Okechukwu Adimora V. Nnanyelugu Ajufo & Ors (1988)

LawGlobal-Hub Lead Judgment Report

A. OPUTA, J.S.C.

The facts of this case lie within a comparatively narrow compass. The only difficulty seems to be that both the Appellant’s Brief as well as the Respondents’ Brief left much to be desired. The proper format of a good Brief should contain the:

(i) Introduction and concise Summary of the Facts.

(ii) Decision of the Court of Appeal.

(iii) Issues for Determination.

(iv) Legal Argument.

(v) Summary and Conclusions.

(vi) List of Authorities.

I have had occasion in Engineering Enterprise of Niger Contractors v. A. G. of Kaduna State (1987) 2 N.W.L.R. 381 at pp.413/414 to comment on Brief writing and on the format and contents of a good Brief. One can only hope that these observations would be heeded in future.

The Plaintiff negotiated through the intermediary of the 2nd Defendant to purchase eleven plots of land from the Defendants’ family land situate at Iyiukwu. Pursuant to an agreement to buy and sell, the Plaintiff paid the sum of N5,400 as purchase price of those eleven plots. The receipts for the payments were issued by the 2nd Defendant and were tendered as EXS. A, B, B1-B7. The only issues of fact on which the two Courts below based their findings and on which the Plaintiff’s case was dismissed were:-

(i) Whether or not the 2nd Defendant was acting for and on behalf of the Defendant’s family and

(ii) Whether the money the 2nd Defendant got from the Plaintiff (N5,400.00) was paid over to the Defendant’s family

Without any reference to the pleadings and the evidence led the two Courts below decided both issues against the Plaintiff. Having thus lost in the two Courts below, the Plaintiff has now appealed to this Court against the concurrent findings of the two Courts below.

On the 22nd day of March 1988, when this appeal was heard, Mr. Ezeuko, learned counsel for the Appellant, was present but Chief Obianyo, learned counsel for the Respondent was absent although Miss C. N. Obianyo appeared for Chief F.M. Obianyo on the 14/12/87 when both principal counsel (Ezeuko – Obianyo) asked for adjournment. The appeal was then adjourned in open Court to 21/3/88 for hearing. On the 21/3/88 Mr. Ezeuko appeared but Obianyo did not. The appeal was further adjourned to 22/3/88. On the 22/3/88 Mr. Ezeuko referred us to Order 6 Rule 8(6) of the Supreme Court Rules 1985 and asked the Court to take the appeal as argued on the Briefs since both sides had each filed its Brief of Argument. Under our Rules parties may rely on their Briefs. Oral arguments are merely in elaboration of points taken up on the Brief. Mr. Ezeuko who was present was allowed to comment on two points argued in his Brief – namely on the pleadings of the parties and on the issue of limitation of time.

Grounds 1, 2 and 3 of the Grounds of Appeal at pp. 75-77 deal with the Issues –

(i) Whether the Plaintiff dealt with the 2nd Defendant in his personal capacity or

(ii) Whether the 2nd Defendant was acting for and on behalf of the family;

(iii) Whether the purchase price of N5,400.00 which the Plaintiff paid to the 2nd Defendant was ultimately paid over by the 2nd Defendant to the family and if the answer to Issue No. (iii) above is yes was the Court of Appeal right in holding:-

1. “There is therefore no basis, in my opinion for making the order compelling the Respondents to refund the money collected by the 2nd Respondent in his personal capacity”.
2. “The Appellant had not successfully shown that the 2nd Respondent received the money on behalf of the family or issued the receipts on behalf of the family”.
3. “As there was no contract the issue of damages did not arise at all. There was no contract and therefore there could not be an order for specific performance and consequently no order for damages could be made”

This case stoutly and eloquently emphasises the central and crucial role of pleadings in civil cases. It also offers a valid exception to the well-known stand of this Court not to interfere with the concurrent findings of two Courts below.

The Plaintiff, Okechukwu Adimora, sued the three Defendants for themselves and on behalf of all other members of the Mazeli-Alamuzo Ojidoko family of Ogbeodogwu Quarters, Onitsha. He claimed as follows:-

(a) Specific performance by the Defendants of the contract of sale.

In the alternative:

(b) N5,400 (Five thousand, four hundred Naira) being the purchase price paid to the Defendants between 1958 and 1964.

(c) N49,500 being the profit the Plaintiff would have made if he had sold the plots at the current value.

(d) General Damages at N25,100.

Pleadings were ordered, filed and exchanged. Since the main complaint of the Plaintiff/Appellant is that the two Courts below completely ignored the case of each party as pleaded, and went on a frolic of their own to make findings of fact on evidence not covered by or else contradictory to those pleadings, it becomes imperative to set out in detail the case of each of the parties as pleaded.

The Plaintiff’s case as pleaded is as follows:”

STATEMENT OF CLAIM

1. The Plaintiff is a Legal Practitioner based at Onitsha.
2. The 1st Defendant is the present Okpala and head of Mazeli Alamuzo-Ojidoko family. The 2nd Defendant who is a Second class Chief, popularly known as the Akpe of Onitsha and the 3rd Defendant are all important members of the family. All the Defendants were at all times material to this action, members of the Board of Trustees of the Defendants’ family land.
3. Between 1958 and 1964, the Defendants acting for themselves and on behalf of their family and as absolute beneficial owners, sold to the Plaintiff Eleven Plots of their land situate at Iyi Ukwu Layout along Oguta Road after Queen of the Holy Rosary College now known as Girls High School, Onitsha at the price of #50 now N500 (Five hundred Naira) per plot.
4. By his letter dated the 11th of February, 1963 the 2nd Defendant who was acting as Secretary to the Board of Trustees confirmed the price of each plot as stated in paragraph 3 ante as well as other conditions relating to the transaction. This letter would be founded upon at the trial.
5. In consideration for the sale, the plaintiff paid to the Defendants the total agreed purchase price of N5,400 (Five thousand, four hundred Naira) and the receipts covering this amount and dated – 3/12/58, 27/8/62, 12/2/63, 1/7/63, 12/7/63, 15/6/64, 7/8/64 and 31/7/64 were duly issued to the Plaintiff by the 2nd Defendant.
6. The Plaintiff purchased these plots of land with a view to resell nine plots when the value of land in area appreciates, and to build his residential house on the remaining plots.
7. On the completion of the payment of purchase price, the plaintiff requested the Defendants to put him into possession and to allocate to him the plots so purchased.
8. Despite repeated demands the Defendants kept On prevaricating until the last civil war set in. Meanwhile, the defendants started 10 sell the plots at their Iyi-Ukwu land at enhanced price.
9. At the end of the civil war, the Plaintiff returned to Onitsha and made several approaches to the Defendants for the allocation of the plots sold to him but the Defendants would not comply but rather continued to sell the plot at their Iyi-Ukwu land now at greatly enhanced price of between N6,000 and N7,000 per plot.
10. On or about the 5th of January, 1974 the first defendant who is the head of Ojidoko Mazeli family requested through his Solicitor Mr. N.C.O. Okwudili Esquire, to see the Plaintiff on the 7th January 1974. This message was conveyed to the Plaintiff by the Solicitor Mr. N. C. O. Okwudili Esqr., by the Solicitor’s letter dated 5th January 1974.
11. The Plaintiff acting on the strength of this letter went to No. 20B, Ojedi Road 10 see the 1st Defendant who thereby apologised to the Plaintiff for the inability of the family to allocate the purchased plots to him as the price of the said plots has greatly appreciated. The Defendants have not returned to the Plaintiff the sum of N5,400 paid to them in respect of the plots sold to the Plaintiff.
12. WHEREFORE the Plaintiff claims from the Defendants as follows:-

(a) Specific performance by the Defendants of the contract of sale.

In the alternative:-

(b) N5,400 (Five thousand, Four hundred Naira) being the purchase price paid to the Defendants between 1958 and 1964.

(c) N49 ,500 being the profit the Plaintiff would have made if he had sold the plots at the current value.

(d) General Damages at N25,100.

Dated at Onitsha this 30th day of May, 1974.

(Sgd) G.E. EZEUKO”

Plaintiffs Solicitor,

No. 10, Martin Street,

Onitsha.

It is very clear from the Plaintiffs Writ of Summons and Statement of Claim that the 3 Defendants were sued for themselves and as representing the Mazeli-Alamuza-Ojidaka Family; that the agreement to sell 11 plots of their family land was made between the Plaintiff and the family; that the agreed purchase price of N5,400.00 was paid by the Plaintiff to the family; that the Defendants’ family received the purchase price of N5,400.00 afore-mentioned but delayed, neglected and ultimately refused to convey not even one single plot to the Plaintiff.

What was the Defendants’ answer to the Plaintiffs averments In paragraph 8 of their Statement of Defence the Defendants pleaded:-

“8. The Defendants are not in a position to admit or deny paragraphs 5, 6, 7 and 8 of the Statement of Claim and will put the Plaintiff to the strictest proof of the allegations contained therein”.

If pleadings are to have any meaning at all, they should deal with the point of substance and should not be evasive. One therefore cannot shut one’s eyes to the prevailing tendency, nowadays, to make pleading less exact. But if there are to be pleadings at all, there is a great advantage in holding that they should define the issues between the parties. I am not unaware of the fact that paragraph 1 of the Statement of Defence was a general traverse. It is however my view that paragraphs 1 and 8 of the Statement of Defence have not answered with sufficient particularity the facts averred by the Plaintiff in paragraphs 5, 6, 7 and 8 of this Statement of Claim. The Plaintiff clearly set out all the receipts covering the various payments he made to the Defendants’ family through the 2nd Defendant. Just how could the Defendants not be in a position to admit or deny these payments evidenced by the receipts pleaded

It is relevant here, to mention the provisions of Order 33 Rules 9, 10 and 11 of the High Court Rules Cap 61 of 1963- Laws of Eastern Nigeria – applicable to Anambra State. By these Rules a mere general denial is insufficient. The Defendants in this case were bound to deal with the averments regarding the sale and payments of money to their family, the receipt covering those payments having been clearly pleaded. The Court will not accept insufficient traverse. The circumstances, where, a half-hearted and weak-kneed denial will be regarded as insufficient traverse, has been considered in many decisions of this Court. In Lewis And Peat (N. R. I.) Ltd. v. Akhimen (1976) 1 All N.L.R. 460 at p.465 this Court per Idigbe, J.S.C. noted:-

“We must observe, however, that in order to raise an issue of fact …. there must be a proper traverse, and a traverse must be made either by a denial or non-admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the Statement of Claim, he must state so specifically; and he does not do this satisfactorily by pleading thus: “defendant is not in a position to admit or deny (the particular allegation in the Statement of Claim) and will at the trial put the plaintiff to proof”.

I must add that the Defendants’ position in this case was not made any better or stronger by saying that they “will put the plaintiff to the strictest proof of these allegations contained therein”. After all the onus of proof is an onus to prove an issue. There must first of all be an issue of fact before there could be an onus to prove that issue. And where there has been no sufficient traverse and therefore no issue, one wonders what the Plaintiff is expected to prove. And this is where Order 33 Rule 9 comes in:-

“Order 33 r 9 -….. Every allegation of fact, if

Not denied specifically or by necessary implication, or stated not to be admitted, shall be taken as established at the hearing” (italics mine).

In this case by the operation of the above rule, paragraphs 5, 6, 7 and 8 of the Plaintiffs Statement of Claim should have been regarded as established and no further proof of them should have been required.

Another interesting aspect of the pleadings in this case is that the 3 Defendants filed one joint defence. The Plaintiff pleaded in paragraph 5 of his Statement of Claim that the purchase price of N5,400.00 was paid to the family through the 2nd Defendant who issued receipts covering the various payments. The Defendants’ Statement of Defence did not plead that the amount of N5,400.00 pleaded in paragraph 5 of the Statement of Claim was not paid to the 2nd Defendant. They did not plead that the 2nd Defendant was paid in his personal capacity and not as an agent of the family. They merely pleaded that “they will put the Plaintiff to the strictest proof of the allegations contained therein”.

H Paragraph 6 of the Statement of Defence pleaded thus:-

“6. The Plaintiff was aware of the cases (between the Defendants and Chief Ibeziako and Obosi people) but decided to advance his own money and that of some of his relations to the Defendants’ family for the purchase of some land in future if the Defendants succeeded in winning the cases …”

(italics mine).

The combined effect of paragraphs 5, 6, 7 and 8 of the Statement of Claim vis-a-vis paragraphs 6 and 8 of the Statement of Defence will be as follows:-

(i) That the Plaintiff negotiated with the 2nd Defendant as agent of the family for the purchase of eleven plots of land in the Iyi-ukwu land belonging to the Defendants.

(ii) That the Defendants agreed to sell 11 plots to the Plaintiff.

(iii) That the Plaintiff paid a total of N5,400.00 to the Defendants’ family for the purchase of the said 11 plots.

(iv) That the family received the amount of N5,400.00 paid by the Plaintiff.

If pleadings are still what they are meant to be the above facts would have, at the close of pleadings, been regarded as established. It was thus unnecessary to adduce further evidence to establish any of the 4 facts listed above. The trial Court would have been right if it gave the Plaintiff judgment (excluding specific performance) on the pleadings. I have on purpose said “excluding specific performance” because the Court cannot on the pleadings order specific performance, which is an equitable relief, without hearing evidence of the surrounding circumstances which will dictate on whose side equity will lean.

The trial Court proceeded to receive oral evidence without adhering to the provisions of Order 32 of the High Court Rules which stipulates:-

“Order 32-

Rule 1. At any time before or at the hearing the, Court may, if it thinks fit, on the application of any party, or of its own motion, proceed to ascertain and determine what are the material questions in controversy between the parties, and may reduce such questions into writing and settle them in the form of issues, which issues when settled may state questions of law on admitted facts, or questions of disputed facts, or questions partly of the one kind and partly of the other.

2. The Court may, if it thinks fit, direct the parties to prepare such issues, and the same shall be settled by the Court.
3. …..
4. ……”

Our trial Courts should always insist on Settlement of Issues after pleadings, before the actual hearing. The practice has a good deal to commend it to all trial Courts. In Appellate Courts, Briefs are filed where the Issues or Questions for Determination are clearly set out. Where parties in a trial Court know the issues in controversy, they will more likely confine themselves to proof of such issues and no more. Also matters not in dispute can then easily be admitted by consent. This will lead to a considerable saving in time and effort. Where issues are settled, it will be clear to the parties and to the Court on what points, issues or questions, the Court is called upon to reach a decision. Unfortunately issues were not settled in this case in the trial Court and that is the root cause of the present headache in this otherwise simple and straightforward case.

After hearing evidence that was relevant and irrelevant; admissible and inadmissible (evidence of facts not pleaded is inadmissible and irrelevant as well as evidence that contradicts a party’s pleading) the learned trial Judge, Nwokedi, J. at p.33 of the record found as follows:-

“1. There is no doubt that the plaintiff bought some plots of land at Iyiukwu Layout between 1958 and 1964.

2. There is no doubt that the 2nd Defendant …. was the intermediary through whom the Plaintiff purchased these plots”.

And at p.34 of the record the trial Judge continued:-

“3. It is however doubtful whether the Plaintiff dealt with the Defendants as members of the Mazeli/Alamuzo/Ojidoko family”.

This doubt is self-induced as it does not appear from the pleadings and the admissible evidence. The Plaintiffs in his paragraphs 4 and 5 of the Statement of Claim pleaded that he dealt with the Defendants’ family through the 2nd Defendant as the intermediary. The learned trial Judge did find (in finding No.2 above) that the 2nd Defendant was the intermediary. The question arises – intermediary between the Plaintiff and whom The only logical, reasonable and I dare say obvious answer is intermediary between the Plaintiff and the Defendants’ family as pleaded by the Plaintiff and not at all traversed by and in the Statement of Defence. Also at p.12 of the record, the trial Court, that conveniently entertained some doubt as to whether the Plaintiff dealt with Mazeli/Alamuzo/Ojidoko family or with the 2nd Defendant personally, (in spite of the pleadings) made the following notes:-

“Court: Defendants at this stage asked to be given three months from date to produce the sum of N5,400 in Court. Case is therefore adjourned to 31st July, 1975 for this amount to be produced in Court” (italics mine).

Also at p.37 of the record is the following note:-

“The sum of N5,400.00 deposited in Court by the Defendants is to be returned to them” (italics mine).

From the two notes above it was and ought to have been clear to any unbiased and fair-minded tribunal that the Plaintiff dealt with the family and not with the 2nd Defendant personally. In fact the Defendants clearly admitted in paragraph 6 of their Statement of Defence that “the Plaintiff… advanced his own money and that of so the of his relations to the Defendants family for the purchase of some land….” In spite of this admission by the family and the payment of the N5,400.00 into Court by the selfsame family, the learned trial Judge still had some doubt. This kind of doubt cannot be genuine. It is either manufactured or self-induced. No appellate Court should take such doubt seriously.

There are some other bizarre findings by the learned trial Judge. At p.34 of the record the trial Court made another finding:-

“I have no doubt that the Plaintiff is a victim of an elaborate fraud carefully hatched out by 2nd Defendant alone. I am satisfied that if the Plaintiff paid out any money at all in respect of Iyiukwu land he paid it to the 2nd Defendant who issued him with fake Receipts” (the italics mine).

Fraud implies a willful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to. Fraud for the purposes of the civil law includes acts, omissions and concealments by which an undue and unconscientious advantage is taken of another: Green v. Nixon (1857) 23 Beav 530 at p.535. The Defendants filed one joint Statement of Defence. Not one single paragraph of the entire pleadings of the Defendants pleaded fraud and in our law fraud has to be specifically pleaded. But if the trial Judge found the entire circumstances of the case, as pleaded by the Defendants, to constitute an “elaborate fraud” against the Plaintiff, one wonders why he singled out the 2nd Defendant who received the money – N5,400.00 from the Plaintiff and who (on the admission of the Defendants in paragraph 6 of the Statement of Defence) paid” same over to the family. If the Plaintiff was a victim of an elaborate fraud by the Defendants, as the finding in question seems to suggest, then one wonders why the trial Court failed to apply the maxim – Nullus commodum capere potest de injuria sua propria (Co Litt 148b) – “No man can take advantage of his own wrong”. Why did he (the trial Judge) allow the Defendants to win and thus take advantage of their own deceit

Again the Defendants in their Statement of Defence never challenged the “Receipts” issued by the 2nd Defendant as anything but genuine. The Defendants having admitted in their statement of Defence (paragraph 6) that the Plaintiff paid money to their family for the purchase of plots in Iyiukwu land cannot give any evidence contrary to that admission. If they did give such evidence. then the trial Court should have held that such evidence contrary to their pleadings went to no issue and should have expunged it from the record when considering its judgment:

Aniemeka Emegokwue v. James Okadigbo (1973) 4 S.C.113 at p.117; George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All N.L.R. 71 at p. 77; National Investment & Properties Co. Ltd. v. Thompson Organisation Ltd. & Anor. (1969) N.M.L.R. 99 at p.104; Ferdinand George v. The United Bank for Africa Ltd. (1972) 8-9 S.C. 264 at p.274; Ebueku v. Amola S.C.206/1985 delivered on 25/3/88 (not yet reported).

Was there any evidence categorically stating the opposite of paragraph 6 of the Defendants’ Statement of Defence I am unable to find one. The Defendants called only one witness – Nnanyelugo John Ajufo D.W.1. His evidence in-chief made no mention of the amount of N5,400.00 paid by the Plaintiff for eleven plots in their Iyiukwu land. But under cross-examination at pp.20/21 of the record, D.W.1 testified:-

“I do not know that my family got some money from plaintiff. Plaintiff only told me so. I asked 2nd Defendant on record if what Plaintiff told me about his paying money to members of our family through him was correct and he admitted but said that Plai1iliff had no records. I wanted to know from the 2nd Defendant whether the money collected by him from the Plaintiff was for the family or for himself personally. He told me that Plaintiff did not complete the purchase price……….”

(italics mine).

As I observed earlier on, the 3 Defendants were sued for and on behalf of their family. They all filed one Statement of Defence admitting that their family received the purchase money paid by the plaintiff. In view of this, the above cross-examination was absolutely unnecessary. But still I do not see anything in that evidence to justify the trial Court’s findings that the 2nd Defendant hatched and perpetrated an elaborate fraud on the Plaintiff; that if the Plaintiff paid any money at all in respect of the Iyiukwu land, he paid it to the 2nd Defendant personally and not for the family; that the receipts issued by the 2nd Defendant to the Plaintiff, Exhs. A, B, B1-B7were all faked. It is sad and unfortunate that the Court of Appeal was misled, may be, due to pressure of work, into confirming the absolutely erroneous and perverse findings of the trial Court, findings that blatantly ignored the pleadings of the parties. This Court has said it, and repeated it times without number, that parties are bound by their pleadings. It is usually taken for granted but this case calls for a direct pronouncement that like parties any trial Court is also bound by the pleadings and by the issues raised by and in those pleadings. The Court – the trial Court has no right whatsoever to consider a case not pleaded by the parties and in the end make findings of fact on the imaginary case it itself conjectured. Trial Judges cannot raise issues for the parties if those issues do not flow from the pleadings filed: Atolagbe v. Shorun (1985) 1 N.W.L.R. 360 at p.373; Dr. Nwafor Orizu v. Anyaegbunam (1978) 5 S.C. 1 at p.36; Ibang v. Usanga (1982) 5 S.C. 103 at p.124. In the case on appeal, the Defendants admitted in paragraph 6 of their Statement of Defence that the Plaintiff paid money for plots in Iyiukwu land “to the Defendants’ family”. And yet, the trial Judge found as a fact that the Plaintiff did not. The other defendants filed one joint Statement of Defence with the 2nd Defendant and therein, there was no allegation of fraud against the 2nd Defendant and yet the trial Judge mysteriously found, and against the natural drift of the pleadings, that he “Plaintiff was the victim of an elaborate fraud carefully hatched out by 2nd Defendant alone”. The 2nd Defendant issued the Plaintiff with receipts. No one questioned the genuineness of those receipts in the pleadings and yet still, the trial Judge found that “the 2nd Defendant issued the Plaintiff with faked Receipts”. The Defendants willingly offered to pay and in fact paid into the Court the sum of N5,400.00 the Plaintiff paid to their family for the 11 plots the family offered to sell to him but failed to convey same. The trial Judge thought the Defendants were silly and ordered the money paid into Court to be withdrawn out of Court by the Defendants. This meant that the Defendants were to keep their 11 plots of land and also keep the Plaintiffs N5,400.00. I wonder what anyone can call this – certainly not justice, not to talk of equity. I appreciate that it has been the policy of this Court not to interfere with concurrent findings of fact of two Courts below: Enang v. Adu (1981) 11-12 S.C. 25 at p.42; Okagbue v. Romaine (1982) 5 SC. 133 at pp.170-171; Lokoyi v. Olojo (1983) 8 S.C. 61 at pp. 68-73; Ojomu v. Alao (1983) 9 SC. 22 at p.53; Alade v. Alemuloke (1988) 1 N.W.L.R. 207 at p.212. This policy is however subject to two important exceptions. An appellate Court should ex debito justitiae interfere where there has been a miscarriage of justice as where the judgment appealed against is perverse or not the result of a proper exercise of judicial discretion: Ntiaro v. Akpan (1914-22) 3 N.L.R. 9 at p.10. It should also interfere where there has been some violation of some principles of law or procedure. In the case on appeal, the judgment of the learned trial Judge suffers from a serious violation of the elementary rules and principles of pleadings, it suffers from perversity in that the trial Judge descended into the arena of conflict and started considering an imaginary case not pleaded by the parties and making equally imaginary finding of fact and thereby turned himself into a partisan. The net result of these two errors was an obvious miscarriage of justice. This Court in Atolagbe v. Shorun supra considered some of the objectionable features which also one finds in the present appeal. At p.373 of the report of Atolagbe’s case, Aniagolu, J.S.C. observed:-

“The finding clearly ran counter to the evidence and the pleadings, and was a finding based not on the case formulated by the parties, but on an imaginary case formulated by the trial Judge on his own accord. The law does not permit such deviation from principle” .

In the same case at p.375 of the report, I observed:-

“Perverse simply means persistent in error, different from what is reasonable or required ….. A decision may be perverse where the trial Judge took into account matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious….”

In this case, the trial Judge obstinately shut his eyes to the admission of the Defendants (in paragraph 6 of the Statement of Defence) that the Plaintiff paid the purchase money to their family. He also took into account matters which he ought not to, namely that 2nd Defendant hatched and carried out an elaborate fraud on the Plaintiff. This was not pleaded by anyone. Also ignoring the significance of the Defendants willingly paying the purchase price of N5,400.00 into Court makes the judgment of the trial Court hardly reconcilable with reason, common-sense or justice. That payment made voluntarily by the Defendants was an admission against interest. It is difficult to understand why that payment in, made no impression on the learned trial Judge unless he was bent on giving judgment for the Defendants willy nilly. Thus the concurrent findings of fact in this case, made against the pleadings and against the admissible evidence cannot be allowed to stand. Grounds 1, 2 and 3 of the Grounds of Appeal therefore succeed. These 3 grounds were bound to succeed on the pleadings of the parties. From paragraphs 5, 6, 7 and 8 of the Statement of Claim which were not effectively traversed by paragraph 8 of the Statement of Defence and which paragraphs are thus deemed to have been established at the hearing; from the admission of the Defendants in paragraph 6 of their Statement of Defence that the purchase money was in fact paid to the Dependants’ family, one arrives at the inevitable conclusions:-

(i) That the 2nd Defendant did not deal with the Plaintiff in his personal capacity.

(ii) That the 2nd Defendant was the intermediary between the Plaintiff and the Defendants and that he concluded the contract to sell 11 plots of Iyiukwu land to the Plaintiff for and on behalf of the Defendants’ family

(iii) That the purchase price of N5,400.00 collected by the 2nd Defendant was paid over by the 2nd Defendant to his – the Defendants’ family.

(iv) That in view of the above:

(a) This Court has the power and jurisdiction to order and compel the Defendants’ family to refund and pay over to the Plaintiff the purchase price of N5,400.00 which he paid for a consideration that has wholly failed.

(b) There could have been an order for specific performance if there was evidence that eleven plots are still left unsold in the Iyiukwu land of the Dependants.

(c) In lieu of specific performance, the Plaintiff will be entitled to damages which will be the difference between the current purchase price of 11 (eleven) plots in the Iyiukwu land and its neighbourhood and the N5,400.00 paid by the Plaintiff.

So far so good for Grounds 1, 2 and 3.

Ground 4 of the Grounds of Appeal complained that:-

“4. Error in Law: The Court of Appeal erred in law when it upheld the decision of the trial Court that the action is statute-barred and more particularly in the following passages of the judgment (Mamman Nasir, P.C.A.):

“Even if it is assumed that there was a valid contract agreement between the parties, the said agreement was breached by the Respondents from the moment the Appellant asked to be put in possession (para. 7 of Statement of Claim) and was not put. In my opinion the Appellant had been caught by the limitation period under limitation Act 1923 or 1977”.

Particulars

(a) Paragraphs 5 and 6 of the Statement of Defence were specific as to when formal conveyance will be given to the Appellant.

(b) Appellant’s pleadings show that the case with Chief Ibeziako in Suit No. S.C. 514/65 ended on the 16th of June 1972.

(c) On the determination of the Respondent’s case with Ibeziako, Appellant demanded a conveyance but the Respondents refused to proceed with the sale.

(d) The Appellant then filed his action on 10th of April, 1974.

In dealing with limitation of actions, one of the most fundamental questions to answer is: When did the cause of action accrue

This crucial question is also the most difficult, as the answer will depend on the surrounding circumstances of each particular case. But may be a collateral question has to be answered first – What is meant by cause of action In its best definition it consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment: Cooke v. Gill (1873) L.R 8 C.P. 107; Read v. Brown (1888) 22 Q.B.D. 128. When these facts have occurred and provided there are in existence a competent plaintiff and a competent defendant a cause of action is said accrue to the plaintiff because he can then prosecute an action effectively. Thus the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action.

When did the Defendants come out openly to say that they will not convey the plots to the ‘Plaintiff That event would seem to be the last straw – the accrual of the cause of action. The Defendants themselves pleaded in paragraph 8 of their Statement of Defence that the purchase of the plots of land was to be “in the future if the Defendant succeeded in winning the cases” the dispute between the Defendants and Chief Ibeziako and Obosi people.

In his Reply to the Statement of Defence at pp.14/15 the Plaintiff also pleaded that the conveyance to him was to be made at the end of the case with Chief Ibeziako and that that case SC/514/65 was finally determined by the Supreme Court on 16th June 1972. Paragraph 4 of the Plaintiffs Reply pleaded as follows:-

“4. On or about 5th January, 1974 the first Defendant as the head of Ojidoko Mazeli family informed the Plaintiff categorically of the inability of the Defendants’ family to convey the plots purchased”.

Exhibit C is the letter with which the Head of the Defendant’s family invited the Plaintiff to a meeting at his residence on 7th January 1974. It was in this meeting that the Plaintiff was told that the family will not convey the plots purchased to him. The present action was filed as per T. R. No. 360951 dated 10/4/74. Three months and 3 days after the event (the refusal of the Defendants’ family to convey the plots) whereby the Plaintiffs cause of action became complete. The Plaintiffs case was thus not statute-barred. Ground 4 succeeds. All the grounds of appeal having now succeeded, the appeal also succeeds.

I will and hereby do set aside the judgment and orders of Onitsha High Court In this case especially the order for the amount of N5,400.00 paid out of Court to the Defendants. I also set aside the judgment and orders of the Court of Appeal Enugu Division dismissing the Plaintiffs appeal and awarding N300.00 costs against him. In their place I make the following orders:-

1. The sum of N5,400.00 paid into Court by the Defendants if already withdrawn should be paid by the Defendants to the Plaintiff immediately.
2. The Plaintiff is entitled to damages being the difference between the current price of 11 plots in the area and neighbourhood of the Iyiukwu land in Onitsha and the price paid by the Plaintiff to the Defendants.
3. The Administrative Judge Onitsha Judicial Division of the Anambra State High Court will assess the damages due to the Plaintiff.
4. The Plaintiff is entitled to costs as follows:

(i) In this Court ……………N500.00

(ii) In the Court of Appeal..N300.00

(iii) In the High Court…….. N250.00

K. ESO, J.S.C.: I have had the privilege of a preview of the judgment of my learned brother Oputa, J.S.C. I have also read the concurring judgment of my brother Craig, J.S.C. I am in support of both for the reasons eminently given by them

It is true this Court will not lightly interfere with concurrent findings of fact. But in this case the plaintiff was eminently posited to succeed both by reasons of his pleadings and evidence adduced and in particular admissions made by the Defendants.

I can only recommend the injunction contained in the judgment of my brother Craig, J .S.C. as regards counsel’s duties in filing pleadings. I abide by all the orders contained in the judgment of my learned brother Oputa, J.S.C.

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SC.210/1985