CHIEF OLUMUYIWA AKINBORO v. WAHABI LEMBOYE & ORS & ORS.(2002)

CHIEF OLUMUYIWA AKINBORO v. WAHABI LEMBOYE & ORS & ORS.

(2002)LCN/1080(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of February, 2002

CA/I/3/89

 

JUSTICES

SUNDAY AKINOLA AKINTAN   Justice of The Court of Appeal of Nigeria

MORONKEJI OMOTAYO ONALAJA   Justice of The Court of Appeal of Nigeria

DALHATU ADAMU   Justice of The Court of Appeal of Nigeria

Between

 

CHIEF OLUMUYIWA AKINBORO Appellant(s)

AND

  1. WAHABI LEMBOYE & ORS
    2. CHIEF AMINU AKINLAWON & ORS
    3, DADDY OYEGUNLE & ORS
    4. ATT. GEN. OF THE FEDERATION Respondent(s)

 

AKINTAN, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of Odunlami, J. delivered at Abeokuta High Court on 31st August, 1987 in three consolidated suits Nos. AB/104/84, AB/32/85; and AB/34/85. The present appellant was the second defendant in each of the three consolidated cases. The first sets of respondents were the plaintiffs in suit No. AB/104/84 where they sued the 1st defendant, Ogunsiji now deceased, the appellant as the 2nd defendant and the Attorney-General of the Federation as the 3rd defendant. Their claim against the defendants jointly and severally was as follows:-

“The defendants received jointly or severally on behalf of all claimants the sum of N2,801,435 from the Federal Ministry of Works Headquarters, Lands Division, for the settlement of all the claims for compensation on property acquired at the permanent site of the Federal College of Education, Osiele, Abeokuta, Ogun State.

(a) Declaration that they are entitled to a share of the said amount in respect of their property within the said area of acquisition.

(b) An order for account of the said sum of N2,801,435 found due and payable to the plaintiffs.”

In the other two suits Nos. AB/32/85 and AB/34/85, the parties were the same as in suit No. AB/104/84. But the claim in each of them was for N2,358,135 with an alternative claim for an order for an account. The three suits were consolidated by order of court made on 8th January, 1986. Pleadings were finally settled and the case proceeded to trial. At the commencement of the trial, the plaintiffs’ counsel filed an application requesting the court to order the appellant and Mr. A.O. Ogunsiji to deposit the remainder of unpaid compensation money still with each of them in the court. The application was granted and the appellant Mr. Ogunsiji deposited into court N260,186.30 and N350,000 respectively.

The Federal Government had earlier given notice of acquisition of 632.95 hectares of land at Osiele for the establishment of permanent site for the Federal College of Education at Osiele in Ogun State and those who had interest in the land to be acquired were invited to submit claims. On 14th December, 1983, the Federal Lands Officer released the whole compensation money amounting to N2,375,000 for the whole land acquired to one Mr. Dosumu, Mr. A.O. Ogunsiji (later the 1st defendant at the lower court) and the appellant (later 2nd defendant at the lower court). The release of the money was made subject to the following conditions:

(i) That Mr. Dosumu whose claim was ascertained would be paid N17,000.

(ii) The balance of N2,358,135.06 was to be paid to Mr. A.O. Ogunsiji and the appellant in equal share of N1,179,067.50 in trust for all the claimants at the rate of N3,750 per hectare which was the government’s approved rate;

(iii) the amount was to be deposited in a joint account from which each claimant was to be paid,

(iv) that a claim’s plan be prepared in which the holding of such claimant would be paid,

(v) that the disbursement was to be made in accordance with individual’s claims on the land, and

(vi) upon receipt of the said sum by Mr. A.O. Ogunsiji and the appellant from the Federal Government, they were requested to provide indemnity for the sum received.

The appellant and Mr. Ogunsiji complied with the aforementioned conditions. The 1st to 3rd respondents were the plaintiffs in the court below in each of the three consolidated cases. At the conclusion of the trial, the learned trial Judge delivered his reserved judgment. In the said judgment, the learned Judge found for the plaintiffs and held, inter alia, that the plaintiffs in the cases were some of the claimants whom the 1st defendant (Mr. Ogunsiji) should have paid compensation out of the amount of N1,179,067.05 which he got from the ministry. The court therefore, ordered that the compensation due to the plaintiffs should be paid to them out of the Slim of N350,000 deposited earlier in court. The court, however, failed to order that the slim deposited in court by the appellant be refunded to him. The present appeal therefore, is aimed at securing the refund of the sum of N260,186.30 deposited with the court in compliance with the order of the court made in the course of the trial.
The appellant has appealed to this court against the failure of the lower court to make a consequential order for the release of the money he was ordered by the court to deposit with the court. The appellant also filed an appeal against another interlocutory decision made by the court in the course of the trial. The parties filed their briefs of argument in this court. But when the appeal came up for hearing in this court on 12th November, 2001, learned counsel for the appellant applied to withdraw his appeal in respect of the interlocutory matter. The appeal against the interlocutory matter having been withdrawn, is therefore dismissed.
The main contention of the appellant as canvassed in his brief is that it was erroneous of the learned trial Judge not to order the release of the sum of N260, 186.30 deposited with the court by the appellant. It is submitted that making such order was imperative since the court had in its judgment made copious findings of facts to the effect that none of the plaintiffs made any case against the appellant. The case they made out was against Mr. Ogunsiji and for which they were ordered to be paid from the amount deposited in court by Mr. Ogunsiji.
Both the 1st and 3rd respondents as well as the 4th respondent agree in their respective brief of argument that it was erroneous of the learned trial Judge to have refused to make the order for the release of the said money upon disposal of the case before him. They therefore, join the appellant in urging this court to allow the appeal.
It is clear from the facts of the case that the payments made to the appellant and Mr. Ogunsiji were made to them in trust for distribution to the respective claimants which each of the two counsel represented. The actions instituted in the three cases consolidated for trial were all instituted by some of the claimants represented by Mr. Ogunsiji. None of the claimants represented by the appellant was involved in the action. The learned trial Judge made specific findings of fact to this effect in his judgment. The law is settled that where a court holds that there is no evidence against a defendant, the proper order which the trial court ought to make is that of dismissal of the claim against such defendant. This is just the right thing to do because the onus is on the plaintiff to prove his case against the defendant on preponderance of evidence. The court has no choice than to dismiss the claim where the plaintiff fails to discharge that onus placed on him: See Kodilinye v. Odu (1935) 2 WACA 336: and Woluchem v. Gudi (1981) 5 SC 291.
Applying the above principle of law to the facts proved in the instant case, the learned trial Judge, having found that the plaintiffs failed to prove their claim against the appellant, the plaintiffs’ claim against the appellant should have been dismissed and an order for a refund of the money he deposited in the court ought to have been made. The appeal is therefore, allowed. An order dismissing the plaintiffs’ claim against the appellant is hereby made. Similarly, it is hereby ordered that the sum of N260,1 86.30 which the appellant deposited with the registry of the lower court is to be returned to the appellant. I make no order on costs.

ONALAJA, J.C.A.: The issue leading to this judgment was a remittal from the Supreme Court in the consolidated suits before this court. Being a remittal with a single directive gave rise to the decision of this court as illustrated in the lead judgment of my learned brother my noble Lord Akintan, J.C.A. based on a narrow compass.
A careful perusal of the lead judgment demonstrated that the issues germane and the crux of this appeal were critically considered and analysed in sound reasoning and conclusion, as I share the same thoughts to be in consonant with my views of the appeal based on a narrow compass gives me no alternative than to adopt the reasoning and conclusion as my own that the appeal is also allowed by me.
I am in complete agreement that by virtue and under section 16 of the Court of Appeal Cap. 75, Laws of the Federation of Nigeria, 1990, the sum of N260,186.30 deposited by appellant in compliance with the order of the lower court in the registry of the said court in unison with the lead judgment shall be released forthwith to the appellant. It is unfortunate that the order for the sum deposited by appellant was silent on the issue of interest. Owing to the rule of law that a court is not empowered to grant more reliefs than the claim or prayer before the court Ekpeyong v. Nyong (1975) 2 SC 71, Dyktrade Ltd. v. Omnia (Nig) Ltd. (2000) 12 NWLR (Pt. 680) page 1 SC since under the rules of court, High Court (Civil Procedure) Rules Ogun State, Cap. 44, Laws of Ogun State, 1978 Order 31 rule 7 order payment of 5% interest on the said judgment sum deprived me from making an order of interest on the judgment sum deposited in the registry of the lower court more than a period spanning over 15 years.

ADAMU, J.C.A.: I have had the preview of the leading judgment just delivered by my learned brother Akintan, JCA in this appeal. I am in full agreement with the conclusion reached in the said judgment that the appeal be allowed. It is clear that both the learned counsel for the parties in the present appeal have agreed and agitated this court to allow the appeal because the learned trial Judge was in error when he failed to make a consequential order that the sum of N260,186.30 deposited by the appellant upon the interim order of the said trial court be refunded to him since there is no proof against him by any of the claimants to the compensation money paid in trust to the two learned counsel representing the said claimants. Consequently, in the absence of such proof and by virtue of the mutual agreement of the learned counsel for the respective parties in this appeal, I hereby order that the interim order of the trial court for the payment of the sum of N260,186.30 into the registry of the said trial court by the appellant should be and is hereby discharged and the said sum paid by the appellant is hereby ordered to be refunded to him. I abide by the order on costs as made in the leading judgment.
Appeal allowed.

 

Appearances

Appellant – in personFor Appellant

 

AND

  1. Fashanu, Esq.
    C. I. Okpoko, Esq.For Respondent

 

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