G. A. Akhiwu v. The Principal Lotteries Officer Mid-Western State & Anor. (1972)

LawGlobal-Hub Lead Judgment Report

SIR I. LEWIS, J.S.C. 

In Suit B/30/69 The Principal Lotteries Officer of the Mid-Western State brought a claim in the Benin High Court in which he sought a declaration:

“(a) That the 1st defendant is the person entitled to the sum of 4,000pounds being the 1st prize of the MidWestern State Government lottery drawn at Benin City on the 10th of July, 1969; OR IN THE ALTERNATIVE:

(b) That the 2nd defendant is the person entitled to the said amount.

PARTICULARS

1. At the MidWestern State of Nigeria Government lottery drawn at Benin City on the 10th of July, 1969, ticket No. MO83501 won the 1st prize of 4,000pounds. This result was published according to law in MidWestern State Notice No. 422 of 10th July, 1969, contained in Mid-Western State of Nigeria Gazette No. 32 Volume 6 of 17th July, 1969.
2. The defendants have each claimed to be owner of staker on the said winning ticket No. MO83501.
3. The defendants have each claimed to be entitled to the said first prize of 4,000ponds.
4. The defendants’ said respective claims conflict with, and are adverse to, each other.
5. The plaintiff has not paid out the said first prize to anybody because of the conflicting claims by the defendants.
6. The plaintiff is in possession of the said first prize and is prepared and willing to pay it into court or to any of the defendants declared by court to be entitled.
7. The plaintiff claims no interest in the said first prize.
8. The plaintiff is not in collusion with any of the defendants in their respective claims.”

When the matter came before the High Court on the 27th of August, 1969, Irikefe J. with the consent of counsel representing both the plaintiff and the 1st and 2nd defendants respectively according to the record settled the procedure to be adopted in the following terms:

“By consent of all counsel in the case I propose to treat this suit as an application in the way of an originating summons filed by the Principal Lotteries Officer, MidWestern State of Nigeria to determine which as between the 1st and 2nd respondent herein is entitled to the 1st prize valued 4,000pounds in respect of the 11th draw to the Mid-Western State of Nigeria Government lottery, which draw took place on 10th July, 1969. By consent of counsel and in virtue of powers vested in me under Order 13, rule 1 (High Court Civil Procedure Rules) no pleadings will be filed in this matter and hearing will now proceed subject to the following matters which will be agreed upon by counsel and therefore will not be open to proof:

(a) It is agreed that the matters set out at paragraphs 1 to 8 of the writ are taken as proved. This statement was made by Alhaji Momoh for the applicant and was agreed to by both Obeahon and Okeaya-Inneh for the respondents.

At this stage, the counsel in this matter are agreed that Mr J. O. Iluebbey, an Administrative Officer, Class 1 who is the Chairman of the Lotteries Board, should be called to testify.”

Mr Iluebbey then gave evidence for the plaintiff/applicant and both the 1st and 2nd defendants/respondents called evidence and on the 9th of September, 1969 the learned trial judge in his judgment found the 2nd defendant to be the person entitled to the 4,000pounds first prize on the 11th draw of the Mid-West State Government lottery held on the 10th of July, 1969, and he ordered payment accordingly of that sum by the applicant to the 2nd defendant. He also made a number of other orders with which we shall deal later.

The 1st defendant has appealed against that decision and the first point taken on his behalf by Chief Williams pertained to a ground of appeal that read:

“The learned trial judge erred in law and/or failed to exercise his discretion judicially in proceeding with the trial without pleadings once it became clear to him that fraud amounting to criminal offences were alleged by one side against the other.”

It was the submission of Chief Williams here that the procedure adopted of treating the claim as if it was an originating summons was so irregular that the judgment could not stand and a rehearing ought to be ordered. He further submitted that as no procedure in respect of an originating summons is laid down in the Mid-West High Court Civil Procedure Rules it was necessary to follow the practice in England and there the basic principle was that an originating summons was heard on affidavit evidence, supplemented if necessary by oral evidence, but that there must be at least affidavit evidence to start with, and that there was no such affidavit evidence here. He relied on Order 28 in the 1970 Annual Practice of the English Supreme Court (the White Book). Moreover he submitted that in In re Powers, Lindsell v. Phillips (1885) 30 Ch. D. 291 Lindley L.J. at page 296 said:

“I think the Vice-Chancellor can hardly have understood that in this case there are no facts in dispute. A summons is not the proper way of trying a disputed debt where the dispute turns on questions of fact, but where there is no dispute of fact the validity of the debt can be decided just as well on a summons as in an action. I think, therefore, that the Vice-Chancellor took an erroneous view when he declined to entertain the application.”,