Alhaji Abubakar Daniya Waziri & Ors V. Alhaji a. B. Abubakar (2004)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

The appellants as plaintiffs before the Minna High Court No.6 Coram Mayaki, J. with leave of the court sued the respondent as defendant in a representative capacity for themselves and on behalf of 30 other children of late Alhaji A.B. Waziri claiming the following reliefs:

1. An order on the defendant to give a satisfactory account of the assets of the late Alhaji A.B. Waziri who died on the 3rd of May, 1995.
2. An order that the defendant should disengage from administration of the estate of the said deceased.
3. An order that the defendant should surrender all assets of the said deceased in his possession to the plaintiffs.

The late Alhaji A.B. Waziri held substantive shares in Arewa Construction Ltd. and was its chairman prior to his demise. He also had other assets. On his death, on the advice of the late Etsu Nupe and other elders, the appellants as children of late A.B. Waziri donated a power of attorney to the respondent to take charge and manage all the assets of the deceased father on their behalf. The respondent was thereafter made the Chairman of Arewa Construction Ltd. The respondent failed to render account to the appellants despite several demands.

They accordingly initiated the action before the lower court claiming the above reliefs.

The defendant filed a motion to join Arewa Construction Ltd. as a party which application was heard and refused by the lower court. He then filed a notice of preliminary objection on the ground that the power of attorney was donated to Arewa Construction Company Ltd. rather than to him, asking that the suit be struck out for failure to sue the proper party. The objection was similarly heard and dismissed and the matter proceeded to trial.

The plaintiffs filed their pleadings and only one witness testified on their behalf. The defendant did not file pleading or adduced evidence in support of his case. The learned trial Court in a considered judgment delivered on the 16th October, 2002, dismissed the claim of the appellants in that they did not adduce sufficient evidence in support.

The appellants dissatisfied with the said judgment have now appealed to this court on a notice of appeal filed on the 23rd October, 2002, containing the following grounds.

Ground of Appeal:

1. The judgment is against the weight of evidence.
2. The learned trial Judge misdirected himself on the facts when he held that plaintiffs did not lead evidence on their averments that they authorised the defendant to deal with their late father’s property.

As is the practice in this court the parties filed and exchanged their respective briefs of argument.

In their briefs the appellants identified this issue for the determination of the appeal:

“Whether the trial court was right when it held that there was no evidence to sustain the plaintiff’s claim.”

The respondent in his brief adopted and argued the sole issue formulated by the appellants.

It was argued for the appellants that the respondent having been served with a statement of claim and having refused to file a statement of defence is deemed to have admitted to the facts as averred in the statement of claim:

1. that he was, at the instance of the Etsu Nupe, appointed to take charge and oversee the affairs of the deceased on behalf of the appellants;
2. that he succeeded the deceased as the Board Chairman of Arewa Construction Ltd. and;
3. that despite several demands he has refused to render accounts to the appellants.

Submitting further that where a defendant refused to file a statement of defence after having been served with the plaintiffs statement of claim, he will be deemed to have admitted the statement of claim without hearing evidence and relied on Nwadikev. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Oke v. Aiyedun (1986) 2 NWLR (Pt.23) 458, 565; Nzeribe v. Dave Eng. Co. Ltd. (1994) 8 NWLR (Pt.361) 124; Mobil Producing (Nig.) Unltd. v.Monokpo (2001) 18 NWLR (Pt.744) 212, (No.2) (2001) FMLR (Pt.78) 1210. He also submitted that a court will act on the unchallenged evidence adduced by the plaintiff where the defendant had the opportunity to challenge same but did not as there is nothing to put on the other side of the scale citing Nzeribe v.Dave Eng. (supra) at 137; Oguma v.IBWA (1988) 1 NWLR B (Pt.73) 658; Balogun v. UBA Ltd. (1992) 6 NWLR (Pt.247) 336 as authorities.

Contending that the testimony of the PW1 having not been controverted, and the averment of plaintiff having not been denied, the learned trial Judge was wrong to have held that the plaintiffs have not proved their case and urged us to allow the appeal, set aside the decision of the lower court and grant the reliefs of the appellants as claimed.

Having considered that pleadings are deemed abandoned where there is failure to produce evidence in support of same Oyediran v. Alebiosu (1992) 6 NWLR (Pt. 249) 550, (1992) 7 SCNJ 187, the respondent submitted that the claim of the plaintiffs before the lower court rests on the existence of a power of attorney the production of which was fundamental to his case before the lower court. That having failed to produce the said power of attorney in support of their claim, the court below was right to have dismissed their claim for the onus of proof is on them to show that a power of attorney exists which they have donated to the respondent. That it was not sufficient to have just averred the existence of a power of attorney and fail to tender same in evidence for where a transaction is recorded in writing by the requirement of the law, no evidence may be given to prove the terms or contents of the said document to prove the terms or contents of the said transaction except the document itself or a certified true copy of it. Citing the following authorities for his submission: Ochin v.Ekpechi (2000) 5 NWLR (Pt. 656) 225; Ojomo v. INCA (Nig.) Ltd. (1993) 7 NWLR (Pt.307) 534, (1993) 9 SCNJ (Pt.1) 130; Mobil (Nig.) Plc. v. Pam (2000) 5 NWLR (Pt.656) 506; Hamisu v. C.O.P. (1998) 2 NWLR (Pt.537) 269; Comptor Ltd. v. Ogun State Water Corporation (2002) 9 NWLR (Pt.773) 629, (2002) 4 SCNJ 342 Ss. 139 and 149(d) of the Evidence Act.

He urged us to uphold the Judgment of the lower court and dismiss the appeal.

The plaintiff/appellant had before the lower court averred the following in his statement of claim:

“1. The plaintiffs are the 33 surviving children of late Alhaji A.B. Waziri Nupe who died on 3rd May, 95 suffering from cardiomtopathy with hypertension as primary cause of death. The defendant was at the instance of his Highness the Etsu Nupe appointed to take charge and oversee the affairs of the said deceased on behalf of the plaintiffs.

2. Prior to the death of Alhaji A.B. Waziri, he was a shareholder in and Chairman of Arewa Construction Ltd. and was succeeded by the defendant.
3. The plaintiffs were by the intervention of elders advised to donate the defendant with power of attorney to deal with the assets of their father.
4. The defendant, despite several demands has refused to render an account (sic) to the plaintiffs thereby stalling the sharing of assets to the plaintiffs as inheritors.
5. Wherefore the plaintiffs claim for an order of the court directed at the defendant to render to the plaintiffs an account of all the assets of the deceased.

The defendant filed no statement of defence before the lower court in reply to the above. The plaintiffs were by an order of the court granted on 27/1/2000 given leave to sue the defendant in a representative capacity.

The 1st plaintiff testified before the lower court as PW1 as the only witness for the plaintiff in line with the above pleadings but did not tender the power of attorney. The defendant having filed no pleading did not also testify. The trial court in its judgment delivered on 16/10/2002 made amongst others, the following findings:

“The entire case revolves around the issue earlier formulated, namely, whether the defendant was ever vested with the power of attorney by the plaintiffs…

In the instant case apart from the averments of the plaintiffs. I can find no evidence to support their claim that they donated the defendant with the power of attorney to deal with the property of their father on their behalf. Throughout the pleadings the word assets is brief – assets of late Alhaji A. B. Waziri. The evidence of PW1 shows they are all landed property in respect of which there is no power of attorney vested in the defendant.”

Order 27 rule 8(1) of the Niger State (Civil Procedure) Rules provides as follows:

“Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 6, then if the defendant or all the defendants (where there are more than one) fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed as aforesaid for service of the defence apply to the court for judgment and on the hearing of the application the court shall give such judgment as the plaintiff appears entitled to on his statement of claim.”

In effect the above provision, provides for a situation where a defendant who has been served with a writ of summons and a statement of claim fails to file a reply, that is, a statement of defence in answer to the claim levelled against him within the time stipulated by court rules as in the instant case. In such a situation the plaintiff is on an application to the court entitled to judgment as per the reliefs claimed.

It is trite law that where there is no defence to the plaintiffs claim, the plaintiff is entitled to judgment – See Ogunleye v. Arewa (1959) SCNLR 603; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; Abdullahi v. Raji (1998) 1 NWLR (Pt.534) 481; Mobil Prod. (Nig.) Unltd. v. Monokpo (2002) 3 NWLR (Pt.753) 48.

The appellant in the instant case testified before the lower court in line with what they had pleaded that the defendant was at the instance of the Etsu Nupe and other elders appointed to take charge and oversee the affairs of the deceased on behalf of the plaintiff for which the defendant failed to render an account. These facts as averred were proved before the lower court in the testimony of the PW1. The trial court should have found on that and not gone into another issue – the issue of power of attorney for a court is only confined to issues as joined by the parties-: Udengwu v. Uzuegbu (2003) 13 NWLR (Pt.836) 136.

The appellant being entitled to judgment on the averment as contained in their statement of claim and as adduced in evidence, there being nothing on the other side of the scale, the trial Judge was wrong to have dismissed their claim.

In the circumstances, this appeal succeeds and is hereby allowed. I set aside the decision of the trial court delivered on the 16/10/2002 and invoke our powers under S.16 of the Court of Appeal Act, Cap. 75, LFN, 1960 and substitute it with an order entering judgment for the plaintiff in the following terms.

1. It is hereby ordered that the respondent/defendant gives a satisfactory account, to the plaintiffs/appellants, of the assets of late Alhaji A.B. Waziri, who died on the 3/5/95.
2. It is hereby ordered that the defendant/respondent disengages from the administration of the estate of late Alhaji A.B. Waziri.
3. It is hereby ordered that the defendant/respondent surrenders all assets of late Alhaji A.B. Waziri in his possession to the plaintiffs/appellant.

Cost assessed at N10,000.00 is hereby awarded to the appellants.

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Other Citations: (2004)LCN/1632(CA)