Unokan Ent. Ltd. & Anor. V. Chief P.o. Omuvwie & Anor. (2004)

LawGlobal-Hub Lead Judgment Report

 AMINA ADAMU AUGIE, J.C.A.

This is an appeal against the Judgment of Nwulu, J. delivered on the 7th day of November, 1997, wherein he entered judgment for the plaintiff and dismissed the 2nd and 3rd defendants’ counter-claim. At first, the plaintiff, (respondent herein) claimed only against the defendant/respondent, but on the application of the 2nd and 3rd defendants, (appellants herein) the respondent was ordered to join them as defendants in the suit and to amend his writ of summons and statement of claim to reflect their joinder, which he did, claiming the following reliefs –

1. An order enjoining the defendants to return the said generating set to the plaintiff at Sapele in Delta State, failing which to pay the plaintiff current value of the 500 KVA Skoda generator assessed at N3,000,000.
2. N100,000.00 as general damages for trespass to the generating set or for loss of its use.

At the end of the trial and after hearing the addresses of counsel, the learned trial Judge delivered his judgment, wherein he held as follows –

“V. E. Otomiewo, Esq., counsel for the 2nd and 3rd defendants had submitted that this court is not competent to declare the sales transaction illegal because the plaintiff has not asked for same. Unfortunately, I have had no access to the authorities cited by him as he did not leave any for me and the High Court library has none of them. I have therefore, not had the privilege of reading through the said legal authorities. But will it be just, will it be equitable to allow such a contract induced by fraud, falsehood and perjury to stand, merely to satisfy the demands of legal technicalities? Justice demands that it be set aside as being invalid.

Accordingly, the purported contract of sale of the 500 KVA Skoda generator made between the 1st defendant on the one hand and the 2nd and 3rd defendants on the other is hereby set aside”. (Italics mine)

“The 1st defendant company itself, who is in custody of the 500 KVA Skoda generating set, is ready and willing to return the said generating set to the plaintiff, if this court finds that he is the owner. I accordingly, order the 1st defendant to return the said generator to the plaintiff”

“In the instant case, the purported trespass to the plaintiff’s property, i.e. the 500 KVA Skoda generator by the 1st defendant was induced by the misrepresentation and perjury of the 3rd defendant for which the 1st defendant cannot in my view, be held liable. If ever there is a trespasser, it was the 3rd defendant. But the plaintiff before me has said he has no claims against him. Accordingly, the claim of N100,000.00 against the 1st defendant is hereby dismissed. I make no order as to costs.”

“I am now left with the counter-claim of the 2nd and 3rd defendants…

It is hardly necessary for me to repeat that the defendants and in particular, the 3rd defendant induced the contract between them and the 1st defendant by misrepresentation and perjury. I had declared the said contract invalid and therefore unenforceable. The Latin maxim ex turpi contractu action non oritur (A contract founded upon an illegal or immoral consideration cannot be enforced by action) here applies. In view of the above, this counter-claim against the plaintiff and the 1st defendant is dismissed with N1,000.00 cost infavour of each of the plaintiff and the 1st defendant”. (Italics mine)

Aggrieved by the decision of the lower court, the appellants filed a notice of appeal containing four grounds of appeal. In compliance with the rules of this court, parties filed briefs, and the following issues for determination were formulated in the appellants’ brief prepared by Chief V. E. Otomiewo –

(a) Was the learned trial Judge right, to have set aside the contract of sale between the appellants and the 1st defendant on the grounds of fraud, falsehood and perjury when:

(i) None of the parties at the trial in their pleadings and evidence raised the issues of fraud, falsehood, and perjury?

(ii) The plaintiff/respondent did not claim any relief for the setting aside of any sale?

(b) Whether the learned trial Judge was right to dismiss the appellants’ counter-claim on: