ALHAJI ISMAILA IBRAHIM & ANOR v. ABDULAZIZ IBRAHIM
(2019)LCN/13514(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of June, 2019
CA/K/213/2016
JUSTICES
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI ISMAILA IBRAHIM
2. SANI TASIU Appellant(s)
AND
ABDULAZIZ IBRAHIM Respondent(s)
RATIO
WHETHER OR NOT FAILURE TO FILE A REPLY TO REBUT AN AVERMENT IN A STATEMENT OF DEFENCE IS TANTAMOUNT TO AN ADMISSION
There is no general proposition of law, I hold, that failure to file a reply to rebut an averment in a Statement of Defence which does not contain a counter-claim is tantamount to an admission. Where, however, the Defendant by his pleading sets out a case which cannot be met by mere denial, it is a matter of utmost prudence, if not necessity, to file a reply, otherwise the new facts will be deemed admitted. See Egesimba v. Onuzurike (2002) 15 NWLR Part 791 Page 466 at 497-498, Para H-A; 512 Para E-H; 519 Para A-G per Ayoola JSC. PER ADEFOPE-OKOJIE, J.C.A.
FACTOR TO BE PRESENT FOR A CONTRADICTION TO VITIATE A TRIAL
For contradictions to vitiate the trial, they must affect the substance of the party?s case, I hold. See Wachukwu V Owunwanne (2011) 14 NWLR Part 1266 Page 1 at 27 Para E-H Per Muhammad JSC.
As defined by His Lordhip Uwaifo JSC Makinde v Akinwale (2000) 2 NWLR Part 645 Page 435 at 450 Para E, for a contradiction to vitiate a party?s case, ?the Court will not consider it improbable simply because there are some minor inconsistencies in it vis-a-vis the facts pleaded. It is any evidence so materially at variance with the pleading in the sense that they both cannot be reconciled (or which has notable internal conflicts) that the Court will justifiably reject it. PER ADEFOPE-OKOJIE, J.C.A.
THE OBJECT OF THE AWARD OF DAMAGES
The object of the award of damages, I hold, is to compensate a person for the loss or injury he has sustained by reason of the act or default of another, whether the act or default is a breach of contract or tort. The damages must be attributable to the breach of some duty by the Defendant The measure is an amount that will reflect what will put the injured party in the same position he would have been had the injury not occurred. The object of the award is restitutio in integrum as if the breach did not occur, and not restitutio in opulentium. It is not meant to give a windfall to the Respondent ? GE International Operations (Nig.) Ltd v Q Oil and gas Services Ltd (2016)10 NWLR Part 1520 Page 304 at 331 Para E-F; 332 Para D per Ngwuta JSC; B.B. Apugo & Sons Ltd v Orthopaedic Hospitals Management Board (OHMB) (2016) 13 NWLR Part 1529 page 206 at 256-257 Para B-H per Kekere-Ekun JSC; Union Bank Plc v. Chimaeze (2014) 9 NWLR Part 1411 Page 166 at 191-192 Para H-B; (2015) All FWLR Part 734 Page 48 at 71 Para G-H per Ariwoola JSC.PER ADEFOPE-OKOJIE, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment)?: This appeal is against the judgment of the Kano State High Court delivered on the 29th day of December, 2015 by Hon. Justice Nasiru Saminu. The Respondent in this appeal, Abdullaziz Ibrahim, as the Plaintiff at the lower Court, in his claim before the said Court, stated that on the 15th day of August, 2013 he was arrested by the 3rd, 4th & 5th Respondents (3rd -5th Defendants therein), following the complaint of the Appellants. That based on this complaint, the 3rd and 4th Respondents confiscated his landed and other movable properties, extracting an undertaking from him to pay the balance to the 1st Appellant of the sum of N31,188,100.00 (Thirty-One Million One Hundred and Eighty-Eight Thousand One Hundred Naira). He was also made to issue a blank cheque, following which the sum of N480,000.00 was withdrawn from his account, in the name of the 2nd Appellant, the son of the 1st Appellant.
?He also alleged that the 3rd ? 5th Defendants confiscated his residential house, four (4) plots of land, six (6) cars and other belongings which were handed over to
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the 1st Appellant. He was also arraigned before the Senior Magistrate Court No Man?s Land where he was summarily convicted and an undertaking which had been extracted from him was made the judgment of the Court. However the conviction was set aside by the Kano State High Court which ordered a retrial before a different Judge, which case is currently going on.
He thus filed a suit before the lower Court seeking the following reliefs: –
1. A DECLARATION that the Confiscation and Forceful surrender of Plaintiffs house No. 502 Tudun Maliki Quarters, Kumbotso LGA Kano, together with its title documents by the 3rd and 4th Defendants and handing it over to the 1st Defendant is illegal, unconstitutional, null and void.
2. A DECLARATION that the Confiscation and Forceful surrender of Plaintiffs four customary plots lying at: –
A. Two Plots No. 6 & 7 at Hotoro Ungwan Kwari Nassarawa LGA Kano.
B. Another Two Plots No.14 & 16 at Danbare, Kumbotso LGA Kano.
Together with their title documents by the 3rd and 4th Defendant and handing them over to the 1st Defendant, is illegal, unconstitutional, null and void.
3. A DECLARATION
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that the Plaintiff is still the lawful owner of the house No. 502 Tudun Maliki Quarters Kano, and also the 2 customary Plots No. 6 & 7 lying at Hotoro Ungwan Fulani Nassarawa LGA Kano, and another 2 Plots No. 14 & 16 Danbare Kumbotso LGA Kano.
4. AN ORDER of perpetual injunction restraining the Defendants from exercising any act of ownership over the aforementioned properties, disposing the properties or in any way trespassing or continuing to trespass, disturbing or interfering with the lawful ownership/possession of the Plaintiff.
5. AN ORDER of this Court directing the Defendants jointly and severally to hand over all the confiscated title documents of the aforementioned properties back to the Plaintiff forthwith.
6. A DECLARATION that the Confiscation and Forceful surrender of Plaintiff?s properties listed-below, by the 3rd and 4th Defendants and its handing over to the 1st Defendant is illegal unconstitutional, null and void, the properties are as follows:-
a) Mercedes Benz C300 with plate number DM 616 RBC
b) Peugeot 406 with plate number AC 239 ABJ
c) Honda Civic with plate number TM 291 NSR
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d) KIA Piccanto with plate number CB 324 RBC
e) KIA Piccanto with plate number AZ 111 TRN
f) Renault Scenic with plate number AE 324 TRN
g) Cooking gas cylinder with complete set of 6 stove thereof
h) 4 sets of Fridges
i) 3 set of LG Plasma Television
j) 8 Pieces of Turkish Carpets
k) 1 set of Dinning Table
l) 2 sets of Lethal executive chairs
m) Complete set of Bedroom Furniture
n) 2 Uniform Mattress
o) 20 KVA Electric Generator (sound proof gublee)
p) Elemax 700 Electric Generator
q) 40 sacks of rice
r) 10 cartons of Spaghetti
s) 10 cartons of Macaroni
t) 10 cartons of Cuscus
u) 9 set of Air Conditions (1 horse power split)
v) LG Air Condition (1 horse Power)
w) LG washing machine
x) Plaintiff set of clothes (800 sets a number of shoes, caps and cosmetics)
y) Licensed Gun (double barrel-pump action) No. 0900787 SBSG. 12 with its license ammunitions.
z) 36 Dealers of ile Materials Stock (atamfa)
aa) N551,600.00 (Five Hundred and Fifty One Thousand Six Hundred Naira Only) cash
7. A DECLARATION that the Plaintiff is still the lawful owner of the
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aforementioned personal properties.
8. AN ORDER of this Court directing the Defendants jointly and severally to handover all the aforementioned properties back to the Plaintiff forthwith, being the rightful owner thereof OR IN THE ALTERNATIVE to pay the sum of N23,823,600.00 being the total value of the personal properties of the plaintiff.
9. A DECLARATION that 3rd and 4th Defendants? act of seizing a Sky Bank cheque for the Plaintiff with account No. 1040341284 and forcing Plaintiff to sign same blankly and handing it over to 2nd defendant who use it in his favour to the tune of N480,000.00 (Four Hundred and Eighty Thousand Naira Only) dated 19/08/13 is illegal null & void.
10. AN ORDER of this Court directing the Defendants jointly and severally to pay to the Plaintiff the sum N480,000.00 (Four Hundred and Eighty Thousand Naira Only).
11. GENERAL DAMAGES for trespassing and Defamation against the Defendants joint and severally in the sum of N50,000,000.00 (Fifty Million Naira Only).
12. ANY OTHER RELIEF which may be deemed to be granted by this Honourable Court, in the interest of justice of this case.
?
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In their Statement of Defence, the Appellants denied most of the averments of the Respondent, averring that the Respondent served under the 1st Appellant as a house boy, later promoted to his personal driver. As a result of the trust, the 1st Appellant started engaging him in his personal business activities to the extent of assigning him to collect monies from numerous customers and sending him to pay monies to his business associates. In the course of time, the son of the 1st Appellant developed a mysterious sickness. The Appellant introduced a herbalist who succeeded in curing the son. Subsequently, over the years, the Respondent continued to collect monies from the 1st Appellant under the pre that he would find a lasting solution to the sickness of his son and protection for the entire family against all spiritual attacks. Respondent threatened that failure to pay this money would result in calamity befalling the family. Under this fear, the 1st Appellant continued to pay any money demanded, including selling his houses, at gross under value, to meet the demands of the Respondent.
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The 2nd Appellant, a nephew of the 1st Appellant, in view of the rate
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of disposal of the 1st Appellant?s assets at ridiculous prices, lodged a complaint to the Police, who arrested the 1st Appellant at the point of collecting proceeds for the sale of his personal dwelling place. He mentioned the Respondent as the person to whom all the monies were being paid. The Respondent was invited for questioning. At the conclusion of investigation, the Respondent was arraigned before the Senior Magistrate Court, where he was convicted for breach of trust upon his admission. Following an undertaking made in writing by the Respondent to surrender his moveable and immoveable property to the 1st Appellant, the Magistrate made an order for the release of the surrendered items to the 1st Appellant. On appeal to the Kano State High Court, the decision of the Senior Magistrate Court was overturned on the ground that the matter was heard in chambers and an order for retrial made. The Respondent thence filed the action leading to the instant appeal.
?
At the trial before the lower Court, three (3) witnesses testified for the Respondent (Plaintiff therein), while nine (9) witnesses testified for the Appellants. The 3rd-5th Defendants called
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a sole witness. At the end of the trial, the Trial Judge found for the Respondent and granted all the reliefs sought.
Dissatisfied with the judgment, the Appellant filed a four ground Notice of Appeal on the 4th day of April, 2016.
The Appellants? Brief of Arguments, settled by B.M Mukaddam Esq. filed on 7/11/17 out of time, was deemed, upon Counsel?s application, as properly filed on the 22/3/18, in which four issues for determination were distilled, as follows:-
1) Whether or not the lower trial Court was right to hold that failure of the Respondent to file reply to the statement of defence is not necessary if the sole essence is to deny averments contained in the statement of Defence and just stopped at that without looking at the other requirements that made it mandatory for filing of reply to the statement of defence.
2) Whether or not the lower trial Court was right in giving judgment in favour of the Respondent despite the established contradictions and inconsistences in the testimony of the Respondent being PW1, his father being PW2 and his brother being PW3.
3) Whether or not the lower trial Court was right in
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refusing to enforce written undertaking freely made by the Respondent being referred to as exhibits P1 ? P6 and particularly exhibit P6 made on the 20th day of August, 2013.
4) Whether or not the lower trial Court was right in disregarding and not educating on an issue for determination raised in the Appellant?s final written address.
The Respondent?s Brief of Arguments was filed on the 17th day of April, 2018, prepared by Nasiru M. Ahmed and Hamisu Sani Esqs. in which four issues were similarly distilled for determination in this appeal, namely:-
1) Whether or not, non filing of Respondent?s Reply to Appellant?s amended Statement of Defence which does not contain counter-claim, is tantamount to an admission of facts contained in the Appellant?s Statement of Defence.
2) Whether or not the trial Court rightly entered judgment for the Respondent upon the established principle in proving civil claims on preponderance of evidence and balance of probabilities.
3) Whether or not the trial Court rightly annulled and voided series of surrenders of Respondent?s properties (in exhibits P1 ? P4 and
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P6), having been prepared and executed under duress and intimidation and during detention of the Respondent, in favour of the 1st Appellant.
4) The trial Court, having stated that determination of 2nd issue raised by the Respondent was apt and encapsulated the remaining issues formulated, and when determined, that issue will decide the rights of the parties one way or the other, whether or not such opinion by the lower Court occasioned a miscarriage of justice.
The simple issue that I consider arises for determination is:
Whether or not the lower Court was right to have entered judgment in terms of the reliefs sought by the Respondent.
The lower Court, wading through the mass of evidence, both oral and documentary presented before it, found as a fact and upon the admission of the Appellant under cross examination, that he could not have recovered the properties without the intervention of the Police. It held it not in doubt that the 1st Appellant came about possession of the Respondent?s properties ?through the execution of surrender documents i.e. Exhibit P1, P2 P3 and P4, which were all executed at the Police Station and in
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the presence of a Police Officer?.
It held further:
?Now it is settled beyond per adventure that the properties mentioned at paragraph 4 ? 7 of the statement of claim, were plaintiff?s properties before they were surrendered to the 1st defendant and they were so surrendered through executing five different surrender documents four of which i.e Exhibits P1, P2, P3 and P4 were made at Bompai police station in presence of police officer and Exhibit P6 was made at the SMC No. 22 N/Land premises before the arraignment of the plaintiff but while still in the custody of police officers who brought him to the Court for prosecution. Now the 2nd question to ask is what is the justification of surrendering these properties including the personal residence of the plaintiff to the 1st Defendant, which the plaintiff says he labored and toiled for almost five years to owned?”
With regard to the defence of the Appellants, it held:
?The 1st Defendant in his evidence attempted to portrait (sic) two alternative scenario. One was that he was under the threat of being killed by the Plaintiff if he did not give out the monies he had
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been giving to the Plaintiff or two, that he was under a spell that he was just dashing out monies to the Plaintiff unconsciously.?
Holding that the burden of proving that the Respondent caused him (1st Appellant) to lose all his property under the threat that if he did not, rested on the 1st Appellant, he held that ?I have carefully looked at the ingredients of the offence of criminal breach of trust, cheating and criminal intimidation as provided for by Section 312, 322 and 397 of the Penal Code and have not seen where those ingredients are proved by the Defendants in their testimonies before this Court.?
Going through the evidence of the defence witnesses, it held:
?What DW IX (1st Appellant) has been repeatedly saying was that; the Plaintiff made him to dispose of his moveable and immovable properties and handed over the proceeds to him, he succeeded in collecting all his monies and spoiling his business. But how he did that remained unknown..There is no evidence to show that the 1st Defendant was not normal or out of his senses when he gave monies to the plaintiff, and even the evidence of DWII and
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DWIII was not categorical on this, they are neither expert to testify as to the state of mind of the 1st defendant nor did they link the supposed abnormality to the plaintiff. I have also see and listen to the evidence of 1st defendant who gave evidence as DWII he was fit able and mentally sound in my view at the time he gave evidence. Even Exhibit P7 (the statement of the plaintiff as S.I.B. is not helpful in the circumstance of this case, as plaintiff denied making any statement to the police and that he was forced to sign Exhibit P7 accredited to him. The burden is now on 3rd ? 5th defendant to prove its voluntariness which they did not. From the testimony of DWII (the 1st defendant) PWII and PWIII what they wanted this Court to believe even though they were not categorical ? was that the 1st defendant was under a spell or that he gave his money to the plaintiff under super natural influence. However I found this proposition very difficult to believe because by my training I can only make a finding on live and real issues and not superficial I am not a herbalist or psychotherapist to find out the hidden secret (if any) between the plaintiff and
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the 1st defendant as the 1st defendant wanted me to do. I shall only rely and work on evidence made available before me whatever is hidden or beyond human perception should be left to the day of reckoning where everyone of us including the plaintiff and the 1st defendant will personally account for his deeds. In summary even though I agree with the defendants that there is different times and places by himself or through some persons like DWII and DWIII.
In fact I have no doubt in my mind that; indeed the 1st defendant has been giving money to the plaintiff (his servant) at different times and places contrary to the denial of the plaintiff. But what I did not come to terms with is whether there is any element of Criminal Breach of Trust, Cheating, or Criminal Intimidation on the part of the plaintiff in the whole transaction.
This is the onerous task which the 1st defendant could not prove beyond reasonable doubt as required by law.
Agreed the defendants were able to establish some contradictions and inconsistencies in the evidence of PWI, PWII and PWIII as to the source of means of the plaintiff how and where he carried out his business and his
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involvement in the financial transactions of the 1st defendant as well as the sudden change in his life style.
However all these are not enough in proving the allegation of criminal nature against the plaintiff as the law is settled that a party succeeds on the strength of his case and on the weakness of his opponents case, see the case of Nwobodo Vs. Onoh and others (1984) ALL NLR p.1. Consequently I find the allegation of crime against the plaintiff not proved beyond reasonable doubt as required by law).
With regard to the claim of the Respondent, the Court placed ?the two versions of the stories between the Plaintiff and Defendant on an imaginary scale of justice?.
Learned Counsel to the Appellant, B. M Mukaddam Esq to start with, referred the Court to some parts of the record, paragraphs 2-40 and 42 of the statement of defence, on pages 215 ? 222 of the record, and paragraphs 43 ? 64 of the amended statement of defence on pages 322 ? 333 of the record which, he said, raises allegation of facts but were not denied by the Respondent, which failure the Appellant submitted will be deemed as admission of facts
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contained therein by the Respondent, citing the cases of Achilihu v. Anyatonwu (2013) 12 NWLR (pt. 1368) 256 Ratio 5, Philips vs. E.O.C.B Nig. Ltd (2013) 1 NWLR, and Atekpa vs. Ebetor (2015) 3 NWLR (pt. 1447) 549 ? 555 Ratio 6.
In response, the learned Counsel to the Respondent, Nasir M. Ahmed, submitted that the Respondent, as Plaintiff before the lower Court, expressly denied all paragraphs of the Appellants statement of defence. He argued that neither the main Statement of Defence nor the Amended Statement of Defence contained a counter-claim against the Respondent to necessitate filing of a further Reply and /or Defence to Counter claim. He added that failure to file a Reply to rebut an averment in a Statement of Defence should not be taken to amount to admission of facts therein. He referred to Egesimba vs. Onuzuruike (2002) 9 SCNJ at 56, and Iwuoha vs. Nipost (2003) 4 SCNJ 258 at 262 Ratio 9.
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From the records, the Appellants amended their 42 paragraph Statement of Defence, to a 64 paragraph Amended Statement of Defence. While the Respondent filed a Reply denying the initial Statement of Defence, no Reply was filed to the Amended Statement of
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Defence.
There is no general proposition of law, I hold, that failure to file a reply to rebut an averment in a Statement of Defence which does not contain a counter-claim is tantamount to an admission. Where, however, the Defendant by his pleading sets out a case which cannot be met by mere denial, it is a matter of utmost prudence, if not necessity, to file a reply, otherwise the new facts will be deemed admitted. See Egesimba v. Onuzurike (2002) 15 NWLR Part 791 Page 466 at 497-498, Para H-A; 512 Para E-H; 519 Para A-G per Ayoola JSC.
The lower Court, when faced with this submission, held:
?On failure of the Plaintiff to file a Reply, which is not the case here, the law is that if the sole purpose is to deny averments contained in the Statement of Defence, the filing of Reply is unnecessary..?
I note, from the facts and findings of the lower Court, that the Court was settled as to the facts before it. It found as a fact that:
?The 1st Defendant in his evidence attempted to portrait (sic) two alternative scenario. One was that he was under the threat of being killed by the Plaintiff if he did not give out the monies
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he had been giving to the Plaintiff or two, that he was under a spell that he was just dashing out monies to the Plaintiff unconsciously.?
The Amended Statement of Defence was thus an embellishment of this line of defence, I hold. Thus, though other facts were given, the line of defence remained the same and which former averments had been denied by the Respondent in its Reply filed to the former pleadings.
The battle lines were clear before the lower Court. On one side is the Respondent who alleged that all his property was taken over by the Appellants through coercion, threats and intimidation and the Appellants who alleged that it was a ?return? of the goods fraudulently removed by the Respondent from the 1st Appellant while under a spell placed on him by the Respondent.
The failure of the Respondent to file a Reply, in the circumstances of this case is therefore not fatal, I hold. In any event, as held by the lower Court, while the burden of proof in civil cases is generally on the Plaintiff, by virtue of Sections 131-134 of the Evidence Act 2011, ?this burden is not static, it moves from one party to another as the
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case progressive and dependent on the pleadings before the Court?. The Court placed on the Appellant the burden of proving the assertion made by him that the Respondent made him lose all his movable and immovable properties under the threat of loss to life, which assertion the Court held was not proved. This is called the evidential burden, which shifted to the Defendant to call evidence in proof. SeeOmisore v. Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 332 Para F-G; (2015) All FWLR Part 813 Page 1673 at 1780 Para B-C per Okoro JSC; Gbafe v. Gbafe (1996) 6 NWLR Part 455 Page 417 at 432 Para D-F per Adio JSC.
I accordingly do not differ from the decision on this point of the lower Court.
The Appellant?s Counsel again points out some contradictions in the Respondent?s case. He pointed to the agreement of the trial Judge that there were contradictions and inconsistences in the evidence of the Respondent. A witness who gives inconsistent evidence is not entitled to the honor of credibility, he submitted, citing Agbosi v. Imovbore (2014) NWLR (pt. 389) 556 at 569 Ratio 5, Isikwemu v. Iroh (2013) 10 NWLR (pt. 1365) 256 at 262 Ratio 8.
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Learned Counsel to the Respondent however submitted that civil cases are decided on the preponderance of evidence and probabilities. From the totality of evidence adduced by the parties, the balance of probabilities tilted in favour of the Respondent. The contradictions alleged by the Appellants? Counsel are immaterial, he contended, and do not affect the live issues or the real substance of the case and have no adverse effect on the lower Courts findings, he submitted, citing Alfred Usiobaifo vs. Christopher Usiobaifo (2005) LPELR (SC) CFPD, Alhaji Isiyaku Yakubu vs. Alhaji Usman Jauroyel & Anor (2014) LPELR (SC) TILM.
The lower Court, on these contradictions held, at Page 662 of the Record:
?Agreed the defendants were able to establish some contradictions and inconsistencies in the evidence of PWI, PWII and PWIII as to the source of means of the plaintiff how and where he carried out his business and his involvement in the financial transactions of the 1st defendant as well as the sudden change in his life style.
However all these are not enough in proving the allegation of criminal nature against the plaintiff as the
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law is settled that a party succeeds on the strength of his case and not on the weakness of his opponents case, see the case of Nwobodo Vs. Onoh and others (1984) ALL NLR p.1. Consequently I find the allegation of crime against the plaintiff not proved beyond reasonable doubt as required by law.)
I am in agreement with the Respondent and the lower Court that these contradictions do not affect the live issues in the case and do not prove the allegation of a criminal nature against the Appellants. For contradictions to vitiate the trial, they must affect the substance of the party?s case, I hold. See Wachukwu V Owunwanne (2011) 14 NWLR Part 1266 Page 1 at 27 Para E-H Per Muhammad JSC.
As defined by His Lordhip Uwaifo JSC Makinde v Akinwale (2000) 2 NWLR Part 645 Page 435 at 450 Para E, for a contradiction to vitiate a party?s case, ?the Court will not consider it improbable simply because there are some minor inconsistencies in it vis-a-vis the facts pleaded. It is any evidence so materially at variance with the pleading in the sense that they both cannot be reconciled (or which has notable internal conflicts) that the Court will
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justifiably reject it.?
As pointed out by the lower Court, the case of the Respondent was his involuntary surrender of all his property to the 1st Appellant by the Appellants, using the instrumentality of the 3rd-5th Defendants. This was the live issue to be determined, vis a vis the justification of these acts by the Appellants. The contradictions with regard to the source of the livelihood of the Respondent, his business relationship with the 1st Appellant and such like, are not material in the determination of the issues for determination before the lower Court, I hold.
The learned Counsel to the Appellants has again argued that the lower Court was in error in his refusal to enforce the written undertaking freely made by the Respondent in Exhibits P1-P6, made on 20/8/13. He submitted that these documents were not obtained under duress, neither were they made without the consent of the Respondent and his co-witnesses. He pointed out that the Respondent was duly represented by his counsel, one Nasiru Muazu at the time when Exhibits P1-P4 were signed and that there was no way the Respondent could have been threatened, intimidated or coerced into
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signing the same. Parties, he said, are bound by agreements freely entered into by them, citing Amede v. UBA (2009) 20 WRN Pg. 140 at 146 Ratio 8, N.N.P.C v. Roven Shipping Ltd (2015) 14 NWLR (pt. 1426) 142 at 149 Ratio 2, Williams vs. Williams (2014) 15 NWLR (pt. 1430) 213 at 218 Rario 8 and Uwah vs. Akpabio (2014) 7 NWLR (pt. 1407) 472 at 476 Ratio 1.
Learned Counsel to the Respondent contended in response, that from the clear evidence of the defence witnesses, these Undertakings were made before the police. The attempt by the Appellants to exonerate themselves on the strength of Exhibit 6, another undertaking, which was executed in Magistrate Court No. 22, fails as all witnesses who referred to Exhibit P6 confirmed that it was made prior to the purported arraignment of the Respondent by the police. Counsel added that the law is clear that Courts can only enforce what parties agreed upon voluntarily and freely without force, coercion or threat. He referred to Tafida vs. Garba (2013) LPELR ? 22076 (CA), Oyewole vs. Akande (2009) ALL FWLR Pt. 491 pg. 813 at 815.
The lower Court, in its judgment held it ?difficult to come to terms with the
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manner through which Exhibit P1-P4 were executed?. It considered it strange for the Respondent, ?who was alleged to be in his right senses, voluntarily transferred ownership of all his properties from his personal house, his vehicles, his gun, his clothes, shoes, caps and even his food stuff to the 1st Defendant. Assuming it is true he made it voluntarily why did he choose to do that in a police station under the watchful eyes of security agents? Why was the surrender made during the time he was in custody of the 3rd-5th Defendants
Agreeing with the Appellants? Counsel that parties are bound by their agreements, it held that ?where there is element of coercion, fraud or threat to one of the parties before signing the so called agreement, the Court is duty bound to interfere because Courts can only enforce what parties agreed upon voluntarily and freely without force, coercion or threat. In essence parties should be seen to be in consensus ad idem
The Court citing the dictum of Karibi-Whyte JSC inEgbase v Oriareghen (1985) NWLR Part 10 at Page 884 where the learned jurist held ?It is lack
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of consent that matters, not the means by which this result was brought about? held that ?a contract or agreement by a consenting party is invalid, void ab initio and the Court is bound to declare it as such?.
The learned Judge questioned the proceedings before the Magistrate Court, noting that that there was nowhere that Court documented the alleged agreement. The Court was only made ?a rubber stamp to endorse what had already been done and executed by the 3rd-5th Defendants in collaboration with the 1st and 2nd Defendants?. He considered this most unfortunate and a great danger to democracy and the rule of law. He castigated the 3rd-5th Defendants for exceeding their powers, condemning their actions as acts of impunity.
?
Defining the words ?Undue influence?, he held, in granting the claims of the Respondent, as follows:
?Where there is proof of undue influence, the consequential effect is to vitiate the transaction which otherwise is voidable. ?In view of the above therefore and having regard to the circumstances under which Exhibits P1-P6 were executed, I hold that the confiscation by the
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3rd and 4th Defendants of the Plaintiff?s moveable and immovable properties and handing them over to the 1st Defendant is illegal, unconstitutional, null and void.?
It is indeed the correct state of the law, as submitted by the Appellants? Counsel, that parties and the Court are bound by contracts voluntarily made by them and the Court cannot deviate therefrom. As however admitted by the Appellants? Counsel, these must be contracts ?voluntarily? entered into.
The uncontradicted evidence before the Court was that the Respondent was in the police cell for five days before his arraignment before the Senior Magistrate Court. It was during this period that the four undertakings were made by him.
Agreements made while under police detention can under no circumstances be termed to be voluntary, I hold. It is immaterial, that a legal practitioner was present or that the execution of the documents was witnessed by some persons. The primary purpose of a person in detention is to get out by whatever means possible and would be willing to take any steps to free him from his incarceration.
?Indeed, the term
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?undue influence? was defined by the Supreme Court in the case ofBua v Dauda (2003) 13 NWLR Part 838 Page 657 at 681 ? 684 Para F – A per Uwaifo JSC as follows:
?The doctrine of undue influence extends not only to cases of coercion or tricks or fraud but to all cases “where influence is acquired and abused, where confidence is reposed and betrayed.” See Smith v. Kay (1859) 7 HLC 750 at 779. In C.I.B.C. Mortgages Plc. v. Pitt (1994) 1 AC 200 at 209, Lord Browne-Wilkinson described actual undue influence as “a species of fraud” and that the complainant need not show that she was manifestly disadvantaged by the transaction concerned. ?.
Undue influence takes different forms. This could manifest in the variety of circumstances in which trickery or coercion can be employed in human affairs. In other cases, it depends on special relationship in which presumption of undue influence may reasonably be inferred. In Allcard v. Skinner (supra) at p.171, Cotton ,LJ., classified cases of undue influence into two and said as follows:
“First, where the Court has been satisfied that the gift was the result of influence expressly
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used by the donee for the purpose; second, where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the Court sets aside the voluntary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the Court in holding that the gift was the result of a free exercise of the donor’s will. The first class of cases may be considered as depending on the principle that no one shall be allowed to retain any benefit arising from his own fraud or wrongful act. In the second class of cases the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused.”
I find that this classification is quite illustrative as to how particular cases may be resolved. I agree with it and think that in the present case which falls within the first
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class, the respondent would not be required to show that the transaction was manifestly disadvantageous to him. Even if the case had fallen under the second class; the law is that the burden is on the donee or purchaser to show the righteousness of the transaction. He is entitled as of right, as said by Lord Browne-Wilkinson in C.I.B.C. Mortgages Plc. v. Pitt (supra) at page 209, to have it set aside as a matter of public policy; and also the case of Allcard v. Skinner (supra) at page 171 per Cotton, LJ., and page 183 per Lindley, LJ. In Ashburner on Equity, 2nd edn., at page 299, the learned author gave this illustration:
“In a Court of equity, if A obtains any benefit from B, whether under a contract or as a gift, by exerting an influence over B which, in the opinion of the Court, prevents B from exercising an independent judgment in the matter in question, B can set aside the contract or recover the gift. Moreover in certain cases the relation between A and B may be such that A has peculiar opportunities of exercising influence over B. If under such circumstances A enters into a contract with B, or receives a gift from B, a Court of equity imposes upon
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A the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it.”
There are cases where a bargain is seen to be unconscionable or where there has been equitable fraud, victimisation, taking of advantage, overreaching or other such palpable inequity or unfairness which affected the conscience of the plaintiff and which might justify the intervention of equity to come to his assistance to avoid the bargain. In the case of Hart v. O’Connor (1985) AC 1000 at 1024; (1985) 2 All ER 880 at 891-892, Lord Brightman delivering the judgment of the Privy Council observed thus:
“In the opinion of their Lordships it is perfectly plain that historically a Court of equity did not restrain a suit at law on the ground of ‘unfairness’ unless the conscience of the plaintiff was in some way affected. This might be because of actual fraud (which the Courts of common law would equally have remedied) or constructive fraud, i.e. conduct which falls below the standards demanded by equity, traditionally considered under its more common manifestations of undue influence, abuse of confidence,
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unconscionable bargains and fraud is on a power………….
An unconscionable bargain in this con would be a bargain of an improvident character made by a poor or ignorant person acting without independent advice which cannot be shown to be a fair and reasonable transaction. ‘Fraud’ in its equitable con does not mean, or is not confined to, deceit: ‘it means an unconscientious use of the power arising out of (the) circumstances and conditions (of the contracting parties)’: see Earl of Aylesford v. Morris (1873) LR 8 Ch App 484 at 490-491, (1861-73) All ER Rep 300 at 303. It is victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances.”
From this expansive definition of undue influence, it is clear that the transfer by the Respondent of all his property to the 1st Appellant while in detention and before his arraignment in Court, was under undue influence wielded by the Appellants with the instrumentality of the 3rd to 5th Defendants. I have no reason to disagree with these findings of the lower Court.
?The Appellant?s Counsel has again argued
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that the award of damages made by the lower Court was made in error, as damages are awarded as a consequence of some breach suffered referring to the cases of F.C.D.A vs. Unique Future Leaders Intl. Ltd (2014) 13 NWLR (pt. 1436) 213 at 219 Ratio 3 and 4, Zenith Bank Ltd v. Alobu (2017) 4 NWLR pt. 1554 Page 135 at 139.
Responding, the learned Counsel to the Respondent submitted that general damages need not be specifically pleaded and need not be strictly proved by evidence, citing Union Bank of Nig. Plc vs. Mr. N. M Okpara Chimaeze (2014) LPELR SC. The Respondent, he said, is entitled to even more damages taking into account the calibre of business person he is and the corresponding humiliation committed against him. He urged the Court to so hold.
?
The object of the award of damages, I hold, is to compensate a person for the loss or injury he has sustained by reason of the act or default of another, whether the act or default is a breach of contract or tort. The damages must be attributable to the breach of some duty by the Defendant The measure is an amount that will reflect what will put the injured party in the same position he would have been had
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the injury not occurred. The object of the award is restitutio in integrum as if the breach did not occur, and not restitutio in opulentium. It is not meant to give a windfall to the Respondent ? GE International Operations (Nig.) Ltd v Q Oil and gas Services Ltd (2016)10 NWLR Part 1520 Page 304 at 331 Para E-F; 332 Para D per Ngwuta JSC; B.B. Apugo & Sons Ltd v Orthopaedic Hospitals Management Board (OHMB) (2016) 13 NWLR Part 1529 page 206 at 256-257 Para B-H per Kekere-Ekun JSC; Union Bank Plc v. Chimaeze (2014) 9 NWLR Part 1411 Page 166 at 191-192 Para H-B; (2015) All FWLR Part 734 Page 48 at 71 Para G-H per Ariwoola JSC.
The lower Court, in granting all the reliefs sought by the Respondent held:
?In view of the above therefore and having regard to the circumstances under which Exhibit P1-P6 were executed, I hold that the confiscation by the 3rd and 4th Defendants of the Plaintiff?s movable and immovable properties and handing them over to the 1st Defendant is illegal, unconstitutional, null and void. Having so held, I make the following orders…?
There was no separate pronouncement or reasons given for the award
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of general damages of N500,000.00 (Five Hundred Thousand Naira). The lower Court, having ordered in favour of the Respondent the return to him of all the property transferred by him to the 1st Appellant, was making double compensation to the Respondent, I hold, and which the law does not allow.
In the case of Agu v. General Oil Ltd (2016) 17 NWLR Part 1488 Page 327 at 345 Para E-H, the Supreme Court held, per M.D. Muhammad JSC:
?It is trite that a plaintiff who has established his claim for breach of contract against a defendant would only be entitled to such damages that he established to have naturally resulted from or are the probable consequences of the breach of the contract occasioned by the defendant. In the award of the damages by the Court, the plaintiff is restored to the position he would have been if the contract had not been breached?.A plaintiff who has no difficulty in quantifying the actual pecuniary loss occasioned by the breach, as in the instant case, recovers his loss if same has been specifically pleaded and proved. It is only where the plaintiff has difficulty in quantifying his actual loss that he claims in general
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damages and, on establishing defendant’s liability, entitles the trial judge to make an assessment of the quantum of damages that can be said to have been a natural or probable consequence of the breach of the contract occasioned by the defendant.?
His Lordship Okoro JSC, in the same judgment, at Page 341 Para G-H put it simply thus:
?By the law against double compensation, a party who has been fully compensated under one head of damages for a particular breach or injury cannot be awarded damages in respect of the same breach or injury under another head.?
See also Tsokwa Motors (Nig.) Ltd v. U.B.A. Plc. (2008) 2 NWLR Part 1071 Page 347 at 366 Para B-C per Aderemi JSC.
The award of N500,000.00 (Five Hundred Thousand Naira) as General Damages, amounted, I hold, to double compensation, the trial Court having awarded full compensation of the goods transferred. I accordingly set aside this award.
The issue for consideration, to recap, is whether the lower Court was right to have entered judgment in terms of the reliefs sought by the Respondent.
?
The assessment and credibility of witnesses is the primary function of
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the trial Court which had the singular opportunity of seeing and observing the witnesses. An appellate Court reviewing oral evidence of a trial Court would thus be entering an arena within the exclusive domain of the trial Court, especially since an appellate Court has no opportunity of hearing and watching the demeanour of witnesses.
In the absence of strong reasons, an appeal Court will be slow to interfere with such findings – Roda v. FRN (2015) 10 NWLR Part 1468 Page 427 at 488 Para D-F per Peter-Odili JSC; Ogundalu v. Macjob (2015) 8 NWLR Part 1460 Page 96 at 116-117 Para F-A per Rhodes-Vivour JSC; Action Congress of Nigeria v. Nyako (2015) 18 NWLR Part 1491 Page 352 at 384 Para C-E per M.D. Muhammad JSC.
The lower Court did a tremendous job in evaluating the evidence of the twelve witnesses which testified at the lower Court, together with the documents tendered by them. The findings have not been shown to be perverse, save the general damages awarded. There is no strong reason disclosed, I hold, to persuade this Court to interfere with the said decision. I accordingly resolve the sole issue for determination, save for the award of general
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damages, against the Appellants.
In conclusion, this appeal succeeds in part. The judgment of the lower Court is affirmed, save the award of General Damages of N500,000.00 (Five Hundred Thousand Naira) in favour of the Respondent, which award is hereby set aside.
The parties are to bear their respective costs.
SAIDU TANKO HUSSAINI, J.C.A.: I had the advantage of reading in draft the lead judgment delivered by my lord, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. I am in agreement with the reasoning and conclusion as contained in the lead judgment.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the judgment of my learned brother, Oludotun Adebola Adefope-Okojie, JCA, while in its draft. I agree with my Lord that the Appellants have not shown any merit in this appeal, and therefore, the appeal, save for the award of N500,000.00 general damages, held by his Lordship to amount to double compensation, is liable to be dismissed, and is so dismissed.
In consequence, the judgment of the lower Court, save for the N500,000.00 general damages is hereby affirmed, while the said award of N500,000.00 general damages is
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set aside.
I abide by his Lordship?s order that parties bear their respective costs.
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Appearances:
B. M. Mukaddam, Esq.For Appellant(s)
Hamisu Sani, Esq.For Respondent(s)
Appearances
B. M. Mukaddam, Esq.For Appellant
AND
Hamisu Sani, Esq.For Respondent
