GORDON TOM IWOK & ORS. v. UNIVERSITY OF UYO & ANOR
(2010)LCN/3970(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of July, 2010
CA/C/16/2010
RATIO
ISSUES FOR DETERMINATION: WHAT ISSUES FOR DETERMINATION ENTAILS
In an appeal an issue is a question to which parties have narrowed their several allegations and upon which they desire to obtain a decision of the Court. It may be a question of Law, or fact. See Eke v. Okwaranyia (2001) 4 SC NJ 307 102. PER NWALI SYLVESTER NGWUTA, J.C.A.
FORMULATION OF ISSUES FOR DETERMINATION: WHETHER AN ISSUE CAN BE TIED TO MORE THAN ONE GROUND OF APPEAL BUT THE REVERSE IS NOT THE CASE.
…if the substantive issues framed by Learned Counsel for the 2nd Respondent are derived from the grounds of appeal the number of issues presented by the 2nd Respondent would be in excess of the grounds of Appeal in violation of the rule that whereas an issue can be tied to more than one ground of Appeal the reverse is not the case. See Ayangadie v. O.A.U.T.H.C.M.B (2001) 7 NWLR (Pt 711) 187. The issues framed by Counsel for the 2nd Respondent in addition to the issues formulated by the Appellant which he adopted constitute surplussage and are hereby struck out. See Dung v. Gyong (1994) S NWLR (Pt 362) 315, Labiy v. Anretiola (1992) 8 NWLR (Pt 258) 139 Aduku v. Adejoh (1994) 5 NWLR (Pt 346) 582. PER NWALI SYLVESTER NGWUTA, J.C.A.
FIDUCIARY OBLIGATION: WHETHER A TRUSTEE OWES A BENEFICIARY FIDUCIARY OBLIGATION
Trust Law is based on equity while agency is a common Law concept. An agent resembles a trustee in that each is subject to Fiduciary Obligation toward his principal in the case of agent and his beneficiary in the case of a Trustee. See Snell’s “Principles of Equity” 27th Ed page 89. PER NWALI SYLVESTER NGWUTA, J.C.A.
TRUST: MEANING OF THE WORD “TRUST”
A trust has been defined thus: “A Trust …… is the relationship which arises wherever a person called the trustee is compelled in Equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons (of whom he may be one and who are termed cestuis que trust) or for some object permitted by Law, in such a way that the real benefit of the property accrues, not to the Trustee but to the beneficiaries or other objects of the Trust” See Snell’s Principles of Equity 27th Edition P.87 The concern of trust Law is that money or property is owned and managed on behalf of another. The word trust traces its origin to, and means substantially the same thing as “the use” in the English property law. The word use is derived from the Latin phrase “ad opus” meaning “on his behalf See Mait Land, Equity, “P.24 Megarry’s Manual of the Law of Real Property” by P. v. Banker 4th Edition page 65. An essential element of the trustee/beneficiary relationships is that the property subject of the trust must be vested in the trust. PER NWALI SYLVESTER NGWUTA, J.C.A.
CONSTRUCTIVE TRUST: WHETHER THE DOCTRINE OF CONSTRUCTIVE TRUST CAN BE INVOKED IN THE ABSENCE OF EVIDENCE OF TITLE
…the doctrine of constructive trust cannot be invoked in absence of evidence that the 1st Respondent have acquired title to the housing units. See Anuruba v. ECB (2005) 10 NWLR (Pt 933) 321. Even though there is evidence of duty of fidelity or loyalty to Fiduciary Obligation owed by the 1st Respondent to the Appellants in the transaction relating to the housing units the evidence does not support the claim that the 1st Respondent is a trustee in respect of the property over which it has no title. PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
Between
1. GORDON TOM IWOK
2. DR.UKANA D. AKPABIO
3. DR. MONDAY D. AKAPAN
4. MISS MARIA D. EDUOK
5. MR. UWEM E. IKPAT
6. MRS. LUCY O. UTUK
7. DR. EMMANUEL J. UKO
8. DR. GODFREY T. AKPABIO
9. DR. EFFIONG INYANG
10.NWANAOKUO U. EKANEM Appellant(s)
AND
1. UNIVERSITY OF UYO
2. AKWA IBOM STATE PROPERTY INVESTMENT COY (APICO) Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the Federal High Court, Uyo Judicial Division, Holden at Uyo, delivered on 5th October, 2009 by Chukwu, J. Appellants, herein were Plaintiffs and the Respondents defendants before the Court below.
Appellants approached the Court below by way of originating summons dated and filed on, 31/1/07, and presented the following questions for determination:
“1. Whether in consideration of the entire circumstances of the matters enveloping the staff housing units at Ewat Housing Estate, Uyo between 1991 and 2007 as these relate to the SOS petitions / Appeals by the Staff occupants (the Plaintiffs) to the University of Uyo (1st Defendant) on one hand, and by the said Plaintiffs to the then Governors of Akwa Ibom State and the Property Development Authority now APICO (2nd Defendant) on the other hand, the meetings held, the transactions, negotiations letters, and developments that followed thereafter between the said parties whether there was no indices and/or implication of fiduciary Trust Relationship between the 1st Defendant and the Plaintiffs and whether the 1st Defendant was not acting as a trustee on behalf of the Plaintiffs.
2. Whether in consideration of the letter of reply with Reference Nos PDA/E.S.41/S.77 dated 17th December 1992 and given by the Akwa Ibom State property Development Authority (2nd Defendant) to the Uni Uyo Academic Staff Union of Universities (ASUU) Upon enquires by the organization concerning the purchase of the said Staff Housing Units at Ewet Housing-Uyo by the 1st Defendant- There is no indication and/or implication of fiduciary Trust Relationships between the 1st Defendant and the Plaintiffs and whether the 1st Defendant, by making the said purchase, was not doing so in the interest of the Plaintiffs, as a Trustee on behalf of the Plaintiffs.
3. Whether a Trustee who purchased property on behalf of his beneficiary /subjects does not owe the said beneficiaries/subjects a duty to formally handover the said purchased property to the said beneficiaries/subjects and to render account and refund excess monetary deductions from the beneficiaries/subjects’ salaries if it had indeed been making such monthly deductions on the property purchased on behalf of his subjects.
4. Whether in view of the decision of Akwa Ibom State Government/APICO as communicated to
Uni Uyo. The 1st Defendant on 16th December, 1994 with Reference No.PDA/ES.41S.77/Vol.11/267 giving the 1st Defendant 14 days to declare its stand on the said housing units it paid for on behalf of the Plaintiffs to wit: – That either the 1st Defendant would rather agree to pay a higher market value and own the said housing units or hand them over to the Plaintiffs at the Law Government subsidized prices as Government had acceded to the Plaintiffs outcry, request and passionate appeal for Government’s/assistance to enable the Plaintiff own the said houses, and of which the 1st Defendant failed, refused and /or neglected to comply with the said housing units did not belong to the Plaintiffs with effect from 31st December 1994 being the day after the expiration of the said 14 days given to the 1st Defendant, particularly as the 1st Defendant had been making deductions on housing from the Plaintiffs salaries.”
Based on the answers to the questions reproduced above, the Appellants sought the following reliefs:
“1. A declaration of this Honorable Court that in all matters concerning the Ewet Housing Estate, Uyo as occupied by the Plaintiffs vis-a vis the various communication between the Plaintiffs and the 1st Defendant on the one hand, and between the Plaintiffs and 2nd Defendant/Government on the second hand, the meetings, letters, dealings, negotiation and payments made by the 1st Defendant to the 2nd Defendant – all between the period of 1991 to 2007, there was and is a fiduciary Trust Relationship between the 1st Defendant and the Plaintiffs and the 1st Defendant acted as Trustee on behalf of the Plaintiffs.
2. An order of this Honorable Court directing the 1st Defendant to formally hand over the said housing units to the Plaintiffs who became owners from 31st December, 1994 after the 1st Defendant failed refused and /or neglected to act as per the decision of the 2nd Defendant and Government which was conveyed to the 1st Defendant in a letter with Ref. No PDA/ES.41/S.77/Vol.111/267 dated 16th December, 1994 as Government/2nd Defendant had originally intended that the 1st Defendant purchased the said houses at Government’s low subsidized rates on behalf of the Plaintiffs.
3. An order of this Honorable Court directing the 2nd defendant to issue certificates of ownership/ occupancy on the said housing units directly to the Plaintiff according to the Plaintiffs’ occupation of the said housing units as listed hereunder:
S/No. NAME HOUSE UNIT ACCOUNT SOLD
1.Mr. G. T. IWOK A3 N64,540.00
2.DR. U.D.AKPABIO A4 N64,540.00
3.DR. M. P. AKPAN A5 N64,540.00
4.MISS M. D. UDUAK A6 N64,540.00
5.MR. UWEM E. IKPAT A7 N64,540.00
6.MR. NWANAOKWU
UDO EKANEM A8 N64,540.00
7.MRS. LUCY O. UTUK A9 N64,540.00
8.DR. EMMANUEL J. UKO A10 N64,540.00
9.DR. GODFREY T. AKPABIO A12 N57,500.00
10.DR. EFFIONG E. INYANG A139 N153,330.00
4. An order of this Honorable Court directing the 1st Defendant to stop further monthly deductions on housing from the salaries of the Plaintiffs and to render accounts to the Plaintiffs within 30 days of the judgment of this Honorable Court on all housing deductions made on/from the monthly salaries of the Plaintiffs with effect from 31/12/1994 and to refund the excess deductions to the Plaintiffs within the said 30 days, noting the subsidized rates/prices of each houses (Sic) as aforementioned and as sold to the 1st Defendant on behalf of the Plaintiffs.
5. Such further order (s) as this Honorable court may deem fit to make in the circumstances.”
(See pages 1-5 of the records)
In support of the originating summons is a 40 paragraph affidavit deposed to by Dr. Effiong E. Inyang, the 10th Appellant.
To the 40 paragraph Affidavit, as extravagantly worded as the questions for determination and the relief sought, are exhibited documents marked Exhibit A in paragraph 9 to Exhibit U in paragraph 38.
The 1st Respondent entered a conditional appearance on 16/2/07 and filed a notice of preliminary objection on the same date.
By leave of court the 2nd Respondent entered appearance on 28/2/07.
Written addresses ordered by the trial court in the preliminary objection raised by the 1st Respondent were duly filed, adopted and relied on by Learned Counsel for the respective parties. In its ruling delivered on 20/2/08 the trial Court over-ruled and dismissed the preliminary objection holding that the action commenced by originating summons is proper in the circumstances. The Ruling was delivered by Olotu J. who then presided.
In opposition to the originating summons the 1st Respondent filed a 35 paragraph counter-affidavit on 18/7/80 and exhibited documents marked exhibits A1 in paragraph 10 to Exhibit A5 in paragraph 25.
The 8 paragraph counter-affidavit filed by the 2nd Respondent on 18/7/08 is in conflict with its contents wherein the 2nd Respondent admitted virtually all the material averments in the supporting affidavit.
In reaction to the 1st Respondent’s counter-affidavit the Appellants filed a further affidavit in support of their originating summons. The further affidavit of 3 paragraphs was deposed to by one Nseobong Akrah, the litigation officer in the firm of Paul Usoro and Co. Counsel for the Appellants.
On 18/5/09 Christiana Uwah Esq. Who appeared for the Appellants applied:
“that she be allowed to file her witnesses depositions on oath”
See page 172 of the records.
However no deposition on oath was filed by any party. Rather learned counsel for the appellants filed “Plaintiff’s written address/argument” on 1/6/09 in response to which learned counsel for the 1st Respondent filed the “1st Defendant’s written address/argument” on 19/6/09.
Earlier, on 12/6/09 learned counsel for the 2nd Respondent, consistent with the admissions in the 2nd Respondent’s “counter affidavit” in reaction to the originating summons, filed a written address/argument in which “The 2nd defendant adopts and agrees totally on the submission of the plaintiff as the true position of this case.”
See page 193 of the records.
Learned counsel for the Appellants filed a rejoinder on 2/7/09, out of time but regularized on oral application to the trial court.
Learned counsel for the parties adopted their respective written addresses/arguments on 27/7/09 and the trial court adjourned the matter to 5/10/09 for judgment.
I need to point out that though the proceedings on 30/9/09-5/10/09 were signed by E.S. Chukwu J. the record showed that Olotu J. presided. I deem it a typographical error which has no impact, positive or negative, on the judgment of the court below.
Its judgment delivered on 5/10/09 as earlier scheduled the trial court reviewed the case before it and concluded as follows:
“Having said that I resolve all the questions for determination in this suit against the plaintiffs. The suit is accordingly dismissed as being very hypothetical, speculative and spurious. I make no order as to costs.”
(See page 234 of the records.)
Aggrieved by the judgment the appellants, by their counsel, filed a notice containing 10 grounds of appeal, “DATED THIS DAY OF OCTOBER, 2009” on 22nd October, 2009.
From the Appellants’ Ten grounds of appeal the following ten issues were presented for determination, one issue from each ground of appeal.
“4.1. Whether the whole judgment delivered by Hon. Justice E. S. Chukwu of Federal High Court Uyo, on 5/10/2009 was not a miscarriage of justice.
4.2 Whether the Learned Trial Judge did not error (Sic) in Law and/or misrepresented the Law when he held that there was no indices of judiciary trust arrangement and/or constructive trust circumstances and/or principal/ Agent relationship in the entire sequence of events or episode of relationships, transactions, meetings arrangements, decisions and conduct between the Plaintiffs 1st Defendant, 2nd Defendant and the then Governor/Military, Administrator Government of Akwa Ibom State particularly after the 2nd Defendant had terminated/revoked its initial offer to the 1st Defendant, recovered the said houses, terminated every transaction with the 1st Defendant publicity advertised to sell the said house to members of the public and then dealt individually with the Plaintiffs who had indicated interest to purchase their housing unit individually occupied by them, thereby warranting series of meetings, negotiative correspondences understanding, arrangement and agreement between the aforesaid parties.
4.3 Whether the Learned Trial Judges (Sic) did not err in Law when the (Sic) ruled that the Plaintiffs were total strangers and not privy to the contract between the 1st Defendant and 2nd Defendant.
4.4 Whether the Learned Trial Judge did not err in Law when he ruled that failure by the Plaintiffs to state the actual amount deducted from the Plaintiffs monthly salaries on housing by the 1st Defendant in connection with the said houses was detrimental to the Plaintiffs case.
4.5 Whether the Learned Trial Judge did not err in Law when he ruled that failure by the Plaintiffs to exhibit the Federal Government Staff Housing Scheme/Policy was detrimental to the Plaintiff’s case.
4.6 Whether the Learned Trial Judge did not err in Law when he ruled that payment by the 1st Defendant for the 10 housing units occupied by the Plaintiffs signified a contract between the 1st Defendant and the 2nd Defendant.
4.7 Whether the entire judgment was not against the weight of evidence.
4.8 Whether the Learned Trial Judge did not err in Law when he ruled that the Rejoinder of the Plaintiffs was a repetition of the address that was earlier filed by the Plaintiffs and hence did not merit consideration in the judgment.
4.9 Whether the Learned Trial Judge did not err in Law and thereby caused a miscarriage of justice when he refused to hold that the 2nd Defendant had revoked the initial after that the 2nd Defendant earlier made to the 1st Defendant, concerning the sale of the 21 housing units which resulted in no contract between the 1st Defendant and 2nd Defendant.
4.10 Whether the Learned Trial judge did not err in Law when he made undue reference:
“to the Court not being a place for charity for the Plaintiffs to run to.”
The first 1st Respondent adopted the above 10 issues in its brief of argument.
In his brief argument Learned Counsel for the 2nd Respondent, in a paragraph tagged: “Substantial issues for determination.”
Stated:
“Having adopted the Appellants brief of arguments, Notice and grounds of Appeal, other processes, as well as the case and entire legal position or otherwise of the Appellants in this matter the 2nd Respondent further raises the following issues for determination, in order to confirm its position;
2.1 (a) Was have any contract or agreement between the 2nd Respondent and the 1st Respondent on the issue of the said ten (10) housing units.
(b) What was the effect and/or aftermath of the 2nd respondent letter No PDA/Es. 41/S.77/Vol. 11/267 dated 16th December, 1994, to the 1st Respondent, (Plaintiffs exhibit ‘F’).
(C) What was the effect and/or aftermath of the then military Administrator of Akwa Ibom States’ Directive to the 2nd Respondent on 21st September, 1994 that the 2nd Respondent must implement the military Administration’s Directive that the said houses be handed over to the said staff of the 1st Respondent (Appellants)? (See Plaintiff Exhibits “N” and “O”)
There is need to sanitise the briefs filed in this appeal so as to isolate the real issue in contention.
One cannot fully appreciate the quality of a good brief until confronted with its direct opposite.In an appeal an issue is question to which parties have narrowed their several allegations and upon which they desire to obtain a decision of the Court. It may be a question of Law, or fact. See Eke v. Okwaranyia (2001) 4 SC NJ 307 102.
It is a short question. Formulation of issues in appeal is not an exercise in easy writing. Appellant’s issues are so wordy as if the success of an appeal is a function of its verbiage.
It is not good practice to make a habit of framing an issue from each ground of appeal. The principle of formulation of issues is that an issue is framed from one ground in appropriate cases, but usually from several grounds.
While the Learned Counsel for the 1st Respondent adopted the 10 issues in the Appellants’ brief the case of the Learned Counsel for the 2nd Respondent is quite a different story. He adopted the “Appellant’s brief of argument, notice and grounds of appeal, other processes as well as the entire legal position or otherwise of the Appellants.”
At this stage Learned Counsel is limited to adoption of the Appellants’ issues for determination, framing his own issues from the grounds of appeal or giving the Appellant’s issues a slant in favour of the Respondent’s case.
Even if the substantive issues framed by Learned Counsel for the 2nd Respondent are derived from the grounds of appeal the number of issues presented by the 2nd Respondent would be in excess of the grounds of Appeal in violation of the rule that whereas an issue can be tied to more than one ground of Appeal the reverse is not the case. See Ayangadie v. O.A.U.T.H.C.M.B (2001) 7 NWLR (Pt 711) 187. The issues framed by Counsel for the 2nd Respondent in addition to the issues formulated by the Appellant which he adopted constitute surplussage and are hereby struck out. See Dung v. Gyong (1994) S NWLR (Pt 362) 315, Labiy v. Anretiola (1992) 8 NWLR (Pt 258) 139 Aduku v. Adejoh (1994) 5 NWLR (Pt 346) 582.
The genesis of the transaction from which the appeal arose albeit indirectly, dates back to the 1980’s when the 1st Respondent was known as the University of Cross River State (Unicross). Also the 2nd Respondent, the Akwa Ibom State Property Investment Company (APICO) was formerly known as Akwa Ibom State Property Development Authority.
In or about 1983 the 2nd Respondent offered to sell its 21 housing units at Ewet Housing Estate Uyo Akwa Ibom State to the 1st Respondent for accommodation for its staff. Subsequently the 1st Respondent allocated the houses to 21 members of its staff. The 1st Respondent upon allocating the houses to its staff (Which included the Appellants) stopped paying them housing subsidies but rather made monthly deductions from their salaries, possibly towards payment for the houses.
Through the 1st Respondent made some part payment for the houses it defaulted in meeting in full its financial obligation for the purchase of the houses.
The 2nd Respondent revoked the offer and attempted to recover possession of the house from the 21 staff/occupants. Eventually 11 of the occupants yielded to restless pressure from the 2nd Respondent and vacated the houses they occupied, leaving the 10 Appellants who resisted all effort of the 2nd Respondent to eject them from its remaining 10 housing units. The 2nd Respondent later advertised the housing units occupied defiantly by the Appellants for sale to members of the Public.
Other relevant events leading to this dispute are averred in paragraphs 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 31, 32, 33, 34 and 35 of the appellants’ affidavit in support of the originating summons the said paragraphs are hereunder reproduced:
“13. That on November 11, 1991, we the Plaintiffs first wrote to the 1st Defendant indicating our interest to purchase the housing units occupied by us and thereby sought the intervention and assistance of the 1st Defendant in this regard to the extent of negotiating and paying for the houses we occupied and tenaciously fought hard to hold unto, on our behalf to purchase from our monthly salaries. EXHIBIT B is a copy of the said letter.
14. That on November 12, 1991, we the Plaintiff wrote another letter to the 2nd Defendant indicating our offer and readiness to purchase the housing units occupied by us, the 2nd Defendant having already advertised the houses for sale to members of the public EXHIBIT C hereto is a copy of the said letter.
16. That through our persistent efforts and the intervention of well-meaning individuals such as the then military Governor of Akwa Ibom State the 2nd Defendant considered and accepted to allow us purchase the housing units we occupied at very low prices subsidized by the Government.
17. That based on trust and confidence, at a meeting held on 28/1/91 with the then Vice Chancellor of the 1st Defendant- Professor Fola Lasisi, we empowered the 1st Defendant to negotiate with the 2nd Defendant on our behalf and pay the purchase prices for us and deduct such purchase costs installmentally from our monthly salaries. We accordingly mandated one Mr.P. J. Effiong who later became the Registrar to prepare a brief for the said Vice-Chancellor to use in the negotiations. The said brief is EXHIBIT E annexed hereto.
18. That on or about 14/1/1992, the said Vice-Chancellor of the 1st Defendant entered into negotiation with the 2nd Defendant which understood and considered that the Vice-Chancellor of the 1st Defendant was negotiating on behalf of us the Plaintiffs and that the said houses would be handed over to us the Plaintiffs on owner/occupier basis.
19. That consequent upon such understanding by the 2nd Defendant as aforesaid the 2nd Defendant agreed to sell the said houses we occupied at Government subsidized prices as we earlier appealed for, on installmental payment as follows:
“Plots A2 to A10 (3 Bedroom Bungallow, N64,540.00) Plot A12 (2 Bedroom Bungallow. N57,500.00 Plot A 139 (4 Bedroom Bungallow N153, 330.00).
20. That to our utmost shock and surprise, instead of the 1st Defendant paying for the said (houses in our names) (the Plaintiffs’ names) the 1st Defendant rather paid for and purchased the said houses from the 2nd Defendant in the 1st defendant’s name.
21. That later the 1st defendant asked the 2nd defendant to issue to the 1st Defendant:
“Certificate of ownerships” of the said housing units it paid for ……..
22. That in reaction and reply, the 2nd Defendant reminded the 1st Defendant that the said houses were sold by the 2nd Defendant to the 1st Defendant on the understanding that the 1st Defendant was acting, negotiating and purchasing the said houses that we the Plaintiffs occupied/occupy on our behalf and hence the subsidized prices and generous terms of payment.
23. That the 2nd Defendant further told the 1st Defendant as aforesaid in her letter No.PPA/ES.41/S.77/Vol.11/267 dated 16th December, 2004 that if the 1st defendant wanted to change her mind and own the said houses instead of handing them over to us, the Plaintiffs, the 1st Defendant should come over within 14 days for further negotiations so as to pay a higher market value for the housing units we occupied/occupy. EXHIBIT F hereto is the said letter from the 2nd Defendant to the 1st Defendant.
24. That to the best of our knowledge and belief the 1st Defendant failed, refused and/or neglected to comply with the 2nd Defendant’s deadline till now.
31. That when all efforts aimed at resolving the said matter with the 1st Defendant appeared to have failed, we had no other option than to go to Court and file suit No.HU/438/99 at the Uyo High Court asking for an order of the Honorable Court directing the 1st Defendant to assign the said housing units to us.
32. That while prosecuting our case in the said Court, the 1st Defendant under Professor Akpan Ekpo as VC sought to settle the matter out of Court and directed that we withdraw the case from Court and are obeyed and withdrew. EXHIBIT ‘P’ hereto is the letter from Defendant directing us to withdraw the said suit from Court.
33. That after we had obeyed the directive of the 1st Defendant and withdrew the said suit from Court in the hope that the 1st Defendant would resolve the matter in our favour, the 1st Defendant up till this very moment, has refused to officially or formally communicate with us any further on the said matter.
34. That when a New Vice-Chancellor of the 1st Defendant Professor Akaneren Essien assumed office in 2006, we wrote on 16/2/2006 to intimate him of the breach of Fiduciary Trust and Injustice done to us by the 1st Defendant but the said new Vice-Chancellor(VC) has refused to reply to or act on our letter. The said letter is annexed hereto as EXHIBIT ‘Q’.
35. That by the refusal of the new Vice-Chancellor of the 1st Defendant to officially or formally address our matter or reply to our letter we became convinced that the 1st Defendant was determined not to allow justice to prevail in this matter and hence we asked a Solicitor/an Attorney to write to the 2nd Defendant to hand over directly to us-the Plaintiff the certificates of ownership/occupancy on the said houses. Said latter is EXHIBIT ‘R’ hereto” See pages 10 to 16 of the record.
In its 35 paragraph counter-affidavit the 1st Respondent completely ignored paragraph 13 of the supporting affidavit and claimed in its paragraph 13 that paragraphs 14, 15, and 16 of the Appellants’ affidavit is not within the knowledge of the 1st Defendant.
The counter affidavit of the 1st Respondent was mostly evasive such as paragraph 15 to the effect. However the 1st Respondent was more forthcoming in paragraph 18 of its counter-affidavit:
“In answer to paragraph 22 of the affidavit the 1st Defendant will state that the 2nd Defendant on 16/1/94 sent a letter referenced PDA/ES41/S.77/Vo1.11/267 to it conveying the Government’s decision, whereupon the 1st Defendant opted for the decision which was that “The University as a corporate body keeps the houses as the University property but without subsidy from the Authority.”
Attached herewith is the letter dated 16th December 1994 and marked EXHIBIT A4.
The 2nd Respondent in its 8 paragraph affidavit virtually admitted all relevants in the Appellant’s affidavit.
In a further affidavit of the Appellants they disputed now facts in the counter affidavit and in particular, averred in paragraph 3(g)
“That the market value of witness as at 1992 was more than 10,000.000.00”
In View of the affidavit evidence and submissions of Learned Counsel for the parties the Learned Trial Judge summarised the issue for determination thus:
“Whether from the totality of the Exhibits there exist a constructive Trust or a Fiduciary relationship or a trustee and cest qui trust in this case or in the alternative is there any agent and principal relationships between the Plaintiffs and the 1st Defendant in relation to the ownerships and or acquisition of the 10 houses of Ewet Housing? See page 262 of the records.
In simpler terms the issue framed by the Lower Court is of the following component parts:
1) Is the 1st Respondent a trustee of the housing units and the Appellants beneficiaries?
2) Is there a principal/agent relationship between the Appellants and the 1st Respondent in the purchase of the houses.
Issue one on miscarriage of justice encompasses the other 9 issues in the Appellant’s brief. I will adopt it and its resolution will depend on a careful consideration of the issue raised and determined by the Learned Trial Judge.
Trust Law is based on equity while agency is a common Law concept. An agent resembles a trustee in that each is subject to Fiduciary Obligation toward his principal in the case of agent and his beneficiary in the case of a Trustee. See Snell’s “Principles of Equity” 27th Ed page 89.
I will start with the 1st component of the issue in whether or not the 1st Respondent is a trustee of the housing units for the benefit of the Appellants.
A trust has been defined thus:
“A Trust …… is the relationship which arises wherever a person called the trustee is compelled in Equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons (of whom he may be one and who are termed cestuis que trust) or for some object permitted by Law, in such a way that the real benefit of the property accrues, not to the Trustee but to the beneficiaries or other objects of the Trust”
See Snell’s Principles of Equity 27th Edition P.87 The concern of trust Law is that money or property is owned and managed on behalf of another. The word trust traces its origin to, and means substantially the same thing as “the use” in the English property law. The word use is derived from the Latin phrase “ad opus” meaning “on his behalf See Mait Land, Equity, “P.24 Megarry’s Manual of the Law of Real Property” by P. v. Banker 4th Edition page 65. An essential element of the trustee/beneficiary relationships is that the property subject of the trust must be vested in the trustee. In the case at hand the housing units are not vested in the 1st Respondent. See Exhibit F in paragraph 23 of the Affidavit in support of the originating summons and paragraph 18 of the counter affidavit of the 1st Respondent in which the same document is marked Exhibit A4. Even the doctrine of constructive trust cannot be invoked in absence of evidence that the 1st Respondent have acquired title to the housing units. See Anuruba v. ECB (2005) 10 NWLR (Pt 933) 321. Even though there is evidence of duty of fidelity or loyalty to Fiduciary Obligation owed by the 1st Respondent to the Appellants in the transaction relating to the housing units the evidence does not support the claim that the 1st Respondent is a trustee in respect of the property over which it has no title. The question is answered in the negative, as the Learned Trial Judge answered it.
The second component of the issue is whether or not the 1st Respondent in its transaction with the 2nd Respondent acted as an agent of the Appellants. Even though the Learned Trial Judge did not pronounce on it, there is no doubt that the offer made by the 2nd Respondent to the 1st Respondent was revoked for the inability of the 1st Respondent to pay for the housing units. I accept the evidence that following the revocation of its offer to sell the housing units to the 1st Respondent the 2nd Respondent made spirited effort to eject the Appellants and other staff of the 1st Respondent from the property.
The Appellants resisted the attempt to eject them from the property. When the 2nd Respondent advertised the property for sale to members of the public the Appellants indicated their interest in the property to their employer 1st Respondent. It has to be emphasized that after the revocation of the offer made to it by the 2nd Respondent the 1st Respondent showed no more interest in the property until the Appellant appealed to it to negotiate purchase and recover the payment for the property on their behalf and pay for same from deductions from their monthly salaries. A memorandum from the Senate Division to the Vice-Chancellor of the 1st Respondent, a working document in the negotiation with 2nd Respondent on pages 115 to 118 of the records stated in its last paragraph on page 118 of the records that:
“It is please (Sic) of the occupants that the university fronts and negotiates for them to purchase the housing units they are presently occupying at the prices mutually agreed upon by the by the Property Development Authority and the University in 1983 and 1985”
Exhibit F speaks for itself. It was in consideration of the plight of the Appellants and the State Government’s Policy of assisting indigenes to acquire their own houses that the 2nd Respondent entered into negotiation with the 1st Respondent in January 1992
“With the consideration that these houses would be made available to the affected staff on owner/occupier basis…
The Exhibits referred above show clearly that the 1st Respondent, in its negotiation with the 2nd Respondent, for the purchase of the housing units, was an agent of the Appellants as disclosed principals. The 1st Respondent was the instrumentability or a conduit pipe through which the Appellants acted in the purchase of the housing units. The 1st Respondent would step aside at the accomplishment of the transaction between its principal through it and the 3rd party the 2nd Respondent Agency depends on mutual agreement and does not necessarily arise under contract.
Surprisingly in a letter Reference. UU/Reg/CNL/44/Vol.1/168 of 7th January, 1993 addressed to Dr. E.E Inyang of A139 Housing Estate Ewet, Uyo one of the Appellants the 1st Respondent resorted to oblique reference to the National Universities Commission and the decision of the implementation Committee on agreement between ASUU and the Federal Government as if those had anything to do with the purchase of the houses. Paragraph (IV) of the letter on page 47 of the records is hereunder reproduced:
“The affected staff misunderstood the initial statement made by the Vice Chancellor when he met with them to mean that he the Vice-Chancellor was going to negotiate with the Akwa Ibom State Property Development Authority on behalf of the affected staff.
After the initial negotiation it became necessary for the University to look for funds to purchase the houses.”
The affected staff referred to are the Appellants. The meeting with the Vice-Chancellor was at the instance of the Appellants who tabled the matter for deliberation. The Appellants are no simpletons. They are members of the Academic Staff of the 1st Respondent and had been so for decades and included a Law lecturer in the 1st Respondent’s Law Faculty. The Vice-Chancellor by his office a distinguished man of learning did not speak to the Appellants in Swahili or some obscure tongue in which the Appellants were not schooled. He did not speak in “tongues” and even if he did the Apostles were understood by everyone in his own native tongue.
My Lords, the claim by the 1st Respondent that the Appellants, members of its Academic Staff misunderstood what its Vice- Chancellor said in the surrounding circumstances smacks of ironic symbolism. The 1st Respondent did not provide a of the statement of its Vice-Chancellor allegedly misunderstood by the Appellants, for he who alleges has the burden of proving what he alleges, the existence of which he wants the Court to believe. See S.139 of Evidence Act S. 142 of the Evidence Act provides that:
“When any fact is especially within the knowledge of any person the burden of proving that fact is upon him.”
The existence and of the statement alleged to have been misunderstood by the well-educated staff of the 1st Respondent is especially within its knowledge. The said statement if its exists, is evidence which could be and is not produced and it is presumed that it would if produced be unfavorable to the 1st Respondent who withheld it. See S. 149 (D) of the Evidence Act.
In an attempt to shore up the claim that it purchased the housing units for its own use contrary to the averments of the 2nd Respondent in alliance with the Appellants, the 1st Respondent averred in paragraph 18 of its counter-affidavit that:
“In answer to paragraph 22 of the affidavit, the 1st Defendant will state that the 2nd Defendant on the 16/12/94 sent a letter referenced PDA/ES.41/S.77/Vol.11/267 to it conveying the Government’s decision whereupon the 1st Defendant opted for the decision which was that “The University a corporate body keeps the houses as the University property but without subsidy from the authority. Attached herewith is the letter dated 16th December, 1994 and marked as Exhibit A4.”
The averment reproduced below is an admission by the 1st Respondent of the claim of the appellants and the 2nd Respondent that the 1st respondent paid only the Government’s subsidized price for the houses. If it had paid the prevailing price as it claimed, the 1st Respondent would not have opted to keep the property “but without subsidy from the Authority” This defeats its claim that it purchased and paid for the houses at the prevailing price, without subsidy. Contrary to the averment in paragraph 18 of its counter-affidavit reproduced below the 1st Respondent did not respond to, or accept any option in, Exh. A4. If it did reply to Exh. A4 then it withheld that piece of relevant evidence and the presumption in S. 149 (d) of the Evidence Act will inure against the 1st Respondent.
In any case the phrase “but without subsidy from the Authority” is not an acceptance of any offer contained in Exh. A4. It is a rejection of the sale offer and a new offer by the 1st Respondent to the 2nd Respondent. See UBA Ltd. v. Tejumola & Sons Ltd Vol. 3 ACLC 430. In any case the 2nd Respondent could not have made a valid offer to the 1st Respondent or to any one for this matter to sell the same property the 1st Respondent had purchased from it at the Government subsidized rate as an agent of the appellants.
I said earlier in this judgment that a trustee and an agent owe fiduciary obligation to the beneficiaries in the case of a trustee and the principal in the case of agent. See Olufon v. Hadaemic Ltd (2001) FWLR (Pt 35) 208 at 216 (CA), Anyaorah & Ors v. Anyaorah (2001) FWLR (pt 73) 178 at 203 & 204 (CA). The 1st Respondent’s attempt, motivated by corporate greed in the Ivory Tower, to retain the property it purchased and paid for as agent of the appellants is a breach of fidelity to the appellants and a fraud on the 2nd Respondent who dealt with the 1st Respondent and sold the property to the 1st Respondent as agent of the appellants. It is for the benefit of the appellants that the houses were sold at subsidized rate. It is an attempt to scuttle and deprive the appellants of the benefit of the Government Policy to enable its indigenes acquire their own houses. The 2nd Respondent, was legally and morally right when it denied the 1st Respondent’s request for certificate of ownership of the house, but with respect, the 2nd Respondent erred when it purported to offer to the 1st Respondent an option to retain the houses it purchased at lower rate as agent of the appellant at a higher rate or any rate at all.
Though agency is a component of the issue upon which the trial court dismissed the suit “as being very hypothetical speculative or spurious” (See page 269 of the records) the only mention of agency is “neither do they qualify as principals of a disclosed agent.” See page 267 of the records.
The trial court did not resolve the four questions posed by the appellants, the answers thereof upon which they predicated their four reliefs. Rather the learned trial judge taunted the appellant, degrading their suits to a mere appeal to charity. Had the learned trial Judge given proper consideration to relevant matters before the court, it would have been clear that, win or loose, the appellants certainly did not approach the court for handouts.
Appellants’ issue one which I have adopted for the determination of this appeal is hereunder reproduced once more for ease of reference and clarity
“Whether the whole judgment delivered by Hon. Justice E.S. Chukwu of Federal High Court, Uyo in 5/10/2009 was not a miscarriage of justice,”
The implication of miscarriage of justice is that the trial court has committed both misfeasance and non-feasance during the trial. It means that what is done is not justice according to law. See Okrokwo v. Udoh (1997) 9 NWLR (PT 519) 16, Awote v. Owodumi (No2) (1987) 2 NWLR (PT 57), Adelaja v. Oguntaye (2001) 6 NWLR (PT 719) 603. Miscarriage of justice has been defined as such departure from rules which permeate all judicial procedure as to make that which happened not in the proper sense of the words judicial procedure at all. See Devi v. Roy (1946) AC 508. The trend is that a miscarriage of justice should be declared only when the court after an examination of the entire case, including the evidence, is of the opinion that it is reasonable that a result more favourable to the appealing party would have been reached in the absence of the error. See Total (Nig) Ltd v. Wilfred Nwako (1978) 5 SC 1 Nnajiofor v. Ukonu (1986) 4 NWLR (pt 36) 505, Devi v. Roy supra.
I am of the considered view that the judgment of the lower court occasioned a miscarriage of justice, more so as the issue of agency raised by the court from the questions and affidavit evidence before it was not determined but merely pushed aside with the oblique reference to the Appellants that “…neither do they qualify as principals of a disclosed agent.”
I resolve the loan issue in favour of the Appellants and consequently I allow the appeal and set aside the judgment of the court below in which the Appellants’ suit was dismissed “as being very hypothetical, speculative and spurious.”
Rather than send back the case for trial by another judge of the Federal High Court, Uyo Judicial Division I deem it more expedient to invoke the general powers vested in the court in Section 15 of the Court of Appeal Act 2004 to answer the questions stated in the originating summon.
Question 1. There is a difference between fiduciary relationship on one hand and a trustee on another hand. The former is an incident of the latter and based on my determination the 1st Respondent is not a trustee as it has no title to the property in question. Be that as it may, duty of fidelity is also an incident of agency. The 1st Respondent, having negotiated and purchased the property for the Appellants was their agent as I earlier declared in this judgment. The 1st Respondent owes a fiduciary obligation to the Appellants.
Question 2: Flowing from the answer to question 1, the 1st Respondent is not and cannot be a trustee of the property in respect of which it does not hold title. See the definition of Trust in Professor Keeton’s. ‘The Law of Trusts, 9th edition 1968 page 5. However the 1st Respondent owes fiduciary obligations to its disclosed principals, the Appellants.
Question 3: Though the question appears framed in the abstract it is clear that the issue is whether or not the 1st Respondent should render account to the Appellants, as a trustee. I have already ruled that the 1st Respondent is not a trustee in respect of property to which it has title. Be that as it may the duty of the 1st Respondent arises from the duty of fidelity which the 1st Respondent owes its disclosed principals, the appellant. See Olufun v. Hadaemec Ltd (2001) FWLR 26 (pt 33) 208 at 216 (CA), Anyaorah & Ors v. Anyaorah (2001) FWLR (pt 73) 178 at 203 and 204 (CA). 1st Respondent is bound, in the circumstances to account to the Appellant, for the monthly deductions it makes towards recouping itself for the purchase price it paid for the Appellants as their agent.
Question 4: The Appellants own the housing units from the agreement of the 1st and 2nd Respondents on essential terms, giving rise to a binding contract. The letter reference No.PDA/ES.41/S.77/vol. 11/267 of 16th December, 1994 has no effect in the contract between the 2nd and 1st Respondent as agent of the Appellants.
Reliefs: In view of the answers to the questions posed and the reliefs sought, I hold as follows:
(1) Though the 1st Respondent owes fiduciary obligation, based on agency, to the Appellant, it is not a trustee and cannot be a trustee to the Appellant in respect of property the 1st Respondent has no legal title.
(2) Appellants owned the housing units on agreement on the essential terms of the contract between the 1st Respondent as agent of the Appellants with the 2nd Respondent, but I will limit the order to the date from which they make their claim. The said Respondent is hereby ordered to formally hand over the housing units to the Appellants who became owners from 31st December, 1994.
(3) The 2nd Respondent is ordered to issue Certificate of Ownership/Occupancy of housing units at Ewet Housing Estate Uyo Akwa Ibom State as listed hereunder:
S/No. NAME HOUSE UNIT ACCOUNT SOLD
1. Mr. G. T. IWOK A3 N64,540.00
2. DR. U.D.AKPABIO A4 N64,540.00
3. DR. M. P. AKPAN A5 N64,540.00
4. MISS M. D. UDUAK A6 N64,540.00
5. MR. UWEM E. IKPAT A7 N64,540.00
6. MR. NWANAOKWU
UDO EKANEM A8 N64,540.00
7. MRS. LUCY O. UTUK A9 N64,540.00
8. DR. EMMANUEL J. UKO A10 N64,540.00
9. DR. GODFREY T. AKPABIO A12 N57,500.00
10. DR. EFFIONG E. INYANG A139 N153,330.00
4. The 1st Respondent is further ordered to stop further monthly deductions on housing from the salaries of the appellants and to render accounts to the appellants within 30 days of the judgment of all housing deductions made on/from the monthly salaries of the appellants with effect from 31/12/94 and to refund the excess deductions to the Appellants within the said 30 days, based on the subsidized prices of the houses sold by the 2nd Respondent to the 1st Respondent and already paid for by the 1st Respondent as agent of the appellants.
Consequentially I also order that in case the account shows that the 1st Respondent has not fully recovered the subsidized price it paid for the housing units the Appellants are to pay the outstanding balance to the 1st Respondent within 30 days from the date the 1st Respondent renders the account to the appellants.
There will be costs against the 1st Respondent of N25,000.00 to each of the Appellant and N25,000.00 to the 2nd Respondent.
Appeal allowed.
KUMAI B. AKAAHS, J.C.A.: I read in draft the illuminating judgment of my learned brother, Ngwuta, JCA. I entirely agree with his reasoning and conclusion that the appeal has merit and should be allowed. I hereby allow the appeal and abide with the orders made as to costs.
JA’AFARU MIKA’ILU, J.C.A.: I have read the lead judgment of my brother Hon. Justice Ngwuta, J.C.A
I agree with the reasons given in it and the conclusion reached. I also allow the appeal. I make no order as to costs.
Appearances
Felix Udom Esq.For Appellant
AND
Ndiana Udofia, Esq.
Udo C. J. George Esq.For Respondent
