Kaydee Ventures Ltd V The Hon. Minister Of Fed. Capital Territory (2010)

LAWGLOBAL HUB Lead Judgment Report

I. T. MUHAMMAD, J.S.C.

The plaintiff at the High Court of Justice of the Federal Capital Territory, Abuja [the trial court] and who is the appellant herein, is a limited liability Company carrying on Construction business throughout the Federal Republic of Nigeria, The 1st and 2nd defendants and now respondents in this appeal are the Honourable Minister of the Federal Capital Territory [F.C.T], Abuja and the Federal Capital Development Authority [F.C.D,A], a statutory body charged with the responsibility of physical development of the Federal Capital Territory, Abuja. The 3rd defendant/respondent is another limited liability Company carrying on business in the Federal Capital Territory. The plaintiff averred in its statement of claim that she was invited along with other contractors on the 10th of September, 1996, by the 2nd defendant to submit tenders for the rehabilitation of Keffi road at Karmo junction and Airport Express way. The plaintiff further averred that of all the six companies that tendered for the contract, that of the plaintiff was found to be the lowest and most attractive. On the 3rd of June, 1997, the plaintiff was awarded the contract at the cost of N94,623,797.84. A formal agreement was executed between the plaintiff and the 2nd defendant on the 30th day of July, 1997. The plaintiff averred that by virtue of clause 6.00 of the formal agreement, she was expected to mobilize its resources and commence work within two weeks of signing the agreement. The 2nd defendant was required by the contract to furnish the plaintiff with full priced copy of the Bills of Quantity, the drawings and specifications. The drawings as afore stated were not given to the plaintiff and without the drawings the plaintiff could not mobilize and commence work on the site. The plaintiff claimed further that even after signing the contract the demand for the afore said drawings was in vain. The duration of the work was for 6 months from the date of signing the contract. Before the expiration of the two weeks period allowed for mobilization, there were moves to terminate the contract. And by a letter dated 29th of August, 1997, the contract of the plaintiff was terminated by the defendants.

The plaintiff averred that despite the non-provision of the necessary drawings, it mobilized on site after signing the agreement. A site inspection was carried out by an independent Engineer mandated to inspect the said contract. He produced a report on 3rd of September, 1997. The plaintiff averred further that as at the date of termination of the contract, it had expended about 11 Million Naira for hiring machinery on site, vehicles, procurement of materials including bitumen, payment of workers salaries, allowances, procurement of letter of bond from N.I.M.B Ltd. According to the plaintiff, immediately the contract was purportedly terminated, the 3rd defendant moved all machinery and men into the area plaintiff had already worked upon thereby committing trespass on the site. The plaintiff finally made the following claims:

‘1. A declaration that the letter reference No. FCDA/DES/44/s/295/80 dated 29/8/97 titled ‘Termination of Contract for the construction of Link Road Keffi to Airport Express way’ is illegal null and void.

2. Perpetual injunction restraining the defendants, their servants, agents assigns and privies from interfering, interrupting, or preventing the plaintiff from executing contract agreement dated 30th of July 1997.
3. A perpetual injunction restraining the defendants, their assigns, agents and privies from carrying out any work on the construction of Link road III Alignment along Keffi Road to the Airport Express way, Abuja
4. A perpetual injunction restraining the 1st and 2nd defendants from giving effects, or any backing or support to the 3rd defendant in carrying out the construction of the Link Road III Alignment, Keffi to Airport Express way’. IN THE ALTERNATIVE 37.

The sum of N28,387,137,139.35 being anticipated loss of profit from the aforesaid contract. 38. N30,000,000.00 as general damages for loss of goodwill reputation, and cost of demolition on site.’

In their joint statement of defence the defendants denied each and every allegation of fact contained in the statement of claim except where the defendants expressly made an admission. They put the plaintiff on the strictest proof of every allegation not admitted. After full hearing, the learned trial judge entered judgment in favour of the plaintiff by holding that the termination of contract by the defendants was wrongfully done. He awarded to the plaintiff the sum of N14,193,569.68. Dissatisfied, the defendants appealed to the court below. After hearing the appeal, the court below allowed the appeal and set aside the judgment of the trial court. It also dismissed the cross-appeal. The plaintiff/respondent appealed to this court by filing a Notice of Appeal dated 15th of December, 2000 containing five grounds of appeal. Another Notice of Appeal containing eight grounds of appeal was, with the leave of this court, filed on 24/12/2002. The latter Notice and grounds of appeal were deemed dully filed by this court on the 29th day of October, 2003. This means that the former Notice and grounds of Appeal contained in the Record of Appeal and dated 15th of December, 2000 were abandoned by the appellant. In compliance with the Rules of Practice of this court, parties settled their briefs of argument which they adopted on the hearing day of the appeal. Learned counsel for the appellant formulated the following issues:

ISSUES FOR DETERMINATION

‘1. Whether the learned justices of the court below were right in concluding that the defendants lawfully terminated the contract award to the plaintiff,

2. Whether the learned Justices of the court below were right in holding that the trial judge wrongly evaluated the evidence before him and whether they were right in their own evaluation to warrant an interference with the findings and reasoning of the trial judge.
3. Whether plaintiff is entitled to damages.’

The respondents on their part, through their counsel, settled the following issues:

‘1. Whether having regards to the state of pleadings and evidence in this case the learned justices of the Court of Appeal rightly held that the termination of the contract award to the Appellant was lawful. [Ground 3 of the Notice of Appeal].

2. Whether the court below was right in holding that findings of the trial court were perverse and in interfering with the said findings. [Ground 4 of the Notice of Appeal].
3. Whether the court below was right in setting aside the award of damages made by the trial court in favour of the Appellant. [Ground 5 of the Notice of Appeal].’

In this submissions on issue No.1, learned counsel for the appellant stated that it was common ground between the parties that the terms of the contract awarded to the plaintiff by the defendants were as contained in Exhibits F and B. It was also common ground that the contract was terminated by the defendants. It is trite law, he submitted further, that in matters of contract in which the terms and conditions of the contract were embodied in a written document, the parties and the court will not be allowed to read into the contract extraneous terms on which they reached no agreement. In other words, both the parties and the court are bound by the terms of the contract and the court is to interpret and enforce the terms of the contract as agreed by the parties. Learned counsel cited and relied on the cases of INTERNATIONAL TEXTILE INDUSTRY [NIG.] LTD. V. ADEREMI [1999] 8 NWLR [pt. 614] 268; KOIKI V. MAGNUSSON [1999] 8 NWLR [pt.615] 492.

Learned counsel for the appellant argued that the settled law is he who asserts must prove and hence the defendants having given reasons for the termination of the contract in paragraphs 13 and 18 of their statement of defence, have a duty to prove and justify the reasons for the termination. He argued further that the time limit within which the plaintiff was to mobilize to site had not expired at the material time when the defendants set the machinery in motion to terminate the contract and when the necessary drawing to be used had not been released by the defendants, notwithstanding the various demands made by the plaintiff. He made reference to Exhibit F which, he said, by it, the plaintiff was not expected to carry on any construction until all relevant construction documents had been signed. He also referred to Exhibit B the contract document which was executed on the 3rd of August, 1997, and it gave the plaintiff a period of two weeks to mobilize to site and that period would have expired on the 18th of August, 1997. The decision taken by the defendants to terminate the contract was premature. He quoted the evidence given under cross-examination by Defence Witness 1 which amounted to admission against interest. He cited the case of ADEYEYE V. AJIBOYE [1987] 3 NWLR [pt.61] 4321. He referred also to the finding of the learned trial judge that the termination of the contract was wrong. On the particular practice of the defendants to commit a contractor to commence work before formal execution of a contract agreement, which the court below upheld to be correct, learned counsel submitted that there was no evidence to support it. He urged this court to set aside the conclusion of the court below on the practice which was never proved, though pleaded in paragraph 6 of the statement of defence. Learned counsel posited also that the provision made by Exhibit B for 7 days notice to be given before termination was not complied with. He urged this court to resolve issue No.1 in appellants favour.

The learned counsel for the respondents first raised an observation which had the character of a preliminary objection although he did not specifically call it as such. That has to do with the issues formulated by the appellant and some of the Grounds of Appeal especially grounds 1 and 2 as set out in the Notice of Appeal. The first of these observations is that the appellant failed to marry the issues to the grounds of appeal. It had also failed to create any nexus between the grounds of appeal and the issues in its argument. He urged this court to deprecate that kind of practice, Secondly, learned counsel observed that the appellant did not distill any issue from grounds 1 and 2 of Notice of Appeal as none of the three issues distilled raised the complaints in those grounds of appeal and that these grounds are deemed abandoned and would be struck out. Several cases were cited in support among which are OJEGBE V. OMOTASONE [1999] 6 NWLR [part 608] 591 at 597 – 598 H – A; OGUNBADE V. ADELEYE [1992] 8 NWLR [part 260] 409 at 419 0 – E, He urged this court to strike out the grounds.

Learned counsel for the appellant filed a reply brief in answer to the issues raised by the respondent. He replied that the 3 issues for determination as formulated by the appellant are borne out of the Grounds of Appeal dated 23rd of December, 2002 and filed on the 24th of December, 2002, and were not distilled from the 5 grounds of appeal contained in the earlier Notice of Appeal dated and filed on the 15th of December, 2000. The 3 issues by the appellant are borne out of the 8 grounds of appeal as contained in the Notice of Appeal aforesaid. He urged this court to discountenance the objection in the respondents brief relating to the issues for determination. I cannot say that the learned counsel for the respondent was raising a preliminary objection on the brief of argument and the Grounds of Appeal contained in the Notice of Appeal filed in the court below on the15th December, 2000. I say so because he has not complied with Order 2 Rule 9 of the Supreme Court Rules, 1999 [as amended] which provides that a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before hearing, setting out the grounds of objection, and shall file such notice together with ten copies thereof with the Registrar within the same time, Where he fails to comply, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such order as it thinks fit.

I thought the learned counsel was making a peripheral observation that was why he was urging this court to deprecate the practice adopted by the learned counsel for the appellant. But for whatever that observation was made by the learned counsel for the respondent, he, at the end, succeeded in making the learned counsel for the appellant to file a reply brief in answer to that observation which to my mind, solved the respondents problem, The learned counsel for the respondent made the following observation:

1. That the appellant has failed to marry the issues to the grounds of appeal in its Notice of Appeal
2. the appellant also failed to create any nexus between the grounds of Appeal and the issues in its argument on issues distilled for determination and
3. That the appellant did not distil any issue from grounds 1 and 2 of the Notice of Appeal as none of the three issues distilled raised the complaints in those grounds of appeal. These grounds he, submitted, are deemed abandoned and would be struck out. Learned counsel for the respondent went on to distill his three issues from the remaining grounds 3, 4 and 5 of the Notice of Appeal. Thus, the respondents issues set out earlier in this judgment stemmed from these three grounds.

In his reply brief which was filed on the 25th of May, 2009, the learned counsel for the appellant submitted that contrary to the submission by the respondents at paragraph 3 : 1 of the respondents brief of argument, the appellants 3 issues for determination were not founded on any of the 5 grounds of appeal earlier filed.

They were borne out of the grounds of appeal dated the 23rd of December, 2002 and filed on the 24th of December, 2002. The issues for determination, he further submitted, were not distilled from the 5 grounds of appeal as contained in the earlier Notice of Appeal dated and filed on the 15th of December, 2000. The appellants 3 issues, he said, were borne out of the 8 grounds of appeal as contained in the Notice of Appeal dated 23rd of December, 2002. He urged this court to discontenance the objection raised by the respondents.

I must say that this issue as argued above by the parties gave me a little anxiety in the sense that it was initially not clear to me as to how there came about two Notices of Appeal on the same appeal with nothing practically to guide one on the quandary, neither from any of the parties nor from the file made available to me for the appeal.

I had to travel extra miles to our Registry to find out exactly what had happened. It was then that I was shown an enrolled order made by this court which granted to the applicant/appellant extension of time to seek leave to appeal, leave to appeal and extension of time to appeal. It also deemed as dully filed [on that date that is 29th of December, 2003] the appellants Notice of Appeal. The respondent, according to that order, would have his time running from the date of service of that order on him. The order was made by this court on the 29th day of October, 2003.

The appellant did not tell us anywhere in his brief or his oral adumbration that there was an order of this court that validated his otherwise, incompetent Notice of Appeal. He never told us that he filed a motion for leave to appeal. Although the respondents counsel could not be blamed, there is nothing as well from him to inform us of whether he was ever served with the enrolled order or not, which was granted in chambers. This is one of the disturbing and nagging problems we usually grapple with in chamber proceedings.

Now, as I said earlier, the leave sought and obtained to file the appeal saved the appeal itself. The appellants brief of argument was shown to have been filed within a day after leave to appeal and a deeming order that the Notice of Appeal was dully filed, were granted. Whatever miracle might have been used by the appellant in getting his record of appeal and the brief of argument filed in this court within a day after having the Notice and Grounds of Appeal been deemed filed, may appear surprising, though not impossible or illegal.

There is therefore, a valid appeal before this court. There is also a competent brief filed by the appellant. I shall now consider the submissions made by learned counsel for the respondents on issue No.1. Learned counsel for the respondent submitted that the reason for terminating the appellants contract was simply as a result of the respondents contention that the appellant did not mobilize to site upon being granted the letter of award of the contract on 3rd of June, 1997. He referred to paragraphs 13 and 18 of the statement of defence which he set out as well. He argued further 11 that the respondents witnesses testified to this and tendered Exhibits K and L to show that the appellant was directed to mobilize to site and warned of the consequences of failure to do so. Learned counsel stated that there were conflicting averments on the statement of claim of the appellant. He cited paragraphs 8, 10, 12, 13, 24 and 27 thereof. He went further to say that with such contradictions reflected in the paragraphs referred to above, the appellant puts nobody in doubt that it did not mobilize to the site because of the respondents failure to provide it with drawings and because the agreement permitted them to mobilize to site within two weeks from the date of signing. Learned counsel for the respondent submitted that the appellant testified to these series of conflicting averments through its witnesses and given the state of pleadings and evidence, the appellant prevaricated on the issue of mobilization to site.

To further show that the appellant did not mobilize to site, the report of the independent inspection found that the appellant was not on the site. On the invoices, receipts, hire of machinery and procurement of materials and letter of advance payment bond, learned counsel for the respondents submitted that the appellant, who pleaded same in paragraph 27 of its statement of claim failed to tender any of them. He argued that if these documents were tendered, they could have shown to some extent that the appellant attempted to mobilize to the site. Learned counsel urged this court to invoke section 149 [d] of the Evidence Act Cap. 14 LFN 2004 and to hold that the appellant failed to produce them because if it had done so, those documents would have been against it. He cited in support: AREMU V. ADETORO [2007] 16 NWLR [1060] 12 244. Learned counsel for the respondents stated that they averred in paragraph 6 of their statement of Defence that it was normal practice in the 2nd defendants contracts to commence work before formal execution of a contract. Learned counsel submitted that the 2nd respondent wrote Exhibit K to the appellant directing it to commence construction immediately.

No reply brief was filed by the appellant thereof. He submitted that failure to traverse that new fact constituted a formal admission by the appellant that it knew of the custom and openly flouted it. There was no need for the respondents to prove an admitted fact. He cited the provision of section 75 of the Evidence Act and the case of NDUKWE V. LPDC [2007] 75 NWLR [pt. 1026) at page 56 paragraph G; AKPAN V. UMOH [1999] 11 NWLR [pt. 627)349; MBA V. AGU [1999] 12 NWLR [pt 629]1 at page 18 F – G.

It was submitted further that since Exhibit F did not render the admitted custom inapplicable, that custom or practice commenced operation immediately upon the award of the contract on the 3rd of June, 1997. It was argued that the subsequent provision in Exhibit B to the effect that the appellant had a period of two weeks to commence work after the execution of Exhibit B was ineffectual as the terms in Exhibit B manifestly or expressly operate prospectively and not retrospectively. The appellant, it was argued further, was obligated to mobilize to site immediately it received Exhibit F but failed to do so which entitled the respondents to terminate the contract. The evidence of Defence Witnesses 1 and 2 that even several weeks after Exhibit B was executed , the appellant failed to do anything at the site was another factor which defeats appellants right in sticking to the two week period provided by Exhibit B.

On the procedure of determining the contract and in compliance with what clause 21.01 of Exhibit B provided the respondents submitted that in paragraphs 17 and 19 of the statement of claim, the appellant admitted that there was a decision to terminate the contract and that notice was given to appellant through Defence Witness 1 of respondents intention to commence irreversible termination of the contract from 1st of September, 1997 on 13th of August, 1997. In evidence, the actual date of termination of the contract was 29th of August, 1997.It was argued further that the period between the date of the notice and the date of the letter of termination that is, Exhibit 1 was more than seven days. Learned counsel for the respondents cited paragraphs 15, 16 and 18 of the Statement of Defence that it issued series of warning letters to the appellant. Having regard to the pleadings of the parties and the evidence led, the 1st and 2nd respondents complied with Clause 21.01 of Exhibit B in terminating the contract. The trial court was wrong in holding that the contract was wrongfully terminated and the court below was right when it held otherwise. Learned counsel urged us to resolve this issue in favour of the respondents and against the appellant.

Appellants issue No.2 is the trial courts evaluation of evidence and its review by the court below. It is the submission of learned counsel for the appellant that the uncontroverted evidence of Defence Witness 1 to the effect that the respondent was instructed to commence work on site since 16th of June, 1997 vide Exhibit K, cannot stand because Exhibit B which was later in time and which was executed on the 3rd of August, 1997, gave plaintiff 14 days from the date of the execution of the contract to mobilize to site. He argued further that the oral evidence of Defence Witness 1 cannot be used to vary the contents of a written document that is Exhibit B THE CASE OF UNION BANK V. OZIGI [1994] 3 NWLR [333] 385 at page 389 was cited in support. The learned counsel made reference to the practice where a contractor could be called upon to commence work on site before formal execution of the contract. He also made reference to the court belows holding on the Bill of Quantity and the drawing; Exhibit A1 was the Bill of Quantity which was admitted in evidence with no objection from the defendants/respondents. As to Exhibit A 1s authenticity, it was the court below that raised that issue Suo Motu.

There was no conflict in the evidence on the source of the Bill of Quantity and it was wrong to reject the evidence of 1st plaintiffs witness on the basis of a conflict which did not exist. Learned counsel for the appellant urged this court to hold that there was no misconception whatsoever on the part of the learned trial judge concerning the evaluation he gave to the evidence before him, rather, it was the court below that fell into a grave error in substituting its own views for that of the trial court. He urged us to resolve this issue in favour of the appellant. Learned counsel for the respondents submitted on issue two that the interference by an appeal court with the evaluation of evidence made by a trial court as well as with the findings of a trial court are governed by settled principles of law. Several cases were cited in support including: EBOADE V. ATOMESUN [1997] 5 NWLR [pt.506] 490 at page 507 – 508; MAGAJI V. ODOFIN [1978] 4 SC 94 at page 96; NZEKWU V. NZEKWU [1989] 2 NWLR [pt.104] 373 at page 393. The principle stated in these cases, is that an appellate court will not interfere with such findings unless they are perverse or unsupportable by the evidence led at the trial. It is further argued by the learned counsel for the respondents that the findings of the trial court which led it to the conclusion that the termination of the contract was wrongful were not supported by the pleadings and evidence led at the trial. The court below was in a good position to interfere with the findings and reassess the evidence. Learned counsel urged this court to resolve the issue in favour of the respondents.

Appellants issue No. 3 is on the award of damages made by the trial court which the court below set aside. Learned counsel for the appellant urged this court to hold that the defendants conduct in terminating the contract was wrongful, hence, the plaintiff was entitled to damages. He further urged that since the evidence of 1st plaintiffs witness on the profit margin of 30% of the contract sum was not challenged and should be relied upon. He relied on the case of OSONDU co. LTD. V. AKHIGBE [1999] 11 NWLR [pt.625] 1. Learned counsel urged us to set aside the contrary views of the court below and restore PAGE 7 the award made by the trial court as there was no evidence to the contrary before the court below that the plaintiff/appellant could not have realized 15% as profit on the contract price. Learned counsel for the respondents submitted that the position taken by the court below in selling aside the award of N14,193,569.68 in favour of the appellant, is unassailable having regard to the state of pleadings and evidence in this case. He submitted further that given the act of termination of the contract was not wrongful, the appellant cannot be entitled to any damages as he was found by the court below to have done nothing at the site and he cannot benefit from his own wrong.

He cited in support the cases of KANO TEXTILES PLC V. GLOEDE & HOFF [Nig.] Ltd. [2002] 2 NWLR [pt.751 420 at page 450; FIRST BANK OF NIGERIA PLC. V. MAY MEDICAL CLINIC [1996] 9 NWLR [pt.471] 195 at page 204. He urged us to resolve this issue in favour of the respondents and against the appellant. Now, it is clear from the pleadings of the parties, the evidence led before the trial court, its findings and judgment and the decision of the court below that this appeal arose as a result of dispute between the parties on whether there was a breach of the terms embedded in a Road Construction contract entered by the parties. Issue No. 1 by the appellant which is agreed by the respondents is on the lawfulness of termination of the contract between the parties. Now, where a legally permitted contract has been concluded by parties to it, the parties become bound by the terms and conditions provided therein. None of the parties will be permitted by law to resile from such terms and conditions except for good and genuine reasons. As a general rule, a contract may be determined either in accordance with the contractual terms such as through performance by the promisor of the exact terms he undertook to do for example, in contract of sale of goods or contract of supplies of service. Equally, a contract can be brought to termination where the promisor failed to perform through breach or where he made misrepresentation or where subsequent agreement took place.

A Contract can also be terminated by frustration and or as a result of certain miscellaneous events such as merger and in some cases death or bankruptcy: In its paragraph 23 of the statement of claim, the plaintiff/appellant averred as follow: ’23. In violation of the contract agreement and the content of preliminary letter aforesaid, the defendants vide a letter dated 29th of August, 1997 reference No.FDCA/DES/44/S.295/80 signed by one Asmau T. Garba [Mrs.] terminated the plaintiffs contract. The plaintiff plead [sic}and will rely on the aforesaid letter at the trial.’

In their statement of Defence, the defendants/respondents averred as follow: ’13. The defendant deny paragraph [sic] 16 and 17 of the plaintiffs statement of claim and aver that the contract was terminated on account of the plaintiffs persistent failure to mobilize on site in spite of repeated demands and instructions so to do. 18. The defendants denied paragraph 23 of the plaintiffs statement of claim and further aver that the plaintiffs contract was terminated for failure to commence work of site in spite of repeated warnings.’ After the evaluation of evidence led before him, the learned trial judge made a finding on the termination of the contract between the parties. He stated, inter alia: The formal contract agreement was executed on 30/7/97 though signed sealed and delivered on 3/8/97 between the parties as evidenced by exhibit B However as per their letter of 29/8/97, Exhibit 1 the said contract was terminated. The exhibit and paragraph 12 and 18 of statement of defence gives reasons for the termination as the plaintiffs persistent failure to mobilise on site in spite of repeated demands and instruction so to do by the defendants. This according to the learned counsel for the defendants, made it imperative that in so far as the plaintiff was in breach of contract should be and was terminated. The award of contract was however dated 3/6/97 [exhibit F] and it says that the contract was to commence after Exhibit B was prepared and signed. This was done on 29/7/97 and finalised on 3/8/97. Therefore issuance of exhibit L which was dated 3/7/97 was putting the cart before the horse.

The defendants cannot be hard [sic] to be complaining that the plaintiffs had refused to mobilise on site as the time for so doing was not yet at hand as per the contents and timing of exhibits F and exhibit B.’ PAGE 8 The learned trial judge also found that the only relevant documents in the contract are Exhibits F and B and it is the terms contained therein that the plaintiff should follow to the letter and that much had been admitted by Defence Witness 1. The learned trial judge stated further as follows:

‘The learned counsel for the defendants has rightly submitted that exhibits B[sic] speaks for itself. The agreement executed on 30/7/97 and signed on 3/8/97 allow [sic] the plaintiffs 2 weeks within which to commence work on site after DW1 wrote exhibit D on 24/8/97, four days before the grace period of 2 weeks had expired and it was to serve as last warning. this in my opinion is premature as the weeks allowed by exhibit B had not yet expired. However, assuming that exhibit B was a notice for the plaintiff to commence work on site and with a period of grace of up to 1/9/97 the termination letter dated 29/8/97 is premature, the contract work had not commenced as per exhibit D. Therefore, it cannot be construe [sic] to be abandoned in the letter of clause 21.01 read together with exhibit D. More so, that as per exhibit H, the drawings and specifications were not handed over to the plaintiffs by DW1 in line with clause 18,01 of the agreement.

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SC. 264/2002

G.m.o. Nworah & Sons Co. Ltd V. Afam Akputa (2010)

LAWGLOBAL HUB Lead Judgment Report

J.A. FABIYI, J.S.C.

This is an appeal against the judgment delivered by the court of Appeal, Enugu Division (court below for short) on 19th June, 2006 in respect of an appeal and cross appeal by the parties against the judgment of Ozoemena, J. of the High Court of Justice, Enugu delivered on 19th April, 2004.

The case at the trial court was a suit filed in the undefended list by the respondent as plaintiff thereat. He claimed the sum of =N=7, 555,000:00 against the appellant as professional fees for services allegedly rendered for the benefit of the defendant – appellant herein.

Upon being served with the writ of summons, the defendant filed a notice of preliminary objection challenging the locus standi of the plaintiff to institute and maintain the action. The trial judge was addressed by counsel on the preliminary objection and application for judgment under the undefended list. In his judgment handed out on 19th April, 2004, he dismissed the preliminary objection. As a follow up, he granted in part the plaintiffs’ application under the undefended list by awarding him =N=800,000.00 with 2% interest out of the =N=7,555,000:00 as he felt that ‘the fees to be paid must be reasonable in the circumstances’.

Both parties felt unhappy with the stance posed by the trial judge. The defendant appealed and the plaintiff, as well, cross-appealed to the court below. On 19th June, 2006, the court below dismissed the appellant’s appeal and allowed the respondent’s cross-appeal. The court below dismissed the appellant’s appeal and allowed the respondent’s cross-appeal. The court below awarded the respondent the sum of =N= 6,750.000:00 with 3% interest being the remainder or part of the cross-appellant’s claim at the trial court which was not granted thereat.

The appellant felt irked with the decision of the court below and has appealed to this court. He sought the leave of this court to raise new issues and filed four (4) additional grounds of appeal in respect of same.

On 7th December, 2009 when this appeal was heard, briefs of argument were adopted by both sides of the divide. The three (3) issues couched for determination of the appeal by the appellant read as follows:-“ISSUE NO. 1

Whether the respondent has the locus standi to institute the action at the High Court of Enugu State so as to confer the court with the jurisdiction to hear and determine the claim.

ISUE NO. 2

Whether, in all the circumstances of this case the suit filed by the respondent at the trial court satisfied necessary conditions of a suit that can be placed and determined under the undefended list.

ISSUE NO.3

Whether the court below was right in an undefended list claim for =N=7,555,000.00 to set aside the award of =N=800,000.00 with 2% interest granted respondent by the trial court and substitute same with an award of =N=6,750,000.00 with 3% interest as remainder of the sum not granted by the trial court.”

The respondent also distilled three issues for determination of the appeal. They read as follows:-

“1. Must respondent comply with Order 34 Rule 5 of High Court of Anambra State (Civil Procedure) Rule 1988, applicable in Enugu State in Order to establish the requisite locus standi necessary to sustain the claim herein

2. Whether the claim at the trial court satisfied the necessary conditions for a suit that ought to be placed and determined under the undefended list.
3. Whether the court below was right to have awarded =N=6,750,000.00 (six Million Seven Hundred and Fifty Thousand Naira) with 3% interest to the respondent.”

At this point, it is apt to start with the consideration of issue 2 as decoded by both parties. They both agree that this issue is whether the claim at the trial court satisfied the necessary conditions for a suit that ought to be placed under the undefended list.

On behalf of the appellant, learned counsel submitted that if the respondent has the requisite locus standi to initiate the suit at the trial court, the suit, as constituted, ought not to have been heard and determined under the undefended list. Learned counsel contended that the respondent’s claim as contained in Exhibit F, his ‘Bill of charge’ was not for liquidated debt, money demand or damages. He cited the case of U.T.C. (Nig) Limited v. Pamotie (1989) 2 NWLR (Pt.103) 244 at 299.

The respondent felt that since he worked for the appellant, the sum claimed by him was for a ‘debt’ and such liability need not be arithmetically ascertained. He maintained that he was entitled to apply to the court for recovery of the ‘debt’ under the undefended list procedure. He cited the case of Akinnuli v. Odugbesan (1992) 8 NWLR (Pt.258) 172 at 188.

Let me say it here pointedly that the undefended list proceeding is meant to shorten the hearing of a suit where the claim is for a liquidated sum. It is designed to avoid the intricacies of pleadings in a normal hearing in our trial courts. In recent times, its employment has been subject of abuse. Such should not be the case.

What then is a liquidated ‘sum’ or ‘damages’. Blacks Law Dictionary (6th Edition) at page 391 says that ‘damages’ is said to be liquidated when a specific sum of money has been expressly stipulated by the parties to a bond or other contract as the amount of damages to be recovered by either party for a breach of the agreement by the other side. Stein v. Bruce 366 S.W. 2d 732, 735. The term is applicable when the amount of the damages has been ascertained by the judgment in the action.

In Maja v. Samouris (2002) 7 NWLR (Pt.765) 78 at page 102, this court by Iguh, JSC pronounce thus:-

“A liquidated demand is a debt or specific sum of money usually due or payable and its amount must be already ascertained or capable of being ascertained as a matter of arithmetic without any other or further investigation. Whenever therefore the amount to which plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be liquidate or made clear. Again, where the parties to a contract as part of the agreement between them fix the amount payable on the default of one of them or in the event of breach by way of damages such sum is classified as liquidated damages where it is classified as liquidated damages where it is the nature of genuine pre-estimate of the damage which would arise from breach of the contract so long as the agreement is not obnoxious as to constitute a penalty and it is payable by the party in default.”

Earlier on, in the case of Eko Odume v. Ume Nnachi (1964) 1 All NLR 324 at page 328, this court per Idigbe, JSC pronounced thus:-

“whenever the amount to which the plaintiff is entitled can be ascertained by calculation or fixed by any scale or other positive data it is said to be liquidated or made clear. But when the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate the damages are said to be unliquidated.”

It is clear and beyond tenable argument that the factors for determination a liquidated sum are as follows:-

(a) The sum must be arithmetically ascertainable without further investigation.

(b) If it is in references to a contract, the parties to the contract must have mutually and unequivocally agreed on a fixed amount payable on breach.

(c) The agreed and fixed amount must be know prior to the breach

I have taken a careful look at the affidavit in support of the respondent’s claim under the undefended list. I cannot see any averment therein which shows that there was an agreement, written or otherwise between him and the appellant, at any material point in time pointing to the direction that the appellant would pay the respondent the sum of =N=7,555,000.00 contained in the writ of summons or any other particular sum of money for that matter.

To say the least, the various heads of amount in Exhibit F, the ‘Bill of Charges’ relied upon by the respondent, were estimates arrived at by the unilateral opinion of the respondent which were not based on any mutually agreed ascertainable standard. There was no fixed amount to the parties prior to the alleged breach of the oral agreement which the respondent said he had with the appellant. The claim of the respondent, in the circumstance can only be categorized as unliquidated damages. It ought not to have been placed and determined under the undefended list in the first instance.

Further, learned counsel for the appellant submitted that the case was not qualified to be place and determined under the undefended list because the respondent’s suit, as formulated and presented before the trial court, was not only contentious but also raised a number of triable issues.

What then amounts to a triable issue in the con of an undefended list proceeding If a defendant’s affidavit in support of the notice of intention to defend, where one is filed, or an affidavit to prop a preliminary objection as in this case raises an issue where the plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the plaintiff’s claim, such brings the parties within the concept of ‘joining issues’ as explained in Graham v. Esumai (1984) 15 NSCC 733, 743 and Ehimare v. Emhonyon (1985) 1 NWLR (pt.2) 177; (1985) 16 NSCC (pt.1) 163, 169. In such a situation, a triable issue comes into existence. Whenever a bona fide issue or a triable issue comes into existence, the case ought to be entered in the general cause list. The court has a duty to ensure fair hearing even in cases under the undefended list procedure.

Let me point it out that although the procedure under the undefended list has the advantages of speedy and quick dispensation of justice, it has it’s limitation in that it is not an appropriate procedure in complex cases with controversial triable issues. It is the duty of a trial court to first certify that the case is a proper one to be placed on the undefended list. For guidance on the procedure for summary judgment on the undefended list action, See: UAC (Tech) Ltd. v. Anglo Canadian Cement Ltd. (1966) NWLR 349; Olubusola Stores v. Standard Bank Nig Ltd. (1975) 4 SC 51 at 55-56; Okambah Ltd. v. Sule (1990) 7 NWLR (Pt.160) 1; (1990) 11 SCNJ 1; Adebisi Macgregor Associates Ltd. v. Nigerian Merchant Bank Ltd. (1996) 2 NWLR (pt.431) 378; (1996) 2 SCNJ 72.

I note that the appellant herein, as defendant at the trial court filed a preliminary objection challenging the locus standi of the respondent as plaintiff instead of the usual notice of intention to defend as dictated by the Rules of the trial court. There appears to be no big deal in this point. The action could validly be challenged other than by filling a notice of intention to defend and an affidavit disclosing a defence on the merit. See: the case of Sodipo v. Lemminkainen OY (1986) 1 NWLR (pt.15) 220 at 231 ; Nishzawa Limited v. Jethwani (1984) 12 SC 234 at 257; UTC Nig. Ltd v. Pamotei (supra) at page 284.

In short, the trial court and the court below had a duty to consider the preliminary objection and the affidavit in support of same. The respondent maintained that he had an oral agreement to ‘work’ for the appellant. On the other hand, the appellant said it had no contract, oral or written with the respondent. The appellant said it had dealings with one Joe Akputa and attached an agreement between them marked Exhibits ‘A’ to its affidavit. It is the said Joe Akputa that the respondent said introduced him to the appellant. There is no doubt in my mind that a triable issue has arisen in respect of the standing of the respondent. The two courts below appeared to have brushed the issue aside. But it has refused to be swept under the carpet. It requires to be cleared in a full blow trial.

Again, to justify the sum of =N=2,000,000.00 in Exhibit F as the fee for representing the appellant at the Supreme Court, the respondent averred in paragraph 4 of the affidavit in support of his application under the undefended list that he filed a brief of argument on behalf of the appellant at the Supreme Court. But in paragraph 15, the respondent averred that he drafted the brief of argument and when he asked the appellant for money to file same, the appellant debriefed him by directing him to hand over the brief of argument to one Chief Ifeanyichukwu Okonkwo. There is nothing to show that a Notice of Appeal was filed at the Supreme Court as contained in paragraph 14 of his affidavit. As well, there is no evidence that the respondent filed a brief of argument on behalf of the appellant; at least for now.

To my mind, there exists a material conflict or contradiction in the affidavit of the respondent which requires explanation. In this regard, the respondent himself on page 11 of his brief of argument states as follows:-

“In the unlikely event of your Lordships agreeing with the appellant that there exists a material conflict or contradiction in the affidavit evidence of the respondent as contended in the appellant’s brief argument, I must however point out that the effect thereof will only be restricted to the sum of =N=2 million claimed in regard to the Supreme Court proceedings and thus only that aspect of the claim may by affected, whilst the remainder thereof should be upheld by this Honourable Court.”

From the above, the respondent appears to have thrown in the towel in respect of the =N=2 million claimed for ‘work done’ for the appellant in respect of the alleged Supreme Court proceedings. Howbeit, for now, I take it that a serious triable issue has been raised and same should be investigated at a full blown trial of this mater at the High Court.

At this point, the provision of Order 24 Rule 9 (5) of the trial court’s Rules to wit: Anambra State High Court (Civil Procedure) Rules, 1988, as applicable to Enugu State, is of moment. It provides as follows:-

“R.9 (5). Nothing herein shall preclude the court from making an order, should it so think fit at any stage of the proceedings for the suit to be transferred to the general list on the ground that the suit is not suitable for placement in the undefended list.”

I am of the considered view that this is a case that ought not to be placed in undefended list in the first instance. It does not relate to a claim for liquidated sum agreed to at the material time by the parties. There are contentious issues that should be investigated through viva voce evidence.

Since an order transferring the matter to the trial court for hearing in the general cause list is warranted, I wish to keep my peace in respect of other issues. The appeal is hereby allowed. The judgment of the court below is hereby set aside. The case is remitted to the trial court to be heard on the general cause list by another Judge other than Ozoemena, J. Pleadings shall be ordered accordingly. No costs awarded.

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SC.153/2006

Barr. (Mrs.) Amanda Peters Pam & Anor V. Nasiru Mohammed & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C.

The 1st respondent was the plaintiff at the Federal High Court, Abuja where he brought a claim against the appellants and the 2nd respondent as the defendants claiming the following reliefs:

“1. A Declaration that the 2nd defendant’s letter of 19th February, 2007, to the 1st defendant applying to substitute the Plaintiff Nasiru Mohammed as the 2nd defendant’s candidate for the April 2007 Abuja Municipal Area Council AMAC/BWARI Federal House of Representative Election is illegal, null, void and of no effect whatsoever.

2. A Declaration that the 1st Defendant cannot in law act upon the 2nd Defendant’s application as contained in the letter of 19th February, 2007, to effect a substitution of the plaintiff with 3rd defendant as the 2nd defendant’s candidate for the April 2007 AMAC/BWARI Federal House of Representative Election.
3. A Declaration that by virtue of the provision of section 34(2) of the Electoral Act, 2006, the letter dated 19th February, 2007, written by the 2nd defendant to the 1st defendant seeking to substitute the plaintiff’s name does not provide any cogent and verifiable reason sufficient in law to warrant a substitution of the plaintiff’s name by the 1st defendant.
4. An Order of injunction restraining the 1st defendant from acting, carrying into effect or doing anything whatsoever based on the 2nd defendant’s application for substitution as contained in the letter of 19 February, 2007, to the 1st defendant as same is illegal, null, void and of no effect whatsoever.
5. An Order setting aside anything and everything done by the 1st defendant pursuant to the letter of 19/2/07 for the 2nd Defendant to the 1st defendant.
6. An Order setting aside the substitution form purported to have been filed by the plaintiff as illegal, null, void and of no effect whatsoever.
7. An Order against the 1st defendant by itself, its agent, privies, servants or howsoever described directing a retention of the plaintiff’s name as the duly nominated candidate of the 2nd defendant for the AMAC/BWARI Federal House of Representatives.
8. An Order quashing and nullifying the purported substitution of the plaintiff by the letter dated 19th February, 2007, purporting to have been issued by the 2nd defendant.
9. An Order quashing, nullifying and setting aside the FORGED FORM CF004 A purportedly signed by the plaintiff in favour of the said Austeb Peter-Pam Amanda 1.
10. An Order affirming the plaintiff as the legitimate and bonafide candidate of the 2nd defendant for the April 2007 election into the Federal house of Representatives in respect of the Abuja Municipal Area Council/Bwari Federal Constituency.”

At the completion of hearing on 5-04-07, the trial court gave judgment in favour of the 1st respondent in accordance with the reliefs he sought from the court. Later however, the 1st appellant brought an application that the judgment given on 5-04-07 be set aside on the ground that she had not been served with the processes leading to the judgment. The 1st respondent in whose favour the judgment on 5-04-07 had been given did not oppose the application. The trial judge Tijani Abubakar J. had no difficulty in setting aside the said judgment on 18-04-07.

It needs be said here that the 1st respondents’ suit related to the National Assembly elections which were scheduled to be held on 21-04-07. It ought therefore to have been clear to the parties that the case needed to be disposed of early enough so as not to interfere with the elections to be held on 21-04-07.

The 1st respondent’s suit was heard on the same day i.e. 18-04-07 and judgment given a second time that day in favour of the 1st respondent. The earlier judgment in the case was similar in favour of the 1st respondent. The appellants were dissatisfied. They brought an appeal before the Court of Appeal, Abuja (hereinafter referred to as ‘the court below’). The 1st respondent also filed a cross-appeal., on 5-07-07, the court below dismissed both the appeal and the cross-appeal. The appellants were dissatisfied with the judgment of the court below and have come before this Court on a final appeal. In their appellants’ brief, the issues for determination in the appeal were identified as the following:

“1. Whether the Court of Appeal was right in affirming that 1st respondents had locus standi to institute the suit to challenge his substitution as a candidate of the ANPP 2nd Appellant to contest the AMAC/BWARI Federal Constituency when at the time of institution of the suit i.e. March 22, 2007, he had ceased to be a member of ANPP by reason of expulsion on February 2, 2007.

2. Whether the Court of Appeal was right in holding that the 1st appellant’s right to fair hearing was not breached in the determination of the issues before the trial Court.
3. Whether originating summons was appropriate procedure in the determination of the issues raised in the suit”

The 1st respondent in his brief of argument raised three issues for determination which said issues are in substance similar to the appellants’ issues. The 2nd respondent also filed a brief of argument on 15-02-08 which we deemed properly filed at the hearing of the appeal on 4-03-08.

I intend in this judgment to consider each of the issues raised for determination in the appeal serially. The 1st issue raises the question whether or not the 1st respondent had the requisite locus standi to have commenced the suit before the trial court. It seems to me however that in the nature of the dispute brought before the trial court, the issue of 1st respondent’s locus standi was inexorably tied to the larger issue which was as to whether or not the 2nd appellant gave a cogent and verifiable reason in its letter to the 2nd respondent on 19-02-07 substituting the 1st appellant for the 1st respondent as its candidate for AMAC/BWARI Federal Constituency in the elections held on 21-04-07.

I observed earlier that the 1st respondent commenced his suit at the trial court by an originating summons. In paragraph 3(a) to.(m) of the affidavit in support of the originating summons, the 1st respondent deposed thus:

“a That the plaintiff is a Chattered Accountant with Office at No.4 Toamansina Street, off Kolda Link, off Adetokunbo Ademola Crescent, Wuse, Abuja.

b. That the plaintiff is a registered and bona fide member of the All Nigerian people’s Party, the 2nd defendant herein attached herewith is a copy of Plaintiff Party membership card marked Exhibit NAS 1.

c. By virtue of the plaintiff’s membership of the 2nd defendant, he contested the 2nd defendant’s party’s Primaries for the Abuja Municipal Area Council (AMAC)/Bwari National Assembly Elections and won, and was duly sponsored by the 2nd defendant to the 1st defendant as a House of Representative candidate for the April 2007 House of Representative Elections for the AMAC/BWARI Federal Constituency. Attached herewith is a copy of the Summary of Results for the Primary Elections 2006 is annexed herewith as exhibit NAS 2.

d. That upon the submission of Plaintiff’s name by the 2nd defendant to the 1st defendant, the 1st defendant as required by Law published his name both at its Headquarters and his constituency as the authentic candidate of the 2nd defendant for the April 2007 Federal House of Representatives Elections.

e. That upon the submission of his name to the 1st defendant by the 2nd defendant he participated in the 1st defendant’s verification exercise and was confirmed to contest the Federal House of Representatives Election for the AMAC/Bwari Federal Constituency in the forthcoming April 2007 National Assembly Elections. Copy of the Acknowledgment (Form CF 001) issued by the 1st defendant is annexed herewith as Exhibit NAS 3.

f. That surprisingly by a letter dated 19th February 2007, the 2nd defendant wrote the 1st defendant applying to Substitute the Plaintiff with the 3rd defendant (Austen Peters-Pam Amanda I.) as the 2nd defendant’s candidate for the April 2007 National Assembly Elections. A copy of the 2nd Defendant’s letter dated 19th February 2007 to the 1st Defendant is attached herewith marked exhibit NAS 4.

g. That the 2nd defendant’s application as contained in the said letter to the 1st defendant dated 19th February, 2007 gave no reason for the application to substitute the plaintiff with Austen Peters-Pam Amanda I. as the 2nd defendant’s candidate for the April 2007 National Assembly Election and notice of the purported attempt of substitution came very late to the plaintiff.

h. That he did not at any time withdraw his candidature in favour of the said Austen Peter Pam Amanda I. as he had no reason whatsoever to do so. That the signature appearing on Form CF.004A is a forgery consistent with the Scanned (instead of original) passport photograph appearing on said form. Copy of the said Form CF.004A is annexed herewith marked exhibit Forgery 1.

i. That the said letter of 19/2/07 which was signed only by the Secretary of the Party is contrary to the requirements of the 2nd defendant’s party constitution. Copy of the party Constitution is annexed herewith marked exhibit NAS 4.

j. That if effect is given to the said letter dated 19th February, 2007, it is going to cause the plaintiff severe damage mentally, physically, psychologically and financially, which no monetary compensation can assuage.

k. That pursuant to his sponsorship by the 2nd Ddfendant, plaintiff has commenced intense political campaign for he upcoming April, 2007 National Assembly Elections in the AMAC/Bwari Federal Constituency.

l. That I have been informed by D. D. Dodo, S.A.N. on the 15th Day of March, 2007 at about 7.00 p.m. at No. 10 Atbara-Street Wuse II and I very believe him that the 2nd defendant’s application as contained in the letter dated 19th February, 2007 does not meet the requirement of law for substitution of the plaintiff to contest the April 2007 National Assembly Elections under the Platform of the 2nd defendant in the AMAC/Bwari Federal Constituency.

m. That except the 1st and 2nd defendants are restrained, they will proceed to act pursuant to the application of the 2nd defendant to substitute the Plaintiff with Austen Peters-Pam Amanda 1. as the 2nd defendant’s candidate for the April 2007 National Assembly Election as contained in the said letter dated 19th February, 2007 and in the process prevent the plaintiff from contesting the April 2007 National Assembly Elections.”

It is apparent from the extracts of the affidavit in support of the originating summons reproduced above that that foundation and cornerstone of the 1st respondent’s case before the trial court was that he was the candidate of ANPP (i.e. – the 2nd appellant); and that he was validly nominated at the A.N.P.P. primaries to contest the April, 2007 election for the AMAC/Bwari Federal Constituency. It was further deposed to that by a letter dated 19-02-07, the 2nd appellant wrote to the 2nd respondent applying to substitute the 1st appellant’s name for the 1st respondent’s. The 1st respondent deposed that he remained ready and willing to be A.N.P.P. candidate for the said election and that the 2nd appellant wrongfully attempted to substitute 1st appellant for him. It is noteworthy that the 1st respondent made the point that the attempt by the 2nd appellant to substitute the 1st appellant for him did not conform with the law.

In her reaction to the 1st respondent’s affidavit, the 1st appellant in a counter-affidavit, sworn to on her behalf by one Ifeanyi M. Nrialike stated in paragraphs 5 to 8 thereof thus:

“5. That the plaintiff was expelled from the ANPP – the 2nd defendant on the 2nd of February 2007 and is not a member of the party the letter of expulsion is marked exhibit A1 and this fact was communicated to the 1st defendant.

6. That the plaintiff was duly substituted with 3rd defendant having been expelled from the All Nigeria People Party.
7. That EXHIBIT FORGERY 1- FORM CF 004A is not forged by the 3rd defendant or any other person but dully signed by the national Chairman and Secretary of the 2nd defendant. A letter to this effect written to the chairman of INEC by the chairman of ANPP FCT Abuja is marked exhibit A2.
8. That the National Secretary as the Chief scribe of the 2nd defendant in the absence of the National chairman has authority to write correspondence and letters on behalf of the 2nd defendant.”

It is obvious that the cause of the dispute between the parties was that whereas the 1st respondent claimed he was the properly nominated candidate of the 2nd appellant, the 1st appellant claimed that the 1st respondent could not be such candidate as the 1st respondent had by a letter dated 2-02-07 been expelled from the party.

In the appellants brief the contention of appellants’ counsel was that the 1st respondent had not the locus standi to bring the suit because by his expulsion from the party on 2-02-07 had lost the platform upon which to bring the suit as a member of the 2nd appellant.

In his address before the trial court 1st respondent’s counsel argued that there was no indication that the 1st respondent ever acknowledged that he got a letter dated 2-02-07 which expelled him from the 2nd respondent; and that in any case the letter by which the 2nd appellant tried to substitute the 1st appellant for the 1st respondent did not make any reference to a letter of expulsion of 1st respondent dated 2-02-07.

It seems to me that the objection made by the appellants as to the standing of the 1st respondent to bring this suit depended wholly on whose version of the evidence the trial court accepted. If, as contended by the appellants the 1st respondent had lost his membership of the 2nd respondent on 2-02-07, he would not have a platform to bring his suit on 22-03-07. But the contention of the 1st respondent was that the said letter by which he was allegedly expelled was a forgery and was never served on him.

The trial court did not make a specific funding on the point. Similarly, the court below did not express its opinion on the point as no issue of locus standi was raised before it.

It seems to me that from the nature or drift of evidence available before the trial court, it was not satisfactorily established that the 1st respondent had been expelled from the 2nd appellant by a letter dated 2-02-07. Elementary prudence and common sense dictate that if indeed the 1st respondent had been expelled from ANPP on 2-02-07, the letter allegedly written by ANPP on 19-02-07 exhibit NAS 4 ought to have given as reason for the substitution of the 1st respondent the fact that he had been expelled from the party. It is remarkable that the fact of the expulsion of the 1st respondent was never brought up anywhere until the 1st respondent had sued. It is to be expected that if in truth the 1st respondent was expelled it would have formed a valid basis to substitute his name with that of the 1st appellant. The cornerstone of the case of the 1st respondent was that he was substituted in a manner that did not conform with the law. This explains in my view why the two courts below saw no reason to examine the issue of the 1st respondent’s locus standi. This is because the issue of absence of locus standi raised by the appellants was inexorably linked with the validity of 1st respondent’s substitution when the same is viewed against the provisions of section 34(1) and (2) of the Electoral Act 2006 which provides:

“34(1) A political party intending to change any of its candidates for any election shall inform the commission of such change in writing not later than 60 days to the election.

34(2). Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.”

The conclusion to be arrived at is that the issue of locus standi raised by the appellants is fully subsumed under the issue whether or not the 2nd appellant gave a cogent and verifiable reason for the attempted substitution of the 1st respondent with the 1st appellant. It is noteworthy that the appellants throughout the proceedings from the trial court to this court never at any stage contended that the letter exhibit NAS 4 dated 19-02-07 by which the 1st appellant was substituted for 1st respondent gave any cogent or verifiable reason for the substitution.

In Ugwu & Anor. v. Araraume & Anor [2007] 16 S.C. (pt.1) 88, this Court considered the import and effect of Section 34 of the Electoral Act on the substitution of a candidate where no cogent reason was given for the substitution. At page 134 of the report this Court per Tobi J.S.C. said:

“Taking Section 34(2) in the con of primaries in particular, I have no doubt in my mind that the subsection is not only important but has an imperative content; considering the general object intended to be secured by the 2006 Act. It is certainly not the intention of the Act to gamble with an important aspect of the electoral process, such as primaries in the hands of a political party to dictate the pace in anyway it likes, without any corresponding exercise of due process on the part of an aggrieved person….

If a section of a statute contains the mandatory ‘shall’ and it is so construed by, the court, then the consequence of not complying with the provision follows automatically. I do not think I sound clear. Perhaps I will be clearer by taking Section 34(2). The subsection provides that there must be cogent and verifiable reasons for the substitution on the part of the 3rd respondent. This places a burden on the 3rd respondent not only to provide reasons but such reasons must be cogent and verifiable. If no reasons are given, as in this case, not to talk of the cogency and verifiability of the reasons, then the sanction that follows or better that flows automatically is that the subsection was not complied with and therefore interpreted against the 3rd respondent in the way I have done in this judgment. It is as simple as that. It does not need all the jurisdiction of construction of statute. I know of no canon of statutory interpretation which foists on a draftsman a drafting duty to provide for sanction in every section of a statute.”

I made the same point at pages 155 to 156 of the report where I said:

”It is manifest that the requirement under Section 34(2) of the 2006 Act that ‘cogent and verifiable reason’ be given in order to effect a change of candidate was a deliberate and poignant attempt to reverse the 2002 Act which led to a situation where disputes arose even after elections had been concluded as to which particular candidates had been put up by parties to stand elections.

The meaning of the word ‘cogent’ as given in The Shorter Oxford English Dictionary, is stated to be ‘constraining, powerful, forcible, having power to compel assent, convincing.’ The same dictionary defines ‘verifiable’ as ‘that can be verified or proved to be true, authentic, accurate or real; capable of verification.’

In the light of the above, it seems to me that the expression ‘cogent and verifiable reason’ can only mean a reason self demonstrating of its truth and which can be checked and found to be true. The truth in the reason given must be self evident and without any suggestion of untruth. The reason given must be demonstrably true on the face of it so as not to admit of any shred of uncertainty.’

I am satisfied that the reason given by PDP as ‘error’ for substituting Omehia for Amaechi did not meet the requirement of Section 34 of the Electoral Act.”

See also Amaechi v. I.N.E.C .& Ors. {2008} 1 SC. (Pt. 1) 36.

The 2nd appellant in its letter exhibit NAS 4 dated 19-02-07 wherein it purported to substitute the 1st respondent with the 1st appellant no reason whatsoever was given for the substitution. In the letter from the 2nd appellant, the writer one Senator Sa’idu Umar Kumo simply wrote:

“I am forwarding herewith details of approved substitutions in respect of the National Assembly candidates for your necessary action please.”

Clearly, the 2nd appellant did not comply with the provisions of Section 34 in substituting the 1st appellant with the 1st respondent as the candidate for the National Assembly election on 21-04-08.

The 2nd issue for determination is a complaint that the court below was in error by not holding that the 1st appellant’s right to fair hearing was compromised by the manner the trial court handled the hearing of the suit on 18-04-07. I stated earlier that the judgment previously given in favour of the 1st respondent on 5-04-07 was set aside on 18/04/07 on the ground that the appellants had not been served with the processes leading to the judgment. The proceedings of the trial court reveals that the 1st respondent’s counsel Mr. Dodo S.A.N. prayed the trial court to hear the suit immediately after the previous judgment was set aside. Mr. Nwankwo S.A.N. for the appellants however insisted that he could not be rushed as he needed time to file a counter-affidavit. The trial court granted appellants a stand-down till 11.30a.m. Mr. Nwanko S.A.N. later sought a further stand-down till 3p.m. to enable him file a counter-affidavit notwithstanding that Mr. Dodo S.A.N. had opposed a further stand-down. The trial court granted a further stand down till 1.30p.m. After the second stand-down, all the parties by their counsel made submissions to the trial judge after they had filed their respective affidavits. None of the parties was disabled from putting across to the trial court his arguments in the matter.

Can it be said that there was a denial to the appellants of their right to fair hearing I think not. I have no doubt that the proceedings before the trial court on 18/4/07 were rushed and conducted in a hurry. This was so because the elections to the National Assembly which formed the subject-matter of the suit were to be conducted on 21-04-07. In other words there was only a period of 3 days available to the parties and court to come to a determination of the matter. Given the nature of the special circumstances that prevailed, I am unable to conclude that the appellants were denied their right to fair hearing.

The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case; the crucial determinant is the necessity to afford the parties equal opportunity to put their case to the court before the court gives its judgment. In the instant case, there has been no complaint that the respondents were granted advantages or special favours in the presentation of their case which were denied to the appellants. A complaint founded on a denial of fair hearing is an invitation to the court hearing the appeal to consider whether or not the court against which a complaint is made has been generally fair on the basis of equality to all the parties before it.

In Mohammed v. Kano N.A. [1968] All N.L.R. 411 at 413 (Reprint) Ademola C.J.N. considering the meaning of fair hearing said:

“It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case. We feel obliged to agree with this.”

It is wrong and improper to approach the meaning of fair hearing by placing reliance on any a priori assumptions as to its technical requirements. The simple approach is to look at the totality of the proceedings before the court and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances before a court. The principle of fair hearing cannot be applied as if it were a technical rule based on prescribed pre-requisites. It seems a sufficient satisfaction of the principle if parties were afforded an equal opportunity without any inhibition to put across their case.

The court below at pages 289 to 291 of the record in its judgment examined the appellants’ complaint as to absence of fair hearing and said:

“It must be noted that the court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an appellant the opportunity of obtaining substantial justice in the sense of his appeal being granted a fair hearing or even in the court below. This is because of the need that in granting the hearing on the merits no injustice is done to the other party where that opportunity or fair hearing existed in the court below, the appellate court has no business interfering. See University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) page 142; Ogundoyin v. Adeyemi (2001) 13 NWLR (pt. 730) 403 at 421.

The very essence of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 is a hearing which is fair to both parties to the suit; be they plaintiffs or defendants or prosecution or defence. The section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather, it imposes an ambidextrous standard of justice in which the court must be fair to both sides of the conflict. The hearing must be fair and in accordance with the twin pillars of justice, read as pillars of justice, namely audi alteran partem and nemo judex in causa sua per Onu J.S.C. at 421. See also Ndu v. State (1990) 7 NWLR (pt. 164) 550.

A party who will be affected by result of a Judicial inquiry must be given an opportunity of being heard, Otherwise, the action taken following the inquiry will be Unconstitutional and illegal. See Ogundijun v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 at 423 per Onu J.S.C. See also Atande v. State (1988) 3 NWLR (pt. 85) 681.

In the light of the above I have no difficulty in Resolving this issue of fair hearing or not against the Appellant. Therefore this appeal lacking in merit is hereby dismissed.”

I agree with the views expressed by the court below above. I am unable to hold that the appellants were denied their right to fair hearing as enshrined in section 36 of the 1999 Constitution.

The complaint of the appellants under their third issue is that the use of originating summons was not appropriate in the circumstances of this case. Let me consider Order 40 rules 1 and 2 of the Federal High Court (Civil Procedure Rules) 2000 which deal with the use of originating summons in proceedings at the Federal High Court from where this suit originates.

The rules Order 40 rules 1 & 2 provide:

“(1) A person claiming to be interested under a deed, will or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.

(2) A person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of the question of construction and for a declaration as to the right claimed.”

In the instant case, the simple question for the trial court to determine was whether or not the letter by which the 2nd appellant sought to substitute the 1st respondent with the 1st appellant was in conformity with the requirements of section 34 of the Electoral Act, 2006. This was not a case in which the truth of the relevant facts was in serious controversy. The trial court needed to determine whether or not there was cogent and verifiable reason given for the substitution of the 1st appellant for 1st respondent. In my humble opinion, this is the type of case in which the procedure of originating summons is eminently reasonable and relevant. The procedure of originating summons ought not to be used where the facts are likely to be in dispute: See Theophilus Doherty v. Richard Doherty [1968] NML.R. 241 and National Bank of Nigeria v. Ayodele Alakija [1978] 9 & 10 SC.59.

The procedure of originating summons is the appropriate one to be used in a dispute as this where what is in dispute is the simple construction or interpretation of documents in respect of which pleadings are unnecessary: See Joseph Din v. Attorney-General of the Federation [1986] 1 NWL.R (Part 17) at page 471. This issue must be resolved against the appellants.

In the final conclusion, I am of the view that this appeal has no merit. It is accordingly dismissed with N50,000.00 costs in favour of 1st respondent against the appellants.

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SC.238/2007

Attorney-general Adamawa State & Ors V. Mr. Jonah Jauro Ware & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

The respondents as plaintiffs before the High Court of Adamawa State, holden at Yola, Bansi C.J. commenced these proceedings for themselves and on behalf of the Yandang community of Mayo-Belwa Local Government Area of Adamawa State, against the appellants herein as the defendants, claiming as followings:-

“(1) A declaration that the selection, election and/or appointment of the 3rd defendant as the District Head of Bajama District is altogether unconstitutional, irregular, invalid, null and void and of no effect whatsoever for offending the provisions of Adamawa State Districts Creation Law 1992 (as amended).

(2) (In the alternative to 1 above). A declaration that the selection process for the position of the District Head of Bajama District was manipulated by the 2nd defendant for purely sectional, parochial and ethnic reasons.

(3) An injunction to restrain the 3rd defendant by himself through his servants, agents howsoever from parading himself or continuing to parade himself as the District Head of Bajama District.

(4) An Order directing the 2nd defendant/appellant to conduct fresh selection/election and or appointment for the position of the District Head of Bajama District in accordance with the Provisions of the Adamawa State Creation of Districts Law, 1992 (as amended).

(5) Further and better reliefs as the court may deem fit to make.”

Pleadings were ordered filed exchanged and issues joined for trial. The plaintiffs called 4 witnesses and tendered 3 exhibits while the defendants called 5 witnesses and tendered 1 exhibit. After the address of counsel and in his judgment delivered 12th January, 1996, Bansi C.J dismissed in its entirety the case of the plaintiffs. The plaintiffs felt unhappy with the dismissal of their claims and filed an appeal to the Court of Appeal, Jos Division. In its judgment, the Court of Appeal, on the 8th February, 2000, unanimously allowed the plaintiffs’ appeal and granted all the reliefs, the plaintiffs claimed.

The defendants with the leave of this court filed an appeal against the decision of the Court of Appeal. The 3rd defendant who desired to engage a counsel and fight separately his appeal, applied for and was granted leave to appeal on the 19th of November, 2003. Now the defendants shall hereinafter be referred to as the appellants and the plaintiffs as the respondents.

It is convenient at this stage to set out the background facts as revealed by the pleadings and the evidence. In my view the fundamental facts are not in the main disputed. A vacancy arose for the post of the District Head of Bajama District under the Adamawa Emirate Council. On the 26/12/1991 an election was held in an attempt to fill the vacancy. At the election, the first respondent won the majority of the vote cast at the election by the village heads. The nomination/election was cancelled because,

(a) there were many petitions against it,

(b) the first respondent who won the nomination did not come from any recognized ruling house and

(c) Jereng village forming part of the district was not represented at the election.

In 1992, the Adamawa State Districts Creation Law was promulgated and was deemed to have come into operation on the 2nd of May, 1992. The Law, which was later amended, was designed to create and regulate the appointment, selection and election of District Heads in Adamawa State. On the 15/10/1992 another attempt was made to fill the vacant position of the District Head of Bajama District, it was to be conducted under the provisions of the new law as amended. The 2nd appellant sent its agents to come to Bajama District to conduct the selection. They explained to the populace the underlying reasons for the revisitation of the exercise. The representatives of the Adamawa Emirate Council directed the 8 Village Heads, the electoral college, to retire and present 3 names out of which one will be appointed as the District Head. The Village Head retired and eventually came out with the name of the 2nd respondent herein, the third appellant and one Halilu Chiroma as the three nominated candidates. It was on the 1/2/1993, that the names of the 3rd appellant herein, Hamman Adama Bello Ardo Lawal, was announced as the District Head of Bajama District. The respondents representing the Yandang community, pursuant to section 8(1) of the Adamawa State Districts Creation Law 1992 as amended, petitioned the 2nd appellant, the Adamawa Emirate Council, over the appointment. When nothing was heard from the Emirate Council the respondents commenced these proceedings.

Now, as mentioned above the respondents lost at the High Court but won in the court below and the defendants are now the appellants. The first and 2nd appellants in their brief of argument have identified and formulated the following issues arising for the determination of the appeal:-

“1. Whether the court below was justified in invoking the provisions of section 149(a) of the Evidence Act Cap. 112 Laws of the Federation of Nigeria, 1990.

2. Whether the conclusion of the court below that, the appointment of the 3rd defendants/appellant was not done in accordance with the provisions of the Adamawa State Creation of Districts Law 1992, can be supported, having regard to the established evidence before it in relation to the provisions of section 7 of the said law as amended Or in the alternative:
3. Whether the decision of the court below in construing section 7 of the law in question without any regard to the subsequent amendment was not reached per incuriam

As mentioned above, the 3rd appellant filed with leave of court separate notice of appeal, and in his briefs has submitted the following 4 issues for the determination of the appeal:-

1. Whether going by the state of the pleadings, the conclusion of the lower appellate court that the appellants/defendants admitted most of the facts of the plaintiffs/respondents was justified and whether such conclusion did not occasion a miscarriage of justice to the appellant.
2. Whether the defendant/appellant pleaded native Law and custom or tradition relating to the position of District Head of Bajama.
3. Whether the lower appellate court correctly interpreted the provisions of the amended Adamawa State Districts Creation Law 1992. Whether the Court of Appeal was right in its conclusion on the state of evidence and application of section 149(a) of the Evidence Act in relation to the minutes of the meeting of 15/10/1992.

In their respondents’ brief filed in answer to both briefs of the appellants, the respondents, only submitted one issue for the determination of the appeal. The issue reads:-

“Whether having regards to the provisions of the Adamawa State Districts Creation Law 1992, and the evidence led before the trial court, the lower court was right in holding that the 3rd appellant was not duly appointed as the District Head of Bajama District”.

But before the examination of the issues for the determination of the appeal, it shall be necessary first to deal with preliminary objection to competence of the appeals raised in the respondents’ brief.

In the aforesaid notice of preliminary objection, the respondents object to grounds 1,2,3 contained in the notice of appeal of 21/2/2000 and grounds 4 and 5 contained in the notice of appeal filed on the 19/11/2003. The ground of objection is that the issue being canvassed in the grounds is an issue of law which was not raised or tried before the lower court. It is argued that no leave was sought or obtained to canvass the issue. It is settled law that it is not competent to raise a fresh issue of law in an appeal without leave. See A.I.C. Ltd. v. NNPC (2005) 5 SCNJ 316; (2005) 11 NWLR (Pt.937) 563. Without much ado, I am of the view that objection is not made out. The respondents are merely objecting to the complaints of the appellants that the Court of Appeal did not in its consideration of the case before it apply the provisions of the amended law. It is common ground that the Adamawa State Districts Creation Law 1992 was amended in the same year. As mentioned above the law was deemed to have come into force on 2/5/1992 but some far reaching amendments were made in October 1992. It is clearly wrong of the learned counsel for the respondents to argue that the amendment made to the law which came into force in October, 1992 before the action was filed was a fresh issue. The only possible and rational explanation one can make is that if the lower court did not advert its mind to the amendment, the lower court clearly erred in law by ignoring the amendment. It is the duty of every court to give effect to an existing statute whether cited by counsel or not. See Ajayi v. Military Adm. of Ondo State (1997) 5 NWLR (Pt.504) 237. See also Odua Investment Ltd. v. Talabi (1997) 10 NWLR (Pt.523) 1, where it was held that a statutory provision cannot be waived. In my view, when the Court of Appeal interpreted the provisions of the law under reference without considering the amendment made in a later law, the court merely misinterpreted the provisions or interpreted the provisions of non existent provisions. The case of the respondent was based on the law as amended and when lower court failed to take into consideration the amendment, the lower court merely erred in law. The issue cannot be said to be a fresh issue. I accordingly reject the objection.

Now returning to the issues for determination. In my view, the issue posed by the respondents is more apt and covers all the other issues formulated by the appellant. The issue is whether on the state of the pleadings, the evidence and the provisions of the law, the 3rd appellant was properly appointed as the District Head of Bajama. Now, the learned trial Judge made these findings of fact:

“1. That on the 26/12/1991 there was an election held for the District Headship of Bajama where the first plaintiff and two others contested but the said election was cancelled because-

(a) There were many petitions against it;

(b) The first plaintiff did not come from any ruling house, and

(c) Jereng Village was not represented when the election was conducted.

2. That the selection on 15/10/92 was done in accordance with the provisions of the Adamawa State Districts Creation Law 1992.
3. That Bajama District has been in existence 10 years after the white-man settled at Yola or since 1911.
4. That there are ancient traditions and customs for appointing District Head in Bajama. Maye-Farang or Nassarawa- Jereng District and that has not been abolished by any legislation.
5. That the tradition and customs came into being 10 years after the settlement of the white-man at Yola or 1911. That the third defendant was properly appointed being one of the descendants of Ardo Lawai the first District Head of Bajama who was appointed 10 years after the settlement of the white-man in Yola.”

Thus the claims of the respondents were dismissed by the trial court. The Court of Appeal on the other hand in its judgment per Akpabio, J.C.A. of blessed memory and concurred to by Omoren and Mangaji also of blessed memory JJ.C.A. opined as follows:

“But in the 1992 exercise, the village heads were not allowed to vote. They were merely asked to give names of three persons whom they considered suitable for appointment as District Head, and they did so without actually voting for a district head. The representative of the 2nd respondent then took the three names to the Emirate Council at Yola. It is reasonable to say that it was the officials of the Emirate Council at Yola who ultimately did the election or selection of 3rd respondent, and then forwarded his name to the Governor for approval. It is significant to note that even up till the time of writing this judgment, there has been no evidence as to the number of votes scored by the 3rd respondent” as the purported election to qualify him to be the District Head of Bajama District. From the foregoing, it becomes clear that the eight village heads were not allowed to carry out their statutory functions of being the “selectors” or “electors” of the District Head of Bajama. They were reduced to being mere “nominators” while the Emirate Council Officials took over or usurped the functions of being the ‘selectors’ or electors. This, in my view was clearly wrong and against the spirit and intendment of the Adamawa State Creation of Districts Law, 1992 The wrongful usurpation of the functions of the village heads by the officials of the Emirate Council must therefore be set aside and a new election ordered as claimed by the appellants.”

Thus the claims of the plaintiffs, the respondents, were found to have been proved and were granted in their entirety. The crux of the judgment was that the village heads who constituted the electoral college were not allowed to carry out their statutory functions of being the ‘selectors’ and or ‘electors’ of the district head, but were merely reduced to being “nominators.” Now, the question is whether the exercise by the village heads on the 15/10/1992 in the nomination of the three persons was done in accordance with the provisions of the law or not. Now, section 7 of the Adamawa State Districts Creation Law 1992, as amended, provides:

“7(1) The procedure for the selection or election and appointment of District Head shall be in the following manner where traditional or customary methods of selecting District Head exist.

(a) Selection shall be done in accordance with tradition and custom of the area constituting the District and under the supervision of a representative of the council and such security agents as the council may require. The representative of the council shall within one week make a report in writing to the council of the result of selection and submit same indicating the first three names who have the required number of votes set down by the Council. On receipt of the report, the Council shall deliberate on the report and shall recommend one person to the Governor for approval as the District Head of the District concerned. The Council shall within one month of approval take necessary steps to perform Turbaning Ceremony.

(2) Where no traditional methods of selecting District Heads exits

(a) where a vacancy exists and applications are received by the Council, the Council shall arrange for the election at any appropriate date and time and save for security reasons the election shall be conducted at the Headquarters of the District.

(b) The village heads shall be the selectors.

(c) The election shall be conducted under the supervision of a representative of the Council and such number of security agents as may be required by the council to keep the peace and issue a separate report on the election. The representative of the council shall within one week make a report in writing to the council of the election, and submit same indicating the first three persons who have scored the required number of votes as set down by the council. On receipt of the report and comments, the council shall deliberate on the report and comments and recommend only one person to the Governor for approval as the District concerned. The council shall within one month of the Governor’s approval take the necessary steps and perform the turbaning.”

From the pleadings and the evidence, it is common ground that a customary and traditional method exists for the selection and appointment of the District Head of Bajama District. Therefore it is section 7(1) of the Law that applies and the respondents as the plaintiffs were duty bound to show in what respect or respects there were non-compliance with the provisions of section 7(1) of the Law. The respondents in paragraphs 26 – 28 of the amended statement of claim, averred thus:-

1. There was electoral college of 8 village heads of Bajama District who were to select the District Head. That on the date of the election, the representative of the council in the presence of the security agents and Local Government officials directed the village heads to select the names of three persons whom they wanted to fill the vacancy of the District Head of Bajama. The village heads retired and on their own presented the names of three persons they nominated or selected whom they wanted to fill the position of the District Head of Bajama. The names were given to the representatives of the council who took them to Yola.
2. That without determining the number of votes scored by each of the three persons, the appellants/defendants decided to appoint the 3rd defendant/appellant as the District Head of Bajama. Section 7(1) of the Law, as amended had introduced far reaching changes in the procedure. The village heads are merely to nominate only 3 persons and submit the names to the Emirate Council, who shall elect only one of the three and recommend his name to the Governor for appointment. In my view, it is the function of the electoral college of the village heads to nominate 3 people, while the Emirate Council shall consider and deliberate on the 3 people and recommend only one name to the Governor, who may appoint the recommended name as the District Head. This, in my view, is what occurred in this case. In my view the instructions given to the village heads on 15/10/1992, to consult amongst themselves, after retiring and present 3 names to the representative of the Emirate Council satisfies the requirement of voting under section 7 of the Law. I am of the view that the entire process in the appointment of the 3rd defendant/appellant was done in a manner substantially regular and in accordance with the provisions of the section 7(1) of Adamawa State Creation of District Law 1992 as amended.

I am finally of the view, that the lower court acted and reached its decision per incuriam when it held that the Emirate Council wrongfully usurped the function of the village heads by “reducing them to mere nominators” instead of “electors” or “selectors”, section 7 of the law as amended, clearly made the village heads mere nominators. They were only to nominate 3 persons and pass the names to the council. The Emirate Council shall then consider the three names nominated by the village heads and recommended only one name to the governor who will appoint as the district head. I have referred to the judgment of the Court of Appeal where in his judgment Akpabio JCA reproduced and interpreted the old s.7(2) of the law, which was clearly amended as I have reproduced the same in this judgment. The function of the electoral college formed by the Village Heads is clearly to “nominate” while the recommendation and the eventual appointment is left to the Emirate Council and the governor respectively. The Court of Appeal by failing to be guided by the clear provisions of section 7 as amended acted wrongly. See Rossek v. ACB (1993) 8 NWLR (Pt.312) 382; African Newspapers v. Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) 137. On the state of the law and the facts, this appeal succeeds and is allowed by me. The judgment of the lower court is accordingly set aside and the judgment of the trial court is restored. The appellants are entitled to costs both in the lower court and in this court assessed at N7,000.00 and N10,000.00 respectively.

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SC.84/2001

United Bank For Africa Plc. V. Btl Industries Ltd (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

This is an appeal by the defendant against the judgment of the Court of Appeal, Lagos Division delivered on the 22nd day of July, 2003 in which the aforesaid court confirmed the decision of the trial court. The claim of the plaintiff before the trial court as contained in paragraph 62 of the 2nd further and better amended statement of claim is as follows:-

“1. Declaration that the defendant was in breach of its duty to the plaintiff by its failure to remit to the overseas suppliers the purchase price (in foreign currency) of the goods supplied by its overseas suppliers for which payment was duly made by the plaintiff.

2. An order directing the defendant to pay the sum of:-

(a) Pounds Sterling #3,632,872.93

(b) Us Dollars 3,384,263.37

(c) French Francs 3,478,031.85

(d) Deutsche Marks 3,431,790.47

(e) Belgian Francs 3,758,533.10

(f) Dutch Guilders 672,810.34

(g) Danish Krone 79,515.00

to the plaintiff being the value of the goods ordered from overseas suppliers and received by the plaintiff and for which payment was made in Naira to the defendant at the material time at the prevailing rate of exchange and which the defendant has failed to remit to the overseas suppliers despite repeated demands.”

Alternatively to relief 2 above:

An order directing the defendant to pay to the plaintiff the naira equivalent of the said sums of money at the prevailing rates for exchange at the time the defendant chooses to pay the plaintiff.

6. The sum of N378,780,244.00 being anticipated profits from 1985 to 1994.
7. Loss of profit at the rate of N6,302,510.00 per annum from 1994 to date of judgment.
8. Interest on judgment debt at the rate of 7.5% until payment is reflected by the defendant.

Alternatively to 1 – 5 above 6.

6. A declaration that the defendant was in breach of its duty to the plaintiff by its failure to duly inform the plaintiff in 1988 that the Central Bank of Nigeria had returned the sum of N8,541,557.66 which was to be remitted to the plaintiffs overseas suppliers.
7. An order directing the defendant to pay to the plaintiff the sum of N8,544,577.66 returned by the Central Bank of Nigeria to the defendant with accrued interest to date.
8. An order directing the defendant to pay to the plaintiff the difference in exchange rates in 1988 and the prevailing rates of exchange by the Central Bank of Nigeria at the time of judgment or the prevailing rate of exchange as the defendant chooses to pay the sum of:

(a) Pounds Sterling 3,632,872.93

(b) US Dollars 3,384,263.37

(c) French Francs 3,478,031.85

(d) Deutsche Marks 3,431,790.47

(e) Belgian Francs 3,758,533.10

(f) Dutch Guilder 672,810.34

(g) Danish Krone 79,515.00

12. Interest on the said sum N8,544,557.66 at the prevailing rate of interest annually in 1988 when the Central Bank of Nigeria released the money to the defendant up to the time of judgment.
13. The sum of N18,907,530.00 being anticipated profit from 1955 to 1987.
14. Interest at the rate of 7.5% from time of judgment to the time of payment by the defendant.”

Pleadings were ordered, filed, exchanged and amended. At the trial the plaintiff called five witnesses while the defendant called 7 witnesses. Five of them were called in Nigeria, while two of the defendant’s witnesses testified in London. On the 19/6/2002 learned counsel adopted their written addresses and in addition orally addressed the court. After an exhaustive treatment of the evidence, the learned trial Judge entered judgment in favour of the plaintiff thus:-

“Accordingly the plaintiff’s claims succeed. Prayers 1,2,3,4 and 5 of the plaintiff’s 2nd further and better amended statement of claim are granted with the following reductions.

As regards prayer 3 it shall be sum of N300m.

As regards prayer 4 it shall be N5m per annum from 1994 to date of judgment.

In the lights of the fact that the main claim succeeds the alternative claim is hereby refused. The judgment sum shall attract an interest at the prevailing interest rate fixed by the Central Bank of Nigeria from 1987 until judgment and at 7% until the judgment paid.”

Dissatisfied with the judgment, the defendant lodged an appeal on 11 grounds of appeal in the Court of Appeal. Distilled from the grounds the defendant raised six issues for the determination of the appeal. In its judgment delivered the 22nd day of July, 2003, the Court of Appeal dismissed the defendant’s appeal. Still dissatisfied, the defendant has now appealed to this court and it was with the leave of this Court that the defendant has filed the second amended notice of appeal on the 19/9/2006. The said second amended notice of appeal contains 11 grounds of appeal. Before the examination of the grounds of appeal and the issues submitted for the determination of the appeal, it shall be necessary to briefly state the facts as found by the learned trial Judge as follows:-

“The plaintiffs business is importation and distribution of building materials, industrial chemicals, and raw materials. These goods are imported from the plaintiff’s overseas suppliers namely:

Meridian Trade Corporation; Meridian International Credit Corporation and International Trade Meridian, Meridian Hamburg, Germany and Tata of India. The plaintiff has been banking with the defendant since 1980 and enjoys credit facility which it used to meet the costs of importation from its overseas suppliers. The plaintiff imports items on credit from overseas suppliers and the items are usually sent with bills of exchange, or bills for collection or by letter of credit. Between 1981 and 1983 several of such bills and letters of credit, exhibits P1 to P330 were received by the defendant on behalf of the plaintiff. The price of each bill was denoted in foreign currency, and the total amount of Naira equivalent of the foreign currencies was N8,541,557.66 at the time the goods were ordered. The account of the plaintiff with the defendant was debited for the said amount. The defendant was expected to use the sum debited to secure Central Bank of Nigeria allocation of foreign exchange. The plaintiff seeks by this suit a return of the money it paid to the defendant for remittance to the overseas exporters who had supplied the goods to the plaintiff. The plaintiff claims that the defendant negligently failed to secure Central Bank of Nigeria allocation of foreign exchange despite persistent requests that the defendant should remit the money to the overseas supplier.

At this stage it is very important that the situation in Nigeria as at 1983 with regards to importation of goods is explained, and what is expected of an importer P.W2 Mr. Tola Lapite a banking and finance expert and consultant explained the situation in Nigeria at the time. I adopt his explanation. He said and I quote him:

‘By the end of 1983 there was an accumulation or arrears of unpaid bills inform of bills for collection, letters of credit and direct remittance by Central Bank of Nigeria. This was due to non-availability of foreign exchange at the time.”

In 1984 the Federal Government of Nigeria struck an agreement with overseas creditors to refinance these unpaid bills. They involved Chase Manhattan Bank, New York as the Intermediary between Federal Government of Nigeria and the overseas creditors bank. Consequently Central Bank of Nigeria directed all banks to submit claims on behalf of their customers to them for presentation to Chase Manhattan Bank. Simultaneously the overseas creditors bank submitted claims on behalf of the creditors to Chase Manhattan Bank who was expected to merge the claims submitted by both sides. This was in 1985. There was preliminary report in 1985 sent by Central Bank of Nigeria to the banks to confirm the outstanding unpaid bills to Central Bank for verification by Central Bank of Nigeria. This report is called Debtors Summary Status Report, 1985 (DSSR 1985). The banks were expected to inform the affected customers about the requirement from Central Bank of Nigeria and guide them to complying.

After the bank must have contacted the customer and collected information from them, they resubmitted the report to Central Bank of Nigeria. Central Bank will then verify the Report for onward submission to Chase Manhattan Bank, New York, U.S.A. The final report started coming out in 1987. After matching the claims of creditors (overseas) and Nigerian importers, the successful claims and the unsuccessful claims were reported to Central Bank and upon receipt of this report Central Bank Nigeria debited the accounts of the banks and promissory notes were issued to the overseas creditors. The unsuccessful and rejected bills were also advised to the banks who in turn informed their respective customers of their bills. If a bill is unsuccessful the money paid to the bank by the customer would be returned to Central Bank of Nigeria who returns it to the bank and then to the customer.”

From the pleadings and evidence before the court, the following facts are not in dispute.

1. The plaintiff/company was a customer of the defendant bank for a long time. See paragraphs 4, 5, 6,7 and 11 of statement of claim, admitted by paragraph 1 of the statement of defence.
2. The plaintiff was a valued customer of the bank and had a rosy time with the defendant bank between 1980 to 1984. See defendants letter, exhibit B and evidence of DW1 and DW2.
3. The defendant received the bills for which payment was duly made. See evidence of PW4, DW1 and DW3.

The unit of account was foreign currency as stated in paragraph 18 of the statement of claim. It is not denied. See also evidence of PW4.

5. The total amount of Naira equivalent of the foreign currency was N8,541,557.60k. All relevant shipping and exchange control documents, all clearing documents including bills of exchange and tax clearance certificate were submitted to the defendant in respect of each transaction to facilitate quick remittance of the value to the overseas suppliers. The bills usually have maturity days of about 180 days – See exhibits P1, P330 evidence of PW4, DW1, DW2, DW5.
6. The plaintiff’s bills fell within the refinancing scheme.

It is trite law that what is admitted need not be proved. The defendant on its part pleaded that the Central Bank of Nigeria did not return or refund the sum of N8,541.557.66 to the defendant in respect of the plaintiff’s transactions. The plaintiff has no locus standi to bring the action. The plaintiff’s action is caught by section 8 of the Limitation Law, Cap. 118, Laws of Lagos State, 1994. That the defendant was not negligent in handling the plaintiff’s transaction. DW1- Mr. Ojukwu Chukwuemeka, A Senior Manager and Head of Foreign Trade Department with the defendant testified under cross-examination thus:

“I know from records that in 1988 Central Bank of Nigeria returned all money in respect of unremitted bills back to Commercial Bank. The Commercial Bank is not expected to return it to the owner. The money should be kept in trust for the beneficiaries pending satisfaction of certain conditions. The condition for keeping money for unremitted bills is the beneficiaries bank should send the Nigeria Bank an authenticated telex message saying that the beneficiary is in agreement with any case of need in Nigeria to be credited with the money. This is because the importer having claimed and sold the goods has received value for the supplier. That is why we are holding on to the money till today.” According to the above testimony the Central Bank of Nigeria returned the plaintiff’s money to the defendant as far back as 1988. Till today the defendant holds on to the plaintiff’s money. This suit is for the return of the money.”

Now distilled from the aforesaid 11 grounds of appeal the defendant hereinafter referred to as appellant and the plaintiff, the respondent has formulated and submitted the following issues for the determination of the appeal:-

“(i) Whether in view of the pleadings of the respondent, the trial court has subject matter jurisdiction to adjudicate on the matter.

(ii) In the event that it is held that the trial court had subject matter jurisdiction, was the Court of Appeal right in confirming the decision of the trial court that the plaintiff’s action is not statute-barred.

(iii) If the respondent’s action is not statute-barred, does the respondent have the locus standi to prosecute this case

(iv) Was the Court of Appeal right in refusing to set aside the judgment of the trial court on the ground that the said judgment is not perverse

(v) Whether or not the respondent’s case should not have been dismissed by the lower courts having regard to the plea of the appellant and the evidence before court that the claim of the respondent runs contrary to public policy and act of state doctrine.

(vi) Should the award of damages and interest by the trial court and confirmed by the Court of Appeal be allowed to stand

In his brief for the respondent the learned counsel has formulated and submitted similar issues. The appellant also filed the appellant’s reply brief. I shall in this judgment deal with the appeal by reference to the issues formulated by the appellant.

Issue 1

“Whether in view of the pleadings of the respondent the trial court has subject matter jurisdiction to adjudicate on this matter.”

Under this issue the appellant contends that the trial High Court has no jurisdiction to entertain the matter since the case is about the procurement of foreign exchange for payment of goods imported into Nigeria by sea through the appellant by letters of credit with banking facilities. The documentary evidence clearly shows the intricate link with the Central Bank of Nigeria. It involves and concerns the revenue as well as the monetary and fiscal policy of the Federal Government, thus the proper court is the Federal High Court which has the exclusive jurisdiction to entertain this kind of case. It is further argued that by section 1(i)(h) of the Admiralty Jurisdiction Act the Federal High Court has exclusive jurisdiction over “any banking or letter of credit transaction involving the importation of goods to Nigeria in a ship. Whether the importation is carried out or not and notwithstanding that the transaction is between a bank and its customers.” It is again submitted that the action was instituted in 1994 and that by virtue of the decision in Adah v. NYSC (2004) 13 NWLR (P.891) 639, (2004) 7 SC (Pt.11) 139, it is the law at the date that determines subject matter jurisdiction.

The respondent on the other hand argued that the claim is one simply found on breach of contract and for the return of the money paid to a bank by a customer due to total failure of consideration. It is submitted that the dispute herein is based on a breach of contract and negligence and the Federal High Court does not have any exclusive jurisdiction. The mere fact that the unit of account is foreign currency does not make it a foreign exchange matter. The learned counsel referred to Oyegoke v. Iriguna (2002) 5 NWLR (Pt. 760) 417 at 438, NDIC v. FMB (1997) 2 NWLR (Pt. 490) 735, see also CCB. Ltd. v. Mbakwe (2002) 7 NWLR (Pt. 755) 163, De Lluch v. SBN Ltd. (2003) 5 NWLR (Pt 842) 1 at 21.

I have carefully examined the claims of the respondent and I am unable to find on the pleadings or the evidence that the plaintiff as the respondent was making a claim predicated on the non-issuance or otherwise of letters of credit or of failure or otherwise of goods shipped to Nigeria. In my view, this is a straight forward matter of a claim for negligence and for breach of contract and for the return of money. The claim has nothing to do with shipping marine commerce or marine navigation. In the CCB v. Mbakwe case supra at page 179 it was held:-

“Where a bank is engaged to transmit or remit money from a purchaser to an issuing bank without more, that singular act does not confer status of issuing bank on the remitting bank so as to deprive the purchaser of the right to maintain an action against the remitting bank in the event of a default in remitting the agreed sum to the designated party.”

As mentioned above the claim of the respondent before the trial court does not in any way relate to fiscal or monetary policy of the government neither does it relate to the revenue of the Government. It is a claim essentially founded on negligence and breach of contract. I am of the, view that the trial High Court has the necessary jurisdiction over the subject matter of the dispute. See NDIC v. Okem Enterprises Ltd. (2004) 10 NWLR (Pt.880) 107 at 222. I accordingly resolve issue No. 1 against the appellant.

Issue No.2

This is concerned with the question whether the claim of the respondent is statute-barred. It is submitted that the lower courts were in error to have held that section 8 of the Limitation Law of Lagos State does not apply to bar the respondent’s claims. They acted erroneously when they held the period commenced from when the contents of exhibit C were brought to the attention of the respondent, in 1994 even though exhibit was written in 1988. It is submitted that reliefs 1 and 6, the two declaratory reliefs are caught up by the Limitation Law Relief No. 1 is a complaint of negligence/breach of contract on part of the appellant for failing to remit the sums to the foreign suppliers. It is claimed that the right of action accrued six years after i.e. 1983 – 1989. It is submitted that the respondent could not file the action in 1994 because the duty to remit letter of credit starts after 180 days after lodgment of funds. It is further submitted that the claim by the respondent that the appellant continued to make assurances and promises that the money would be transmitted, or that the respondent was deceived into believing so, is not sufficient. Learned counsel referred to section 58 of the Limitation Law of Lagos State and submits that only fraud or concealment of fraud will prevent the limitation period from running. It is again added that allegation of fraud is to be proved beyond reasonable doubt.

It is again argued that the respondent could have known of the existence of exhibit with reasonable diligence. In any event no fraud was pleaded and none was proved.

For the respondent it is submitted that the appellant has failed to state how the respondent could have discovered exhibit which was addressed by the CBN to the appellant. A customer of a bank should believe what the bank has repeatedly told him. The respondent further added that he had specifically pleaded the assurances the appellant falsely continued to give him and that it was not until April 1994, that the appellant became aware that the Central Bank had returned the money to the appellant since 1988. It is argued that apart from the general denial of paragraphs 44 and 45 of the further and better statement of claim, the appellant did not controvert this in his statement of defence.

Now, this issue has been raised and considered by the lower courts. The trial Judge held at page 432 of the records:-

“The fact that between 1983 to 1994 the chairman of the plaintiff PW4 was repeatedly assured by top officials of the defendant bank to wit: Its Managing Director and Chief Executive Alhaji S. S. Baffa, Branch Managers, Mr. Adedeji and Mr. Oyebola that the money would be remitted to the overseas suppliers is established to my satisfaction. The defendant clearly does not dispute the above. If the plaintiff was constantly assured as late as 1994 that his money would be remitted to the overseas supplier, then how may I ask can a cause of action arise in 1994…”

The court also found the appellant did not cross-examine the witness on this vital issue of concealment and deceit. I may add, that there was no appeal against such finding in Court of Appeal. The Court of Appeal also found that there was concealment of crucial fact and deceit. The cause of action only arose when the respondent accidentally stumbled on exhibit C. The trial court found that the totality of the appellant’s conduct in this case is fraudulent and concealment of fraud and the Court of Appeal affirmed this finding. See Arowolo v. Ifabiyi (2002) 4 NWLR (Pt. 757) 356. In the case of Jallco Ltd. v. Owoniboys Tech. Services Ltd. (1995) 4 NWLR (Pt.391) 534 at 547, Mohammed, JSC stated:-

“In considering whether an action is statute-barred, it is relevant to ask, “when does time begin to run This court, in the case of Fadare & Others v. Attorney-General of Oyo State (1982) NSCC 52 at 60 referred to the case of Board of Trade v. Cayzer; Irvine & Co. Ltd. (1927) AC 610 where it held:-

‘Time, therefore, begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are material to be proved to entitle the plaintiff to succeed.’

It is crystal clear from the facts of this case that the respondent had not became aware of the wrong entries in his accounts until in 1980/81. That being the case, the right of action accrued when the respondent’s demand to have his account credited was denied and refused and this happened in 1980/81. The claim of the respondent is not therefore statute-barred.”

Similarly in my view, the right of action in this matter clearly accrued in 1994 when the respondent became aware of the existence of exhibit C. The respondent could not reasonably be expected to file an action against the appellant when the appellant was always giving him assurances that his bills and letters of credit were being processed by Central Bank. Indeed there could be no cause of action. I accordingly resolve this issue No.2 also against the appellant.

Issue No.3

This is concerned with the question whether respondent has the locus standi to prosecute the claim. It is submitted that the locus of the respondent to institute this action was challenged in paragraph 33 of the statement of defence. It is argued that by paragraph 19 of the further and better statement of claim, the respondent pleaded that the goods covered by bills in exhibits PI – P331 had infact been shipped to it and that the goods were collected by it. It is submitted that under the circumstances the respondent would have no cause of action and cannot maintain an action for the recovery of the money meant for the goods. The money paid by the respondent becomes no longer his money but money held by the appellant for onward transfer to the overseas suppliers. Learned counsel refers to the case of Akinsanya v. UBA (1986) 4 NWLR (Pt.35) 273, (1986) 2 NSCC 980. Though in that case the Supreme Court was dealing with a confirmed letter of credit, in the instant case we are dealing with unconfirmed letters of credit. It is argued that in the case of Union Bank v. Odusote (1995) 9 NWLR (Pt.421) 558 although such an action was allowed, the issue of locus standi was never raised and argued. Learned counsel also referred to unreported case of Adegoke Motors v. Savannah Bank suit No. CA/C/399/96 in which Ayoola, JCA as he then was, relied and quoted with approval the dictum of Lord Denning in W. J. Allan & Co. Ltd. v. El Nasr Export (1972) 2 QB 189 at 212. Learned counsel has submitted that the Court of Appeal was in error to have confirmed the decision of the trial court on this issue.

Now, the trial court at pages 428 – 429 rejected the argument of the appellant on the issue of locus standi. He stated thus:

“The plaintiff contracted the defendant to procure foreign exchange required to discharge its liabilities to foreign suppliers. The foreign suppliers shipped the goods to the plaintiff a long time ago, but the plaintiff has not paid for the goods till today. The liability of the plaintiff to the foreign suppliers remains. Having failed to carrry out the plaintiff’s instructions the only sane thing to do is return the money to the plaintiff. The defendant says they are holding the money in trust [see evidence of D.W.1]. The defendant has held on to the plaintiff’s money now for about 18 years. See also exhibit V wherein the defendant informed the overseas suppliers that the failure to remit the money was because the plaintiff had not paid the naira cover when infact the plaintiff had paid the money to the defendant, a fact admitted by the defendant, but which he found convenient to deny to the overseas suppliers. Holding unto the plaintiff’s money for 18 years is criminal. The defendant has no justification whatsoever … See Savannah Bank v. Adegoke Motors CA/C/399/96; Union Bank v. Odusote (1995) 9 NWLR (Pt.421) 558. The plaintiff is entitled to a return or a refund of his money to enable him pay his overseas suppliers and restore his badly damaged name ….”

The Court of Appeal in my view, rightly confirmed the above finding of fact and that the respondent has clearly the locus standi to institute the action. In the case of CCB (Nig.) Ltd. v. Mbakwe (2002) 7 NWLR (Pt.755) it was held at 163 thus:-

“On who can sue bank for failure to remit money abroad- where a bank is engaged to transmit or remit money from a purchaser to an issuing bank without more, that singular act does not confer status of issuing bank on the remitting bank in the event of a default in remitting the agreed sum to the designated party.”

I am of the firm view, that the decision of Ayoola, JCA [as he then was] was correct in the SBN v. Adegoke Motors Ltd. supra when he opined-

“Also, as in this case where the application to the Central Bank is by the buyer and such an application can only be processed by the banker, a collateral contract arises whereby the banker undertakes to process the application and the buyer undertakes to pay…. contract as has been described emerged, the aggrieved customer can sue and enforce that contract and claim damages where the banker has failed to exercise due care.”

The complaint of the appellant under this issue is also not made out. The respondent has the necessary locus standi. I resolve the issue against the appellant.

Issue No.4

This is essentially concerned with the finding of fact by the two lower courts. It is submitted that the Court of Appeal was in error to have refused to set aside the findings of facts made by the trial Judge. It is argued that had the learned trial Judge properly evaluated and appraised the evidence, he would find for the appellant. The learned counsel made a lengthy examination of the evidence and the numerous exhibits tendered and submitted that the claims of the respondent were false.

In my view, the matter before the trial court was very simple. The appellant as bankers agreed to process and transmit to the overseas importers the value of the goods already shipped and collected by the respondent. The respondent paid the naira equivalent of the foreign exchange involved. The appellant was negligent in processing for the foreign exchange. At page 779 of the records of appeal, the Court of Appeal made the following finding:-

“The plaintiff contracted the defendant to procure foreign exchange required to discharge its liability to the foreign suppliers. The foreign suppliers shipped the goods to the plaintiff a long time ago, but the plaintiff has not paid for the goods till today. Having failed to carry out the defendant says they are holding in trust. See testimony of DW1. The defendant has held on to the plaintiff’s money now for about 18 years. See also exhibit V wherein the defendant informs the overseas supplier that failure to remit the money was because the plaintiff had not paid the naira cover when infact the plaintiff had paid the money to the defendant, a fact admitted by the defendant but which he found convenient to deny to the overseas suppliers …. the plaintiff is entitled to a return or refund of his money to enable him pay his overseas suppliers and restore his badly damaged name.”

It is clear to me that the Court of Appeal was right to confirm the decision of the trial court because the appellant has woefully failed to produce any evidence of promissory note used to pay the overseas supplier or that any of the 331 bills was refinanced. At the oral hearing of this appeal when counsel for the respondent submitted that none of the bills of respondent was refinanced in any of the documents referred to by the appellant, when asked, the appellant counsel was unable to show this court where any of the bills was refinanced.

These fundamental and crucial findings of facts were concurrently made by the two lower courts and the appellant has failed to convince me that exceptional circumstances exist for me to disturb the findings. I have carefully considered the judgments of the two lower courts and their reasoning. I have also considered the argument of the learned counsel for both parties. I am convinced that the evidence before the trial court was properly appraised and evaluated. I have no reason to disturb the concurrent findings of facts made by the two lower courts. I am not persuaded that the findings are perverse. I accordingly resolve issue No.4 against the appellant.

Issue No.5

This is concerned with the question whether or not the respondent’s case should not have been dismissed by the lower courts having regard to the plea of the appellant that the evidence before the court that the claim of the respondent runs contradictory to public policy and act of state doctrine. The submission of the learned counsel for the appellant is that this case is linked to the Federal Government of obtaining debt relief and it is linked with the fundamental objective of the state. In reply, the learned counsel for the respondent argued that this is a new special defence raised for the first time in the Supreme Court and that there was no pleading to support it. I agree with the learned counsel for the respondent that this is a special defence which is raised for the first time in the Supreme Court without leave. Further more there is no evidence whatsoever to support the argument. I find no merit whatever in the argument of the appellant’s counsel. I resolve the issue against the appellant.

Issue 6

This is concerned with the award, assessment and quantum of damages. As mentioned above, the courts below awarded the respondent sums in various foreign currencies being the value of the goods supplied by the exporters and which sums were not transmitted to the exporters or the overseas suppliers. In this judgment, I have dealt at length with the issue of the liability of a banker under such a situation to refund the customer. Accordingly, I do not need to go into this again, suffice it to say that prayer No.2 stands as granted by both the trial court and the Court of Appeal.

The essence of the respondent’s claim which pervades the record and indeed is the whole basis of the action is the failure of the appellant to transmit money to the overseas suppliers for goods already imported into Nigeria. If that money was duly remitted to the suppliers, there would be no need for the case at all. The essence of damages in breach of contract cases is based on restitutio in integrum. That is the award of damages in a case of breach of contract is to restore the plaintiff to a position as if the contract has been performed. In my view, since the respondent in this case has succeeded in his prayer No.2, I do not think, it is proper to grant prayers 3 and 4. These are losses of anticipated profits (i) from 1985 – 1994 and (ii) from 1994 to date of judgment. The reason given was only because the foreign suppliers having not been paid refused to deliver goods to the respondent on credit. The respondent was duty bound to mitigate its losses and look for money elsewhere to resume trade with the usual suppliers or some other ones. I believe that the damages for loss of anticipated profits are too remote. The law imposes on a plaintiff in such a situation the duty to take reasonable steps to mitigate the loss consequence on the breach and debars from claiming for any remote damage which is due to his neglect or refusal to take other steps. The time factor is also very important, a plaintiff must as soon as he discovers that the defendant has breached his contractual obligation, he should immediately begin to mitigate the losses. In the instant case even if there is no remoteness of the damage, the respondent became aware of the breach when the suppliers were continuously demanding for payment. The respondent clearly could not just sit down after knowing the situation on the ground, it is duty bound to avoid the loss of expected profits by redeploying its resources elsewhere.

In any event since the money to be remitted to the foreign suppliers was not meant to be employed in their business, the failure to remit the money cannot affect and has no bearing on the refusal of the suppliers to sell goods on credit to the respondents. Indeed the respondents could deal with other suppliers if they so wished. I am accordingly of the view, that items 3 and 4 cannot be recovered against the appellants.

I accordingly set aside the award of N300 million as damages for loss of anticipated profits from 1985 to 1994 and the sum of N5 million naria per annum also as loss of anticipated profits from 1994 till date of judgment. Subject to the above, the appeal fails and is dismissed by me. I award the respondent N10,000.00.

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SC.301/2003

Mr. Ayoade Adewuyi V. Andrew Ajuko Odukwe (2005)

LAWGLOBAL HUB Lead Judgment Report

A.I. KATSINA-ALU, J.S.C.

At the High Court of Lagos State in the Ikeja Judicial Division, the plaintiff brought this action against the 1st defendant. In the course of the trial, the 2nd defendant who purchased the land in dispute during the pendency of the action applied to be joined. He was accordingly joined as the 2nd defendant. The plaintiff in his amended statement of claim, claimed against the defendants jointly and severally the following reliefs:

1. A declaration that the plaintiff is the person entitled to the statutory right of occupancy to all that piece or parcel of land situate, lying and being at No.2 Obasa Street, Anifowoshe, Ikeja and more particularly described and delineated on survey plan No. ESL/A3273/89 dated 10th November, 1989 and drawn by S. O. A. Ifowodo licensed surveyor.
2. An order setting aside the purported sale in March 1994 by Nigerland Ltd., Kingsley Ijoma and Mrs. Elizabeth Dumuje of the land, the subject matter of this action, to the 2nd defendant. And all documents purportedly executed by them to that effect while this suit filed in 1992 is pending is unconstitutional, null and void having regards to the provisions of:

(1) Constitution of the Federal Republic of Nigeria. 1979,

(2) Land Use Decree, 1978 and

(3) An order of specific performance directing Nigerland Ltd., Kingsley Ijeoma and Mrs. Elizabeth Dumuje to themselves, servants or agents or any persons(s) howsoever and by whatever name called to execute all relevant documents in favour of the plaintiff, relating to the land subject matter of this action described in (one) above.

4. The sum ofN500.00 (Five hundred Naira) being special and general damages for trespass committed by the 1st defendant his agents, servants and/or privies on the said land.
5. Perpetual injunction restraining the 1st defendant by himself, servants, agents and/or privies howsoever called from further trespassing on the plaintiff land.

The plaintiff gave evidence and called two witnesses in proof of his claim. The 1st defendant called two witnesses in his defence. The 2nd defendant led no evidence.

In a considered judgment the trial Judge found for the plaintiff in terms of his claim.

The 1st defendant alone appealed to the Court of Appeal. His appeal was dismissed and the judgment of the trial High Court was affirmed. The 1st defendant has further appealed to this court. Based upon the grounds of appeal, the 1st defendant submitted seven issues for determination. These are:

(1) Whether exhibits Band B1 which were relied on by the plaintiff/respondent, although not pleaded, could be resolved with the evidence led in court to prove conclusively that the plaintiff/respondent bought the land in dispute in January 1977 and had so remained the sole owner ever since.

(2) Whether the Court of Appeal erred for not giving adequate consideration to the fact that the trial court breached the principle of fair hearing as enshrined in the 1999 Federal Constitution of Nigeria when the trial Judge closed 1st and 2nd defendant’s case in court.

(3) Whether the Court of Appeal properly evaluated the evidence led in the trial court having found in the Court of Appeal judgment as follows:-

“For, the evaluation of evidence, is a duty which the law clearly places on the trial court and if he fails to do so, the Appeal Court has powers to do so – See Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301; (1988) 1 SC 201. “Whether it would be correct to ascertain that Court of Appeal had in fact done proper evaluation which the trial court failed to do

(4) Whether any party (the plaintiff/respondent in this appeal) ought to give evidence contrary to what it pleaded and as such whether the Court of Appeal did consider this vital issue before confirming the decision of the trial court

(5) Whether the Court of Appeal had jurisdiction to confirm the decision of the trial court which had no jurisdiction to give judgment against yd persons who were not parties before the court

(6) Whether exhibits G, Gland G2 tendered from the Bar without objection were rightly considered by the Court of Appeal

(7) Whether the principle or doctrine of lis (sic) pendis was properly applied by the Court of Appeal

For his part, the plaintiff adopted the issues raised by the 1sl defendant. In view of the facts and circumstances of this case, I think the first issue will dispose of this appeal.

The question, in the main, is whether the plaintiff proved his title to the land in issue. The parcel of land in dispute is No.2 Obasa Street, Anifowoshe, Ikeja.

In his amended statement of claim, the plaintiff pleaded in paragraphs 4,5,6, 7,8,9, 11, 13, 14 and 17 as follows:

4. The land, the subject matter of this action is situate lying and being at No.2 Obasa Street, Anifowose Area of Ikeja, Lagos within the jurisdiction of this Honourable Court.
5. The land in dispute is more particularly shown in survey plan No. ESL/A3273/89 of 10th November, 1989 and drawn by licensed surveyor S. O. A. Ifowodo which is hereby, pleaded.
6. The plaintiff avers that on the 22nd January, 1977. the plaintiff purchase the land, the subject matter of this suit from one Kingsley Ijeoma, who issued to the plaintiff, a purchase agreement receipt for the sum of N8,000 (Eight thousand Naira) same is hereby pleaded.
7. The said Kingsley Ijeoma immediately put the plaintiff into possession in 1977 by showing the plaintiff round the land and performing necessary customary rites on the land in the presence of witnesses.
8. The plaintiff avers that in the exercise of his acts of ownership and possession, the plaintiff constructed a wall fence round the land and put thereon, servant/agent planting harvestable crops thereon. The plaintiff states that in 1990 the plaintiff applied for and obtained an approved building plan No. IK92/4465/37 in respect of the land in dispute and was issued with a receipt No. 722864 dated 5th June, 1990 which is hereby pleaded.
9. The plaintiff contends that on or about the 9th of November, 1992 the 1st defendant, his servants, agents and privies came on the land and have been threatening the plaintiff’s ownership and possession of the said land continuously.
10. The plaintiff states that he reported the incident to the police who warned the defendant to keep off the land.
11. The plaintiff states further that the 1st defendant inspite of police warning resumed his acts of trespass and has now commenced building on the land day and night and has threatened to continue his acts of trespass despite repeated warnings unless restrained by this Honourable Court.
12. The plaintiff contends further that Kingsley Ijeoma purportedly thereafter, sold the same land to one Godwin Nwosu and also the 15tdefendant who is allegedly claiming ownership to the land which is the bona fide property of the plaintiff.

In his reaction, the 1st defendant in paragraphs 2, 3, 4, 6, 12 and 14 of his amended statement of defence pleaded as follows:

2. The 1st defendant denies paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16,17, 18,19, 20, 21, 22, 23, 24 and 25(1) to (5) of the 1st amended statement of claim and put the plaintiff to the strict proof of all the facts therein contained.
3. The 1st defendant pleads that the land in dispute forms a portion of a vast area of land along Obasa Road, Anifowoshe, Ikeja which belonged to the father of one kingsley Ijeoma.

3a. Alternatively

The 1st defendant pleads that the land now in dispute formed portion of the global acquisition made by the Government of former Western Region of Nigeria before the Independence in October 1960.

3b. That the said acquisition if for residential and, or industrial purpose in Ikeja.

3c. That the land now in dispute before the acquisition belonged to Dr. Nnamdi Azikwe who erected a mansion thereon styled WASIMI Cottage, Onitsha mansion.

3d. That the holding of Dr. Nnamdi Azikiwe was duly excised from acquisition on by virtue of instrument dated 4/2/65 and registered as No. 55 at page 55 in Volume 812 of the Lands Registry, Ibadan.

3e. Dr. Nnamdi Azikiwe by virtue of Power of Attorney dated 1st November, 1975 commissioned an agent to dispose of the property mentioned in 3(d).

3f. In 1977 under and by virtue of the Power of Attorney stated in 3(e), the land in dispute was disposed and became vested in Nigerland Limited under and by virtue of a Deed of Conveyance dated 16/2/77 and registered as No. 82 at page 82 in Volume 1607 of the lands Registry at Lagos. That Kingsley Ijeoma one of the Directors of Nigerland Ltd. is fixed with full knowledge of this transaction.

3g. At no time did plaintiff claim title derivable from Nigerland Ltd. As the receipts issue in favour of plaintiff by plaintiff’s vendor Ijeoma recites that the property is “my land” which means Ijeoma’s personal land.

3h. The root of title of Ijeoma is put in issue moreso as Ijeoma refused to give evidence at the initial trial. The due execution of receipts issued by Ijeoma is put in serious issue.

3i. That Ijeoma is one of the Directors of Nigerland Ltd. as such Ijeoma is seized of the entitlement of Nigerland. Limited and is caught by the maxim nemo dat quid est habet – “He gives not who possesses not”. Since 1977 Nigerland Ltd. has been in lawful, effective, physical possession of the land in dispute and other adjacent lands as per the instrument recited in paragraph 3(f) above.

3j. That all exercise (if any) of right by the plaintiff since 1977 amounts to trespass as the root of the said exercise stems from defective grant by Ijeoma, such rights can only be exercised for and on behalf of Nigerland Ltd. a corporeity by Ijeoma one of its Directors, which has no contract with plaintiff.

4. That at the death of Kinsley, ljeoma’s father, the said vast area of land by act of devolution became vested in Kingsley Ijeoma the eldest surviving child.
5. Kingsley Ijeoma on 28th March, 1974 sold the land now in dispute to one Godwin O. Nwosu of No. 1 Obasa Road, Anifowoshe, Ikeja.
6. In 1992 the said Godwin O. Nwosu transferred his proprietary rights over the land in dispute to the 1st defendant under native law and custom.
7. Since 1992 the 1st defendant has been in maximum and effective ownership and possession of the land in dispute exercising full rights thereon.

The plaintiff gave evidence in proof of his claim. In his evidence-in-chief he testified in part thus:

“I know the defendant in this case in 1992. I know the land in dispute. It is along Obasa Street, Anifowoshe, Ikeja, Lagos I have a survey plan in respect of the land in dispute in 1989. I can identify copy of the survey plan shown to me. Survey plan ELS/ A /32273/89 drawn by S. O. G. Ifowodo just shown to me is the survey plan in respect of the land. Survey plan put in received and marked exhibit ‘A’.

In January, 1977 I met Mr. Kingsley Ijeoma who informed me that, he wanted to sell his land. Mr. Kingsley Ijeoma took me to the land now in dispute. On seeing the land I became interested in it. We negotiated and we both come to an agreement to sell the place for N128,000.00. I paid the purchase price in three instalments. The first one was N8.000.00 and he gave me receipt to that effect. In proof plaintiff produced receipt dated 22/1/77. On the 3rd May, 1990 I paid my vendor Kingsley Ijeoma on two occasions totaling N120,000.00 on the same day 2 receipts both issued on 3/5/90 put in evidence and marked exhibits B1, B2. Kingsley Ijeoma my vendor put me in possession in the presence of witnesses and told me that that is my land and that I am free to use it for whatever I want. From 1977 to 1992 the total area of the land was fenced round and I employed servants and agents to be looking after the land. Oliver is one of the servant employed to look after the land. Oliver was farmingand planting harvestable crops on the land. I also got an approval building plan No. IK/92/46537. Official receipt No. 72864 of 5/6/90 was issued to me. Between 977 to 1992 November, no one disturbed my ownership and possession of the said land. However, in 1992 on visiting the land I saw Mr. Adeoye the defendant I then asked what he was doing and he told me that he has just paid for the land in dispute. I quickly told the defendant that I have since bought the land that I am the owner. I further told him that I have no interest whatsoever to sell the land in dispute, he should go quickly to demand for the refund of his money.

I have heard of Rev. Eddie Iyinola and Mr. Nwosu. The defendant told me that he bought the land from Rev. Eddie Iyinola and Nwosu for N380,000.00. I paid also N20, 000.00 commission to Rev. Eddie Iyinola. Rev. Eddi lyinola and Nwosu were prepared to pay the defendant back his money. Both of them then returned the purchase price already obtained to the defendant. Rev. Eddie Iyinola deposed to an affidavit dated 11/12/92 that the money has been returned to the defendant. This is the C.T.C. of the affidavit of Rev. Eddy Iyinola put in received and marked exhibit ‘C’ (is dated 30/10/92). It was filed on the 16/11/92.

Under cross-examination, the plaintiff testified inter alia:

“When I made payment Mr. Godwin Nwosu was present. My brother Mr. Mbakwe was there when (sic) made payment. Only Mr. Nwosu witnessed the document. Mr. Nwosu is now in this court.” (Italics mine)

Still under cross-examination the plaintiff gave evidence and said:

“I have met Rev. Iyinola. Rev. Iyinola came to me and asked me if I know anything about the land in dispute. I told him that the land belongs to me and he told me that he brought the defendant to buy the land. I told Rev. Iyinola to go and collect his money and he later brought a letter in which the money was paid. He told me that they had recovered their money and showed me a teller. Nwosu told me that he had paid back this money to the defendant and he showed me a teller which is here with me. Rev. Iyinola is not in court here, he is in the office. Mr. Nwosu had paid back the money to the defendant.

When I bought the land Nwosu was not the owner. Nwosu was my witness to the purchase of the land.”

(Italics for emphasis)

The 1st defendant also called evidence in support of his case. His first witness was Lawrence U. Nwaozo a licensed surveyor. His second witness (DW2) was Godwin Nwosu his alleged vendor. This witness gave evidence and said:

“I am a trader by occupation. I know the land in dispute, the land in dispute is situated at No.2 Obasa Road, Anifowoshe, lkeja, Lagos State. The land was originally owned by Kingsley Ijeoma. In 1974 I bought the land from Kingsley Ijeoma. I asked Ijeoma how he became the owner of the land. Ijeoma told me that he is the only child of his father that he inherited the estate from his father. There is a written agreement between Kingsley Ijeoma and myself when Kingsley sold the land to me in 1974.”

He continued thus:

“In 1992, I contacted our Estate agents by name A.D. Rex Nig. Ltd. to help and find purchaser for the land. In consequence he brought to me the defendant in this case as the prospective buyer. In the process of the transaction between A. D. Rex Nig. Ltd. who I had already given authority to sell, the defendant paid the sum of N280,000.00k cash and the N100,000.00 by cheques to A. D. Rex Nig. Ltd. When the A. D. Rex Nig. Ltd. told me that the N100,000.00k was by cheque, I told A. D. Rex Nig. Ltd. that I do not want payment by cheque. Then A. D. Rex Nig. Ltd. returned the money to the defendant.

It was then the defendant came and pay me cash and took possession of the land while he was working on the land.”

When cross-examined this witness said:

“The signature and the name on exhibit ‘B’ are my own. I have seen exhibit ‘B’ it is the purchase receipt of the plaintiff in this case. (Italics for emphasis)

Kingsley Ijeoma is my friend he used to bring documents to me to witness his signature. Kingsley ljeoma signed exhibit ‘B’. It is in relation to No.2 Obasa Street, Ikeja.”

The witness continued his testimony as follows:

“Rev. Eniola was a witness to my sale to the defendant in 1992. The cheque for N280,000.00 was drawn on my agent Eniola by the defendant.

The sum of N100,000.00 cheque was drawn in my favour by the defendant. A. D. Eniola my agent returned the whole of the N380,000.00k to the defendant in respect of the land in dispute.”

As I have already indicated, the 2nd defendant did not call evidence in support of his counter-claim which the learned trial Judge dismissed. The learned trial Judge in his judgment found for the plaintiff in terms of his claim.

The 1st and 2nd defendants appealed to the Court of Appeal. The 2nd defendant did not pursue his appeal and it was accordingly dismissed with costs to the plaintiff.

In this appeal, it was said on behalf of the 1st defendant that the plaintiff did not discharge the onus of proof of the title he claimed. It was contended that his claim should have been dismissed.

I must say that I find no merit whatsover in the arguments advanced by the 1st defendant’s counsel in this appeal. In an action for declaration of title the onus of proof lies on the plaintiff and he must succeed on the strength of his own case and not on the weakness of the defence except where the defendant’s case supports plaintiff’s case. See Kodilinye v. Odu (1934-35) 2 WACA 336; Nkwo v. Iboe (1998) 7 NWLR (Pt. 558) 354; Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523; Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523.

It has been laid down in Idundun v. Okumagba (1976) 9 – 10 SC 227 that there are five different ways of proving ownership of any land in dispute, namely:

1. Traditional evidence.
2. Production of document of title.
3. Acts of ownership and possession by a person e.g. selling, leasing, renting, farming etc. extending over a sufficient length of time and numerous and positive enough to Warrant the inference that person is the true owner.
4. Acts of long possession and enjoyment under section 145 of the Evidence Act raising prima fade evidence of ownership.
5. The probability raised under section 45 of the Evidence Act.

I must re-state here that a party claiming title to land is not expected to plead and prove more than one of the ways stated above in order to succeed. There are five separate ways. So proof of one is enough: See Balogun v.Akanji (1988) 1 NWLR (Pt.70) 301 at 323.

The question in the present case is which of the five ways has the plaintiff pleaded and proved In paragraph 6 of the amended statement of claim, the root of title relied on by the plaintiff is pleaded thus:

“6. The plaintiff avers that on 22nd January, 1977, the plaintiff purchased the land, the subject matter of this suit from one Kingsley Ijeoma, who issued to the plaintiff, a purchase agreement receipt for the sum of N8,000 (Eight thousand Naira) same is hereby pleaded.”

The plaintiff has pleaded and relied on the second way of proving ownership.

The 1st defendant (appellant herein) pleaded his title to the land thus:

“3. The 1st defendant pleads that the land in dispute forms a portion of a vast area of land along Obasa Road, Anifowoshe, Ikeja which belonged to the father of Kingsley ljeoma. ,

4. That at the death of Kingsley Ijeoma’s father the said vast area of land by act of devolution became vested in Kingsley Ijeoma the eldest surviving child.
5. Kingsley Ijeoma on 28th March, 1974 sold the land now in dispute to one Godwin O. Nwosu of No.1 Obasa Road, Anifowoshe, Ikeja.
6. In 1992, the said Godwin O. Nwosu transferred his proprietary rights over the land in dispute to the 1st defendant under native law and custom.”

The plaintiff/respondent gave evidence in support of his claim that in January 1977 he bought the piece of land in question from Kingsley Ijeoma as pleaded in para. 6 of his amended statement of claim. I have earlier on in this judgment reproduced in extenso his evidence at the trial. The respondent testified that Godwin Nwosu witnessed the sale to him. He signed the purchase receipt which was received in evidence as exhibit “B”.

The appellant as 1st defendant called Godwin Nwosu as his second witness. The witness (DW2) gave evidence to the effect that he sold the land in dispute to the 1st defendant. Godwin Nwosu claimed in his testimony that he purchased the land in question from Kingsley ljeoma, who acquired it on devolution from his father. I have also reproduced his evidence earlier on. However, when DW2 was cross-examined he testified thus:

“The signature and the name on exhibit ‘B’ are my own. I have seen exhibit ‘B’ it is the purchase receipt of the plaintiff in this case. Kingsley Ijeoma is my friend he used to bring documents to me to witness his signature. Kingsley Ijeoma signed exhibit “B”. It is in relation to No.2 Obasa Street, Ikeja.”

DW2 further testified that his agent returned the appellant’s money amounting to N380,000.00 to him.

So the scenario is this. Godwin Nwosu admitted during trial that he was the witness to the sale in 1977 made by Kingsley Ijeoma to the respondent. It was also in evidence that the purchase price paid by the appellant to Godwin Nwosu was returned to the appellant.

It was also in evidence that the land devolved to Kingsley Ijeoma on the death of his father. There was no evidence from the defence, on record which controverted the purchase of the land from Kingsley Ijeoma witnessed by Nwosu who was DW2. Rather the evidence called by the appe11-antsupported the case of the plaintiff. There is nothing in the evidence of the defendant/appellant to place against that of the plaintiff/respondent. It is now settled law that where there is no evidence to put on one side, of the imaginary scale in a civil case, minimum evidence on the other side satisfies the requirement of proof: See Nwabuoku v. Ottih (1961) 2 SCNLR 232 (1961) All NLR 487; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 352. The burden of proof in land matters is stated by the Supreme Court in Kaiyaoja v. Egunla (1974) 12 SC 55 at 61 as follows:

“We are not unmindful of the fact that it is a well established principle of law that in a claim for declaration of title, the onus is always on the plaintiff to establish his claim, and that it is not open to him to rely on the weakness of the defendant’s case. This court has always held that what is required of a plaintiff in an action for declaration of title is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is, whether the plaintiff has been able to prove to the satisfaction of the court that he has a better title than the defendant. We think that it is relevant to draw attention to the fact that subject to the well-known rule as was laid down in Akpan Awo v. Cookey Gam 2 NLR 100; and a ho t of other cases that followed it, the standard of proof in a claim for declaration of title is not different from that which is required in civil cases generally. The only difference, if we may say so, rests on the fact that the burden of proof is on the plaintiff who is claiming title, and that it never shifts to the defendant throughout the trial. The difference therefore, lies not in the standard of proof, but on the burden of proof.”

In my judgment, the plaintiff/respondent has met the required standard and burden of proof. The learned trial Judge was right when he found for the plaintiff/respondent in terms of his claim. Similarly, the court below was also right when it dismissed the defendant/appellant’s appeal and affirmed the decision of the trial court.

I find no merit in this appeal. It is accordingly dismissed with N10,000,.00 costs in favour of the plaintiff/respondent against the defendant/appellant.

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SC.17/2001

Alhaja Saratu Adeleke Vs Alhaja Morinatu Raji (2002)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, J.S.C.

Before the High Court of Oyo State in suit no. 1/57/84, this action was commenced by the plaintiffs against the defendants wherein they claimed thus:-

“(1) The plaintiffs claim against the defendants for a declaration of title to a statutory right of occupancy to that piece or parcel of land situate, lying and being at Akuro, Molete, Ibadan.

(2) The plaintiffs claim against the 1st defendant N10,000.00 (ten thousand naira) being special damages for trespass committed by the 1st defendant on the said land sometime in August 1975 which trespass is still continuing.

(3) The plaintiffs also claim injunction restraining the defendants, their servants or agents from committing further acts of trespass on the land in dispute.”

The particulars of damage pleaded also are as follows:

“By 1st plaintiff

Cost of rebuilding stone foundation destroyed N2,000.00

Cost of kolanut and cocoa trees destroyed N1,000.00

General damages N2,000.00

N5,000.00

By the 2nd plaintiff for himself and Mulikatu Raji family

Cost of kolanut, cocoa trees etc.

destroyed on 2 plots N2,000.00

General damages N3,000.00

N5,000.00

Following the order that pleadings be filed and exchanged, the parties duly complied. At the trial, both parties called evidence in support of their respective case. The learned trial Judge thereafter delivered a considered judgment. By the said judgment, the learned trial Judge found in favour of the plaintiffs that they were in possession of the disputed land. He however dismissed their claim in respect of special damages as no evidence was led in support of that head of claim. But he held that the plaintiffs were entitled to general damages for the trespass committed on the disputed land. The 1st and 2nd plaintiffs were therefore awarded the sum of N500.00 each.

However, in view of what will later be considered by the court below when hearing the appeal, it is desirable to note that during the trial in the course of his closing address, learned counsel for the plaintiffs sought leave to amend his pleadings. The record of that part of the proceedings read thus:-

“At this stage, Agbaje applies to amend the title of the action in relation to the 1st plaintiff by adding “for herself and on behalf of the Oyinade section of Raji Adewale family.” Sarumi opposes the application, says it is too late in the day as there is no evidence to support the amendment. There is no evidence that action was brought on behalf of a particular section.

Court: Although no evidence is shown to have been led by the plaintiffs in respect of the sections on behalf of whom the action is brought, I do not see any injustice to the defence case in granting the amendment sought, if it is possible that without such amendment alone the plaintiffs’ case could be defective. All amendments permissible are those aimed at assisting the court in determining the real questions in controversy without at the same time working injustice on the other party. I shall grant the amendment sought as prayed with N40 as costs in favour of the defendants.”

Being dissatisfied with the judgment and orders of the trial court, they appealed to the court below. In that court, parties in accordance with the rules of that court then filed and exchanged their respective briefs of arguments. It is significant to note that in the briefs so filed by the parties, the question as to whether the amendment of the pleadings of the plaintiffs was properly granted by the learned trial Judge was raised in the briefs filed by the parties before the court below. The appellant in that court and in this court raised the question thus:

“3.1 Whether the learned trial Judge was right in granting the amendment sought by the plaintiffs after the defendants had addressed the court.”

While the respondent in that court and also in this court put the question thus: – .

“(1) Whether or not the learned trial Judge’s exercise of discretion to amend the capacity in which 1st respondent sued and to grant declaration of title to the respondents was a proper exercise of judicial discretion on the evidence before him.”

It became inevitable therefore, that this question would have to be addressed by the court below during the consideration of the appeal. And after due consideration of the effect of that amendment granted by the trial court, the court below allowed the appeal and ordered that the respondents’ claim be struck out. And it was so ordered with N500.00 costs. Both parties were in the circumstances dissatisfied with the judgment and orders of the court below. Accordingly, the appellant who succeeded in the court below has further appealed to this court. And the respondents who were unsuccessful filed a cross appeal, and in accordance with rules of this court, briefs were filed and exchanged. The appellant filed an appellant’s brief and a reply brief in response to the respondents’ cross appeal.

The brief of the respondents included the response to the appellant’s brief and the argument in support of the cross appeal. At the hearing, learned counsel for the parties adopted their respective briefs and placed reliance on them. Learned counsel also addressed the court orally to expatiate upon their arguments in their said briefs.

In the appellant’s brief, the two issues identified for the determination of the appeal read thus:-

“(i) Whether in view of the finding of the lower court and the appellant’s prayer before the court, the lower court has jurisdiction to strike out the case of the respondents as against the dismissal of the case.

(ii) Whether the lower court as an intermediate appellate court ought to have considered and given a decision on the other issues submitted for determination in the appeal before them and whether such consideration would not have assisted the lower court to correct the dismissal of this case.”

The respondents appeared to have adopted the issues identified in the appellant’s brief as they did not raise issues of their own in that part of their brief. But they duly set out two issues in respect of the four grounds of appeal they filed with the leave of this court in support of their cross appeal.

They are:-

“(1) Whether or not the learned Justices of the court were wrong to have interfered with the proper exercise of judicial discretion by the learned trial Judge and thereby came to a wrong decision in setting aside the judgment and striking out the appellants’ claim.

(2) Whether the learned Justices of the Court of Appeal exceeded the limits of their jurisdiction in proceeding to consider matters not covered by the grounds of appeal not raised in the appellant’s brief nor argued before them.”

Not to be outdone, the appellant in his reply brief decided also to set out two issues in that brief. They read: –

“(i) Whether the learned Justices of the Court of Appeal were not right in setting aside the declaration made in favour of the respondents having regard to the facts and evidence which clearly makes the reliefs granted inconsistent and a fraud in disguise.

(ii) Whether the learned Justices of the Court of Appeal were not right in setting aside the amendment granted by the trial court in this case”

These issues were set down in the appellant’s reply brief, according to the learned counsel for the appellant for the purposes of answering the argument of the respondents in their brief should the court accept them as constituting argument in their cross appeal. Earlier on in this judgment, I had stated that though the respondents did not identify separate issues for the determination of the appeal, they, however, set down issues for the determination of the appeal based on the grounds of appeal filed in support of their cross appeal. I do not therefore think that there is any merit in the contention made in the appellants’ brief that the respondents did nothing with regard to their cross appeal. Be that as it may, it is in my view manifest that the main question canvassed in the 1st issue identified by the appellant and also in the cross appeal of the respondent is whether the court below was right to have struck out the respondents’ case. On this issue, both parties took the same position as they both contended that the order striking out respondent’s claim should not be allowed to stand. But they parted ways thereafter.

For the appellant, it is argued that in the light of the lower court’s well founded and well reasoned judgment, the court below had no jurisdiction left upon which it could resort to an order striking out the respondents’ claims. It is therefore contended that the only order the court below could have made in the circumstances is an order of dismissal of the respondents’ claims. This is because, argued learned counsel for the appellants, the findings of the court below are not preliminary matters as to the institution of the action, nor was it on whether the trial court had jurisdiction to try the case, nor that the respondents have no locus standi, nor for want of compliance with any condition precedent. It was argued that if the court below perceived that as the respondents instituted the action in their personal capacity, they cannot if the action was re-instituted purge themselves of being “a veritable engine of fraud.” In support of all the contentions made for the appellant, he cited in Registered Trustees of Ifeloju Friendly Union v. Kuku (1991) 5 NWLR (Pt. 189) 65 at 78, where it was held ” a matter is struck out from the cause list if it has either not been heard on the merits or not heard at all.”

The other argument advanced for the appellant by his learned counsel is that, as the order for striking out was not asked for by the appellant, the court has no jurisdiction to strike out the respondents claim. As support for that proposition, he cited the following cases; Akapo v. Hakeem- Habeeb (1992) 6 NWLR (Pt.247) 266; Ekpenyong v. Nyong (1975) 2 S.C 71, 86; Nyagba v. Mbahan (1996) 9 NWLR (Pt. 471) 207; Akinbola v. Plisson Fisko (Nig.) Ltd. (1991) 1 NWLR (Pt.167) 270. Next, it was argued for the appellant that when the court below felt that an order other than the order for dismissal which the appellant asked for ought to be made then the parties should have been invited to address the court before making the order striking out the respondents’ claim. He then cited A.C.B. v. Crestline Service Ltd (1991) 6 NWLR (pt. 197) 301 at 314.

I have earlier in this judgment stated that the respondents also contended that the court below should not have made the order striking out their claim. Like the appellant, it was also argued for them that if the court below had that as its intention, and having raised it suo motu, then the court should have invited the parties to address the court on it, before making the order. In support of that contention, the case of Omoregbe v. Lawani (1980) 12 N.S.S.C. 164 at 170 was cited.

The respondents however do not share the view of the appellant that the court below should have dismissed the respondents’ claim. Rather, it is contended for them that the court below should not have interfered with the judicial discretion of the learned trial Judge, who it is claimed, had adverted his mind to the issues raised by both parties before arriving at his decision. There being nothing outstanding which was shown to have been an error in that decision of the trial court, the Court of Appeal should have upheld the decision of the trial court. The learned counsel then went on to identify several areas of the judgment of the court below where he claimed that the court below fell into error in its summation of the facts and the evidence led thereon before arriving at its decision. Though, I have looked at the points raised by the respondents, yet I must decline to consider them, as there are no grounds of appeal to justify the intervention of an appellate court in respect of those matters. It is well settled that where a party seeks to have an appellate court resolve a question decided by the court below, that party must have filed grounds of appeal germane to the question and issues properly raised thereon to justify the consideration of the question by an appellate court. See Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt.271) 517; Oshatoba v. Olujitan (2000) 5 NWLR (pt.655) 159; Ajibade v. Pedro (1992) 5 NWLR (Pt.241) 257 at 262; Arowolo v. Adimula (1991) 8 NWLR (Pt.212) 753; Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (Pt. 126) 299.

Now, it is manifest from all that I have said above, that both parties took the view that the court below had fully considered the merits of the appeal before deciding to strike out the respondents claim. I therefore need to consider whether that contention is valid. To resolve that question, the judgment of the court below has to be critically considered in the circumstances. After a careful perusal of the judgment, it is in my view manifest that in the leading judgment delivered by Salami, JCA, (and with which Mukhtar and Azaki, JJCA, concurred) the court was mainly concerned with the effect of the judgment of the trial court having regard to the amendment of the plaintiffs’ claim during the closing address of their counsel. It is my view that the concern of the learned Justices of the Court of Appeal was that by the amendment and with the plaintiffs’ claim remaining unamended, the interests of others were unfairly affected. Hence, after reviewing the parties affected by the amendment, the court below made the following observation:-

“It is therefore my firm view that the amendment hurriedly made was not only mala fides it has resulted in injustice to the defendants particularly Tijani Adewale and some other members of Raji family such as Omoboade section and Falilatu Raji whose section seems bifurcated.”

The rest of the judgment was an elaboration of this point taken by the court below with regard to the injurious effect of the amendment on the judgment that would, if allowed to stand, deny others whose interests were not properly protected in the action as constituted. It is also clear that the court below then duly considered the effect of dismissing the action. In the end, the court below allowed the appeal. But though the appeal was allowed, the court below made the further order of striking out the respondents’ claim. It is difficult to understand the rationale for this order as that was not the claim before the court. Having allowed the appeal, the court ought not to have made orders affecting the respondents’ interest without hearing from the parties. In this respect, I wish to refer to the principle that was so clearly enunciated in the case of Olusanya v. Olusanya (1983) 14 NSCC 97 at p. 102; (1983) 1 SCNLR 134 where this court said thus:-

“This court has said on a number of occasions that although an appeal court is entitled, in its discretion, to take points suo motu if it sees fit to do so, yet that discretion must be exercised sparingly and in exceptional circumstances only where the points are so taken the parties must be given the opportunity to address the appeal court before decision on the points is made by the appeal court. See Kuti & Anor v. Jibowu & Anor. (1972) 1 All NLR (Pt.1) p. 180 at p. 192; Salawu Ajao v. Karimu Ashiru & Ors (1973) 1 All NLR (Pt.11) p.51 at p.63;Atanda and Anor. v. Lakanmi (1974) 1 All NLR (Pt.1) p.168 at p. 178 and Kuti v. Balogun (1978) 1 LRN 353 at 357.”

Now, it is also patent that the appeal was considered in respect of the 1st issue raised in the appeal, which was allowed. It cannot, in my view be satisfactory to determine the appeal on that issue alone. I think that in the circumstances, the course of justice would be better served if the appeal is sent back to the court below for the hearing of the appeal on its merits.

In the result, the appeal is allowed, and the cross appeal succeeds. The appeal is therefore ordered to be sent back to the court below for re-hearing before another panel. Each party to bear its costs.

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SC.55/1996

Nnanta Orianwo V. L. O. Okene (2002)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, JSC

In Suit No. PHC/119/81 in the Port Harcourt Judicial Division of the High Court of Rivers State, Nnanta Orianwo, Richard Wosu, Franklin Amadi, Thomas Acho and Boniface Elewa, for themselves and on behalf of Rumuorianwo Wogozo Family (hereinafter are referred to as Plaintiffs) sued L. O. Okene, Harrison Okene and Maxwell Okene, for themselves and as representing the Okene Amadi Family (hereinafter are referred to as Defendants), claiming as per paragraph 24 of their amended statement of claim:

“(i) A declaration of the plaintiffs customary right of occupancy to all that piece or parcel of land known as and called ‘Ohia Otuloro’ lying and situate at Rumuokwurusi, Obio, Port Harcourt, which said piece or parcel of land is more particularly delineated and verged red on the survey plan No. FO/1A/82 L.D. annexed to this statement of claim.

(ii) N50,000.00 (fifty thousand Naira) being general damages for trespass committed by the defendants on the portion of the plaintiffs said land outside the area verged brown on the said survey plan;

(iii) A perpetual injunction to restrain the defendants and each of them whether by themselves, their servants, agents or otherwise howsoever from entering the plaintiffs said land or ever interfering with the plaintiffs in their possession, occupation, use and enjoyment of their said land, save and except the said portion of land verged brown.”

Pleadings were filed and exchanged and, with leave of court, amended.

Shortly after the above suit was instituted, Harrison Okene and Emmanuel Okene, on behalf of themselves and other members of Okene Family instituted a cross action in suit No. PHC/126/81 CLAIMING FROM Fyneface Lawa, Cyprian Lawa and James Achor:-

“1. the sum of N20,000.00 as special and general damages for trespass committed on the Plaintiffs’ land known as ‘OTULORO’ situate at Rumuwokerebe Village, Rumuokwurusi within the jurisdiction of this Honourable Court;

2. perpetual injunction restraining the defendants, their privies, agents and servants from further acts of trespass on the said land.”

Following the death of Harrison Okene, Lawrence Okene was by order of court substituted in his place. Pleadings were ordered, filed and exchanged and, by leave of court, amended. The plaintiffs in the action also filed a reply to the statement of defence.

As the two actions related to the same land and were between the same families, the suit No. PHC/126/81 was, on the application of learned counsel for the parties in the case, transferred by order of court to the court handling suit No. PHC/119/81 presided over by Ungbuku, J. as he then was. And on the application of plaintiffs in suit No. PHC/126/81 and defendants in suit, No. PHC/119/81, the two suits were, by order of court made on 31/10/85, consolidated. It was further ordered that-

“By this consolidation the Plaintiffs in Suit PHC/119/81 are the Plaintiffs and the defendants in the said suit who are plaintiffs in Suit No. PHC/126/81 are the defendants”

At the trial, Plaintiffs called 6 witnesses in support of their case. The Defendants called 5 witnesses. At the conclusion of trial and after addresses by learned counsel for the parties, the learned trial judge (Ungbuku, J) in a well considered judgment found for the Plaintiffs and entered judgment in their favour in terms of their claims in Suit No. PHC/119/81; he dismissed the Defendants’ suit No. PHC/126/81.

The Plaintiffs’ case is that one Wokerebe was the original owner of the land known as “Ohia Otuloro” in Rumuokwurisi Village, Obio, Port Harcourt. Wokerebe (or Okerebe) lived many years ago. At his death he left behind 9 sons named (in order of seniority by age) Wosu, Wogozo, Ikeani, Wuche, Chukwuntu, Amadi, Wolu, Ndumati and Okekem. The Plaintiffs descended from Wogozo while the Defendants descended from Amadi. Only Wosu, Wogozo, Ikeani and Wuche were adults at the time of the death of their father Wokerebe and it was only these four sons that performed the burial rites of their father and took part in the sharing of his estate. The other five sons being minors, did not share in the estate of Wokerebe; they were instead given to the older sons as wards. Amadi, Defendants’ ancestor was given as ward to Ikeani who took him in and gave him land to settle upon. It is the case of the Plaintiffs that according to Ikwerre custom only male children who performed the burial rites of their father can inherit his estate. The five sons of Wokerebe, that is, Chukwunta, Amadi, Wolu, Ndumali and Okekem, being minors at the time Wokerebe died, did not take part in his burial rites and, therefore, did not inherit in his estate. Wokerebe’s lands were shared between Wosu, Wogozo, Ikeani and Wuche. The land “Ohia Otuloro” was shared between Wosu and Wogozo; an ancient footpath marked their boundary.

When Amadi was living with Ikeani, he committed adultery with Ikeani’s wife for which Ikeani drove him away from his land. Amadi sought refuge with Wogozo who gave him part of his “Ohia Otuloro” to settle. Amadi soon got into another trouble. Wogozo had died then and had been succeeded by his son Orianwo. Amadi killed the cow of one Chief Okpoko of Maleri village and dumped the carcass in a pit. Chief Okpoko grew annoyed and invoked his “juju” to punish the wrongdoer. The juju killed some of Amadi’s children; only his son Okene escaped death. Amadi, in fear of his life, had to run back to Ikeani’s land with his son Okene. Ikeani had died then. Amadi was taken back and resettled on the old land given him by Ikeani. There he lived and died and was buried. His son Okene also lived there. When Okene’s family grew large and the land became insufficient for them to live on, Okene in 1946 approached the Plaintiffs family for permission for his children to reoccupy part of Plaintiffs’ land that was previously given to his father, Amadi by Wogozo. Onyenweibea was the head of Plaintiffs’ family at that time. Onyenweibea gave permission to Okene who settled thereon his children Harrison Okene, Maxwell Okene and Emmanuel Okene, all of whom built houses on the land. The portion of Ohia Otuloro given to Amadi and on which Okene’s children later settled is demarcated on Plaintiffs’ land Exhibit A in this case. Plaintiffs remained in possession of the rest of Ohia Otuloro belonging to them. Okene and his first son Isiah Okene lived and died in Ikeani’s compound and were buried there.

In 1964 it was discovered that someone had planted some palm tree seedlings on the land. As the plantation did not belong to any member of Plaintiffs’ family, they went on the plantation and cut down the seedlings. Emmanuel Okene who owned the plantation did not complain nor sue the Plaintiff’s. Some of the palm tree seedlings survived and in 1971 Plaintiffs again went on the plantation and destroyed those that survived. Some members of Plaintiffs’ family later built on portions of the land without any disturbance from the Defendants or any one else. One of the houses was occupied by one Dr. Kolade who was running a medical clinic there. People around the area including the Defendants, attended Dr. Kolade’s clinic. In 1981, Charles Okene of the Defendants’ family went outside the area given his family to build on the land in Plaintiffs’ possession. The Plaintiffs protested and subsequently instituted the action leading to this appeal.

The Defendants admitted the history that Wokerebe was the common progenitor of the parties and the original owner of Ohia Otuloro. They also admitted that Wokerebe died and left behind 9 sons. They gave the names of the 9 sons as Wosu, Wogozo, Ikeani, Nwuche, Chukwurutu, Okene, Amadi-Ndukuru, Amadi-Wolu and Ndumati. They admitted that the Plaintiffs descended from Wogozo but claimed that their own ancestor was Okene and not Amadi as claimed by the Plaintiffs. They admitted in evidence that when Wokerebe died only the first four children were married and owned their own houses; the remaining 5 sons, including Amadi their ancestor, were not married then and had no houses of their own because they could not afford it. They claimed, however, that all the 9 sons inherited their father’s estate and that the land Ohia Otuloro was given to Amadi, their ancestor. Okene, Wokerebe’s son begat Amadi who in turn begat Okene, Nwosu, Enwudebe and Enwumelu. They claimed that when Okene died his son Amadi continued to live on the land Ohia Otuloro inherited by Okene. They also claimed that Amadi’s slaves killed a cow belonging to Okpoko and the latter in consequence invoked his juju. The juju killed Amadi and three of his children, leaving only his son Okene. Amadi left Okene in the care of Amadi Ikeani, his relation. On the death of Amadi Okene and for fear of Okpoko, Amadi Ikeani took Okene into his care and gave him land to settle on. Okene grew up, and lived in Ikeani’s compound and raised up his family there. He did not return to Ohia Otuloro. In 1946 when the land given to him in Ikeani’s compound could not contain his family, he took some of his sons to build houses on Ohia Otuloro and to live there. Okene lived, died and was buried in Ikeani’s compound. His children, Harrison Okene, Maxwell Okene and Emmanuel Okene built houses on Ohia Otuloro and in 1963 established a palm plantation on the land. They harvested the plantation until 1981 when Plaintiffs came to set it on fire. James Achor and Nwanele also came on the land and started to erect buildings on it. As a result of these acts they instituted their action PHC/126/81.

The Defendants admitted in evidence that according to Ikwerre custom any male child who does not participate in the burial rites of his father does not inherit in the father’s estate. They also admitted that some members of Plaintiffs’ family built on the land, particularly the one occupied by Dr. Kolade and they did nothing about it.

In his judgment, the learned trial judge after a review and evaluation of the evidence before him, found:

1. “I am convinced from the facts and circumstances of this case that the defendants are of the lineage of that son of Wokerebe called Amadi by the plaintiffs or Okene by the defendants.
2. “It is in evidence that the nine families, descendants of the nine sons of Wokerebe are existing still as separate identities. Corroborative evidence of whether Amadi or Okene was a direct son of Wokerebe can easily be got from any of the other family groups. It is only the plaintiffs who called Chief Abel Nwosu PW4 to corroborate their version. Chief Abel Nwosu is from Rumuwosu family, the first son of Wokerebe. Chief Jonathan Sam Amadi DW5, the defendants called, admitted that Wokerebe had nine children but did not mention their names.

The version of the plaintiffs on this issue is better preferred to that of the defendants.”

3. “I am convinced from the facts and circumstances so far considered, to hold that the traditional history of the plaintiffs, placed side by side with that of the defendants, is more probable to the truth than that of the defendants.”
4. “…….the poultry house, of Emmanuel Okene, the house of Harrison Okene and Maxwell Okene are all built within the residential area of the defendants. The said houses are clearly shown in all the Survey plans, Exhibits A, B, C & D, tendered in evidence. From Exhibits A, B, C and D and the evidence of plaintiffs, the land in dispute excludes the residential area of the defendants. The residential area of the defendants is verged Brown in plaintiffs plan Exh. A, and is to the east of the land in dispute. The land in dispute is verged yellow in Exh. ‘A’ and it is only Charles Okene’s house that is there within. That house is the cause of action in PHC/119/81′
5. “It is true that Emmanuel Okene made a palm plantation on the land in dispute sometime 1963/64 but I do not accept the defendants claim that the said plantation was of 20 acres or as shown in their plans.”
6. “The defendants have not enjoyed uninterrupted acts of ownership and enjoyment over the land in dispute.”
7. “The defendants silence in their pleadings as regards these acts of the plaintiffs, is indicative of admission of the facts the plaintiffs assert.”
8. “The land in dispute as shown in all the survey plans tendered in evidence is almost identical, particularly the boundaries. On the north is the land of the plaintiffs, on the east is the residential area of the defendants, on the south is Rumuwosu family land and on the west is defendants land acquired from Rumucheta family in Mbuesilaru Village.”
9. “On the whole it was plaintiffs alone that called witnesses to prove the boundaries of the land in dispute.”
10. “I am inclined to believe and I do accept that the eastern boundary of the land in dispute is that shown in Exhibits A and B, the plaintiffs Survey plans.”
11. “I have considered the evidence of both parties on traditional history, acts of ownership, possession and enjoyment and of boundaries, over the land in dispute and I am convinced thereby to hold that the plaintiffs have proved their title, and possession over the land in

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dispute and are therefore entitled to judgment.”

The learned trial Judge observed that, going by the case of the defendants, they appeared to be “a people trying to extend their territorial boundaries as a result of population growth”. It is upon the above findings that the learned trial Judge entered judgment for the Plaintiffs and dismissed the claims of the Defendants in Suit No. PHC/126/81. After entering judgment for the Plaintiffs, the learned Judge added:

“I make no particular order in respect of Charles Okene’s house which was completed during the tendency of this case because the plaintiffs did not ask for a particular relief.”

The Defendants were dissatisfied with the judgment against them and appealed to the Court of Appeal. The Plaintiffs, too, were not happy with the trial Judge’s addendum to his judgment on Charles Okene’s house and appealed against that part of the judgment.

The Court of Appeal allowed the Defendants’ appeal, set aside the judgment of the trial Court and entered judgment for the Defendants in the sum of N1,000.00 as general damages for trespass and injunction as claimed in Suit No PHC/126/81. The Court dismissed Plaintiffs’ claims in Suit PHC/119/81 and their cross appeal. In resolving the appeal before it, the Court of Appeal found, per Nsofor JCA who read the lead judgment of that Court:

1. “The trial Judge stated the issues, narrowly in my view, when he said:-

‘The name of the defendants’ ancestor to my mind is lesser evil than the issue of inheritance. The crucial question is whether or not the defendants’ ancestor by whatever name called, was a minor at the death of his father and inherited nothing from the father’s estate because he did not perform the burial rites of the late father.’

The issue, with due deference to the trial Judge was so narrowly formulated that he appeared to overlook gravamen of the contest, the back of it all on the pleadings and evidence as led. Each party had traced its genealogical history differently. The appellants have consistently maintained that Okene, through whom they claim the land in dispute, was a son of Wokerebe, and, that Amadi, whom the respondents asserted was their (appellants’) ancestor and, son to Wokerebe, was the son of Okene. Therefore, who or what Amadi was became material. So also, who or what Okene was, was material before it would be resolved whether either Amadi or Okene performed the burial rites of Wokere be. Unless and until it be found one way or the other, based on the evidence, who performed any rites and so entitled to participate in the partition of the Wokerebe’s lands would be a subsidiary question, a corollary to the principal question of who was who and, so what.”

2. “….the respondents, qua plaintiffs in the Suits as consolidated, not having proved the Ikwerre native law and custom on which they hoisted their claims in the context I discussed above, and the failure of the trial court to make findings on material and vital facts, it is my judgment, that judgment ought to be entered in favour of the appellants, qua defendants in the Suits as consolidated.”

It would appear that it is upon these two findings that the Court below disturbed the judgment of the trial High Court. This is manifested in the judgments of Nsofor JCA and Katsina-Alu JCA, as he then was. Uwaifo JCA, as he then was, appeared to add another issue, failure to prove the certainty of the land claimed by Plaintiffs, as another factor for finding against the Plaintiffs

The Plaintiffs have now appealed to this Court against the judgment of the Court of Appeal upon 6 grounds of appeal contained in a Notice of Appeal filed with the leave of this Court. The Parties filed and exchanged their respective briefs of argument; the Plaintiffs also filed a Reply Brief. The Plaintiffs formulated 6 questions as arising for determination in this appeal, to wit:

“1. Whether the learned Justices of the Court of Appeal were right in allowing the appeal on the ground that the trial Court had failed to make a finding of fact on the issue of the status of Amadi and Okene, when a finding of fact on that issue was actually made by the trial Court.

2. Whether the failure by the learned Justices of the Court of Appeal to consider the vital issue of ‘on whom the land in dispute vested on the death of Wokerebe’ had not occasioned a great miscarriage of justice.
3. Assuming that the issue as to the status of Amadi and Okene was not resolved by the trial Court, were the learned Justices of the Court of Appeal right in entering judgment for the Defendants/Respondents, having not by themselves resolved the issue in favour of the Defendants/Respondents?
4. Were the learned Justices of the Court of Appeal right in entering judgment for the Defendants/Respondents on the ground of the non-pleading by the Plaintiffs/Appellants of the Ikwerre Native law and custom of burial rites of deceased persons when what were the said burial rites had never been an issue in the case.
5. Were the learned Justices of the Court of Appeal right in not considering the Plaintiffs/Appellants cross-appeal and in making an order striking out the cross-appeal?
6. Were the learned Justices of the Court of Appeal right to have awarded damages to the

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Defendants/Respondents in trespass and in making an order of injunction against the Plaintiffs/Appellants?”

The Defendants formulated 5 questions in their brief. I have compared their set of questions with that of the Plaintiffs. The two sets of questions raise more or less identical issues. I am, however, satisfied that, having regard to the grounds of appeal and the judgment appealed against, Plaintiffs’ set of questions is to be preferred.

I now come to consider the questions raised in this appeal. And in doing so I shall take Questions 1, 2 and 3 together.

‘Questions 1, 2 and 3:

Nsofor JCA in his lead judgment had criticised a passage in the judgment of the trial court where that Court had indicated that the crucial question in the case before it was whether or not the Defendants’ ancestor inherited nothing from Wokerebe’s estate. I have quoted earlier in this judgment what Nsofor JCA said. But for case of reference I shall quote it here again:

The learned Justice of the Court of Appeal wrote:

“The trial Judge stated the issues, narrowly in my view, when he said:-

‘The name of the defendants’ ancestor to my mind is lesser evil than the issue of inheritance. The crucial question is whether or not the defendants’ ancestor by whatever name called, was a minor at the death of his father and inherited nothing from the father’s estate because he did not perform the burial rites of the late father.

The issue, with due deference to the trial Judge was so narrowly formulated that he appeared to overlook gravamen of the contest, the back of it all on the pleadings and evidence as led. Each party had traced its genealogical history differently. The appellants have consistently maintained that Okene, through whom they claim the land in dispute, was a son of Wokerebe, and, that Amadi, whom the respondents asserted, was their (appellants’) ancestor and, son to Wokerebe, was the son of Okene. Therefore, who or what Amadi was became material. So, also, who or what Okene was, was material before it would be resolved whether either Amadi or Okene performed the burial rites of Wokere be. Unless and until it be found one way or the other, based on the evidence, who performed any rites and so entitled to participate in the partition of the Wokerebe’s lands would be a subsidiary question, a corollary to the principal question of who was who and, so what.”

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SC. 116/1998

Oseni Aboyeji Vs Amusa Momoh & 2 Ors (1994)

LawGlobal-Hub Lead Judgment Report

ONU, J.S.C.

In the High Court of Ondo State at Ado-Ekiti, the plaintiff, now appellant claimed as against the three defendants, now respondents, for ownership and possession of a farmland at Imola on Aba Bolorunduro Road, Aisegba-Ekiti; N1,300 general and special damages for trespass and misappropriation of his crops and finally for injunction.

Pleadings were ordered, filed and exchanged with the respondents who filed a joint Statement of Defence, amending same before the case went to trial. The appellant testified and called witnesses to show-

(a) That in 1960 he was given a grant of land by one Aruwa (in his Statement of Claim he however averred that by a tenancy agreement between him and the chiefs of Aishegba-Ekiti he entered into an agreement for the piece of land and his tenancy agreement he would found at the trial). See paragraph 6 of the appellant’s statement of claim at page 22 of the record and compare same with his evidence at pages 57-59 of the record of appeal.

(b) At the trial the tenancy agreement was rejected in evidence when appellant sought to tender it.

(c) Appellant tendered the survey plan made in 1968 following his grant of the land and it was received for identification only

(d) Appellant called no boundary witnesses albeit that he pleaded their existence. One of the boundary men mentioned by him however testified as D.W.3 for the respondents while the second only appeared at the locus and there, contrary to expectation testified for the respondents.

(e) The boundaries he gave evidence of were not contained in his pleading.

(f) He failed to call as witness, his grantor be it Aruwa or any of the Aisegba Chiefs.

(g) At the inspection of the land in dispute, the appellant was found to be encircled by the lands of the respondents rather than as he pleaded that they (respondents) had a common boundary on one side or were adjacent to him, adding that he first sighted the respondents on the land in 1965 whereas his tenancy agreement which was technically rejected at the hearing for non-registration, he purported to have entered into in 1968.

The second respondent testified for the defence (the 1st respondent who was the late Olukare of Ikare, having died during the pendency of the suit) and called witnesses inclusive of:

(a) their grantor who asserted he made the grant of the land in dispute to them.

(b) a brother of the grantor who asserted he went to plot out the parcels for them. He stated the boundaries and added that he personally delivered their portions to them.

(c) their third and fourth boundary men were called and they testified in support of their claim to the land in dispute.

The learned trial Judge (Adeloye, J. as he then was) using the fact of his visit to the locus in quo and ostensibly taking into account other sentimental matters of the appellant being a stranger/settler from Omuaran in Kwara state and was therefore being mistreated as such a stranger element in other people’s land; coupled with an unpleaded fact that the two families of Aisegba and Iluomoba were involved in litigation over the larger piece of land encompassing the one in dispute, proceeded at the close of evidence to give judgment to the appellant for all his claims as hereinbefore set out.

Being dissatisfied with this decision, the respondents appealed to the Court of Appeal sitting in Benin, which upon hearing the parties, reversed the decision of the trial court by a majority of two to one and ordering appellant’s claims to be dismissed with costs.

Being aggrieved, the appellant has appealed to this court, filing a Notice of Appeal containing eight grounds.

Briefs of argument were filed and exchanged by the parties in accordance with the rules of court. Eight issues distilled out of the eight grounds were submitted for our determination. They are:-

1. Where an appeal court finds that the trial court had followed an illegal procedure during the trial and had based its judgment on evidence obtained illegally, and the appeal court sets aside the said judgment, what is the proper order which the appeal court ought to make, order of dismissal or order of retrial
2. Where the tenancy agreement is rejected in evidence because it was not registered, whether or not the tenant can give evidence of the relationship of tenant and landlord to prove the existence of the grant to him
3. Where an appeal court finds that a trial Judge had during the trial based his judgment on his view instead of on evidence whether a proper trial can be said to have taken place, and if not, what order should the appeal court make
4. Whether or not the interest of a plaintiff in possession should be protected until the true owner of the land is known
5. Where the most central and material conflict between the plaintiff and the defendant had not been resolved during the trial in the trial court, and the appeal court sets aside the judgment of the trial court, what is the appropriate order which the appeal court ought to make, order of dismissal or order of retrial
6. Whether or not the non-admission of the survey plan in evidence necessarily means that boundaries of the farm have not been proved
7. Where a tenant farmer is plaintiff in possession and his title is defective or not, namely, it is not yet confirmed whether his landlord or somebody else has legal title to the farmland, can the tenant farmer maintain an action in trespass and has he any interest in the farm or crops which the court of Justice must protect or enforce
8. Where a tenancy agreement is not admissible to prove title because it was registered, is the same tenancy agreement admissible for any other purpose

At the hearing of this appeal on 7th February, 1994 learned counsel for the respondents, Mr. Akanle submitted that he had brought a preliminary objection pursuant to order 2 Rule 9(1) and Order 6 Rule 5(1) (b) of the Supreme Court Rules to have all eight grounds of appeal struck out in that being grounds of mixed law and facts, no leave was sought and obtained from either the court below or of this court to argue them. Learned counsel for the appellant, Chief Adeoye, replied that while it was true that he never asked for leave, the grounds being those of law alone they were without more arguable. He therefore referred us to the Notice of Appeal at pages 162-166 of the records and touched on all grounds of appeal to demonstrate each was a ground of law simpliciter. We agreed with him, overruled the preliminary objection and so held all grounds to be arguable.

Learned counsel on either side thereupon relied on their briefs of argument. In addition, learned counsel for the respondents submitted that the appeal of the appellant be dismissed instead of ordering a retrial. As the respondents ostensibly adopts the issues formulated by the appellant, in my consideration of the appeal I shall proceed to deal with them serially hereunder thus:

ISSUE 1 –

In answering the 1st issue, it is pertinent to point out from the on set that the grouse therein applies mainly to the evidence taken at the locus. As learned counsel for the appellant concedes in the appellant’s Brief, the procedure followed by the trial court to obtain evidence there at was highly irregular. For instance, those who gave evidence thereat neither swore on oath nor by affirmation. Instead of swearing or affirming the witnesses; what the learned trial Judge did was to conduct an interview whereby he took or regarded all the answers he got as evidence in breach of section 76(ii) of the Evidence Act which provides inter alia.

“…In the case of such inspection being ordered or permitted, the court shall either be adjourned to the place where the subject matter of the said inspection may be and the proceedings shall continue at that place until the court further adjourns back to its original place or to some other place of sitting, or the court shall attend and make an inspection of the subject-matter only, evidence if any, of what transpired there being given in court afterwards …”

While I agree with the appellant’s submitted that the learned trial Judge in the instant case failed to comply with the mandatory provisions of the above sections as clearly restated in R. v. Togbe 12 WACA 184 and Awoyegbe & Anor v. Ogbeide (1988) 1 NWLR (Pt.73) 695 at 799 and 710. I would not subscribe to the view that evidence taken at the locus is a nullity and by extension, the entire judgment founded thereon. Rather the law, in my view, is that evidence wrongly obtained as happened at the locus in the instant case, is to be expunged or discountenanced by the appeal court. Such that if what remains of the evidence can still support the judgment, it stays, if not, it is reversed and an order of dismissal or retrial is made as the circumstances demand. See Ajayi v. Fisher (1956) SCNLR 279; (1956) 1 F.S.C. 90 at 92 and Yongo v. O.O.P (1990) 5 NWLR (Pt 148) 104 at 114 Indeed, as was held by this court in Seismograph Services Ltd v. Benedict Etedjere Onokpasa (1972) 1 All NLR (Pt. 1) 343 in which Chief Aaron Nwizuk v. Warribo Eneyok (1953) 14 WACA 354 was distinguished, the trial Judge’s own observations at an inspection of the scene are not facts and proceed to make findings on them, unless evidence thereon has been received at the scene or in court through a witness and the parties have been given an opportunity to hear the additional evidence and cross-examine on it. See Popoola Olubode & 2 Ors v. Alhaji Salami (1985) 2 NWLR (Pt.7) 282.

The fact that in the instant case evidence was no more given by witnesses in court after the visit to the locus and at the locus it considered irrelevant matters unconnected with what was pleaded by the parties, are not fatal to the proceedings in view of this court’s earlier decisions in Musa Maji v. Mallam Shewu Shaft (1965) NMLR 33 at 34 and Nwizuk v. Eneyok (supra). In Awoyegbe v Ogbide (supra), a case involving land allocation under Bini customary law and in which the two cases above were followed, this court held that a mere absence of a record of inspection of a locus in quo by the Judge (which is not what happened in the instant case) is not necessarily fatal to the case and that a statement by a Judge in a solemn judgment should be accepted as a correct account of what occurred. In that case Awoyegbe v. Ogbeide (supra) the statement made by the trial Judge in his “solemn” judgment, as in the instant case, not being a correct account of what occurred as no witness gave that evidence, this court held that he erred in law and that the Court of Appeal was right to have upheld the appeal before it on that ground. As Oputa, J.S.C put it in that case:

“In effect what the trial Judge had done was to treat his view of the locus as ‘findings’ in the case.”

It is perhaps pertinent in the instant case where the learned trial Judge erroneously but not fatally took into account unpleaded facts and evidence not before him, to re-echo Oputa, J.S.C’s timely warning with reference to the West Africa Court of Appeal’s case A. Ejidike & Anor. v. Christopher Obiora (1951) 13 WACA 270 at 274 where Sir John Verity Ag. President of the court said:

“….. in all cases in which a visit is paid by the court to the locus in quo in a civil action (and likewise in a criminal case) the Judge should be careful to avoid placing himself in the position of a witness and arriving at conclusions based upon his personal observations of which there is no evidence upon the record. When there is conflicting evidence as to physical facts, I have no doubt that he may use his own observations to resolve the conflict, but I do not think it is open to him to substitute the result of his observation for the sworn testimony nor to reach conclusions upon something he has observed in the absence of any testimony of oath as to the existence of the facts he has observed. Should he do so he would in my view, be usurping the position of the witnesses………….”

In the instant case, it is enough as observed above to either expunge the things stated at the locus in quo or to discountenance them as irrelevant and proceed to decide the rest of the case according to substantial justice.

In the instant case in hand, were the inadmissible evidence of the visit to locus have been admissible, the hopelessness of the appellant’s case as made, would still not have saved the situation. Hence, to urge that a retrial should be ordered would be unfair if not illegal, as I shall seek to show elsewhere in this judgment. Indeed, rather than appeal against the findings of the trial court and subsequently that of the court below on locus in quo, the appellant conceded to the irregularity thereat.

ISSUE 2:

In relation to issue 2, the law would clearly seem to recongnise the right in a tenant to give oral evidence of a tenancy agreement to prove the existence of the grant albeit that the document itself (tenancy agreement) is not produced or tendered. Be that as it may, the trouble in the instant case is the tenancy agreement or document of grant was rejected on the technical legal ground that it was not registered, while the oral evidence given by the appellant was hollow. That this is so can be gathered from the appellant’s own terse evidence on the point at page 57 lines, 30-33 of the Record of Proceedings. Said he when he was examined in Chief:

“About six years after I had been given the land Aruwa gave me a document of agreement. I signed the agreement. So too did Aruwa; I was given the document. I have kept in (sic) since.”

When it is known that in Paragraph 6 of his Statement of Claim the appellant had pleaded that:

“(6) In the year 1960, the plaintiff was granted the possession of a piece of land at a place called Imola on Aba Bolorunduro Road in Aisegba Ekiti by a tenancy agreement between the plaintiff and the Chiefs of Asegba Ekiti. The tenancy agreement will be tendered and is hereby pleaded.”

this piece of pleading derogates from or is not in consonance with the evidence set out above which he later gave when he testified before the trial court. The appellant therefore clearly deviated from his pleadings when in his testimony, he made a case otherwise than he therein pleaded. For instance, his evidence in chief that Aruwa gave him a document of agreement (not the chief of Aisegba, Ekiti) which both he (appellant) and Aruma signed, he was making a case other than as contained in his Statement of Claim. Such a piece of evidence where adduced goes to no issue. See N.I.P.C. v. Thompson Organisation & Ors. (1969) 1 NMLR 192 at 103-104; Emegokwue v. Okadigbo (1973) 1 NMLR 192 at 195; Maduabuchukwu v. Umunakwe (1990) 2 NWLR (Pt.134) 598 at 608; and Uredi v.Dada (1988) 1 NWLR (Pt.69) 237 at 246.

Besides, the appellant did not say specifically, who Aruwa was whether the head of Aisegba chiefs one of them or what! Hence, the onus that law on the appellant to prove his case by credible evidence in keeping with his pleading was not discharged. Indeed, appellant’s case was so wobbly that he damagingly made the fatal admission as part of his testimony at page 58, lines 25-27 thus:

“…I am claiming the farm not the land I am ready to pay Ishakola to the defendants if it happens that the land does not belong to Aruwa.”

Calling Aruwa’s son to wit: 3rd P.W. (Clement Faloye) to lend support to appellant’s case as submitted by learned counsel for the appellant, would have come to naught and of no avail in the light of his clear manifestation of the appellant’s non-investigation of the root of his purported grantor’s title to the disputed piece of land before entering into possession in 1960. When 3rd P.W. in fact came forward to testify for the appellant in support of the grant, nothing from his testimony left a tell-tale from which to decipher that Aruwa was a chief or one of the chiefs of Aisegba who as head, could dispose of the land. For its brevity and its capacity to do more harm than good to appellant’s case, I quote hereunder 3rd P.W.’s evidence at page 61 of the Record as follows:-

“I am a farmer. I know the plaintiff I know Aruwa he is my father. There was a transaction between plain tiff and Aruwa. Plaintiff was given land by Aruwa. I went with plaintiff to measure the land out to him. I told him the land belonged to Aruwa. Plaintiff cultivated the land and planted cocoa, kola-nut, plantain. I know the defendants …”

(the italics is mine).

The import of the underlined words is to bring out glaringly the fact that this piece of evidence led at appellant’s instance bore no relevance to his pleading in which his grantors are shown to be in the evidence adduced. Here, the submission of the learned counsel for the appellant that by the respondents’. Statement of Defence wherein they pleaded at paragraph 12 that –

“It was about 1965 that the plaintiff the land in dispute and laid claim thereto saying that some Chiefs at Aisegba had granted him possession of the land”

may be likened to an admission giving rise to the legal proposition that what is admitted needs no further proof. See Owosho v. Dada (1984) 7 SC. 149 at 163-164. This is because such a submission is erroneous and baseless. Thus, should one accept learned counsel for appellant’s submission which in essence is nothing but a right-about-turn he is making, his proposition that a customary tenancy needs not be in writing goes solidly against the grain of his pleading which relies for support on a purported written agreement. It is for this reason above anything else, that the trial court’s finding that the appellant’s and 3rd P.W.’s evidence went to no issue and the court below’s affirmation of same, is in my respectful view, unimpeachable.

ISSUE 3:

While in answer to this issue, I take the firm view that a decision based on a trial court’s personal view cannot be allowed to stand. See Ejidike v. Obiora 13 WACA 270 at 273-274; The State v. Aibangbee (1988) 3 NWLR (Pt.84) 548; in view of all I have said already under. Issue 1 above. where personal view hereinbefore discussed in relation to the visit to locus is discountenanced and it is acknowledged that the appellant’s case is incurably bad, his case ought to be dismissed. The consequence of all these is that an order for retrial is totally out of the question here. A retrial may be ordered when there has been no just trial and not, as in the instant case, when a party has failed to prove his case and in addition wants another opportunity of proving what he failed to prove in the first instance. See Duru v. Nwosu. (1989) 4 NWLR (Pt.113) 24 at 42; Elias v. Disu (1962) 1 SCNLR 361; (1962) 1 All NLR 214 at 219 and Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 at 161.

ISSUE 4:

This issue is as to whether or not the interest of a plaintiff in possession should be protected until the true owner of the land is known.

Suffice it here to say in answer to it that the appellant in the instant case failed woefully to prove his grant. In the first place, he called no grantor. Indeed, he pleaded one grantor to wit: Aisegba Chiefs but he gave evidence of another, namely, one Aruwa whose role was not known or stated. Secondly, the appellant did not prove the extent of his grant. It is an established principle of law that where a party pleads and relies on grant as his root of title, he is under a duty to prove such grant to the satisfaction of the trial court. So held this court in Chief O. Odojin v. Isaac Ayoola (1984) 11 SC. 72 at 106 and 116. In the case in hand, the appellant did not prove the extent of his grant 2nd P.W. (Yahaya Bello) and 3rd P.W. (Clement Faloye), having contradicted themselves as to its dimension. On the other hand, the respondents proved their grant with certainty and their grantor D.W.1. (Chief Ojo Boisa) testified on their behalf in confirmation thereof. The court below so upheld. Compare the case of Joshua Ogunleye v. Babatunde Oni (1990) 2 NWLR (Pt.135) 745 where there was no confusion on the part of the learned trial Judge as to the distinction between a grant and a title. In the instant case, however, there is an utter failure on the part of the appellant as plaintiff to simply establish who his grantor was and the extent of his grant therefore; a failure to which the learned trial Judge contributed in erroneously finding in his favour. Also in Ogunleye v. Oni (supra) where inter alia one of the issues submitted for the determination of the Supreme Court was what is required to prove by a plaintiff who relies upon a grant for his root of title to land, Nnaemeka-Agu J.S.C at pages 782-783, paragraphs A-H said:

“One significant off-shoot in this case is the apparent confusion by the learned trial Judge as to the difference between a grant and a title. He assumed that a proof of a grant necessarily amounted to proof of title. But in my respectful opinion it is not necessarily always so. No doubt, proof of a grant is one of the five ways of proving a title: See Idundun v. Okumagba (1976)9-10 SC. 227; also Piaro v. Tenalo (1976) 12 SC. 31 at page 37. But it would be wrong to assume, as the learned trial Judge obviously did in this case, that all that a person who resorts to grant as a method of proving his title to land needs to do is to produce the document of grant and rest his case. Rather, whereas, depending upon the issues that emerged on the pleading, it may suffice where the title to the grantor has been admitted, a different situation arises, in a case like this where an issue has been raised as to the title of the grantor. In such a case the origin of the grantor’s title has to be averred on the pleading and proved by evidence. See Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt.7) 393 at 431 and Elias v. Omo-Bare (1982) 5 SC. 25 at 57-58.”

In the instant case, not only was the grantor’s title denied, the grantor’s name and the extent of the grant as pleaded by the appellant were otherwise than as pleaded. Moreover, the document constituting the grant (the tenancy agreement) having been effectively barred from forming part of the evidence of the grant and for good legal reason, evidence led at the trial constitutes evidence not led in support of the pleading and therefore goes to no issue. See Olanrewaju v. Bamigboye (1987) 3 NWLR (Pt.60) 353 at 359 following Emegokwue v. Okadigbo (1973) 4 SC. 113.

Thus, the respondents proved a better title and as far as they are concerned, the appellant is a trespasser and was so treated. The law is firmly established that a trespasser in possession is not in legal or legitimate possession. See Da Costa v. Ikomi (1968) 1 All NLR 394 at 398; Talabi v. Adeseye (1973) 1 NWLR 8 at 10; Badiru v. Ozoh (1986) 4 NWLR. (Pt.38) 724. The appellant’s interest in the land in dispute, if any, was therefore in trespass and such cannot be protected by law. As a tenant cannot be sued in trespass See Adeleke v. Coke (1961) 1 All NLR 35 and only the person in actual possession can. See Ekwere v. Iyiegbu (1972) 6 SC. 116 at 138 since the appellant has failed to show he was a tenant of any known landlord and so in possession, he cannot maintain an action in trespass. See Joseph Atoyebi Oyebanji v. Bashiru Okunola (1968) NMLR 221.

ISSUE 5:

The poser in this issue is: Where the most central and material conflict between the plaintiff and defendant had not been resolved during the trial in the trial court, and the appeal court sets aside the judgment of the trial court, what is the appropriate order which the appeal court ought to make, order of dismissal or order of retrial

Here too, even though the respondents in their pleadings as well as in the testimony before court conceded that a land dispute existed between Ijan, 1st D.W.’s town and Aisegba, there is however nothing to show that the land in dispute is the instant case is part of or the same land in dispute before the Boundary Commission. The 1st D.W. testified, following strictly the pleading of the defence, that the land in dispute is his family land over which he has over 200 tenants. Nobody from Aisegba whose chiefs the appellant had pleaded (though he led no evidence to prove) were his grantors, came forward to challenge 1st D.W. over his claim. Surely, if the land in dispute here is part of the land in issue before the Boundary Commission, Aisegba people would have come forward to affirm the purported grant made to the appellant and debunked the claim of the respondent’s grantor i.e. 1st D.W. The appellant cannot be heard to approbate and reprobate at same time having filed the action herein himself originally and none of his alleged grantors has come forward to assert any claim to the disputed land. The sum total of the appellant’s case borders on uncertainty, to wit: that he is unsure of the owners of the disputed land; while his alleged grantors either disallowed him or were unhelpful to this cause. That at the end of the day, the appellant stated he was ready to pay ‘ishakole’ to whoever Aruwa might indicate was the owner of the land in dispute, is an admission on his part of the uncertainty of his grant. For that, an order of dismissal of the appellant’s case, is an appropriate order to make.

ISSUE 6:

In answer to this issue, it is pertinent to point out that in the instant case the appellant did not tender survey plan of the land he claimed. Nor did he prove by oral evidence, as he ought to, the boundaries of the said land. This court has laid down the principle for quite some time now, that a party failing to give evidence of boundaries to the land in dispute which he claims, is not entitled to succeed. See A.W. Elias v. Alhaji B. A. Suleimon (1974) NMLR. 193; (1973) 1 All NLR. (Pt.2) 282. For the requirement that the appellant as plaintiff ought to prove by evidence in court the boundaries of his land, he could as well, supplement this by what is observed during inspection at the locus. In the case in hand, the oral evidence of boundaries the at appellant proferred in court was not only unpleaded, the sum total of the evidence given by him did not support his case. The trial court albeit in an attempt to help him out the locus wrongly and unjustifiably found for him on evidence which was neither documentarily nor orally credible as well as convincing. The end result on the question of boundaries in the case in hand therefore is that the appellant failed woefully to discharge the burden that lay on him to establish such boundaries by adducing any credible evidence. See Akinola Baruwa v. Ogunsola & Ors. (1938) 4 WACA 159; Epi v. Aighedion (1972) 10 SC. 53; Udofia v. Afia (1940) 6WACA. 216; and Ezendu v. Obiagwu (1986) 2 NWLR (Pt.21) 208 at 214-215.

ISSUE 7

I adopt my consideration of Issue 4 above. I only to add that whatever, if any, the appellant has on the land he does so in trespass and the law does not and cannot afford him protection.

ISSUE 8:

As demonstrated elsewhere in this judgment the purported tenancy agreement the appellant sought to tender at the hearing of the case herein on appeal was rejected and rightly so in my view. The appellant, as transpired did not cross-appeal against the rejection in the court below. It is therefore not open to him here to re-open the issue. What is more, as earlier shown, the rejected tenancy agreement having been made in 1968, eight years after the alleged grant in 1960 and constituting a nebulous document of ill-defined boundaries which could not withstand the test of veracity; its rejection was appropriate for its hollowness. See Erinosho v. Owokoniran (1965) NMLR 479 at 483; Adenle v. Oyegbade (1967) NMLR 136 at 138 and Eze v. Igiliegbe 14 WACA 61.

The result of all I have been saying is that the issues having been answered against the appellant this appeal fails and it is accordingly dismissed. The appellant is to pay costs assessed at N350 and N1,000 in the court below and in this court respectively to the respondents inclusive of out of pocket expenses.

UWAIS, J.S.C.: This appeal has no merit and ought to be dismissed. The appellant, who was the plaintiff in the High Court of Ondo State (Adeloye J, as he then was), brought an action claiming (1) for a declaration that he was entitled to the possession of the land in dispute; (2) a perpetual injunction to restrain the 1st respondent, his agents or servants from committing further trespass on the land in dispute or harvesting the crops on the said land; and (3) special damages for unlawful harvest from the farm on the land in dispute and general damages for trespass.

Pleadings were settled between the parties. The evidence adduced by the appellant went contrary to his pleadings. He could not establish the boundary of the land in dispute nor could he prove the owner of the land. Although he pleaded that he was granted possession of the land by virtue of a written tenancy agreement between him and the Chiefs of Aisegba Ekiti, he failed to produce the written agreement or call any of the Chiefs to prove the agreement. It is obvious, therefore, that the appellant did not prove his claim. But surprisingly, the learned trial Judge held that the land in dispute was granted to the appellant by Aruwa family of Aisegba. It was not his case on his pleadings that it was Aruwa family that put him in possession but the Chiefs of Aisegba Ekiti. It is appropriate, therefore, that the majority in the Court of Appeal (Ogundare, J.C.A .., as he then was and Ejiwunmi J.C.A .. with Ndoma_Egba J.C.A .. dissenting) set aside the decision of the trial court.

It is elementary that the parties to a case are bound by their pleadings. They cannot depart from the pleadings in their testimony or the evidence they adduce. Doing so renders the evidence they call to no issue and fatal to their case. The majority in the Court of Appeal was, therefore, right in setting aside the decision of the trial court. I see no merit in the appeal.

I agree with my learned brother Onu, J.S.C., whose judgment I read in draft, that the appeal be dismissed with costs to the respondent as assessed by him.

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Other Citation: (1994) LCN/2637(SC)