Dr. Dozie Ikedife & Anor Vs Clement Obienu (1975)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N. 

For the purpose of establishing a market for the community of Nnewi, private land was acquired from the various families affected and it would seem that payment of compensation had been agreed with all the families except one, that headed by the plaintiff in Suit No. 0/13/70.

The accredited representatives of the community offered to pay the plaintiff N100 as compensation, but the plaintiff rejected the offer on the ground that his family land formed the largest part of the area acquired for the market and the amount offered was far too little. When he got no satisfaction from the defendants, Chief K.O. Orizu and ten others, who were respectively the paramount chiefs and other elders of the community, the plaintiff brought an action in the Onitsha High Court in Suit No. 0/13/70 against the defendants.

As the progress on the establishment of the market was being hampered as a result of the dispute between the plaintiff and the defendants, the Nnewi Tax Association intervened and, with the concurrence of the court, a meeting was soon called in the home of one Chief Obi at which were present the Nnewi Tax Payers Association, the Planning Committee, the defendants, plaintiff and a few others. After a full discussion of the matter, it was agreed as per Exhibit F that the plaintiff should be reimbursed the sum of  N100 as part of his expenses of the litigation thus far and that, after both parties had jointly addressed a letter to the Registrar of the Onitsha High Court to that effect and after the terms had been settled, the plaintiff should withdraw the action against the defendants, whose emissaries should find out from the plaintiff the total sum as evidenced by official receipts to be produced by the plaintiff. On July 6, 1971, the emissaries, consisting of the two plaintiffs and another man (P.W.2) who was a relation of the plaintiff in that case, called on the latter with one bag or carton of money in currency notes of different denominations ranging from five shillings to one pound notes, and this bag was left with the plaintiff as the money agreed to be paid to him against the receipt of 881(pounds) (N1762.00) which was the total amount of the official receipt produced to the emissaries by the plaintiff in his house.

The three emissaries obtained an undertaking in terms of Exhibit A from the plaintiff and left, promising the plaintiff that any shortfall in the total amount that might be detected after counting the money in the bag would be made good as soon as the plaintiff would let them know. On counting the total money with his children after the emissaries had left, the plaintiff discovered that it was 14 pounds short and, accordingly, sent to the defendants for the balance which was duly paid up.

When, after receiving the 881(pounds), the plaintiff in the Onitsha High Court case had not withdrawn the matter from the court, Dr. Ikedife and Edward Obi as plaintiffs in the present case, Suit No. 0/70/72, brought an action against Clement Obienu as defendant with a claim endorsed as follows:

“(1)  On or about the 6th day of July, 1971 at Nnewi the Plaintiffs jointly paid to the Defendant the sum of 881(Pounds) as a consideration for a discontinuance of or a forbearance to continue Suit No. 0/13/70 pending in the Onitsha High Court.

(2)   In breach of the said agreement between the Plaintiffs and the Defendant, the Defendant neither withdrew the case nor refunded the said sum of 881(Pounds)

(3)   Whereof the Plaintiffs claim the refund of the 881(pounds) being money had and received for a consideration which had totally failed and 10,000(pounds) general damages for the breach of the said contract.”

The Plaintiff in the Onitsha High Court thus became the Defendant in the present action. The plaintiffs averred that they were owners of the money paid to the defendant, although the learned trial Judge disbelieved their evidence thereon and pointed out that they were indeed agents of disclosed principals, the defendants in the Onitsha High Court case. The learned trial Judge was of the opinion that the submission of their counsel in his final address that the plaintiffs’ suit had nothing to do with the Onitsha High Court case in respect of the land acquisition at Nnewi was contrary to the specific pleadings of the plaintiffs in their Statement of Claim, paragraphs 3 to 7 of which read as follows:

“(3)    In 1970, the defendant as Plaintiff in Suit No. 0/13/70 filed an action at the Onitsha High Court against  His Highness Chief K. O. Orizu, the Obi of Nnewi and 10 others.

(4)     After pleadings were ordered, the Plaintiffs intervened and requested the Defendant to discontinue the action.

(5)     The Defendant offered to discontinue the action on terms, and the Plaintiffs accepted the offer.

(6)     On or about the 6th day of July, 1971 at Nnewi, the Plaintiff jointly paid to the Defendant the agreed sum of 881(pounds) as a consideration for a discontinuance of or as a forbearance to continue Suit No. 0/13/70 pending in the Onitsha High Court by the Defendant. Receipt dated 6th July, 1971 given to the Plaintiffs by the Defendant will be founded upon.(7) In breach of the said agreement between the Plaintiffs and the Defendant, the Defendant neither withdrew the case nor refunded the said sum of 881(pounds) despite repeated demands. The defendant on 3/1/72 filed his Statement of Claim and Plan in the said Suit No. 0/13/70 which is still pending at the Onitsha High Court.”