ATTORNEY GENERAL ANAMBRA STATE

JOHN IKE NWOKOLO

DR. MICHAEL IFEORAH

ANTHONY ANAEKE

PATRICK OBIAKOR

CHIEF AUGUSTINE EZENWA

( Chairman Abagana Constitutional Review Committee )

V

EPHRAIM OKEKE

CHIEF AJULUCHUKWU UCHEAGBOSO

NWAFOR OKEKE

ORAGWU UNCHA AKUECHIE

SAMUEL UDENWA

( For themselves and all other members of Akpu Abagana Village Community, Abagana)

SUPREME COURT OF NIGERIA

SYLVESTGER UMARU ONU, JSC ( Presided ) ANTHONY IKECHUKWU IGUH, JSC

ALOYSIUS IYORGYER KATSINA-ALU, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

EMMANUEL OLAYINKA AYOOLA, JSC ( Read the Lead Judgment )

SC.102/1997

MONDAY, 27TH MAY, 2002

APPEAL - Appellate court - Person not a party to proceedings - Whether appellate court will exercise jurisdiction thereon

APPEAL - Court of Appeal - Committal order made thereby after overruling preliminary objection sustained by the trial court without hearing parties on merit on the committal application - Impropriety of

APPEAL - Court of Appeal - Extent of jurisdiction of under section 16 of

Court of Appeal Act

APPEAL - Court of Appeal - General proposition that Court of Appeal can after striking out a matter for being improperly brought proceed to determine the matter on its merit - Whether Okotie-Eboh’s case is in support of such approach

APPEAL - Court of Appeal - Powers of pursuant to section 16 of the Court of Appeal Act - Whether includes what the trial court could not have done

APPEAL - Grounds of appeal and issues for determination - Need to relate to relevant decisions of court from which appeal lies - Effect of failure to relate thereto

APPEAL - Judgment of trial court - Party not directly or indirectly affected thereby - Appeal filed by same in respect of - Effect

APPEAL - Notice of Appeal - Party wrongly named in an appeal - Whether necessary to be served with notice

APPEAL - Parties to an appeal - Whether properly named as parties What determines

APPEAL - Subsisting order of trial court - Party discharged from proceedings therefrom - Appeal filed against same - Impropriety of

APPEAL - Supreme court - Improper party in the Court of Appeal - When can appeal thereto

CONTEMPT - Form 48 - Actual date of service of - Importance of

CONTEMPT - Judgment debtor - Committal of to prison - Condition precedent thereto - Order IX Rule 13 Judgment (Enforcement) Rules Cap 118 laws of Eastern Nigeria

COURT - Appellate court - Person not a party to proceedings - When the appellate court will exercise jurisdiction thereon

COURT - Court of Appeal - Committal order made thereby after overruling preliminary objection sustained by the trial court without hearing parties on merit on the committal application - Impropriety of

COURT - Court of Appeal - Extent of jurisdiction of under section 16 of

Court of Appeal Act

COURT - Court of Appeal - General proposition that same can after striking out a matter for being improperly brought proceed to determine the matter on its merit - Whether Okotie-Eboh’s case is in support of

COURT - Court of Appeal - Jurisdiction thereof to determine committal application on merit - Whether the Okotie Eboh’s case is authority for

COURT - Court of Appeal - Power of pursuant to section 16 of the Court of Appeal Act - Whether includes what the trial court could not have done

COURT - Interlocutory matters - Pronouncement which would prejudice fair hearing of substantive suit - Need for court to refrain from making while dealing with interlocutory matters

COURT - Judgment of trial court - Party not directly or indirectly affected thereby - Appeal filed by same in respect of - Effect

COURT - Jurisdiction of court - Whether confers by acquiescence of party when court is incompetent

COURT - Proceedings of court - Records and their contents - Whether the court will take judicial notice of

COURT - Process of court - Proof of service afforded by court’s record in the proceeding - Whether the court can ignore

COURT - Supreme court - Improper party in the Court of Appeal - When can appeal thereto

COURT - Trial court - Subsisting order of - Party discharged from proceedings therefrom - Appeal filed against - Impropriety of

EVIDENCE - Affidavit - Affidavit of service - Purpose of

EVIDENCE - Affidavit - Affidavit evidence - Where not denied by respondent -  Effect

EVIDENCE - Proof of Service - Certificate of service in terms of Order 7 rule 16 of the High Court Rules of Anambra State - Whether exclusive means thereof

EVIDENCE - Proof of service - Proof of service afforded by court’s record in the proceeding - Whether the court can ignore

JUDGMENT AND ORDERS - Judgment debtor - Committal of to prison Condition precedent thereto - Order IX Rule 13 Judgment ( Enforcement) Rules Cap 118 laws of Eastern Nigeria

JUDGMENT AND ORDERS - Subsisting order of trial court - Party discharged from proceedings therefrom - Appeal filed against Impropriety of

JURISDICTION - Acquiescence of parties - Whether confers jurisdiction on court when incompetent

JURISDICTION - Appellate court - Person not a party to proceedings When the appellate court will exercise jurisdiction thereon

JURISDICTION - Court of Appeal - Jurisdiction thereof to determine committal application on merit - Whether the case of Okotie Eboh is authority for

PARTIES - Improper party in the Court of Appeal  - When can appeal to the Supreme Court

PARTIES - Parties to an appeal - Whether properly named - What determines

PRACTICE AND PROCEDURE - Affidavit - Affidavit of service - Purpose of

PRACTICE AND PROCEDURE - Form 48 - Actual date of service of Importance of

PRACTICE AND PROCEDURE - Interlocutory matters - Pronouncement which would prejudice fair hearing of substantive suit - Need for court to refrain from making same while dealing with interlocutory matters

PRACTICE AND PROCEDURE - Judgment debtor - Committal of to prison - Condition precedent thereto - Order IX Rule 13  Judgment ( Enforcement) Rules Cap 118 laws of Eastern Nigeria

PRACTICE AND PROCEDURE - Proceedings of court - Records and their contents - Whether the court will take judicial notice of

PRACTICE AND PROCEDURE - Process of court - Form 49 - When the Registrar may issue

PRACTICE AND PROCEDURE - Service of process of court - Proof of Service - Certificate of service in terms of order 7 rule 16 of the High Court Rules of Anambra State - Whether exclusive means to prove service

PRACTICE AND PROCEDURE - Service of process of court - Proof of service afforded by court’s record in the proceedings - Whether the court can ignore same

STATUTE - Section 16, Court of Appeal Act - Extent of jurisdiction of Court of Appeal thereunder

WORDS AND PHRASES - ‘Affidavit of service of a court process’ - Meaning of

Issues:

1.            Should an order of committal have been made against the appellants who were not parties to the committal proceedings?

2.            Whether the appeal of 2nd and 5th appellants is competent not being proper parties to the appeal in the court below

3.            Whether the Court of Appeal (taken as the trial court pursuant to section 16 of the Court of Appeal Act, 1976) lacked the jurisdiction ab initio to convict and sentence any party for contempt without first disposing of the issue of jurisdiction raised in the substantive suit.

Facts:

The plaintiffs herein on 16th December 1993 filed an application for committal of the appellants for their disobedience of the order of interim injunction delivered in the plaintiff’s favour against them. On 20th December 1993 . The names of the 2nd and 5th appellants were struck out by the court on application by the plaintiff’s counsel for being unable to effect service on them. The appellants subsequently filed notice of preliminary objection to the committal application on the ground of non-compliance with the provision of Order 1 rule 14 of Judgment (Enforcement) Rules.

The trial court sustained the objection and struck out the application for committal. The respondents appealed to the Court of Appeal. The Court of Appeal held that there was compliance with Order 9 rule 13(2) of the Judgment (Enforcement) Rules. The Court of Appeal, exercising its power under section 16 of the Court of Appeal Act which provides inter alia thus; “the Court of Appeal generally shall have full jurisdiction over the proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing,” purportedly re-heard the appeal on records and ordered committal of the 2 nd, 3rd, 4th, 5th and 6th respondents. Aggrieved, the appellants appealed to the Supreme Court.

J. S. ESURUOSO

A. ADIGUN

M. AGBABIAKA

OMO OBA FELA ONAFUWA

( Registered -trustees Of Ogun State Traditional Healers Association)

CHIEF MUSTAPHA ODEJAYI

( A.K.A. GBEBOLAJA )

V

ALHAJI AFOLABI AMBALI OGIDI

COURT OF APPEAL

( IBADAN DIVISION )

MORENIKEJI OMOTAYO ONALAJA, JCA ( Presided )

DALHATU ADAMU, JCA ( Read the Lead Judgment )

FRANCIS FEDODE TABAI

CA/I/124/95

THURSDAY, 21ST FEBRUARY, 2002

ACTION - Locus standi - Meaning and nature of - Importance of - Duty of court to give priority of consideration and determination to when raised

ACTION - Locus standi - How determined

ACTION - Locus standi - Plaintiff lacking - Effect thereof

APPEAL - Decision of trial court - When Court of Appeal will interfere therewith

APPEAL - Issues for determination - Issue framed by appellant - Whether respondent can frame different issue therefrom in the absence of a cross-appeal - When he cannot

APPEAL - Judgment of trial court - When perverse - Proper approach of appellate Court of Appeal thereto

APPEAL - Preliminary objection - Respondent raising same to an appeal Duty of to give appellant three clear days notice - Effect of failure to so do - Order 3 rule 15(1) Court of Appeal Rules 1981

CHIEFTAINCY MATTERS - Title of Basegun of Ijebu-Igbo - Whether a ‘recognised’ or ‘minor’ chieftaincy title within the prescribed authority of Oba of Ijebu Igbo under the Chiefs Law of Ogun State

COURT - Decision of trial court - When Court of Appeal will interfere therewith

COURT - Judgment of trial court - When perverse - Proper approach of appellate court thereto

COURT - Judicial powers of court - Duty on plaintiff invoking same

EVIDENCE - Proof - Onus of proof - On whom lies

JUDGMENT AND ORDERS - Judgment of trial court - When perverse proper approach of appellate court thereto

LOCUS STANDI - Determination of by court - How done

LOCUS STANDI - Meaning and importance of

LOCUS STANDI - Plaintiff lacking locus standi - Effect

PLEADINGS - Bindingness of

PRACTICE AND PROCEDURE - Judicial powers of court - Duty on plaintiff invoking same

PRACTICE AND PROCEDURE - Pleadings - Bindingness of

WORDS AND PHRASES - ‘Locus standi’ - Meaning of

Issues:

1.            Whether a respondent can still raise an issue not raised by the appellant or the grounds of which has been abandoned by the

said appellant.

2.            Whether the 1st - 4th appellants as trustees of the Ogun State Traditional Healers Association have locus standi to institute the action.

3.            Whether the title of “Basegun” (Head of Traditional Healers) can be regarded as a minor chief under the Chiefs Law of Ogun State, 1978, over which the first defendant is the prescribed authority.

Facts:

The dispute that led to the suit in the present case arose after the 1st defendant, Oba Adetayo Sani Kupa Kude IV, (who is now deceased) as the traditional ruler of Ijebu-Igbo appointed and installed the 2nd defendant (the respondent herein) as the Basegun of Ijebu-Igbo (i.e. the head of traditional healers).  Before the appointment and installation there was a tussle of leadership amongst members of the Ijebu-Igbo branch of Traditional Healers Association of Ogun State which tussle led to divisions and factions amongst the said members of the association.  The deceased traditional ruler then acted by appointing the respondent his own candidate which appointment instead of bringing an end to the tussle led to the present suit by other members of the association as its registered trustees who wanted the -5th appellant to be installed as the BASEGUN of Ijebu-Igbo.

At the conclusion of hearing the trial court dismissed all the claims of the plaintiffs. Aggrieved the plaintiff appealed to the Court of Appeal, which court considered the locus standi of the plaintiffs to institute this action at the trial court as raised by the preliminary objection in the respondent’s brief.

ETERNAL TRUST SAVINGS & LOANS LTD.

CHIEF ADEWALE ATANDA

V

BEAUTY FAIR LABORATORY LTD.

COURT OF APPEAL

( LAGOS DIVISION )

G. ADESOLA OGUNTADE, JCA ( Presided  and Read the Lead Judgment )

SULEIMAN GALADIMA, JCA

PIUS OLAYIWOLA ADEREMI, JCA

CA/L/1/97

TUESDAY, 19TH JUNE, 2001

INTERPRETATION OF STATUTE - Order 10 rule 3 High Court of Lagos State (Civil Procedure) Rules, 1972 - Interpretation of - Guiding principles therefor - Whether defence could be disclosed by means other than affidavit as required under the rule

PLEADINGS - Allegation of fraud therein - Need to state all necessary particulars and full allegations thereof

PRACTICE AND PROCEDURE - Order 10 rule 3 High Court of Lagos State (Civil Procedure) Rules, 1972 - Interpretation of - Guiding principles therefor - Whether defence could be disclosed by means other than affidavit as required under the rule

PRACTICE AND PROCEDURE - Order 10 rule 3 High Court of Lagos State (Civil Procedure) Rules, 1972 - Granting of leave to defend thereunder - Determination of - Guiding principles - Need for interest of justice to override technicalities

Issue:

Whether the defendants/appellants disclosed sufficient triable issues as to be entitled to leave to defend the action on the merit

[2002] F.W.L.R.        Eternal Trust Savings & Loans Ltd. vs. Beauty Fair Lab. Ltd.                   135

Facts:

The respondent herein as plaintiff in the lower court issued a specially endorsed writ of summons accompanied by a statement of claim pursuant to Order 3 rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules 1972 claiming against the appellants as defendants liquidated sum of N1,000.000.00 (One million Naira) and the accrued interest.

The appellants filed a statement of defence which incorporated a counter-claim by the 1st appellant. The respondent later filed summons for judgment for the amount claimed on the writ. It deposed inter-alia in the affidavit in support of the summons for judgment that the appellants jointly had no defence to the action. The appellants also filed a counter-affidavit to the respondent’s summons for judgment.

At the conclusion of arguments on the summons for judgment, the learned trial Judge gave judgment to the respondent as claimed.

The 1st appellant being aggrieved by the judgment appealed to the court of appeal.

EMOS KWADA

V

YAKUBU ZIRA

DAUDA ZIRA

YOHANNA ZIRA

PETER ZIRA

JOHN ZIRA

GARBA BUBA

YOHANNA NDA

TERI TERI

COURT OF APPEAL

( JOS DIVISION )

IBRAHIM TANKO MUHAMMAD, JCA ( Presided )

OLUDADE OLADAPO OBADINA, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/92/94

TUESDAY, 19TH FEBRUARY, 2002

APPEAL - Grounds of appeal - Issues not raised before trial court - Whether can be entertained by appellate court

APPEAL - Grounds of appeal - Need for ground to be based on decision challenged

APPEAL - Jurisdiction of Court of Appeal vis-a-vis decision of Area Court -  Extent of

JUDGMENT AND ORDERS - Basis for judgment - Consideration of material facts pleaded and proved at the trial

JURISDICTION - Jurisdiction of court - Jurisdiction not conferred by law -  Whether can be assumed

LAND LAW - Possession - Claim for - How to defeat same

LAND LAW - Ownership of land - Five ways of proving same

LAND LAW - Trespass - What plaintiff must prove to succeed in an action therefor

Issues:

1.            Whether the proceedings of the trial Upper Area Court as confirmed by High Court Michika does not offend against the appellant’s fair hearing and occasioned a miscarriage of justice.

2.            Whether, having regard to the state of facts available before the court the appellate High Court was right to have concluded that the land subject of dispute is a family land under Wuro Ngayadi culture.

3.            Whether respondents were entitled to judgment.

Facts:

The appellant herein, as plaintiff, filed an action at Upper Area Court, Michika against the respondents herein, as defendants, claiming declaration of title, trespass and injunction in respect of the land lying at Wuro Nayadi, Madagali Local Government, Adamawa State.

The plaintiff at the Upper Area Court claimed to have purchased the land in dispute from Iliya as evidenced by a purchase receipt and alienation certificate.  The said sale was in fact witnessed by the village head, Lawan while the defendants asserted that Iliya who sold the land to the plaintiff is a member of their extended family having the same grandfather with them. It was further asserted that Iliya had no authority to sell the land when the family members were not consulted.  When the defendants sued Iliya afer the discovery of the sale, he confessed that he made a mistake.

The trial Upper Area Court Judge held that the sale was void.  The plaintiff being displeased with the said decision filed an appeal at the High Court of Adamawa State.  The learned appellate Judges of the High Court held that if the land did not belong to Iliya, he passes no title to the plaintiff/ appellant.  The appellate High Court Judges stated further that the root of title vested on members of the family not Iliya who under native law and custom of Wuro Ngayadi cannot pass any such legal title.  The appeal was therefore dismissed.

The plaintiff/appellant being dissatisfied with the decision of the Appellate High Court Judges brought this appeal.

TSOKWA OIL MARKETING CO. NIG. LIMITED

V

BANK OF  THE NORTH LIMITED

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC ( Presided )

MICHAEL EKUNDAYO OGUNDARE, JSC

EMANUEL OBIOMA OGWUEGBU, JSC

SYLVESTER UMARU ONU, JSC ( Read the Lead Judgment )

UMARU ATU KALGO, JSC

SC.58/1997

FRIDAY, 17TH MAY, 2002

APPEAL - Filing of initial appeal and amended appeal - Differences in provisions of governing enactments: Court of Appeal Act viz-a-viz Court of Appeal Rules - Differences in consequences of non compliance therewith

APPEAL - Findings on evidence by trial court - When appellate court will interfere with

APPEAL - Non-compliance with governing principles - Effect - Differences between mere irregularity and fundamental non-compliance - Court of Appeal Act and Court of Appeal Rules considered

APPEAL - Preliminary objection on appeal - Filing of - Whether forecloses erring party from correcting errors complained of

CONTRACT - Breach of contract - Onus on plaintiff to prove that defendant responsible for breach

CONTRACT - Condition precedent - Effect of on the formation and bindingnss of a contract

CONTRACT - Conditional contract - Phrase ‘subject to’ therein -

Interpretation of

CONTRACT - Conditions in a contract - Types of conditions

CONTRACT - Consensus ad idem - Pre-requisite for a valid contract

CONTRACT - Discharge of - Ways in which a contract can be discharged

CONTRACT - Valid contract - Definite offer and definite acceptance as a pre-requisite of

COURT - Findings on evidence by trial court - When appellate court will interfere with

DAMAGES - Claim for unliquidated damages for breach of contract - Onus on plaintiff to prove that defendant is responsible for breach before he can be made liable for losses arising therefrom

DAMAGES - Unliquidated damages - Duty of court to indicate its assessment on claims for damages even if it finds against claimant

EVIDENCE - Admissions - Admission by a person who has no knowledge of admitted facts - Effect of

EVIDENCE - Admissions - Witness testifying that he is not aware of existence of facts - Whether constitutes an admission

EVIDENCE - Proof of facts adduced - Onus on he who asserts to prove Exception to

PRACTICE AND PROCEDURE - Preliminary objection - Filing of Whether forecloses erring party from correcting error complained of

STATUTE - Court of Appeal Act vis-a-vis Court of Appeal Rules - Noncompliance therewith - Differences in effect

WORDS AND PHRASES - ‘Subject to’ in a contractual clause - Meaning and effect of

Issues:

1.            Whether the Court of Appeal was right in striking out the appellant’s preliminary objection before it.

2.            Whether the defendant was right in cancelling the Performance Bond it was to grant in favour of the appellant.

3.            Whether the appellant established its case before the trial court so as to entitle it to the award of N4,707,752.80 as damages for breach of contract.

Facts:

The appellant was at all material times to this action a customer of the respondent at the latter’s Rafia kada branch, Taraba State. The appellant applied to the respondent for a performance bond in the sum of N300,000 ( Three Hundred Thousand Naira). The respondent accepted to issue the bond subject to four conditions contained in its letter of 30th October, 1989, which was tendered as exhibit 75 at the trial court. The appellant fulfilled only two of the conditions hence the bond was not released to him without reference to the other conditions, it applied for an increase in the value of the performance bond. The respondent by a letter 1st July, 1981 cancelled the earlier bond approved and informed the appellant that it would work towards meeting its new demands.

The appellant subsequently filed an action for damages for breach of contract at the Taraba State High Court claiming that having fulfilled all the conditions contained in exhibit 75, the respondent breached the contract reached thereby by cancelling the approved bond. At the trial, despite assertions by the respondent that the appellant did not fulfil all the conditions in exhibit 75, the appellant on whom the onus lied to prove compliance failed to adduce any evidence in proof of same. The trial court nevertheless found for the appellant and granted all reliefs sought by it. On appeal to the Court of Appeal, the respondent initially filed eight grounds of appeal and was subsequently granted leave to file two other grounds. There was no time limit for the filing of the additional grounds. The respondent neglected to file the additional grounds of appeal but nevertheless went ahead to argue same in the brief filed. The appellant (respondent therein) discovered this error and filed a preliminary objection on receipt of which the respondent ( appellant therein) filed the additional grounds of appeal and with leave filed an amended appellant’s brief. The appellant also amended his brief of argument.

However, in its brief of argument, the appellant formulated an issue for determination based on the preliminary objection filed. The Court of Appeal at the conclusion of hearing set aside the trial court’s judgment. Dissatisfied the appellant appealed to the Supreme Court.

UNITED BANK FOR AFRICA PLC.

V

MODE NIGERIA LIMITED

OBIAJULU ONOCHIE

COURT OF APPEAL

( ENUGU DIVISION )

EUGENE C. UBAEZONU, JCA ( Presided and Read the Lead Judgment )

JOHN AFOLABI FABIYI,  JCA

MUSA DATTIJO MUHAMMAD,  JCA

CA/E/105/99

THURSDAY, 5TH APRIL, 2001

APPEAL - Grounds of appeal - Issue for determination - Formulation of in respect of each ground of appeal - Undesirability of

APPEAL - Grounds of appeal - Issues for determination being more than the grounds - Impropriety of

APPEAL - Misdirection or error in law - Allegation of - Duty on the appellant to state particulars and nature of

APPEAL - Notice and grounds of appeal - Whether proper to strike out because issues exceed the grounds - How overlapping issues should be treated

FAIR HEARING - Litigants - Hearing of - Need for - Failure to so do Effect

PRACTICE AND PROCEDURE - ‘Preliminary objection’ - Meaning of

PRACTICE AND PROCEDURE - Grounds of appeal - Issue for determination - Formulation of in respect of each grounds of appeal -  Undesirability of

PRACTICE AND PROCEDURE - Grounds of appeal - Issues for determination being more than the grounds - Impropriety of

PRACTICE AND PROCEDURE - Misdirection or error in law - Allegation of - Duty on the appellant to state particulars and nature of

PRACTICE AND PROCEDURE - Order 9, rule 4 of High Court of Anambra

State (Civil Procedure) Rules, 1988 - Intendment of

PRACTICE AND PROCEDURE - Undefended List Procedure - Aim of

PRACTICE AND PROCEDURE - Undefended List Procedure - Triable issue therein - When raised

WORDS AND PHRASES - ‘Preliminary objection’ - Meaning of

Issue:

Whether the affidavit in support of notice of intention to defend set out facts sufficient to raise a prima facie defence to the monetary claim by the 1st respondent to warrant an order transferring the case to the general cause list.

Facts:

The 1st respondent herein maintained an account with the appellant’s bank at the Idowu Taylor, Victoria Island branch of the appellant.  Despite letters by the respondents to the appellant advising the appellant not to honour cheques drawn on its account in view of change of signatories to the said account, the appellant continued to allow the account to be operated. Huge sums of money were thus withdrawn from the said account. It is the contention of the respondents that the cumulative sums of money, lodged into the account by the respondents and their clients and customers from the period the appellant was duly notified of the change of the signatory to 4 /2/99 the balance in the account should be N45,166,493.03.  What was however left in the account as at 4/2/99 was N8,196.53.

It is the failure of the appellant to credit the respondent’s account with the various amounts of money withdrawn from the account that made the respondents to file a suit under the Undefended List Procedure in the High Court of Enugu State claiming the sum of N45,166,493.03 being the respondents’ balance in their account with the appellant.  The learned trial Chief Judge gave his ruling dismissing the appellant’s application to defend the suit and immediately proceeded to enter judgment against the appellant in accordance with the claim.

Dissatisfied with the judgment, the appellant appealed to the Court

of Appeal.  During the hearing of the appeal, the respondents gave two notices of preliminary objection which primarily challenged the competence of the notice and grounds of appeal.  After hearing of arguments of counsel on the preliminary objections the Court of Appeal overruled them.

FRANCIS EZEDIUFU

V

THE STATE

COURT OF APPEAL

( ENUGU DIVISION )

J. THOMPSON AKPABIO, JCA ( Presided and Read the Lead Judgment )

JOHN AFOLABI FABIYI, JCA

MUSA DATTIJO MUHAMMAD, JCA

CA/E/215/98

THURSDAY, 26TH APRIL, 2001

CRIMINAL LAW AND PROCEDURE  - Arraignment - Valid and proper arrangement - Conditions therefor - What amounts to most import requirement of

CRIMINAL LAW AND PROCEDURE - Arraignment - Meaning of

CRIMINAL LAW AND PROCEDURE - Charge - How same should be read and explained to an accused under the provisions of section 215  CPA - Whether language used relevance

CRIMINAL LAW AND PROCEDURE - Defence of insanity - Burden of proving same when raised - On whom lies

CRIMINAL LAW AND PROCEDURE - Defence of insecurity - When to raise same

EVIDENCE - Circumstantial evidence - Evaluation of - Need to ensure that there are no other co-existing circumstances that can weaken or destroy the inference drawn therefrom

EVIDENCE - Circumstantial evidence - Presumption of guilt based thereon

-  Onus on the accused to rebut same

EVIDENCE - Circumstantial evidence - Purport of - Nature of required to convict an accused for murder

EVIDENCE - Proof - Proof beyond reasonable doubt - Application of Need to employ same only in deserving cases - Section 138(1) Evidence Act

WORDS AND PHRASES - ‘Arraignment’ - Meaning of

Issues:

1.            Whether from the printed record there was proper arraignment of the appellant before the trial court as required under section 215  of the Criminal Procedure Act.

2.            Whether from the record, the learned trial Judge placed the burden of proof on accused to prove his innocence.

3.            Whether on the totality of the evidence adduced at the trial, the prosecution proved its case against the appellant beyond reasonable doubt.

Facts:

The appellant was charged before the High Court of Anambra State for murder contrary to section 319 of the Criminal Code and was convicted and sentenced to death by hanging.

The facts of the case as narrated by PW3 were that on the day of the incident, PW4 had a chat with the deceased and after the deceased had gone to her house, she heard a wailing cry from the deceased’s house. The distracting voice of the deceased was saying that “Ezediufu has killed me” referring to the appellant. PW4 then rushed to the house of the deceased who was the mother of the accused and there saw the accused standing in front of his mother’s room with the door locked. The accused told PW4 that the deceased had travelled to a neighbouring village when she sought to see the deceased. Having observed no trace of the deceased the next morning, she went back to the deceased’s house and then demanded for the key of the door of the deceased’s room from the accused but the accused refused to give it to her. The accused there and then informed PW4 that the deceased had travelled to Onitsha when PW4 required again about her whereabouts. The accused was later seen washing the deceased’s bed. When he was queried for his action, accused said that the deceased’s bed was infested with bed bugs. PW4 then reported the unsatisfactory behaviour of the accused to PW1. In addition an emissary was dispatched to Onitsha to find out from deceased’s daughter whether the deceased actually travelled to Onitsha. The deceased’s daughter denied that her mother visited Onitsha at that time. The matter was reported to the police who after forcing the door of the deceased’s room open observed blood spots on the walls and also on some items found in the room. Also recovered in the room were two blood-stained matchets, one head tie and one bed sheet under a bed in the room which were also bloodstained. Appellant’s blood-stained knickers were also found in the room.. Also found in the premises of the deceased’s house was a grave which later turned out to be where the deceased was hurriedly buried.

Post mortem examination performed on the exhumed body revealed deep laceration on the right side of the neck and the cause of death was attributed to bleeding.

Although the appellant denied complicity in the brutal killing of his mother and controverted every allegation implicating him, he was convicted by the Judge and sentenced to death by hanging. Being dissatisfied with the conviction and sentence, appellant appealed to the Court of Appeal.

JOHN AKINWOYE BAMIGBOYE

ADEOYE GABRIEL

ADEFILA RAIMI

CHIEF ABIODUN ELEMIKAN

V

CHIEF JAMES ADEKOLA AWOYINKA

EZEKIEL AWOYINKA

( For themselves and on behalf of Igbo-Ogun family of Otun-Ekiti)

COURT OF APPEAL

( ILORIN DIVISION )

MURITALA AREMU OKUNOLA, JCA ( Presided )

PATRICK IBE AMAIZU, JCA  ( Read the Lead Ruling )

WALTER SAMUEL NKANU ONNOGHEN, JCA

CA/IL/82/99

TUESDAY, 26TH MARCH, 2002

ACTION -  Party in a case - Who is

APPEAL - Constitutional right of appeal - Free exercise of by parties Whether can be hindered by court

APPEAL - Issues not raised at the lower court - Power of appellate court to grant leave to argue same on appeal

APPEAL - Leave to raise entirely new case on appeal - Rationale for refusing same

EVIDENCE - Affidavit evidence - Uncontroverted affidavit - Effect of

LEGAL PRACTITIONER - Counsel swearing to an affidavit - Need to avoid so doing

WORDS AND PHRASES - ‘A party’ - Who is

Issues:

1.            Whether there is still a competent appeal pending before this court in view of the death of two defendants in the lower court.

2.            Considering the jurisdiction vested in this court by section 240 of the Constitution of the Federal Republic of Nigeria, 1991, whether this court can entertain fresh issues as prayed for in the appellant’s motion dated 4th May, 2001.

Facts:

Judgment was given in favour of the respondents as plaintiffs against the appellants as defendants in the lower court. Dissatisfied with the judgment the 2nd to 5th defendants now the applicants filed an appeal against the judgment and decisions contained therein. The appellants brought motion on notice dated 15/03/2001 to amend their notice and grounds of appeal. Also for an extension of time within which to file their brief of argument. The respondents opposed the application on the ground that some of the grounds which the applicants are seeking to file raised fresh issues which were not canvassed in the lower court. Further, that the applicants did not seek leave to raise the issues and consequently, no leave has been granted. As a result of this objection by the respondents, the applicants as a precautionary measure on 4/05/2001 applied for leave to raise the issues covered by the said grounds of appeal. The application notwithstanding, the respondents on 7/05/2001 applied for the appeal to be struck out on the ground that “the major parties in the case are dead.”

The ruling is sequel to the above three applications made by the learned counsel for the parties which motions were consolidated.

MOHAMMED FALADU

V

MALAM HUDU MAI KWOI

COURT OF APPEAL

( JOS DIVISION )

IBRAHIM TANKO MUHAMMAD, JCA ( Presided )

OLUDADE OLADAPO OBADINA, JCA ( Read the Lead Judgment )

IFEYINWA CECILIA NZEAKO, JCA

CA/J/82/95

WEDNESDAY, 23RD JANUARY, 2002

COURT - Hearing notice - Whether a condition precedent to exercise of jurisdiction of court - Effect of failure to notify a party entitled to be heard on proceedings, judgment and orders of court

COURT - Process of court - Service thereof - Condition precedent to the hearing of any suit

JURISDICTION - Hearing notice - Whether a condition precedent to exercise of jurisdiction of court - Effect of failure to notify a party entitled to be heard on proceedings, judgment and orders of court

PRACTICE AND PROCEDURE - Date for mention - Treating same as a date for hearing - Impropriety of

PRACTICE AND PROCEDURE - Hearing notice - Requirement of service of - Failure to serve - Effect

PRACTICE AND PROCEDURE - Hearing notice - Whether a condition precedent to exercise of jurisdiction of court - Effect of failure to notify a party entitled to be heard on proceedings, judgment and orders of court

PRACTICE AND PROCEDURE - Pleadings - Where defendant fails to file

-  Whether entitles to hearing

PRACTICE AND PROCEDURE - Process of court - Service thereof Condition precedent to the hearing of any suit

Issues:

1.            Whether the trial Judge has jurisdiction to have entered judgment for the respondent when there was no evidence that the appellant was served with a hearing notice.

2.            Whether the trial Judge was right to have entertained the matter on a date that was supposed to be for mention”. and

3.            Whether the learned trial Judge was right in giving judgment to the plaintiff as he did.

Facts:

The respondent herein filed his writ of summons and statement of claim. Both processes were served on the appellant on 24th November, 1994. The appellant entered an appearance on 25th November 1994, but did not file a statement of defence. When the case came up for hearing, on 26th January, 1995 respondent applied orally for judgment in default of statement of defence under Order 27 Rule 4 of the Borno State High Court, 1988. The trial court entered judgment accordingly in terms of the writ of summons and the statement of claim. Dissatisfied with the judgment, the appellant appealed to the Court of Appeal.

ALHAJI (DR.) BAWA GARBA

A.B.G. COMMUNICATIONS LTD.

V

SHEDA INTERNATIONAL (NIG.) LTD.

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI, JCA ( Presided )

MAHMUD MOHAMMED, JCA ( Read the Lead Judgment )

VICTOR ALMEPOMO OYELEYE OMAGE, JCA

CA/K/93/2000

WEDNESDAY, 27TH JUNE, 2001

BANKING AND FINANCE - Interest -Award of on unproved claim - Whether justified

BANKING AND FINANCE - Investment attracts profit, not interest - Reason therefor

BANKING AND FINANCE - Money placed on deposit - Whether attracts interest prior to investment

BANKING AND FINANCE - Ordinary debt - Interest thereon - When recoverable at common law

BANKING AND FINANCE - Shares - Money placed on deposit to purchase shares - Whether an investment - When transforms to an investment

COMMERCIAL TRANSACTIONS - Investment attracts profit, not interest -  Reason therefor

COMMERCIAL TRANSACTIONS - Money placed on deposit - Whether attracts interest prior to investment

COMMERCIAL TRANSACTIONS - Money placed on deposit to purchase shares - Whether an investment - When transforms to an investment

 COMMERCIAL TRANSACTIONS - Ordinary debt - Interest thereon - When recoverable at common law

COMPANY LAW - Investment attracts profit, not interest - Reason therefor

COMPANY LAW - Joint venture company - Money invested in a joint venture by a promoter or investor in a duly registered company - Withdrawal or pay back of the money so invested to such investor or promoter Effect of on the joint venture

COMPANY LAW - Money placed on deposit - Whether attracts interest prior to investment

COMPANY LAW - Promoter - Promise to pay promoter by the company for services rendered - Whether binding - Whether a past consideration

COMPANY LAW - Promoter - Services rendered before the promotion of a company by promoter - Whether has right against the company for payment of services so rendered

COMPANY LAW - Promoter of a company - Fiduciary position of - Whether promoter an agent or trustee of a company

COMPANY LAW - Promoter of a company - Who is

COMPANY LAW - Shares - Money placed on deposit to purchase shares - Whether an investment - When transforms to an investment

COURT - Interest - Award of on unproved claim - Whether justified

COURT - Simple debt or liquidated money demand - Claim for under Order 22 , rule 1 of the Kaduna State High Court (Civil Procedure) Rules, 1987 -  Whether High Court has jurisdiction thereon

EVIDENCE - Affidavit  - Conflict therein - Whether can be resolved only by calling oral evidence - Relevance of authentic documentary evidence which supports one of the affidavits in conflict with another

EVIDENCE - Affidavit evidence - Conflict therein - Duty of court to call oral evidence

JURISDICTION - As basis on which any court of law tries a case Importance of as life-line of all trials

JURISDICTION - Simple debt or liquidated money demand - Claim for under Order 22, rule 1 of the Kaduna State High Court (Civil Procedure) Rules, 1987 -  Whether High Court has jurisdiction thereon

PRACTICE AND PROCEDURE - Interest - Award of on unproved claim Whether justified

PRACTICE AND PROCEDURE - Simple debt or liquidated money demand -  Claim for under Order 22, rule 1 of the Kaduna State High Court ( Civil Procedure ) Rules, 1987 - Whether High Court has jurisdiction thereon

Issues:

1.            Whether having regard to the claims of the respondent, the trial court has jurisdiction to hear this case.

2.            Whether from the facts and circumstances of this case, the respondent’s claim could be taken as a debt or liquidated money demand within the meaning and contemplation of Order 22, rule 1 of the High Court of Kaduna State (Civil Procedure) Rules, 1987.

3.            Whether the trial court was right when it dismissed the appellant’s case having regard to its failure to call or order for oral evidence to resolve the glaring conflicts in the affidavit evidence before it.

4.            Whether the lower court was right in awarding the respondent’s claim on interest.

Facts:

By an agreement in 1993, the appellants and the respondent agreed to form a joint venture to be known as Jos Cable Satellite Limited. Pursuant to that agreement in Kaduna, the respondent paid the sum of $40,000.00 and £35,000.00 respectively to the appellants as the respondent’s contributions or shares in the proposed joint venture which ultimately resulted in the incorporation of the company, Jos Cable Satellite Limited. Not long after the incorporation of the company, the respondent became dissatisfied with the venture and therefore decided to withdraw from it by a letter dated 14/3/ 95  addressed to the 1st appellant asking for the repayment of the sums paid towards the venture together with interest. In their reply dated 4/10/95, the appellants agreed to the withdrawal of the respondent from the joint venture and also agreed to refund the sums of $40,000.00 and £35,000.00 respectively paid by the respondent towards the joint venture but did not say anything on interest on the amount. Pursuant to their agreeing to pay back the sums invested, the appellants had between 26/9/96 and 8/9/97, paid a total sum of $40,000.00 and £20,000.00 to the respondent thereby leaving a balance of £15,000.00. It was when this balance could not be paid by the appellants in spite of undertaking to do so, that the respondent instituted this action to recover the balance of £15,000.00 together with 21% interest on the total amount paid to the appellants. The lower court granted the reliefs sought by the respondent with 10% interest under the undefended list of that court, hence the present appeal.

1.      THE M. V. “CAROLINE MAERSK”

SISTER VESSEL TO MV CHRISTIAN MAERSK

2.      THE OWNERS OF THE MV “CHRISTIAN MAERSK”

3.      MAERSK (NIGERIA) LIMITED

V

NOKOY INVESTMENT LIMITED

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided )

MICHAEL EKUNDAYO OGUNDARE, JSC

SYLVESTER UMARU ONU, JSC

UMARU ATU KALGO, JSC

EMMANUEL OLAYINKA AYOOLA, JSC ( Read the Lead Judgment )

SC. 250/2000

FRIDAY, 7TH JUNE 2002

AGENCY -Agent - Agent in contract of carriage of goods by sea - Special liability of - section 16(3) of Admiralty Jurisdiction Act

AGENCY - Agent - Vicarious liability of for default of his principal Consideration of

APPEAL - Misdirection - Whether every misdirection is fatal to a decision

CONTRACT - Contractual liability under common law

CONTRACT - Contractual liability under French law

COURT - Claims made ‘further or in the alternative’ - Approach of court thereto - Federal High Court (Civil Procedure) Rules, 1976

COURT - Clear and unambiguous statute - Attitude of court thereto COURT - Relief sought by a party - Alternative relief - Trial court considering same while granting principal relief - Advantage of

CURRENCY - Gold value - Meaning of

CURRENCY - Naira - Gold value of  - How determined

CURRENCY - Naira - Parity of - Decimal Currency Act (Cap. 92) section 1(2)

SHIPPING LAW - Agent - Agent in contract of carriage of goods by sea Special liability of - section 16(3) of Admiralty Jurisdiction Act

SHIPPING LAW - Agent- Liability of in terms of section 16(3) of Admiralty Jurisdiction Act - Essential part of cause of action for

SHIPPING LAW - Arrival of a ship - Date of arrival of - Date of discharge of cargo - Difference between

SHIPPING LAW - Award - Award of invoice value - When permissible -

Duty on plaintiff claiming

SHIPPING LAW - Carrier - Burden of proof thereon - What determines

SHIPPING LAW - Carrier - Liability of - Limit thereof

SHIPPING LAW - Carrier - Liability of - Limitation thereof fixed at N200 per package - Effect of Article IX of Hague Rules thereon

SHIPPING LAW - Carrier - Limit of liability of - Applicable rules for calculation of

SHIPPING LAW - Carrier - Where liable for loss or damage to goods Relevant evidence to the defence of

SHIPPING LAW - Failure of defendant to deliver the quality or quantity of cargoes it ought to deliver

SHIPPING LAW - Goods received in good order by carrier - Liability for loss or damage thereto

SHIPPING LAW - Negligence - Plea of - Whether necessary when the plaintiff has proved the defendant’s failure to deliver the quality or quantity of cargoes it ought to deliver

PRACTICE AND PROCEDURE - Claims made ‘further or in the alternative’ - Approach of court thereto - Federal High Court (Civil Procedure) Rules, 1976

PRACTICE AND PROCEDURE - Relief sought by a party - Alternative relief - Purport of

PRACTICE AND PROCEDURE - Relief sought by a party - Alternative relief - Trial court considering same while granting principal relief

-  Advantage of

STATUTE - Decimal Currency Act (Cap. 92) section 1(2) - Parity of naira thereunder

STATUTE - Section 16(3) of Admiralty jurisdiction Act - Agent thereunderSpecial liability of

STATUTE - Clear and unambiguous statute - Attitude of court thereto

WORDS AND PHRASES - ‘Gold value’ - Meaning of

Issues:

1.            Whether the liability of the 2nd defendant was strict.

2.            Whether the trial court misconceived the evidence led in support of the defendant’s case.

3.            Whether the 3rd defendant being an agent of the 1st and 2nd defendants should have been held liable as there was neither evidence nor finding that the damage occurred in Nigeria.

Facts:

The plaintiff herein, a registered company carrying on business of exporting of sea foods, entered into an agreement with the Maersk Nig. Ltd., the 3rd defendant to ship 1,202 cartons of frozen Atlantic gold shrimps valued at US$71,516.50 in a vessel called Christian Maersk, owned by the 2 nd defendant from Lagos Port to Algeciras Port in Spain. The shrimps were of good consumable quality when shipped from Lagos. The goods were carried under a bill of lading issued in Lagos. On 4th March and 14th April 1994, the Spanish Health Authority issued two reports stating that the shrimps were not suitable for first inspection due to abnormal odour, unsatisfactory appearance etc.

Dispute arose as to when the shrimps deteriorated. The plaintiff claimed that it was during  the period of carriage by sea, while the defendants asserted that the shrimps deteriorated after their arrival in Spain. At the conclusion of trial, the trial Federal High Court found for the plaintiff and dismissed the defendants’ counter-claim. On appeal to the Court of Appeal, the defendants’ appeal was dismissed.

Dissatisfied the defendant further appealed to the Supreme Court.

J. K. MELWANI

V

FEED NATION INDUSTRY (NIG.) LTD.

COURT OF APPEAL

( IBADAN DIVISION )

UCHE OMO, JCA ( Presided and Read the Lead Ruling )

JOHN HEZEKIAH OMOLOLU-THOMAS, JCA

IBRAHIM KOLAPO SULU-GAMBARI, JCA

CA/I/M.80/86

TUESDAY, 7TH OCTOBER, 1986

COMPANY LAW AND PRACTICE - Shareholder - Where seeks to claim the whole amount contributed by him to the company - Legal effect of - Whether thereby indirectly seeks his own removal from the company

PRACTICE AND PROCEDURE - Stay of execution - Grant of - Conditions therefor - Need to show special circumstances before granting same

PRACTICE AND PROCEDURE - Stay of execution - Grant of - Purpose thereof

Issues:

1.            Whether a stay of execution can be granted where the applicant had failed to show special circumstances warranting the grant of same.

2.            What is the legal effect of a shareholder in a company seeking to withdraw the whole amount contributed as his financial contribution (by way of shares) to the company?

Facts:

The action in this suit had been commenced following a protracted disagreement between the shareholders and directors of the respondent company. The applicant herein was the first Managing Director of the respondent company. The respondent brought an action against the applicant in the Oyo State High Court claiming from him the sum of N206.684.14 representing sums allegedly withdrawn by the applicant on various occasions from the respondent’s bank account either by himself or through his agents. The applicant counter-claimed for the sum of N136,000.00 being money he contributed to the respondent company. The trial court held in its judgment for the respondent that the correct amount contributed (by way of shareholding) by the applicant to the respondent company was N62,000.00.

Dissatisfied, the applicant filed an appeal to the Court of Appeal. He subsequently applied to the High Court for a stay of execution which application was refused. Pursuant to the refusal, the respondent successfully levied execution against the personal effects of the applicant. He later filed this application in the Court of Appeal alleging, among others, that he had no means to pay the judgment debt and that the judgment given in favour of the respondent was tantamount to removing him from the company.

BENSON OBIAKOR

NGOZIKA OBIAKOR

V

THE STATE

SUPREME COURT OF NIGERIA

ABUBAKAR BASHIR WALI, JSC ( Presided )

MICHAEL EKUNDAYO OGUNDARE, JSC

EMANUEL OBIOMA OGWUEGBU, JSC

SYLVESTER UMARU ONU, JSC

UMARU ATU KALGO, JSC ( Read the Lead Judgment )

SC. 327/2001

FRIDAY, 7TH JUNE 2002

APPEAL - Issue for determination - Fresh issue - Issue which did not form part of evidence of the courts below - Whether requires leave of the Supreme Court to file and argue

APPEAL - Issues for determination - Issue of jurisdiction  - Whether can be raised at the Supreme Court for the first time without leave

COURT - Supreme Court - Whether issue of jurisdiction can be raised thereat as fresh issue without leave

CRIMINAL LAW AND PROCEDURE - Conspiracy - Christian couple tried for offence thereof - Effect of section 34 of the Criminal Code in respect of - Whether husband and wife being part of the other can commit the offence of conspiracy

CRIMINAL LAW AND PROCEDURE - Conspiracy - Conviction therefor Whether circumstantial evidence can ground same

CRIMINAL LAW AND PROCEDURE - Conspiracy - Failure of conviction on substantive charge - Whether leads to failure of conviction on conspiracy

CRIMINAL LAW AND PROCEDURE - Conspiracy - Meaning of - When safe to convict therefor

CRIMINAL LAW AND PROCEDURE - Prosecution - Duty of to prove its case beyond reasonable doubt - Whether requires proof with absolute certainty

CRIMINAL LAW AND PROCEDURE - Prosecution - Duty thereon to prove guilt of accused person - Whether same can be displaced by suspicion

CRIMINAL LAW AND PROCEDURE - Suspicion - Whether can constitute a crime or ground a conviction

EVIDENCE - Circumstantial evidence  - Whether can ground conviction for conspiracy

EVIDENCE - Circumstantial evidence - Purport of - Need for to lead to accused’s guilt before same can ground conviction

JURISDICTION - Issues of - Whether can be raised at the Supreme Court as fresh issue without leave

WORDS AND PHRASES - ‘Conspiracy’ - Meaning of

Issues:

1.            Whether the Court of Appeal was right in affirming the conviction and sentence of the 1st and 2nd appellants (husband and wife) of a Christian marriage for conspiracy to murder committed by themselves alone contrary to section 34 of the Criminal Code, Laws of Bendel State 1976, Cap. 48 ,

( applicable to Delta State of Nigeria ).

2.            Whether the Court of Appeal was right in affirming the conviction of the 1st appellant for conspiracy to murder when the prosecution failed to prove beyond reasonable doubt the substantive count of murder.

3.            Whether having regard to the evidence the prosecution proved its case beyond reasonable doubt against the 1st appellant.

Facts:

The appellants’ herein, a couple, were jointly charged with the offences of conspiracy and murder of one Kingsley Ilesanmi, a three (3) year old son of PW1 at the High Court, Asaba, Delta State.  Mrs. Henrietta Ilesanmi together with her the deceased came to Asaba on a visit to her elder brother Sylvester Okolie (PW2) who is a tenant of the 1st appellant living in the same compound with 1st and 2nd appellants and their family. On the day of the incident, Kelechi the daughter of the appellants carried the deceased away from his mother to play outside. After sometime the daughter of PW2, brought the rubber shoes worn by Ilesanmi when Kelechi took him out. Mrs. Ilesanmi then started to look for the whereabouts of her son. In the course of the search, PW2 asked Kelechi for the boy’s whereabouts but Kelechi said she dropped the boy by the door step of the compound and left him there. All efforts to get more information from Kelechi was prevented by the 2nd appellant.

The matter was then reported to the police. The 1st appellant after being manhandled by soldiers suggested a search of the well (already searched) in which the deceased corpse was found. Post-mortem examination revealed cause of death to be due to acute respiratory failure as a result of suffocation.

CHIKEZIE ONYEANUSI

V

MISCELLANEOUS OFFENCES TRIBUNAL,

EASTERN ZONE, OWERRI

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC ( Presided )

EMANUEL OBIOMA OGWUEGBU, JSC ( Read the Lead Judgment )

UTHMAN MOHAMMED, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

SC.49/1996

FRIDAY, 31ST MAY, 2002

COURT - Inferior Court or Tribunal - Ouster clause in law establishing same - Intention thereof - Whether can protect the Court or Tribunal against a violation of its jurisdictional limit

COURT - Jurisdiction of - When ousted by provision of a statute - When court is bound to apply

CRIMINAL LAW AND PROCEDURE - Arson - Whether the offence of covers both public and private buildings - Whether same comes within the provision of section 3(4)(a), of Decree No. 20 of 1984 as amended

INTERPRETATION OF STATUTE - Decree 20 of 1984, section 3(4) (a) Dwelling home in the context thereof - Whether restricted to public dwelling home

INTERPRETATION OF STATUTE - Decree 22 of 1986, section 3(4) - Public building thereunder - Whether house rented by Federal Government acquires characteristic of public building

INTERPRETATION OF STATUTE - Decree No. 20 of 1984, section 10 - Definition of ‘public building’, ‘dwelling house’, ‘office’ thereunder

INTERPRETATION OF STATUTE - Decree No. 20 of 1984, section 8(1) Whether deprives the court of jurisdiction over the Miscellaneous

Offence Tribunals jurisdictional limits

INTERPRETATION OF STATUTE - Mischief rule - Application of

INTERPRETATION OF STATUTE - Mischief rule - Decree No. 20 of 1984, section 3(4)(a) - The mischief same is directed against

LAND LAW - Real estate - ‘Public building, dwelling house and office Definition of section 10 of Decree No. 20 of 1984 (Interpretation section) applied

NOTABLE PRONOUNCEMENT - Impropriety of court ignoring unambiguous provisions of an enactment such as section 3(4)(a) of Decree No. 20 of 1984

STATUTE - Decree No. 22 of 1986, section 3(4) - Public building thereunder -  Whether house rented by Federal Government acquire character of public building

STATUTE - Enactments - Unambiguous provisions of - Where treated by court with cant respect or ignored without strong reason - Impropriety of

STATUTE - Ouster clause - Ouster clause on law establishing an inferior court or tribunal - Intention thereof - Whether same can protect such court or tribunal against a violation of its jurisdictional limits

STATUTE - Provision of - Where ousts jurisdiction of court - When the court is bound to apply

WORDS AND PHRASES - ‘Dwelling home’ - Meaning of

WORDS AND PHRASES - ‘Office’ - Meaning of WORDS AND PHRASES - ‘Public building’ - Meaning of

Issues:

1.            Whether the question of the construction/interpretation of section 3(4)(a) of Decree No. 20 of 1984 as amended by Decree

No. 22 of 1986 was the very thing referred to the Court of Appeal by the appellant.

2.            Whether on a true and correct construction/interpretation of section 3(4) of Decree No. 20 of 1984 as amended by Decree No. 22 of 1986, the Court of Appeal was right in its conclusion, that the offence under which the appellant and 33 others were charged in count one comes under section 3(4)(a) of Decree No, 20 of 1984 as amended by Decree No. 22 of 1986.

3.            Whether section 8(1) of Decree No. 20 of 1984 as amended by

Decree No. 20 of 1986 ousts the jurisdiction of Imo State High Court of Justice for all purposes as held by C.B.C. Ubah, J. and affirmed by the Court of Appeal.

4.            Whether taking into account the circumstances of this case, the Court of Appeal should not have made an order setting aside the ruling of the High Court of Imo State (C.B.C. Ubah, J.) dated 30th April, 1991 and prohibited the respondent from further proceeding with the trial of charge No. M.O.J./IM/ 16C/90; the Federal Republic of Nigeria versus Chikezie Onyeanusi and 33 Others.

Facts:

The appellant and 33 others were arraigned before the respondent (The Miscellaneous Offences Tribunal, Eastern Zone, Owerri) on a twocount charge of arson of dwelling houses under (i) section 3(4)(a) of Special Tribunal Decree, 1984 as amended by Decree No. 22 of 1986 and (ii) arson of cultivated crops under section 3(5) of the said Decree.

The appellant’s ex-parte application for leave to apply for an order of prohibition to restrain the respondent (the Tribunal) from further proceeding with the matter on the ground that the respondent lacked the jurisdiction to hear and determine the said charge was however granted by the High Court. Subsequently, the appellant filed a motion on notice for an order of prohibition against the respondent. At the conclusion of hearing of the motion the trial court ruled that it can not properly issue a prerogative order or otherwise entertain anything done or purported to be done under the decree, the court therefore struck out the motion and discharged the interim order.

The appellant’s appeal to the Court of Appeal was also dismissed. Dissatisfied, the appellant further appealed to the Supreme Court. The Supreme Court considered and interpreted section 3(4)(a) of Decree No. 20 of 1984 as amended by Decree No. 22 of 1986.

The Supreme Court considered the provisions of some statutes:

Section 3(4)(a) and (5) of Decree No. 20 of 1984 as amended by Decree No.

22  of 1986 provides :

“4.    Any person who wilfully or maliciously sets fire -

(a)          to any public building, dwelling house, office or structure whatsoever,  whether completed or not, occupied or not; or

(b)          ...

(c)          ..., shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life.

(5) Any person who wilfully or maliciously sets fire to any stack of cultivated vegetable produce or mineral or vegetable field shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for a term not exceeding 14 years without option of fine.” Section 3(2)(a)(i) provides:

“3(2) Without prejudice to sub-section (1) of this section, any person who does any of the following things shall be guilty of an offence under this Decree and shall be proceeded against and punished as provided in this Decree, that is to say -

(a) commits arson, that is, the wilful and unlawful burning of any of the following things:-

(i) any public building or structure whatsoever whether completed or not;”

Section 8(1) of Special Tribunal (Miscellaneous Offences) Decree No. 20 0f 1984 provides:

“No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to this Decree and if any such proceedings are instituted before, on or after the commencement of this Decree the proceedings shall abate, be discharged and made void.”

Section 12 of Decree No. 67 of 1968 provides:

“12.  The validity of any direction, notice or order given or made or of any other thing whatsoever done, as the case may be,  under this Decree, or the  circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any court of law, and accordingly nothing in the provision of Chapter III of the Constitution of the Federation (1963) shall apply in relation to any matter arising out of this Decree or out of any enactment or other  law repealed by this Decree.” Section 443 of the Criminal Code provides:

“443.  Any person who wilfully and unlawfully sets fire to any

of the following things:-

(a) any building or structure whatever, whether completed or not;

...

is guilty of a felony, and is liable to imprisonment

for life.”

EZEKIEL PETERS

V

ANIEDI UDOFIA JACKSON

COURT OF APPEAL

( CALABAR DIVISION )

D. ONYEJIFE EDOZIE, JCA ( Presided and Read the Lead Judgment )

OKWUCHUKWU OPENE, JCA

SIMEON OSUJI EKPE, JCA

CA/C/141/99

TUESDAY, 26TH JUNE, 2001

APPEAL - Issues for determination - Need for to be hinged on grounds of appeal - Need for grounds of appeal to relate to decision appealed against

APPEAL - Need for to be premised on a decision of lower court appealed against - Whether there can be appeal against what had not been decided against a party

COURT - Appellate court - When retrial order will be made thereby

EVIDENCE - Affidavit evidence - Conflicts therein - Whether authentic documentary evidence can be called to resolve same

EVIDENCE - Affidavit evidence - Conflicts therein - Whether oral evidence can be called to resolve same

PRACTICE AND PROCEDURE - Originating summons instituting actions thereby - When appropriate - When inappropriate

Issues:

1.            Whether it was competent for the court below to wade suo motu into the domestic province of adequacy of consideration especially as the contract was under seal.

2.            Whether the findings of the court below that only the sum of N600,000 was paid by the appellant to the respondent was justified.

Facts:

The appellant herein filed action at the High Court of Cross River State, sitting in Calabar claiming declaratory reliefs, damages and injunction against the respondent. The suit commenced by originating summons sought for the determination of the court the following question: whether it is lawful for the defendant after assigning the totality of his interest in the property by a valid deed of assignment and for valuable consideration to the plaintiff to keep on exercising ownership rights over the same property, the subjectmatter of the assignment and the consequences of such action in the circumstances.

The appellant filed an affidavit of 15 paragraphs with six exhibits while the respondent filed a counter-affidavit of 23  paragraphs with three exhibits. The appellant also filed a further-affidavit of 12 paragraphs with seven exhibits while the respondent also filed a further and better affidavit of 9 paragraphs thereto. Neither parties called oral evidence in support  of all their averments in the various affidavits.

After the conclusion of counsel addresses, the learned trial Judge, dismissed all the claims of the appellant. The appellant being dissatisfied with the said decision has filed this appeal.

UAC OF NIGERIA PLC

V

MADAM IKOLE IROLE

COURT OF APPEAL

( BENIN DIVISION )

SUNDAY AKINOLA AKINTAN, JCA ( Presided )

BABA ALKALI BA’ABA, JCA ( Read the Lead Judgment )

SAKA ADEYEMI IBIYEYE, JCA

CA/B/224/98

FRIDAY, 12TH MAY, 2000

COURT - Appellate court - When appellate court may re-evaluate evidence adduced before the trial court

COURT - Damages awarded by a lower court - When appellate court will interfere therewith

DAMAGES - Damages awarded by a lower court - When appellate court will interfere therewith

DAMAGES - Origin of damages - Award of damages - Principles of law guiding same

DAMAGES - Special and general damages - Distinction between - Need to aver both arms of damages

EVIDENCE - Evaluation of evidence - Evidence adduced before trial court

-  When appellate court can re-evaluate

Issue:

Whether the learned trial Judge is right in his decision.

Facts:

The plaintiff/respondent filed an action at Warri High Court against the defendant/appellant seeking N5,000,000.00 as general damages as a result of the injuries she sustained from an accident involving her canoe and the defendant’s/appellant’s tugboat negligently driven by its staff leading to amputation of her leg.

The plaintiff/respondent  in the early hours of 25th October, 1993 set out in a canoe with her items of trade and wares from Oberada to Ekenwan to sell  them.  According to her, she made sure the canoe was fit and save as well as putting up a light for other users of the waterways.  She asserted further that at a point about the Dolofa river, the appellant by its staff negligently, recklessly and without due care for the plaintiff or other road users drove the tugboat in such a manner that its propeller blade cut her two legs.  The defendant/appellant however, denied the plaintiff’s averment and asserted that in fact the accident occurred  due to the plaintiff’s negligence and recklessness.

After the conclusion of hearing and addresses of counsel, the learned trial Judge, Obi J. gave judgment against the defendant and awarded the sum of N3,000,000.00 as well as N2,000.00 cost in favour of the plaintiff.

Dissatisfied with the judgment, the defendant/appellant brought this appeal.

PIUS ADAKA

ONWUMERE OSU

JONATHAN UKEJE

ANENE ONUNUJU

( For themselves and on behalf of the people of EMEHABA Family of Umuopia, Akokwa)

ALOYSIUS NGAWUCHI

GABRIEL CHUKWU

PETER NWOSU

PETER ASOGWO

EMMANUEL AKABOGU

REGINA NWOSU

DAVID UME

UME UKEJE

UBA UZOGBERE

CLEMENT UKACHI

ALOYSIUS NNAGBORO

EVARIST AKOGHERE

DOMINIC OSUIGWE

OGBUKAGU MBAKWE

SILAS UKEJE

ALPHONSUS OSUEKE

NNANNA USUEKE

FABIAN ONWUACHU ( alias “ACHARA” )

FIDELIS UKACHI

CHUKWUMA OKEKE

V

CHRISTOPHER ANEKWE

EMMANUEL EZEALA

SAMUEL ONUOHA

( Substituted for Richard Agodi and Benjamin Onyekanma).  By order of the Court of Appeal on 3/5/95)

[ For themselves and on behalf of the people of

Umudike, Uzii]

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC (Presided)

MICHAEL EKUNDAYO OGUNDARE, JSC

SYLVESTER UMARU ONU, JSC

ANTHONY IKECHUKWU IGUH, JSC

UMARU ATU KALGO, JSC ( Read the Lead Judgment )

SC.56/1997

FRIDAY, 7TH JUNE, 2002

INJUNCTION - Mandatory and restrictive injunction - Applicable law for the enforcement thereof - Whether changed by the Supreme Court’s decisions in Uhumwangbo and Hart cases

INJUNCTION - Mandatory and restrictive injunction - Enforcement thereof

-  Relevant law

Issues:

1.            Whether the Court of Appeal was right in holding that the Supreme Court had by its decision in Osayande Uhunwangbo vs. P. I. Okojie & anor. (1989) 5  NWLR (Pt. 126) 276 changed the law as to the enforcement of mandatory and restrictive injunctions and in failing to apply the said decisions to the present matter so as to hold that foreign rules of court were not applicable to this matter.

2.            Whether the Court of Appeal was right in holding that Order 42  rule 7 of the Rules of the Supreme Court of England  1956 was applicable to the application for committal before the trial court in this matter by virtue of section 16 of the High Court Law of Eastern Nigeria, 1963, and in ordering the remittal of the application for committal to the trial court of hearing on the merits under the said foreign court rules.

3.            Whether the Court of Appeal was right in holding that the leave of the trial court was not required before commencing committal proceedings against the 5th - 24th appellants who were not named defendants in suit No. HOR/8/74.

4.            Whether the Court of Appeal was right in holding that the appellants abandoned their ground of objection in the trial court and raised new issues before it.

Facts:

The respondents, as plaintiffs, in the trial court instituted this action on a representative capacity for an injunction and damages for trespass against the defendants/appellants.  The trial court at the conclusion of trial entered judgment for the respondents.  Aggrieved, the appellants appealed to the Court of Appeal.  The Court of Appeal allowed the appeal and dismissed the respondents’ claim.  The respondents appealed to the Supreme Court.  Subsequently, both parties settled their dispute out of court and drew up the terms of settlement which became the order and judgment of the Supreme Court.  Thereafter, there was an alleged disobedience of the order by the appellants.

The respondents therefore commenced committal proceedings against the appellants for disobedience to the terms of settlement agreed to between the parties and made an order and judgment of the Supreme Court.  The appellants raised a preliminary objection to the application for the alleged contempt.  The trial court heard counsel for the parties on the objection and overruled it.  The court therefore ordered that the committal application be heard on merit.

Dissatisfied, the appellants appealed against this order to the Court of Appeal.  The Court of Appeal dismissed the appeal and remitted the committal application to the trial court for hearing on its merit.  The appellants further appealed to the Supreme Court.  The Supreme Court however considered whether the decisions of the Supreme Court in the cases of Uhunwangbo vs. Okojie and Hart vs. Hart had changed the law as to the enforcement of mandatory and restrictive injunction.

ANSELEM AKALONU

V

THE STATE

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided and Read the Lead Judgment )

SYLVESTER UMARU ONU, JSC

ANTHONY IKECHUKWU IGUH, JSC

ALOYSIUS IYORGYER KATSINA-ALU, JSC

EMMANUEL OLAYINKA AYOOLA, JSC

SC. 162/2000

FRIDAY, 14TH JUNE, 2002

APPEAL - Findings of court - Concurrent findings of both the trial court and the Court of Appeal - Whether the Supreme Court will interfere therewith

COURT - Findings of court - Concurrent findings of both the trial court and the Court of Appeal - Whether the Supreme Court will interfere therewith

CRIMINAL LAW AND PROCEDURE - Witnesses  - Number of witnesses to be called by prosecution - Discretion of prosecution in respect of

CRIMINAL LAW AND PROCEDURE - Witnesses - Tainted witness Whether blood relationship of a witness and deceased makes the witness tainted

CRIMINAL LAW AND PROCEDURE - Witnesses  - Tainted witness - Who is a tainted witness

Issues:

1.            Whether PW1 and PW4 are tainted witnesses.

2.            Whether the police investigated the case.

3.            What is the effect of section 149(d) of the Evidence Act, 1990 on the prosecution’s case with regard to the failure of the prosecution to call numerous identified witnesses of the incident.

4.            Whether the prosecution established beyond reasonable doubt that the act of the appellant caused the death of the deceased.

Facts:

The appellant herein was charged with the offence of murder of one Edmon Uzoma contrary to section 319 of the Criminal Code at the High Court, Owerri. At trial the prosecution called a total number of five witnesses two of which were star eye witnesses. The appellant testified in his own defence and called no witnesses. At the conclusion of trial, the trial court found the appellant guilty as charged and sentenced him to death.

Aggrieved, the appellant appealed to the Court of Appeal which also dismissed the appeal and confirmed the judgment of the trial court. Further dissatisfied the appellant appealed to the Supreme Court.

1.      CENTRAL BANK OF NIGERIA

2.      NATIONAL BANK OF NIGERIA

3.      ATTORNEY-GENERAL OF THE FEDERATION

V

1.      MORENIKE O. SOULE HARRIS

2.      OLUSEYE JOHNSON

3.      ASHABI IDUNSI

4.      ADUKE SOULE

5.      AKANNI MOROTI SHELLE

6.      BILIKISU SOULE

7.      SIDIKAT SOULE

8.      SHERIFFAT SOULE

COURT OF APPEAL

( LAGOS DIVISION )

GEORGE A. OGUNTADE, JCA ( Presided and Read the Lead Judgment )

SULEIMAN GALADIMA, JCA

PIUS OLAYIWOLA ADEREMI, JCA

CA/L/391/97

MONDAY, 16TH JULY, 2001

JUDGMENT AND ORDERS - Judgment debt - Whether judgment debtor will be allowed to retain same pending appeal

PRACTICE AND PROCEDURE - Litigant - Confidence of in the judicial system - Need to sustain same

PRACTICE AND PROCEDURE - Litigant - Successful litigant - Whether can be denied the fruit of his judgment

Issue:

Whether there are special circumstances necessitating the grant of an order staying the execution of the terms of judgment of the trial court.

Facts:

The respondents herein got judgment for N43 million as damages against the defendants/appellants jointly and severally for trespass and unlawful occupation of the property known as No. 16 Williams Street, Lagos.  The 1st and 2nd defendants/appellants were dissatisfied with the judgment and filed an appeal against it.  In their appeal the appellants filed an application for a stay of execution of the terms of the judgment of the trial court pending the determination of this appeal.

IKONO LOCAL GOVERNMENT

V

DE BEACON FINANCE & SECURITIES LIMITED

COURT OF APPEAL

( CALABAR DIVISION )

DENNIS ONYEJIFE EDOZIE, JCA ( Presided )

OKWUCHUKWU OPENE, JCA ( Read the Lead Judgment )

SIMEON OSUJI EKPE, JCA

CA/C/46/2000 

THURSDAY, 12TH JULY, 2001.

COURT - Applications - Need for court to consider and make specific findings on every prayer - Need for courts to consider all essential issues before it before arriving at its decision

EVIDENCE - Affidavit evidence - Paragraphs of not specifically challenged deemed admitted

EVIDENCE - Unchallenged and uncontradicted evidence - How treated

JUDGMENT AND ORDERS - ‘Perverse decision’ - Meaning of

JUDGMENT AND ORDERS - Judgment debt - Application to court by judgment debtor under Order 5 rule 8(1), Judgment Enforcement Rules - Need for court to stay execution of judgment pending enquiry and verification of actual indebtedness of judgment debtor

JUDGMENT AND ORDERS - Judgment debt - Application to court by judgment debtor for enquiry or verification of actual judgment debt -  Order 5 rule 8(1) and (2), Judgment Enforcement Rules, Cap. 407, Laws of the Federation of Nigeria, 1990

JUDGMENT AND ORDERS - ‘Perverse finding’ - Meaning of PRACTICE AND PROCEDURE - Applications - Need for court to consider and make specific findings on every prayer - Need for courts to consider all essential issues before it before arriving at its decision

SHERIFFS AND CIVIL PROCESS - Judgment debt - Application to court by judgment debtor under Order 5 rule 8(1), Judgment Enforcement Rules - Need for court to stay execution of judgment pending enquiry and verification of actual indebtedness of judgment debtor

SHERIFFS AND CIVIL PROCESS - Judgment debt - Application to court by judgment debtor for enquiry or verification of actual judgment debt - Order 5 rule 8(1) and (2), Judgment Enforcement Rules, Cap.

407 , Laws of the Federation of Nigeria,  1990

WORDS AND PHRASES - ‘Perverse decision’ - Meaning of

WORDS AND PHRASES - ‘Perverse finding’ - Meaning of

Issue:

Whether the trial court actually considered prayer 3 on the motion paper filed on 10/11/98 and whether it was right in law when it awarded to the judgment-creditor the sum of N361,000.00 as the balance due to it from the appellant out of the total contract sum of N1,456,000.00.

Facts:

The respondent, as the plaintiff, had obtained judgment against the appellant in the High Court on 16/5/95 for the sum of N1,456,000.00 in a claim placed on the undefended list.

The appellant as the judgment debtor after making several part payments to liquidate the judgment debt filed a motion on notice praying among other reliefs, the determination of the outstanding balance of the judgment debt.  The application was brought under section 23 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990 and under Order 5 rules 5 and 8 of the Judgment Enforcement Rules.  In delivering his ruling Nsima Akpabio, J. on 23/3/99 ordered the appellant to liquidate the sum of N361,000.00 being the balance of judgment debt by instalmental payments of N50,000.00.  The trial Judge failed however to consider and rule on prayer 3 which asked the court to order an enquiry into the actual judgment debt due and payable to the respondent.

Dissatisfied with the ruling, the appellants have appealed to this court.

CHIEF A. J. JIWUL

V

NDE JOSHUA DIMLONG

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

ISA ABUBAKAR MANGAJI, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/45/96

WEDNESDAY, 27TH MARCH, 2002

APPEAL - Evaluation of evidence by trial court - When appellate court can interfere therewith

COURT - Defendant raising equitable defences - Duty of court to consider

COURT - Issues canvassed by parties - Need for court to limit itself thereto -  Failure of - Effect

COURT - Reliefs not specifically claimed by a party - Whether Court can grant

COURT - Special defence - Whether court can raise suo motu

CRIMINAL LAW AND PROCEDURE - Charge of fraud, commission of crimes or illegality - Need to specifically plead and prove same beyond reasonable doubt - Section 138, Evidence Act

EQUITY - ‘Actual notice’ - When had

EQUITY - “Bona fide purchaser of the legal estate for value without notice” - Implication of

EQUITY - Acquiescence - Nature of that can deprive a man of his legal right

EQUITY - Caveat emptor - Purchaser of land - Duty of to make inquiry about equitable interests with no less diligence than legal interests

EQUITY - Constructive notice - Duty of purchaser to enquire about equitable interests

EQUITY - Equitable defences of estoppel, laches and acquiescence Whenever raised in pleadings - Duty of court to consider same

EQUITY -  Equitable defences of estoppel, laches and acquiescence, purchaser for value without notice - Need to specifically plead same with full particulars

EQUITY - Laches and acquiescence - Elements that must exist in order to avail a defendant who wishes to rely on them

EQUITY - Laches and acquiescence - Whenever raised - What the court considers - Whether available where there are no lapses at all

EQUITY - Laches and acquiescence - Whether the court can suo motu raise - Where reasonable for the court to so raise - Duty on court to give parties opportunity to address it on the issues before deciding on them

EQUITY - Purchaser of land - Duty of to make enquiry from adjoining land owners before his purchase - When constructive notice can be attributed to such a purchaser

EQUITY - Special defence - Where a defendant seeks to rely on - Need to specifically plead same - Failure to - Effect of

EVIDENCE - Burden of proving facts in pleadings - On whom lies

EVIDENCE - Charge of fraud, commission of crimes or illegality - Need to specifically plead and prove same beyond reasonable doubt - Section

138 , Evidence Act

EVIDENCE - Evidence being at variance with pleadings - Effect thereto

LAND LAW - ‘Purchaser’ - Meaning of

LAND LAW - Caveat emptor - Purchaser of land - Duty of to make inquiry about equitable interests with no less diligence than legal interests

LAND LAW - Certificate of occupancy - Contextual essence of - Onus on a party who asserts the contrary

LAND LAW - Constructive notice - Duty of purchaser to enquire about equitable interests

LAND LAW - Ownership of land - Respective ways to prove

LAND LAW - Possession - Disputing parties claiming to have been in possession of land - Issue to determine is who had a better title

LAND LAW - Possession per se - Whether proof of ownership

LAND LAW - Purchaser of land - Duty of to make enquiry from adjoining land owners before his purchase - When constructive notice can be attributed to such a purchaser

LAND LAW - Root of title - Proof of sale and acts of possession - Whether constitute proof of a party’s root of title - Whether mere incidences of ownership

LAND LAW - Survey plan - Purpose of - When required and when not

LAND LAW - Title to land - Party who relies on purchase of land in establishing his title to land - Onus on to prove the title of his vendor

PLEADINGS - Averments in pleadings - Evidence not led in proof thereof -  Effect

PLEADINGS - Bindingness of on parties - Proof of - On whom rest

PLEADINGS - Burden of proving facts in pleadings - On whom lies

PLEADINGS - Charge of fraud, commission of crimes or illegality - Need to specifically plead and prove same beyond reasonable doubt Section 138, Evidence Act

PLEADINGS - Equitable defences of estoppel, laches and acquiescence, purchaser for value without notice - Need to specifically plead same with full particulars

PLEADINGS - Evidence being at variance with pleadings - Effect

PLEADINGS - Special defence - Whether court can raise suo motu

PRACTICE AND PROCEDURE - Issues - Issues which the court has power to determine in a proceeding

PRACTICE AND PROCEDURE - Issues canvassed - Need for court to limit itself thereto - Failure to - Effect of

PRACTICE AND PROCEDURE - Reliefs not specifically claimed by a party - Whether court has power to grant

WORDS AND PHRASES  - ‘Actual notice’ - When had

WORDS AND PHRASES - ‘Bonafide’ - Meaning of

WORDS AND PHRASES - ‘Legal estate’ - Meaning of

WORDS AND PHRASES - ‘Purchaser’ - Meaning of

WORDS AND PHRASES - ‘Value’ - Meaning of WORDS AND PHRASES - ‘Without notice’ - Meaning of

Issues:

1.            Whether the defendant is entitled in law to those declarations, issues and defences raised and resolved in his favour by the court suo motu.

2.            Whether the defendant established his vendor’s title in the face of the plaintiff’s case and having regard to the evidence.

3.            Whether exhibits F, M and K were admissible to defeat the title of the plaintiff.

4.            Whether the plaintiff’s title is valid.

Facts:

The appellant, as plaintiff in the High Court of Plateau State, holden at Pankshin, filed a suit claiming against the respondent as defendant a declaration that he is the owner of that piece of land lying and situate in the area known as Old Market, Pankshin in Pankshin Town, and covering an area of over 0.60 Hectares, perpetual injunction and general damages for trespass.  Pleadings were filed and exchanged by parties.  The respondent denied the claim.  After the conclusion of hearing and address of counsel for the parties, the trial court delivered its judgment in favour of the respondent.  The appellant being dissatisfied with the judgment, appealed to the Court of Appeal.

HAMZA LAWAL

OBA SAMUEL BANUSO

(The Oloja of Igbesa)

V

KAFARU OKE

AKIN FAGBEYI

BALOGUN IDOWU

SUNDAY IDOWU

AKINDELE GBADAMOSI

COURT OF APPEAL

( IBADAN DIVISION )

MORONKEJI O. ONALAJA, JCA ( Presided and Read the Lead Judgment )

FRANCIS FEDODE TABAI, JCA

OLUFUNMILOLA OYELOLA ADEKEYE, JCA

CA/I/41/95

THURSDAY, 18TH JANUARY, 2001

ACTION - Condition precedent to an action - Nature of - Importance of

ACTION - Institution of action - Where a statute provides for resort to administrative remedy before instituting an action - Failure to exhaust same - Effect

COURT - Competence of - Determination of in an action

COURT - Duty of to avoid undue technicality

COURT - Jurisdiction of court - Condition precedent to exercise of  - When objection as to non-compliance therewith is raised - Duty of court

COURT - Proceedings of - When same may be attacked - Whether every defect in procedure is always fatal to the proceeding

INTERPRETATION OF STATUTE - Clear and unambiguous words of a statute - How same should be interpreted

JURISDICTION - Action based on lack of jurisdiction - Effect of

JURISDICTION - Issue of jurisdiction - Whether can be raised and challenged at any stage of proceedings

JURISDICTION - Jurisdiction of court - Importance of

LEGAL PRACTITIONERS - Writing bad and inelegant brief by Legal Practitioners - Whether calls for continuing legal education

PLEADINGS - Functions of - Bindingness of on both parties and the court

PLEADINGS - Importance of - Need for to clearly state its purport

PLEADINGS - Inelegantly drafted pleadings - Legal effect of - Whether plaintiff claiming as per writ of summons can amount to substantial miscarriage of justice being a procedural irregularity or a mere lazy way of pleading that should be discouraged

PLEADINGS - Statement of claim - Consequential relief claimed as an additional claim therein - Effect of on special relief claimed in the writ vis-a-vis the fact that statement of claim supersedes the writ of

summons

PLEADINGS - Statement of claim - Whether supersedes the writ of summons -  Whether amplifies through facts averred the real action a party pursues

PLEADINGS - The word ‘material’ in relation to pleadings - Meaning thereof

PLEADINGS - Whether can be pleaded

PLEADINGS - Writ of summons - Statement of claim - Relationship there between

PRACTICE AND PROCEDURE - Undue technicality - Duty on court to avoid same and adhere to doing substantial justice

WORDS AND PHRASES - The word ‘material’ in relation to pleadings Meaning thereof

Issues:

1.            Whether there was any competent claim before the court in that respondents, under the rules of pleading, filed a statement of claim wherein by its paragraph 36, they pleaded thus: “WHEREOF plaintiffs’ claim as per their writ of summons.”

2.            Whether the respondents’ case ought to have been adjudicated upon when the respondents have not complied with appealing to the commissioner in charge of Chieftaincy Affairs Ogun State before institution of this case.

Facts:

The plaintiffs/respondents in the High Court of Ogun State sitting at Ilaro Judicial Division filed a suit against the defendants/appellants seeking court’s declaration that the Ogunya Descendants are the only family entitled to the Baaleship of Imose Village; that the 4th plaintiff/respondent is the right person duly nominated to be the Baale of Imose village; that the 1st defendant/appellant is not the Baale of Imose; injunctive order restraining the 1st defendant/appellant from parading himself as Baale of Imose Village; and that the fourth (4th) plaintiff/respondent should be installed by the 2nd defendant/appellant as Baale of Imose village.

Pleadings were exchanged and trial was conducted whereby witnesses testified for the parties. At the conclusion of hearing and addresses of their counsels, the learned trial court gave judgment in favour of the plaintiffs/ respondents as per their writ of summons.

Being dissatisfied with the said judgment, the defendants/appellants have filed this appeal challenging the trial court’s decision.

NATIONAL BANK OF NIG. LTD.

V

OLALOYE OMOTAYO

COURT OF APPEAL

( BENIN DIVISION )

RAPHAEL O. ROWLAND, JCA ( Presided and Read the Lead Judgment )

BABA ALKALI BA’ABA, JCA

SAKA ADEYEMI IBIYEYE, JCA

CA/B/288/99

MONDAY, 10TH JUNE, 2002

CONTRACT - Contract of employment - Specific performance in respect of  - Whether court will grant

COURT - Award to claimant that which he did not seek - Lack of power in court to do so - Effect

COURT - Claim of party made in the alternative - Attitude of court thereto

COURT - Contract of employment - Specific performance in respect of  Whether court will grant

DAMAGES - Contract of employment - Wrongful dismissal- Measure of damages

EVIDENCE - Proof - Facts admitted - Whether need further proof - Evidence Act, section 15

FAIR HEARING - Natural justice - Requirement for satisfying same in disciplinary proceedings

MASTER AND SERVANT - Contract of employment - Specific performance in respect of  - Whether court will grant

MASTER AND SERVANT - Contract of employment - Unlawfully dismissed servant - Whether can claim wages for service never rendered thereby

MASTER AND SERVANT - Contract of employment - Wrongful dismissal

-  Measure of damages

MASTER AND SERVANT - Misconduct - Test for determining

MASTER AND SERVANT - Misconduct in a case servant had enviable career and goodwill - Whether a relevant factor in considering cessation of employment of such servant

MASTER AND SERVANT - Natural justice - Requirement for satisfying same in a disciplinary proceedings

PRACTICE AND PROCEDURE - Award to claimant that which he did not seek - Lack of power in court to do so - Effect

Issues:

1.            Whether the trial court was wrong in holding that the dismissal of the plaintiff by the defendant was wrongful, unlawful, irregular, null and void as the plaintiff has not misconducted himself to warrant the dismissal.

2.            Whether the trial court was wrong in declaring that the plaintiff is still an employee of the defendant bank.

3.            Whether the trial court was wrong in granting an order of injunction restraining the defendant from removing the plaintiff from continuing his subsisting employment in the service of the defendant.

4.            Whether the trial court was wrong in granting an alternative claim of paying special damages to the plaintiff in case the defendant decides not to accede (sic) the main claim.

Facts:

The plaintiff herein was employed as a clearner in the defendant’s company. Following the plaintiff’s involvement in an act of unruly behaviour and insubordination, he was issued query and subsequently dismissed from the defendant company. Consequently, the plaintiff filed this suit against the defendant.

At the conclusion of trial, the trial court found for the plaintiff and after granting the main claim for unlawful termination of plaintiff’s employment, the trial court went further to award damages as alternative if the defendant does not reinstate the plaintiff.

Dissatisfied, the defendant appealed to the Court of Appeal.

JAMES OBIJURU AND 2 OTHERS

V

LAWRENCE ANOKWURU AND 2 OTHERS

COURT OF APPEAL

( PORT-HARCOURT DIVISION )

JAMES OGENYI OGEBE, JCA ( Presided )

SULE AREMU OLAGUNJU, JCA ( Read the Lead Judgment )

MICHAEL EYARUOMA AKPIROROH, JCA

CA/PH/57/94

TUESDAY, 12TH JUNE, 2001

APPEAL - Grounds of appeal - Where allege an error in law and misdirection - Impropriety of - Effect

APPEAL - Preliminary objection to hearing of - Condition precedent to Order 3 rule 15(1) Court of Appeal Rules, 1981 - Non-compliance with - Current attitude of the Supreme Court thereto

COURT - Error or slip of trial court - Whether it is every such that will vitiate a decision on appeal

INJUNCTION - Interlocutory injunction -When to be refused in a land matter -Circumstances warranting substitution of order of accelerated hearing for interlocutory injunction

LAND LAW - Interlocutory injunction - Application for in a land matter

PRACTICE AND PROCEDURE - Accelerated hearing of land suit - Order of - When to be made instead of granting application for interlocutory injunction

PRACTICE AND PROCEDURE - Error or slip of trial court - Whether it is every such that will vitiate a decision on appeal

PRACTICE AND PROCEDURE - Appeal - Grounds of appeal - Where allege an error in law and misdirection - Impropriety of - Effect

PRACTICE AND PROCEDURE - Preliminary objection to hearing an appeal - Condition precedent to - Order 3 rule 15(1) Court of Appeal Rules, 1981 - Non-compliance with  - Current attitude of the Supreme Court thereto

PRACTICE AND PROCEDURE - Error or slip of court - Whether it is every such that will vitiate a decision on appeal

PRACTICE AND PROCEDURE - Interlocutory injunction - When to be refused in a land matter - Circumstances warranting substitution of order of accelerated hearing for interlocutory injunction

Issues:

1.            Whether the appellants satisfied all the conditions laid down for granting an interlocutory injunction in a land matter.

2.            Whether the learned trial Judge is right to have made an order of accelerated hearing of the action as a substitute for injunctive reliefs sought by the appellants.

Facts:

This is an interlocutory appeal from the ruling of Owerri High Court, refusing the appellants’ application for interlocutory injunction. In the substantive claim, the appellants as plaintiffs are seeking declaration of title, injunction and damages for trespass against the defendants. The appellants filed an application for interlocutory injunction which was supported by a copious affidavit evidence and equally opposed by a copious counter-affidavit raising a number of controversial issues that must be tried with the prospect of the number being multiplied as the oral hearing progresses. With the susceptibilities of treading on issues that are more appropriate to be tried in the substantive action looming large, the learned trial Judge dismissed the application for interlocutory injunction but made an order for accelerated hearing instead. Dissatisfied, the appellants have filed this appeal contending that they met the conditions for the grant of interlocutory injunction.

NNANTA ORIANWO

RICHARD WOSU

FRANKLIN AMADI

THOMAS ACHO

BONIFACE ELEWA

( For themselves and on behalf ofRumuorianwo Wogozo Family)

V

L. O. OKENE

HARRISON OKENE

MAXWELL OKENE

( For themselves and as representing theOkene Amadi Family)

V

HARRISON OKENE

MMANUEL OKENE

( On behalf of themselves and other members of Okene Family)

V

FYNEFACE LAWA

CYPRIAN LAWA

JAMES ACHOR

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided )

MICHAEL EKUNDAYO OGUNDARE, JSC ( Read the Lead Judgment )

SYLVESTER UMARU ONU, JSC

UMARU ATU KALGO, JSC

EMMANUEL OLAYINKA AYOOLA, JSC

SC.116/1998

7 TH JUNE,  2002

ACTION - Cross-action - Nature of - Whether plaintiff therein can succeed on the weakness of the defence in respect of the cross-action

ACTION - Cross-action - When may succeed where main action fails

EVIDENCE - Evidence for defendant - Where supports plaintiff’s case Whether plaintiff can take advantage of

INJUNCTION - Injunction - Injunction granted in respect of land in dispute -  Effect of on the building thereon - Quid quid plantatur solo, solo, cedit

LAND LAW - Injunction - Injunction granted in respect of land in dispute -

Effect of on the building thereon - Quid quid plantatur solo, solo, cedit

PRACTICE AND PROCEDURE - Cross-action - Nature of - Whether plaintiff therein can succeed on the weakness of the defence in respect of

PRACTICE AND PROCEDURE - Cross-action - When may succeed where main action fails

PRACTICE AND PROCEDURE - Evidence for defendant - Where supports plaintiff’s case - Whether plaintiff can take advantage of

Issues:

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

[2002]  F.W.L.R.                                          Orianwo  vs.  Okene                                                     429

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 defendants/respondents in trespass and in making an order of injunction against the plaintiffs/ appellants?”

Facts:

The plaintiffs commenced this suit at the High Court of Rivers State Port Harcourt for a declaration to right of occupancy, damages and perpetual injunction against the defendants. After the exchange of pleadings, the defendants subsequently commenced another suit in respect of the same subject-matter and parties claiming damages and perpetual injunction against the defendants.

The two suits were consolidated. While plaintiffs in the first suit remained plaintiffs in the consolidated suit, plaintiffs in the second suit became the defendants in the consolidated suit.

At trial, both parties traced their origin to a common ancestor called Wokerebe and agreed that the land in dispute was part of the estate of their common ancestor. Parties equally agreed that their ancestor had nine children and only 4 of the children were able to perform the burial rites of their ancestor thereby entitled to inherit his estate. While the plaintiffs’ ancestor Wogozo was amongst the four that inherited the estate, the defendants’ ancestor was amongst the five younger one who could not perform the burial rites because they were minor then, and thereby were unable to inherit their father.

At the conclusion of trial, the trial court chose the version of the plaintiffs’ traditional evidence as against the defendants, he therefore entered judgment in favour of the plaintiff and dismissed the claim of the defendants.

Dissatisfied, the defendants appealed to the Court of Appeal. The plaintiffs too appealed in respect of the trial court’s addendum to the judgment thus:

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

The Court of Appeal allowed the defendants’ appeal, set aside the judgment of the trial court and entered judgment for the defendants. As for the plaintiffs the Court of Appeal dismissed their claim and the cross-appeal.

The plaintiffs as appellants have further appealed to the Supreme Court.

STIRLING CIVIL ENGINEERING NIGERIA LIMITED

V

AMBASSADOR MAHMOOD YAHAYA

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI, JCA ( Presided and Read the Lead Judgment )

RABIU DANLAMI MUHAMMAD, JCA

VICTOR AIMEPOMO OYELEYE OMAGE, JCA

CA/K/111/99

WEDNESDAY, 27TH JUNE, 2001

APPEAL - Ground of appeal - Failure to frame issue therefrom - Effect

APPEAL - Ground of appeal - Need to relate to its particulars - Failure of to do so - Effect

APPEAL - Issues for determination - Fresh issue on appeal - How raised Need to seek leave to raise same

COURT - Award of damages - Damages awarded by the trial court - When the appellate court will interfere therewith - Guiding principles

DAMAGES - Award of damages - Damages awarded by the trial court -

When the appellate court will interfere therewith - Guiding principles

DAMAGES - General damages - Award of - Whether can be awarded on a claim in tort

DAMAGES - Special damages - How proved - Need for claimant to strictly and specifically prove same

LAND LAW - Trespass - Claim for trespass to land - Finding of trial court therein - Duty on trial court to state whether it establishes trespass to land

PRACTICE AND PROCEDURE - Plaintiff’s claim - Success of - Whether would be on strength of plaintiff’s case

Issue:

Whether the learned trial Judge was right in awarding N500,000.00 damages to the respondent having regard to the statement of claim, evidence led and the findings of the court.

Facts:

The claim of the plaintiff/respondent was that while constructing a dual carriage road about 4 years ago the defendant/appellant trespassed on his land and destroyed the economic trees, such as banana, guava, grains of all sorts, date palms etc and stole the top soil for use in constructing the dual carriage way. The respondent also claimed that about 4 years ago he made N5m from the farm prior to the incident. The respondent therefore instituted this action against the defendant claiming the sum of N5m (five million naira) for trespass. The trial court at the conclusion of trial awarded the sum of N500,000.00 as general damages and cost of N5,000.00

The defendant/appellant was dissatisfied and therefore appealed to the Court of Appeal.

CHIEF ALIMONU AJUKWARA

MANASA ODIKA

MICHAEL AJUKWARA

V

SEBASTINE IZUOJI

SYLVANUS OPARA

OFFURUM OMURUKA

DAMIAN OGARABE

THEOPHILUS IFURUEZE

BARTHRAM NDUKA

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC ( Presided )

IDRIS LEGBO KUTIGI, JSC ( Read the Lead Judgment )

MICHAEL EKUNDAYO OGUNDARE, JSC

ANTHONY IKECHUKWU IGUH, JSC

EMMANUEL OLAYINKA AYOOLA, JSC

SC.15/1998

FRIDAY, 14TH JUNE, 2002 

EVIDENCE - Evidence on facts not pleaded - Effect of

LAND LAW - Declaration of title - The rule in Kojo vs. Bonsie - When applicable - Whether properly applied to the instant case

LAND LAW - Injunction - Claim for - Whether will fail after failure of claim for declaration of title

PLEADINGS - Evidence on facts not pleaded - Effect of

PRACTICE AND PROCEDURE - Evidence on facts not pleaded - Effect of

Issues:

1.            Whether the court below was right when it held that the trial court misapplied the Rule in Kojo vs. Bonsie (1957) 1  WLR1223.

2.            Whether the court below could rely on the alleged misapplication of the Rule in Kojo vs. Bonsie ( supra), to deny the appellants (plaintiffs) success even on their claim for trespass.

3.            Whether the court below was right when it dismissed the

entirety of the claims of the plaintiffs simply because it rejected the traditional history put forward by the plaintiffs.

4.            Whether the court below was right when it dismissed the crossappeal.

Facts:

The plaintiffs herein commenced this suit  at the High Court Oguta claiming against the defendant, declaration of customary right of occupancy to the land in dispute, perpetual injunction and general damages for trespass. Pleadings were filed and exchanged.  Both parties pleaded boundary neighbours, acts of possession and traditional history.  At the conclusion of trial, the trial court found for the plaintiffs and entered judgment on their behalf.  Dissatisfied, the defendant appealed to the Court of Appeal, the plaintiff also cross-appealed in respect of the finding by the trial court that the founder of the land in dispute was Anyaoha instead of Owerre.

MAJOR BUKAR ALIBE (RTD.)

V

ALHAJI YARO

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

OLUDADE OLADAPO OBADINA, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/100/95

MONDAY, 9TH APRIL,2001

ACTION - Civil claims - Proof of - Whose duty - Whether a weak defence removes the burden of proof on the plaintiff

APPEAL - Appellate court - Whether entitled to evaluate evidence after the trial court has done so - Circumstances when to interfere

COURT - Appellate court - Whether entitled to appraise or evaluate evidence afresh - Circumstances where same will interfere in the evaluation of evidence and findings of fact of trial court - Circumstances when it will not

COURT - Judgment and Proceedings of court - How proved

EVIDENCE - Evaluation of evidence  - Whose primary function Circumstances when appellate court will interfere - Circumstances when appellate court will not interfere

EVIDENCE - Judgment and Proceedings- Proof of - How done

EVIDENCE - Material evidence - Party in possession of - Failure of to tender or produce same - Unfavourable inference of fact to be drawn against him - Circumstances which may warrant such inference Section 149 (d) Evidence Act

JUDGMENT AND ORDER - Judgment and Proceedings of court - How prove

LAND LAW - Ownership of land - Determination of where rival claimants have a common root of title by grants - How done - Whether claimant whose title is later in time can maintain action against the one who first obtain title - Relevance of the principle of nemo dat quod non habet

LAND LAW - Trespass - Claim therein - Whether legal entry can defeat same

LAND LAW - Trespass - Plaintiff’s claim therein - Need for to be based on possessory right to title

PRACTICE AND PROCEDURE - Civil claims - Proof of - Whose duty - Whether a weak defence removes the burden of proof on the plaintiff

PRACTICE AND PROCEDURE -  Evaluation of evidence - Whether appellate court entitled to evaluate evidence afresh after the trial court has done so

PRACTICE AND PROCEDURE - Evaluation of evidence - Whose primary function - Circumstances when appellate court will interfere Circumstance when appellate court will not interfere

STATUTE - Evidence Act - Section 149(d) thereof - Party in possession of material evidence failing to tender or produce same - Unfavourable inference of fact to be drawn against him - Circumstance which may warrant such inference

Issues:

1.            Whether the learned trial Judge was right in holding that by the evidence before him the owner of the piece of land sold same to both appellant and respondent.

2.            Considering the evidence adduced before the trial court, who between the parties had a better title to the land as at the time of commencing this action in the High Court?

Facts:

The appellant as plaintiff sued the respondent as defendant claiming damages for trespass and injunction from further acts of trespass on plaintiff’s piece of land lying and situate immediately behind plaintiff’s residential house on No. 24, Waziri Kolo Street, Gamboru Liberty, Maiduguri. The appellant claimed that he bought the land from one Baba Talba Alkali on 18/3/93 as shown on his purchase receipt (exhibit ‘A’). The respondent on the other hand pleaded that he had title to the land which he bought from the same Baba Talba Alkali on 9/7/91 as shown on Local Government Alienation Permit dated 19/7/91 (exhibit ‘B’) issued to him and the said Baba Talba Alkali.

After hearing the case, the learned trial Judge entered judgment for the defendant on the reasoning that his title was better in time than that of the plaintiff. Dissatisfied, the plaintiff has filed this appeal.

SENATOR M. A. M. ARUWA

V

MRS. W. A. ABDULKADIR

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI, JCA ( Presided )

MAHMUD MOHAMMED, JCA ( Read the Lead Judgment )

VICTOR AIMEPOMO OYELEYE OMAGE, JCA

CA/K/76/2000

THURSDAY, 14TH JUNE, 2001

ACTION - Undefended list action - When transferred to the general cause list

ACTION -  Undefended list procedure - Affidavit of a defendant under the undefended list action- What it must contain - Duty of court while considering same

APPEAL - Fresh issue on appeal - Issue of jurisdiction of trial court - How raised for the first time on appeal

APPEAL - Fresh issue on appeal - Whether can constitute ground of appeal without leave of the Court of Appeal

LEGAL PRACTITIONER - Legal fees - Claim by counsel therefor - Whether can be enforced through undefended list procedure

PRACTICE AND PROCEDURE - Undefended list procedure - Action filed thereunder - When transferred to the general cause list

PRACTICE AND PROCEDURE - Undefended list procedure - Affidavit of a defendant thereunder - What it must contain - Duty of court while considering same

PRACTICE AND PROCEDURE - Undefended list procedure - Claim of counsel for legal fees - Absence of agreement by parties before or after providing the legal services - Whether such claim can come under undefended list procedure

PRACTICE AND PROCEDURE - Undefended list procedure - Condition precedent to bringing claim thereunder

WORDS AND PHRASES - ‘Debt’ - Meaning of

WORDS AND PHRASES - ‘Liquidated money demand’ - Meaning of

Issue:

Whether the lower court is right in deciding that no defence on the merit had been disclosed in the affidavit of the appellant in support of his notice of intention to defend the suit.

Facts:

The dispute in this suit arose over the payment of professional or legal fees of N1.2 million charged by the respondent for prosecuting the appellant’s case in suit No. CA/K/EPNA/5/99. Judgment in that case was delivered in favour of the appellant. The respondent forwarded her bill of charges for settlement, same day that judgment was delivered. About 3 months after, the respondent sent a reminder calling on the appellant to settle the bill within 7 days in order to forestall legal action being instituted against him. The appellant failed to settle the fees, the respondent therefore instituted this action in the High Court of Kaduna State under the undefended list.

The appellant also filed his notice of intention to defend the suit supported by an affidavit. At the conclusion of hearing the trial court held that the affidavit of the appellant did not disclose enough defence on merit to justify granting the appellant leave to defend the suit. Aggrieved, the appellant appealed to the Court of Appeal.

CHINDO WORLD WIDE LTD.

V

TOTAL NIGERIA PLC

COURT OF APPEAL

( BENIN DIVISION )

NIKI TOBI, JCA ( Presided )

BABA ALKALI BA’ABA, JCA ( Read the Lead Judgment )

KUMAI BAYANG AKAAHS, JCA

CA/B/144/98

THURSDAY, 5TH JULY, 2001 

ACTION - Counter-claim - Nature of

APPEAL - Evaluation of evidence - Findings of fact based on the demeanour of witnesses - Whether Court of Appeal can interfere with

BANKING - Bank teller - Proof of lodgment of money into bank account by -  Whether conclusive proof of such lodgment

COURT - Court of Appeal - Whether can interfere with findings of fact of trial court based on the demeanour of witnesses

DAMAGES - General damages - Nature of

DAMAGES - Special damages - Nature of - Need to plead, particularise and prove

EVIDENCE - Admissions - Whether admitted facts need proof

EVIDENCE - Bank teller - Whether a bank teller indicating lodgment of money into a person’s account is conclusive proof of payment into the person’s account

EVIDENCE - Burden of proof - On whom rests - When it shifts

EVIDENCE - Documents - Contents of - Type of evidence required to prove

EVIDENCE - Evaluation of evidence - Findings of fact based on the demeanour of witnesses - Whether Court of Appeal can interfere with

EVIDENCE - Extrinsic evidence - Whether admissible to vary or contradict written agreement

EVIDENCE - Proof of lodgment of money into a bank account by production of bank teller - Whether conclusive proof of payment into the account

EVIDENCE - Where plaintiff fails to prove his claim - Proper order to make

JUDGMENT AND ORDERS - Judgment -  Need to confine to issues formulated by parties - Incompetence of trial court to make a case different from that of the parties

JUDGMENT AND ORDERS - Where plaintiff fails to prove his claim Proper order to make

PRACTICE AND PROCEDURE - Admissions - Whether admitted facts need proof

PRACTICE AND PROCEDURE - Civil cases - Contestation of on basis of issues as settled in the pleadings

PRACTICE AND PROCEDURE - Evaluation of evidence - Findings of fact based on the demeanour of witnesses - Whether Court of Appeal can interfere with

Issues:

1.            Whether exhibit ‘A’ constituted a prima facie proof that the appellant paid the sum of N1,680,000.00 to the respondent for the supply of petroleum products.

2.            Whether the learned trial court correctly placed the onus of proving the payment of N1,680,000.00 on the appellant.

3.            Whether on the evidence before the court, the respondent/crossappellant established its counter-claim for the sum of N2,511,667.20.

Facts:

The plaintiff/appellant sued the defendant/respondent/cross-appellant claiming damages for breach of contract of specific performance. The defendant counter-claimed for special damages based on fraud. A brief summary of the facts gathered from the pleadings and evidence of the parties shows that plaintiff ordered for the supply of petroleum products from the defendant, and purportedly paid for the order in the sum of N1,680,000.00 by making a cash deposit into defendant’s account with Afribank Plc. The alleged payment was evidenced by bank tellers, exhibit ‘A’, brought to the defendant by plaintiff’s agent. Defendant supplied part of the order relying on exhibit ‘A’. Thereafter, defendant’s auditors found that exhibit ‘A’ was a forged document, and that the plaintiff did not make the alleged payment into defendant’s account.

MRS. T. C. CHUKWUNA

V

MR. BABAWALE IFALOYE

( For himself and on behalf of the estate of the Late Chief Ajewole Ifaloye)

COURT OF APPEAL

( ABUJA DIVISION )

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JCA ( Presided )

ZAINAB ADAMU BULKACHUWA, JCA ( Read the Lead Judgment )

ALBERT GBADEBO ODUYEMI, JCA

CA/A/37/99

TUESDAY, 15TH JANUARY, 2002

APPEAL - Issue for determination - Competence of - Condition precedent -  Need for to relate to at least one ground of appeal

APPEAL - Issues for determination - Failure to frame same from grounds of appeal - Effect of

LAND LAW - ‘Trespass’ - Meaning of

LAND LAW - Action in trespass - Who can maintain

LAND LAW - Trespass - Right to claim in trespass - When abates

LAND LAW - Trespass - Where claim for trespass fails - Whether court can still award damages and injunction for trespass WORDS AND PHRASES - ‘Trespass’ - Meaning of

Issues:

1.            That based on the pleadings and the evidence adduced at trial whether the learned trial Judge came to the right conclusion in his application of the case of Adebanjo vs. Brown (1990) NWLR (Pt. 141) at 661 as it relates to waiver in trespass.

2.            That based on the findings of the learned trial Judge that respondent was in trespass to the appellant’s land, was the learned trial Judge right in refusing to go further and grant the reliefs of injunction and damages.

Facts:

The appellant herein as plaintiff at the lower court filed action against Chief Ajewole Ifaloye (deceased) at the High Court of the Federal Capital Territory, Abuja claiming N3,000,000.00 being general damages for trespass and injunction against the defendant.

The trial Judge at the conclusion of trial and address of the parties’ counsel found, inter alia as follows:

“In the case in issue the plaintiff found that the defendant has encroached onto her land and the two tried to negotiate with the help of their lawyer to either pay for the land or swap the land for the adjacent one, the plaintiff cannot therefore be heard to be complaining over spilled milk after having waived, to her detriment, the right to sue for trespass until much later” ... The trial court consequently dismissed the plaintiff’s claim on the basis that she had waived her right to sue the defendant having condoned the defendant’s trespassing on her land.

Being dissatisfied with the said judgment, the plaintiff/appellant filed this appeal whereby she urged the Court of Appeal to, inter alia, decide whether the learned trial Judge had correctly interpreted and applied the judgment of Agbaje JSC (as he then was) in the case of Adebanjo vs. Brown (1990)  NWLR (Pt. 141) at  661.

MR. C. I. S. ILOABACHIE

V

1.      PROF. DOTUN PHILIPS

2.      NIGERIA INSTITUTE OF SOCIAL AND ECONOMIC RESEARCH

3.      NISER COUNCIL

COURT OF APPEAL

( IBADAN DIVISION )

MORONKEJI OMOTAYO ONALAJA, JCA ( Presided )

DAHALTU ADAMU, JCA

FRANCIS FEDODE TABAI, JCA ( Read the Lead Judgment ) 

CA/I/174/98 

FRIDAY, 7TH DECEMBER, 2001.

APPEAL - Findings of fact by trial court - Attitude of appellate court thereto

COURT - Duty of to apply rules of equity - When arises

EQUITY - Equitable maxim - ‘He who comes to equity must come with clean hands’ - Application and essence of

EQUITY - Party approbating and reprobating - Attitude of equity thereto

ESTOPPEL - Master and servant relationship - Termination of employee’s employment - Employee’s competence to challenge termination When employee is estopped

ESTOPPEL - Party challenging competence of employer to terminate his employment - When such party is estopped - Implication of party approbating and reprobating at the same time

EVIDENCE - Onus of proof of wrongful termination of employment - On whom lies

INTERPRETATION OF STATUTE - Obsolete statute - NISER Decree No. 70  of 1977 creating a governing council of NISER - Where there exists no NISER Council - Interpretation of

LEGAL PRACTITIONER - Counsel and Senior Advocates - Responsibility of to assist the courts in the dispensation of justice

MASTER AND SERVANT - Contract of employment - Termination thereof -  When and how can be done - When inexpedient to do so

MASTER AND SERVANT - Contract of employment with statutory flavour -  What amounts to - Special attributes and benefits of

MASTER AND SERVANT - Contract of employment with statutory flavour -  Requirement for strict adherence to the procedure stated in the statute for termination to be valid

MASTER AND SERVANT - Employment with statutory flavour - How determined - Duty of court to construe

MASTER AND SERVANT - NISER Council - Member of - Whether may carry out the policies of the Institute

MASTER AND SERVANT - NISER Decree No. 70 of 1977, section 5(3) thereof - Whether relevant in questions of discipline or termination of NISER staff

MASTER AND SERVANT - Obsolete statute - NISER Decree No. 70 of 1977  creating a governing council of NISER - Where there exists no NISER Council - Interpretation of

MASTER AND SERVANT - Party who had taken benefits of the acts of a body or the contents of a document turning round to question legality of same - Whether lawfully permitted to do so

MASTER AND SERVANT - Statutory public institution - Contract of employment of employees of - Whether automatically one with statutory flavour

MASTER AND SERVANT - Termination - Varying meanings of

MASTER AND SERVANT - Termination of employment - When party may be said to have  acquiesced in the termination of his employment -

Party accepting salary in lieu of notice - Whether party can turn round to challenge termination

PLEADINGS - Party failing to adduce evidence in proof of pleaded facts Effect

PRACTICE AND PROCEDURE - Failure of party to adduce evidence in respect of his pleading - Effect

STATUTE - Enactment - When provisions thereof said to be obsolete

STATUTE - NISER Decree No. 70 of 1977, section 5(3) thereof - Purport of

WORDS AND PHRASES - Obsolete enactment  - Meaning of WORDS AND PHRASES - Termination - Varying meanings of

Issues:

1.            Whether the mere fact that a person is an employee of a statutory body or organisation automatically makes his contract of employment one with statutory flavour.  What are the determinants of contract of employment with statutory flavour and how is such contract determined?

2.            Whether a party, who after becoming aware of the termination of his employment collects his gratuity and continues to receive his pension can still validly challenge the said termination.

Facts:

The plaintiff/appellant sued the respondents jointly and severally for special and general damages for wrongful termination of employment at the High Court of Oyo State.  The appellants relied heavily on the provisions of Decree No. 70 of 1977 in instituting the suit.  He referred to the fact that the 2nd respondent was a public statutory establishment created by the NISER Decree No. 70 of 1977 and the 3rd respondent also a statutory body set up under the decree to manage the affairs of the former and contended that since he was appointed by the latter under section 5(3) of the Decree, he was a public servant and his appointment was one with statutory flavour.  Consequently, he believed his appointment could only be validly terminated strictly in accordance with the provisions of the statute. It was also the appellant’s case that even the 3rd respondent who appointed him could not alter the tenure of his appointment without reference to the Minister of Establishment as provided in the Decree.

At the end of the trial, the learned trial Judge dismissed the plaintiff’s claim in its entirety.  Dissatisfied with that judgment, the appellant appealed.

DR. M. G. O. IWEKA

V

S.C.O.A. NIGERIA LIMITED

COURT OF APPEAL

( ENUGU DIVISION )

JUSTIN THOMPSON AKPABIO, JCA ( Presided )

EUGENE CHUKWUEMEKA UBAEZONU, JCA

SULE AREMU OLAGUNJU, JCA ( Read the Lead Judgment )

CA/E/32/91

THURSDAY, 20TH DECEMBER, 2001

CONTRACT - Repudiation of contract - Offer to repudiate by respondent in the instant case - Rejection of same by the appellant - Whether still keeps the contract between the parties alive to warrant grant of specific performance in favour of the appellant - Okongwu vs. NNPC (1989) 4  NWLR (Pt.  115) 296

JUDICIAL PRECEDENT - ‘Stare decisis’ - Application of - Condition precedent thereto

JUDGMENT AND ORDERS - ‘Ratio decidendi’ - Application of - When inappropriate

Issues:

1.            Whether the contract was kept alive following the rejection by the plaintiff/appellant of the repudiation by the defendant/ respondent.

2.            If the answer to the above is in the positive, whether the contract should be specifically enforced or damages in lieu of specific performance awarded; when is the assessment of damages to be made? what is the measure? and was the plaintiff/appellant under any obligation to mitigate the damage?.

Facts:

The plaintiff/appellant filed an action against the defendant/ respondent at the Anambra State High Court, Onitsha claiming specific performance and the sum of N750,000.00 as damages for breach of contract and or detention of the car, the subject-matter of the contract.

In May, 1984, the defendant/respondent agreed to supply the plaintiff/ appellant with a Peugeot 504 GR air-conditioned Saloon Car within one month at the purchase price of N11,850.  The defendant/respondent could not supply the agreed car up till June 1986 when it suggested to supply a Peugeot 505 Saloon Car to the plaintiff/appellant instead of the agreed brand with payment of additional N5,820. This was promptly rejected by the plaintiff/appellant.  By a letter dated 25th July, 1986, the defendant/ respondent offered to refund the plaintiff/appellant’s money already paid since it could not supply the agreed car.  This offer was equally rejected by the plaintiff/appellant who insisted on taking the agreed brand of car.

Failure of the defendant/respondent to eventually fulfil the obligation under the contract led to the action at the  Onitsha High Court.  At the close of trial, the trial Judge dismissed the plaintiff’s/appellant’s claims for specific performance and damages but was however awarded a total of N16,766.00 as special and general damages.

Being aggrieved with the said judgment, the plaintiff/appellant brought the appeal.

YIOLA MASKALA

V

DIMBRIWE SILLI

SUPREME COURT OF NIGERIA

MUHAMMADU LAWAL UWAIS, CJN ( Presided )

SALIHU MODDIBBO ALFA BELGORE, JSC ( Read the Lead Judgment )

SYLVESTER UMARU ONU, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

SC. 94/1996

FRIDAY, 28TH JUNE, 2002

APPEAL - Fresh issue on appeal - Whether leave of court is required to file and argue same on appeal - Section 213(3) of the 1979 Constitution

APPEAL - Grounds of appeal - Ground of law - Ground of fact - Distinction between

COURT - Area Courts - Composition of

COURT - Area Courts - Party alleging that same is not properly constituted -  Duty thereon

Issues:

1.            Whether the trial Civil Area Court Shelleng was properly constituted when it heard and determined this case. And if the answer is in the negative, whether the decision of the Court of Appeal which restored the said judgment did not amount to a nullity.

2.            Whether the grounds of appeal filed and argued before the lower court did not all raise issues of mixed law and facts. And if the answer is in the affirmative, can it be said that the leave granted

by a single Judge of the Adamawa High Court to the respondent herein to appeal against the said judgment was valid? and if not, did the Court of Appeal have jurisdiction to hear and determine the said appeal?

Facts:

The claim of the plaintiff in this suit is ownership of a piece of farmland in possession of the defendant for about 50 years. Plaintiff led evidence and called four witnesses who were unable to establish the plaintiff’s claim to the land.

The trial court found on preponderance of evidence that it was the defendant who had been on the land for about 50 years. The court also found that nobody had seen the appellant farming on the disputed land.

Dissatisfied with this decision of the trial court, the plaintiff appealed to the Upper Area Court which upheld the said decision and dismissed the appeal. On appeal to the High Court, the High Court reviewed the evidence of witnesses at the trial court. Allowing the appeal, the High Court set aside the decision of Upper Area Court.

On appeal to the Court of Appeal, the Court of Appeal restored the decision of the Upper Area Court. Aggrieved the plaintiff further appealed to the Supreme Court.

UGORJI OBI

CHRISTIAN UKAMBA

ELEBEKE MMUOMARA

SIMON OBIDIEGWU

OBIALO AHIKOBO

( For themselves and as representing

their Akokwa Community)

V

DANIEL MBIONWU

PETER UME

FIDELIS EZEANOWAI

( For themselves and on behalf of the

people of Osina Community Orlu)

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC ( Presided )

ABUBAKAR BASHIR WALI, JSC

IDRIS LEGBO KUTIGI, JSC

ANTHONY IKECHUKWU IGUH, JSC ( Read the Lead Judgment )

EMMANUEL OLAYINKA AYOOLA, JSC

SC.14/1997

FRIDAY, 14TH JUNE, 2002

APPEAL - Court of Appeal - Discretion of to order retrial - Whether Supreme Court will interfere therewith

COURT - Appellate court - When same will order retrial

COURT - Court of Appeal - Discretion of to order retrial - Whether Supreme Court will interfere therewith

COURT - Locus in quo - Inspection thereto - Purpose of - Whether court is bound to record full notes of such inspection

COURT - Locus in quo - Visit thereto - Determination of - Whether within discretion of trial court

COURT - Locus in quo - Visit thereto - Duty of Judges thereafter not to put a view or personal observation in place of the evidence

COURT - Visit to locus in quo - Determination of - Whether within discretion of trial court

JUDICIARY - Judges - Duty of after visit to locus in quo not to put a view or personal observation in place of the evidence

JUDGMENT AND ORDERS - Retrial - When will be ordered by appellate court

LAND LAW - Claim for declaration of boundary between two areas of land  Treating same as claim for declaration of title to a parcel of land Effect thereof

LAND LAW - Locus in quo - Inspection thereof - Whether necessary in all land disputes

Issues:

1.            Whether the Court of Appeal was right by holding that the learned trial Judge in his approach to the trial misconceived the case before him by his repeated reference to “land in dispute” as if the claim before the court was that of declaration of title to a specific piece or parcel of land in dispute between the parties when the claim before him was simply that of declaration that the “ekpe” trench is the boundary between the parties.

2.            Whether the Court of Appeal was right when it held that the learned trial Judge did not properly evaluate the evidence before him relating to the main fact in issue; namely, whether or not the ancient “ekpe” trench is the boundary between two parties.

3.            Whether the decision for a retrial of the case ordered by the Court of Appeal is justifiable having regard to all the circumstances of the case.

Facts:

The plaintiffs and the defendants herein are two neighbouring communities sharing a common boundary in the Ideato Local Government Area of Imo State.

The plaintiffs, for themselves and on behalf of the people of Osina Community instituted an action against the defendant also in a representative capacity for a declaration that the “Ekpe” - an ancient trench is the boundary between the two communities and an injunction restraining the defendants and the people of Akokwa from crossing the said concurrent boundary and laying claim to land on Osina side of “Ekpe ditch”.  During trial, the trial court paid a visit to the locus in quo and at the conclusion of trial, the trial court dismissed the plaintiffs’ suit.

Dissatisfied, the plaintiffs appealed to the Court of Appeal.  The Court of Appeal allowed the appeal and set aside the judgment and orders of the trial court and further directed that the suit be tried de novo before another Judge.  The Court of Appeal further ordered that the learned trial Judge must, and should visit the locus in quo in order to have a thorough approval of what is actually in dispute between the parties.

Aggrieved by the Court of Appeal’s decision, both parties appealed to the Supreme Court.

ALHAJI SHIFAWU ODE

NURAINI SANUSI AKA

RAUFU ADEKUNLE

( For themselves and for and on behalf of Oke Branch  of Salawu Family)

V

PA A. K. BALOGUN

PROF. AJIBADE ROKOSU

ALH. R. A. SALAWE

ALH. MONSURU ALESHINLOYE

( For themselves and for and on behalf of Three Ruling

Houses namely: OKOYA, AGBAJE and ROKOSU of

Salawa Chieftaincy Family)

LAGOS ISLAND LOCAL GOVERNMENT

ATTORNEY-GENERAL FOR LAGOS STATE

COURT OF APPEAL

( LAGOS DIVISION )

GEORGE ADESOLA OGUNTADE, JCA ( Presided )

SULEIMAN GALADIMA, JCA

PIUS OLAYIWOLA ADEREMI, JCA ( Read the Lead Judgment )

CA/L/361/97

THURSDAY, 8TH JULY, 1999 

CHIEFTAINCY MATTERS - Standing Chieftaincy Tribunal of Inquiry Recommendations thereof crystallising into chieftaincy declaration to regulate succession into Salawe Chieftaincy Stool -  Action instituted in High Court to pronounce against - Whether an abuse of court process

CHIEFTAINCY MATTERS - Standing Chieftaincy Tribunal of Inquiry Decision or recommendation of - Whether a valid judgment - General nature of proceedings of such Tribunal

COURT - Abuse of court process - Duty of court to prevent

COURT - Declaratory relief - Exercise of jurisdiction to make - Whether an exception to the general principle that where the constitution has declared that the court cannot exercise jurisdiction any provision to the contrary is null and void

COURT - Declaratory judgment - Duty of court when exercising discretion to grant same

COURT - Discretion - Discretion of court to make declaratory relief  -

How exercised - Limitation thereto

COURT - Jurisdiction of to entertain a suit - What determines

COURT - Machinery of court - Duty of court to prevent improper use of as a means of vexation and oppression in the process of litigation

COURT - Process of court - Improper use of as a means of vexation and oppression in litigation process- Duty of court to prevent

COURT - Tribunal - Decision or recommendation of  - Whether a valid judgment

JUDGMENT AND ORDERS - Declaratory claim - Implication of

JUDGMENT AND ORDERS - Declaratory judgment - Duty of court when exercising discretion to grant

JUDGMENT AND ORDERS - Declaratory judgment - Nature of - When may be granted

JUDGMENT AND ORDERS - Tribunal - Decision or recommendation of -  Whether a valid judgment

JURISDICTION - Exercise of jurisdiction to make declaratory relief Whether an exception to the general principle that where the constitution has declared that the court cannot exercise jurisdiction any provision to the contrary is null and void

JURISDICTION - Jurisdiction of court to entertain a suit - What determines Issue:

Whether the High Court can exercise its declaratory jurisdiction in respect of a matter already decided by the Standing Chieftaincy Tribunal of Inquiry and will not amount to an abuse of the process of the court.

Facts:

The appellants and the first set of respondents made an application to the Lagos State Government requesting it to make a chieftaincy declaration that would regulate succession to the Salawe Chieftaincy Stool. A Chieftaincy Draft was thus approved and registered by the government which made provision for four (4) Ruling Houses. After services of claims and counterclaims from rival claimants to the Salawe Chieftaincy Stool, the government referred the matter to the Judicial Tribunal on chieftaincy matters for investigation and report. The Judicial Tribunal recommended the revocation of the 1986 Chieftaincy Declaration earlier promulgated on the Salawe Chieftaincy Title and concluded by recommending only two ruling houses for the stool which apparently subsumed or extinguished the respondents’ ruling houses. The above recommendation was however approved by the government.

The 1st - 4th respondents as plaintiffs filed an action at the trial court for declaratory reliefs. After the exchange of pleadings, the 1st - 3rd appellants as 1st - 3rd defendants at the trial court filed a preliminary objection on the ground that the action did not disclose reasonable cause of action. At the conclusion of hearing on the application, the trial court dismissed the application. Aggrieved the appellants therefore appealed to the Court of Appeal.

1.      THE REGISTERED TRUSTEES OF THE HOLY APOSTOLIC CHURCH OF NIGERIA

2.      CHIEF ISRAEL B. ARIBISALA

3.      DEACON EZEKIEL OMOLAYO ERUJEJE

4.      PROPHET S. FUNSO ALUKO

5.      SENIOR EVANGELIST M. O. LONGE

6.      APOSTLE OLUWASOLA OLUWATOSIN

7.      MRS. EBUN AYEGBUSI

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1.      REV. FOLORUNSO AYENI

2.      CHIEF JOHN OLOMINU - BABA IJO

COURT OF APPEAL

( ILORIN DIVISION )

MURITALA AREMU OKUNOLA, JCA ( Presided )

PATRICK IBE AMAIZU, JCA

WALTER S. NKANU ONNOGHEN, JCA ( Read the Lead Judgment )

CA/IL/32/2001

MONDAY, 25TH MARCH, 2001

CONSTITUTIONAL LAW - Freedom of worship - Whether breached by order of interlocutory injunction restraining feuding church members from use of church building and property

COURT - Preservation of property in dispute - Duty of trial court thereof

FUNDAMENTAL RIGHTS - Freedom of worship - Whether breached by preservation order of interlocutory injunction barring feuding church members from using the church building and property - Need for peaceable conduct in a place of religious worship

INJUNCTION - Interlocutory injunction - Order to lock up a church building

-  When necessary as a consequential order

INJUNCTION - Interlocutory injunction - Principles governing grant of Discretionary power of trial court to consider application for

JUDGMENT AND ORDERS - Interlocutory injunction - When order to lock up a church building is a necessary consequential order

JUDGMENT AND ORDERS - Order of interlocutory injunction barring feuding church members from the use of a church building - Whether in breach of freedom of worship - Need for peaceable conduct in a place of worship

PRACTICE AND PROCEDURE - Consequential order - When order to lock up a church building is a necessary consequential order

PRACTICE AND PROCEDURE - Injunction - Interlocutory injunction Principles governing grant of - Trial court’s discretion to grant

PRACTICE AND PROCEDURE - Order of interlocutory injunction barring feuding church members from the use of a church building - Whether in breach of freedom of worship - Need for peaceable conduct in a place of worship

PRACTICE AND PROCEDURE - Preservation of property in dispute Duty of trial courts in respect thereof

WORDS AND PHRASES - ‘Judgment is against the weight of evidence’ -

What is meant by

WORDS AND PHRASES - ‘Perverse decision’ - Meaning of

Issues:

1.            Whether the order of interlocutory injunction made by the trial High Court was perverse, against the weight of evidence and prejudicial to the appellants.

2.            Whether the order to lock up the church building thereby preventing the parties from using same pending the determination of the suit is an infraction of the appellants’ fundamental right of religious worship guaranteed under the Constitution.

3.            Whether the preservation order of injunction made by the trial court is consistent with the claims of the plaintiffs/respondents.

Facts:

The plaintiffs/respondents commenced this action against the defendants/appellants claiming a declaration that the synod meeting of the 1 st appellant was illegal, annulment of the appointments made thereat; an order that the Will of the late founder of the church is not binding on the church; an order that the defendants should not disturb plaintiffs and other officiating members in the headquarters branch of the church; an order on the 7th defendant/appellant to hand over church property with her to the superintendent of the church; and, an order restraining defendants/appellants from harassing plaintiffs/respondents and other members of plaintiffs/ respondents’ faction.

After the exchange of pleadings, the plaintiffs brought an application for interlocutory injunction restraining both parties/factions from worshipping in the headquarters branch of the church and a close down of the said church.

The application was heard and granted. Dissatisfied, the defendants/ appellants filed this appeal.

ALHAJA SARATU ADELEKE

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ALHAJA MORINATU RAJI

RAIMI RAJI

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC ( Presided )

EMANUEL OBIOMA OGWUEGBU, JSC UTHMAN MOHAMMED, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC ( Read the Lead Judgment )

SC. 55/1996

FRIDAY, 21ST JUNE, 2002

APPEAL - Court of Appeal - Whether can take points suo motu - Discretion thereof to take points suo motu - How to be exercised

APPEAL - Trial court - Question decided by trial court - Party seeking to have same resolved by the appellate court - Duty of to file grounds of appeal germane to issues properly raised thereon

COURT - Court of Appeal - Whether can take points suo motu - Discretion thereof to take points suo motu - How to be exercised

COURT - Order of non-suit, strike out or retrial - Court making same Need therefor to hear address of parties before making

COURT - Trial court - Question decided by trial court - Party seeking to have same resolved by the appellate court - Duty of to file grounds of appeal germane to issues properly raised thereon

JUDGMENT AND ORDERS - Order of non-suit, strike out or retrial Court making same - Need therefor to hear address of parties before making

Issue:

Whether the court below was right to have struck out the respondents’ case.

Facts:

The plaintiffs commenced this action against the defendant for a declaration of title to statutory right of occupancy in respect of a piece of land. At the conclusion of trial but in the course of  closing his address, counsel for the plaintiff sought leave to amend his pleadings by changing title of the action in relation to the 1st plaintiff by adding “for herself and on behalf of Oyinade section of Raji Adewale family; defence counsel opposed the application but court granted the amendment.

The trial court thereafter found for the plaintiffs that they were in possession of the land, he dismissed their claim for special damages and awarded general damages for trespass committed on the land.

Dissatisfied, the defendant appealed to the Court of Appeal against the order granting the amendment and the judgment. The Court of Appeal allowed the appeal and ordered that plaintiffs’ claim be struck out. Both parties were dissatisfied with the judgment and orders of the Court of appeal, they therefore appealed to the Supreme Court.

AMES ELECTRICAL CO. LIMITED

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FEDERAL AIRPORTS AUTHORITY OF NIGERIA

COURT OF APPEAL

( ILORIN DIVISION )

MURITALA AREMU OKUNOLA, JCA ( Presided )

PATRICK IBE AMAIZU, JCA

WALTER S. NKANU ONNOGHEN, JCA ( Read the Lead Judgment )

CA/IL/25/2000

THURSDAY, 12TH JULY, 2001

ACTION - Pre-action notice - Non-compliance therewith - Objection thereon -  When and how raised

ACTION - Pre-action notice - Objection relating to non-service of - When can be raised - Whether can be raised in statement of defence

APPEAL - Preliminary objection to hearing of appeal - Incorporating objection in brief of argument - Whether proper - Need for objector to give three days’ notice of objection to appellant and move application before hearing of appeal - Order 3 rule 15(1) Court of Appeal Rules, 1981

COURT - Pre-action notice - Question relating to non-service of - Duty of court to examine all processes filed to determine the jurisdiction to entertain the suit

EVIDENCE - Affidavit - Counter-affidavit - When filing of counter-affidavit not required

EVIDENCE - Affidavit evidence - Failure of applicant to file affidavit in support of application or state facts relevant to application in affidavit in support - Whether necessary for respondent to file counter-affidavit

JURISDICTION - Court lacking jurisdiction - Proper order to make by court

JURISDICTION - Issue of jurisdiction - When can be raised - Whether can be raised before the filing of statement of defence

JURISDICTION - Jurisdiction of court - Plaintiff’s claim as determinant of

PRACTICE AND PROCEDURE - Demurer proceedings - Nature and purport of - Defendant claiming that plaintiff’s action be dismissed on points of  law - Effect of

PRACTICE AND PROCEDURE -  Pre-action notice - Non-compliance therewith - Objection thereto - When and how raised

PRACTICE AND PROCEDURE - Service of writ of summons - Improper service - Effect on jurisdiction of court - Need for objection relating thereto to be raised timeously before the filing of statement of defence

-  Effect of filing such objection after taking steps in the proceedings

Issue:

Having regard to the facts and circumstances of the case, whether the trial Judge was right to have dismissed the case of the plaintiff/ appellant for non-compliance with section 26(2)  of the Federal Airports Authority of Nigeria Decree No. 9 of 1986 which requires pre-action notice to respondent.

Facts:

By his writ of summons in suit No. FHC/IL/CS/30/98 and statement of claim filed on 31 /12/98, the plaintiff/appellant claimed against the defendant/respondent, Federal Airports Authority of Nigeria, the sum of N638,574.14 with interest.

On the 20th of July, 1999, the defendant/respondent without filing a statement of defence filed a notice of preliminary objection supported by an affidavit alleging non-service of pre-action notice as required by Decree No. 9 of 1996 and improper service of the writ of summons and the statement of claim.

At the conclusion of arguments, the trial court in a considered ruling upheld the objection and dismissed the suit.  The appellant  being aggrieved with the ruling has now appealed against the ruling.

In determining the appeal, the Court of Appeal considered the statement of claim particularly its paragraphs 15 and 16 where the appellant averred that he actually served the notice.

BRIFINA LIMITED

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INTERNATIONAL CONTINENTAL BANK LTD.

COURT OF APPEAL

( ENUGU DIVISION )

EUGENE C. UBAEZONU, JCA ( Presided and Read the Lead Ruling )

SULE AREMU OLAGUNJU, JCA

MUSA DATTIJO MUHAMMAD, JCA

CA/E/15M/2001 

THURSDAY, 22ND NOVEMBER, 2001.

APPEAL - Undefended List Procedure - Defendant who did not file notice of intention to defend at the trial court thereunder - Whether could be granted leave to argue on appeal fresh ground of appeal

PRACTICE AND PROCEDURE - Undefended List Procedure - A defendant who intends to defend thereunder - What he is expected to do

PRACTICE AND PROCEDURE - Undefended List Procedure - Defendant who did not file notice of intention to defend at the trial court thereunder - Whether could be granted leave to argue on appeal fresh ground of appeal

PRACTICE AND PROCEDURE - Undefended List Procedure -

Memorandum of conditional appearance - Whether can be filed thereunder

Issue:

Whether the applicant can be granted leave to argue on appeal a fresh ground of appeal having not filed a notice of intention to defend at the trial court.

Facts:

The suit which gave rise to the appeal in respect of which the instant application was brought was one under the Undefended List Procedure Wherein the applicant, as defendant, instead of filing of notice of intention to defend according to the rules filed a memorandum of conditional appearance and judgment was given against it.  On appeal, the applicant brought the instant motion seeking leave to be allowed to award its notice of appeal by the addition of a further ground of appeal.

The application was opposed by the respondent and it was the respondent’s contention that the action was filed on the undefended list, that the applicant failed to file a notice of intention to defend as required by the rules that granting of the application will amount to allowing the applicant to defend through the back door.

CONSOLIDATED BREWERIES PLC

DELE ADIGWE

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JOSHUA A. AISOWIEREN

COURT OF APPEAL

( BENIN DIVISION )

NIKI TOBI, JCA ( Presided and Read the Lead Judgment )

BABA ALKALI BA’ABA, JCA

KUMAI BAYANG AKAAHS, JCA

CA/B/204/98

MONDAY, 11TH JUNE, 2001

APPEAL - Issues for determination - Proliferation of - Attitude of court to

APPEAL - Issues for determination - Where two or more issues are argued together - Effect - Likely inference to be drawn thereby COURT - Issues for determination - Proliferation of - Attitude of court to

COURT - Special damages - Insufficient proof of - Whether court can remedy same

DAMAGES - General damages - Nature of

DAMAGES - Negligence - Accidented vehicle - Where held to be beyond repairs - Inference to be drawn from the repair of - how to make a reasonable assessment of damages for such repairs

DAMAGES - Special damages - How to plead and prove - Need to allege with particularity - Effect of failure to particularise - Rationale for particularising

DAMAGES - Special damages - Need to prove strictly - Whether court can remedy insufficient proof of

DOCUMENT - Where vital to a case - Need to plead same

EVIDENCE - Documentary evidence - Where vital to a case - Need to plead same - Evidential nature of documents

EVIDENCE - Inconsistent statements - Effect of - How to regard a witness who makes inconsistent statements

EVIDENCE - Interested person - Statements made by when proceedings are pending or anticipated - How construed - Section 91(3) of the Evidence Act, 1990

EVIDENCE - ‘Interested’ within the meaning of section 91(3) of the Evidence Act, 1990 - Definition of

EVIDENCE - Negligence - Accidented vehicle - Where held to be beyond repairs - Inference to be drawn from the repair of - How to make a reasonable assessment of damages for such repairs

EVIDENCE - Pleadings - Evidence not borne out from pleadings - Effect  - Need for parties to be bound by their pleadings

EVIDENCE - Section 149(d) of the Evidence Act - How applied

EVIDENCE - Unchallenged evidence - The general rule on - Exceptions thereto

EVIDENCE - Vehicle Inspection Officer (VIO) - Nature of the evidence of -  Whether an expert witness

EVIDENCE - Witness - How to regard a witness who makes inconsistent statements in court - Effect of inconsistent statements of a witness

NEGLIGENCE - Admission of negligence - Proof of special damages arising from negligence - Difference between

PLEADINGS - Pleadings - Evidence not borne out from pleadings - Effect -  Need for parties to be bound by their pleadings

PRACTICE AND PROCEDURE - Interested person - Statements made by when proceedings are pending or anticipated - How construed Section 91(3) of the Evidence Act, 1990

PRACTICE AND PROCEDURE - Issues - Where two or more are argued together - Effect - Likely inference to be drawn thereby - Attitude of court to proliferation of issues

PRACTICE AND PROCEDURE - Motion - Effect of filing without moving

it

PRACTICE AND PROCEDURE - Pleadings - Evidence not borne out from -  Effect - Need for parties to be bound by their pleadings

PRACTICE AND PROCEDURE - Unchallenged evidence - The general rule on - Exceptions thereto

PRACTICE AND PROCEDURE - Witness - How to regard a witness who make inconsistent statements in court -  Effect of inconsistent statements of a witness

STATUTE -  Evidence Act, 1990, section 149(d)  - How applied

STATUTE -  Evidence Act, Section 91(3) - How construed - Scope of

TORT -  Negligence - Accidented vehicle - Where held to be beyond repairs -  Inference to be drawn from the repair of - How to make a reasonable assessment of damages for such repairs

TORT - Vehicle Inspection Officer (VIO) - Nature of the evidence of - Whether an expert witness

WORDS AND PHRASES - ‘Interested’ within the meaning of section

91(3)  of the Evidence Act, 1990  - Meaning of

Issues:

1.            Whether the trial Judge properly evaluated and appraised the evidence before him in arriving at his conclusions and final judgment.

2.            Whether the reliefs sought were rightly granted in the circumstances of this case.