TANAREWA NIGERIA LIMITED & ANOR V. MUSA BALA ARZAI & ANOR
In The Court of Appeal of Nigeria
On Monday, the 12th day of July, 2004
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
- TANAREWA NIGERIA LIMITED
2. HASSAN ABDULRAHMAN Appellant(s)
- MUSA BALA ARZAI
2. ALSONS NIGERIA LIMITED Respondent(s)
SALAMI, J.C.A. (Delivering the Leading Judgment): In the High Court of Kano State of Nigeria, in the Kano Judicial Division, the plaintiff commenced an action by causing a writ of summons to be issued against first and second defendants on the undefended list. The plaintiff subsequently applied successfully for the third defendant to be joined to the suit. Consequently, the writ of summons was amended to read as follows:
“The plaintiff has been a regular supplier of raw skins to defendants before now.
Whenever supplies were made to the defendants by the plaintiff, payment for the supplies were made by the 1st defendant or the 2nd defendant, who is a sister company of the 1st defendant. Sometimes before the first defendant, went into receivership the plaintiff supplied raw skin to it worth N3,469,646.97, for which the plaintiff has not received payment till date, in spite of repeated demands to that effect and acknowledgment of the indebtedness by the 1st defendant. The 3rd defendant personally sold the skins supplied to the 1st defendant for tanning, when he took over as the receiver of the 1st defendant and the 3rd defendant has refused to pay the plaintiff for same. Whereof the plaintiff claims against the defendants jointly and severally the sum of N3,469,646.97 being the value of raw skin supplied to the first defendant by the plaintiff.” (Italics mine).
The plaintiff deposed to a further affidavit to justify the involvement or joinder of the third defendant. The basis for joinder averred are in paragraphs 17, 18, 19, 20 and 21 thereof which would be recited when appropriate in the course of writing the judgment.
Learned trial Judge listened to argument from all the counsel and in a reserved and considered ruling delivered on 17th February, 2000, found as follows in respect of the three issues canvassed in the suit-
“From the evidence made available before the court three issues for determination have arisen. The first one is, whether the plaintiff had actually supplied raw skins to the 1st defendant. Exhibit MB1 as a letter written of the 3rd defendant in which he (the 3rd defendant) admitted that the plaintiff has supplied the 1st defendant with raw skins and pleaded for time within which the price of the said skins could be determined. And since there is no allegation of forgery in respect of the said letter, the defendants cannot now be allowed to claim that the skins were never supplied.
The second issue is whether the skins supplied have formed part of the 1st defendant assets as asset is defined in Osborn’s “A Course Law Dictionary at page 33 as “property available for payment of debts”. In my view, the property as the raw skins cannot be said to have passed to the 1st defendant since the price has not been paid. Similarly in Seven-Up v. Abiola Bottling Co. (1996) 7 NWLR (Pt. 463) 714, and Adeboyega v. Awu (supra) the view was held that goods purchased on credit of a company could not come under the powers of a receiver and a party wishing to challenge the question of title to these goods would be free to do so. I am of the view therefore, that since the prices of the raw skins have not been paid the property in the goods cannot be said to have passed, to the 1st defendant. And since property has not passed the raw skins are not part of the 1st defendant’s assets.
The third issue for determination is that for the price of the raw skins. The 3rd defendant has admitted in exhibit MB1 that the raw skins were supplied to the 1st defendant and that he would soon work out the level of indebtedness of the 1st defendant. On his part the plaintiff’s counsel stated that the price of the skin was N3,469,646.97k, but failed to produce evidence to support the claim. It is true therefore that the price of the raw skins supplied by the plaintiff to the 1st defendant has not been made clear to the court.
Accordingly, and on the authority of O.23 r. 3(2) this aspect of the price of the raw skins is hereby transferred to the ordinary cause list to be determined without pleadings.”
As a result of the court transferring the action from undefended to the general cause list for the determination of the price of the skins supplied, the plaintiff called two witnesses. The defence failed to produce its witness or witnesses. The court then closed their defence after three unfruitful consecutive adjournments to enable them call their witness on 22nd June, 2000 and reserved its judgment to 4th July, 2000 when judgment was accordingly delivered, awarding the sum of N3,469,646.97 being the cost of animal skins purchased from the plaintiff on credit”. There was no award made against 2nd defendant.
The defendants were not happy with the two decisions and being aggrieved have appealed to this court on two notices of appeal in respect of which extension of time to apply for leave, leave to appeal and extension of time to appeal were granted on 5th February, 2001 by this court, subject to filing of the relevant notices of appeal in the court below within 21 days which order was duly complied with. The parties, in compliance with provisions of Order 6 of the Court of Appeal Rules, filed and exchanged briefs of argument, which were settled at appellants’, as well as first respondent’s briefs of argument. Second respondent did not file brief. At the hearing of the appeal, learned Counsel for appellants adopted and placed reliance on the appellants’ brief of argument prepared by Chief Ayodele, SAN dated 19th November, 2001 and deemed as properly filed and served on 28th January, 2002. Also learned Counsel for first respondent adopted and relied on that respondent’s brief dated 22nd July, 2002, and deemed as properly filed and served by order of court given on 5th February, 2003.
Both counsels merely adopted their respective briefs but did not elucidate on them except to call the attention of the court to authorities they had come across since the briefs were settled. Learned Counsel for appellant referred the court to cases 1, 2 and 3 on their list of additional authorities. The cases are set out immediately hereunder and are cited in respect of appellant’s issue 1:
i. Kadzi International Ltd. v. Kano Tannery Co. Ltd. & others (2003) FWLR (Pt. 184) 255.
ii. F.A. Akinbobola & Sons v. Plisson Fisko Ltd. & Others (1986) 4 NWLR (Pt. 37) 621; (1986) 5 CA (Pt. 1160) 70 – 71 and
iii. Peter Tiwell (Nig.) Ltd. v. Inland Bank (Nig.) Ltd. (1997) 3 NWLR (Pt. 494) 408.
On the other hand, the respondent referred to the case of Tanarewa (Nig.) Ltd. v. Plastifarm Ltd. (2003) FWLR (Pt. 185) 469, 470-5, (2003) 14 NWLR (Pt. 840) 355.
In the appellants’ briefs, issues calling for determination were identified. The appellants framed four issues as calling for determination in respect of the two notices of appeal filed. Issues formulated in the appellant’s brief of argument are;
“(i) Whether the trial court has jurisdiction over the claim of the respondent.
(ii) Whether the learned trial Judge was right in the conclusion he reached that the raw skins are not part of the assets of the 1st respondent.
(iii) Whether there was sufficient evidence before the court to prove the value of the skins supplied by the respondent to the 1st appellant.
(iv) Whether on the evidence before the court the 2nd appellant who was receiver of the first appellant can be held personally liable for the skins supplied to the 1st appellant.”
The respondent did not frame a separate issue for determination in this appeal. It merely expressly adopted appellant’s formulations.
In arguing the appeal, learned Counsel for appellant, after relating ground (i) of the notice of appeal relevant to the ruling delivered on 17th February, 2000, and ground (iii) of the notice of appeal on the ruling of 4th July, 2000, contended that the trial court has no jurisdiction over a matter touching on the operation of the provisions of the Companies and Allied Matters Act. Learned Counsel conceded rightly, in my view, that it is the plaintiff’s claim before the court, and not the defence, that would be considered to determine whether or not the court had jurisdiction. Learned Counsel for appellants then read the amended writ of summons as well as paragraphs 17 – 21 of affidavit in support and contended that they deal with the operations of the Company and Allied Matters Act. Learned Counsel argued that the amended writ of summons calls into question the activities of the second appellant as the receiver/manager of the first appellant. It was then submitted that the amended writ of summons bothers on the application of sections 390(1) and 394(1) of the Company and Allied Matters Act, Cap. 59 of the Laws of the Federation of Nigeria, 1990.
Learned Counsel for appellant then read paragraph 19 of the affidavit in support of the action brought under undefended list and submitted that it touches upon section 251(1)(e) of the Constitution which is in pari materiam with the provisions of section 230(1)(e) of the Constitution (Suspension and Modification) Decree No. 107 of 1993. The provisions of the Decree learned counsel contended was interpreted in the case of 7-Up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (1996) 7 NWLR (Pt. 463) 714, 744 – 745. Learned Counsel then, by way of interest, compared the case with the case of First Bank of Nigeria Plc. v. Jimiko Farms Ltd. & Another (1997) 5 NWLR (Pt. 503) 81, 93.
It is common ground that the jurisdiction of the court to entertain an action is predicated upon the writ of summons of the plaintiff in this case, the first respondent and no consideration will be given to the defence raised by the defendants the appellants herein. The position taken by the two parties is further reinforced by the Supreme Court decision in the Seven-Up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (2001) FWLR (Pt. 70) 1611, (2001) 13 NWLR (Pt.730) 469, 495 where the court per Onu, JSC stated thus:
“The law is sufficiently settled that in determining whether the plaintiff’s(respondent’s) action discloses any cause of action or the nature thereof, the court will necessarily restrict itself to the plaintiff’s/respondent’s statement of claim without recourse to the defendants’/appellants’ statement of defence vide Shell B.P. Ltd. & Others v. Onasanya (1976) NSCC 344 at 336, (1976) SC 89. See also Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt.81) 129.
In necessarily restricting itself to the statement of claim, the court is not obliged to consider seriatim all the averments in the statement of claim. It is sufficient that the court looks at same as a whole and/or refer to few averment that form the gravamen of the claim. Thus, the court below in the present case rightly, in my view, referred to the relief sought by the respondent (as contained in paragraph 19 of the statement of claim, which paragraph forms an integral part and in fact, formed the core of the respondent’s claim at the trial court). According to the court below “the respondent’s claim as averred in paragraph 19 of the respondent’s statement of claim which was reproduced earlier in this judgment, is a claim of conversion in tort”. I cannot agree more.”
It is, therefore, on the face of the plaintiff’s writ of summons and particulars of claim or statement of claim that the plaintiff offers material to the court whether it has jurisdiction or not. It is upon the statement of claim or particulars of claim that dates of cause of action could be garnered to decide, for example, whether an action is statute barred or not; or to determine whether due to one privilege or the other a party ought to stand trial or not; whether a subject matter is within the competence of the court or determine whether jurisdiction has been ousted by statute. See Yalaju Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (Pt. 145) 422, which has also confirmed this proposition of law.
It may be convenient, at this stage, to examine what the first respondents offered to the court below to vest it with jurisdiction to determine his case. The suit was brought on the undefended list under Order 23 rules 1, 2, 3 and 4 of Kano State High Court (Civil Procedure) Rules, 1988. There is, therefore, no statement of claim. What is available here are the writ of summons and the affidavit in support of the claim. I agree with the learned Counsel for appellants that the following paragraphs of the affidavit in support of the amended writ of summons is apt and pertinent.
“17. That the 3rd defendant is the receiver of the 1st defendant company.
18. That the 3rd defendant presides over and directs the affairs of the 1st defendant company.
19. That when the 3rd defendant took over as the receiver of the 1st defendant company he personally sold the skins supplied by me to the 1st defendant company for tanning.
20. That till date I have not received any payment for the skins sold by the 3rd defendant.
21. That the subject matter of this suit does not form part of the assets of the 1st defendant over which a debenture was credited.”
The claim as endorsed on the writ of summons reads as follows:
“Whereof the plaintiff claims against the defendants jointly and severally the sum of N3,464,646.97 being the value of raw skin supplied to the first defendant by the plaintiff.”
The above-quoted averments from the affidavit in support of the application for the suit to be treated under the undefended list as well as amended writ of summons, contrary to the submission of the learned counsel for appellants do not deal with operations of the Company and Allied Matters Act. The claim is accusing the second appellant of personally selling the skins he took to the first appellant for tanning without giving any consideration for the skins. The facts deposed to as well as the claim are alleging that conversion or purported purchase on credit of the goods when the prices had not been agreed upon. On either view the trial court has jurisdiction, contrary to the appellant’s contention, since the Federal High court, which the appellants’ claim has jurisdiction, cannot try a case of conversion. The allegation that the 2nd appellant personally sold the skins supplied to the first appellant for tanning and before price was fixed when he took over the management of first appellant as the receiver. It is averred in paragraph 19 of the affidavit in support of the application to place the matter on the undefended list as follows:-
“19. That when the 3rd defendant took over as the receiver of the 1st defendant company he personally sold the skins supplied by me to the 1st defendant company for tanning.”
I disagree with the submission of the learned Counsel for appellant that the allegation fell squarely within the provisions of section 251(1)(e) of the Constitution of the Federal Republic of Nigeria, 1999. The section of the Constitution reads as follows:-
“251(1) Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:
(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act.”
The averment recited above is charging the second appellant of conversion of the skin he delivered to the first appellant for tanning. The same averments could constitute the offence of criminal breach of trust against the appellants itself. Both allegations are criminal in nature and not civil causes or matter. The words of sub-section 1 of section 251 are clear. The jurisdiction of the Federal High Court is restricted to civil causes and matters. However, the first respondent is not pressing for a criminal charge. He is only claiming for the value of the goods, which appellants had dealt with in a manner inconsistent with his right with an intention to deny his rights or to assert a right contrary to his own rights. The goods had not formed part of the first appellant’s asset and he alleged that second appellant disposed of them in his personal and not official capacity. In the circumstance, the first respondent is entitled to bring an action in tort either to recover his goods or the value thereof. This is a cause of action over which any State High Court exercises jurisdiction. The Federal High Court consequently has no competence to investigate or try the matter. I am strengthened in this view by the case of 7-Up Bottling Co. Ltd. & Others v. Abiola and Sons Bottling Co. Ltd. (2001) 13 NWLR (Pt. 730) 469, where it was held that conversion is a tortuous act and a state high court has jurisdiction to entertain same. At page 508 of the report Ogundare, JSC said-
“I have read the statement of claim, particularly paragraphs 4, 7, 14 and 15 and other paragraphs highlighted in the brief of the defendants; I have no reason to disagree with the finding of the two courts below that plaintiffs action is grounded in the tort of conversion and has nothing to do with the official management of plaintiff company by the 2nd defendant. The plaintiff was not complaining about the sales of its assets by the 2nd defendant prior to the court’s order of interim injunction but the sales made in disobedience of that order. On the making of that order, the 2nd defendant could no longer sell until the order was discharged; he became a custodian of those assets. Any sale made by him while the injunction subsisted could not be in lawful exercise of his powers of receiver/manager.”
Ogwuegbu, JSC at pages 512 – 513 stated as follows-
“A careful examination of the writ of summons and the statement of claim reveal that the defendants are sued for conversion, namely, the illegal removal, sale and/or disposal of the plaintiff’s forty-four vehicles in total disregard of a subsisting court order restraining the 2nd defendant from doing so. There is nothing in the statement of claim suggesting receivership or management of plaintiff’s company by a third party. The learned trial Judge and the court below were right in holding that the Kwara State High Court has jurisdiction to determine the case and not the Federal High Court as contended by the defendants.”
Finally, on this issue Kalgo, JSC at pages 513 – 514 of the report opined thus:-
“Still on this issue, and having carefully examined the statement of claim in this case i.e. No. KWS/270/89, I have no doubt in my mind that the respondent as plaintiff, was suing in conversion of their vehicles sold and or the proceeds of sale thereof and so the case was not based on receivership. I agree with the Court of Appeal when in its judgment per Ogebe, JCA, it said –
‘This cause of action arose because the appellants were said to have gone ahead and violated an earlier court order in suit No.KWS/215/88 in which an interim order was made restraining the appellants from selling the properties of the respondent. There is nothing in the respondent’s claim as properly constituted to show that the matter in dispute has to do with receivership. It is the appellants who by their statement of defence brought in the question of receivership.’
Therefore, since the respondent sued the appellants in conversion, the trial court has, in my view, the jurisdiction to entertain the action now pending before it in this matter.”
The respondent’s suit, disclosed on the writ of summons as well as the affidavit in support, is in tort predicated upon conversion of the skins supplied to first appellant for tanning and eventual sale if the price or prices could be agreed upon. It has nothing to do in receivership or management of the first appellant company.
I am unable to agree with the submission of the learned Counsel for appellants to the effect that there is allegation that the second appellant personally sold the skins when he took over as the receiver of the first appellant and this assertion warrants the invocation of the provisions of sections 390(1), 394(1) and (2) of the Companies and Allied Matters Act. The writ of summons which is already recited elsewhere in this judgment will for easy reference be repeated immediately hereunder:-
“Whereof the plaintiff claims against the defendants jointly and severally the sum of N3,469,646.97 being the value of raw skin supplied to the first defendant by the plaintiff.”
Clearly, there is no where in this claim recited above that the first respondent alleged that the 3rd defendant (now second appellant) personally sold the skins as contended by the learned counsel for appellants in their brief of argument. I propose, however, to consider the argument because I am not unaware of such assertion in the first respondent’s affidavit in support of the action. Notwithstanding the assertion in the first respondent’s affidavit, I am firmly of the opinion that sections 390(1) and 394(1) and (2) of the Companies and Allied Matters Act comes into play. The two sections provide as follows:-
“390(1) A receiver or manager of any property or undertaking of a company appointed out of court under a power contained in any instrument shall, subject to section 393 of this Decree, be deemed to be an agent of the person or persons on whose behalf he is appointed and, if appointed manager of the whole or any part of the undertaking of a company he shall be deemed to stand in a fiduciary relationship to the company and observe the utmost good faith towards it in any transaction with it or on its behalf.
394(1) A receiver or manager of any property or undertaking of a company shall be personally liable on any contract entered into by him except in so far as the contract otherwise expressly provides.
(2) As regards contracts entered into by a receiver or manager in the proper performance of his functions, such receiver or manager shall subject to the rights of any prior incumbrancers, be entitled to an indemnity in respect of liability thereon out of the property over which he has been appointed to act as a receiver or manager.”
Quo bono I cannot fathom in whose interest this submission was made. It is clearly against the interest of the appellants particularly second appellant who is in fiduciary relationship to the first appellant and is required to act in utmost good faith in the performance of his function in any transaction with it or on its behalf.
The claim of the first respondent accuses the second appellant of his failure to “observe the utmost good faith” towards the first appellant in respect of first respondent’s skins entrusted or purportedly sold to the first appellant on credit. The second appellant who, by virtue of his appointment as receiver, is deemed to be in fiduciary relationship with the first appellant. The sale of the skins personally by the second appellant is an improper performance of his duty and would not be entitled to indemnity in respect of liability thereon. This case is, therefore on all fours with the case of First Bank Nigeria Plc. v. Jimiko Farms Ltd. & Another (1997) 5 NWLR (Pt.503) 81. The appellant granted a loan to the first respondent in the course of appellant’s banking operations. The first respondent executed a deed of mortgage in respect of its property in favour of the appellant. The first respondent then failed to meet his obligations under the loan agreement. The appellant in reaction exercised its right to appoint a receiver or manager to take over management of the first respondent’s farming operation to ensure that the due loan granted to the first respondent was recovered. The first respondent then sued for a declaration that he was entitled to account and a claim for the value of the assets taken over less the deduction of the first respondent’s indebtedness to the appellant. At page 93 of the report Akintan, JCA (as he then was) said that:-
“Although, Part XIV (sections 387 to 400) of the Companies and Allied Matters Act, 1990, set out inter alia, provisions relating to the appointment and powers of receiver managers, the question raised in the present case has nothing to do with the appointment of the 2nd respondent as a receiver manager or with his duties as such. All that was raised was that the 1st respondent was claiming that under the loan agreement it had with the appellant, he was entitled to a balance of over N7 million of the value of its properties carted away by the 2nd respondent, who was an agent of the appellant, after deducting what was outstanding as the balance due on its loan indebtedness to the appellant bank. The claim therefore had nothing to do with the operation of the provisions of Part XIV of the said Companies and Allied Matters Act, 1990.”
The first respondent’s claim has nothing to do with the management and running of first appellant. His concern is the return or value of skins deposited with the first appellant for tanning before the appointment of the second appellant as receiver. He claims no role for himself in the management and operation of the first appellant.
In the course of arguing issue (i), which according to appellant’s brief derives from ground (i) of the notice of appeal against the ruling delivered on 17th February, 2000 and ground (iii) in the notice of appeal against the ruling delivered on 4th July, 2000, counsel tacked under argument in respect of grounds (iv) and (v) in the notice of appeal against the ruling given on 17th February, 2000. Ordinarily these grounds of appeal are not related to issue (i) nor any other issue in the appellant’s brief and should be deemed abandoned and struck out.
It should also be noted that this issue was never canvassed in the trial court. If at all, I have not been referred to the portion of the proceedings where it was taken. It is, therefore, a fresh issue in this court. To raise an issue which was not entertained at the trial court leave of this court is required to do so. There is no record before me to that effect. The only application is one brought on 8th November, 2000, seeking extension of time to appeal against decisions of the trial court delivered on 17th February, 2000 and 4th July, 2000. The reliefs sought in the application dated 7th November, 2000 are as follows:-
“A(i) Extending the time within which to ask for leave to appeal against the decision of the Kano High Court presided over by Honourable Justice Garba Abdullahi, dated 17th February, 2000, in suit No. K/800/99.
(ii) Leave to appeal against the decision of the Kano High Court presided over by Honourable Justice Garba Abdullahi dated 17th February, 2000 in suit No. K/800/99.
(iii) Extending the time within which the applicants can appeal against the decision of Honourable Justice Garba Abdullahi, dated 17th February, 2000, in suit No. K/800/99.
B(i) Extending the time within which to ask for leave to appeal against the decision of the Kano High Court presided over by Honourable Justice Garba Abdullahi dated 4th July, 2000 in suit No. K/800/99.
(ii) Leave to appeal against the decision of the Kano High Court presided over by Honourable Justice Garba Abdullahi dated 4th July, 2000 in suit No.K/800/99.
(iii) Extending the time within which the applicants can appeal against the decision of the Kano High Court presided over by Honourable Justice Garba Abdullahi, dated 4th July, 2000 in suit No. K/800/99.
C. Directing the applicants to file the notice of appeal in respect of the decisions in (A) and (B) above at the registry of the Kano High Court upon granting the said order.”
It is clear that the two sets of reliefs sought did not include one for leave to raise fresh issue on appeal. A relief for leave to appeal, which is prayed for, is not a relief to raise fresh issue nor is it a substitute for it.
Where a party seeks to raise for the first time on appeal an issue that was not argued at the trial a specific leave to raise fresh point must be sought and obtained before it can be properly canvassed or argued. Clearly a mere leave to file and argue additional grounds of appeal is not adequate – Obioha v. Duru (1994) 10 SCNJ 48, 64, (1994) 8 NWLR (Pt. 365) 416; Adio v. The State (1986) 2 NWLR (Pt.24) 581, 588; Ajuwon & Others v. Madam Alimotu Adeoti (1990) 2 NWLR (Pt. 132) 271, 296 and Okenwa v. Military Governor Imo State (1996) 6 NWLR (Pt.455) 394, (1996) 6 SCNJ 221. In any case, the appropriate venue to raise the objection is at the trial court, where it was filed and before the trial court heard argument and pronounced on it. The notice having been taken and heard it is rather late to take the objection at this stage vide Adene & Others v. Dantunbu (1994) 2 SCNJ 130; (1994) 2 NWLR (Pt. 328) 509, 528. Be that as it may, the substance of the submission of the learned Senior Counsel for appellants, in this regard, is to the effect that learned trial Judge, having listened to argument of counsel in a suit brought under undefended list, rather than proceeding to deliver his judgment entertained and granted application of the plaintiff seeking to amend the writ of summons, by joining third defendant, now second appellant. Learned Counsel submitted that Order 23 rule 1 of the Kano State High Court (Civil Procedure) Rules, 1988, providing for undefended list does not provide for such a procedure. Learned Counsel for appellant further argued that the first respondent failed to seek and obtain fresh leave for the claim to be placed on the undefended list.
In my respectful opinion, I do not think either argument avail the appellants. I agree with the learned Counsel for the first respondent that Order 11 of the Kano State High Court (Civil Procedure) Rules, 1988 and not Order 23 thereof provides for joinder of parties. There is nothing in the former order prohibiting or forbidding additional party to a suit under the undefended list. Since there is nothing in Order 11 limiting application of the Order to the provisions of Order 23, which equally does not expressly or impliedly exclude joinder, it is my humble opinion that what the learned trial Judge did is unassailable. I am further strengthened in this view on account of the second appellant not opposing the application to join him when it was proposed in the trial court. I am further encouraged in this view that the second appellant fully understood the implication of the procedure and brought his application of intention to defend the suit. Second appellant seems respectfully to have consented to the procedure and could not be heard to complain except the same is unconstitutional or a nullity. In that case, he is not prejudiced.
In the case of I.B.W.A. v. Imano (Nig.) Limited & Anor. (2001) FWLR (Pt.44) 421, (2001) 3 SCNJ 160, 178; (2001) 7 NWLR (Pt. 713) 610 at 626 where the Supreme Court per Iguh, JSC held as follows:
“Where, however, a party to a civil proceeding consented to a procedure at the trial which procedure is neither unconstitutional nor amounts to a nullity but is merely wrong or irregular and he infact suffered no injustice and no miscarriage of justice is thereby occasioned, it would be too late on appeal about such wrong procedure having been adopted simply because that party lost the case in the trial court. See Oba Ipinlaye II v. Chief Julius Olukotun (1996) 6 NWLR (Pt. 453) 148; Akhiwu v. The Principal Lotteries Officer Mid-Western State of Nigeria & Another (1972) All NLR (Pt.1) 229 at 238; Ayanwale and Others Atan & Another (1988) 1 NWLR (Pt. 68) 22; Okwechime v. Philip Igbinadolor (1964) NMLR 132 etc.”
Finally on joinder, the purpose of joinder of parties is to prevent multiplicity of actions arising from the same transaction or series of transaction. It is equally to facilitate the resolution of question or questions of law arising from the same transaction: Olujitan v. Oshatoba (1992) 5 NWLR (Pt. 241) 326, and in exceptional circumstance non joinder to a proceeding of a third party whose interest would be affected by the outcome of the suit would seriously render the decision inconclusive. See Wakama v. Kalio (1991) 8 NWLR (Pt. 207) 123, 154, where it was held that in the appeal there was no contract between the appellant and respondent. Since the committee with which the appellant had alleged he had a contract is not a party to that proceedings it was wrong of the appellant to insist that she had a valid contract with the committee without first joining it to the proceeding. This court is a court of law as well as court of equity and as such would not permit the appellant to hold on to technical defence, a defence which amounts to injustice.
On the issue of amendment of writ of summons, once a process is amended, it is settled law that the amendment relates back to the date of the document amended and “what stood before the amendment is no longer material before the court and no longer defines the issues to be tried”. See Warner v. Sampson & Another (1959) 1 QBD 297, 321; and Adewunmi v. A.-G., Ekiti State (2002) 1 SCNJ 27; (2002) 2 NWLR (Pt.751) 474. In the case, where the original defendant had died and the defendants/appellants applied to be joined as co-defendants, the application was granted. Pleadings were filed and exchanged and appellant filed a joint statement of defence. Trial commenced and the respondent gave evidence.
Subsequently, appellant brought an application seeking for an order to strike out the suit on the ground that the writ of summons commencing the suit having been issued against a dead person same is null and void. The High Court refused the prayer and was upheld by the Court of Appeal on the ground that once an amendment is made it relates back to the date of the document amended. An amended writ of summons, therefore, becomes the origin of the action. The amended writ is the one in which the appellant and the deceased are named as defendants. Opebiyi v. Oshoboja (1976) 9 10 SC 195 and Tetlow v. Orela Limited (1920) 2 Ch. D 24 are distinguishable on the facts from the case on hand. The amendment of the writ of summons had the effect of making the amended writ the origin of the suit. The amended writ is the writ on which the first appellant, the second respondent and the second appellant are named as the defendants. All the order or relief made before that date are deemed as having been made against all the defendants since the amendment relates back to the date the writ of summons was issued. This position is apparently reinforced by the provisions of Order 11 rule 15 of the Kano State High Court (Civil Procedure) Rules, 1988, which provides as follows:-
“Where a defendant is added or substituted, the writ of summons shall be amended accordingly and the plaintiff shall, unless otherwise ordered by the court or a Judge in chambers, file an amended writ and cause the new defendant to be served and the proceedings shall be continued as if the new defendant had originally been made a defendant.”
It therefore follows that there would be no need to make a fresh application for leave to bring the action on the undefended list in respect of the third defendant, second appellant herein, since the proceedings would resume as if the new defendant had originally been made a defendant.
The trial court therefore has jurisdiction to entertain the action. Issue (i) is answered positively and the grounds of appeal related thereto as well as those grounds tacked under the issue fail and are dismissed.
Next issue calling for determination is appellants’ issue (ii), which has been raised from grounds 2 and 3 in the notice of appeal filed in respect of the ruling given on 17th February, 2000. In arguing this issue, learned Senior Counsel for appellants, in the appellant’s brief, read paragraphs 2, 3, 4, 5, 9, 10, 11, 17, 18, 19, 20 and 21 of the affidavit in support of amended writ of summons, paragraphs 3(a) – (h) of the affidavit in support of the second appellants notice of intention to defend and the holding of the learned trial Judge to the effect that, in-so-far as payment had not been made by the first appellant to the first respondent, it cannot be validly contended that property in the skins had passed to the first appellant. Learned Senior Counsel for appellants then contended that the view expressed in the extract from the ruling be closely examined since the authorities, 7-Up Bottling Co. Ltd. & Adegboyega v. Awu, did not decide that whenever payment has not been made property in the goods sold would not pass. Learned Senior Counsel contended further that learned trial Judge held that if the skins had not been paid for property in the skins could not be said to have passed. Learned Senior Counsel also referred the court to finding of trial court to the effect that 2nd appellant sold the skins and contended that on these two issues affidavit evidence before the court are conflicting: that the first respondent avers that the 2nd appellant personally sold the skins and the said appellant averred that he did not sell any skin on assuming office as receiver of the 1st appellant. Learned Senior Counsel argued that the claim is not for the skins nor the return of the skins nor did the first respondent state in his affidavits, original as well as the one in support of the amended writ of summons that the parties were unable to agree on the price of the skins he supplied to the first appellant. It was then submitted that in the circumstances it could not be contended that property in the skins had not passed to the first appellant as the evidence shows that goods were supplied and the value of the goods was being claimed by the first respondent in the action. Learned Senior Counsel for appellant further postulated that there was no averment to the effect that parties were unable to agree as to the price of the tanned skins which could have been the condition under which it could be stated that property in the skins had not passed to the first appellant. He relied on the case Alhaji Ibrahim Yakassai v. Messrs Incar Motors Nigeria Limited (1975) 5 SC 107, 114 – 5, where the Supreme Court referred to with approval the decision of erstwhile West African Court of Appeal in Kofi v. Mensah 1 WACA 76.
Learned Counsel for first respondent on the other hand contended that property in the skins never passed to the first appellant on account that the transaction had to go through a couple of stages and the supply of the skins to the first appellant for tanning was a stage. Learned Counsel pointed out that the first respondent in his claim and affidavit demonstrated that the question of sale would only arise and would depend on the agreement reached as to the price after completion of tanning.
I am respectfully of the view that, issue of conflicting affidavit raised under this issue does not belong to it. Inspite of this, learned Senior Counsel for appellant after raising it under this issue failed to make any consequential submission on the point. Learned Senior Counsel left the matter in abeyance. Having abandoned the same it is not the function of the court respectfully to step into the arena to assist appellant wrap up the submission. The point is deemed abandoned.
In my respectful opinion, the substance of the appellant’s argument is that the skins which is the subject matter of the dispute, in the instant appeal, forms part of the assets of the first appellant and thus subject to receivership and that the trial Judge wrongly held that the skins did not form part of the floating charge as it had not been paid for. The submission of the learned counsel for appellant is misconceived. The case for first respondent put no one in doubt as to the nature of his claim. In the amended writ of summons he stated inter alia at pages 64 and 65 of the record of proceedings as follows:-
“The third defendant personally sold the skins supplied to the first defendant for tanning when he took over as the receiver of the first defendant and the third defendant has refused to pay the plaintiff for same.
Whereof the plaintiffs claims against the defendants jointly and severally the sum of N3,469,646.97 being the value of the raw skin supplied to the first defendant by the plaintiff.”
And in the affidavit in support of the amended writ of summons the first respondent expatiated on the writ of summons thus:-
“3. That as part of the arrangement between the defendants and myself, I would supply skins to it for tanning while payment for the skin supplied would be made thereafter (i.e. after tanning).
4. That if we are unable to agree on price for the tanned skin, I would pay the defendants for tanning the skins and I would remove the skins.”
It is an irresistible inference from the community reading of the endorsement on the writ of summons as well as the two paragraphs of the affidavit in support of the amended writ of summons that the transaction goes through stages, firstly tanning of the skins supplied and secondly sale of the tanned skins on agreement on the price of the skins. The submissions of the learned Counsel for the appellants are premised on wrong principles and assumptions. The affidavit evidence clearly shows that the first respondent supplied to the first appellant before the second appellant was appointed its receiver for tanning and possible sale if the price could be agreed upon. The second appellant on his appointment as receiver and, without the price being agreed upon, disposed of the goods. The onus of proof, which in civil cases, is never static but shifts, comes clearly, fairly and squarely on the appellants to show that the skins were duly tanned and prices agreed upon to avert judgment being given against them Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt. 5) 116; Imana v. Robinson (1979) 3 & 4 SC 1, 8 – 10 and Omoregbe v. Lawani (1980) 3 -7 SC 108, 117. If it is the case of the appellants that the skins forms part of the assets of the company the burden of proof is on them because the burden of proof is on the party who asserts. The same burden is not discharged by saying that:-
“There is no averment anywhere in the affidavit that the parties were unable to agree as to the price of the tanned skins.”
In default of evidence that property had passed the learned trial Judge rightly, in my view, gave judgment to the first respondent. The case of Yakassai v. Messers Incar Motors Nig. Ltd. (supra) cited in the appellant’s brief does not assist their case rather it resolved the matter in favour of the first respondent. There is no evidence emanating from the defendants, now appellants, showing that there was an outright sale. In the case under reference the defendants called Yaw Enin who testified thus:-
“I was present when the plaintiff agreed to purchase a lorry from the defendant.”
On this piece of evidence, the West African Court of Appeal per Deane, C. J., held as follows:-
“The question that had to be decided in this case in order to determine whether or not, the defendant had the right to seize this lorry was whether the lorry had been sold outright by the defendant to the plaintiff, in which case the property in the lorry would vest in the plaintiff, or whether there was a hire purchase agreement underwhich the property would remain in the defendant, so that he could take possession of it on failure by the plaintiff to pay the instalment.
The defendant’s witness Yaw Enin says ‘I was present when the plaintiff agreed to purchase a lorry from the defendant’. That being the case, on the authority of Thompson v. Veale (1896) 74 LT 130, the defendant would have no right to seize the lorry on failure of the plaintiff to pay his instalments, even though the Judge found that the plaintiff had agreed in his contract to that course, and his only remedy would be to enforce payment of the instalments by action in the courts.”
This passage was quoted with approval by the Supreme Court in Yakassai’s case (supra) at pages 114 to 115. In the absence of evidence emanating from the appellants establishing that an outright sale took place, it cannot be validly urged by them that the skins or goods formed part of the charged assets of the first appellant. The appellants, having failed to discharge the burden that the skins were tanned and prices agreed upon or no skin were supplied at all, cannot avoid judgment being given against them. Indeed, it could not be, at this stage, the case of store supply at all the appellants having acknowledged the supply of the skins.
The first respondent’s action is based on conversion which as it was observed in 7-Up Bottling Co. Ltd. v. Abiola Bottling Co. Ltd. (supra) p. 1650, where it was held that conversion as a cause of action is a tort over which any State High Court has jurisdiction to entertain”.
Finally, the application of the provisions of Sale of Goods Act, 1893 is inappropriate. It is inappropriate because section 18 of the Sales of Goods Act does not avail the appellant, as the property in the goods did not pass on delivery contrary to the provisions of rule 1 of section 18 thereof. The section provides that:-
“Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer:- Rule 1 where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of deli very or both be postponed.”
The uncontradicted and unchallenged evidence before the trial court and this court is to the effect that the contracts had not been made. The first respondent’s evidence, which is the only evidence on the point on record, is as averred in paragraphs 3 and 4 of the affidavit in support of the amended writ of summons, which already are recited in this judgment. The skins were initially supplied to the appellants, particularly the first appellant, for tanning thereafter the price or prices are agreed upon. The evidence show that the goods were supplied to the first appellant for tanning and were disposed of by the second appellant before the price or prices were fixed or agreed upon. It is an elementary principle of the law of contract that to have a valid simple contract there should be an offer, acceptance and consideration. It seems to me that these cardinal principles of contract particularly the last one is not present. It is equally in evidence that if the price or prices are not agreed upon the first respondent is at liberty or free to cart away his wares. The missing elements of the contract are to be supplied by the appellants who seek to ground their defence on the provisions of the Sales of Goods Act, 1893, and they have woefully failed to do so. The learned trial Judge rightly, in my opinion, did not arrive at an erroneous decision as property in the goods could not pass, even where payment has not been made and delivery postponed as there can be no enforceable contract in the absence of terms and conditions of the contract.
I am further strengthened in this view by the finding of the learned trial Judge in his ruling of 17th February, 2000, that “Exhibit NB1 (sic) is a letter written of the 3rd defendant in which he (the 3rd defendant) admitted that the plaintiff had supplied the 1st defendant with raw skins and pleaded for time within which the price of the said skins could be determined. And since there is no allegation of forgery in respect of the said letter, the defendant cannot now be allowed to claim that the skins were never supplied.”
Can there be a subsisting contract in respect of skins, when prices of the items had not been agreed upon? Certainly not. It is worthy of note that the appellants had not appealed this piece of finding, which consequently subsists: Chukwunta v. Chukwu (1953) 14 WACA 341. Ironically, the letter which is said to be attached to affidavit deposed to by first respondent on 11th day of November, 1999, is not contained in the record of proceedings but a copy thereof had been cited in the original file forwarded to the court. This letter shall be dealt with later in this judgment.
I answer issue (ii) positively, so grounds 2 and 3 in the notice of appeal filed against the ruling delivered on 17th February, 2000, fail and are dismissed.
On issue (iii), which derives from grounds 2, 4 and 5 of the notice of appeal brought against the ruling of 4th July, 2000, and ground 6 of the notice of appeal filed in respect of the ruling of 17th February, 2000. The crux of the issue is whether the first respondent proved the value of the skins he supplied to the first appellant. Learned Senior Counsel for appellants, in the appellants’ brief, submitted that the evidence adduced leaves so much to be proved that it cannot be said that the first respondent proved his case on the balance of probability. Learned Senior Counsel went on to read the relevant portion of the first respondents’ evidence-in-chief and the cross-examination thereon. Learned Senior Counsel then argued, in the brief, that first respondent failed to prove the number of skins supplied by him, their variety and prices except his ipse dixit that the appellants owe him the sum of N3,469,646.97 and contended there is no evidence adduced before the court proving that the appellants are owing the respondent this sum of money. Learned Senior Counsel then submitted that on the showing of first respondent it could not be said that it had proved the case on balance of probability. He referred the court to the decision of Kano State High Court of Justice in the case of Emmanuel Oforuntade v. Umaru Dandodo (1976) NNLR 117, 121 and 122 per Jones, C.J.
Learned Senior Counsel, after conceding that the authority cited is merely persuasive, submitted that in the circumstances of the case evidence adduced by the respondent in the court below was not sufficient to prove the value of the skins supplied.
Learned Counsel for first respondent, in the first respondent’s brief, submitted that the burden of proof, in a civil case, is usually on the plaintiff to prove his case on balance of probability. Learned Counsel further argued that where evidence given by a party to any proceeding was not challenged by the opposite party who had the opportunity to do so, it is open to the trial court to act on the unchallenged evidence: IBWA Limited v. Imano Nigeria Limited (supra). Learned Counsel then recited a portion of the evidence of the first respondent.
After the learned trial Judge ordered that oral evidence be taken in respect of the price of the skins, the first respondent called two witnesses, himself and one other person, to testify in support of his claim. The appellants did not call any witness. In the determination of this issue, it would be borne in mind that the defendants, appellants herein, did not adduce iota of evidence though there are instances in which defendants who did not call any evidence may still be entitled to judgment. Such instances may include where the plaintiff failed to produce evidence on material elements of his case or where the evidence tendered by the plaintiff is so patently or palpably discredited and rendered unreliable that no reasonable tribunal can accept to act on it. See Aduke v. Aiyelabola (1942) 8 WACA43, 45; Onyekaonwu v. Ekwubiri (1966) 1 All NLR 32; Ofomaja v. Commissioner for Education (1995) 8 NWLR (Pt. 411) 69. A defendant may also be entitled to succeed without adducing oral evidence where through the cross-examination of the plaintiff and his witnesses and tendering of documentary evidence through them thereby destroy the plaintiffs case and establishes a valid defence: See Lawal v. UBN Plc. & Others (1995) 2 NWLR (Pt. 378) 407. In civil case, respectfully, the only criterion to arrive at a final decision, at all time, is by determining on which side of the scale the weight of evidence tilts. If a defendant chooses not to proffer evidence the suit will be determined on the minimal evidence produced by the plaintiff. See Nwabuoku v. Ottih (1961) All NLR 487; A.-G., Oyo State v. Fair Lakes Hotels Ltd. (No.2) (1989) 5 NWLR (Pt. 121) 255, and Ahmadu Bello University & Another v. Dr. Nwakego Molokwu (2003) 9 NWLR (Pt. 825) 265, where it was held that it is settled that in civil cases issues are resolved on preponderance of evidence and when there is no evidence to put on one side of the imaginary scale minimum on the other tilts the scale in satisfaction of the requirement. The word minimum is defined as the least assignable, admissible or possible at page 898 of Black’s Law Dictionary, 5th Edition.
In this regard, the first respondent on the value of the skins supplied testified as follows:-
“The 1st defendant is owing me N3,469.097. The money is for the animal skins which I sold to the first defendant. The store keeper of the 1st defendant, Mr. Bagaye, has acknowledged having received the animal skins from me. The document bears my name they are ten in number.
Olaniyan: I apply for the document to be in evidence.
Waziri: I object because they were unsigned if the same person. There is nothing to show that the documents were issued for Mr. Bagaye.
Olaniyan: the objection is frivolous as -it is not based on admissibility but weight.
Court: If the defendant’s counsel is in doubt of receivererly (sic) of the document in question it is for him to call the person mentioned as witness to testify to that effect. The objection is accordingly overruled and the documents are admitted in evidence as exhibit 1. a, b, c, d, e, f, g, h, i, j.
I gave the coy sheep and goat skins 37,317 pieces at the cost of over N5m. The coy made part payment of about N1.6m leaving a balance of N3,469,649.
They purchased a piece of sheep skin at N350 (hairy category) lamb skin at N150 and lamb at N100. Goat skin is N220 each and kids skin N60. I want the court to compel the defendants to pay me my money.
Cross-examination: I have been dealing with the defendant/coy for about three years. Prices fluctuates depending on season. It was the defendant/coy which fixed the prices which I mentioned I cannot remember the particular number of hairy skins or lamb skins I supplied. I have no difficulty in remembering the amount of money involved.
This is the totality of the evidence adduced by the first respondent in support of his claim. The appellants did not proffer, as observed earlier, any iota of evidence in contradiction. The first respondent was equally not cross-examined on the quantity of skins which was put at 37,317 pieces of skins, nor was he challenged on the price of the 37,317 skins which the first respondent as the plaintiff first witness put at N5,000,000.00. The witness also added that N1,600,000.00 out of the value of the skins had been paid by the first appellant thus, leaving an outstanding sum of N3,469,097 which is the subject matter of the suit on appeal. First respondent was neither contradicted nor challenged on the various figures he testified to. On the quantity of skins supplied to the first appellant, first respondent’s oral evidence thereon seems supported by the only exhibit in the case, exhibit 1. Exhibit 1 comprises ten sheets of delivery notes prepared by the appellants’ storekeeper, one Bagaye. The appellants failed or refused to call Bagaye, their storekeeper, to refute the first respondent’s claim that he supplied the skins.
In the circumstances of this case, the first respondent successfully discharged the onus of proof placed on him on the strength of the unchallenged and uncontroverted evidence proffered by him which pieces of evidence is also credible. It is settled that the defendant not having given evidence in challenge of the evidence of the plaintiff must be assumed to have accepted the facts adduced by the plaintiff. Imana v. Robinso (1979) 3 – 4 SC 1, 8 and in Omoregbe v. Lawani (1980) 3 – 7 SC 108, 117 the Supreme Court held that the trial court was entitled or at liberty to act on the unchallenged evidence when the party who had opportunity to contradict it failed to do so. See also Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt. 5) 116; IBWA Limited v. Imano Nigeria Ltd. (supra); Odulaja v. Haddad (1973) 11 SC 357 and Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79. The Supreme Court in the case of Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79 accepted ipse dixit of the plaintiff that he earns N50 daily, sufficient evidence to prove the loss of earning. In that case plaintiff merely testified that he makes a daily sales of N50 in support of a claim for loss of earning of N1,500. On appeal, the Supreme Court held that the evidence given in proof of daily loss of income could have been challenged and was not infact so challenged by the appellants who had the opportunity to do so, the lower court was right to have acted on the best evidence before it. See Ahmed Boshali v. Allied Commercial Exporters Ltd. (1961) All NLR 917, where evidence of earning of 6d per yard was accepted as adequate by the Judicial Committee of Privy Council. It is therefore not derogation of evidence to say a piece of evidence is a mere ipse dixit.
Issue (iii) is answered in the positive; grounds of appeal from which it is derived are dismissed.
The appellants’ last issue is their issue iv which is derived from grounds i and v of the grounds of appeal against the ruling delivered by the trial court on 4th July, 2000.
The substance of the appellants’ submission in this issue is that the second appellant being an agent of the first appellant by virtue of section 390(1) of the Companies and Allied Matters Act was protected from liability for contracts entered into in the course of the receivership by section 394(1) and (2) of the Companies and Allied Matters Act. It is equally contended that the second appellant ought not have been found personally liable for the sale of the skins on account of conflicting averments between affidavit in support of the writ as well as affidavit in support of third appellant’s notice of intention to defend which conflicts were never resolved by the learned trial Judge. Learned Counsel for appellant in this regard relied on the case of Falobi v. Falobi (1976) 1 NMLR 169. Learned Counsel for respondent failed to proffer argument in reply. The Supreme Court in Falobi v. Falobi (supra) at 178 stated the relevant principle of law as follows:-
“We have pointed out on numerous occasions that when a court is faced with affidavits which are irreconcilably in conflict, the Judge hearing the case, in order to resolve the conflict properly should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call. It does not matter whether none of the parties asked to be allowed to cross-examine any of the deponents or call any witness. Such omission by the parties should not be taken to amount to consent that affidavit evidence would be used in such circumstances. See Akinsefe v. Akindutere (1966) 1 All NLR 147 at p. 188; Eboh & Ors. v. Oki & Ors. (1977) 1 SC 178 pp. 189 – 190; Olu Ibukun & Anor. v. Olu Ibukun (1974) 2 SC 41, 48 and Uku & Ors. v. Okumagba & three Ors. (1974) 3 SC 35, 56, 64 – 65.”
It is, however, trite that a court is not competent to resolve conflicting affidavit without oral evidence. There is however, exception to this rule which is not a hard and fast one. Where there is sufficient material, especially documentary the court can suo motu resolve the conflict without recourse to oral evidence or further inquiry: Winlyn Ltd. v. N.A.C.B. Consultancy and Finance Company Ltd. (2000) 8 NWLR (Pt.670) 594.
The question is whether the affidavits “irreconcilably conflict” in view of exhibit MBA1 relied upon by the learned trial Judge, even though he wrongly referred to it as exhibit NB1. The appellants in this connection referred the court to the first respondent’s paragraphs 17, 18, 19, 20, 21 and the third appellants averment in paragraph 3(e), (f), (g) and (h) of the affidavit in support of his notice of intention to defend. The relevant averments are hereby set down for easy reference. In this connection, the first respondent’s averment read to the court in the appellants’ brief read thus:-
“17. That the 3rd defendant is the receiver of the 1st defendant company.
18. That when the 3rd defendant took over as the receiver of the 1st defendant company he personally sold the skins supplied by me to the 1st defendant for tanning.
20. That till date I have not received any payment for the skins sold by the 3rd defendant.
21. That the subject-matter of this suit does not form part of the assets of the 1st defendant over which a debenture was created.”
As against this pieces of affidavit evidence, there are these averments in support of intention to defend:-
“3. That I was informed by the 3rd defendant/ applicant who is the receiver of the 1st defendant in my office on 05/01/2000 at 12pm in the course of briefing Hafsat Sa’adu of counsel handling this matter and I truly believe in him as follows:-
(e) That it is evident from the payment chart that the plaintiff is not being owed any amount.
(f) That he never at any time promised to make payments to the plaintiff/respondent.
(g) That he never sold any skin or the skins supplied by the plaintiff to the 1st defendant or any person whatsoever.
(f) That most of the skins supplied to the 1st defendant were used before the commencement of the receivership.”
Learned Senior Counsel inadvertently did not refer the court to paragraph 13 of the affidavit in support of the writ of summons which reads thus:-
“13. That when it became obvious to me that it would be a near impossibility to get the receiver manager to offset the first defendants indebtedness to me, I instructed my then solicitors Messers Abdullahi Sadiq & Co. to write to the receiver of the first defendant demanding payment of the money. The first defendant’s reply dated 13th January, 1999, to my solicitors letter of 12th January, 1999 in the above connection is attached herewith as exhibit MBA1.”
Exhibit MBA1 dated 13th January, 1999, which is not copied in the record of appeal but found in the original file accompanying the record of appeal here reads inter alia as follows:-
Re: Debt Owed Alhaji Musa Bala
Your letter of January 12, 1999, in respect of the above subject-matter refers.
Your client, Alhaji Musa Bala was a regular supplier of raw skins to the company before it (company) went into receivership on November 25, 1998. His supplies were made on arrangement with the Deputy Managing Director without any hitch until the point of receivership. We confirm from available information that Alhaji Musa Bala, like most suppliers, had made supplies for which payment was not made before receivership event. The extent of the company’s indebtedness to Alhaji Bala is being worked out to determine the company’s state of affairs before receivership. Thank you for your understanding.
For: Tanarewa Nig. Ltd.
Exhibit MBA1 substantially debunks or discredits the averments contained in the paragraphs of the appellant recited above. In addition, it seems respectfully to confirm the first respondent’s claim that he supplied to the first appellant for tanning and thereafter sell to it after tanning if the price could be agreed. Or how else would one explain or understand the sentence:-
“His supplies were made on arrangement with the Deputy Managing Director without any hitch until the point of receivership.”
Above all, it seems to me that the exhibit constitutes admission on the part of the appellants particularly third appellants. It is an elementary principle of our law, which no longer requires citing of authority that, in civil cases, what is admitted requires no further proof. See section 75 of the Evidence Act, Cap. 112 of the Laws of federation of Nigeria, 1990, and the case of T. L. Owosho v. M. A. Dada (1984) 7 SC 149, 163 – 164 where Supreme Court per Aniagolu, JSC said:-
“But a plaintiff need not proceed to prove an admitted fact. And a fact is deemed to be admitted if it is neither specifically denied nor denied by implication having regard to the other facts averred in the pleadings.”
See also NBN v. P.B. Olatunde & Co. (Nig.) Ltd. (1994) 3 NWLR (Pt.334) 512, 526; British India Insurance Co. (Nig.) Ltd. v. Thawardas (1978) 3 SC 143, 149, where Supreme Court discussed and approved Chief Okparaoke etc v. Obidike Egbuonu (1941) 7 WACA 53 at 55.
In view of exhibit MBA1 there is, in my respectful view, no irreconcilable conflict between the affidavit evidence, which requires resolution by either calling or cross-examining witnesses. Appellants’ averment seems respectfully thoroughly discredited.
There is no substance in the submission of the learned Counsel that second appellant is agent of the first appellant since the latter did not appoint him as its own receiver. He was appointed receiver by the holder of the debenture stock in the first appellant, in this case, Union Bank of Nigeria Plc. The third appellant on the authority of section 390(1) is the agent of Union Bank of Nigeria which appointed him or on whose behalf he was appointed the receiver of the first appellant. Section 390(1) of the Company and Allied Matters Act provide thus:-
“390(1) A receiver or manager of any property or undertaking of a company appointed out of court under a power contained in any instrument shall subject to section 393 of this Act, be deemed to be an agent of the person or persons on whose behalf he is appointed…”
He is appointed on behalf of the debenture holders and therefore contrary to the submission of learned Senior Counsel for appellants, he is agent of the Union Bank of Nigeria on whose behalf he had been appointed and not agent of the company for the purpose of whose property or undertaking he was appointed a receiver. I agree there are circumstances when the first defendant would be the principal of the third appellant and the latter its agent, but that is not what is being urged on us presently.
Section 394(1) and (2) of the Companies and Allied Matters Act, which is already recited elsewhere in this judgment respectfully, have no application. It has no application because the first respondent did not predicate his claim on contract but on the tort of conversion. The two subsections of section 394 envisaged a situation whereby the third appellant had entered into contract in good faith or in the proper performance of his function. The first respondent’s case, to my mind, is that appellants had sold goods given to first appellant for tanning and possible buying, but before the price could properly be agreed upon, the items had been disposed of. The property in the goods, even on the showing of appellants, vide exhibit MBA1, had not passed. When the goods had not formed part of the first appellant’s floating assets of the debenture holders any dealing with it contrary to the instruction of the first respondent amounts to conversion. In the case of Re Goldburg (No.2) Ex parte page (1912) 1 KB 606, cited in the first respondent’s brief it was held that where a receiver is appointed by debenture holders he and the debenture holders are liable as trespassers if he deals with assets which are not property of the company because it was through the act of the debenture holders that he came in possession of the assets of the company. At page 611 –
“That which receiver takes possession of, as a receiver, he must account for, and he cannot set up any claim for anything that he has usefully done … He is merely accountable for those assets of the bankrupt, such as book debts, sovereign or stock which are traced to his hands and he has either to deliver them up or to pay damages for their conversion.”
It is therefore immaterial whether the third appellant did it personally or otherwise he is liable with the people on whose behalf he was appointed since the goods upon which he committed trespass was not part of the assets of the receivership. See In re: Ely 82 L.T. 501, which is not available in this court’s library in Kaduna.
This issue is answered in the negative and the grounds of appeal from which it is formulated fail and are dismissed. All the grounds of appeal having failed and dismissed, the appeal equally fail and is dismissed. The decision of the trial court is hereby affirmed. There is order as to costs which is assessed at N5,000.00 in favour of the first respondent.
BA’ABA, J.C.A.: I have had the advantage of reading in draft, the judgment of my learned brother, Salami, JCA, in this appeal. I entirely agree with it and, for the reasons given, I too dismiss the appeal. I abide by order for costs made by my learned brother, Salami, JCA.
ALAGOA, J.C.A.: I have read in draft, the leading judgment just delivered by my learned brother, Salami, JCA, and I agree with his reasoning and conclusion. I however wish to add this little bit of mine. Paragraph 19 of the affidavit in support of the amended writ of summons deposed to on the 21st December, 1999, states that:- “When the 3rd defendant took over as the receiver of the 1st defendant’s company he personally sold the skins supplied by me to the 1st defendant’s company for tanning.”
This allegation together with the facts attendant thereto should leave no one in doubt that the second appellant is being accused of conversion of the skin he delivered to the first appellant for tanning. The connotation of crime aside, as this is of little interest to the 1st respondent who is only claiming for the value of the goods which the appellants are alleged to have dealt with in a manner inconsistent with his right, the action is one in tort which a State High Court has jurisdiction to entertain. It is not a matter falling within the purview of section 251(1)(e) of the Constitution of the Federal Republic of Nigeria, 1999, over which the Federal High Court has exclusive jurisdiction. See 7-Up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (2001) 13 NWLR (Pt.730) 469. The appellant’s counsel contention in this regard that the Kano State High Court had no jurisdiction to entertain the action is untenable.
Appellant’s counsel has also contended that by joining the 3rd defendant (now 2nd appellant) instead of proceeding to hear and determine the matter under the undefended list the court below was in error. I have carefully gone through Order 11 of the Kano State High Court (Civil Procedure) Rules, 1988, and there is nothing in the rules under that order that even remotely suggests that once a matter is brought under the undefended list pursuant to Order 23 of the said rules of court, the court cannot for good cause shown make an order to add other parties to the existing parties. Order 23 of the rules of court also does not have such a requirement. After all, what is the purpose behind joinder of a party or parties, if not to prevent a multiplicity of actions arising out of the same transaction or a series of transactions. Sometimes, it is only through joinder that a matter becomes conclusive.
On whether the 1st respondent proved the value of the skins he supplied to the 1st appellant, appellants’ counsel says he did not as he failed to prove the number of skins supplied by him, their variety and prices except that the appellants owe him the sum of N3,469,646.97. This is ridiculous because the appellants themselves did not call any witness and so the court rightly relied on the minimal evidence adduced by the 1st respondent and another witness. See A.-G., Oyo State v. Fair Lakes Hotels Ltd. (No.2) (1989) 5 NWLR (Pt.121) 255. It is for these and the fuller reasons given in the leading judgment, that I agree that the appeal should fail. I too accordingly, dismiss the appeal with costs which is assessed at N5,000.00 in favour of the 1st respondent.
Nuraini Jimoh Holding O. Ayodele, SANFor Appellant
Dele Olaniyan, Esq.For Respondent