MR. EDWIN NWEGBU V. MR. SUNNY C. AGWU & ANOR. (2012)

MR. EDWIN NWEGBU V. MR. SUNNY C. AGWU & ANOR.

(2012)LCN/5561(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of July, 2012

CA/B/218/2009

RATIO

APPEAL: EFFECT OF AN APPEAL FILED AFTER THE STIPULATED TIME WITHOUT LEAVE OF COURT

It is settled law that an appeal filed after the stipulated time without leave of court is not an appeal and ought to be struck out. See AWOHINSAHI V. OTERI (1984) SC 38. PER GEORGE OLADINDE SHOREMI, J.C.A

EVIDENCE: EFFECT OF A POINT RAISED NOT COUNTERED BY THE OTHER PARTY

CONTRACT: WHETHER A PARTY TO AN ILLEGAL CONTRACT IS ENTITLED TO ANY REMEDY

It is trite law that none of the parties to an illegal contract is entitled to any remedy or relief from a court of law.

In the instant case what the Appellant urged the trial court and the Court of Appeal to do is not only illegal but unenforceable in law. See ONAMADE V. A.C.B. LTD (1997) 1 NWLR (Pt.480) 123; ABUBAKAR V. SMITH 1973 6 SC 31. PER GEORGE OLADINDE SHOREMI, J.C.A

CONTRACT: WHAT CONSTITUTES AN ILLEGAL CONTRACT

JUSTICES

RAPHAEL CHIKWE AGBO (PJ) Justice of The Court of Appeal of Nigeria

GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

Between

MR. EDWIN NWEGBU Appellant(s)

AND

1. MR. SUNNY C. AGWU
2. MRS. KATE AGWU Respondent(s)

GEORGE OLADINDE SHOREMI, J.C.A (Delivering the Leading Judgment): This is an appeal against the decision of the Edo State High Court sitting in Benin City delivered on 29/11/2007. The facts leading to this appeal are that the Appellant as Plaintiff in the trial court sued the Respondent via undefended list procedure but was subsequently transferred to the General Cause list, the Plaintiff/Appellant claimed against the Respondents in his statement of claim as follows:-
“Whereof the Plaintiff claims from the Defendants jointly and severally the total sum of Six Million, Six Hundred and seventy thousand Naira (N6,670,000.00) only being the sum paid to and agreed to be refunded by the Defendants and the accrued interest thereon”.
The Plaintiff/Appellant founded his case on the amount of money he allegedly paid to the Defendants/Respondents for the purpose of taking his son from Nigeria to the United States of America (U.S.A.). It is his case that the transaction failed and decided to claim for a refund of the sums paid and interest thereon.
The Defendants/Respondents denied requesting or receiving any money from the Plaintiff/Appellant for themselves for the purpose of taking his son to the United States of America. It is their case that at the request of the Plaintiff/Appellant, they appealed to their daughter in the United Kingdom to assist the Plaintiff/Appellant’s son and that the transaction was between the Plaintiff/Appellant, their daughter and one Charles Ogbegie, introduced by their daughter and to whom the money was given for the purpose of taking Plaintiff/Appellant’s son to the U.S.A. using Senegal as a transit point. It is also their case as formulated in their Amended Statement of Defence that if any such transaction was found to have existed between them it is an illegal contract that cannot be enforced in the Court of law.
At the end of the trial, the learned trial Judge entered judgment in favour of the Defendants/respondents by dismissing the claim of the Plaintiff/Appellant. The learned trial Judge at the end of the judgment held as follows I quote –
“Contrary to the claim of the Plaintiff in this case that it was the Defendants who approached him and asked if he had anybody to send abroad, there is on record the evidence of PW2, his son, confirming the case of the defence that it was the Plaintiff who appealed to the Defendants, who are known to him not be travel agents, to plead with their daughter to help the PW2 travel abroad. According to the evidence of the Plaintiff, one week after the commencement of the trial he went to ask and he was told there was no news yet. “After a year”. To quote him” they told me that my son was still in Senegal and I asked whether they had not crossed and they said “no”. It clearly appears to me from the foregoing that the Plaintiff knew that the transaction in respect of which he paid the money was one to take his son out of Nigeria using Senegal as a transit point, as averred by the defence, in breach of the law, and was to be performed in a legally objectionable manner. In West Const. Con. V. Batalha (2006) 9 NWLR Pt 986 Page 595 621 – 622 Pats Acholonu JSC listed the situation which could make a contract incapable of enforcement to include:
a) where both parties knew that the performance of the contract necessarily involves the commission of an act which is to their knowledge criminal,
b) both parties knew that the contract is intended to be performed in a manner which, to their knowledge is legally objectionable, and
c) both parties participated in performing the contract in a manner which they knew to be legally unacceptable.
This is the basis of the principle of law encapsulated in the maxim ex turpi canuso non oritur action, that is, an action does not arise from a base cause and a court does not generally enforce a contract or transaction tainted will illegality or contrary to public policy.
In the result, I am unable to lend the authority of this court to the Plaintiff for the purpose of enforcing a base claim as his claim in this case is tainted with illegality and clearly contrary to public policy. The claim is accordingly dismissed”.
The Appellant dissatisfied with the judgment appealed against it by giving a notice of Appeal with 3 grounds. I quote without particulars:
“(1) GROUND 1: MISDIRECTION-IN-LAW
The learned trial Judge misdirected himself in law when he transferred this suit from the undefended list to the general cause list.
“(2) GROUND 2. ERROR-IN-LAW
The learned trial Judge erred in law and thereby occasioned a grave miscarriage of justice when he dismissed the Appellant’s claim on the ground that same is tainted with illegality and clearly contrary to public policy”.
“(3) GROUND 3: ERROR-IN-LAW
The learned trial Judge erred in law when he failed, refused and/or neglected to award the Plaintiff his claims”.
In line with the practice of this court parties exchanged briefs of argument. When on 23/4/12 this appeal came up for hearing.
Emenike Esq. of counsel to the Appellant identified his brief dated 14/4/2010 but deemed filed on 16/11/11. He adopted same and relied on it as his argument in favour of the appeal and urged the court to allow the appeal.
Edward Aibangbee Esq. of counsel to the Respondent identified his brief dated and filed on 16/12/11. He adopted and relied on same as his argument that the appeal be dismissed.
The Appellant from his 3 grounds of appeal distilled 3 issues thus:-
1) Whether the affidavit in support of the Respondents notice of intention to defend the suit had disclosed a defence on the merits to satisfy an order of transferring the suit from the undefended list to the general cause list”.
In arguing this issue the Appellant submitted that the affidavit in support of the Respondents notice of intention to defend did not disclose a defence on the merit to warrant the trial Judge transferring the suit from undefended list to the general cause list. He is of the opinion that the Respondent did not depose to the details of payment. He relied on TAHIR V. KAPITAL INSURANCE COY LTD. (Citation not supported and PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD. V. RHEIM MASS GMBH (1997) 3 NWLR (Pt.493) 248 at 256.
He argued that the defence put up by the Respondents is evasive. He further submitted that the suit ought not to have been transferred from the undefended list to the general cause list as it is trite law that facts admitted need not be proved. Refers to S.75 of the Evidence Act. ADELEKE V. O.S.H.A. (2006) 16 NWLR (Pt. 1006) 608 at P. 687. He concluded that the defence of the Respondents is diversionary frivolous and a complete sham relying on OKORO V. OKORO (2010) 2 NWLR (Pt.1177) 198.
The Respondents in reply to the argument on this issue submitted that the issue is in incompetently as raised and can not be argued in this court. He argued that the ground of appeal must be distilled from judgment appealed against and if not would be incompetent and be struck out.
He argued that ground one as stated in the notice of appeal. He argued that for a party to an appeal against an interlocutory order in a ground of appeal such a party must seek the leave of court to do so otherwise the consequence for failure to obtain leave will be fatal. He referred to AJAYI V. OJOMO (2000) 2 NWLR (Pt 688) 447; TIJANI V. AKINWUNMI (1990) 1 NWLR (Pt 125) 237; AJANI V. GIWA (1986) 3 NWLR (Pt. 32) 796.
He argued that the ground of appeal is incompetent and also the issue. In the alternative he submitted that the suit was correctly transferred from the undefended list to the general cause list.
Without much ado the Appellant had committed a serious blunder by S.24 of the Court of Appeal Act.
It is provided that where a person desires to appeal to the Court of Appeal he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by provision of subsection (2) of this Section that is applicable to the case.
2) The period for giving of notices of appeal or notice for leave to appeal are (a) in an appeal in a civil cause or matter fourteen days where the appeal is against an interlocutory decision…………..
b) ……..not applicable
The Appellant was served with Respondents’ brief. He did not react to this salient point of law. It is settled law that an appeal filed after the stipulated time without leave of court is not an appeal and ought to be struck out. See AWOHINSAHI V. OTERI (1984) SC 38.

In JOSEPH IRO & 3 ORS V. CHRISTOPHER ECHEWENDU & SONS (1996) 8 NWLR (Pt 486) 629 636 ‘D’ & ‘E’. It was held that where a new point raised in a Respondent brief of argument is not countered by an Appellant’s reply brief the new point is taken as conceded and unchallenged.
In the instant case in which the Respondents in their brief raised this point to which the Appellant filed no reply nor proffered any oral argument the Appellant is deemed not to have any answer to the objection.
In event the issue and the ground of appeal are of no moment and they are struck out.
Orbiter form the facts contained on the record the trial Judge was right in transferring the suit to the general cause list from the undefended list.
Issue 2:
Whether or not the learned trial Judge was right when he held that the plaintiff claim is tainted with illegality and contrary to public policy. The Appellant submitted that there is nothing illegal in the Appellant’s claim which is merely for refund for realization to dishonored cheques for money had and received for a consideration which has totally failed.
He said the onus of proof of illegality is on the party that alleged it and raised in his pleadings. The argument of the Appellant is that the Respondent did not raise this in their pleading. He further submitted that in determining the illegality or otherwise of a contract knowledge of both parties to the illegality of the intended act is fundamental. The illegality of the contract must be acknowledged by both parties relied on AJAOKUTA STEEL COY LTD. V. CORP INSURANCE LTD (2004) 41 WRN 84 at 112 where it was held:
“it is also the law in contract that neither party can sue upon a contract if;
a) Both knew that it necessarily involved the commission of an act, which to their knowledge, is legally objectionable; that it is illegal or otherwise against public policy; (knowledge of illegality by an agent generally, has no less effect than knowledge by the principal)
b) Both knew that the contract is intended to be performed in a manner which to their knowledge is legally objectionable in that sense; or
c) The purpose of the contract is legally objectionable and that purpose is shared by both parties; or
d) Both participate in performing the contract in a manner which they know to be legally objectionable”.
He submitted that there was no time that both parties agreed that it was an illegal contract. The Respondent referred to paragraph (18b) of his Amended Statement of defence that the illegality was pleaded. He also quoted evidence of the Appellant and referred this court to some aspect of the evidence rendered at trial. Let me quote some –
“……..it is true that the 1st Defendant does not run an agency that takes people abroad.”
Also during the trial the P.W.2, one Charles Nwegbu; the young man who was to be taken abroad or specifically to the United States of America testified and during cross examination he said;
“I do not know whether he (Defendants) operates a travel agency. I agree that my journey through Togo to Mali to Senegal was illegal”.
I am surprised at the submission of the counsel to the Appellant. His argument runs contrary to the records of proceedings. In Exhibit P6 the letter of demand made by G.C. Igbokwe Solicitor shows in part I quote –
‘It is our instruction that between 13th & 14th day if November 2002 you extorted the sums of ………….”.
Is extortion not a criminal offence as indicated in that exhibit? The argument of the Appellant does not hold water and it is of no consequence. It is trite law that none of the parties to an illegal contract is entitled to any remedy or relief from a court of law.
In the instant case what the Appellant urged the trial court and the Court of Appeal to do is not only illegal but unenforceable in law. See ONAMADE V. A.C.B. LTD (1997) 1 NWLR (Pt.480) 123; ABUBAKAR V. SMITH 1973 6 SC 31.

A contract is illegal if the consideration on the promise involves doing something illegal or contrary to public policy or if the intention of the parties in making the contract is mainly to promote something which is illegal or contrary to public policy. See ALHAJI TAOFEEK ALAO V. ACB (1998) 3 NWLR (Pt 542) 339.
Overseas travel is controlled by law and it was not in evidence that the Respondents are agents of Government Immigration nor are they travelling agencies.
Illegal contract is void and can not be the foundation of any legal right. ONYUKE OKEKE (1976) 10 NSCC 146; A.G. LAGOS STATE V. C.U.S. LTD (2002) 5 NWLR (Pt 760) 371.
It will not be necessary to consider Issue 3 as formulated by the Appellant that whether or not the learned trial Judge was right to have dismissed the Appellant’s claim.
Having found that the contract is tainted with illegality the trial Judge was right to have dismissed the claim.
Before conclusion of this appeal may I repeat what has been said in many instances that counsel are minister in the temple of justice and therefore should be able to be honest with their clients and advice them properly on the position of law in cases where they are instructed. It is not every case that will succeed on trial.
There is need for counsel to have confidence in success of a case before accepting it. See OJO V. PHILLIP (1993) 5 NWLR (Pt. 296) 751.
In conclusion, this appeal lacks merit and it is dismissed. The judgment of the trial court High Court of Justice Benin delivered on 29/11/2007 is affirmed. Cost of N30,000 is awarded against the Appellant.

R.C. AGBO, J.C.A.: I agree.

CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A: I had the privilege of reading before now the detailed judgment of my learned brother G.O. SHOREMI JCA.
I agree with the said judgment just pronounced and that having found that the contract was tainted with illegality, the trial Judge was right to have dismissed the claim. It is for this reason and other reasons more elaborately made in the lead judgment that I too hold that this appeal is most unmeritorious. Accordingly, I dismiss the appeal and abide by the order as to costs.

Appearances

T.A. Emenike Esq.For Appellant

AND

Edward Aibangbee Esq.
Abiodun Ajibede Esq.For Respondent