PROF. THEOPHILUS ADELODUN OKIN & ANOR v. MRS. AGNES IYEBA OKIN
(2016)LCN/8438(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2016
CA/IL/55/2015
RATIO
PARTNERSHIP: MEANING AND NATURE OF PARTNERSHIP
Partnership is a legally recognized organizational structure, an association of a business owned by two or more people who share the profits and are personally liable for all business debts. In partnership there may be a formal agreement, which may be expressed or implied, between the parties of a partnership to endeavour to engage in business and how it is to be conducted, such as profit and loss sharing, capital contribution or more. In other words partnership is a voluntary association or coming together of two or more persons who jointly own and carry on a business for profit. See: Alade v. Alic (Nig.) Ltd. (2010) 19 NWLR (Pt. 1226) 111; see also: Black’s Law Dictionary 9th Edition.
A joint venture akin to partnership is a business undertaking by two or more persons engaged in a single defined project. The essential ingredients are:
(a) express or implied agreement
(b) a common purpose
(c) shared profit and losses
(d) each member enjoy equal voice in controlling the project.
See: Black’s Law Dictionary PER UCHECHUKWU ONYEMENAM, J.C.A.
EVIDENCE: ON WHOM LIES THE BURDEN TO PROVE ALLEGATIONS MADE IN A PLEADING
By the settled principle of law stemming from Sections 131 and 132 of the Evidence Act, 2011 a party who makes allegations in a pleading has the legal obligation to produce evidence to substantiate them as part of his case. It is not sufficient for such a party to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading, although he may lean on any favourable evidence of the opposing party to strengthen his case. This is based on the legal stand that cases are won on the strength of credible evidence adduced by the party who asserts the position of a fact and or claims the existence of those facts. See: E.D. Tsokwa & Sons Company Ltd. v. Union Bank of Nigeria Ltd. (1996) 10 NWLR (Pt. 478) 281; Oraekwe & Anor. v. Obiora Chukwu & 18 Ors. (2012) All FWLR (Pt. 672) 1677. PER UCHECHUKWU ONYEMENAM, J.C.A.
EVIDENCE: DO ADMITTED FACTS REQUIRE FURTHER PROOF
However, it is important to note that when averments in pleadings are admitted, no evidential poof of the facts will be required. Calling a witness to testify to the fact already admitted will amount to legal proof surplusage which will not really be necessary owing to the principle, that admitted fact is taken as established and forms part of agreed facts of the case. See: Egbunike v. A.C.B. Ltd. (1995) 12 NWLR (Pt. 375) 34; Efet v. INEC (2011) 7 NWLR 423. PER UCHECHUKWU ONYEMENAM, J.C.A.
PARTNERSHIP: EFFECT OF DISSOLUTION OF A PARTNERSHIP
As for the reliefs sought for and granted in favour of the Respondent. I will take it from the incidents of dissolution of partnership. Where as in this case, a partnership is for a period undefined, any of the parties can give notice or approach the Court for the dissolution of the partnership provided the right is exercised bonafide, not for the purpose of taking undue advantage of the business of the partnership. Whether such dissolution is by reason of the state of agreement of the partnership or by Court decree each party is entitled to be indemnified to the tune of expenses he had rightfully incurred on behalf of the partnership in the ordinary course of its business or for the preservation of the partnership. Then again every partner is in law jointly and severally liable with other co-partners for all debts and liabilities of the partnership. Consequently, I will add, each member unless there is a formal agreement stating otherwise, will be entitled equally to the sharing of both the physical or liquid assets of the partnership. See: Yesufu & Anor. v. Kupper Int. N.V. (supra); Halsbury’s Laws of England 2nd Edition at pages 436 and 460.
To this extent therefore since the partnership in question was implied, I hold that the learned trial Judge was right when in his judgment he decreed that the Respondent and 1st Appellant share equally the capital and profits of the partnership since there was no implied evidence to the contrary. PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. PROF. THEOPHILUS ADELODUN OKIN
2. MR. OMOPE CORNELIUS OKIN Appellant(s)
AND
MRS. AGNES IYEBA OKIN Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Ilorin Division, presided over by Honourable Justice A. O. Faji delivered on the 24th day of February, 2015. In the said Judgment, the learned trial Judge granted all but one of the reliefs claimed by the Respondent herein.
The said judgment is the subject of the four grounds of appeal filed by the Appellants herein.
The Appellants’ case is that at all material time before the institution of the case at the trial Court, the 1st Appellant was the husband of the Respondent who was in the service of running the two educational institutions to wit: Kinsey Academy and Kinsey College of Education for the 1st Appellant. The administration of the Educational institutions under the head of the Respondent was at a time challenged on financial obsession of the Respondent which accounted for her disengagement by the 1st Appellant from the service of the two Educational institutions.
The Respondent challenged her disengagement from the service of the institutions on the ground that, the schools were ran under a partnership
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arrangement with the 1st Appellant. She therefore called for a dissolution of the partnership, winding down the affairs of the two Educational institutions, the liquidation of the assets and liabilities of the schools and ultimate sharing of the liquidated assets equally between her and the 1st Appellant.
The Respondent’s case is that, she was a staff of the Uthman Dan Fodio University Sokoto when she met 1st Appellant and they got married in December, 1994. After their marriage in 1994, the Respondent retired from the service of Uthman Dan Fodio University and relocated to Ilorin to co-found the Kinsey Academy with the 1st Appellant between 1997 – 1999 when the school took off.
?The Respondent invested all her retirement benefits and savings in the establishment of Kinsey Academy as well as transferring the furniture of her former private school in Sokoto for the take off of Kinsey Academy. On his part, the 1st Appellant donated his building consisting of a block of two flats located on eight-plots of land. The academy made progress and more properties were acquired from the neighbourhood for expansion. Both 1st Appellant and Respondent were
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joint signatories to the school account. Between 2008 and 2012 the Respondent and 1st Appellant applied for and got approval to establish Kinsey College of Education which took off in 2012. On 12th May, 2003, the Kinsey Academy was registered as a partnership business under the Companies and Allied Matters Decree (1990) with the Respondent and 1st Appellant as partners.
?The running of the schools was carried out by the Respondent while the 1st Appellant took charge of infrastructural and physical development of the schools. Things went on well until sometimes in 2012 when the 1st Appellant unilaterally decided to cede the school’s premises and structures for use to establish Grace Ownes University owned by Dr. Isaac A. Okin, a junior brother of the 1st Appellant based in, USA, to which the Respondent vehemently opposed and resisted. The disagreement between the 1st Appellant and the Respondent over the establishment of Grace Owens University on Kinsey school’s premises not only led to the purported dismissal of the Respondent from the Kinsey schools allegedly as Registrar, but also to the collapse of the marriage between the 1st Appellant and the
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Respondent. The Respondent subsequently challenged her purported dismissal and banishment from the Kinsey Academy and Kinsey College of Education, Ilorin before the Ilorin Division of the Federal High Court. That Court’s judgment in favour of the Respondent is the subject of this appeal filed by the Appellants.
The Appellants being dissatisfied with the judgment of the trial Court filed 2 Notices of Appeal. The original notice was filed on 9th March, 2015 and is at pages 512-514 of the record. The subsequent notice was filed on 13th April, 2015 and is found at pages 597 ? 600 of Vol. 2 of the record. The Appellants relied on the later notice filed on 13th April, 2015.
After briefs were evidently filed and served in consonance with the rules of the Court, the appeal was heard on 8th March, 2016. Mr. B. R. Gold who settled the Appellants’ brief appeared for the Appellants with Dapo Adekunle Esq., A. G. Oroyinyin Esq. and Emmanuel Asebiode. Mr. Gold adopted an amended Appellants’ brief filed on 26th October, 2015 but deemed properly filed on 28th October, 2015. He also identified and adopted their reply brief filed upon the receipt of
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Respondent’s brief on 1st March, 2016. He relied upon the receipts of Respondent’s brief on 1st March, 2016. He relied on both briefs as their argument in the appeal to urge the Court to allow the appeal. In the Appellants’ brief Mr. Gold distilled a lone issue from Grounds one, three and four. They abandoned Ground two of the Grounds of appeal.
A. O. Mohammed, SAN with Z. M. Ismail (Mrs.), Kamaldeen Quadri, Esq. and S. B. Iyiola-Usman (Mrs.) appeared for the Respondent. The Respondent’s brief was originally filed on 6th July, 2015 but sequent to the amendment of the Appellants’ brief, the Respondent re-filed her brief on 30th October, 2015. The Court however observed mistake in the refilling process and ordered the Respondent to yet re-file the brief properly. So now the learned Silk adopted and relied on the Respondent’s brief further re-filed on 24th February, 2016 as the Respondent’s argument in the appeal. He urged the Court to dismiss the appeal. In the said Respondent’s brief prepared by A. O. Mohammed, SAN, he adopted the sole issue raised by the Appellants for the determination of the appeal. I hereby also adopt the only issue for the determination
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of the appeal. Said issue is reproduced hereunder:
“Whether from the evidence and findings of the lower Court, the lower Court was right to have held that, the two educational institutions were a business owned by the 1st Appellant and the Respondent jointly and to have granted the reliefs sought”
SUBMISSIONS OF COUNSEL ON ISSUE
Mr. R. B. Gold submitted that the learned trial Judge was wrong to have solely relied on the fact that the 1st Appellant did not present any document to contradict Exhibit A to hold that Kinsey Academy is not solely owned by the 1st Appellant. He referred to the holding of the trial Judge at page 456 of the record. Mr. Gold argued that there was uncontradicted and credible evidence that Kinsey Academy was established in 1997 while the Respondent joined the administration of the school in 2001. He referred to page 437 of the record.
The learned counsel submitted also that cases are won on the credible evidence of the party who asserts the positive position of a fact. He relied on Section 135 (1) of the Evidence Act; Bona Orakwe & Anor. v. Obiora Chukwuka & 18 Ors. (2012) All FWLR (Pt. 612) 1677;
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Ayaru v. Mandilas Ltd. (2007) All FWLR (Pt. 382). It was the learned counsel’s further contention that no matter how strong the marital tie between the 1st Appellant and Respondent could be, same cannot translate to the fact that all properties owned by either of the parties are jointly owned except with clear instrument and or intention to that effect. He maintained that the issue of joint ownership and partnership is a special contract and the Court only interprets any instrument to that effect made by the parties voluntarily. He referred to: Gabriel Adekunle Ogundepo & Anor. v. Thomas Eniyan Olumesan (2012) AII FWLR (Pt. 609) 113; Akinkumi O. Alade v. Alic (Nigeria) Ltd. (2011) All FWLR (Pt. 563) 1849.
The learned counsel faulted the holding of the trial Court at pages 451-452 of the record. He argued that cordiality in relationship between the 1st Appellant and Respondent cannot in law be the basis of finding that there existed partnership between them. He cited: Alhaji Ali Mohammed Kachia v. Garba Hadi (2012) All FWLR (Pt. 650) 1403.
Mr. Gold while conceding that partnership could be inferred argued that the learned trial Judge did not
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abide the details of partnership established by parol evidence as espoused in the case of Mathias Sunday Ezejesi v. Philip Ikechukwu Ezejesi (2010) All FWLR (Pt. 517) 647.
It was further contended for the Appellants that Section 41 of the Kwara State Partnership Law is not applicable as the Respondent did not disclose nor discharge the onus of placing before the trial Court the assets and liabilities of the Institutions as well as the partnership arrangement. He submitted that the Respondent’s claim on the assets and liabilities of the alleged partnership is not only vague but amounts to placing something on nothing. He cited: U.A.C. v. Macfoy (1961) 3 NWLR 14; Ayomide v. Koforiji (2007) All FWLR (Pt. 362) 196.
He urged the Court to fault the decision of the trial Court and hold same perverse; resolve the issue against the Respondent and set aside the decision of the trial Court.
In answer to the Appellants’ argument at paragraphs 5.00 to 5.12 of their brief, A. O. Mohammed, SAN at paragraphs 4.3 to 4.7 highlighted the state of pleadings, oral and documentary evidence before the trial Court upon which the case now subject of this appeal
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was decided. He submitted that a dispassionate scrutiny of pleadings and evidence before the Court clearly shows that the Appellants offered no defence, oral or documentary to the Respondent’s case and claims. As to the effect of such lack of evidence on the Appellants’ side of the imaginary scale, the learned senior counsel cited: Obmiami Brick Broadline Enterprise Ltd. v. Monetary Maritime Corporation (1995) 9 NWLR (Pt. 417) 1. He urged the Court to uphold the findings of the trial Court at pages 447-449 Vol. 2 of the record.
The learned senior counsel contended that even without Exhibit A, that the Respondent placed before the Court overwhelming, unchallenged and uncontroverted credible oral and documentary evidence which the Court evaluated before arriving at the conclusion that Kinsey Academy is jointly owned by the Respondent and the 1st Appellant. He invited the Court to pages 450-458 Vol. 2 of the record.
On the case of Ezejesi v. Ezejesi (2010) All FWLR (Pt. 517) 547; relied on by the 1st Appellant, Mohammed, SAN at paragraph 4.29 outlined evidence of partnership. He submitted that the showcased pieces of evidence and the others on
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record leaves no one in doubt that the 1st Appellant and the Respondent were partners and co-owners of the Kinsey Academy and Kinsey College of Education and satisfied the requirements as in the case of Ezejesi v. Ezejesi. He also referred to: Nwankwo v. Nwankwo (1995) SCNJ 44.
The learned Silk urged the Court to resolve the issue in favour of the Respondent and uphold the decision of the trial Court.
RESOLUTION OF ISSUE
“Whether from the evidence and findings of the lower Court, the lower Court was right to have held that, the two educational institutions were a business owned by the 1st Appellant and the Respondent jointly and to have granted the reliefs sought”
Partnership is a legally recognized organizational structure, an association of a business owned by two or more people who share the profits and are personally liable for all business debts. In partnership there may be a formal agreement, which may be expressed or implied, between the parties of a partnership to endeavour to engage in business and how it is to be conducted, such as profit and loss sharing, capital contribution or more. In other words partnership is a
10
voluntary association or coming together of two or more persons who jointly own and carry on a business for profit. See: Alade v. Alic (Nig.) Ltd. (2010) 19 NWLR (Pt. 1226) 111; see also: Black’s Law Dictionary 9th Edition.
A joint venture akin to partnership is a business undertaking by two or more persons engaged in a single defined project. The essential ingredients are:
(a) express or implied agreement
(b) a common purpose
(c) shared profit and losses
(d) each member enjoy equal voice in controlling the project.
See: Black’s Law Dictionary
The Appellants’ contention basically is that by the evidence before the Court oral and documentary, the Respondent who alleged that she was in partnership with the 1st Appellant in running Kinsey Academy and Kinsey College of Education could not show evidence of joint ownership in form of agreement or acts tending as such to convince the Court. The Appellants argued that Exhibit A was not enough to prove said partnership and as such the learned trial Judge in line with the Court’s decision in Ezejesi v. Ezejesi (2010) All FWLR (Pt. 517) 647. See: paragraphs 5.04 and 5.15 of the
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Appellants’ brief.
By the settled principle of law stemming from Sections 131 and 132 of the Evidence Act, 2011 a party who makes allegations in a pleading has the legal obligation to produce evidence to substantiate them as part of his case. It is not sufficient for such a party to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading, although he may lean on any favourable evidence of the opposing party to strengthen his case. This is based on the legal stand that cases are won on the strength of credible evidence adduced by the party who asserts the position of a fact and or claims the existence of those facts. See: E.D. Tsokwa & Sons Company Ltd. v. Union Bank of Nigeria Ltd. (1996) 10 NWLR (Pt. 478) 281; Oraekwe & Anor. v. Obiora Chukwu & 18 Ors. (2012) All FWLR (Pt. 672) 1677.
However, it is important to note that when averments in pleadings are admitted, no evidential poof of the facts will be required. Calling a witness to testify to the fact already admitted will amount to legal proof surplusage which will not really be necessary owing to the principle, that
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admitted fact is taken as established and forms part of agreed facts of the case. See: Egbunike v. A.C.B. Ltd. (1995) 12 NWLR (Pt. 375) 34; Efet v. INEC (2011) 7 NWLR 423.
The state of the pleadings, oral and documentary evidence before the trial Court is summarized hereunder:
The Respondent’s statement on oath which she adopted at the hearing of the case on 8th July, 2014 is as set out at pages 17-26 of Volume 1 of the record. It is of 51 paragraphs. The said Respondent’s statement on oath contains evidence in proof of facts pleaded in her statement of claims of fifty paragraphs at pages 4-15 of Volume 1 of the record. The Appellants’ amended statement of defence and 1st Appellant’s statement on oath are at pages 176-181 and 154-155 respectively of volume 1 of the record. The Respondent further filed a reply to the Appellant’s amended statement of defence and an additional statement on oath both of which can be found at pages 283 to 288 of volume 1 of the record. The additional statement on oath was also adopted at the hearing on 8th July, 2014. (See page 357 of volume 1 of the record).
At the hearing before the trial Court, the
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Respondent tendered Exhibits A-Z while the Appellants tendered Exhibits AA-JJ. Copies of Exhibits A-Z tendered by the Respondent can be found at pages 605-803; and pages 862-876 of volume 2 of the record. Copies of Exhibits AA-JJ tendered by the Appellants at the hearing are at pages 804-860 of volume 2 of the record.
?From the state of pleadings summarized above, it will be observed that the Respondent’s statement of claim is of 50 paragraphs while her statement on oath is of 51 paragraphs. On their part, the Appellants’ statement of defence is of 72 paragraphs while 1st Appellant’s statement on oath is of 11 paragraphs. This sends fearful and legal suicide warning. The fear is as result of the fact that a statement on oath is the evidence to prove the averments in pleadings. While pleadings do not contain evidence but facts, the statement on oath which should contain all necessary evidence to support and prove the averments in pleadings should naturally be more elaborate and all embracing by having more paragraphs to cover the field. This is more worrisome owing to the fact that pleading is a mere notice which can never substitute for the evidence
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required to proof the facts pleaded. Unless and except a pleaded fact is admitted, or a party through thorough and skillful cross examination discredits the case of the other party he is bound to lead evidence to prove the facts in his pleadings. Thus, where a party has overwhelming pleadings that is not supported by evidence through adequate statement on oath, or evidence elicited through cross-examination; the averments in the pleadings will amount to a worthless noisy cymbal. See: Obmiami Brick Ltd. v. ACB Ltd. (1992) 3 SCNJ 1.
What I am labouring to put forth in relation to the instant case will be demonstrated by examining the pleaded facts in the Appellants’ statement of defence alongside 1st Appellant’s statement on oath on one side; and the Respondent’s statement of claim and her statement on oath on the other side; vis–vis the Respondent’s attempt to prove her case that she was a joint owner of the two schools with the 1st Appellant.
?At paragraph 8 of the Respondent’s statement on oath she a gave evidence that the school was registered with the Corporate Affairs Commission on 12th May, 2003 with the 1st Appellant and herself as
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joint owners; she tendered Exhibit A. At paragraph 9 and 10 of her statement on oath she deposed that to facilitate the take off of the school, the 1st Appellant donated his building located on 8 plots of land while she brought over one million naira cash. At paragraphs 11 and 12, she gave evidence of purchase of extra 23 plots of land and another property opposite the school which was developed for the use of the school with proceeds from the school. The properties that were acquired were executed in the names of both the 1st Appellant and the Respondent as owners. The school’s account was also maintained in the names of the 1st Appellant and the Respondent. The Respondent equally gave evidence that the name Kinsey was Coined from 1st Appellant’s surname ? Okin and her maiden name – Bossey. To ensure rapid growth of the schools; the Respondent doubled as the Registrar and proprietress while the 1st Appellant was the proprietor cum provost. The day to day running of the school was done by the Respondent while the 1st Appellant took charge of infrastructural and physical development of the schools. This Respondent’s evidence which span paragraphs 2, 3 –
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12 of her statement on oath was not contradicted as those paragraphs were not denied neither did the Appellants through cross examination discredit the Respondent on this line of evidence.
The Appellants pleaded that the schools were owned by the 1st Appellant alone but did not support the fact with evidence under oath as to how he came to own the school. Also the averment that the Respondent did not contribute financially to the formation, registration and running of the schools was bereft of legal evidence which the trial Court could rely on to make his decision. Although the Appellants put paragraphs 8 and 9 of the Respondent’s statement of claim in issue at paragraph 23 of Appellants statement of defence but yet; there was no evidence in the 1st Appellant’s statement on oath to support the averment of their paragraph 23 or any other part of their pleading in challenge of Respondent’s paragraphs 8 and 9. The above is the position of the evidence adduced by the Respondent central to the determination of whether the schools were owned by the 1st Appellant alone or jointly by the Respondent and 1st Appellant. The learned trial Judge painstakingly
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examined the evidence placed before him in a more detailed and thorough manner that it is difficult for me to fault his evaluation and findings. I adopt the learned trial Judges evaluation and findings at pages 445 – 449 of the Record as mine. I will also examine some of the exhibits tendered by the Respondent in support of her oral evidence in prove of the fact that she was a co-owner of Kinsey Academy and Kinsey College of Education with the 1st Appellant. Exhibits A, 1, J, K and M are most relevant and will suffice to show case the evidence the learned trial Judge acted upon.
Exhibit A is corporate Affairs Commission application form and Certificate of Registration. The 1st Appellant as provost and the Respondent as Registrar applied as Partners for the registration of business name – Kinsey Academy to operate schools, Colleges, Architectural consultancy services. Consequent upon this application, Kinsey Academy was registered on 12th May, 2003 with general nature of business – “operates Schools, Colleges, Architectural consultancy services” and with signatures of all partners in the firm as – “T. A. Okin and A. I. Okin”. These partners are without
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dispute the 1st Appellant and Respondent respectively.
In Exhibit I (Kinsey Academy; 2008 Bulletin) at pages 642 and 653, the Respondent was referred to as the Proprietress/Registrar; and proprietor respectively. At page 654, under Kinsey Academy Staff schools, it is written “Kinsey Academy College is owned by Arc. (Prof.) T. A. Okin (Proprietor) and his wife Mrs. Agnes S. I. Okin Nee Bossey, (Proprietress), a Chief Nursing Officer (Rtd.), Sociologist, Administrator and Educationist.”
Exhibit J (Kinsey College of Education florin, Bulletin 2011) at page 760 the Respondent was referred to as Proprietress/Registrar of Kinsey Academy. At page 772 under the title “Profiles of Kinsey Academy Sponsors/promoters, you have:
“Profile of Arc. (Prof.) Theophilus Adelodun Okin.
Registrars Profile; Mrs. Agnes S. Iyabode Okin”
Exhibit K (Deed of Assignment between Mr. Charles Omoyeni (Assignor) and Prof. Arc. T. A. Okin and Mrs. Agnes S. I. Okin (Asignee) at pages 779-785.
?Exhibit M (Letter of introduction). By Exhibit M, the 1st Appellant wrote introducing the Respondent to the managing Director, Abuja Leasing Company Ltd.
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Abuja. For emphasis I shall reproduce the letter at page 786 of the record.
“23/3/2011
The Managing Director,
Abuja Leasing Company Ltd.
Abuja
LETTER OF INTRODUCTION
I write to confirm .that Mrs. Agnes I. Okin is a proprietress of (Kinsey Academy) and Kinsey College of Education.
She is in good standing and a signatory to Kinsey Academy account at Zenith Bank.
She is reliable and trustworthy. She is highly recommended.
Attached are copies of the Kinsey Corporate Affairs Certificate, International Passport and 2 Passport photograph.
Thanking you for your kind consideration.
Yours faithfully
Sign
Arc. (Prof) Theophilus A. Okin”
The entire evidence of the Respondent on her co ownership of the schools highlighted above had no contrary testimony. This fact enhances the credibility of the testimony of the Respondent and makes her evidence cogent with high probative value. See: Ayanwale & 3 Ors. v. Atanda & Anor. (1988) 7 SC 1 @ 3-5. Again since the Appellants did not by their evidence contradict nor through cross-examination discredit the evidence of the Respondent
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as to the ownership of the school, the learned trial Judge was bound by the law to place the Respondent’s evidence on one side with no other evidence to be placed on the other side of the proverbial imaginary scale. The nature of the tilt of the scale is of crche knowledge. Therefore the onus of proof on the Respondent who asserted that she was a co owner of the schools became very minimal. See: Broadline Enterprises Ltd. v. Monterey Maritime Corporation (1995) 9 NWLR (Pt. 417) 1. The trial Court faced with these unchallenged evidence of the Respondent was permitted by the law to rely and act on the same. See: Chief F. S. Yesufu & Anor. v. Kupper International N.V. (1996) 5 NWLR (Pt. 446) 17; Obmiami Brick Ltd. v. A.C.B. Ltd. (supra).
?I have taken the pain to x-ray the exhibits which were tendered to support Respondent’s oral evidence and which were not in any way challenged or denied by the Appellants, to drive home the point that there is no other proper inference that could have been drawn but that the Respondent and 1st Appellant are co-owners of the schools. Also that apart from Exhibit A wherein the 1st Appellant and the Respondent
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registered Kinsey Academy in partnership to operate school business, other evidence both documentary and oral was adduced to that effect. Bearing in mind that partnership can be by formal agreement or deduced from conduct of parties in the way they carry out their business, it is my view that by inference and right deductions, all the elements as in the case of Ezejesi v. Ezejesi (supra) are present and exist in this implied partnership between the 1st Appellant and the Respondent in the operation of Kinsey Academy and Kinsey College of Education. Since the partnership which is solidly backed by Exhibit A is majorly implied, its terms cannot be found in a formal written agreement as is often time characterized by family business in Africa.
?From the foregoing, I hold that the learned trial Judge was legally duty bound and as such was right in admitting the unchallenged evidence of the Respondent in proof of partnership. He was also right when he found that the Respondent was not a staff of Kinsey Academy but a co-owner of Kinsey Academy and Kinsey College of Education. This view is firmed up by the fact that the Respondent was known and addressed by
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both Kinsey Academy and Kinsey College of Education respectively; and 1st Appellant himself as: “Proprietress”; meaning, a woman who owns a business or property. The fact that the Respondent and 1st Appellant were married did not in any way disadvantage the fact that partnership could be implied by the way and manner they carried on the business of the school. The law indeed recognises family partnership, which is where two or more persons who are related, voluntarily ancestors, lineal descendants, siblings, and any trusts established primarily for the benefit of such persons.
As for the reliefs sought for and granted in favour of the Respondent. I will take it from the incidents of dissolution of partnership. Where as in this case, a partnership is for a period undefined, any of the parties can give notice or approach the Court for the dissolution of the partnership provided the right is exercised bonafide, not for the purpose of taking undue advantage of the business of the partnership. Whether such dissolution is by reason of the state of agreement of the partnership or by Court decree each party is entitled to be indemnified to the tune of expenses
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he had rightfully incurred on behalf of the partnership in the ordinary course of its business or for the preservation of the partnership. Then again every partner is in law jointly and severally liable with other co-partners for all debts and liabilities of the partnership. Consequently, I will add, each member unless there is a formal agreement stating otherwise, will be entitled equally to the sharing of both the physical or liquid assets of the partnership. See: Yesufu & Anor. v. Kupper Int. N.V. (supra); Halsbury’s Laws of England 2nd Edition at pages 436 and 460.
To this extent therefore since the partnership in question was implied, I hold that the learned trial Judge was right when in his judgment he decreed that the Respondent and 1st Appellant share equally the capital and profits of the partnership since there was no implied evidence to the contrary. I have also considered the premise upon which the trial Court granted the other reliefs, I find the decision sound in law and I have no reason to interfere with the same.
In the circumstance therefore, I resolve the sole issue in favour of the Respondent.
?Accordingly, Appeal
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fails and is dismissed. I uphold the judgment of the Federal High Court, sitting in Ilorin, delivered on 24th February, 2015 in Suit No. FHC/ILCS/16/2014.
I award a cost of N100,000.00 in favour of the Respondent.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour to read in draft the judgment just delivered by my learned brother Uchechukwu Onyemenam, JCA. The sole issue for determination has been meticulously appraised and eloquently resolved in the judgment. I fully agree with the reasons for the conclusion that the appeal is bereft of substance and I hereby adopt it as mine.
I dismiss the appeal and subscribe to all the consequential orders made in the judgment inclusive of the one as to costs.
CHIDI NWAOMA UWA, J.C.A.: I read before now the draft of the judgment delivered by my learned brother UCHECHUKWU ONYEMENAM, JCA.
?I agree with the detailed reasoning and conclusion arrived at in holding that the appeal is without merit and the order dismissing same. I abide by the order made as to costs in the leading judgment.
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Appearances
B. R. Gold with him, Dapo Adekunle, A.G. Oroyinyin and Emmanuel AsebiodeFor Appellant
AND
A. O. Mohammed, SAN with him, Z. M. Isamai (Mrs.), Kamaldeen Quadri and S. B. Iyiola-Usman (Mrs.)For Respondent
