALE & ORS. VS. ATANDA & ANOR. (1988) 1 NWLR (PT. 68) 22; 1 NSCC 1 at 10-9-10; OKWECHIME VS. PHILIP IGBINADOLOR (1964) NMLR 132.”

In the present case, the above dictum of the Supreme Court aptly applies both in relation to the general order of procedure made by the Trial Census Tribunal and to its final judgment delivered based on only the affidavit evidence on 24/5/93. Both procedures were made by or with the consent of the parties who did not object at the trial court nor indicated their intention to adopt or pursue the regular procedure which would entail the oral hearing or the address of counsel. In any case the appellants cannot complain since no discrimination was committed against them by the Trial Tribunal, which treated both parties alike in the proceedings. It would be a different thing if the Tribunal had heard oral evidence or counsel address on the part of the respondents and refused to hear the appellants in which case it can be accused of breaching the rules or principles of fair hearing. The basic criteria and attributes of fair hearing.

The basic criteria and attributes of fair hearing have been given by the courts and they include the following:-

(a) that the court or tribunal hears both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case;

(b) that the court or tribunal shall give equal treatment, equal opportunity and equal consideration to all concerned; and

(c) that having regard to all the circumstances in every material decision in the case, justice must not only be done but must be manifestly and undoubtedly seen to have been done – UDO AKGHA VS. PAICO LTD. (1993) 4 NWLR (Pt. 288) 434; ADENIYI VS. GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (PT. 300) 426.”

The provision on fair hearing as enriched in section 33(1) of the 1979 Constitution (similar to section 36(1) of the 1999 Constitution) is expressly said to be exercisable or enjoyable by the party within reasonable time.

Accordingly the right to fair hearing does not permit the litigant to remain indolent or to hold the court to ransom by refusing to take necessary or appropriate action at the right time and thereby delay the proceedings – justice delayed is justice denied. Moreover very important element of fair hearing is expressed in the maxim of audi alteram partem (hear the other side). Thus where a party is given an opportunity to be heard but fails to take up the opportunity the Court cannot compel him to do so and will not wait for him indefinitely and such a party who has be n given an opportunity to be heard but failed or refused to utilize the opportunity cannot be heard later to complain that he was denied a fair hearing – see FOLBOD INVESTMENT LTD. VS. ALPHA MERCHANT BANK LTD. (1996) 10 NWLR (PT. 478) 344; SAHIMI V. AKINOLA (1993) 5 NWLR (PT. 294) 434; and EKEREBE VS. EFEIZOMOR (1993) 7 NWLR (PT. 307) 588. In the present case the appellants were given equal opportunity with the respondents to present their respective cases by means of affidavit evidence and both parties have actually filed their affidavit evidence. Also none of the parties requested or applied to be heard orally or to call witnesses. Consequently, the trial Census Tribunal was right to adjourn for judgment which it delivered on 24/5/93. It is pertinent to point out that if after the adjournment for judgment, the appellants had applied to call additional witnesses or to file counsel’s address and such request was unjustifiably refused:- as in Amough’s case, it can then be said that they were denied their right to fair hearing. As they remained adamant and acquiesced until the date of the judgment, they have thereby adopted or conceded to the procedure leading up to the judgment but only went against the judgment by this appeal when it did not favour them.

I have also confirmed that contrary mat is stated in the appellants’ brief, the judgment of the Tribunal did not consist of only one sentence or paragraph but it comprises of four (4) full pages of evaluation, findings and conclusion. I therefore accept the respondents’ argument on the issue and hereby chide the appellants’ counsel in view of his seniority in the profession to refrain making such misrepresentation which is capable of misleading the Court. It is the duty of every counsel as an officer in the temple of justice to always assist the court and guide it in achieving justice in any case in which he appears d advocates before it.

As regards the complaint of the appellants against the refusal of the Tribunal to grant his application for judgment in default (i.e. the dismissal. of the said application), my observation is that the Tribunal was right in doing so because the remedies recommended which are conceded to by the appellants’ counsel himself (as per the rules of High Court of Abuja) are different from what the appellants applied for. The rules provide that where there is a non-compliance with the court’s order of discovery as alleged in the present case, the appropriate sanction applicable is that if the non-complaint was by the plaintiff, he maybe committed for contempt. On the other hand if the non-compliance is on the part of the defendant, his defence can be struck out. In the present case however, the allegation-compliance was by the defendants and so the appropriate application to be brought was for the striking out of their defence. It is only after the order of striking out has been made that the next step can be taken in the proceedings. It is pertinent to state here that the striking out of the defence even if effected does not or will not necessarily entitle the plaintiff (i.e. the appellants in the present case) to judgment. He can still be required to prove his claims or complaints. In any case, the ruling of the Tribunal on the application for judgment of 19/5/93 was an interlocutory decision against which an appeal as of right would lie within 14 days. After the expiry of the statutory period of appeal of 14 days, an appeal against such ruling must be with leave of the Court. In the present case, the appellants did not seek the leave of either the Tribunal or this Court before lodging their appeal against the ruling as per their Notice of Appeal filed on 17/6/93 – almost one month after the ruling – see the Notice of Appeal at pages 169 – 71 of the record.

The case of OTAPO VS. SUNMONU (supra) and other cases cited and relied upon by the appellants in their complaint against the encroachment of their right to fair hearing have no application to the present case. While the principles laid down in those cases are correctly stated in the brief, the facts and circumstances of the present case are very different from those of the cases so cited and relied upon by the appellants. In all those cases as well as those cited above in this judgment, the party or parties complaining against the breach of their right to fair hearing (as per section 33(1) of 1979 constitution) have taken steps in their attempts to be heard and the trial court refused them the opportunity or discriminated against them. The recommended criterion for fair hearing has been laid down to be the objective view of a reasonable person an observer who has witnessed the proceedings from its beginning to end. It is not based on the subjective view of the counsel representing the party – see TUNBI VS. OPAWOLE (2000) 2 NWLR (Pt. 644) 275 at 286-287; KINT VS. STATE (1992) 4 NWLR (Pt. 233) 17 at 37; and JOSIAH VS. STATE (1985) 1 NWLR (Pt. 1) 125 at 140.

In the present case, the Tribunal was fair to the appellants by granting them their application for inspection and discovery in its ruling of 5/4/93. It is also on record as contained in the respondents’ brief and not died by the appellants by way of a reply brief, that the respondents in compliance with the Court’s order made available to the appellants the documents they required but the said appellants wanted more. Thus the notion of the said appellants regarding the documents they required appeared to be speculative of what they perceived the results or figure of the election would be in the statements of results. This is why when they did not find what they thought the documents they required would contain, they requested for re with the hope that they could find the slightest mistake or miscalculation in the figures. Thus if allowed they would continue with their request for more documents until they scrutinize the whole results of the census exercise in their area. In any case, the respondents in their counter-affidavit to the application for default judgment have averred that they had made available to the appellants the documents they requested and the said appellants were busy photostating the said documents for many days until the date given to them by the Tribunal to file their affidavit evidence had expired. The respondents also needed the same documents to prepare their own affidavit evidence. These averments which were not controverted by the appellants by means of a further or better affidavit must be accepted by the Tribunal as it rightly did.

Finally, in view of my above considerations of the sole issue involved in this appeal, the said issue as framed in the appellants’ brief must be answered in the affirmative and resolved against the appellants and I hereby do. With this resolution of the appellants’ sole issue against them, their appeal has collapsed and it is hereby accordingly dismissed as a frivolous appeal. The judgment of the Census Tribunal of 24/5/9 in which the appellants’ complaint was dismissed is hereby affirmed.

I hold that there was no breach of the principle of fair hearing committed against the appellants by the Census Tribunal. I assess the costs of this appeal at N5,000.00 which I hereby award in favour of the respondents and against the appellants.

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Other Citations:(2000)LCN/0850(CA)

Dennis Ede & Anor V. The Federal Republic of Nigeria (2000)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A. 

The two Appellants were convicted on a two count charge by the Miscellaneous Offences Tribunal, Eastern Zone holden at Enugu and sentenced to 10 years imprisonment. The charges against the Appellants were one of conspiracy and another of obtaining money under false pretences contrary to S.8(a) and 1(a) respectively of the Advance Fee Fraud and other Fraud Related Offences Decree No.13 of 1995 and punishable under S.1(3) of the said Decree. Against the said conviction, the Appellants have appealed to this Court.

The brief facts of the case as alleged by the prosecution were that the 2nd Appellant having obtained the telephone number of P.W.1 (Cosmas Iro), the victim of the fraud, telephoned him several times posing that he was phoning from South Africa.

The 2nd Appellant told the P.W.1 that his company wanted precious stone known as granite permude used in the production of jewelry and ornaments. He thereupon directed P.W.1 to see the 1st Appellant whom he described as Engineer Okoye, at the 1st Appellant’s residence at No.12B Akutu Crescent, Independence Layout, Enugu. The 2nd Appellant also provided P.W.1 with 1st Appellant’s telephone number as a dealer in the precious stone. Subsequently, they struck a deal to meet at the Nike Lake Hotel with the 2nd Appellant’s Manager Koffi Mbila. At the Hotel, P.W.1 showed Koffi Mbila two pieces of the so called granite permude which he had earlier bought from the 1st Appellant. Koffi Mbila certified the same as good. Eventually, P.W.1 paid the 1st Appellant in his house at Akutu Crescent, a sum of money said to amount to N450,000 for the worthless granite permude. When it became clear to P.W.1 that the transaction was a fraud, he demanded of 1st Appellant the refund of his money. Initially, 1st Appellant agreed but later started to avoid P.W.1. The matter was thereupon reported to the Police. The Appellants were accordingly arrested and charged to the Tribunal.

The Appellants filed four grounds of appeal from which 1st appellant formulated three issues for determination while the 2nd appellant formulated two issues. The issues formulated by 1st appellant are as follows:

“1. Whether by credible admissible evidence the prosecution proved the offence of (1) (sic) conspiracy and of false pretences with intent to defraud contrary to section 1(3) and section 1(a) of the Advance Fee Fraud and other Related Offences Decree No. 13 of 1995 beyond reasonable doubt?

2. Whether the identity of the 1st Appellant was lawfully established to warrant his conviction?
3. Whether the prosecution discharged the onus on it to dislodge the plea of Alibi of the 1st appellant?”

The issues formulated by the 2nd Appellant are as follows:

“1. Whether the trial Judge was right to hold that visual identification evidence of the prosecution which he believed destroyed the defence of Alibi of the 2nd Appellant when such Alibi was not investigated?.

2. Whether it was right for the trial Judge to hold that the prosecution had proved its case beyond all reasonable doubt when the Alibi of the 2nd Appellant which was set up timeously as evidenced by his extra-judicial statement to the Police Exhibit ‘D7′ in the record was not investigated at all and when prosecution’s case was fraught with doubts?”.

Arguing his issues Nos. 1 and 2 together, learned Senior Counsel for 1st Appellant submits that identity of the 1st Appellant was not established. The 1st Appellant, it is submitted, denied knowing P.W.1 or the 2nd Appellant. There is no credible evidence of any transaction between 1st and 2nd Appellants or with Mr. Koffi Mbila. Counsel says that, there is no evidence that N500,000 was withdrawn from any bank or that the 1st Appellant received any money from any person. He submits that there is doubt in the case of prosecution and refers to Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538; (1987) 7 SCNJ 238.

Arguing his 3rd issue, Counsel submits that 1st Appellant set up an alibi which was not investigated by the Police. The Appellant said that he was at Lagos at the time of the crime but the Police failed to investigate the same -See Onofowokan v. The State (1987) 3 NWLR (Pt.61) 538. Counsel also refers to Michael Hausa v. The State (1994) 6 NWLR (pt.350) 281; (1994) 7-8 SCNJ 1.

Like the 1st Appellant’s Counsel, learned Counsel for 2nd Appellant submits that once an accused person sets up an alibi timeously and gives full particulars of his whereabouts the alibi must be investigated – See Ikemson v. The State (1989) 1 TLR 73; (1989) 3 NWLR (Pt.110) 455. Failure to investigate the alibi so set up raises a doubt as to the guilt of the accused. Counsel refers to Onafowokan v. The State (supra); Onuchukwu v. The State (1998) 4 NWLR (Pt.547) 576; (1998) 58 LRCN 3392.

It is contended that the finding of the lower Court that visual identification of 2nd Appellant neutralised his alibi was in error. Counsel also refers to Njovens v. The State (1973) ANLR 371 and submits that the facts of that case are distinguishable from the facts of this case. See also Eze v. The State (1976) 1 SC 125.

On proof beyond reasonable doubt, Counsel submits that the prosecution did not so prove its case. There is no corresponding duty on the part of the defence to prove its innocence – See Oteli v. The State (1986) ANLR 321; Miller v. Minister of Pensions (1947) 2 All E.R. 372 – 3. Counsel says that no N500,000 was paid to the 2nd Appellant.

The Respondent adopts the Appellants’ issues and submits that as the charge is one of obtaining good/money by false pretences the ingredients of the offence which the prosecution must prove to get conviction are as follows;

i. That the representation made by the accused is false – See Okoro v. Attorney-General of Western Nigeria (1966) NMLR 13.

ii. That the representation operated in the mind of the person from whom the money was obtained – See Oshun v. DPP (1965) NMLR 357.

iii. That the pretence or representation was false to the knowledge of the accused or that the accused did not know the representation as true – See Nwokedi v. Police (1977) 3 SC 49 at 80 – 81.

iv. That the representation was made with intent to defraud – See The State v. Bassey Edet & Anor (1964) 8 ENLR 41; Awobotu v. The State (1976) 5 SC 49 at 80-81.

Counsel submits that all the elements of the offence were present in this case.

On the issue of conspiracy, it is submitted that there was evidence of conspiracy between the 1st and 2nd Appellants and one Mr. Okafor and the fictitious Kofffi Mbila. From the evidence of P.W.1, when 2nd Appellant got him on the phone, it was to the 1st Appellant that he was directed to for the purpose of purchasing the ‘granite permude’. It was the 2nd Appellant that supplied the P.W.1 with 1st Appellant’s address and telephone number. It should also be noted that when the P.W.1 met the 1st Appellant, he readily admitted having granite permude and went ahead to sell the worthless stones to the P.W.1 in furtherance of the conspiracy between himself and the other fraudsters. He even promised to refund P.W.1’s money if the business failed but went back on this promise. It is noteworthy that the 2nd Appellant was seen by the P.W.1 in the house of the 1st Appellant while the unholy transaction was going on. The act of the 2nd Appellant in linking the P.W.1 with the 1st Appellant and the fact that he is a dealer in granite permude as related to the P.W.1 by the 2nd Appellant was evidence of a carefully planned and executed conspiracy between the two appellants and their gang.

As to the identity of the 2nd Appellant, it is submitted that the evidence of P.W.1 was that he dealt with the 2nd Appellant. Both men had several meetings. There can be no question of mistaken identity. As regards the defence of alibi put up by 1st appellant, counsel submits that it is not enough for accused person to say that he was somewhere other than the scene of the crime. He must give the address of the place and the time he was there so as to enable the Police to investigate – refers to Ikemson v. The State (supra); Salami v. The State (1988) 3 NWLR (Pt.85) 670. Furthermore, it is submitted that where there is positive credible evidence fixing the accused at the scene of the crime, the prosecution has no further duty to call other evidence to rebut the purported alibi – See Ibrahim v. The State (1991) 4 NWLR (Pt.186) 413; (1991) 5 SCNJ 129 at 140; Orimoloye v. The State (1984) 10 SC 138. As regards the 2nd Appellant, he said that he was in his village which was about 30 minutes drive from Enugu the scene of the crime. Evidence of the prosecution positively fixed him at the scene of the crime.

In Court, learned Counsel for 1st Appellant adopted his brief and referred to Alabi v. The State (1993) 7 NWLR (Pt.307) 511; (1993) 3 SCNJ 109 at 117 – 123. Counsel for 2nd Appellant and Respondent also adopted their respective briefs.

The two issues for consideration in this appeal are whether the prosecution proved its case beyond reasonable doubts and whether the defence of alibi set up by the Appellants are sustainable?. A proof beyond reasonable doubts means that in law and in fact there is a proof that the Appellants committed the offences with which they were charged. Let me consider the facts first. The facts of this case from the sum total of the evidence led at the hearing present interesting features of highly skilled and well planned fraudulent manipulations. The 2nd Appellant, having obtained the telephone number of P.W.1, the victim of the fraud, phoned him several times posing to be phoning from South Africa. The 2nd Appellant represented to P.W.1 that his company in South Africa wanted to purchase a precious stone or metal known as granite permude used in the manufacture of jewelry and expensive ornaments. The 2nd Appellant directed P.W.1 to the 1st Appellant at his residential address at No. 12B, Akutu Crescent, Independence Layout, Enugu. The 2nd Appellant also provided P.W.1 with the 1st Appellant’s telephone number. The 2nd Appellant introduced the 1st Appellant by telephone to P.W.1 as Engineer Okoye, a dealer in the precious mineral – Granite permude. P.W.1 who was very rightly described by the trial Judge as a “foolish man …who in the quest of getting rich quick was easily tricked into parting with his money. With a little diligence he would have known that the whole deal was fake”. He foolishly rushed to the address at Akutu Crescent, where he met the 1st Appellant. P.W.1 at first, initially purchased two pieces of the alleged precious mineral. Meanwhile, and to complete the fraud, the 2nd Appellant phoned to inform P.W.1 that he had arrived Nigeria with one Koffi Mbilah is Purchasing Manager. The 2nd Appellant asked P.W.1 to meet him and his manger at the Nike Lake Hotel. They eventually met. After examining the two pieces, the P.W.1 had earlier purchased from the 1st Appellant, they (2nd appellant and Mbila) confirmed that they were genuine pieces of the precious granite permude but asked for 250 pieces instead of two. They asked P.W.1 to bring the remaining pieces and be paid in dollars immediately.

Consequently, P.W.1 rushed off, raised N450,000.00 and went back to 1st Appellant and bought more of the so called granite permude. P.W.1 dashed back to the Nike Lake Hotel but payment could not be effected because Koffi Mbila alleged that one Okafor an operator of Bureau De Change locked up his money and had rushed to Lagos to identify his brother who was involved in the Ejigbo air crash. When later P.W.1 rang up the Nike Lake Hotel, he was informed that the 2nd Appellant and Mbila had checked out. P.W.1 smelt a rat and demanded the refund of his money which the 1st Appellant promised to repay. When next P.W.1 got back to 12B, Akutu Crescent, the 1st Appellant was packing out of the premises. A dog was tied at the front gate to scare away visitors. Following a report to the Police, the Police laid a siege at night and arrested the 1st Appellant. The whole fraud burst open. All the telephone calls were made from the 1st Appellant’s house; the 2nd Appellant was never in South Africa. What is more, the alleged precious granite permude was a worthless substance. The 2nd Appellant was eventually arrested.

The scenario presented by the facts of this case is a most sophisticated form of false and fraudulent representation and obtaining money by such representation. It is what is called ‘419’ in the local parlance in this country. The 2nd Appellant who never was in South Africa during the period of this false and fraudulent representation phoned the P.W.1 probably from Enugu and induced him to part with his money to the 1st Appellant who was his colleague in the fraud. The 2nd Appellant falsely represented to P.W.1 that the 1st Appellant has a substance which turned out to be worthless and called ‘granite permude’. The P.W.1 having parted with his money to the 1st Appellant, the 2nd Appellant vermosed into thin air. The 1st Appellant was caught and arrested as he prepared to vermose from his premises at 12B Akutu Crescent. The 1st appellant, acting in concert with the 2nd Appellant represented to P.W.1 that the worthless substance he sold to him was the granite permude which the 2nd Appellant wanted to buy. Thus, all the representations made to P.W.1 by 1st and 2nd appellants were false to the knowledge of both Appellants. That is the first ingredient of the offence of obtaining by false pretences – See Okoro v. A.- G., of Western Nigeria (supra); See also Nwokedi v. Police (supra).

As a result of the false representation which P.W.1 believed to be true, P.W.1 parted with his money. P.W.1 thus acted on the false representation – See Oshun v. DPP (supra). It is obvious from the evidence that the false representations were made with intent to deceive and defraud – See The State v. Bassey Edet (supra), see also Awobotu v. The State (supra). Thus, the ingredients of the offence of obtaining by false pretences were present in this case. There were false representations from the beginning to the end; they were intended to be acted upon; they were acted upon by P.W.1 who parted with his money to his detriment by paying for a worthless material instead of a material for making jewelry.

Another aspect of this case which is worth considering was whether there was conspiracy between the 1st and 2nd Appellants. There is abundant evidence from which conspiracy could be inferred and from which the Tribunal rightly inferred conspiracy. It was the 2nd Appellant who directed P.W.1 to go to 1st Appellant to purchase the material. The 1st Appellant readily agreed that he had the material and sold same to P.W.1. There is evidence that when P.W.1 was seeking to recover his money from 1st appellant he (P.W.1) saw 2nd Appellant hovering in the premises of 1st Appellant at Akutu Crescent. The evidence of P.W.1 at pages 9 -10 of the record is as follows:

“When I reached the house (i.e. 1st appellant’s house), keeper told me that he (1st appellant) had gone out. I waited there up to 3.30 pm. He did not return. I then peeped through the security zone, I then sighted 2nd accused (i.e. 2nd appellant) Patrick Okafor who had earlier on told me that he did not know anywhere in Enugu as he was from South Africa. I rushed to the gate and got him.”

(Brackets and words therein mine for clarity).

Even the wife of the 1st Appellant contributed her own quota in the deceit, for when P.W.1 told her that the 2nd Appellant whom he (P.W.1) saw while peeping across the security gadgets must be looking for her husband, she readily offered a deceitful answer. She said:

“… no, the man must have missed his way”.

There is abundant evidence of conspiracy between the two Appellants. It is my view, as rightly held by the lower Court that the prosecution made out a case on both counts against both Appellants.

I shall now consider the defence of alibi set up by the Appellants. Each of the Appellants set up an alibi. By Exh. DP3 the 2nd Appellant said that he traveled to Lagos.

Apparently, in an additional statement dated the same 17/12/96 as the first one he said that he was with his brother at Lagos at the time the offence was committed at Enugu. It is the law that where an accused person sets up an alibi, the Police should investigate the truth or otherwise of the alibi. However, it is also the law that where there is visual and positive identification of the accused person by a witness whose evidence is believed by the lower Court, the appellate Court should not disturb such a finding. In this case, the P.W.1 saw and interacted with both appellants on several occasions in broad daylight both at No. 12B Akutu Crescent, Independence Layout, Enugu the residence of 1st Appellant and at the Nike Lake Hotel, Enugu. There was no question of mistaken identity. P.W.4 corroborated the evidence of P.W.1. In fact, P.W.1 arrested the 2nd Appellant in front of a supermarket as the man who in concert with the 1st Appellant duped him. The 2nd Appellant admits knowing P.W.1 as per Exh. DP7. Both of them live near each other at New Heaven, Enugu. He denied ever being to South Africa. His alibi was that he was at Nawfia in Anambra State for a funeral. No particulars of the funeral were given. The learned trial Judge of the Tribunal believed P. W.1 that the two Appellants were the persons he (P.W.1) dealt with and who duped him. Such finding should not be interfered with by an appellate Court. In Patrick Ikemson & Ors v. The State (supra) at page 473 the Supreme Court held that where there is direct and positive evidence of participation, the alibi, even if raised, will be rebutted by such evidence – See Odidika v. The State (1977) 2 SC 21; See also Njovens v. The State (1973) 5 SC 17. In Adetola & Ors v. The State (1992) 4 NWLR (Pt.235) 267 at 274 the Supreme Court held that as against the plea of alibi, there is evidence of visual identification by P.W.1 and P.W.3 “which the lower Court believed and which therefore effectively destroyed 1st Appellant’s attempt at pleading an alibi”. See also Madagwa v. The State (1988) 5 NWLR (Pt.92) 60. In Fatai Alani v. The State (1993) 7 NWLR (Pt.303) 112 at 125 I said that:

… there is credible and overwhelming eye witness evidence of the presence of the appellant at the scene of crime and that he shot or participated in shooting the deceased. His feeble defence of alibi cannot stand. See Patrick Ikemson v. The State (1989) 3 NWLR (Pt.110) 455 at 467. In Joseph Okosun & Ors v. Attorney General Bendel State (1985) 3 NWLR (Pt.12) 283 the Supreme Court held that where an accused person raised a defence that his alibi was not investigated, (as is done in this appeal) he can still be convicted if there is strong and credible evidence before the Court which falsified the alibi. See also Yanor & Anor v. The State (1968) NMLR 337. In Abubakar Ibrahim v. The State (supra) the Supreme Court held, per Wali, J.S.C. that:

“There defence of alibi whenever raised, is to show that the Appellant was not at the scene of the crime when it was committed. But where there is positive and credible evidence accepted by the Court and which evidence fixed the Appellant at the scene of crime as a partcipes criminis, the prosecution has no further duty of conducting either an identification parade to identify the appellant or to call any other evidence to rebut any purported alibi put up by the appellant.”

It is therefore not foolproof that once the Police fails to investigate an alibi, the accused person must ipso facto be acquitted. His acquittal or otherwise will depend on the circumstances of each case and whether the trial Court believed the evidence of visual identification of the accused person.

In the case on this appeal, the learned trial Judge of the Tribunal said as follows at page 66 of the record of appeal;

“There has been visual identification of both accused persons by P.W.1 and P.W. 4. Both of them saw the accused persons and indeed transacted with them. They went to 1st accused’s house each on at least two occasions. Both of the witnesses visited 2nd accused at room 313 Nike Lake Hotel, Enugu. They discussed with 2nd accused at the lobby of the hotel and stayed together for hours in room 313. All these occurred between 5/11/96 and 21/11/96. In the event, I find the alibi raised by both accused persons to have been neutralised by visual identification. The alibis have been effectively and completely destroyed. There was therefore no duty on the Police to investigate the alibis and no need for the prosecution to call evidence in rebutting the alibis”.

The learned trial Judge believed the evidence of visual identification by P.W.1 and accordingly acted on it. He was right in so acting. I cannot fault him. In the final analysis this appeal accordingly fails and is hereby dismissed.

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Other Citations: (2000)LCN/0848(CA)

Savannah Bank of Nigeria Ltd. V. Starite Industries Overseas Corporation & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal by the 3rd defendant against the judgment of Ilori J. in suit No.ID/1764/88 sitting at the Ikeja High Court on 28/1/93. The plaintiff also now Cross-appellant supplied to the 1st defendant/respondent several goods made up of water pumps, swimming pool equipment and related products; worth $172,921.85 of the equivalent of N864,609 being the amount due and claimed by the plaintiff with 12% interest per annum from 1st August, 1983 until the total sum is paid.

The plaintiff called and relied on evidence of only one witness. The defendants called no witness and evidence at the trial but after cross-examining the witness for the plaintiff, rested their case on plaintiff’s case and made submissions on point of law.

The learned trial Judge gave judgment for the plaintiff in the sum of N1,729,281.05 with interest at 12% per annum until the date of judgment and thereafter at 6% per annum until the money is paid.

However, even though the Judge found that the 1st defendant received the goods and that both 1st and 2nd defendants acknowledged that $172,921.85 was due, he nevertheless refused to give judgment against them as per the plaintiff’s claim. He also refused to enter judgment in dollars being the money payment of which the 1st, 2nd and 3rd defendants should provide enough local currency.

The Appellant dissatisfied with this judgment has, by a notice of appeal dated 19/2/93 filed one ground and another omnibus ground of appeal in this matter. It has also by permission and order of this court, been allowed to file and argue 3 additional grounds of appeal.

The grounds of appeal are not reproduced. However, the learned Counsel for the Appellant has formulated the following 5 issues for determination as arising from the grounds of appeal filed:

(i) Whether in view of the evidence before the learned Judge the plaintiff/respondent made out a case of negligence of duty against the defendant/appellant?.

(ii) Whether the learned trial Judge correctly directed himself as to the possibility of maintaining an action in tort against the 3rd defendant/Appellant once he accepts that the action in contract could not be maintained, on the same facts and evidence when the plaintiffs claim was in contract?.

(iii) Whether the plaintiff/respondents proved their case and were entitled to judgment?.

(iv) Whether the judgment of the learned trial Judge was not entered in disregard of the provisions of s. 258(i) (as amended) of the Constitution of the Federal Republic of Nigeria, 1979, in that the judgment was given well after the 3 months stipulated by the Constitution from the conclusion of final addresses?.

(v) Whether there was a proper basis for finding that a fiduciary relationship existed between the plaintiff/respondent and the 3rd defendant/appellant?.

However, the plaintiff/cross-appellant adopts issues I, II, III, and V. They however, disagree with issue IV as formulated. Rather the cross-appellant formulated the issue as follows:

“Is the judgment of Hon. Justice S. O. Ilori, given on 28/1/93 after the close of proceedings and addresses by counsel on 1/12/92 covered by section 258(-1) of the 1979 Constitution and S.4 of the Constitution (suspension and modification) Decree No.17 of 1985 and was there a miscarriage of justice as a result of the delay?” On the other hand, the 3 grounds of cross-appeal filed by the cross-appellants are reproduced without the particulars thus:

“1. The learned trial Judge erred in law and misdirected himself when after having found that the defendant/appellant Savannah Bank of Nigeria Limited was liable failed to award a sum of $172,431.85 with interest at 12% from August 1993. In accordance with the principles laid down in Milingos v. George Frank Testiles Limited (1985) 3 All E.R.

2. The learned trial Judge having found that 2nd and 3rd Respondents received the goods for which they promised to pay, executed the promissory notes, paid money which they substantially withdrew erred in law in refusing to attach the final liability to them as person liable in contract.
3. The judgment is against the weight of evidence.

The 2nd and 3rd Respondents adopt the issues for determination of the cross-appellant as already reproduced above.

The 5 issues formulated by the Appellant are apt and appropriate for the determination of this appeal. I would be guided by them.

It would appear that the 3rd defendant/appellant in their brief argued issues, I, II, III and V as formulated together.

It is submitted by the learned counsel for the appellant that though the appellant did not call evidence at the trial the onus was still on the respondents to prove their case. That in view of the evidence before the lower Court the plaintiff failed to make out a case of negligence of duty against the Appellant.

It is further submitted that to find the appellant bank guilty of negligence even where no finding of breach of contract can be made in this case, is wrong in law and it is to ignore entirely the special relationship of banker and customer. That the ‘neighbour’ principle set out in Donoghue v. Stevenson (1932) All E.R. I could not have been invoked in this case as no injury has been done to any of the contracting parties (the bank and its customer) which injury extended to a neighbour within the contemplation of the parties.

On issue No.4, the learned Counsel submitted that the learned trial Judge disregarded the provisions of S.258(1) (as amended) of 1979 Constitution in that he delivered the judgment well after the 3 months stipulated by the Constitution from the conclusion of final addresses.

The plaintiff/respondent adopt issues I and II and argued them together. It is submitted by the learned Counsel for the plaintiff that the evidence of the plaintiff is unchallenged uncontroverted and uncontradicted viva-voce and documentary evidence in the proceedings before the lower court entitled the plaintiff the judgment to be entered in its favour.

It is submitted by the learned Counsel for the plaintiff that the action for the plaintiff is not founded only on privity of contract but negligence and lack of duty of care according to paragraphs 4 and 5 of the amended statement of claim. Reference was made to Enyika v. Shell SP. Pet. Dev. Co. (1997) 10 NWLR (Pt.526) at 638.

On the issue that judgment of the learned trial Judge, was given in complete disregard to section 258(1) of the 1979 Constitution and section 4 of the Constitution (Suspension and Modification) Decree No. 17 of 1985, the learned Counsel has contended that the Appellant gave particulars which are not only misconceived but misleading. That, firstly addresses were not concluded on 22/5/92 but were finally concluded on 1/12/92. Learned Counsel did not concede that the judgment was delivered outside the period limited by law but that even if it was there is justification for it on the ground of illness of the learned trial Judge.

It is the contention of the 2nd and 3rd Respondents in their brief that the Appellant acted as a collector of the plaintiff but failed, refused or neglected to remit the Dollar equivalent to the plaintiff. It is therefore submitted that the learned trial Judge was right in holding that the Appellant was in fact responsible for the payment of the amount due to the Appellant.

However, I will now consider the arguments and submissions of the parties in this order. First and second issues will be taken together; Third and Fifth together while the Fourth issue will be considered singly. I have carefully considered the submissions of the learned Counsel for the Appellant on issues I and II. These are not based both on the facts and law. There is misconception here by the Appellant. The evidence of the plaintiff’s only witness and documents tendered in evidence in the proceedings before the lower court reveal the following:

1. Plaintiff’s action was not founded in contract only. By paragraphs 4 and 5 of the statement of claim, the 3rd defendant was duly appointed by the plaintiff and the 1st and 2nd defendants to look after its interest and collect the monies due under the bills which the plaintiff exported the water pump and related products to the 1st defendant. Paragraph 5 states that the 3rd defendant owes the plaintiff a duty of care.
2. Large sums of money being cost of water pumps and related products sold to the 1st defendant/respondent had been paid to the 3rd defendant/appellant for onward transfer to plaintiff/cross-appellant and the appellant bank failed and/or neglected to transfer the said sum of money.
3. The Appellant did not as a responsible bank make enquiries, but accepted that the plaintiff was paid by a spurious third party called Ituco International Co. Ltd.
4. There is ample evidence of payment to the 3rd defendant/appellant through various telex messages by the 3rd appellant itself to the plaintiff confirming that the money had been paid to the 3rd defendant by the 2nd defendant and that they had sought Central Bank’s approval to remit the money to the plaintiff. Exhibit P.W.1 DD is the documentary evidence confirming that the 3rd defendant was holding to the money meant for the plaintiff pursuant to the Bills of Collection.

These unchallenged, uncontroverted evidence of instruction to the 3rd defendant/appellant is contained at pp.109 and 110 of the records. There is also evidence that in spite of the money; 3rd defendant admitted it was holding in trust for the plaintiff, it never paid over. At page 112 of the records in answer to the question asked by the court to the only witness, he said the 3rd defendant admitted holding some money which they did not pass on to the plaintiff.

It would appear that the argument put forward by the Appellant borders on the narrow 19th century view that action in tort cannot arise from a breach of contract. The learned Counsel misapplied the fact of the instant case when he contended that the trial Judge did not set out the terms of the credit transaction so as to enable him establish that the appellant owed the plaintiff a duty of care. It will be recalled that the original contract of sale was between plaintiff and the 1st defendant. It was the chief executive of the 1st defendant that diverted collection from International Bank for Africa to the 3rd defendant. Then the said 3rd defendant acknowledged this service and responsibility in several telex messages to the plaintiff.

This assumption of responsibility demands for corresponding duty of care to the plaintiff. This kind of relationship is made clear in the case of Abusomwan v. Mercantile Bank of Nigeria Limited (1987) 2 NSCC 879, (1987) 3 NWLR (pt.60) 196 thus:

“the duty imposed here is not because there was a contract but because the defendant had impliedly undertaken not to injure the plaintiff. The obligation towards the contracting part extended to all such persons who were likely to be injured by the act or omissions of the defendant. They are the neighours who ought to be in the contemplation of the defendant”.

The action of the plaintiff in the instant case is not founded only on privity of contract but on negligence and lack of duty of care. What amounts to negligence depends on facts and what amount to duty of care has been recently visited by this court in Markus Enyika v. Shell B.P. Petroleum Dev. & 2 Ors (supra), where it was held that the doctrine of proximity as the foundation of duty of care is firmly established as the basis of an action in negligence. See also N.B.C. Ltd. v. Ngonadi (1985) 1 NWLR (Pt.4) 739; UBA Ltd. v. Achoru (1990) 6 NWLR (Pt.156) at 254 SC and UBN v. Nwokolo (1995) 6 NWLR (Pt.400) 127.

I am of the view that the duty arising from the proximity of the appellant with Exhibit ‘PW1 DD’ and the holding of the money for the plaintiff is so proximate that there is a duty to ensure that the plaintiff is not injured by any acts or conduct of non-performance. 3rd defendant has no reason to ignore payment of money in the bills which it had collected. This is clear breach of duty of care.

The evidence adduced showed that the 3rd defendant, as a collector duly appointed by the 1st defendant, should have taken care, as a banker. But instead, it completely neglected its duty in a move suggesting a lack of care and attention. It should not have taken instructions that someone has already paid the plaintiff, after it had informed the plaintiff that it had its money and was merely waiting for Central Bank approval to remit the said sum.

Sections 17 and 23 of Bills of Exchange Act Cap. 36, Laws of the Federation of Nigeria, 1990 is inapplicable to this case. The suit is not contemplated within and under any of the provision of that act.

The contention of the Appellant that it had only offered to help and had done ‘gratis’ work or being a bailee does not arise. This was not canvassed by the appellant at the lower court and it cannot be so casually raised on appeal.

The next questions raised in issues (III) and (V) respectively are whether the plaintiff/respondent proved their case and therefore were entitled to judgment.

There is also question of whether there was a proper basis for a finding that a fiduciary relationship existed between the plaintiff/respondent and the 3rd defendant/appellant.

As already observed, the evidence before the learned trial Judge entitled the plaintiff in their favour.

When the Appellant was instructed as a Banker to collect money on 60 days sight drafts, it reported it had done so and applied to the Central Bank as per its own admission, to source the foreign exchange for the total sum of $172,921.85. There is no rebuttal of the fact that the drafts were used by the Appellant to source for the foreign exchange, the sum of 864,609.25, Naira equivalent of $172,921.85 provided by the 1st and 2nd defendants.

It is in evidence that the appellant kept the money for five years. In spite of repeated demands and request, the appellant refused to release the money.

When Respondent’s solicitor wrote the reply he received which is Exhibit ‘PW1E’, there is a letter attached to this exhibit from a company based in Northern Blov Bayside, N. York, USA. that the beneficiary has been paid certain sums of money not the $172.921.85; which the plaintiff/respondent had consistently demanded. This letter is important as it completely weakens and whittles down the following submissions of the Appellant:

(a) That it has nothing to do with the plaintiff and does not owe it any duty of care and that it was not therefore negligent.

(b) That it was not appointed as a Bank to collect bills and none passed through it.

(c) That it was not in any way in collusion with the 1st and 2nd defendants because when the plaintiff saw the letter it was confounded and when it made enquiries it was told one late Dr. Udoh, the 1st defendant’s Managing Director and 2nd defendants has something to do with the company.

(e) That it did not conspire with the 1st and 2nd defendants to fraudulently deprive the plaintiff of its $172,921.85 due, for which it had received foreign exchange from the Central Bank of Nigeria.

The Appellant ought to have known at one time or the other that it was wrong to make credit or pay for goods imported into this country except by the due process of the law. That is why in the first place the Appellant applied to the Central Bank with relevant documents. One wonders why the payment in that letter was not to the plaintiff but to a spurious company called Ituco International Company. In any case it still beats one hollow, when the appellant supposedly received the letter on 23/7/85 saying that Ituco and not the plaintiff had been paid by 1st defendant, Zwischenstuck Eng Nig Ltd, as a prudent banker that was holding funds and had earlier communicated this state of affairs to the plaintiff/respondent why did it fail to write to it before returning the money to the 1st defendant, if at all it did so. Neither the appellant nor the 1st and 2nd defendants were willing at the trial to explain the circumstances behind the letter.

It is wrong for a bank to hold money as a Trustee, and without making enquiry and to accept that payment was made to someone else and not the beneficiary. The beneficiary should not be allowed to suffer losses in the amount the bank is holding.

It is not correct for the Appellant to say that the plaintiff did not leave the money in the care of the Appellant. The Appellant had the plaintiff’s money and documents. It was acknowledged in Exhibit PW1 DD that the Appellant was holding the money. The Appellant was appointed by the 1st defendant to receive money and it then applied to the Central Bank to receive foreign exchange for onward transfer to the plaintiff. There is no evidence that the Appellant did not receive the foreign exchange. Indeed, there was contract between the plaintiff and the-appellant for the latter to apply for foreign exchange and to send same to the plaintiff. From this, flowed the duty of care. In the case of Ambusomwan v. Aiwerioba (1996) 4 NWLR (Pt.441) 130 at 133 it was held thus:

“It is trite law that when one holds property beneficially owned by another person, the property remained that of its true owner and the holder is to account for such goods”.

The questions raised in the third and fifth issues for determination have been answered in the affirmative. Evidence of the only plaintiff witness was properly evaluated as to the money deposited with the Appellant. Justice demands that it has to be paid back. This money having not been paid to the plaintiff, they are entitled to it. The Appellant was grossly negligent and because they owe the plaintiff a duty of care as a result of its appointment as a Banker for collection they should be made to pay back.

I do not find it difficult in resolving the issue IV formulated by the Appellant in favour of the Respondent. Section 258(1) of the Constitution of 1979 stipulates that every court shall deliver its decision in writing not more than 3 months after the conclusion of evidence and final addresses. However, the Constitution (Suspension and Modification (Amendment Decree 1985) added a new subsection as follows:

”258(4), The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof”.

Addresses in the instant case were not concluded on 22/5/92 but were finally concluded on 1/12/92. See pages 166 and 167 of the records. At page 167 line 27, counsel for the appellants/3rd defendant, finally urged the court to dismiss the two applications and to give a date for judgment.

Counsel for the Appellant did not at the stage contest that the proceedings had been concluded long time ago. What gave rise to the application was a motion for an amendment of the claim which was filed on 31/1/92. It had been in the Court’s file and was slated for 7/2/92 but due to some inadvertence or because the court did not sit the application was not heard. The said application was opposed by counter -affidavit filed on behalf of the defendant. The second application to arrest judgment was heard on 1/12/92 and it was opposed by counsel for the parties. The learned trial Judge dealt exhaustively with these applications in the judgment delivered. Section 258 of the 1979 Constitution is not a rigid provision.

In Mokwe v. Williams (1997) 11 NWLR (Pt.528) 309 at page 321 this court held that:

”…If at the end of the day, the court gives judgment in the matter without hearing the motion it is not good defence that its attention was not called to the existence of the motion, particularly when a decision on the motion is relevant to the outcome of the judgment”.

The plaintiff would have definitely been denied fair hearing, if when the court discovered that a motion was pending since January, 1992 and it had ignored it and proceeded to judgment.

This is clearly one of the reasons for the delay and it had not occasioned ‘a miscarriage of justice’.

It is also on record that when the addresses were taken on 22/5/92, the learned trial Judge adjourned the case to 10/9/92 for judgment. On that date, the Court did not sit and gave reason why it could not do so. This reason is not attributed to Judge’s mental incapacity but that he was indisposed. It is not shown that the learned trial Judge negligently or flagrantly breached and ignored the provision of section 258(1) of the Constitution.

The learned Counsel for the Appellant has submitted that in the course of judgment the learned trial Judge showed that he had either forgotten the evidence after a long time or had not understood the evidence presented before him. He gave one instance that is at page 176 of the record the Judge stated in his summary of the facts thus:

”The 3rd defendant was the bank appointed by the plaintiff and the defendants to look after the plaintiff’s interest”.

Learned Counsel for the defendant has submitted that this statement is contrary to the evidence of P.W.1 at page 112 and 115 where he assented that the 3rd defendant was the banker of 1st defendant and that the plaintiff had no contract with them. To agree with the interpretation of S.258(1) given by the learned Counsel for the Appellant is to defeat the purpose and the intension of the law makers of that section of the Act.

In any case, paragraph 4 of the amended statement of claim of the Appellant at page 79 of record agrees with summary of facts made by the learned trial Judge at page 176 in his judgment. It is the learned Counsel for the defendant who submitted that this statement is contrary to the evidence of P.W.1.

To my mind, this is not a good instance justifying the Appellant’s assertion that the trial Judge’s indisposition has affected his recollection of the facts in this case, to justify the application of section 258(1) of the 1979 Constitution.

The direct interpretation and purpose of S.258 (1) is the desire to end the then prevalent delay in delivering of judgment in the past particularly in the lower Courts where some Judges were in the habit of reserving their judgment for such long periods as to lose the advantage of having and seeing the witnesses and observing their demeanour, for the purpose of assessing their credibility. See Ifezue v. Mbadugha (1984) 1 SCNLR 427, (1984) All NLR page 256 per Aniagolu, J.S.C. at page 269 and Bello, J.S.C (as he then was) at page 287. See also Awobiyi & Sons v. Igbalaiye Bros (1965) 1 All NLR 163.

The ratio decidendi in those cases have been clearly over-taken by the amendments in Decree No.17 of 1985. The direct position of the law now is not only the consideration of inordinate delay perse, but whether the delay has amounted to a miscarriage of justice.

Subsection 258(1) of the 1979 Constitution and sub-section 4 of Decree 17 1985 should be read together. It has been held by the Supreme Court in Ojokolobo & ors v. Lapade Alamu & Ors (1987) 3 NWLR (pt.61) 377, (1987) SC (pt.1) 124 at 145 that the amendment introduced by the subsection (4) and (5) of Decree No.17 go beyond a mere procedure. His Lordships held, inter alia, per Obaseki, J.S.C. thus:

”The amendments conferred jurisdiction which the courts exercising appellate jurisdiction did not have previously and took away jurisdiction it had previously. It altered the substantive law by giving validity to judgments which would have been declared null and void. It did not validate judgments that are already null and void, I am of the view that delay in delivering the judgment by the lower Court does not occasion a miscarriage of justice. The Appellant has failed to show that by the delay, the learned trial Judge did not remember the facts of this case.

In the result for all that I have said in this judgment, this appeal fails.

I shall now consider the cross-appeal filed by this plaintiff. I have already set out above 3 grounds of the cross-appeal. The 3 issues formulated by the cross-appeal are as follows:

(a) Having granted the amendment to claim the sum of $172,921,85 with interest at 12% per annum from 1st August, 1983; is the plaintiff not entitled to judgment against the defendant for the said sum having regard to the fact that the American dollar was the money of account?

(b) Whether the plaintiff/cross appellant is not entitled to judgment against the 1st and 2nd defendants jointly and severally when the 3rd defendant having regard to the finding of fact that they imported the goods and that the sum of $172,921.85 has not been paid for goods sold and delivered to the 1st and 2nd defendants?.

(c) Is the cost awarded against plaintiff in favour of the 1st and 2nd defendants justifiable in the circumstances?”

In response to the cross-appeal, the 2nd and 3rd Respondents adopted the three issues formulated by the cross-appellants in its brief.

In the fist issue in this cross-appeal, it is the contention of the cross-appellant that the money of account being in dollars, judgment should have been given to the plaintiff cross-appellant in dollars. Reliance was placed on the Supreme Court decision in U.B.N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (pt.421) 585. It is submitted that the cross-appellant sold in dollars and expects to recover its money in dollars. The learned Counsel for the cross-appellant further strengthened his submission on the ground that the acknowledgment by the promissory note Exhibit ‘P.W.1 DDA’ was in dollars; the telex messages in which the 3rd defendant quoted the money exportable to the cross-appellant was quoted in dollars; that all in all the transactions and most part of the judgment was read in dollars. It is therefore finally submitted that the judgment should be corrected to reflect the money of account of $172,921.85, with interest at 12% per annum from August 1983 until payment.

The cross-appellant by its application of 28/1/93, the sum due for payment both in the writ and statement of claim whereas its writ of summons filed is endorsed for the sum of N1,729,289,50, the equivalent of $I72,921.85. The same amount is claimed in the second amended statement of claim filed by the cross-appellant. (Refer page 144 of the record of proceedings).

It is trite law that a statement of claim always supersedes the writ of summons. Hence, if a relief is claimed in the writ of summons but not in the statement of claim, it shall be deemed to have been abandoned. However, a relief endorsed in the statement of claim which is not in the writ subsists. See Eze v. George (1993) 2 NWLR (Pt.273) 86; Teller v. Akere (1958) WNLR 26.

It is the cross-appellant’s claim as presented before the court that should be considered by the court. The decision of the Supreme Court in U.B.N. Ltd. v. Odusote Bookstores Ltd (supra) in the lead judgment of Hon. Justice Wali, J.S.C., it is stated thus:

“I may only need to emphasize that in transactions involving foreign currency, where the unit of the account is foreign currency, the debtor must provide enough local currency equivalent to the currency of account whenever the debt is being settled”.

Courts should frown on claim based on foreign currency not expressed in our local currency. The cross-appellant rightly provided N1,729,281.5 as equivalent of $172,921.85 which accords with the decision in Odusote’s case (supra)

The learned trial Judge was right in considering and choosing the Naira equivalent. For since the rules of court prescribe that a statement of claim should state specifically the relief which the plaintiff claims, it must be taken that it automatically alters, modifies or extends the writ without necessity of a formal order of amendment of the writ, see Eze v. George (supra); Fadahunsi v. The Shell Co. of Nig. Ltd. (1969) NMLR 304; Lahan v. Lajoyetan (1972) 1 All NLR (pt.2) 217.

The specific claim on the amended statement of claim is for the sum of N1,729,281.50 or $172,921.85. This has subsequently altered or modified the endorsement as the writ of summons.

The correct definition of the word ‘or’ in the con of the endorsement by the cross-appellant in its statement of claim is necessary. In Lexicon Webster Dictionary Vol.1 Encyclopedia Edition 1977, the word ‘or’ is defined to mean a particle used to connect words, phrases, or clauses representing alternatives; as this road or that; one used to connect alternative or equivalent terms. Webster Comprehensive Dictionary (International Edition) defines ‘or’ as introducing an alternative; as ‘stop or go’, ‘red or white’; introducing an equivalent, the second alternative of a choice limited to two (Italics mine).

In law, it is trite that the word ‘or’ is prima facie and in the absence of some restraining con, to be read as disjunctive. See Green v. Premier Glynrhonwy State Co. Ltd. (1928) 1 K.B 561 CA. Lamgham v. Peterson (1903) 19 T.L.R. 157.

In Frank Mukoro-Mowoe v. The State (1973) 1 All NLR (pt.1) 296 at 312, the Supreme Court construed the word ‘or’ as disjunctive while considering the word ‘or’ in section 443 of the Criminal Code, Cap.28 of the Laws of Western State of Nigeria. In this respect, the phrase the sum of N1,729,287.50 or $172,921.85 is to be read disjunctively. I am of the firm view that the pronouncement of the learned trial Judge in his judgment, to reflect N1,729,281.50 claimed in alternative as at 18/1/93 is a good decision and I so hold.

Issue 2 deals with whether the cross-appellant is entitled to judgment against the 1st and 2nd defendants jointly and severally with the 3rd defendant having regard to the finding of fact.

The vital and decisive findings of the trial Court were based on the plaintiff/cross-appellant’s only witness in the case. The learned trial Judge’s findings are as follows:

“…The plaintiff’s only witness gave evidence soberly and impressed me as a gentleman who will not sacrifice the truth for the benefit of his case. His evidence is amply supported by documentary evidence. I accept his evidence and make findings of fact in accordance with it”.

It is trite law that ascription of probative values to evidence is a matter primarily for the Court of trial. Where a trial Court unquestionably evaluates the evidence and appraises the facts, it is no business of the Court of Appeal to substitute its own views of undisputed facts with the views of the trial Courts See Balogun v. Agboola (1974) 1 All NLR (Pt.2) 66; Laguro v. Toku (1986) 4 NWLR (Pt.33) 90.

This Court will only interfere with findings of fact where it is satisfied on the evidence before it that the findings are wrong and could not ordinarily have been based on the evidence. I do not see anything in the findings of the trial Judge that could invite this court to interfere with such findings.

The findings of the trial Court is that ‘the 3rd defendant admitted in writing that payments were made to it. It also presented to the plaintiff that it was pursuing foreign exchange allocation for remittance of the money’.

The learned trial Judge also held that a fiduciary relationship was clearly established between the plaintiff and the 3rd defendant whereby the plaintiff was the beneficiary of the money paid to the 3rd defendant by the 1st defendant.

The learned trial Judge also held at page 186 of the record that as between the plaintiff and the 3rd defendant there is no denial that money was deposited by the 1st defendant with the 3rd defendant for the benefit of the plaintiff. It is further held thus:

”I find as a fact that the 3rd defendant without exercise of the care and caution expected of a prudent Bank and a responsible trustee of the funds accepted without question the pretence that the plaintiff was paid by a spurious third party”.

I do not think that such factors that could make me interfere with the above stated findings by the lower Court are present. This Court should not easily disturb the findings of fact of a trial Judge who had the singular privilege and opportunity of listening to the witnesses and watching their demeanour even though such findings of fact or the inference drawn from them may be questioned in certain circumstances. See Faloyinbo & Ors v. Williams (1956) SCNLR 274, (1956) 1 FSC.87.

I am of the view that the evidence before the lower Court was properly evaluated as such the trial Judge was right in holding that the respondents have no liability.

Issue 3 in the cross-appeal is the question of whether the costs awarded against the plaintiff in favour of the 1st and 2nd defendants was justifiable in the circumstance.

The learned trial Judge having dismissed the claim against the 1st and 2nd defendants awarded N2,000.00 costs against the plaintiff.

The cross-appellant’s counsel in the brief has submitted that the award of this cost is unjustifiable.

If the plaintiff fails to institute an action against the proper party or parties as a result of which the party is wrongly joined, no liability can be ascribable, then such a party is deemed wrongly joined and not liable consequently, the party is entitled to compensation by way of costs.

In the instant case, the award of costs by the learned trial Judge against the cross-appellant in favour of the 1st and 2nd defendants was well founded in law. This is so considering the averment of the cross-appellant in its statement of claim, paragraph 4 which states as follows:

The 3rd defendant was at all times material to this action the company/Bank appointed by the plaintiff and the 2nd and 3rd defendants to look after its interest and collect the monies due under the bills which the plaintiffs exported the water pump and related products the 1st defendant”.

The cross-appellant’s only witness confirmed this during the trial. The trial Judge found in favour of the 1st and 2nd defendants and exonerated them on the strength of the uncontroverted and unchallenged evidence. To do otherwise will amount to double compensation in favour of the cross-appellant since the appellant has been found liable in negligence to cross-appellant.

In the result, the appeal against the judgment of the lower Court fails and it is dismissed. So also is the cross-appeal which is completely devoid of any merit. I also have no hesitation whatsoever in dismissing it.

However, having regard to the appeal and the cross-appeal, I do not find it appropriate to make any order as to costs.

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Other Citations: (2000)LCN/0846(CA)

Savannah Bank of Nigeria Ltd. V. Starite Industries Overseas Corporation & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal by the 3rd defendant against the judgment of Ilori J. in suit No.ID/1764/88 sitting at the Ikeja High Court on 28/1/93. The plaintiff also now Cross-appellant supplied to the 1st defendant/respondent several goods made up of water pumps, swimming pool equipment and related products; worth $172,921.85 of the equivalent of N864,609 being the amount due and claimed by the plaintiff with 12% interest per annum from 1st August, 1983 until the total sum is paid.

The plaintiff called and relied on evidence of only one witness. The defendants called no witness and evidence at the trial but after cross-examining the witness for the plaintiff, rested their case on plaintiff’s case and made submissions on point of law.

The learned trial Judge gave judgment for the plaintiff in the sum of N1,729,281.05 with interest at 12% per annum until the date of judgment and thereafter at 6% per annum until the money is paid.

However, even though the Judge found that the 1st defendant received the goods and that both 1st and 2nd defendants acknowledged that $172,921.85 was due, he nevertheless refused to give judgment against them as per the plaintiff’s claim. He also refused to enter judgment in dollars being the money payment of which the 1st, 2nd and 3rd defendants should provide enough local currency.

The Appellant dissatisfied with this judgment has, by a notice of appeal dated 19/2/93 filed one ground and another omnibus ground of appeal in this matter. It has also by permission and order of this court, been allowed to file and argue 3 additional grounds of appeal.

The grounds of appeal are not reproduced. However, the learned Counsel for the Appellant has formulated the following 5 issues for determination as arising from the grounds of appeal filed:

(i) Whether in view of the evidence before the learned Judge the plaintiff/respondent made out a case of negligence of duty against the defendant/appellant?.

(ii) Whether the learned trial Judge correctly directed himself as to the possibility of maintaining an action in tort against the 3rd defendant/Appellant once he accepts that the action in contract could not be maintained, on the same facts and evidence when the plaintiffs claim was in contract?.

(iii) Whether the plaintiff/respondents proved their case and were entitled to judgment?.

(iv) Whether the judgment of the learned trial Judge was not entered in disregard of the provisions of s. 258(i) (as amended) of the Constitution of the Federal Republic of Nigeria, 1979, in that the judgment was given well after the 3 months stipulated by the Constitution from the conclusion of final addresses?.

(v) Whether there was a proper basis for finding that a fiduciary relationship existed between the plaintiff/respondent and the 3rd defendant/appellant?.

However, the plaintiff/cross-appellant adopts issues I, II, III, and V. They however, disagree with issue IV as formulated. Rather the cross-appellant formulated the issue as follows:

“Is the judgment of Hon. Justice S. O. Ilori, given on 28/1/93 after the close of proceedings and addresses by counsel on 1/12/92 covered by section 258(-1) of the 1979 Constitution and S.4 of the Constitution (suspension and modification) Decree No.17 of 1985 and was there a miscarriage of justice as a result of the delay?” On the other hand, the 3 grounds of cross-appeal filed by the cross-appellants are reproduced without the particulars thus:

“1. The learned trial Judge erred in law and misdirected himself when after having found that the defendant/appellant Savannah Bank of Nigeria Limited was liable failed to award a sum of $172,431.85 with interest at 12% from August 1993. In accordance with the principles laid down in Milingos v. George Frank Testiles Limited (1985) 3 All E.R.

2. The learned trial Judge having found that 2nd and 3rd Respondents received the goods for which they promised to pay, executed the promissory notes, paid money which they substantially withdrew erred in law in refusing to attach the final liability to them as person liable in contract.
3. The judgment is against the weight of evidence.

The 2nd and 3rd Respondents adopt the issues for determination of the cross-appellant as already reproduced above.

The 5 issues formulated by the Appellant are apt and appropriate for the determination of this appeal. I would be guided by them.

It would appear that the 3rd defendant/appellant in their brief argued issues, I, II, III and V as formulated together.

It is submitted by the learned counsel for the appellant that though the appellant did not call evidence at the trial the onus was still on the respondents to prove their case. That in view of the evidence before the lower Court the plaintiff failed to make out a case of negligence of duty against the Appellant.

It is further submitted that to find the appellant bank guilty of negligence even where no finding of breach of contract can be made in this case, is wrong in law and it is to ignore entirely the special relationship of banker and customer. That the ‘neighbour’ principle set out in Donoghue v. Stevenson (1932) All E.R. I could not have been invoked in this case as no injury has been done to any of the contracting parties (the bank and its customer) which injury extended to a neighbour within the contemplation of the parties.

On issue No.4, the learned Counsel submitted that the learned trial Judge disregarded the provisions of S.258(1) (as amended) of 1979 Constitution in that he delivered the judgment well after the 3 months stipulated by the Constitution from the conclusion of final addresses.

The plaintiff/respondent adopt issues I and II and argued them together. It is submitted by the learned Counsel for the plaintiff that the evidence of the plaintiff is unchallenged uncontroverted and uncontradicted viva-voce and documentary evidence in the proceedings before the lower court entitled the plaintiff the judgment to be entered in its favour.

It is submitted by the learned Counsel for the plaintiff that the action for the plaintiff is not founded only on privity of contract but negligence and lack of duty of care according to paragraphs 4 and 5 of the amended statement of claim. Reference was made to Enyika v. Shell SP. Pet. Dev. Co. (1997) 10 NWLR (Pt.526) at 638.

On the issue that judgment of the learned trial Judge, was given in complete disregard to section 258(1) of the 1979 Constitution and section 4 of the Constitution (Suspension and Modification) Decree No. 17 of 1985, the learned Counsel has contended that the Appellant gave particulars which are not only misconceived but misleading. That, firstly addresses were not concluded on 22/5/92 but were finally concluded on 1/12/92. Learned Counsel did not concede that the judgment was delivered outside the period limited by law but that even if it was there is justification for it on the ground of illness of the learned trial Judge.

It is the contention of the 2nd and 3rd Respondents in their brief that the Appellant acted as a collector of the plaintiff but failed, refused or neglected to remit the Dollar equivalent to the plaintiff. It is therefore submitted that the learned trial Judge was right in holding that the Appellant was in fact responsible for the payment of the amount due to the Appellant.

However, I will now consider the arguments and submissions of the parties in this order. First and second issues will be taken together; Third and Fifth together while the Fourth issue will be considered singly. I have carefully considered the submissions of the learned Counsel for the Appellant on issues I and II. These are not based both on the facts and law. There is misconception here by the Appellant. The evidence of the plaintiff’s only witness and documents tendered in evidence in the proceedings before the lower court reveal the following:

1. Plaintiff’s action was not founded in contract only. By paragraphs 4 and 5 of the statement of claim, the 3rd defendant was duly appointed by the plaintiff and the 1st and 2nd defendants to look after its interest and collect the monies due under the bills which the plaintiff exported the water pump and related products to the 1st defendant. Paragraph 5 states that the 3rd defendant owes the plaintiff a duty of care.
2. Large sums of money being cost of water pumps and related products sold to the 1st defendant/respondent had been paid to the 3rd defendant/appellant for onward transfer to plaintiff/cross-appellant and the appellant bank failed and/or neglected to transfer the said sum of money.
3. The Appellant did not as a responsible bank make enquiries, but accepted that the plaintiff was paid by a spurious third party called Ituco International Co. Ltd.
4. There is ample evidence of payment to the 3rd defendant/appellant through various telex messages by the 3rd appellant itself to the plaintiff confirming that the money had been paid to the 3rd defendant by the 2nd defendant and that they had sought Central Bank’s approval to remit the money to the plaintiff. Exhibit P.W.1 DD is the documentary evidence confirming that the 3rd defendant was holding to the money meant for the plaintiff pursuant to the Bills of Collection.

These unchallenged, uncontroverted evidence of instruction to the 3rd defendant/appellant is contained at pp.109 and 110 of the records. There is also evidence that in spite of the money; 3rd defendant admitted it was holding in trust for the plaintiff, it never paid over. At page 112 of the records in answer to the question asked by the court to the only witness, he said the 3rd defendant admitted holding some money which they did not pass on to the plaintiff.

It would appear that the argument put forward by the Appellant borders on the narrow 19th century view that action in tort cannot arise from a breach of contract. The learned Counsel misapplied the fact of the instant case when he contended that the trial Judge did not set out the terms of the credit transaction so as to enable him establish that the appellant owed the plaintiff a duty of care. It will be recalled that the original contract of sale was between plaintiff and the 1st defendant. It was the chief executive of the 1st defendant that diverted collection from International Bank for Africa to the 3rd defendant. Then the said 3rd defendant acknowledged this service and responsibility in several telex messages to the plaintiff.

This assumption of responsibility demands for corresponding duty of care to the plaintiff. This kind of relationship is made clear in the case of Abusomwan v. Mercantile Bank of Nigeria Limited (1987) 2 NSCC 879, (1987) 3 NWLR (pt.60) 196 thus:

“the duty imposed here is not because there was a contract but because the defendant had impliedly undertaken not to injure the plaintiff. The obligation towards the contracting part extended to all such persons who were likely to be injured by the act or omissions of the defendant. They are the neighours who ought to be in the contemplation of the defendant”.

The action of the plaintiff in the instant case is not founded only on privity of contract but on negligence and lack of duty of care. What amounts to negligence depends on facts and what amount to duty of care has been recently visited by this court in Markus Enyika v. Shell B.P. Petroleum Dev. & 2 Ors (supra), where it was held that the doctrine of proximity as the foundation of duty of care is firmly established as the basis of an action in negligence. See also N.B.C. Ltd. v. Ngonadi (1985) 1 NWLR (Pt.4) 739; UBA Ltd. v. Achoru (1990) 6 NWLR (Pt.156) at 254 SC and UBN v. Nwokolo (1995) 6 NWLR (Pt.400) 127.

I am of the view that the duty arising from the proximity of the appellant with Exhibit ‘PW1 DD’ and the holding of the money for the plaintiff is so proximate that there is a duty to ensure that the plaintiff is not injured by any acts or conduct of non-performance. 3rd defendant has no reason to ignore payment of money in the bills which it had collected. This is clear breach of duty of care.

The evidence adduced showed that the 3rd defendant, as a collector duly appointed by the 1st defendant, should have taken care, as a banker. But instead, it completely neglected its duty in a move suggesting a lack of care and attention. It should not have taken instructions that someone has already paid the plaintiff, after it had informed the plaintiff that it had its money and was merely waiting for Central Bank approval to remit the said sum.

Sections 17 and 23 of Bills of Exchange Act Cap. 36, Laws of the Federation of Nigeria, 1990 is inapplicable to this case. The suit is not contemplated within and under any of the provision of that act.

The contention of the Appellant that it had only offered to help and had done ‘gratis’ work or being a bailee does not arise. This was not canvassed by the appellant at the lower court and it cannot be so casually raised on appeal.

The next questions raised in issues (III) and (V) respectively are whether the plaintiff/respondent proved their case and therefore were entitled to judgment.

There is also question of whether there was a proper basis for a finding that a fiduciary relationship existed between the plaintiff/respondent and the 3rd defendant/appellant.

As already observed, the evidence before the learned trial Judge entitled the plaintiff in their favour.

When the Appellant was instructed as a Banker to collect money on 60 days sight drafts, it reported it had done so and applied to the Central Bank as per its own admission, to source the foreign exchange for the total sum of $172,921.85. There is no rebuttal of the fact that the drafts were used by the Appellant to source for the foreign exchange, the sum of 864,609.25, Naira equivalent of $172,921.85 provided by the 1st and 2nd defendants.

It is in evidence that the appellant kept the money for five years. In spite of repeated demands and request, the appellant refused to release the money.

When Respondent’s solicitor wrote the reply he received which is Exhibit ‘PW1E’, there is a letter attached to this exhibit from a company based in Northern Blov Bayside, N. York, USA. that the beneficiary has been paid certain sums of money not the $172.921.85; which the plaintiff/respondent had consistently demanded. This letter is important as it completely weakens and whittles down the following submissions of the Appellant:

(a) That it has nothing to do with the plaintiff and does not owe it any duty of care and that it was not therefore negligent.

(b) That it was not appointed as a Bank to collect bills and none passed through it.

(c) That it was not in any way in collusion with the 1st and 2nd defendants because when the plaintiff saw the letter it was confounded and when it made enquiries it was told one late Dr. Udoh, the 1st defendant’s Managing Director and 2nd defendants has something to do with the company.

(e) That it did not conspire with the 1st and 2nd defendants to fraudulently deprive the plaintiff of its $172,921.85 due, for which it had received foreign exchange from the Central Bank of Nigeria.

The Appellant ought to have known at one time or the other that it was wrong to make credit or pay for goods imported into this country except by the due process of the law. That is why in the first place the Appellant applied to the Central Bank with relevant documents. One wonders why the payment in that letter was not to the plaintiff but to a spurious company called Ituco International Company. In any case it still beats one hollow, when the appellant supposedly received the letter on 23/7/85 saying that Ituco and not the plaintiff had been paid by 1st defendant, Zwischenstuck Eng Nig Ltd, as a prudent banker that was holding funds and had earlier communicated this state of affairs to the plaintiff/respondent why did it fail to write to it before returning the money to the 1st defendant, if at all it did so. Neither the appellant nor the 1st and 2nd defendants were willing at the trial to explain the circumstances behind the letter.

It is wrong for a bank to hold money as a Trustee, and without making enquiry and to accept that payment was made to someone else and not the beneficiary. The beneficiary should not be allowed to suffer losses in the amount the bank is holding.

It is not correct for the Appellant to say that the plaintiff did not leave the money in the care of the Appellant. The Appellant had the plaintiff’s money and documents. It was acknowledged in Exhibit PW1 DD that the Appellant was holding the money. The Appellant was appointed by the 1st defendant to receive money and it then applied to the Central Bank to receive foreign exchange for onward transfer to the plaintiff. There is no evidence that the Appellant did not receive the foreign exchange. Indeed, there was contract between the plaintiff and the-appellant for the latter to apply for foreign exchange and to send same to the plaintiff. From this, flowed the duty of care. In the case of Ambusomwan v. Aiwerioba (1996) 4 NWLR (Pt.441) 130 at 133 it was held thus:

“It is trite law that when one holds property beneficially owned by another person, the property remained that of its true owner and the holder is to account for such goods”.

The questions raised in the third and fifth issues for determination have been answered in the affirmative. Evidence of the only plaintiff witness was properly evaluated as to the money deposited with the Appellant. Justice demands that it has to be paid back. This money having not been paid to the plaintiff, they are entitled to it. The Appellant was grossly negligent and because they owe the plaintiff a duty of care as a result of its appointment as a Banker for collection they should be made to pay back.

I do not find it difficult in resolving the issue IV formulated by the Appellant in favour of the Respondent. Section 258(1) of the Constitution of 1979 stipulates that every court shall deliver its decision in writing not more than 3 months after the conclusion of evidence and final addresses. However, the Constitution (Suspension and Modification (Amendment Decree 1985) added a new subsection as follows:

”258(4), The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof”.

Addresses in the instant case were not concluded on 22/5/92 but were finally concluded on 1/12/92. See pages 166 and 167 of the records. At page 167 line 27, counsel for the appellants/3rd defendant, finally urged the court to dismiss the two applications and to give a date for judgment.

Counsel for the Appellant did not at the stage contest that the proceedings had been concluded long time ago. What gave rise to the application was a motion for an amendment of the claim which was filed on 31/1/92. It had been in the Court’s file and was slated for 7/2/92 but due to some inadvertence or because the court did not sit the application was not heard. The said application was opposed by counter -affidavit filed on behalf of the defendant. The second application to arrest judgment was heard on 1/12/92 and it was opposed by counsel for the parties. The learned trial Judge dealt exhaustively with these applications in the judgment delivered. Section 258 of the 1979 Constitution is not a rigid provision.

In Mokwe v. Williams (1997) 11 NWLR (Pt.528) 309 at page 321 this court held that:

”…If at the end of the day, the court gives judgment in the matter without hearing the motion it is not good defence that its attention was not called to the existence of the motion, particularly when a decision on the motion is relevant to the outcome of the judgment”.

The plaintiff would have definitely been denied fair hearing, if when the court discovered that a motion was pending since January, 1992 and it had ignored it and proceeded to judgment.

This is clearly one of the reasons for the delay and it had not occasioned ‘a miscarriage of justice’.

It is also on record that when the addresses were taken on 22/5/92, the learned trial Judge adjourned the case to 10/9/92 for judgment. On that date, the Court did not sit and gave reason why it could not do so. This reason is not attributed to Judge’s mental incapacity but that he was indisposed. It is not shown that the learned trial Judge negligently or flagrantly breached and ignored the provision of section 258(1) of the Constitution.

The learned Counsel for the Appellant has submitted that in the course of judgment the learned trial Judge showed that he had either forgotten the evidence after a long time or had not understood the evidence presented before him. He gave one instance that is at page 176 of the record the Judge stated in his summary of the facts thus:

”The 3rd defendant was the bank appointed by the plaintiff and the defendants to look after the plaintiff’s interest”.

Learned Counsel for the defendant has submitted that this statement is contrary to the evidence of P.W.1 at page 112 and 115 where he assented that the 3rd defendant was the banker of 1st defendant and that the plaintiff had no contract with them. To agree with the interpretation of S.258(1) given by the learned Counsel for the Appellant is to defeat the purpose and the intension of the law makers of that section of the Act.

In any case, paragraph 4 of the amended statement of claim of the Appellant at page 79 of record agrees with summary of facts made by the learned trial Judge at page 176 in his judgment. It is the learned Counsel for the defendant who submitted that this statement is contrary to the evidence of P.W.1.

To my mind, this is not a good instance justifying the Appellant’s assertion that the trial Judge’s indisposition has affected his recollection of the facts in this case, to justify the application of section 258(1) of the 1979 Constitution.

The direct interpretation and purpose of S.258 (1) is the desire to end the then prevalent delay in delivering of judgment in the past particularly in the lower Courts where some Judges were in the habit of reserving their judgment for such long periods as to lose the advantage of having and seeing the witnesses and observing their demeanour, for the purpose of assessing their credibility. See Ifezue v. Mbadugha (1984) 1 SCNLR 427, (1984) All NLR page 256 per Aniagolu, J.S.C. at page 269 and Bello, J.S.C (as he then was) at page 287. See also Awobiyi & Sons v. Igbalaiye Bros (1965) 1 All NLR 163.

The ratio decidendi in those cases have been clearly over-taken by the amendments in Decree No.17 of 1985. The direct position of the law now is not only the consideration of inordinate delay perse, but whether the delay has amounted to a miscarriage of justice.

Subsection 258(1) of the 1979 Constitution and sub-section 4 of Decree 17 1985 should be read together. It has been held by the Supreme Court in Ojokolobo & ors v. Lapade Alamu & Ors (1987) 3 NWLR (pt.61) 377, (1987) SC (pt.1) 124 at 145 that the amendment introduced by the subsection (4) and (5) of Decree No.17 go beyond a mere procedure. His Lordships held, inter alia, per Obaseki, J.S.C. thus:

”The amendments conferred jurisdiction which the courts exercising appellate jurisdiction did not have previously and took away jurisdiction it had previously. It altered the substantive law by giving validity to judgments which would have been declared null and void. It did not validate judgments that are already null and void, I am of the view that delay in delivering the judgment by the lower Court does not occasion a miscarriage of justice. The Appellant has failed to show that by the delay, the learned trial Judge did not remember the facts of this case.

In the result for all that I have said in this judgment, this appeal fails.

I shall now consider the cross-appeal filed by this plaintiff. I have already set out above 3 grounds of the cross-appeal. The 3 issues formulated by the cross-appeal are as follows:

(a) Having granted the amendment to claim the sum of $172,921,85 with interest at 12% per annum from 1st August, 1983; is the plaintiff not entitled to judgment against the defendant for the said sum having regard to the fact that the American dollar was the money of account?

(b) Whether the plaintiff/cross appellant is not entitled to judgment against the 1st and 2nd defendants jointly and severally when the 3rd defendant having regard to the finding of fact that they imported the goods and that the sum of $172,921.85 has not been paid for goods sold and delivered to the 1st and 2nd defendants?.

(c) Is the cost awarded against plaintiff in favour of the 1st and 2nd defendants justifiable in the circumstances?”

In response to the cross-appeal, the 2nd and 3rd Respondents adopted the three issues formulated by the cross-appellants in its brief.

In the fist issue in this cross-appeal, it is the contention of the cross-appellant that the money of account being in dollars, judgment should have been given to the plaintiff cross-appellant in dollars. Reliance was placed on the Supreme Court decision in U.B.N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (pt.421) 585. It is submitted that the cross-appellant sold in dollars and expects to recover its money in dollars. The learned Counsel for the cross-appellant further strengthened his submission on the ground that the acknowledgment by the promissory note Exhibit ‘P.W.1 DDA’ was in dollars; the telex messages in which the 3rd defendant quoted the money exportable to the cross-appellant was quoted in dollars; that all in all the transactions and most part of the judgment was read in dollars. It is therefore finally submitted that the judgment should be corrected to reflect the money of account of $172,921.85, with interest at 12% per annum from August 1983 until payment.

The cross-appellant by its application of 28/1/93, the sum due for payment both in the writ and statement of claim whereas its writ of summons filed is endorsed for the sum of N1,729,289,50, the equivalent of $I72,921.85. The same amount is claimed in the second amended statement of claim filed by the cross-appellant. (Refer page 144 of the record of proceedings).

It is trite law that a statement of claim always supersedes the writ of summons. Hence, if a relief is claimed in the writ of summons but not in the statement of claim, it shall be deemed to have been abandoned. However, a relief endorsed in the statement of claim which is not in the writ subsists. See Eze v. George (1993) 2 NWLR (Pt.273) 86; Teller v. Akere (1958) WNLR 26.

It is the cross-appellant’s claim as presented before the court that should be considered by the court. The decision of the Supreme Court in U.B.N. Ltd. v. Odusote Bookstores Ltd (supra) in the lead judgment of Hon. Justice Wali, J.S.C., it is stated thus:

“I may only need to emphasize that in transactions involving foreign currency, where the unit of the account is foreign currency, the debtor must provide enough local currency equivalent to the currency of account whenever the debt is being settled”.

Courts should frown on claim based on foreign currency not expressed in our local currency. The cross-appellant rightly provided N1,729,281.5 as equivalent of $172,921.85 which accords with the decision in Odusote’s case (supra)

The learned trial Judge was right in considering and choosing the Naira equivalent. For since the rules of court prescribe that a statement of claim should state specifically the relief which the plaintiff claims, it must be taken that it automatically alters, modifies or extends the writ without necessity of a formal order of amendment of the writ, see Eze v. George (supra); Fadahunsi v. The Shell Co. of Nig. Ltd. (1969) NMLR 304; Lahan v. Lajoyetan (1972) 1 All NLR (pt.2) 217.

The specific claim on the amended statement of claim is for the sum of N1,729,281.50 or $172,921.85. This has subsequently altered or modified the endorsement as the writ of summons.

The correct definition of the word ‘or’ in the con of the endorsement by the cross-appellant in its statement of claim is necessary. In Lexicon Webster Dictionary Vol.1 Encyclopedia Edition 1977, the word ‘or’ is defined to mean a particle used to connect words, phrases, or clauses representing alternatives; as this road or that; one used to connect alternative or equivalent terms. Webster Comprehensive Dictionary (International Edition) defines ‘or’ as introducing an alternative; as ‘stop or go’, ‘red or white’; introducing an equivalent, the second alternative of a choice limited to two (Italics mine).

In law, it is trite that the word ‘or’ is prima facie and in the absence of some restraining con, to be read as disjunctive. See Green v. Premier Glynrhonwy State Co. Ltd. (1928) 1 K.B 561 CA. Lamgham v. Peterson (1903) 19 T.L.R. 157.

In Frank Mukoro-Mowoe v. The State (1973) 1 All NLR (pt.1) 296 at 312, the Supreme Court construed the word ‘or’ as disjunctive while considering the word ‘or’ in section 443 of the Criminal Code, Cap.28 of the Laws of Western State of Nigeria. In this respect, the phrase the sum of N1,729,287.50 or $172,921.85 is to be read disjunctively. I am of the firm view that the pronouncement of the learned trial Judge in his judgment, to reflect N1,729,281.50 claimed in alternative as at 18/1/93 is a good decision and I so hold.

Issue 2 deals with whether the cross-appellant is entitled to judgment against the 1st and 2nd defendants jointly and severally with the 3rd defendant having regard to the finding of fact.

The vital and decisive findings of the trial Court were based on the plaintiff/cross-appellant’s only witness in the case. The learned trial Judge’s findings are as follows:

“…The plaintiff’s only witness gave evidence soberly and impressed me as a gentleman who will not sacrifice the truth for the benefit of his case. His evidence is amply supported by documentary evidence. I accept his evidence and make findings of fact in accordance with it”.

It is trite law that ascription of probative values to evidence is a matter primarily for the Court of trial. Where a trial Court unquestionably evaluates the evidence and appraises the facts, it is no business of the Court of Appeal to substitute its own views of undisputed facts with the views of the trial Courts See Balogun v. Agboola (1974) 1 All NLR (Pt.2) 66; Laguro v. Toku (1986) 4 NWLR (Pt.33) 90.

This Court will only interfere with findings of fact where it is satisfied on the evidence before it that the findings are wrong and could not ordinarily have been based on the evidence. I do not see anything in the findings of the trial Judge that could invite this court to interfere with such findings.

The findings of the trial Court is that ‘the 3rd defendant admitted in writing that payments were made to it. It also presented to the plaintiff that it was pursuing foreign exchange allocation for remittance of the money’.

The learned trial Judge also held that a fiduciary relationship was clearly established between the plaintiff and the 3rd defendant whereby the plaintiff was the beneficiary of the money paid to the 3rd defendant by the 1st defendant.

The learned trial Judge also held at page 186 of the record that as between the plaintiff and the 3rd defendant there is no denial that money was deposited by the 1st defendant with the 3rd defendant for the benefit of the plaintiff. It is further held thus:

”I find as a fact that the 3rd defendant without exercise of the care and caution expected of a prudent Bank and a responsible trustee of the funds accepted without question the pretence that the plaintiff was paid by a spurious third party”.

I do not think that such factors that could make me interfere with the above stated findings by the lower Court are present. This Court should not easily disturb the findings of fact of a trial Judge who had the singular privilege and opportunity of listening to the witnesses and watching their demeanour even though such findings of fact or the inference drawn from them may be questioned in certain circumstances. See Faloyinbo & Ors v. Williams (1956) SCNLR 274, (1956) 1 FSC.87.

I am of the view that the evidence before the lower Court was properly evaluated as such the trial Judge was right in holding that the respondents have no liability.

Issue 3 in the cross-appeal is the question of whether the costs awarded against the plaintiff in favour of the 1st and 2nd defendants was justifiable in the circumstance.

The learned trial Judge having dismissed the claim against the 1st and 2nd defendants awarded N2,000.00 costs against the plaintiff.

The cross-appellant’s counsel in the brief has submitted that the award of this cost is unjustifiable.

If the plaintiff fails to institute an action against the proper party or parties as a result of which the party is wrongly joined, no liability can be ascribable, then such a party is deemed wrongly joined and not liable consequently, the party is entitled to compensation by way of costs.

In the instant case, the award of costs by the learned trial Judge against the cross-appellant in favour of the 1st and 2nd defendants was well founded in law. This is so considering the averment of the cross-appellant in its statement of claim, paragraph 4 which states as follows:

The 3rd defendant was at all times material to this action the company/Bank appointed by the plaintiff and the 2nd and 3rd defendants to look after its interest and collect the monies due under the bills which the plaintiffs exported the water pump and related products the 1st defendant”.

The cross-appellant’s only witness confirmed this during the trial. The trial Judge found in favour of the 1st and 2nd defendants and exonerated them on the strength of the uncontroverted and unchallenged evidence. To do otherwise will amount to double compensation in favour of the cross-appellant since the appellant has been found liable in negligence to cross-appellant.

In the result, the appeal against the judgment of the lower Court fails and it is dismissed. So also is the cross-appeal which is completely devoid of any merit. I also have no hesitation whatsoever in dismissing it.

However, having regard to the appeal and the cross-appeal, I do not find it appropriate to make any order as to costs.

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Other Citations: (2000)LCN/0845(CA)