MICHAEL OLANREWAJU & ANOR VS ISAAC ADE OGUNLEYE (1997)

MICHAEL OLANREWAJU & ANOR VS ISAAC ADE OGUNLEYE

(1997) LCN/2756(SC)

In the Supreme Court of Nigeria

Friday, April 4, 1997


Case Number: SC. 180/1990

 

JUSTICES:

A.B. WALl – JUSTICE, SUPREME COURT

I.L. KUTIGI – JUSTICE, SUPREME COURT

M.E. OGUNDARE – JUSTICE, SUPREME COURT

U. MOHAMMED – JUSTICE, SUPREME COURT

S.U. ONU – JUSTICE, SUPREME COURT

A.B. WALI – JUSTICE, SUPREME COURT

 

APPELLANTS

1. MICHAEL OLANREWAJU

2. SAMSON OJUADE

 

RESPONDENTS

ISAAC ADE OGUNLEYE

 

RATIO

HOW IS INADMISSIBLE EVIDENCE TREATED

That it is now settled law that where evidence is under no circumstance admissible, it does not matter whether no objection was taken as to its admissibility or that it was admitted by consent. Such evidence, it is argued, remains inadmissible for all intents and purposes- Per ONU JSC.

 

ONU, JSC. (Delivering the Judgment by the Court):

In the High Court of Oyo State, Ife Judicial Division, holden at Ile-Ife the plaintiff, herein respondent claimed against the defendants now appellants jointly and severally the following reliefs:-

“(a) The sum of Ten thousand Naira (N10,000) as General Damages for the wrongful destruction and destructive and or wrongful reaping of the plaintiff’s palm trees between February and March, 1983 on a portion of the plaintiff’s farm-land at Iponrin Adegoroye Ogunleye Farmland in Ife. District let to the 1st defendant orally and later witnessed in writing by an Agreement dated the 28th day of December, 1964.

(b) Injunction restraining the defendants, their agents and privies from further tampering with the said palm trees.”

Pleadings were ordered, filed and exchanged by the parties. The case went to trial and after the addresses of counsel, the learned trial Judge (Oguntoye, J.) in a well considered judgment dated the 23rd day of May, 1984, found in favour of the respondent. On appeal by the appellants, the Court of Appeal (Coram: Akanbi, J.C.A. as he then was, in which Omololu-Thomas and Gambari, JJ.C.A. concurred) dismissed the appeal on 12th July, 1989.

The appellants have further appealed to this court upon a Notice of Appeal dated the 17th day of August, 1989 containing one ground which I deem pertinent to set down hereunder because of what I intend to say about it vis-à-vis the additional grounds filed in the appeal later on in this judgment.

“Ground of Appeal:

(1) The Court of Appeal erred in law in dismissing the appeal when it was clear that the learned trial Judge based his judgment on inadmissible evidence and therefore came to a wrong conclusion.

Particulars

(a) The Document admitted as Exhibit ‘1’ is a registrable instrument under the Land Instrument Registration Law Cap. 56 Laws of Oyo State, 1958.

(b) Not having been registered, Exhibit ‘1’ is not admissible in law.

(c) It did not matter that the appellant did not object to its admissibility at the trial.”

Parties filed and exchanged briefs of argument in accordance with the rules of court. Embedded in the appellants’ Brief are at pages 2 to 5 five additional grounds of which at paragraphs 3 and 3.1 the appellants have this to say:-

“3.       Grounds of Appeal

3.1.      The appellant (sic) filed a Notice of Appeal containing one ground of appeal (See pages 15 to 157 of the Record) we shall before the hearing of the appeal seek leave of this Honourable Court to file and argue additional grounds of appeal included in the brief as follows:-

Ground 2

The Court of Appeal erred in law and misdirected itself on the facts when it failed to find that the palm trees claimed to have been destroyed by the appellants were planted by appellants and assuming without conceding (sic) that Exhibit 1 was admissible, by a proper construction of Exhibit 1, the 1st appellant was not precluded from planting palm trees and reaping such palm trees he planted.

Particulars

(1)      The respondent said in Cross examination that the 1st appellant had taken up possession of the farmland since 1959.

(2)      The respondents has earlier said in his examination-in-chief that the destroyed palm trees were between 20 and 30 years old.

(3)      This shows that the appellant who had been in possession for 24 years must have planted some of these palm trees.

(4)       Clause 1 of Exhibit 1 is not exhaustive in respect of the economic trees and crops the appellant can plant and does not preclude the appellant from planting palm trees.

(5)       Clause 5 of Exhibit 1 provides for palm trees already in existence on the land which belonged to the respondent’s father and not those that would be planted by the appellant.

(6)      There was nothing in Exhibit 1 which would be said to preclude the appellant from planting and reaping palm trees on the land.

Ground 3

The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they held that:-

“But this much can however be said that those findings of fact as regards ownership of the land (which is also evidenced by Exhibit 1) and the entitlement of the plaintiff to reap the palm fruits on the land decided in Suit No. HIF/32/82 constituted ‘issue estoppel’ against the appellant……. in any case the learned trial Judge also said that even if it was open to her ‘to go behind the previous judgment’ (i.e. Exhibit 2) to make her finding on those issues, she would have come to the same conclusion. I think that, that ought to complete the argument on the point.”

Particulars

(1)      The said previous judgment, Exhibit 2 was clearly based on Exhibit 1, the unregistered and inadmissible lease agreement tendered in the present case.

(2)      The learned Justices of the Court of Appeal should not have relied on the previous judgment, Exhibit 2 as it was based on inadmissible evidence and thus decided per incuriam.

(3)      The learned Justices of the Court of Appeal did not give any reasons why they would have come to the same conclusion as the trial Judge on the point.

(4)       Since Exhibit 1 is inadmissible, oral evidence as to the terms and conditions of the lease agreement is also inadmissible in evidence, hence there was no legal evidence before the Court of Appeal as to the terms and conditions of the lease agreement.

Ground 4

The learned trial (sic) Justices of the Court of Appeal erred in law in holding that:-

“For the issue is not who planted the palm fruit. It is whether the 1st appellant has a right to reap the palm fruits without the consent of the plaintiff or persons claiming through him. The sum total of the findings of the learned justice in this regard is that, the 1st appellant has no such right and with that I agree.

Clearly clause 5 of Exhibit 1 sets a limit to any control or possession that the 1st appellant might have on the palm fruits.”

Particulars

(1) There was uncontroverted evidence that the farm land in issue was leased to the appellant in 1959 by the respondent’s father

(2) There was also uncontroverted evidence that the appellant has been in possession of the said farm land since 1959 till date.

(3) By virtue of the provisions of the Land Use Act, ownership of such farmland became vested in the appellant.

(4) It is an elementary principle of law that “quic quid plantatur solo solo cedit” i.e. whatever is affixed to the soil belongs to the soil.

(5) The palm trees which the respondent claimed had a life span of 100 years is definitely part of the soil.

(6) Whoever owns the soil is clearly the owner of whatever is affixed to it.

(7) The 1st appellant is the owner of the palm trees and can do as he pleases with them.

(8) The lease agreement Exhibit 1 being inadmissible in evidence for being unregistered, reference should not have been made to any of its provisions.

(9) With Exhibit 1 being inadmissible, oral evidence of its contents should also have been disregarded for being inadmissible.

(10) There was consequently no material evidence before the trial Judge and the Court of Appeal to warrant the finding that there was any agreement binding on the appellant restricting this use of the palm tress.

Ground 5

The Court of Appeal erred in law in holding that the judgment in the previous suit between the 1st appellant and the respondent (Exhibit 2) constitutes issue estoppel against the appellants when the said judgment was based on inadmissible evidence and reached per incuriam and the palm trees in issue in that suit were different from the ones in issue in this suit.

Ground 6

The Court of Appeal erred in law and misdirected itself on the facts, when it upheld the award of the sum of N7,000.00 as general damages to the respondent for the reaping and damage done to the palm trees on the land in dispute.

Particulars

(1) There was clearly evidence before the Court of Appeal that the amount of damage claimed to have been suffered by the respondent was quantifiable.

(2) The respondent ought to have claimed for special damages and thus be bound to give specific particulars of his claims.

(3) The Court of Appeal agreed with the learned trial Judge who based the analysis of the damages on unreasonable grounds namely that a palm tree has a life span of 100 years and consequently would be productive throughout its life span.

(4) On the evidence of the respondent which was retied on by the trial court, the palm trees destroyed were between 20 – 30 years old and the appellant has been in possession of the farmland since 1959 i.e. for 24 years, consequently the respondent could not have planted all the trees he claimed were destroyed.

(5) The evidence of the respondent as to the effect of the wrongful reaping of the palm trees by the appellant is at variance with his Statement of Claim and goes to no issue.”

To the six grounds of appeal set out above and which are contained in the appellants’ brief dated the 29th January, 1990, the respondent in his brief dated the 6th of November, 1991 as well as in a Notice of Motion of even date, raised a preliminary objection. The grounds of objection are:-

“1. That whereas by virtue of Section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979 the appellants are obliged to seek and obtain leave of the Court of Appeal or of this Honourable Court before appealing on facts or mixed law and facts; the appellants contrary to the provisions of the Constitution quoted herein have appealed on facts or mixed law and facts in grounds 1, 2, 3, 4, 5 and 6 of this (sic) grounds of appeal and to what extent the appeal as filed is incompetent and should be dismissed.

2. That on a close look at the 6 grounds of appeal, the appellants in the main, are attacking the concurrent finding of facts of the court below.”

On 11th November, 1996 when this appeal came up for hearing, the appellants as well as their counsel were absent while the respondent’s counsel was present. The appellants’ appeal was taken as having been argued on the brief. Learned counsel for the respondent in his brief oral submission relied on the brief he had earlier filed and re-iterated the fact that he still relied on the preliminary objection he had earlier filed and urged that the appeal be struck out as incompetent. The appellants have unfortunately not responded by filing a reply brief.

I have carefully examined all the six grounds contained in the appellants’ brief and I take the firm view that the objection is well taken in respect of grounds 2 to 6. I shall come to ground 1 later on. Suffice it to say that these five grounds, it would appear clear, are either grounds of facts or at best of mixed law and facts. See Ogbechie v. Onochie No.1 (1986) 2 NWLR (Pt.23) 484; Welli v. Okechukwu (1985) 2 NWLR (Pt.5) 63; (1985) 6 S.C. 132.

For such grounds to be allowed to be argued in this court, leave of either the Court of Appeal or of this court ought to be first sought and obtained before filing them pursuant to section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979, as amended. See also Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167 at 176; Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt.212) 652; OwoniboysTechnical Service Ltd. v. John Holt (1991) 6 NWLR (Pt. 199) 550; In Re: Otuedon (1995) 4 NWLR (Pt.392) 665 and Cross River State Newspaper Corporation v. Mr. J.I. Oni & 6 ors. (1995) 1 NWLR (Pt.371) 270 at 285.

Further, in respect of grounds 2 to 6, were leave to have been sought and obtained to argue grounds, 2, 3, and 6, I would still have struck them out for the sheer fact that each of them alleges both error-in-law and misdirection in them which, in my respectful view, is palpably incongruous. Such grounds would intrinsically be incompetent and unarguable. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 (supra) and Sylvanus Obi v. Chief Ola Owolabi (1990) 5 NWLR (Pt. 153) 702. Grounds 4 and 5 in my judgment, are clearly grounds of mixed law and facts albeit that they are christened as grounds of law. Their characterisation as one, would ipso facto not convert them into grounds of law. See Nwadike v. lbekwe (supra) Ogbechie v. Onochie No. 1 (supra); Adili v. The State (1989) 2 NWLR (Pt. 103) 305; S.U. Ojemen & 3 ors v. His Highness William Momodu (1983) 1 SCNLR 188; (1983) 3 S.C. 173 and Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (Pt.126) 299.

Consequently, grounds 2, 3, 4, 5 and 6 are declared incompetent and they are accordingly struck out.

Coming to Ground 1, this having been filed on 17/8/89 when the judgment against which it is complaining was delivered on 12/7/89 and so statutorily within time, it is prima facie competent. The ground without its particulars states:

“The Court of Appeal erred in law in dismissing the appeal when it was clear that the learned trial Judge based his judgment on inadmissible evidence and therefore came to a wrong conclusion.”

Now, it is trite that a ground of appeal which complains that “the learned trial Judge admitted inadmissible evidence and acted upon it” as in the instant case, is obviously a ground of law. Thus, Ground 1 is a ground of law and I so hold. See Nwadike v. Ibekwe (.supra) at page 733.

The issue which overlaps Ground 1 asks:

“1. Whether the lease agreement Exhibit 1 made between the respondent’s father and the 1st appellant is admissible in evidence when the document is unregistered.”

The gravamen of appellants’ argument centres upon the admissibility of Exhibit 1 which is submitted, is a lease agreement made as far back as 1964 but which was unregistered. It is purported to be a lease agreement between respondent’s father and the 1st appellant in respect of the farmland on which the palm trees in issue are. Reliance was placed on sections 16 and 2 of the Land Instruments Registration Law of Oyo State Cap. 59 of 1978 as well as the case of Ojugbele v. Olasoji (1982) 4 S.C. 31, for the proposition that a registrable instrument which is not registered should not be pleaded as it is inadmissible by statute.

It is appellants’ further contention that it is now settled law that where evidence is under no circumstance admissible, it does not matter whether no objection was taken as to its admissibility or that it was admitted by consent. Such evidence, it is argued, remains inadmissible for all intents and purposes. The cases of NIPC v. Thompson Organisation Ltd. (1969) 1 All NLR 138 and Ajayi v. Fisher (1956) 1 F.S.C. 90; (1956) SCNLR 279 were cited in support thereof. In addition, it was argued that if, however, such inadmissible evidence is admitted and relied upon by the trial Judge, the appeal court has a duty to expunge such document or evidence from the records vide Anyaebosi v. R.T. Briscoe Ltd. (1987) 3 NWLR (Pt.59) 84 and NIPC v. Thompson Organisation (supra), adding that in the instant case, the court below ought to have expunged Exhibit 1 and with it out of the way, there would be no legs on which the case of the respondents could rest.

In the instant case, if it is realised that the document (Exhibit 1) that the appellants have elevated to the status of a lease is but only “a Farm Cultivation Agreement” between the plaintiff’s father and the 1st appellant, it is not a document affecting land that may be subject of registration. The court below effectively answered the point, thus putting the nail in appellants’ coffin as follows:-

“I have examined Exhibit 1 in the light of the provisions of the law under which the appellant now seeks to avoid the contract he freely and voluntarily entered into or to have the document to which he took no objection at the trial expunged from the record; and say at once that I do not think it is such a document that can be said to be inadmissible at all events. I am satisfied that the document did not purport to transfer or convey any right, title or interest in land as to make it registrable as a land instrument. If anything, it constituted an acknowledgment of the plaintiffs undisputed title to the farmland and of the fact that the defendant, under the hire agreement was allowed to use part of it, upon the terms and conditions spelt out thereunder. In the circumstances, I agree with respondent’s counsel that Exhibit 1 is a mere record of the transaction between the parties and does not fall within the ambit of those documents required to be registered under the Land Registration Law. It is therefore admissible.”

I cannot agree more.

With the foregoing, my answer to this issue is in the affirmative.

In the result this appeal fails and is accordingly dismissed with N 1,000 costs to the respondent.

WALI, JSC.

I am privileged to read in advance the lead judgment of my learned brother Onu, JSC. and I agree with his reasoning and conclusion that the appeal lacks merit and it must therefore fail.

I agree with the conclusion in the lead judgment that additional grounds 2 to 6 are incompetent since they are in contravention of S. 213(3) of the Constitution of Nigeria 1979 and were never filed! They are accordingly hereby struck out. See Moses v. Ogunlabi (1975) 4 SC 81; Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167; Akwiwu & Anor. v. Sangonuga (1984) 5 SC 184; Tilbury Construction Co. Ltd. & Anor. v. Sunday Ogunniyi (1988) 2 NWLR (Pt.74) 64 at 70 and Erisi v.Idika (1987) 4 NWLR (Pt.66) 511.

As for the original ground of appeal which complains of wrong admission of evidence, I hold the view that it is a ground of law. See Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484. This ground therefore sustains the appeal. But this will have no effect on the conclusion I have on this appeal, having regard to the finding of Akanbi, J.C.A. (as he then was) on Exhibit 1, which is the instrument in issue wherein he opined in the lead judgment of the court that:-

“It was the contention of the appellant’s Counsel that the learned trial Judge should not have relied on Exhibit 1 even though no objection was taken to its admissibility at the time it was tendered. The document, it is said, is a registrable instrument under and by virtue of Section 16 of the Land Instrument Registration Law Cap. 56 Laws of Oyo State 1958, and not having been so registered, it is not admissible in law. For that reason, it was argued, it should have been expunged from the record. Section 2 of the aforesaid Law Instrument Registration Law defines or spells out the type of documents affecting land that may be subject of registration. I have examined Exhibit 1 in the light of the provisions of the law under which the appellant now seeks to avoid the contract he freely and voluntarily entered into or to have the document to which he took no objection at the trial expunged from the record; and say at once that I do not think it is such a document that can be said to be inadmissible at all events. I am satisfied that the document did not purport to transfer or convey any right, title or interest in land as to make it registrable as a land instrument. If anything, it constituted an acknowledgement of the plaintiffs undisputed title to the farmland and of the fact that the defendant, under the hire agreement was allowed to use a part of it, upon the terms and conditions spelt out thereunder. In the circumstances, I agree with respondent’s counsel that Exhibit 1 is a mere record of the transaction between the parties and does not fall within the ambit of those documents required to be registered under the land Registration Law. It is therefore admissible.”

I agree with this finding and conclusion on Exhibit 1. There was therefore no error of law by the learned trial Judge in admitting Exhibit 1 in evidence and considering the same in arriving at his conclusion in the judgment.

The appeal fails and it is hereby dismissed. The judgments of both the trial court and the Court of Appeal are further confirmed.

The appellant is awarded N1,000.00 against the respondent.

KUTIGI, JSC.

The appellants who had lost both in the trial High Court and in the Court of Appeal have finally appealed to this court on one original ground of appeal as shown on pages 156 – 157 of the record. It reads:-

“Ground of Appeal:

(1) The Court of Appeal erred in law in dismissing the appeal when it was clear that the learned trial Judge based his judgment on inadmissible evidence and therefore came to a wrong conclusion. Particulars

(a) The document admitted as Exhibit ‘1’ is a registrable instrument under the Land Instrument Registration Law Cap. 56 Laws of Oyo State, 1958.

(b) Not having been registered, Exhibit ‘1’ is not admissible in law.

(c)      It did not matter that the appellant did not object to its admissibility at the trial.”

The Notice of Appeal which was filed on 17/8/89 was well within time because the judgment of the Court of Appeal being appealed was only delivered on 12/7/89. Whether or not leave was needed before filing the Notice of Appeal vide section 213(3) of the 1979 Constitution will be discussed later. It was indicated in the same Notice of Appeal that “other grounds of appeal will be filed on receipt of the record of appeal”.

The record shows that the appellants received their record of appeal on 26/6/90. But they have filed no additional grounds of appeal to date. However, in their appellants’ Brief of argument which was filed in this court on 29/1/91, it was indicated on page 2 therein that before the hearing of the appeal leave of this court would be sought to file and argue five additional grounds of appeal numbered 2 – 6 as set out also on pages 2 – 5 of the brief.

When this appeal came up for hearing on 11th November 1996 the appellants and their counsel (Chief Afe Babalola, SAN & Co.) were all absent. It was then observed that the appellants have not sought leave of this court to file and argue the five additional grounds of appeal as stated in their brief and which they had argued in their brief. In fact these grounds 2 – 6 were never filed. This is against the clear provisions of order 8 Rule 2(5) and order 8 rule 4 of the Supreme Court Rules, 1985 as amended. They read thus –

“2(5) The appellant shall not without the leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the court may deem just.

(4) A notice of appeal may be amended by or with the leave of the court at any time.”

I hasten to say that under the above rules, the question whether the additional grounds sought to be filed are of facts or mixed law and facts or law alone does not arise as long as there is a subsisting competent appeal.

In the absence of an application for leave of this court to file and argue the additional grounds of appeal nos. 2 – 6 therefore, the said grounds 2 – 6 are not properly before the court. They are incompetent and ought to be struck out. I hereby strike them out accordingly. Consequently issues 2 – 6 covering those grounds of appeal in the appellants’ brief must also he struck out. And I do strike them out. We are therefore only left with the single original Ground of Appeal filed on 17/8/89 and set out above. It is issue (1) in the appellant’s brief.

Now, before 11th November 1996 when the appeal came up forbearing, the respondent had filed a Notice of Preliminary Objection on 6th November, 1991, challenging the competence of the appellants’ Grounds of Appeal Nos. 1, 2, 3, 4, 5 & 6. All of them. The objection is also contained in the respondent’s brief filed on the same day (6/11/91 ). It was contended that all the grounds of appeal are of facts or of mixed law and facts which required prior leave of the Court of Appeal or of this court as provided under section 213(3) of the 1979 Constitution. He said that since no leave was, obtained, the appeal as filed is incompetent and should be dismissed.

I have already struck out additional grounds of appeal nos. 2 – 6 because as I said there was no application for leave to file them. These grounds were however wrongly argued in the brief. If they were never filed and there is no application to file them now, then they are strictly not part of these appeal proceedings. Therefore the issue of whether or not they are grounds of facts or of mixed law and facts which require leave under section 213(3) of the Constitution does not arise at this stage there being no application to file same.

As for original ground one however, there is need to examine it to see whether or not it is a ground of facts or of mixed law and facts which needed prior leave of the Court of Appeal or of this court.

In carrying out this exercise, I must bear in mind that a decision whether a ground of appeal raises question of law alone does not depend on the label an appellant gives to the ground in question. A decision will involve an examination of the particular ground of appeal together with its particulars (see Ojemen & Ors. v. H.H. William O. Momodu II & Ors. (1983) 1 SCNLR 66; (1983) l SC. 173; Nwadike & Ors. v.Ibekwe & Ors. (1987) 4 NWLR (Pt.67) 718). A careful reading and analysis of the lone ground above shows clearly that it is –

(1) questioning the admissibility of Exhibit 1 in evidence;

(2) contending that Exhibit ‘ l’ is a registrable document or instrument under the Land Instrument Registration Law Cap. 56 Laws of Oyo State 1958; and

(3) saying that the learned trial Judge based his judgment on the inadmissible evidence (Exh.1), and therefore came to a wrong conclusion.

To me, all these three points are points of law only. I believe it is settled that a complaint about wrongful admission of evidence is a ground of law alone. Also a ground of appeal complaining that there was no evidence or no admissible evidence upon which a decision or finding was based is a ground of law. And an issue on legal interpretation of deeds or documents, will also be a ground of law (see Nwadike & Ors. v. lbekwe & Ors. (1987) 4 NWLR (Pt.67) 718. Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484.

I have therefore irresistibly come to the conclusion that the single original ground of appeal above is unquestionably, a ground of law. It is therefore valid and properly filed. The preliminary objection in respect of original ground 1 above therefore fails.

Now as I said, ground 1 is covered by issue (1) which reads –

“Whether the lease agreement Exhibit 1 made between the respondent’s father and the 1st appellant is admissible in evidence when the document is unregistered.”

This issue has been adequately dealt with in the lead judgment of my learned brother Onu, JSC. which I read before now. I agree with him that the court below was right when it held that Exhibit 1 was a mere record of the transaction between the parties and did not fall within the ambit of those documents required to be registered under the land Registration Law as the document did not purport to transfer or convey any right, title or interest in land………….

The appeal therefore fails. It is hereby dismissed with N1,000.00 costs to the respondent.

OGUNDARE, JSC.

I have had the advantage of reading in draft the judgment of my learned brother Onu, JSC. just delivered. Leave of this court not having been sought and obtained (as indicated in appellant’s brief) to argue additional grounds 2 – 6, those grounds are not available to the appellants in this appeal and all arguments in the Brief based on them are incompetent and are accordingly struck out.

With respect to learned counsel for the respondent however, original Ground (1) would appear to be a ground of law in that it complains that a document relied on by the respondent in support of his case was wrongly admitted in evidence. Wrongful admission of evidence is, in my respectful view, an issue of law. Whether or not ground (1) succeeds is a different matter. As ground (1) is a competent ground, the appeal is, to that extent, competent.

Issue (1) formulated by the appellant is predicated on Ground (1); it, therefore, calls for determination in this appeal. The issue reads:

“(1)       Whether the lease agreement Exhibit 1 made between the respondent’s father and the 1st appellant is admissible in evidence when the document is unregistered.”

The pith of appellants’ submissions on this issue is that Exhibit 1is a lease agreement that must, under section 2 of the Lands Instrument Registration Law Cap. 59 Laws of Oyo State 1978, be registered, and as it was not so registered, it was inadmissible in evidence under section 16 of the Law. Ojugbele v. Olasoji (1982) 4 SC 31 is cited in support. It is further submitted that it does not matter that it was not objected to at the trial; the appeal court has a duty to expunge it from the record. It is finally submitted that –

……… the said Exhibit 1 is the leg on which the respondent’s case rests and so the respondent’s case should collapse with the expunging of the said Exhibit.”

The respondent’s reply to the submissions of the appellants run thus: “The appellant ……………… started to misconstrue and gave wrong interpretation to Land Instrument Registration Law, Exhibit ‘1’ did not purport to transfer or convey any right title or interest in land as to make it registrable.

It is merely an acknowledgment of plaintiff’s undisputed title to the farmland and of the fact that the defendant, under the hire agreement was allowed to use a part of it upon the terms and conditions spelt thereunder”

The court below, per Akanbi, J.C.A. (as he then was), had this to say on Exhibit 1:

“I have examined Exhibit 1 in the light of the provisions of the law under which the appellant now seeks to avoid the contract he freely and voluntarily entered into or to have the document to which he took no objection at the trial expunged from the record; and say at once that I do not think it is such a document that can be said to be inadmissible at all events. I am satisfied that the document did not purport to transfer or convey any right, title or interest in land as to make it registrable as a land instrument. If anything, it constituted an acknowledgment of the plaintiffs undisputed title to the farmland and of the fact that the defendant, under the hire agreement was allowed to use a part of it, upon the terms and conditions spelt out thereunder. In the circumstances, I agree with respondent’s counsel that Exhibit 1 is a mere record of the transaction between the parties and does not fall within the ambit of those documents required to be registered under the Land Registration Law. It is therefore admissible.”

I have myself examined Exhibit 1 and I have no hesitation in agreeing with the court below that it is not a document registrable under section 2 of the Lands Instruments Registration Law. It is a mere memorandum evidencing a transaction under customary law and creates a customary law tenancy. This is borne out more by paragraphs 8 and 9 of the Exhibit which read:

“8. That in recognition of the title of ownership of the landlord and in consideration of the above agreement the Tenant hereby agrees to pay Ishakole to the landlord every year not later than the 30th November, each year in the following quantities or their value in cash. Three hundred weights of cocoa or 30 yams or 600 Gbanja Nuts or N15.00.

9. That failure to pay the full quantity of Ishakole at the stipulated above shall lead to the institution of legal proceedings against the International Inc. of America. No. And this becomes necessary for what I may be disposed to say ut infra for the avoidance of a doubt. Simon Osezuah executed as a “guarantor” to the company/plaintiff a Deed of Legal Mortgage on behalf of the Issuing Bank i.e. the appellant herein. Seepage 114 of the record.

The present appeal, therefore, arises from this international trade relation-ship between the plaintiff company and the overseas supplier in which the Union Bank of Nigeria Plc acted for the company plaintiff. It is an appeal from the Judgment of A.A. Agun, J. in suit No. B/86/87. The judgment was given on the 10/12/93. The suit giving rise to the action was commenced by or with a writ of summons filed on 13/10/87. Consequent upon the order by court, the parties filed and exchanged their respective original pleadings. They later amended their pleadings. The pleading were finally settled at the “Second Further Amended Statement of Claim” and the “Further Amended Statement of Defence.

Now, since a statement of claim supercedes the writ, id est, the endorsement on the writ of summons, I advert to paragraph 49 of the Second further amended statement (hereinafter to be referred to, simply as the claim for short) for what reliefs the plaintiffs claimed against the defendant.

See Lahan & Ors. v. Lajoyetan & Ors. (1972) 6 S.C. 190, paragraph 49 of the claim is in the following terms. Whereof the 1st and 2nd plaintiffs claims (sic) as follows:

  1. A declaration that the 2nd plaintiff is not owing the defendant any sum on the overdraft account/loan facilities granted to the 2nd plaintiff by the defendant on the 28/2/86 or any sum whatsoever. – 2. An order for the return to the 1st and 2nd plaintiffs the Title Deeds which the 1st plaintiff deposited with the defendant as security for a loan/overdraft for the 2nd plaintiff (by virtue of the Deed of Legal Mortgage Registered as 8/8/617 at the Lands Registry, Benin City) which has been repaid fully, the defendant has refused or failed to surrender to the 1st plaintiff the said title deeds despite repeated demands by the 1st and 2nd plaintiffs.
  2. Damages:

(a) Special damages: The sum of N30,000.00 per annum from 30th August, 1987 till judgment as special damages (sic) for wrongful detention by the defendant to secure overdraft facilities or in the alternative the sum of N30,000.00 per annum from 30th August, 1987 till judgment for the loss (sic) of profit/loss of use occasioned (sic) by the defendant’s failure to release 1st plaintiff’s Title Deeds for use to secure loan by the 2nd plaintiff.

(b) General damages ……………… N60,000.00.

4. Further or other reliefs.

Dated at Benin City this 7th day of November, 1989.”

Note (1) 1 confess, I am totally ignorant of what the fourth head of the claim, (i.e. “paragraph 49(4) of the claim”) connotes or is intended to mean.

The case came on before the learned trial Judge on the 27/6/89 for hearing. The plaintiffs testified in line with their joint pleadings. Thereafter, they summoned the evidence of some other witnesses and then close their side of the case. The Union Bank of Nigeria Plc was represented during the trial by its officer, one Sunday Umakaye Romun. The defendant-Bank had testified through Sunday Umakaye Romun with whose testimony it closed its case.

The learned trial Judge, having received all the available evidence -both oral and documentary -legally receiveable and legally received, received the final oral addresses by the counsel. Thereafter, he reserved his judgment till the 26/11/93. The judgment eventually delivered on the 10/12/93.

In a reserved and well considered judgment, the learned trial Judge found for the plaintiffs. He wrote in page 96 of the record of appeal, inter alia:-

“In the final analysis the plaintiff’s claim substantially succeeds and all the declaration sought in paragraph 49(1)(2) (3)(a)(b) of the plaintiffs’ amended statement of claim are (sic) hereby allowed to (sic) as follows:-

(1) The defendant is hereby ordered to return to the first and second plaintiffs the Title Deeds which first plaintiff deposited with the defendant by virtue of Deed of Legal Mortgage registered as 8/8/617 at the Lands Registry, Benin City.

2. In addition, the plaintiffs in all are entitled to judgment in the sum of N250,000 (Two hundred and fifty thousand naira) made up as follows:-

By way of special damages

(a) The sum of N 180,000 (One Hundred and Eighty Thousand naira) loss of profit from 30th August, 1987 to 30th August, 1993 at N30,000 (Thirty thousand naira) per annum ……………………………………………………. N180,000.00

(b) From 30th August 1993 to 30th November, 1993 the sum of Ten thousand naira……………………..N10,000. 00

Total ……………………………………………………………………………………………………………………………….. N190,000.00

By way of General Damages

(a) Loss sustained as a result of 1st plaintiff title document N60,000 (two hundred and fifty thousand naira) Total   N250.000.00 I assess the costs at N2,000.00 (Two thousand naira) against the defendant in favour of the plaintiffs.

Sgd. A.A. Agun (Judge)

Friday 10th December, 1993.”

Dissatisfied and aggrieved with the judgment, the defendant has, naturally and logically appealed from it to the Court of Appeal, originally on three grounds of appeal. The “Notice of Appeal” together with the “Grounds of Appeal” was filed on the 25/2/94. It is copied in pages 117 to 119 of the record. The three original grounds of appeal, shom of their respective “Particulars of Error” respectively are:-

“Grounds of Appeal

  1. The judgment is against the weight of evidence.
  2. The learned trial Judge erred in law and fact when he held as follows:-

“In the instant case in view of the recklessness and nonchalant manner the defendant operated the 2nd plaintiff account, I am of the firth and considered view that a claim of N60,000 (Sixty thousand naira) per annum is not unreasonable and staggering in all its circumstances.”

  1. The learned trial Judge did not properly evaluate and appraise the evidence led before it (sic) but took into consideration matters not connected with the operation of letters of credit and banking practice. See Baba v. N.CA.T.C. (1991) 5 NWLR (Pt.192) 388.” Subsequently, the defendants sought for and obtained leave of court to file further or additional grounds of appeal; in terms of Exhibit A exhibited in the application for leave dated the 9th of March, 1995. The additional grounds of appeal filed were numbered serially and consecutively as “(1) and (2)”.

1 shall set them down, again, shorn of their respective “particulars of Error” to avoid prolixity. They are:

“Additional Grounds of appeal

  1. The learned trial Judge erred in law for using inadmissible evidence Exhibit Y in arriving at the award of N30,000 per annum from 30th August, 1987 till judgment for loss of use occasioned by the defendant’s failure to release 1st plaintiff’s deeds for use to secure loan by the 2nd plaintiff.
  2. The learned trial Judge erred in law in failing to arrive at the conclusion the defendant’s (sic) acted in consonance with their normal course of business as envisaged in section 149(c) of the Evidence Act Cap. 112 Laws of the Federation 1990.”

So, there were altogether three original grounds of appeal plus two additional grounds filed in challenge to the judgment – a total, therefore, of five grounds of appeal raised. But apparently, the numbering of both the original and the additional grounds of appeal filed is bound to be confusing. Clearly, most certainly there has occurred a duplication in the numbering. That ought not to be so. The proper method of numbering any further or additional grounds of appeal raised is to number them consecutively and serially with the original grounds of appeal filed. Thus, the confusion and the duplication of numbers are avoided. See Omonfoman v. Okoeguale (1986) 5 NWLR (Pt.40) 179; William Odudu v. Ademola Atoyebi (1987) 2 NWLR (Pt.58) 660.

The defendants at the trial are herein the appellant. The plaintiffs in the court below are the respondents herein. In compliance with the rules of the Court of Appeal, 1981, the parties had filed and exchanged their briefs of arguments. Therein each party had formulated for determination the issues. The appellants formulated in page 2 of their brief the following five (5) issues:

“Issues which arise far determination

3.1. Whether the trial court was right in awarding N60,000 general damages on a contract for which such penalty was not provided, nor was negligence, recklessness and nonchalant manner of operating the account pleaded and having regard to the evidence before court.

3.2. Whether the court properly evaluated the evidence so to make this award both special and general damages in a contractual relationship between the parties, the one being a mortgage involving banker/customer relationship.

3.3.Whether the trial court was right to have relied on the evidence connecting the feasibility report, the same being inadmissible as contrary to section 91(3) of the Evidence Act Cap. 112 Laws of the Federation 1990 even though there was no objection to its admissibility, the feasibility report having been produced when litigation was contemplated by the 1st and 2nd plaintiffs.

3.4 Whether the trial Judge considered at all section 149(c)of the Evidence Act that the common course of business has been followed in the account presented by the appellant

3.5 Whether the trial court adequately considered the law as to opening of irrevocable letters of credit and other matters relating to entries into any banking account especially the one relating to the 2nd plaintiff.”

The respondent on their part had, in page 5, “paragraph 3.1 .” formulated for determination the following two (2) issues immediately set down.

“Issues for determination

(i) Whether the learned trial Judge was right in holding that the defendant was Estopped from denying the fact that funds covered by irrevocable letters of credit were released to the beneficiaries in 1983 based on defendants representations in Exhibit F and M.

(ii) Whether the learned trial Judge was right in the award of special and general damages to the plaintiffs.”

This appeal came on for the hearing before us on the 22/5/96. At the hearing, Mr. L.O. Akhidenor for the appellant had adopted the appellant’s brief of argument deemed properly filed and served on the 26/6/95. He relied on the brief. Similarly, Mr. M. Imadegbelo of counsel for the respondents adopted the respondents’ brief of argument deemed properly filed and served on the 16/1/96. He also relied on the brief.

In laudably short a speech, Mr. Akhidenor, in amplification of his brief had urged us to dismiss the judgment of the court below and, eo ipso, allow the appeal. Mr. Imadegbelo urged us contra-wise. He pressed us to affirm the court below and, on that account, to dismiss the appeal. Not much speech made, at all.

Now, it becomes desireable, indeed, necessary to give the back-ground facts, the antecedents of the case giving rise to the present appeal. They would not only serve to facilitate and enable a better appreciation, but also an understanding of what issues were involved, canvassed and agitated at the trial and now- on appeal. The pleadings filed, are rather prolix. They are copious-the “second further amended statement of claim” running up to a total of 49 paragraphs copied from pages 31 to 43 inclusive of the record, and, the `further amended statement of defence”, copied in pages 57 to 63 inclusive of the record, running to a total of 24 paragraphs – . So, rather than extract the facts from the very pleadings themselves, I would, instead, summarise each party’s case, as pleaded, albiet briefly, to avoid an undue length and bulk of the judgment.

The second named plaintiff, Osezuah & Co. (Nig) Ltd., (hereinafter to be referred to simply, as the “company” for short) was or is a customer to or of the Union Bank of Nigeria Ltd., the defendant, (hereinafter to be referred to simply, as the “Bank” for short). The company kept an account with the bank. Desireous of buying and importing some dry-cleaning equipments from MOE & Stoll International Inc., a United States of America based company, (hereinafter to be referred to simply, as the “Overseas Suppliers” for short) had approached the bank to help and assist it (the company) handle the international trade transaction with the “Overseas Suppliers”. It (the company) applied to the bank for an overdraft facility to the tune of N60,000 (sixty thousand naira). It was approved or granted. For a collateral security, Simon Osezuah, the company’s share holder and Man-aging Director executed a deed of legal mortgage of his property for or with the bank. The deed was or is registered as “8181617” in the Land Registry.

The Overseas Suppliers opened and sent to the company their proforma invoices – (three of them) Nos. 81-006A, 82,008 and 82,009-9A (Exhibits A-A3). The values of the equipments as per the proforma Invoices were in the United States of America dollars, what in International Trade, was the “money of Ac-count”. The total value was U.S.64,590 dollars (sixty-four thousand, five hundred United States of America dollars).

Consequently, the bank opened Irrevocable Letters of Credit, (L.C.) Nos. 37/ 82,40/82 and 41/82 for or on behalf of the Overseas Suppliers (Exhibits “B to B5”). On the reverse side of each “L.C.” or are the undertakings executed and ac knowledged by the company, including for the purposes of what I might be disposed to say, ut infra, the following expressions inter alia:-

“In consideration of the opening by you of this credit on my/our behalf of I/we hereby undertake and agree that three days before the due date of each draft drawn thereunder in case of acceptance or on receipt of document in Nigeria ……………………

I/we will provide you with funds necessary to meet the payment thereof …………………….. It is understood ……………………………… I/we agree that my/our liability to you in respect of each draft drawn under this credit shall not be discharged until the Central Bank of Nigeria. discharged provide you with the requisite foreign currency to meet paymentby you oryourcorrespondent and such …………………………….

I/we hereby authorise you to debit mylour account with all sums which may become due to you in respect of this credit including your commission of ………………. I/we enclose a cheque for …………………… To provide you with your margin security you are authorised to debit my/our account with ………………………” (The Italics is supplied by me for emphasis of the indemnity undertaking by the company). I had rather set them out sooner than later. This I have done.

The equipment arrived Nigeria. Some of them were defective; others not the type originally ordered for. The company wrote to the bank to stop any payment to the Overseas suppliers/beneficiaries. The bank replied that that was not possible.

Funds covered by the L.Cs., had already been released to the Overseas Suppliers. According to the company, it had liquidated its indebtedness to or with the bank. But notwithstanding, the bank was wrongly debiting and crediting its accounts with the bank. The company aggrieved that it completed payment to the bank in 1983.

It demanded the return to it of the Title Deeds registered as “8/8/ 617”. But the bank wrongfully refused to do so. Because of the bank’s wrongful detention of the deeds, the company asserted, further, that it thereby lost the chance of obtaining a credit facility from Allied Bank Ltd for the expansion of its business. It, accordingly, lost an estimated profit of N30,000.00 per annum.

The above apart, the bank, in 1987 unilaterally increased its (company’s) overdraft holding. Hence the action brought.

The bank, on its part, had set up a parallel case. Not only did it deny falsely or wrongly crediting and/or debiting the company’s account, or sending irreconcilable accounts but also denied detaining the “Deed of Legal mortgage” wrongfully. According to the bank, the company was or in, as at the 23/4/87 indebted to the bank to the tune of N 14,517.93 (Fourteen thousand, five hundred and seventeen naira, ninety-three kobo) inclusive of accruing interest charges. Of this, the company was duly informed or warned in or by a writing dated the 23/4/ 87. By Banking practice, the bank is or was entitled to retain the “legal mortgage title deeds” until the company’s indebtedness was, fully, liquidated.

The bank denied the allegations contained in paragraphs 19, 20, 21, 22, 23, 24, 29, 31, 32, 33, 38, 39, 40, 41, 47, 48 and 49 of the second further amended statement of claim”

It was part of the bank’s case, as pleaded, that the Central Bank of Nigeria did not release the relevant foreign currency until 1988. This the company was duly informed of, in writing, (Exhibit 2) dated the 23/2/88.

The bank set up a plea of estoppel. It pleaded the indemnity as per the Irrevocable letters of credit. It was part of the bank’s case that it was its letter of the 6/10/87 to the company, warning it of its (company’s documentary financial liability and the outstanding interest charges that stirred the company quickly to institute the present action.

In my respectful view, based on the state of their pleadings, the issue that went for trial was not very complex. It fell within a narrow compass. It seems to me to be this. But before I do set down what the issue was, as it appears to me, I shall, firstly, advert to the principles to guide me in its formulation.

Now, as appearing in page 643 of Paget’s Law of Banking, 8th Edition, “The buyer who, pursuant to his sales contract instructs his banker to issue a credit undertakes impliedly or expressly to put the banker in funds to meet a payment under it if the documents against which the banker pays are what the buyer calls for; and where he does so provide funds the banker is bound to apply them to the purpose to which they are appropriated. Normally, and in the absence of any express agreement to the contrary, the banker on paying under the credit debits the buyer’s account. The banker must comply rigidly with his instructions and where he does, he is entitled to the indemnity of an agent.”

And at page 644 occurs also the following expression:

“The banker’s undertaking under an irrevocable or confirmed credit is, of course, absolute. An irrevocable or’ confirmed credit which had been advised to the beneficiaties cannot he cancelled at the instance of the buyers (Hamzeh Malas & Sons v. British Imes Industries Ltd). In the words of Jenkins, L.J.. “…………… the opening of confirmed letters of credit constitutes a bargain between the bank and the vendor of the goods, which imposes upon the banker an absolute obligation to pay”. Once a credit has been communicated to the beneficiary the buyer cannot amend’ without the beneficiary’s consent, nor can the issuing banker, at the instigation of the buyer, force an amendment on the intermediary buyer.”

Perhaps, at the risk of a repetition, (and I apologise for it) but rather necessary for the purpose of clarity and better appreciation, I did reproduce certain of the undertakings (indemnity clauses) by the company, as the buyer, to the effect that: “1/we agree that each draft drawn under this credit shall not be discharged until Central Bank of Nigeria provide you with requisite foreign currency to meet payment by you…………………………. And if no account is maintained in my/our name in your books, I/we undertake to reimburse you for any claim of the above nature made.”

I shall not stop here. No. I shall further advert to the memorable apt and instructive dicta, per Denning, L.J. (as he then was) in Pavia & Co. S.P.A. v. Thurmann Neilsen (1952) 2 Q.B. 84 at page 88 to this effect:

“The sale of goods across the world is now usually arranged by means of confirmed credits. The buyer requests his banker to open a credit in favour of the seller and in pursuance of that request the banker, or his foreign agent, issues a confirmed credit in favour of the seller. This credit is a promise by the banker to pay money to the seller in return of the shipping documents. Then the seller, when he presents the documents, gets paid the contract price. The conditions of the credit must be strictly fulfilled, otherwise the seller would not be entitled to draw on it.”

Strictly speaking, a confirmed credit is an irrevocable credit. The law, therefore, governing commercial letters of credit is largely the law of contract and agency.

Armed with and guided by the above discussed principles the issue, firstly, arising from the state of the parties’ pleadings, therefore, becomes this: Has or had the company, qua buyer of those America-type-drycleaning equipments from MOE & Stoll International Inc. (the overseas suppliers) transacting through its (company-buyer’s) agents (Union Bank of Nigeria Plc., (the Issuing Bank) liquidated, fully, in the terms of the undertakings, as per the irrevocable letters of credits opened, its indebtedness or documentary financial liability to the Bank herein the appellants before the action brought, giving rise to the present appeal?

And here, again, the dichotomy between the “money of account” and the money of payment” which implies that the debtor must use as much “currency of payment” that would be enough to pay the debt in the currency of account, must be. ever, home in mind in considering this appeal.

Secondly, the gist of liability in tort of detinue is the wrongful detention of the plaintiff’s chattel (herein the Title Deeds registered as “8/8/617” in the Lands Registry). The action was available against the defendant who received the chattel from the plaintiff or otherwise against the defendant who withholds or withheld the plaintiff’s chattel after the plaintiff had demanded its return.

Hence, in General & Finance Facilities Ltd v. Cooks Cars (Ramford) Ltd. (1963) 1 WLR 644, Lord Diplock, L.J. (as he then was) at page 648 differenciated action in conversion from action in Detinue as follows:

“There are important distinctions between a cause of action in conversion and a cause of action in Detinue; the former is a single wrongful act and the cause of action accrues at the date of conversion, the latter is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods and continues until delivery up of the goods or judgment in the action in detinue.” The cause of action in Detinue, as herein, partakes of the nature of an action, “in rem” in which the plaintiff seeks specific restitution of his chattel (herein the Title Deeds registered as °8/8/617″). Armed with and thus guided by the principle of law discussed, at supra, the issue, secondly, going for trial, from the state of the pleadings becomes this. Was or is the Union Bank of Nigeria Plc. qua agents for Osezuah & Co. (Nig) Ltd, purchasers of the dry-cleaning equipment from the American company – the Overseas Suppliers – wrongfully detaining or retaining the “TitleDeeds” given to it, (the Union Bank of Nigeria Plc, qua the Issuing Bank of the Irrevocable letters of credit) as a collateral security? Put rather simply and more nakedly, assume, “argumento” and this is, only by way of an argument, “a posteriori”, before Osezuah & Co. Nig. Ltd ever liquidated, fully. its documentary financial liability to the Union Bank of Nigeria Plc., herein the appellant, would the bank in law or at law be bound or entitled to release its security. id est. return the title deeds to Osezuah & Co. Nig. Ltd. on its demand? Unless and until either or/ and the above be resolved one way or another, a discussion of “remedium”, compensation or damages becomes idle and sterile.

And pausing here, again, I wish to remind myself again from the state of the pleadings, that he who asserts has the burden to prove his assertion. See Sections 135 and 136 respectively, of the Evidence Act Cap. 112 Laws of the Federation, 1990. And he discharges his primary onus within the principle laid down by the West African Court of Appeal (WACA) in Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337. Although he does discharge his onus on the balance of probability (see Mogajiv.Odofin(1978)3S.C.91). Yet if the story of the claimant i.e. the plaintiff, be as good as that of the defendant, or if there is an equilibrium between them or they are on an equal knell, then, “a fortiori” the plaintiff must fail and his case be dismissed. Why? Because the evidence on that imaginary scale of Justice. (Carrying a pair of scales and not a cornucopia) has not and does not prepondate in his (plaintiff’s) favour. Pure and simple; no more and no less!

As I indicated above, there are two sets of formulations of issues for determination. I have examined the two sets. I have compared the one set with the other set. Now, the grounds of appeal in an appellate court play a role similar to pleadings in original judgments. Issues argued in an appellate court are distilled from the ground or the grounds of appeal filed. The issues or an issue formulated must of necessity flow or derive from a ground of appeal filed or more, ideally from a combination of grounds of appeal filed. Any issue not arising from the grounds of a ground of appeal goes to no issue. It is a non-issue and, eo ipso, ought to be disregarded, discounted and discountenanced. “Cadit quaestio”, the matter ends there. See Modupe v. The State (1988) 4 NWLR (PL87) 130; Okpala v. lbeme (1989) 2 NWLR (Pt. 102) 208.

Now, the respondents herein had not appealed from the judgment by the court below. No. So, they are no cross-appellant. Yes. Can they even formulate an issue or issues outside the grounds of appeal filed by the appellants herein? From my study of the respondent’s brief, unless I understood it imperfectly, I have unsuccessfully struggled to see from which of the grounds of appeal filed, the issues formulated by the respondents were distilled. Assume, I be right in my view, then the result is obviously. See Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) 352. The respondents cannot be allowed to formulate an issue, as it were, “in nubibus” hanging in the air, or “in abstracts”. No. The result is obvious. And I have said enough above, I shall not repeat myself.

Before discussing the learned submissions by the counsel on the arguments. I shall permit myself to say straight away that I have scrutinised the appellant’s brief of argument. In my respectful view, it is just a piece of prose writing running from pages 2 to 5 thereof, in, of course, “paragraphs 4.1.” to “paragraph 4.6”. At page 6 is the “conclusion”.

. . There is no knowing which argument or submission related to or is related to Which issue and from which grounds of appeal the issue argued relates or is distilled. .

All that is left to or for the Justice preparing the judgment to sort out. In my respectful view, this irregular method helps in no small way to make the already difficult task of the Justices of the appellate court preparing the judgments more onerous. Please help lighten their task. It is highly desirable that the briefs be carefully written. A well written brief of argument saves time. It’ enhances the quick disposal of the appeal. It cannot, with respect to the counsel, regarding the appellant’s brief of argument filed, be said to be a model. No.

Now, to the learned submissions by the counsel on the arguments: It was contended by the counsel, in “paragraph 4.1 .” of page 2 of the appellant’s brief, referring to paragraph 23 of the “Second Further Amended Statement of Claim (the claim) that the total of the debits “Dr.” therein came to N 166,312.00 i.e. (N75,348.00 plus N90,940 (see paragraph 23(1) and 23(3) respectively) while the total credit (Cr) of N43,303.00 plus N75,348,00 plus 44,209 came to N162,860.11. As the counsel submitted. by sheer simple arithmetic, there was a debit balance of N3,451.89. This amount was by far less than the credit facility of N60,000.00 granted to the company. It was the further contention that the respondent did not plead by law much it was over-debited. Neither did the trial court itself even inquire to find out how much the respondent was over debited with. It was part of the contention by the learned counsel that the respondent failed to establish in evidence by evidence say for an example, by the presentation of Bank Tellers, that it (the respondent) had liquidated the overdraft facility granted it together with the interest thereon accruing. On the contrary, the learned counsel had drawn attention to the evidence by the appellant through its officer in page 65 lines 16-28 and in page 66 lines 1-5, of the record to show how the respondent’s account was operated. The operation, counsel submitted, arose from the Irrevocable Letters of Credit opened, and the final release of foreign currency by the Central Bank of Nigeria. Exhibit M by the Central Bank of Nigeria showed the amount not in Naira but in foreign currency, id est, United States of America dollars, id est, $7,236.00.

Counsel, therefore, submitted that the learned trial Judge was wrong in saying, (borrowing the diction of the brief) that “there was no single document of Central Bank involvement in these dealing”. The respondent, as the “principal” of or to the appellant, its “Agent”, it was submitted, ought to take the consequences of its Agent.

The respondent was, therefore, it was submitted in page 3 of the appellant’s brief, bound by the dictates by or of the Central Bank of Nigeria.

Learned counsel. had further contended that Simon Osezuah the 1st named plaintiff at the trial (and herein the 1st respondent) never was a customer to or of the appellant. And the learned trial Judge, counsel contended, failed to appreciate that the appellant owed no duty of care to the 1st respondent; in respect of keeping any accounts and accordingly failed to appreciate what duties of care were owed to the respondents respectively in the transaction giving rise to the case and giving rise to the appeal. Counsel cited and relied on Salomon v. Salomon & Co. Ltd. (1897) A.C. 22 and further on Akinsanya v. U.B.A Ltd. (1986) 4 NWLR (Pt.35) 273.

Concluding, counsel had referred to Exhibit T. He contended that not-withstanding that the debit balance as shown above was N3,451.89 there was evidence (see Exhibit T) that the 2nd respondent was indebted to the appellant to the sum of N 14,517.93k being a continuing customer of the appellant.

The counsel had referred further to paragraph 24(2) of the claim. It was the submission by the counsel in the brief that the averment therein was “misconceived” because the amount “brought or carried forward” was not N33,900.73 as at “9/7/ 86”. Rather it was “N77,203 Dr.” after which the credit of N43,303.00 as pleaded in or by paragraph 24(l) of the claim was given thereby leaving the debit balance of N33,900.73 to continue (again borrowing the diction of the brief) “its journey in the account on 10/7/86, see Exhibit R”

Counsel submitted in “paragraph 4.2.” in page 4 of the brief that both the trial Judge and the respondents completely did not understand or misunderstood the “continuing system”. The learned trial Judge was further criticised for failing to resolve the accounting procedure given in evidence by the appellant and so failed and fell in error in not applying Section 149(c) of the Evidence Act Cap. 112 Laws of the Federation 1990. Again the case of Akinsanya v.. U.B.A. Ltd. (supra) was prayed in aid of.

It was contended in page 4 “paragraph 4. 3” of the appellant’s brief that in making the award of N60,000.00 as the loss sustained as a result of 1st plaintiff’s title document”, the learned trial Jddge had failed to distinguish between the rights or obligation to or of the appellants to plaintiffs, herein the respondents. The 1st respondent (Simon Osezuah) had been given the award for what the trial Judge considered, wrongly it was contended, the wrong accounting of the 2nd plaintiff’s account”.

The award of the damages of N60,000 to the 1st respondent (Simon Osezuah) had no foundation in principle or at law, it was contended by counsel. Counsel referred to Exhibit “IA”. It (Exh IA) is copied at page 114 of the record of appeal (parenthetically let me say sooner than later that Exhibit 1 A reads inter alia:-

“I understand that the guarantee I am about to sign is in respect of banking facilities to Osezuah & Company Nigeria Limited is in support of legal mortgage dated 30th November 1981 registered as 8/8/617……………………..

(sgd) x           x         x x

(Signature of Guarantor 4/11/85″.) Based on the foregoing, learned counsel posited “How could the 1st plaintiff recover any general damages in detinue?” Counsel, on the quantum of damages recoverable in Detinue had referred to Clerk & Lindsell on Torts 4th Edition page 706 Art. 1151; and further to Kalu v. Mbuko (1988) 3 NWLR (Pt.80) 86, “Ratio 14”, (a term I do not like to use because it has almost always been quoted and misapplied by some counsel).

Dealing with the award of N30,000.00 per annum from 1987 till judgment, as the anticipated loss of profit, learned counsel in page 5, “paragraph 4.5.” of the appellant’s brief, counsel had drawn attention to the date of the filing of the writ of summons initiating the suit. The writ of summons was issued on the “13th day of October; 1987. (See page 1 of the record). He further drew attention the respondents’ warning letter through their Solicitor, Exhibit W. “Exhibit W” pre-dated the issuance of the writ of summons. It (Exhibit W, letter ref. No. IEI/125/ 87) was written and dated the “7th July, 1987” – i.e. over three months before the writ of summons was issued. Therein, the sum of N30,000p.a. was being claimed.

The feasibility Report (Exhibit IDI) was not copied. It was the submission by counsel that “ExhibitIDI was made in contemplation of the action brought. He drew attention to sections 90(3) and 91(3) of the Evidence Act Cap. 112 Laws of Federation 1990, for their effect on Exhibit IDI notwithstanding that it (Exhibit IDI) was admitted in evidence without objections. Concluding counsel contended that the learned trial Judge was wrong to have utilised it (Exhibit IDI) the way he did.

The above apart, counsel contended in paragraph 4.6 of the appellant’s brief that the award of N60,000.00 per annum was too remote. He cited the ancient, highly venerated and hallowed case of Hadley v. Baxendale (1843-60) All E.R. Rep. 461 at page 465; Onwuteaka v. Davco Technical Services & Supplies Ltd FCA/L/49 of 13/2/80 (Unreported); Ogwu v.-Levemis Motors Ltd (1963) 2 All NLR 65.

I shall pause here for a comment for the purpose of clarity and elucidation to put the point aside. I did observe above, that the appellant’s brief of argument was one long piece of prose writing. The grounds of appeal filed (five of them) were rather unideally, split into more issues than they necessarily ought to have been. Indeed some of the issues as formulated could have been very conveniently and adequately condensed into one and argued together. I have, however, adopted the method I have of taking and considering the submissions on the arguments, also, together. This in my judgment was deserving in the circumstance. It also made for convenience. I have said this just in passing.

The submissions by the respondents in the respondents’ brief were in the main centered and hinged on what counsel christened, “Estoppel by Conduct”. It was contended by counsel in page 6 paragraph 4.1 et sequentee, that the respondents, qua plaintiffs, had pleaded “estoppel” and gave evidence in that direction. The evidence was counsel contended, “unrebutted” by the appellants. Particular references were made to Exhibits F, and M.

The letter by the appellants dated 23/3/83 (Exh. F) was recited and quoted “in extenso”. It (Exhibit M) I did touch on earlier on dealing with the submissions by the appellant.

Based on these Exhibits (F and M) it was submitted that the appellants were estopped from denying that the funds covered in or by the irrevocable letters of credit were released to the Beneficiaries in 1983. Reliance was placed on Section 151 of the Evidence Act, Cap. 112 Laws of the Federation, 1990 and the cases includingJoelga v. Anutkiri(1976)11 S.C. I atpages 12/13; Ondo State University v. Folayan (1994) 7 NWLR (Pt.354) 1; 25. Counsel drew attention to the testimony by the appellant at the trial, which in the counsel’s opinion, was supportative of his contention. Counsel therefore justified the learned trial Judge in accepting the evidence and adjudging the appellants, qua defendants liable.

Counsel next dealt with the “Award of Special and General damages” in page 8, “paragraphs 5.1” et sequentes, of the respondents’ brief.

Learned counsel similarly justified the award of both special and general damages made by the learned trial Judge. As counsel contended, the respondents established those items of claim by credible evidence. There was evidence that by the respondents that the appellant retained the “Title Deeds” inspite of the letters (Exhibits N and R) of demand for their return and after the respondents had liquidated their indebtedness to or with the appellants.

It was the contention by the counsel in page 9 of the respondents’ brief that the respondent were desireous of utilising the title deeds to secure a loan from another bank-Allied Bank Ltd-That bank refused to grant the loan facility because the respondents could not produce a collateral security.

Reference was made to the evidence by Patrick Kwelomen (P.W.2) an Accountant who prepared the Feasibility Report. (Exhibit IDI) (alias, per respondents’ brief, Exhibit Y). Numerous decided cases were cited excerpts therefrom quoted in support and for support of the proposition that the evidence by the P. W.2 not having been contradicted, the court was justified to accept it, rely on it and act on it in the award it (the court) did make in favour of the respondents. It was submitted that the Feasibility Report was prepared in 1986; “not produced during the pendency of the proceeding/evidence of plaintiff, witness No. 2”.

In page 12 of the respondents’ brief, counsel had submitted (and I beg leave to borrow the diction of the brief) –

“The plaintiff went further to establish substantial award by profering evidence of fictitions crediting and wrongful debiting of 2nd plaintiff account. The mode and manner the defendant fiddled with the 2nd plaintiff Account is illustrated at pages 34 and 35 of the record of appeal.” (Contained in pages 34/35 are the pleadings of plaintiffs second amended statement of claim).

 

Note (1) (The Italics and the square brackets with their contents are mine) It was the contention by the counsel again in P. 12 of the respondents’ brief that the appellant did not cross examine on or contradict the evidence by the respondents on their entitlement to general damages. Learned counsel in conclusion . urged this court not to interfere with the awards made.

Before I go any further, I shall pause, for a comment or, to dispose of certain of the false impressions, with respect, to the respondents’ counsel. A good starting point to make my comments intelligible is to refer firstly to Exhibits C and CI.

These are letters headed:-

“Notice of Arrival of Documentary Collection”. Part of either Exhibit by the appellant to the respondents reads: “Drawer – MOE & Stoll Inc.

Date of Bill – 29/11/82.”

The letter (Exhibit F) to which learned counsel referred in page 6 of the respondent’s brief is a reply to the respondents’ letter dated, “10th February, 1983”, (Exh. E)

“Stop of payment on letters of credit Nos.

It just remains for me to say that the letter(Exhibit E) to which Exhibit F was a reply demonstrated the want of knowledge of the respondents and/or the counsel, with respect, to the duty of an issuing bank in the law of International Trade when letters of credit (Irrevocable or confirmed better mean the same thing). I had already dealt with this aspect above. See Paget’s Law of Banking 8th edition page 644 (supra). The above disposes of the matter wholly and entirely. So, cadit quaestio.”

The main wicket of the respondents’ counsel’s submission indeed his fire power was “Estoppel by conduct” submitted upon with much vehemence but without bitterness. Again, I endeavoured to touch on this aspect of the case earlier on, perhaps imperfectly. I dwelt in some detail on the irrevocable letters of credit opened by the appellants on behalf of the respondent, qua agents for the respondents, in the business of importing those drycleaning equipment. I did, in some detail, try to set out, in extenso, the undertaking executed by the 2nd re-spondent, Osezuah & Co. (Nig) Ltd. These undertakings were endorsed on the reverse side of each of the irrevocable letters of credit. The question now is: was the 2nd respondent not bound by these undertakings?

Arts. Of course, it was. Do those undertakings not operate as an estoppel against the 2nd respondent?

Arts. Of course the quick answer is, capital Yes.

At the risk of a repetition the 2nd respondent is estopped by his undertaking that:-

“I/we agree that my/our liability to you in respect of each draft drawn under the credit shall not be discharged until the Central Bank of Nigeria provide you with the requisite foreign currency………………….

I/we hereby authorise you to debit my/our account with all sums which may become due to you in respect of this credit including your commission of………………….

Could the 2nd respondent “run away”, resile from these? Again, the answer is a capital and short, unhesitating No. Afterwards, what is an estoppel? It is a rule of the law of Evidence. It is no other than a bar to testimony. To use the language of naval warfare an estoppel must always be either a mine layer or a mine sweeper, it can never be a capital war head. As put by Littleton S. 667 –

“A man may be estopped or an estoppel may operate because a man’s act or acceptance stoppeth or closeth up his mouth to allege or plead the truth.”

To complete the circle, I now refer to Exhibit M., also referred to by the counsel for the respondent. It (Exhibit M) from the Central Bank is in U.S. dollars. The amount therein reads –

“US dollars 7,236.00.”

I shall not stop here. No. Then came Exhibit 2 dated 23/2/88, it reads:-”Our letter of credit Numbers 37182, 40182 and 41182.” Now, it may be accepted as pleaded and given in evidence that the 2nd respondent is “a major drycleaning company”. But that cannot by any extension include or mean that the 2nd respondent is an expert, “peritue” in Banking or Accounts. It was pleaded that the account of the 2nd respondent was “wrongfully operated” and later submitted by counsel what there was “fictitious crediting and wrongful debitting of the 2nd plaintiff’s account.”

The question pertinent enough and asked by the counsel for the appellant becomes: But how was it established in evidence by evidence that the account of the 2nd respondent was so wrongfully debited or fiddled with? The onus, in my view, lay on the 2nd respondent to prove and establish its assertion by credible evidence. Sections 135 and 136 of the Evidence Act Cap. 112 Laws of the Federation.

They were not tendered, in evidence as evidence, in proof of the assertions, “BankTellers” to prove payments in, in liquidation of the respondent’s indebtedness to the appellant’s documentary financial credit.

Issues on the pleadings were joined on the alleged wrongful debiting and/or crediting to the 2nd respondent’s account. What was the evidence in this regard? It was contained in P. 66. Part of the evidence, in-chief by the defendant read: “The various debits and credits were as a result of the re-valuation of foreign currency that connects all imports as devested (sic) by Central Bank of Nigeria, at this period, the Central Bank of Nigeria was finding a realistic value for naira. The letter of credit, there is a clause in the letters of credit authorising the bank to credit or debit the account covering to the fluctuation in exchange rate. That form of undertaking is attached to the letter of credit Exhibit identification I and Exhibit identification 2”…………….„. The relevant foreign currency in respect of this transaction was ordered on 23/2/88, this is the approval tendered, admitted Exhibit 2.

Continuing at page 66, the witness further stated inter alia:-

“and at 22/4/87 the balance on plaintiff account was the sum of N59,580.82k and the plaintiff was written by letter Exhibit T dated 23/4/87.”

Sunday Umakaye Roman was however cross-examined. In an answer to a question by the counsel, the witness replied in page 67 of the record inter alia:-”It is true that all the alleged debts owed by the plaintiff arose out of the documentary credit transaction. I have Exhibits 1c.2 to lc.30……………………….. The amount owed by the plaintiff was not due mainly to interest charges but due to a short fall for re-valuation exercise as ordered by the Central Bank. It is correct that if not for the re-valuation exercise carried out by the defendant the debit notes Exhibits J – J4 could not have answer.”

How did the learned trial Judge handle and treat the evidence as led? He wrote on page 94 of the record inter alia:-

“In view of my preceeding remarks by the wrongful act of crediting and debiting the 1st plaintiff’s account, the defendant committed a breach of various duties of care and skill owed to the plaintiffs by reason of its negligence and also by reason of the contractual relationship existing between a banker and its customer.”

Now, before I record my conclusion, I ask this pertinent question:

Ql.        Was there any contractual relationship between Union Bank of Nigeria Plc, qua defendant at the trial and Simon Osezuah, share-holder and Managing Director to the Osezuah Co. Nig. Ltd. qua 2nd plaintiff at the trial?

Q2.      Was the Issuing bank, id est, the appellant herein an Agent to the 1st respondent in the international trade involved in the opening of the Irrevocable Letters of Credit?

Q3.      Did the appellant as the Issuing Bank owe any duty of care to the 1st respondent in the transaction? And lastly, was it the 1st respondent’s account that was being operated during the period of the international trade with MOE & Stoll International Inc. of the United States of America.

My quick and short answer to each and all the above posers by me is capital No. Besides, the irrevocable letters of credit, the undertaking therein, were executed by the 2nd respondent. From the state of the pleading, the negligence – id est, a breach of a duty of care owed by one party to another was not made an issue at the trial. Neither was the crediting of the account of Simon Osezuah, qua plaintiff, whether negligently or otherwise an issue on the pleadings between the parties. And a trial court has a duty to confine itself to issues raised on the pleadings by the contesting parties.

It is the duty of trial courts to limit themselves solely and strictly to issues raised by the parties on their pleadings, and no more. To do otherwise, might well result in a denial of justice to one or other of the contesting party. And this will amount to a miscarriage of justice. National Investment & Properties. Co. Ltd. v. Bank of east Africa Ltd. (1962) 1, All NLR (Pt.4) 556; Kalio & Ors. v. Kal io (1975) 2 S.C. 15.

The above apart, it is worthy of note that a word be said of and about section 149(c) of the Evidence Act Cap. 112 Laws of the Federation 1990. It raises a presumption of validity in favour of those performing public duty. And unless I be wrong the appellant in the operation of the account of the 2nd respondent was operating a public function or duty in relation to the international trade and the opening of the irrevocable letters of credit. Therefore in the evaluation of the evidence of the parties the legal presumption in the favour of any party must be taken into account unless and it be displaced or rebutted. But did the learned trial Judge consider the legal presumption in the favour of the appellant before arriving at his conclusions? Put the other way round did the respondents displace or rebut the presumption? However the posers be considered in my humble opinion, the answer is in the negative. The finding by the learned trial Judge above recited in my view, is perverse.

In my view of the law as it stands, having considered the submissions by the counsel on the arguments, and applying the principle thereto, the conclusion, I have -readily come to, is that Issues Nos. 3.1, 3.4 and 3.5 taken together ought, each or all, to be resolved in the favour of the appellants and, eo ipso, against the respondents. The grounds of appeal from they arise therefore, succeed.

I had above said something of or about the tort of Detinue; may be imperfectly. But I shall resist repeating myself again and again. The question pertinently arising to be asked to be firstly answered, therefore becomes this: Was or is the appellant wrongfully detaining or refusing to surrender up the title deeds given it by the 2nd respondent to secure the overdraft facility involved in the international business transaction of the 2nd respondent and the opening of the irrevocable letters of credit on its behalf by the appellant as its agent? And germane to the above, assume argumento, (and I have not so said it) that the retention be wrongful, what is the proper quantum of damages recoverable? And unless there be an “injuria”, discussions of “remedium” is worthless and idle.

However, for’ convenience, I shall firstly remind myself that in an action in Detinue the judgment may take one of these three forms. It may take the form of the value of the chattel as assessed and damages for its retention or (ii) the return or recovery of its value assessed and damages for its retention of (iii) the return of the chattel and damages for its detention. In Rosenthal v. Anderson & Ors. (1946) 1 K.B. 374, the Court of Appeal (England) expressed itself at page 377 inter alia: – “In an action for detinue the value of the goods claimed but not returned ought, in our judgment to be assessed as at the date of judgment or verdict. But see also McGregor on damages 13th Edition, paragraph 218 et sequentes.

Now, I searched unsuccessfully the record of appeal to see any evidence that the Title Deeds were either destroyed in one form or other, or lost and could not be located or traced. No. There was, however, some evidence by the respondent in page 25 of the record that demands were made for the return of the deeds from the appellants. These demands were in writing by the solicitor. See Exhibit S, dated 1/7/87. The third paragraph of Exhibit S, inter alia – read:-

“Our further instruction is formally to demand our client’s title deeds in the bank’s possession…………….. Our client require (sic) the Otle deeds urgently to negotiate a loan/overdraft facility.”

It (Exhibit S) was followed by Exhibit W. It (Exh.W) was dated 717187. It contained the following expression

“We have been informed ………………. that the unlawful detention of its Title Deeds would deprive it of expected profits of over thirty thousand naira per annum” a piece of evidence confirmed by the feasibility report made by Patrick Kwelom (p.w.2). And as Mrs. Obazee Date Blessing testified; “since the collateral was one of the most important document (sic). The Allied Bank does not allow the taking of title deeds as a collateral on a second mortgage as it is clumsy and cumbersome.”

But the version of the evidence by the appellant in this regard is contained in page 66 of the record. Part of the evidence by Sunday Umakeyo Romun read:

‘“the plaintiff asked for the release of his documents but this could not be done as the plaintiff was still indebted to the bank. This is .   by the contents of Exh.O as at the close of business in April, 1987; in Exhibit P the bank informed the plaintiff of their inability to release the document because of their indebtedness; after the defendant had written Exh. P; they were no longer obliged to release the documents. The plaintiff has not paid back to the defendant the amount he is owing and the defendant is not obliged to release the documents.”

Now, I had earlier on, in the judgment referred to Exhibit T dated the 23/4/ 87 informing the 2nd respondent of its indebtedness because –

“We must emphasise that the re-valuation of your letters of credit was the result of a Central Bank of Nigeria directive on Bills they had accepted but awaiting releases of cover…………………….. .

Then followed the letter Exhibit P dated 21/10/87, headed “Release of Deed of Conveyance Dated 2813177 etc”. Part of Exhibit P read:-

“We are writing further to our letter of the 30th September. 1987 as . the outstanding overdraft has not witnessed any reduction since we wrote aforesaid letter. There is really no reason for us to hold fast to any security if the account secured has been fully settled. It is rather unfortunate that your current account is still overdrawn. Present balance is N9.760 with interest accruing daily while the documentary credit liability is yet to be discharged…………..”

Now, to Exhibit Q:

It was made on the 30th September, 1987. It is headed: “Banking facilities” Part of Exhibit Q read:-

“We refer to your letter dated 30th August 1987 and regret our inability to release your title deeds held by us as security for your liabilities in our books.

Although, your New Nigerian Bank Ltd. cheque No. BB/ 1644372 dated 1st July 1987 for the sum of N5,815.83 (Five thousand eight hundred and fifteen naira, eighty-three kobo) has since been cleared and proceeds applied as part reduction of your liability, the balance of your accounts as at close of business yesterday are-

O/D- N9,759.82 D/C- N49,831.00 Total    –           N59,590.82 (Fifty-nine thou-sand, five hundred and ninety naira, eighty-two kobo). Interest accruing…………………………..

Meanwhile, the issue of releasing your title deeds is being handled by our Legal Department and we shall let you know of our action in due course.”

Now, the old adage says “one must firstly be honest before he becomes charitable”. These title deeds were given as a security to secure the respondents’ indebtedness to the appellants. Before the indebtedness be fully liquidated, ought the bank return the deeds, al low the respondents’ indebtedness to stand “floating” unsecured? And who suffers for it and who stands to gain?

I had earlier touched on the principle, Mogaji v. Odofin (supra) and Ss. 135 and 136 of the Evidence Act. I shall not go over these again. But suffice it to say immediately that it was or is the respondents who were or are asserting that they were not indebted to the appellants in any amount and, eo ipso, are entitled to the return to them of the title deeds. And who asserts proves his assertion.

Now did the teamed trial Judge hand the evidence of the wrongfulness or otherwise of the retention of the title deeds, if at all he did, before he wrote as he did at page 94 reproduced above by me or afterwards? Let it however be noted now and here that both Exhibits P and Q came after Exhibits Sand W respectively. Did the trial Judge make any finding that the appellants were holding the title deeds because of the respondents’ indebtedness unliquidated fully put in other words, did he make any finding that the respondents were not owing the appellants any money at all?

Nowhere in the record did he make any such vital fording. And that I hold it was essentially due to the posture and stance he, with respect, took rather wrongly and in error when he wrote as he did in page 94 of the record. I had earlier on reproduced it while considering the earlier issues. Needless repeating myself again and again. On the same grounds as I held above, I do also hold that there occurred a mis-carriage of justice. The learned trial had already, baselessly though, held that the appellant was wrongly debiting and crediting the 1st plaintiff and committed a breach of various duties of care and skill owed to the plaintiffs..

But could the award of N30,000 per annum for prospective or estimated loss of profit, stand? The principle of law established in or by Hadley v. Baxendale is as good a law in 1843 as it is today in 1996 a period of over one hundred years. Was the award of N30,000 per annum as estimated loss of profit because the title deeds were not returned (wrongfully or otherwise is not the case now)to enable the respondents obtain a loan from another bank directly flowing from such a refusal? This is not a matter of belief or disbelief. No. It is a matter of deduction of an inference. Assuming the detention of the title deed by the appellants after demands were wrongful and am not and have not said so) is the award of N30,000 per annum from 1987 till judgment not too remote? See McGregor: On Remoteness of Damages. The awards, in my opinion, ran counter to the principle laid down in Hadley v. Baxendale (supra) all the facts of the case taken into consideration.

And would your Lordships’ Court, ever, allow these awards to stand? I, most certainly, think not. In my judgment they are baseless in law or at Law. Judged from the evidence placed before the trial court. Put rather nakedly but without disrespect to the learned trial Judge the finding for or in the awards are perverse. In the final analysis, in my judgment Issue No. 3.2 ought to be resolved in the favour of the appellants. And I do hereby resolve it against the respondents. The ground of appeal from which the issue is distilled therefore succeeds.

In the result, all the grounds of appeal succeed. The judgment by A.A. Agun, J. in suit No. B/386/87 on the 10/12/93 is hereby set aside accordingly. The appeal, therefore, succeeds. There shall be costs assessed and fixed at N2,000.00 in the favour of the appellants and against the respondents.

IGE, J.C.A.

I have had the opportunity of reading in advance the judgment just delivered by me learned brother Nsofor J.C.A. I agree with him that this appeal succeeds. I adopt his reasonings and conclusions as mine.

I also set aside the judgment of Agun J. delivered on 10/2/93 in suit No. 8/386/87 with costs assessed at N2,000.00 in favour of the appellants.

AKINTAN, J.C.A

I had the advantage of reading the draft of the lead judgment prepared by my learned brother, Nsofor, J.C.A I entirely agree with the conclusion he reached therein that the appeal should be allowed. I also allow the appeal and abide by all the consequential orders made therein, including that on costs.

Appeal allowed.

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