IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA ON FRIDAY, JANUARY 20, 2012 BEFORE THEIR LORDSHIPS
WALTER SAMUEL NKANU ONNOGHEN JUSTICE, SUPREME COURT
JOHN AFOLABI FABIYI JUSTICE, SUPREME COURT
SULEIMAN GALADIMA JUSTICE, SUPREME COURT
NWALI SYLVESTER NGWUTA JUSTICE, SUPREME COURT
MARY UKAEGO PETER-ODILI JUSTICE, SUPREME COURT
SC.70/2005
BETWEEN
1. KWASI KARKARI ADESEI
2. JAMES ADJEI ….APELLANTS
AND
JOHN ADEBAYO
(Substituting the deceased,) ….RESPONDENT
AMOS ADEBAYO
JUDGMENT
(Delivered by Mary Ukaego Peter-Odili, JSC) By a writ of summons and statement of claim filed by the respondent to this appeal at the Gboko High Court against the appellants as defendants claiming the following reliefs:
(i) A declaration that he is the sole proprietor of the School called Gboko International Nursery and Primary School.
(ii) An order of the court directing an audit of the school finances between January 1995 till judgment.
(iii)An order directing the defendant to refund any unaccounted moneys spent by them.
The appellants as defendants at the High
Court entered appearance to the suit of
the respondent and filed a joint statement of defence and counter-claim against the respondent. In the counter- claim of the appellants, they claimed the following reliefs:
(i) That the defendants are the founders of Gboko International Nursery/Primary School and as such entitled to be declared joint owners of the said school;
(ii) A declaration that the plaintiff is an employee of the Defendants as nominal proprietor of the school
(iii) An order directing the plaintiff to render account of the differences of N11,000 and N33,000 which he did not bank as directed by the school.
(iv) An injunction restraining the plaintiff by himself, heirs, servants, agent or whosoever from further interference with defendant’s smooth administration of the school.
(v) Any other order(s) this Honourable Court may deem fit to make in the circumstances.
The brief facts as put forward by the appellants and which were not far from the findings of the two courts below are that the appellants are Ghanaians resident in Nigeria and sometime in October 1991, founded a school called Gboko International Nursery and Primary School. The appellants subsequently invited the respondent in 1992 to join them in the running of the school, when they had problems with the Benue State Government.
Somewhere along the line the respondent went to the Gboko High Court
At some point the parties amended their pleadings at the High Court before the pleadings of the parties were finally settled.
The matter proceeded to trial and the learned trial judge delivered his judgment on October 14, 1999 and non-suited the plaintiff/respondent’s claim as well as the defendant/appellant’s counter-claim. In the non-suiting, the trial judge had not given the parties opportunity to be heard before the order of non-suit. The respondent and the appellants being dissatisfied appealed and cross-appealed against the judgment of the trial judge to the Court of Appeal, Jos.
The Court of Appeal sitting in Jos in a judgment delivered on March 19, 2003 allowed the appeal of the respondent and dismissed the cross-appeal of the appellants. It is against the decision of the court below, Jos that the appellants have appealed to this court by a notice of appeal filed on June 17, 2003.
On the 25/10/11 date of hearing the appellants through counsel Sylva Ogwemoh adopted their joint brief of arguments filed on 15/1/2010 and deemed filed on 18/1/2010. In the brief were crafted two issues for determination viz:
(i) Was the Court of Appeal right to have dismissed the cross-appeal of the appellants after having found as a fact that the order of non-suit made by the trial court was made without an opportunity given to the parties to be heard on the issue of non-suit?(Ground 6 of the Notice of Appeal).
(ii) Was the Court of Appeal right to have entered judgment in favour of the respondent on the totality of the evidence before the court? (Grounds 1, 2, 3, 4, and 5 of the Notice of Appeal).
The respondent, through learned counsel, A. G. Ayua adopted their filed on 8/3/2010 and also adopted the issues as formulated by the appellants.
Learned counsel for the appellants along the issues couched submitted that the Court of Appeal ought not to have dismissed the cross-appeal after holding that the non-suit order of the court of trial would not stand the order having been made without taking addresses from counsel on the issues of non-suit which that court had raised suo motu. He cited:
Craig v Craig (1966) ALL NLR 165 at 169;
Osayi v Izozo (1969) ALL NLR 150 at 152;
Anyaduba v NRTC Ltd (1992)
5 NWLR (Pt.243) 535 at 559 – 560.
He went on to say that the failure of the trial court to hear the parties on the issue of non-suit before it was made amounted to a breach of the fundamental constitutional right to fair hearing as guaranteed order section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.
For the appellants was further contended that the Court of Appeal in an apparent exercise of its powers under Section 15 of the Court of Appeal Act, Laws of the Federation of Nigeria, 2004 entering judgment in favour of the respondent was a decision not deserved or supported by available evidence. That the court of Appeal clearly substituted its own views on the facts for those of the trial court. That the interference with the findings was erroneously made. He referred to the cases:
Ebba v Ogbodo (1984) 1 SCNLR 272;
Balogun v Agboola (1974) 1 AUNIR (Pt.2) 66;
Nwosu v Board of Customs & Exercise (1988) 5 NWLR (Pt,93) 225;
Nneii v Chukwu (1996) 10 NWLR (Pt.378) 265;
Ajadi v Okenihun (1985)1 NWLR (Pt.3) 384;
Oroke v Ede (1964) NNLR 118;
Ngwu v Onuigbo (1999) 13 NWLR (Pt.636) 512 at 523;
Ogbechie v Onochie (1988) 1 NWLR (pt.70)370;
Oyewole v Akande (2009) 15 NWLR (Pt. 1163) 119.
On their own part learned counsel for the respondent submitted that the Court of appeal was right to have dismissed the cross-appeal of the appellants herein. That the court below was also right to have exercised its powers under Section 15 of the Court of Appeal Act, 2004 in reviewing and re-evaluating the evidence of the parties before the trial High court and at the end dismissed the counter-claim and found for the respondent to whom, the Court of Appeal amended the judgment and upheld the respondent ownership claim to the school subject matter of the dispute. In support learned counsel had cited several cases viz:
J.M.Din v African Newspapers of Nig. Ltd (1990) 5 SCNJ 209 at 217;
Asafa Foods Factory Itd v Alraine (2002) 10 NSCQR (Pt.1) 553;
Dabup v Kolo (1993) 12 SCNJ 1 at 10;
Adeyemi v Olakunri(1999) 12 SCNJ 224;
Chief A. a. Fagunwa v Chief N. Adibi {2004}7 SCNJ 208;
Balogun v Akanji (1988) 2 SCNJ 104; S.15 Court of Appeal Act, 2004.
Having stated the summary of the submissions of counsel either way, I would like to start with a. brief excerpt of the judgment of the trial court which is as follows:
“In the situation at hand since none of the parties who claimed ownership exclusively of the other has established such ownership I should dismiss their claims but I have seen that such a final action by the court will work hardship on the parties because a dismissal of an action raises certain estoppels. I think the ideal (sic) order to make is an order of non- suiting which is a final decision of the court to the effect that none of the parties has won.”
On that decision the Court of Appeal in refusing the non-suit had this to say:
“The requirement that counsel should be heard before an order of non-suit is made is no longer merely desirable. It is not only prudent but important. The consequences of failure to hear the counsel before an order of non-suit is made is that the order non-suiting the claim would be set aside, except it is very obvious and incontestable on the evidence before the trial . court and the law applicable therein that an order of non-suit is the only order it would make in the case in the exercise of its discretion.”
From the above and what was before the court of trial and later at the Court of Appeal were undisputed facts that the appellants herein established the school sometime in 1991 and being Ghanaians, the Benue State Government under its Ministry of Education had it closed as an illegal enterprise based on improper constitution of the indigeneity of the proprietors.
To survive as an establishment the appellants in 1992 invited the respondent to partner with them under the guise of his being a teacher and also to sign and put forward his name as proprietor, he being a Nigerian. The school functioned with these disparate configurations and not surprising one party and this time, the respondent took a writ of summons claiming sale ownership. The conclusion of the trial court clearly stemmed from a difficulty on this partnership where each party claimed sale ownership and nothing else, which situation brought about the non-suit of the trial court without first getting a hearing in that regard from the parties.
On appeal, while acknowledging and rightly in my humble view that failure of the trial court to be addressed by the parties on the issue of non-suit which that court raised suo motu was fatal to the order.
This court had laid down this rule from way back and it still remains the position. See Craige v Craig (1966) ALL NLR 165 at 169; Osayi v Izozo
(1969) ALL NLR 150 at 152; Anyaduba v. NRTC ltd(1882) 5 NWLR (Pt. 243) 535
Getting the matter of the question raised in the second issue as to whether the Court of Appeal was right to have granted judgment in favour of the respondent and awarded him the sole ownership of the property in the face of the available evidence and the clear findings of the learned trial Judge in that regard. The Court of Appeal had held as follows:
“However, on the totality of the evidence before the court, in particular the evidence of the plaintiff/appellant who gave evidence as
PWl, PW2, PW4, PW6 and Exhibits 1, 2, 4, 5,
6A, 6B, lOA, lOB lOD, lOE, 11, 16 and even 18,
18A, 18B, it IS my view that the plaintiff/appellant proved by preponderance of evidence that he is the sole proprietor of the said school. In that regard, I think the cross- appeal lacks merit and is accordingly dismissed.
In the final analysis, the main appeal by the plaintiff /appellant succeeds and it is hereby allowed … Judgment is entered for the plaintiff/appellant in terms of the reliefs claimed in paragraph 18 of the amended statement of claim filed before the lower court.”
From what the Court of Appeal did it is easy to see not only that he interfered with the evaluation and findings of the trial court without justification since what was on ground did not bear out to the path chartered by the Appeal Court and to the conclusion it came to. I see it necessary to quote the salient part of the judgment of the court trial in contradistinction to what happened on appeal and it is thus:
“The plaintiffs’ claim that the old school which was In existence was closed down by Government and that the school as it now exists was solely established by him. I see this attempt as an effort by a drowning man to save his head. The evidence before me does not support that assertion. Presently the name of the school is the same, the operators are the same and there is no evidence that the school actually ceased functioning at any particular time. Moreso that Exhibit “18B post dates the period of the blacklisting of the school and all other activities in the running of the school in which the defendants participated post dated the period the school was blacklisted.
From all I have stated so far in this judgment and from the entire evidence before the court in this proceedings it is not difficult to deduce a joint ownership of the school by the plaintiff and the defendants. Accordingly it is my opinion based on all the contributions made in the establishment and the running of the school Gboko International Nursery/Primary School as exposed by the entire evidence before me I do not agree with the plaintiff’s claim that he is the sole owner of the school. I also do not agree that the defendant own the school exclusively of the plaintiff. I see evidence of joint ownership as between the plaintiff and the defendants unfortunately all the parties are so selfish that none of them pleaded joint ownership of all the parties to this suit.”
The Court of Appeal had fallen into certain error as entering into the trial of the case when it went on its own evaluation of the evidence including ascribing probative value to the evidence of the witnesses, a domain of only the trial court. See Ogbeche v Onochie (1988) 1 NWLR (Pt.70) 370; Ovewole v Akande (2009) 15 NWLR (Pt.1163) 119; Ebba v Ogbodo (1984) 1 SCNLR 272; Nneji v Chukwu (1996) 10 NWLR (Pt. 378) 265.
The court below finding for respondent came from wrong premises as that court allowed itself to be persuaded that because the documents of re-application for the re-opening of the school bore the name of the Nigerian associate, of the appellants and that is the respondent, the respondent above must be the single owner. The court cannot ignore the relationship between the parties and how they came to work together. There must be a holistic appraisal of how the institution came to be and that the trial court made a good showing of.
The morality or rightness of the arrangement between the parties is not what is before court, all that is the concern of the court is that there was joint ownership and then what next.
In conclusion therefore since none of the parties had made a claim even if in the alternative upon which a clear relief can be rested the only option is a declaration that the appellant and respondent are joint owners of the school subject matter of this dispute.
From the above and the fuller details of my learned brother, N. S. Ngwuta JSC I allow the appeal and order that the school is jointly owned by the parties.
I abide the consequential orders in the lead judgment.
REPRESENTATION
Sylva Ogwemoh, Usman Mohammed Enesi, Albert Attah Agada for the appellant.
A. G. Ayua for the respondent.
