➥ CASE SUMMARY OF:
Chime & Ors. v Chime & Ors. (2001) – SC
by Branham Chima (SAL).
Supreme Court – SC 179/1991
➥ JUDGEMENT DELIVERED ON:
Friday, the 26th Day Of January 2001
➥ AREA(S) OF LAW
Power of Attorney.
➥ PRINCIPLES OF LAW
⦿ APPELLATE COURT HAS A DUTY TO EXAMINE THE TOTALITY OF EVIDENCE
Nevertheless, the court, especially the appellate court, has a duty to examine the totality of the evidence tendered before the trial court in order to be satisfied that what the parties had pleaded is in consonance with the evidence led at the trial. — Wali JSC.
⦿ BECAUSE A POWER OF ATTORNEY WAS GIVEN DOES NOT DIVEST THE DONOR OF POWER
The fact that a Power of Attorney was given by the fourth respondent (who is the donor) of his power to alienate the property does not divest the donor of power to deal with the property so long as the first respondent (the donee) had not exercised such power. (See Gregory & Biude v (1) Clement Nwara (2) AC Rivers State (1993) 2 NWLR (Part 278) 638 at 664 and 665; Ajowon v Adeoti (1990) 2 NWLR (Part 132) 271 at 222 and 294, and Oshola v Finnih (1991) 3 NWLR (Part 178) 192 at 197). — Wali JSC.
⦿ NOT EVERY APPEAL ON ERROR WILL SUCCEED; THE ERROR MUST OCCASION A MISCARRIAGE OF JUSTICE
I think I ought to point out in this connection that even if there was any error in the procedure the evidence of the fourth defendant was taken, and I clearly do not so hold, it is not every error or mistake that will result in an appeal against the judgment in a suit being allowed. It is only when the error is substantial in that it has occasioned a miscarriage of justice that an appellate court is bound to interfere. (See Onajobi v Olanipekun (1985) 4 SC (Part 2) 156 at 163; Ukejianya v Uchendu 13 WACA 45, at 46; Anyanwu v Mbara (1992) 5 NWLR (Part 242) 386 at 400; Azuetonma lke v Ugboaja (1993) 6 NWLR (Part 301) 539 at 556 etc.). — Iguh JSC.
⦿ TAKING EVIDENCE BY HIGH COURT INSTEAD OF MAGISTRATE COURT
It seems to me that if under the provisions of Order 23, rule 54 of the High Court Rules of Anambra State, 1988 a Magistrate or any officer of the court is permitted to take the evidence of a witness by way of commission, it cannot, with respect, be right to suggest that a High Court Judge, a judicial officer with much higher jurisdiction and status than a Magistrate or any other officer of the court is incompetent to take such evidence unless there exists any law which stipulates to the contrary. I know of no such law and my attention has not been drawn to any in this appeal. I am therefore of the view that the High Court was right by taking the evidence of the fourth defendant by way of commission as urged upon the court by learned Counsel for the appellant. — Iguh JSC.
⦿ STATEMENT OF CLAIM IS NOT EVIDENCE; PARTY MUST LEAD EVIDENCE
The Statement of Claim of the plaintiff and co-plaintiffs was not evidence before the court of trial. Failure to lead evidence in line with their pleadings means simply this:- that the claim must fail. — Katsina-Alu JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The first plaintiff is the wife of the second plaintiff and an in-law to the fourth defendant. She sued the first, second and third defendants in the Enugu High Court of the then Anambra State claiming for the following reliefs as contained in paragraph 17 of her Statement of Claim:- “Wherefore the plaintiff claims against the defendants jointly and severally as follows:- (i) A declaration that the Power of Attorney dated 13 July, 1990 and registered as No 64 at page 64 in Vol. 1299 of the Lands Registry, Enugu was not given by the fourth defendant. (ii) A declaration that the Notice to Quit No RP/1998/90 dated 24 July, 1990 and given by the second defendant to the plaintiff in respect of the property plaintiff lawfully occupies at No 22 Moorehouse Street, Ogui Enugu is invalid, null and void and of no effect. (iii) A declaration that the purported conveyance/assignment between the first and second defendants for which the approval/consent of the third defendant is required and based on the Power of Attorney registered as 64/64/1299 is irregular, null and void. (iv) An injunction restraining the defendants, their servants, agents and functionaries from taking steps to perfect the assignment and from interfering with the plaintiff’s use and enjoyment of the property situate at No 22 Moorehouse Street, Ogui, Enugu.”
The learned trial Judge struck out the motion for the arrest of judgment and proceeded to deliver his considered judgment in which he dismissed the plaintiffs’ claims while upholding the counterclaim of the first, second and fourth defendants. He awarded N5,000 general damages specifically to the second defendant and costs of N2,000 generally to the first, second and fourth defendants.
Being not satisfied with the judgment of the trial court, the plaintiffs appealed to the Court of Appeal, Enugu Division. In a considered judgment of that court by Achike JCA (as he then was) with which both Ejiwunmi JCA (as he then was) and Niki Tobi JCA agreed, the appeal was unanimously dismissed with N1,000 costs in favour of the defendants/respondents.
Still not satisfied by the Court of Appeal decision, the plaintiffs have now further appealed to this Court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Court of Appeal was right to have dismissed the appellants’ appeal after finding that the Writ of Summons was not served on the third defendant and that the motion for joinder of the fourth defendant had not been served on all the parties to the suit to wit the first and third defendants, on the ground that it was for the party not served and not for the plaintiffs/appellants to complain or that the non-service raises an issue of mere technicality?
RULING: IN RESPONDENT’S FAVOUR.
A. THE DEFENDANT IS THE ONE TO RAISE THE ISSUE OF NON-SERVICE
“It is not in dispute that neither first respondent nor the third defendant complained against the non-service of the court processes referred to above or any other order made. It does not therefore lie in the mouth of the appellant to complain on their behalf. It is abundantly clear from the printed record that neither the third defendant nor the first and second respondents complained against non-service of any court process on him, in fact throughout the proceedings in this case the third defendant did not put up any appearance. He did not join issue with the appellants on any aspect of the case. He remained a silent defendant who from the look of things had no stake in the matter he was just a nominal party. The Court of Appeal was perfectly right when it stated thus in the lead judgment:- “The application for nullification of such proceedings would be at the instance of the defendant against whom an order is made without prior notification of proceedings in which the order was made for the simple reason that a condition precedent for the exercise of the court’s jurisdiction in making the order has not been fulfilled . . . I am therefore clearly of opinion that for a party to a suit to apply for the proceedings to be nullified by reason of failure of service, where service is a requirement, it must sufficiently be established that he or she has not been served in respect of the proceedings and that the order made therein affects him. It is not in my view open to every party to the proceedings to make such an officious complaint. If such complaint is sustainable, it will yield startling results. Thus an aggrieved plaintiff, as in the instant appeal, would be enabled to appeal against a judgment against him on the technical ground that a party to the proceedings has not served some process.” (See Obimonure v Erinosho (1986) 1 All NLR 250; Richardson v Mellish 2 Bing 225; Madukolu v Nkemdilim (1962) 1 All NLR 587 and Skeconsult v Ukey (1981) 1 SC 6).”
II. Whether the Court of Appeal was right to have dismissed the appellants’ appeal when on the chronology of events as outlined by it, it was shown that the learned trial Judge took evidence of the defence and addresses of Counsel before pleadings closed?
RULING: IN RESPONDENT’S FAVOUR.
A. THE PLAINTIFF’S COUNSEL WAS THE ONE WHO INDUCED THE PROCESS FOR THE FOURTH DEFENDANT TO BE EXAMINED FIRST
“In the case in hand, there was medical evidence attached to the application of the respondents that the evidence of fourth respondent be taken on commission for his infirmness, due to old age and failing health condition. On request by learned senior Counsel for the plaintiff/first appellant who was then the only plaintiff, the learned trial Judge agreed to take the evidence himself. This was done and the witness was exhaustively cross-examined and re-examined. In my view it will be now too late for the learned Counsel to complain against the procedure which he induced the learned trial Judge to adopt. The evidence of fourth respondent was taken in fear that he might die before the time of taking his evidence was due. In my view the Court of Appeal after considering the circumstances leading to the taking of the evidence of fourth respondent, was right in its conclusion that:- ‘It is clear that the trial court was competent to take the evidence of fourth respondent as he did, out of turn, for the compelling reasons stated in the supporting affidavit to the application. Even if fourth respondent was well at the time his evidence was taken, yet if it appeared necessary for the purpose of justice, a trial court could and should order that fourth respondent’s evidence be taken out of turn as he in fact did. Surely, that is a sensible and cautious approach dictated by expediency. It is difficult to accept that by taking the evidence of fourth respondent out of turn in the circumstances shown above any reasonable appellate tribunal can hold that the trial court ordered the respondents to first begin their case. . . . Assuming, but not conceding, that it was irregular to take the evidence of fourth respondent out of turn, the complaint of irregularity will only avail the appellant and co-appellants if they can further show that they have in consequences suffered injustice by the fact that fourth respondent’s evidence was taken first. They did not make such complaint and could not have done so because their learned Counsel not only subjected fourth respondent, as DW1, to strenuous cross-examination he even had the second bite to further cross-examine that witness when he was recalled at the order of court at the request of the co-plaintiffs.’ There are no merits in these issues and are therefore resolved against the appellants.”
III. Whether the Court of Appeal was right to have failed to observe that the judgment of the learned trial Judge was a nullity, as having been delivered without due notice to the appellants and after the learned Judge had lost jurisdiction?
RULING: IN RESPONDENT’S FAVOUR.
A. THE CASE COULD BE CONTINUED DESPITE THE CREATION OF A NEW STATE
“As submitted by learned Counsel for the respondents, the fact that Enugu State was created out of the then Anambra State and the landed property in dispute is situate in Enugu State while the learned trial Judge belongs to or is an indigene of the new Anambra State, does not divest him of the jurisdiction to continue with the case to finality. Section 6 of Decree No 41 of 1991 provides as follows:- “Any proceeding pending before any court of a State immediately before the commencement of this Decree may, after such commencement be continued before that court and shall not adversely be affected by the provisions of this Decree.” This completely answers Issue 1 of the appellants’ brief. I need say no more on it.”
B. THE PLAINTIFF ABANDONED HIS MOTION; JUDGEMENT DELIVERED IS NOT NULL & VOID BECAUSE NO NOTICE WAS GIVEN TO COUNSEL
“When learned Counsel finally appeared in court he did not even deem it fit to apologise to the court but only discourteously told the court that he was not ready to go on with the motion and that the case file had been taken away from him. He did not apply for any adjournment. This in my view was nothing short of abandoning his motion for the arrest of judgment and the learned trial Judge was perfectly right and in order when he struck it out. Counsel have a duty to be respectful and courteous to courts. It is part of the discipline in the legal profession. It is Counsel that should wait for the court and not the other way round. I am yet to come across a provision of any of our laws which provides that where a judgment is delivered without due notice of the delivery date to a party involved in consequence of which he is absent in court when the judgment is delivered, the judgment so delivered is null and void. Its delivery is neither without jurisdiction, nor is it null and void. It may amount to a mere irregularity which has no effect on the substance of the judgment or jurisdiction of the court.”
IV. Whether the Court of Appeal was right in holding that the sale of the house in dispute to the second respondent was duly proved and that it proved the N5,000 damages awarded to it?
RULING: IN RESPONDENT’S FAVOUR.
A. THE APPELLANT AS PLAINTIFF LED NO EVIDENCE
“In a considered judgment by the learned trial Judge, he opined on this issue as follows:- ‘Let me however deal with the several claims of the plaintiffs. The first is a declaration that the Power of Attorney dated 13 July, 1990 and registered as No 64 at page 64 in Vol. 1299 of the Lands Registry Enugu was not given by the fourth defendant. The said Power of Attorney is Exhibit ‘A’. The fourth defendant told me that he executed and gave Exhibit ‘A’. He identified his signature in Exhibit ‘A’. I believe him that he signed Exhibit ‘A’. Moreover, the plaintiffs through their Counsel says that the plaintiffs also rely on the evidence of fourth defendant. I find no substance in this claim in the light of the evidence before the court. The second relief claimed by the plaintiff but not claimed by the co-plaintiffs is for a declaration that the notice to Suit No RP/1998/90 dated 24 July, 1990 and given by the second defendant to the plaintiff in respect of the property is invalid, null and void and of no effect. No such notice is before this Court. No reason was given as to why the notice was not produced in court. There is no evidence why the notice to quit should be set aside. My view is that the plaintiff has not made this claim in any seriousness. The claim accordingly fails. The third relief claimed by the plaintiff which is the same as the second relief claimed by the co-plaintiffs is for a declaration that the purported conveyance/assignment between the first and second defendants for which the approval/consent of the third defendant is required and based on the Power of Attorney registered as 64/64/1299 is irregular, null and void. No evidence has been led by the plaintiff or co-plaintiffs why the transaction should be declared irregular, null and void. There is no evidence that the party or parties seeking this declaration have any beneficial interest in the subject matter of the claim. There is no evidence that the plaintiff or the co-plaintiffs are parties to any such transaction. There is no evidence of the nature of the conveyance/assignment. If it is in the form of a document, there is no evidence that any of the plaintiffs is party to it. Moreover, the document is not before me. I hold the view that the plaintiffs have not made out a case to entitle them to the declaration sought. This claim also fails.’
The Court of Appeal in affirming the above conclusions of the court said:- ‘First the question of invalidity of Exhibit ‘A’. This is an assertion by the appellant. It is trite that he who asserts must prove. If there is a failure of proof the contested assertions become unsustainable. From appellants’ pleadings, Exhibit ‘A’ was a forgery that involved a criminal act which must be proved beyond reasonable doubt. See Section 138(1) and (2) of the Evidence Act, Laws of Nigeria (1990) edition. The burden of proof in respect thereof rested squarely on appellant who gave no evidence whatsoever. On the other hand, fourth respondent testified emphatically as having executed Exhibit ‘A’. That piece of evidence remained unchallenged, uncontradicted, supported by the pleading and by its nature, not incredible, the trial Judge had no option but to accept it. (See Nwabuko v Otti (1961) 2 SCNLR 232; Bello v Eweka (1981) 1 SC 101; M.I.A. & Sons v F.H.A. (1991) 8 NWLR (Part 209) 295).’”
“On the whole I find no merit in any of the grounds of appeal raised and canvassed. The appeal lacks merit and is hereby dismissed with N10,000 costs to the respondents.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 6 of Decree No 41 of 1991 provides as follows:- “Any proceeding pending before any court of a State immediately before the commencement of this Decree may, after such commencement be continued before that court and shall not be diversely affected by the provisions of this Decree.”
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)