Alfred Nwanguma & Anor V. Akor Ikyaande & Ors (1992)
LawGlobal-Hub Lead Judgment Report
ALOYSIUS IYORGYER KATSINA-ALU, J.C.A.
On the 29th March, 1988 the appellants who were plaintiffs at the Katsina-Alu High Court brought this action against the respondents as defendants, in a representative capacity. The plaintiffs for themselves and as representatives of the Non-Tiv Palm Oil Traders in Adikpo claimed against the defendants jointly and severally as follows:
“(1) injunction to restrain the defendants jointly, their servants, agents, workers or otherwise howsoever from preventing the plaintiffs and those they represent from carrying on their lawful trade in palm oil in the Adikpo market and its environs and from in anyway whatsoever interfering with the plaintiffs’ constitutional rights to peaceful assembly and association and freedom from discrimination as enshrined in Sections 37 and 39 of the Constitution of the Federal Republic of Nigeria 1979.
(2) Damages.”
After pleadings were ordered, filed and exchanged the matter went to trial.
At the conclusion of the hearing and after counsel’s addresses and submissions, the learned trial Judge gave careful consideration to the totality of the evidence adduced and to all the submissions made on behalf of the plaintiffs and came to the conclusion that the plaintiffs’ claim lacked merit. He consequently dismissed the claim with N100.00 costs. Being dissatisfied, the plaintiffs have appealed to this court upon a number of grounds.
The short facts of the case are these. The plaintiffs are Ibos trading in palm oil and are based in Adikpo in Kwande Local Government Area of Benue State. The defendants who are Tiv are alleged to belong to a rival palm oil group of traders. A futile attempt was made to merge and have a single union. As a result of the rancour between the two, the plaintiffs alleged that on the 21/3/88 the defendants chased away the plaintiffs from the Adikpo main market and further stopped their customer from purchasing oil from them. In the fracas that ensued, the plaintiffs further alleged that the defendants carted away three jerry cans of palm oil valued at N600.00 belonging to the plaintiffs and those they represent. Following the alleged disturbance, the police arrested and prosecuted the defendants at the Senior Magistrate’s Court for the offence of inciting disturbance, Suit No. MCA/175c/86; the defendants were acquired and discharged. The was no appeal against the acquittal.
Arising from the grounds of appeal filed, the plaintiffs in their brief of argument filed on 20/12/90 formulated four issues for determination in this appeal and they are as follows:
“(1) Whether the trial court was right in dismissing the appellant’s claim for injunction when there was credible evidence that the respondents interfered with the appellants’ trading business in Adikpo main market on the 21/3/86 and on various other days with the threat to continue the interference.
(2) Whether the trial court was right in holding that “the statement of claim does not contain any facts allege that the defendants interfered with the plaintiffs’ trading business in the environs of Adikpo.
(3) Whether the trial court was right in applying and relying on the proceeding in Exhibit 1 (record of proceedings of a criminal case) before it, to this case.
(4) Whether having regard to circumstances of this case, the appellants were not entitled to be awarded general damages.
The defendants on the other hand raised the following issues in their brief of argument:
“(1) Did the plaintiffs/appellants prove by cogent evidence that they are entitled to the relief of an injunction?
(2) What is the probative value of Exhibit 1 which is the record of proceedings of the Senior Magistrate’s court Adikpo in which the defendants had earlier on been discharged and acquitted?
(3) Did the plaintiffs prove any losses to warrant the grant of either special or general damages with particular reference to the facts and circumstances of this case?
(4) Did the plaintiffs prove their representative capacity and that they arc entitled to damages?
I prefer the issues raised by the defendants; they arc more germane to the decision of the lower court and also covered by the grounds of appeal.
I shall deal with issues 1 and 2 together. It is not in dispute that the plaintiffs prosecuted their claim for themselves and on behalf of “Non-Tiv Palm-Oil Traders” in Adikpo. See paragraphs 1, 2, 3, 4, 5, 6, 9 and 10 of the statement of claim and the evidence of P.W.1, P.W.2 and P.W.3. Again from the pleadings and the evidence before the learned trial Judge, it is clear that the allegations upon which the civil claim is based are of a criminal nature that is inciting disturbance at Adikpo Market and stealing three jerry cans of palm-oil valued at N600.00 property of the plaintiffs. These are offences under Section 114 and 287 of the Penal Code. Since the commission of a crime is thus directly in issue, it becomes incumbent on the plaintiffs to prove the facts which they have alleged against the defendants beyond reasonable doubt: since the commission of a crime is directly in issue, Section 137(1) of the Evidence Act comes into play. The Section stipulates:
“137(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
The issue of crime must arise on the pleadings. The sub-section only applies where there is a specific allegation of a crime so that its commission can properly be said to be a basis or foundation of the claim or defence as the case may be: Nwobodo v. Onoh (1984) 15 SCNLR 1.
The complaint of the plaintiffs is of a criminal nature. The law imposes a heavy duty on the plaintiffs to prove the crime beyond reasonable doubt. If the plaintiffs fail to discharge the burden, their claim fails.
The pleadings of the parties show clearly that the defendants were prosecuted for the alleged offence at the Magistrate’s Court Adikpo. Paragraph 7 of the amended statement of defence shows that the prosecution at the Magistrate’s Court terminated in favour of the defendants: See Exhibit 1. The paragraph reads:
“Paragraph 7 of the plaintiffs’ averment in the statement of claim is admitted only to the extent that the defendants were, prosecuted in suit No.MCA/175c/86 viz Commissioner of Police v. Akor Kyaande and 6 others but were discharged and acquitted. At trial the defendants shall rely on the records and further contend that there was no appeal filed from the said decision.”
It has been said that the learned trial Judge applied and relied on the criminal proceedings (Exhibit 1) in coming to his decision. The law on this point is settled. The result of a criminal case cannot be used to establish a civil claim. Findings of fact in one case are irrelevant if they are intended to be used as such in another case: See Aro v. Fabolude (1983) 1 SCNLR 58: Dike v. Nzeka (1986) 4 NWLR (Pt.34) 144.
I have myself read the judgment of the court below over and over again and I must confess that I could not see where, in the course of his judgment, the learned trial Judge relied on Exhibit 1 in dismissing the plaintiffs’ claim. On the contrary, the learned Judge properly evaluated the evidence adduced without reference to Exhibit 1 before reaching his decision that the plaintiffs/appellants did not establish their claim.
A party may in our law tender a certified true copy of previous proceedings as part of his own case in a case between him and his adversary for two purposes. He may tender it to support his plea of estoppel per rem judicatam or he may tender it as a fact in issue under Section 52 of the Evidence Act: Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) 238; Adekunle v. Adegboye (1992) 2 NWLR (Pt.223) 305. Proceedings in a previous suit between the same parties or privies may also be tendered to discredit a witness – Alade v. Aborishade (1960) 5 FSC. 167; (1960) SCNLR 398.
In the present case, the fact that the defendants were prosecuted but acquitted and discharged, was no doubt a relevant fact The learned Judge, in my view, was right to have made reference to that fact in his judgment He said “in any case the defendants have already been found not guilty for the events of that day.”
In dismissing the claim of the plaintiffs, the learned trial Judge said that they failed to establish their claim as averred in paragraph 8 of the Statement of Claim that their evidence centred on matters not pleaded. Paragraph 8 of the statement of claim reads:
“The defendants have despite their prosecution as averred in paragraph 7 hereof continued on various dates in January and February, 1988 to harass and prevent the plaintiffs and those they represent in this suit from carrying on their lawful business of trading in palm oil at Adikpo Main Market”
The evidence of P.W.1 is to the effect that the defendants prevented the Ibo palm oil traders from selling or buying palm oil from Adikpo Main Market and in many of the markets in Kwande Local Government Area. But when this witness was cross-examined at p.22 lines 13-18, he said:
“I do not know the exact date on which the defendants disturbed us after their discharge and acquittal but it was about a week later. They have been disturbing us ever since.
Any time we go to bush market they would tell the “Tor Kasua” i.e. the Chief of the market not to allow us sell our palm oil in that market. I do not know the name of any of such Chiefs.”
Still under cross-examination P.W.1 said:
“They told him that they had registered their union, and so the Ibo Palm Oil sellers should not sell palm oil at Adikpo main market and all the other markets in Kwande.”
The witness concluded that they did not report the defendants to the police for disturbing them.
Augustus Uzoh testified as P.W.2. Under cross-examination he said:
“The 1st defendant still goes to various markets he go to arrange to disturb us. The defendants disturb us by telling people not to buy oil from us as we are not members of their union.
In Jato-Aka they spoke to the Chief of the market who spoke to his people who in turn refused to buy oil from us.”
Still under cross-examination P.W.2 continued thus.
“Apart from telling Chief of the market at Jato- Aka to tell his people not to buy our palm oil, 1st defendant did nothing. He did not fight we. He told the Chief of the market to tell his people not to buy oil from us but to buy from defendants only. Since their discharge defendants have not fought us but they still disturb us. Since then we have not gone to the police.”
While paragraphs 4, 5, 8 and 9 of the plaintiffs’ pleadings aver that the disturbance was at Adikpo main market, the evidence led by the plaintiffs is that the disturbances extended beyond Adikpo market to Jato-Aka and other unnamed markets in Kwande Local Government Area. Surely these are material facts that ought to have been pleaded. It is trite law that issues are tried on the parties pleadings and the parties are consequently bound by their pleadings. Evidence on a matter not pleaded goes to no issue. F.H.A. v. Sommer (l986) 1 NWLR (Pt.17) 533; Akpakpuna v. Nzeka (1983)2 SCNLR 1; Laguro v. Toku (1992) 2 NWLR (Pt.223) 278 at 287 per Belgore J.S.C. The learned trial Judge, rightly in my view, ignored the evidence of the plaintiffs to the effect that the defendants instigated the village market chiefs to tell their people not to buy palm oil from the plaintiffs. The learned trial Judge was also right when he held that “there is no evidence before me that after the discharge and acquittal of the defendants they in any way interfered with the trading business of the plaintiffs in Adikpo market”
The flaw in the plaintiffs’ case is that they regarded their present case as an appeal against the acquittal of the defendants by the criminal court. Their case was predicated on the criminal proceedings. The result was that no evidence was led as to the wrongful acts of the defendants in the Adikpo main market after their discharge. It is not enough to allege that the defendants after their discharge still disturbed the plaintiffs.
The allegation being of a criminal nature must be proved beyond reasonable doubt. The plaintiffs must lead evidence to establish when and where they were disturbed and the manner of the disturbance. This they did not do. This is not surprising. That their case was predicated on, the facts of the criminal proceedings is evident from the evidence of the plaintiffs. The 1st plaintiff who testified as P.W.1 concluded his evidence-in-chief thus:
“I want them to pay for the oil i.e. N600.00.” When he was cross examined he said:
“The defendants were discharged and acquitted by the Senior Magistrates Court Adikpo following the prosecution at our instance. We appealed against that judgment by bringing this action”
The 2nd plaintiff who testified as P.W.2 also concluded his evidence-in-chief thus: “I also want court to order the defendants to pay us for the 3 jerry cans of oil as we had paid to the owners.” This was the substance of the case of the plaintiffs. I must confess that I find no evidence on record that the defendants harassed the plaintiffs after their discharge. Neither did the learned trial Judge. Having regard to the pleadings and the evidence, which I have highlighted, I come to the conclusion that the plaintiffs had no cause of action. The present suit, in my view, was vexatious. The defendants, on the evidence adduced, did not invade the legal rights of the plaintiffs. That being so, they were clearly not entitled to the injunction sought and their claim was rightly dismissed.
I turn now to issues 3 and 4. As I indicated at the beginning of this judgment, the plaintiffs commenced this action in a representative capacity. Order 6 Rule 1 of the High Court (Civil Procedure) Rules 1978 of Benue State under which this action was brought provided that where there were numerous persons having the same interest in one cause or matter, one or more of such persons may with the leave of court, sue or be sued in such cause or matter, on behalf or for the benefit of all persons so interested. Thus the fundamental principle underlying suits brought in a representative capacity is that there must be a common interest and a common grievance so that the relief claimed if granted would be beneficial to all those the plaintiff proposes to represent It is a question of substance whether they do have the same interest in one cause or matter. If they do not a plaintiff cannot sue on their behalf: See Oragbaide v. Chief Onitiju (1962) 1 ALL NLR 32; Ogamioba v. Oghene (1961) 1 ALL NLR 59; (1961) 1 SCNLR 115. In Oragbade’s case, the plaintiff brought the action on his own behalf and on behalf of the Ifetedo Community claiming an area of land as communal property. The evidence adduced for the plaintiff showed that he and others claimed to have each an individual farm of his own within the area under dispute. The Federal Supreme Court in the course of its judgment held that:
“On the evidence adduced for the plaintiff it was plain that he and others claimed to have each an individual farm of his own within the area in dispute; which means that the Ifetedo Community as a whole cannot claim the entire area as communal land.”
In the present case, the evidence adduced for the plaintiffs shows plainly that the plaintiffs and others do not have the same interest in the matter before the court. It is once again pertinent to refer to the relevant portions of the evidence called by the plaintiffs. The 1st plaintiff (P.W.1) testified inter alia:
“Tiv palm oil sellers carried away 3 jerry cans of palm oil belonging to me and Sunday Ofodile valued at N600.00.”
The 2nd plaintiff testified as P.W.2. He gave evidence and said:
“In the disturbance we lost 3 jerry cans of palm oil. The jerry cans belong to 1st plaintiff and Stephen Ofodile.”
When he was cross-examined this witness said “I personally lost nothing.”
Thus it is clear from the evidence highlighted above that the jerry cans of palm oil lost in the disturbance were not the common property of the plaintiffs and other members of the Non-Tiv Palm Oil Traders in Adikpo. The oil was the property of the 1st plaintiff and Sunday or Stephen Ofodile. It was not even the property of the 2nd plaintiff. Clearly the plaintiffs and others do not have the same interest in the suit and in consequence the plaintiffs cannot sue on behalf of the others: See Oragbaide v. Chief Onitiju (supra). The claim of the plaintiffs was rightly dismissed.
In the result this appeal lacks merit and it must fail. The appeal is accordingly dismissed. The judgment of the lower court is affirmed. There shall be costs which I assess at N800.00 in favour of the respondents.
Other Citations: (1992)LCN/0113(CA)
