DR. THOMPSON NDUBUISI OBAREZI V. CHIEF. OSITA ILOZOR & ANOR
(2010)LCN/3599(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of March, 2010
CA/C/82/05
RATIO
ACTION: WHAT CONSTITUTES A NECESSARY PARTY
A necessary party to an action is one in whose absence the question submitted for determination cannot be completely and effectively settled. A necessary party is one who is bound by the decision in the matter, same one whose presence is necessary as a party. See Babayeju v. Ashama (1998) 9 NWLR (pt 567) 546 at 555 SC, Union Beverages Ltd. (1994) 3 NWLR (pt 330) 1 at 17 Sc. PER NWALI SYLVESTER NGWUTA J.C.A
WORDS AND PHRASES: MEANING OF FRAUD
“Fraud” from which the adverb “fraudulently” was derived means deliberate deception intended to gain an advantage see Ifegwu v. Federal Republic of Nigeria (2001) 13 NWLR (pt 729) 103 Ca. PER NWALI SYLVESTER NGWUTA J.C.A
JUSTICES
JAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
JEAN OMOKRI Justice of The Court of Appeal of Nigeria
Between
DR. THOMPSON NDUBUISI OBAREZI Appellant(s)
AND
1. CHIEF. OSITA ILOZOR
(TRADING UNDER THE NAME AND
STYLE OF OSIWAZOR MOTORS
2. USMAN AHMADU Respondent(s)
NWALI SYLVESTER NGWUTA J.C.A (Delivering the Leading judgment): In the High Court of Cross River State, Obubra Judicial Division the plaintiff, now Respondent, claimed against the defendants now appellants jointly and severally as follows:
1. A declaration that the plaintiff is the owner of all the motor vehicle with registration number Cross River AA606 KTA end entitled to its possession and use.
2. A declaration that the seizure detention and use of the said vehicle by the defendants is illegal and an infringement of the plaintiff’s proprietary rights
3. N1,050.000.00 (one million, fifty thousand Naira) being special damages
4. N1,000.000.00 being general damages for define.
See page 5(A) of the records.
The 2nd Defendant’s name was struck out based on his counsel’s preliminary objection in the trial court. The plaintiff’s appeal to the court was allowed and the name of the 2nd defendant restored.
The trial commenced and proceeded to conclusion. It its judgment the trial court held as follows:
“In the result, hereby enter Judgment in favour of the plaintiff and against the defendants jointly and severally as follows:
1. A declaration that the plaintiff was at all times material in this suit the owner of all that motor vehicle with registration number Cross River State AA606 KTA.
2. A declaration that the seizure, detention and use of the said vehicle by the defendant is illegal and an infringement of the plaintiffs proprietary rights over the vehicle.
3. The sum of N1,050.000.00 (one million fifty thousand Naira) only being general damages for detinue. The defts shall also pay interest on the judgment debt at the court’s rate of 10% per annum from today until the judgment debt is fully liquidated I make no order as to costs.”
See page 91 of the records.
Aggrieved by the judgment the 2nd defendant appealed on three grounds. By order of this court granted on 18/10/2009 – the appellant filed an amended notice of appeal containing six grounds, from which learned counsel for the appellant distilled the following six issues for determination by the court.
“A. Whether the (sic) was a privity of contract between the appellant and the respondent.
B. Whether the appellant is liable in detinue to the respondent as held by the court.
C Whether the necessary parties were before the court.
D. Whether the weight of evidence was in favour of the appellant
E. Whether the trial Judge was right to hold that Exhibit K was fraudulently made.”
On his part learned counsel for the respondent framed these three
1. Whether the ownership of the Nissan Bus with Registration Number AA 606 KTA was in dispute and whether the plaintiff proved ownership of the said vehicle to grant a claim for damages (Grounds 2 and 6).
2. Whether the non-joinder of the Nigerian Police is fatal to the action of the plaintiff (Ground B)
3. Whether it is proper for the court to vary the judgment of the lower court in the terms sought by the respondent, (Respondent’s Notice)
In addition to his argument on the three issues reproduced above earned counsel for the Respondent argued each of the six issues raised in the appellant’s brief.
I deem it appropriate at this point to sanitize the briefs filed by learned counsel for the parties. I will start with the appellants brief Appellant filed amended notice of appeal containing six grounds. He formulated six issues that is an issue from each ground of appeal Issues are not formulated to coincide with the number of the grounds of appeal See Nwudenyi & Ors v. Alete (1996) 4 NWLR (p. 442) 349. Except in special cases where the grounds of appeal so dictate it is undesirable to formulate an issue in respect of each ground of appeal. See Anie & Ors v Uzorka & ors (1993) 8 NWU (p. 309) 1 SC. A-G Bendel State v. Aideyan (1989) 4 NWLR (p. 118) 646, Nwosu v. Imo State Env. Sanitation Authority (1990)12 NWLR (pt 135) 688 at 714.
The special circumstance to justify formulation of an issue from a ground of appeal or issue to coincide with the number of ground of appeal could arise when there is only one ground of appeal filed. Be that as it may no sanction will be imposed on the appellant but that is not to endorse the undesirable practice of formulation of issues to coincide with the number of the grounds of appeal.
Now I come to the Respondent’s brief of argument. The respondent did not file a cross-appeal though he filed a respondent’s notice. Learned counsel incorporated in his brief argument on the issue on which he predicated his notice. Having done that he is not allowed to repeat himself by raising and arguing the same point as an issue in the appeal His argument on the issue by way of a respondent’s notice is already in the record.
I therefore strike out issue 3 in the Respondent’s brief. Issue one in the respondent’s brief is really two issues combined. It is as bad as splitting issues in a ground of appeal. See Labiyi vs. Anretiola (1992) 10 SCNJ 1 at 2. The issues is said to have been distilled from grounds 2 and 6 of the grounds at appeal. I have examined appellant’s grounds 2 and 6 and it is my humble view that the issue is not derivable from either or both grounds of appeal combined. It is hereby struck out as incompetent. See Ugo v Obiekwe (1989) 2 SC (pt 11) 41.
Issue 2 is framed from ground 3 as stated in the appellant’s brief.
However, the issue is a re-cast, albeit with specific particulars, of the appellant’s issue number 3.
There is need to revisit the appellant’s brief of argument. Appellant framed six issues from the six grounds in his amended notice of appeal, but he failed to relate any issue to any ground of appeal. I had assumed that he framed the issues from the grounds of appeal seriatim. However this is not the case. Ground one in the amended notice complains that “the Judgment is against the weight of evidence” but issue one that should have been distilled therefrom is not related to or derived from, it. It reads “whether the (sic) was a privity of contract between the appellant and the Respondent.” This was one of the particulars under ground 2 in the amended notice of appeal. It is incumbent on learned counsel to marry each issue to the ground or grounds of appeal from which the issue is derived, more so in this case with the number of grounds of appeal and issues formulated. It is not for the court to initially flounder in the search for what issue is derived from what grounds of appeal.
Having scrutinized the entire records of appeal as well as the briefs of argument filed by the parties I deem it expedient to abandon the issues in the briefs, some of which are in my view red herring and tend, or are intended to distract from the real issue in contention between the parties, and formulate an issue that can appropriately dispose of the appeal. I intend to determine the appeal on the issue: “At all material times who, among the appellant Thompson Ndubuisi Obarezi and the Respondent Chief Osita Ilozor is the owner of the vehicle registered in Cross River State as No. AA 606 KTA” The issues argued in the briefs revolve around the issue above as peripheral matters and I will deal with them briefly.
The appellant cannot be heard to raise the issue of privity of contract between the parties herein, the issue having been determined between the parties in appeal No. CA/C57/2001 by this court. The judgment in the case is subsisting as the decision was not appealed to the Supreme Court. In raising the issue in the appeal the appellant is asking the court to sit on appeal over its own judgment.
The issue raised on liability vel non in detinue arose in my humble view from an honest mistake made by the trial court. Respondent had claimed N1,000,000.00 as general damages for detinue. The trial court dismissed the claim only to award “the sum of N1,050,000 (one million fifty thousand Naira) only being special damages for detinue”. The award was made in error and the Respondent has filed a Respondent’s notice are set out and the argument incorporated in the Respondent’s brief. The appellant who appealed the award in detinue did not respond to the Respondent’s notice and/or argument based on same. As stated earlier the award was made in error and it is in conflict with the decision in the claim in detinue. I therefore vary the decision of the court below as follows:
“N1,050,000.00 (one million fifty thousand Naira) being special damages for the seizure, detention and use of the plaintiff’s vehicle”
A necessary party to an action is one in whose absence the question submitted for determination cannot be completely and effectively settled. A necessary party is one who is bound by the decision in the matter, same one whose presence is necessary as a party. See Babayeju v. Ashama (1998) 9 NWLR (pt 567) 546 at 555 SC, Union Beverages Ltd. (1994) 3 NWLR (pt 330) 1 at 17 Sc. Without a showing that the matter cannot be decided without the police as a party or that the decision in the matter binds the police the appellant cannot be heard to say that the police is a necessary party.
I agreed that the seizure and subsequent release of the vehicle by the police gave rise to the cause of action in this case but I also agree with the respondent that the victim of a tort has right to sue some or all the tort teasors. It was the appellant who instigated the action of the police in a pure commercial, transaction. The Respondent could sue the appellant or the police or the both of them. He chose to sue the appellant who brought in the police. With respect to the learned counsel for the appellant the case of Fajemirokun v. CB (CI) Ltd (2002) 10 NWLR (Pt 774) 95 774) 95 at 99 cannot avail him. The case was decided not on he general civil procedure rules but on the special fundamental rights (Enforcement Procedure) rules.
The issue of weight of evidence will be dealt with in the central issue on the case.
Suit No FHC/C/CS/77/98 was instituted by the respondent in the Federal High Court against the appellant. Before it was withdrawn the appellant as defendant filed an affidavit. The facts on the affidavit can be classified as evidence given in previous judicial proceedings by the appellant under S.43(1) of the Evidence Act. Learned counsel himself justified the reliance on the affidavit Exhibit E in his address in the trial court.
See page of the records where he said:
“A part from that it can be used to contradict the maker”. He added, so using Exhibit E here to improve their case is against the tenets of S.43 (1) of the Evidence Act.”
Exhibit E was relied on to contradict the appellant. The general purpose of contradicting the respondent is to improve the case of appellant. It is absurd to argue that the law that allows one party to contradict his opponent will not allow him to improve his case by the said contradiction. Contradiction in its nature weakens one case and to that extent improves or strengthens the other case.
Appellant questions the finding of the court that Exhibit K was fraudulently made. Exhibit K reads in part:
“1. That the creditor (sic) in indebted to the creditor to the total sum of four hundred thousand naira (N400,000.00) being the money realized from the sales of the… Bus owned by the creditor with registration number CRS AA606 KTA, chasis number 0914079 and Engine Number 136629A.”
From the above the sale of the vehicle was not an issue between the parties. It was for the proceeds of the sale of the vehicle that Exh. K was made. Appellant had stated in Exhibit E that:
“I handed the vehicle to the 1st defendant/respondent to sell on my behalf with all the clearance documents”.
The use of the words debtor and creditor in Exh K and the sum of N400,00.00 money realized from the sale give lie to the clause inserted in Exhibit K as giving the appellant the right to impound the vehicle for the default in paying any part of the purchase price when the vehicle was sold and fully paid for as per Exh. K. It is on the basis of clause 5 of Exh. K. that the appellant impounded the vehicle and keeps the sum of N300,000 he said was part payment for the vehicle for N400,000 fully paid.
“Fraud” from which the adverb “fraudulently” was derived means deliberate deception intended to gain an advantage see Ifegwu v. Federal Republic of Nigeria (2001) 13 NWLR (pt 729) 103 Ca. there is no basis for interfering with the finding of the trial Court that Exh. K was fraudulently made. In any case a contrary finding would not affect the decision reached by the trial court.
Now that the peripheral matters have been disposed of I will go to the main issue in the appeal – the ownership of the vehicle No. CRS 606 KTA I will consider the pleadings and evidence of the issue.
In paragraphs 2 to 9 of the statement of claim the respondent avered fact he relied on to prove his purchase of the vehicle. In particular he pleaded in paragraphs 7 and 9 thus:
“7 the 1st defendant sugned a purchase agreement acknowledging the receipt of the sum of N380,000.00 (Three hundred and eighty thousands Naira) including the sum earlier paid by Bassey Ayang which was deemed to have been paid by the plaintiff. The 1st defendant also issued a cash receipt, invoice and transfer and change of ownership to the plaintiff. All the aforementioned documents are hereby pleaded and the first defendant parted with the possession of the then (sic) vehicle and all its original particulars to the plaintiff. The said particulars are pleaded.
9. The plaintiff complied with all formalities of registration including change of ownership, certificate of road worthiness, licensing, insurance, payment and purchase for a registration number plate. The said documents are pleaded. The plaintiff spent the sum of N5,000.00 to complete the registration formalities.”
On the other hand the appellant pleaded in his statement of defence that he purchased the vehicle in Cotonou with a view to selling dame in Nigeria. That the 1st Defendant bought it from him on credit and that he reached an agreement with the 1st defendant who promised to pay within a specified period or to suffer a sanction in default. It is noteworthy that the nature and form of the sanction in default. It is noteworthy that the nature and form of the sanction were not pleaded.
The respondent gave evidence in line with facts he pleaded. The evidence went unchallenged. The question is whether or not the appellant sold the vehicle to the 1st defendant who sold same to the appellant. If the 1st defendant did not buy the vehicle he sold to the respondent and title to same resided in the appellant then the 1st defendant could not have sold the vehicle to the respondent on the principle of Nemo dat quod non habes – no one can sell what he does not have.
In his evidence before the trial court the appellant said, inter alia:
“When we came back the 1st defendant indicated interest in the vehicle. We agreed at a price of N400,000.00 He said he did not have the complete money and be paid only N300,000.00 and promised to pay the balance in a particular date. We entered into an agreement to what effect. This is a copy of the agreement between me and the 1st defendant.”
See page 68 of the records.
The agreement was admitted as Exh K. Exh. K is to the effect that the debtor would pay to the creditor the sum of N400,000 as the money realized from the sale of the vehicle. It is clear from Exh. K. that the vehicle had already been sold by “debtor” and the creditor was only concerned with receiving the proceeds of the sale.
In other words the “debtor” (1st defendant) sold the vehicle as instructed by the appellant but had not remitted the proceeds to him which necessitated the execution of Exh. K. by the 1st Defendant and the Appellant. See paragraph 17 of Exh. E. in which the Appellant averred :
I handed the vehicle to the 1st defendant/respondent to sell on my behalf all clearance documents.”
By so doing the appellant created agency with himself as the principal and the 1st defendant as his agent for the sale for the vehicle. Appellant is estopped from denying the sales by his agent, the 1st defendant. See Ironbar v. Cross River Basin and Rural Development Authority & Anor. (2004) 2 NWLR (pt 857) 411 at 432 (CA).
In my view the sales of the vehicle by the 1st defendant is as good and valid as if the sale had been effected by the appellant in person.
His title to the vehicle was competently and validly passed to the respondent by the 1st defendant. If the 1st defendant failed to account to him for the sale he can recover the proceeds of sales from his agent but cannot impound the vehicle which had been validly acquired by the respondent in my view the clause by which he impounded the vehicle was inconsistent with the intendment of the agreement Exh K which was to secure the payment to him by the 1st defendant of the proceed of the sale of the vehicle.
I resolve the issue against the appellant.
I find no merit in this appeal and it is hereby dismissed.
I affirm the decision of the lower court subject to the variation made pursuant to the respondent’s notice.
Appellant is to pay cost assessed at N30,000.00 to the respondent.
JAAFARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment of my learned brother N. S. Ngwuta, JCA. I agree with the reasons given in it and the conclusion reached thereof.
There is no merit in this appeal and it is therefore dismissed.
The decision of the lower Court, subject to the variation as in the lead judgment, affirmed.
Costs of N30,000.00 is to be paid by the appellant to the respondent.
JEAN OMOKRI, J.C.A.: I have had the privilege of reading the judgment just delivered by my learned brother N. S. Ngwuta, JCA and I agree with his reasoning and conclusion that the appeal has no merit, I also dismiss the appeal and abide with the consequential orders.
Appearances
Chief F. O. Onyebueke Esq.For Appellant
AND
Matthew Ojua Esq.For Respondent
