➥ CASE SUMMARY OF:
Calabar Central Cooperative Thrift v. Ekpo (2008) – SC
by PipAr Chima
➥ JUDGEMENT DELIVERED ON:
On Friday, the 15th day of February 2008.
➥ AREA(S) OF LAW
Consent of governor.
➥ NOTABLE DICTA
⦿ FINDING OF FACT REQUIRES LEAVE OF COURT
The above finding complained of being a finding of fact, it is settled law that for the appellants to successfully appeal against the finding, they must first of all obtain the leave of either the lower court or of this court. It would have been otherwise if the complaint was purely a complaint of error in law. It is clear from the record that appellants never obtained the leave of either the lower court or of this court to appeal on the facts so ground 1 of the grounds of appeal in so far as it is a complaint against the findings of facts is incompetent and is consequently liable to be struck out. – WS Onnoghen, JSC. Calabar CC v. Ekpo (2008)
⦿ FINDING NOT APPEALED IS BINDING ON PARTY
It is settled law, however, that a finding of a court or tribunal not appealed against is deemed accepted by the party against whom the finding was made in the instant case, the appellants. However, if the appellants had sought and obtained the leave of the courts to appeal against the findings of facts or mixed law and facts or to raise fresh issues not raised in the court below, it would have been sufficient to sustain ground 1 of the grounds of appeal. Since no such leave was sought and obtained the affected ground is doomed to be struck out for being incompetent. – WS Onnoghen, JSC. Calabar CC v. Ekpo (2008)
⦿ GROUND WILL BE ABANDONED WHERE NO ARGUMENT SUBMISSION FOR SAME
I have to observe that learned counsel for the appellants did not make any submission in relation to issue No C as formulated by him in the brief of argument and is consequently deemed to have been abandoned. – WS Onnoghen, JSC. Calabar CC v. Ekpo (2008)
⦿ WHERE WORDS ARE CLEAR NO INTERPRETATION IS NEEDED
It is settled law that where the words of a statute or Constitution are clear and unambiguous, they call for no interpretation, the duty of the court in such a circumstance being to apply the words as used by the legislature. – WS Onnoghen, JSC. Calabar CC v. Ekpo (2008)
⦿ BURDEN OF PROOF ON HE WHO ALLEGES POSITIVE
The law is elementary that the burden of proof is on the party who alleges the affirmative. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. – Niki Tobi, JSC. Calabar CC v. Ekpo (2008)
⦿ BURDEN OF PROOF ON HE WHO WILL FAIL
In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. – Niki Tobi, JSC. Calabar CC v. Ekpo (2008)
⦿ TOWING JUSTICE VS UPHOLDING STATUTORY PROVISIONS
A court of law cannot ignore provisions of a statute which are mandatory or obligatory and tow the line of justice in the event that the statute has not done justice. Courts of law can only do so in the absence of a mandatory or obligatory provision of a statute. In other words, where the provisions of a statute are mandatory or obligatory, courts of law cannot legitimately brush the provisions aside just because it wants to do justice in the matter. That will be adulterating the provisions of the statute and that is not my function; the Judge that I am. I must say that I will be doing justice only to the appellants if I interpret Sections 22 and 26 of the Land Use Act in the way he has urged. But that will certainly be unjust to the respondent. He too, like the appellants, needs justice: As the independent umpire that I am, I am bound to do justice in the case before me. – Niki Tobi, JSC. Calabar CC v. Ekpo (2008)
⦿ PRINCIPLES TO CONSIDER TO DETERMINE GROUND OF LAW OR FACT
For the purposes of elucidation however, I think I should re-state some of these principles.
1. The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the lower court of the law, or a misapplication of the law to the facts already proved or admitted.
2. Where a ground complains of a misunderstanding by the lower court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law.
3. Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and. fact.
4. A ground which raises a question of pure fact is certainly a ground of fact.
5. Where the lower court finds that particular events occurred although there is no admissible evidence before the court that the event did in fact occur, the ground is that of law.
6. Where admissible evidence has been led, the assessment of that evidence is entirely for that court. If there is a complaint about the assessment of the admissible evidence, the ground is that, of fact.
7. Where the lower court approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.
8. Where the lower court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.
9. Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal court will assume that there has been a misconception of the law. This is a ground of law.
10. Where the conclusion of the lower court is one of possible resolutions but one which the appeal court would not have reached if siesed of the issue, that conclusion is not an error in law.
11. Where a trial court fails to apply the facts which it has found corrective to the circumstance of the case before it and there is an appeal to a court of appeal which alleges a misdirection in the exercise of the application by the trial court, the ground of appeal alleging the misdirection is a ground of law not of fact.
12. When the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the court of appeal are issues of fact and not of law.
13. Where the appeal court interferes in such a case and there is a further appeal to a higher court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower court of appeal is a ground of law not of fact.
14. A ground of appeal which complains that the decision of the trial court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses., it is purely a ground of fact (which requires leave for an appeal to a court of appeal or a further court of appeal). – Tanko, JSC. Calabar CC v. Ekpo (2008)
⦿ EVALUATION OF FACT IS A GROUND OF FACT
Assessment or evaluation of evidence is a ground of fact; it requires the examination of documents used in securing the debt or payment thereof. – Tanko, JSC. Calabar CC v. Ekpo (2008)
i. Calabar Central Cooperative Thrift & Credit Society Ltd;
ii. Chief E.E. Umoh;
iii. Chief Oko E. Effanga
i. Bassey Ebong Ekpo (Substituted by Edet Bassey Ekpo)
➥ LEAD JUDGEMENT DELIVERED BY:
Walter Samuel Nkanu Onnoghen J.S.C
⦿ FOR THE APPELLANT
Nta N. Nta Esq.
⦿ FOR THE RESPONDENT
Charles E. Duke Esq.
➥ CASE HISTORY
The plaintiff/respondent was employed as a clerk by the 1 st defendant/appellant sometime in July, 1964 and rose to the position of Senior Travelling Secretary by May, 1974. In June, 1987 the respondent was, by a letter, exhibit B suspended from his employment by the 1 st appellant on the ground that the respondent perpetrated some fraudulent acts which tarnished the image of the 1 st appellant, pending the result of an investigation into the matter. The suspension was with immediate effect. The respondent was subsequently arrested by the police at the instance of the appellants and detained for investigation and/or interrogation. In all, the respondent was arrested three times in the course of the investigation, the third of which saw the respondent being taken by the police to the Police Headquarters at Diamond Hill Calabar where he was shown round the police cells occupied by hardened criminals (murderers and rapists) and was told by the police to sign a deed of “Mortgage” over his property situate at No 3C Enebong Avenue, Calabar, to surrender his ownership of the said property to the 1 st appellant in exchange for or discharge of an alleged debt of N80,000.00 to the 1 st appellant by the respondent with a threat of being thrown into the cells with the criminals, if he refused to comply. The respondent stated that he had no option than to sign Exhibit A which turns out to be a conveyance and handed over all the original documents relating to the said property to the 1st appellant, after which he was released by the police; that up to the time of instituting the action, the appellants had not released the result of the investigation or informed him of the outcome of any wrong doing or fraud he allegedly committed. Respondent maintained that the appellants exercised undue influence or duress over him resulting in his signing of exhibit A and that the appellants had thereby defrauded him of his property.
On the other hand, it is the case of the appellants that the respondent was suspended from duty on the ground that the respondent, in the course of his employment with the 1 st appellant, defrauded the 1 st appellant to the tune of N80,000.00 which later increased to N100,000.00 following the audit of the 1 st appellant’s accounts by auditors; that the respondent admitted his role in the fraud at a management committee meeting of the I 5t appellant as evident in exhibit A attached to the counter affidavit the minutes of that meeting. The appellants denied ever intimidating the respondent in executing exhibit A attached to the affidavit in support of the originating summons; that the conveyance exhibit A was a voluntary act of the respondent to avoid criminal prosecution for the fraud committed on the 1st appellant.
This is on appeal against the judgment of the Court of Appeal holden at Calabar in appeal No CA/C/5/99 in which the court dismissed the appeal of the appellants against the judgment of the High Court of Cross River State holden at Calabar in suit No C/l 1/95 delivered on the 20th day of November, 1995 in which it entered judgment for the present respondent who was the plaintiff in the suit. The action was instituted by respondent by way of originating summons for the determination of the question: “Whether, in accordance with the Land Use Decree 1978, valid title has been passed from the plaintiff to the 1st defendant arising from the agreement of 25th January, 1987, over the plaintiff’s property situate at No 3C Enebong Avenue, Calabar?”
➥ ISSUE(S) & RESOLUTION
I. Whether or not the deed of conveyance Exhibit “A” to the originating summons was null and void and of no effect whatsoever under the Land Use Act for the reason only that the consent of the Governor was not first sought and obtain before it was signed/executed.
RULING: IN RESPONDENT’S FAVOUR.
I.A. The consequence of the unlawful act of alienating a right of occupancy without the requisite consent of the governor is what is stated under Section 26, also supra. It makes the transaction, such as exhibit A expressly null and void. Section 26, in declaring such as act null and void used the word “shall” which, in the instant case makes the provision mandatory, not directory or discretionary. Learned counsel for the appellants wants the court to hold that Section 26 of the Act does not say that the alienation is void for all purposes but do not see how that interpretation can be achieved. The provision, as earlier stated is clear and unambiguous and therefore calls for no interpretation it says that an alienation made contrary to the provisions of the Act “shall be null and void” which to my mind, means “null and void” for all purposes under the sun; if it were not so the law would expressly or by necessary implication have stated so.
➥ ENDING NOTE BY LEAD JUSTICE – Per – WS Onnoghen, JSC.
There is the argument that appeals to the conscience of the court as to whether the respondent should be allowed to benefit from his wrong e.t.c particularly in view of the fact that appellants did expend money to settle the indebtedness of the respondent in respect of the property which the court failed to order to be refunded by way of consequential order. It should be noted that I am not commenting on that submission because it is validly raised before this court, as it is the law that the court does not grant to a party what he does not request or ask. In the instant case the appellants never made an alternative prayer to the lower courts to that effect, hence it was never considered. However, the purpose for my commenting on the point is to advise the appellants to take up an action before the appropriate court to recover whatever money(s) they consider legitimately due to them in respect of the property. This court is not a Father Christmas. The original respondent is now late, as disclosed in the brief of argument of the appellants in an action to recover whatever sum deemed recoverable can be maintained against his estate. All is therefore not lost, as the appellants would want us to believe.
➥ REFERENCED (STATUTE)
Sections 22 and 26 of the Land Use Act.
Order 2 Rule 32 of this Supreme Court Rules.
➥ REFERENCED (CASE)
⦿ GROUNDS OF APPEAL MIST ARISE FROM THE JUDGEMENT
In Bello v Aruwa (1999) 8 NWLR (Pt.615) 454 it was held that grounds of appeal are not formulated in abstract. They must arise from the judgment in the same way as the issues arise from the grounds of appeal. And however meritorious a ground of appeal may be, it must be connected with the controversy between the parties at the trial court. In Abiola v Abacha (1997) 6 NWLR (pt.509) 413 it was held that the grounds of appeal must stem from the decision of the court below.
➥ REFERENCED (OTHERS)