Alhaji Abubakar Sadiq Salihu V. Philip Y. Chibok (1999)
LawGlobal-Hub Lead Judgment Report
UMOREN, J.C.A.
The appellant in this appeal was the defendant in Suit No.M/189/95 in the High Court of Maiduguri. The respondent as plaintiff in that court had sued the appellant as defendant in that court claiming reliefs as set out in paragraph 21 of his further amended statement of claim; that is to say:-
- WERE OF the plaintiff claims as follows:-
(a) N156,.040.00 equivalent of $1,880.00 being estacode allowance at N83.00 per a $ during the conversion rate as at April 1995.
(b) Interests at the rate of 32% from 31st March, 1992 to 31st December, 1993 and 21% from 1st January, 1994 until judgment.
(c) 10% interest at court rate from the date of judgment till the entire judgment debt is liquidated.
(d) N100,000.00 Special and General damages.
(e) Further or other reliefs.
What gave rise to this action according to the plaintiff is that he was the sole representative of Borno State Sports Council and represented the Council at the international football match between El-Kanemi Warrior Football Club, Maiduguri with with sports Elec-Football Club of Congo Brazaville. The match took place at Pointe Noire on 14-3-92. The journey to and fro took six days. The appellant was paid in respect of all the delegates that went to Congo for the championship a sum of $17.425 in March 1992 by cheque.
The respondent being one of the delegates claim a sum of $2,380 for seven days out of the $17,425. The respondent admitted that $600 was paid to him by one Kachalla Gana at the lobby or Coomos Hotel Brazaville on the instruction of the defendant on 12/3/92 at about 10.00 a.m. The respondent asserts that he was at Brazaville, made to pay $100 for a night to Pointe Noire. He was left with $500 leaving altogether a balance of $1,880 in his favour in the hands of the appellant. The appellant had promised he would pay the balance on return to Nigeria. On arrival in Nigeria, the appellant failed, refused and/or neglected to pay over the balance $1,880 to the respondent despite repeated petitions to the then Governor and later the Military Administrator of Borno State.
Wherefore the respondent as plaintiff in the lower court brought an action claiming as set out above. The respondent claims that 5 of the six delegates who went to Congo Brazaaville were also not paid the balance of their estacode.
The appellant who was defendant in the court below between 2-2-92 and 6-9-93, was Commissioner for Home Affairs, Information, Youths, Sports and Culture. He was the leader of the Team and the delegation for the Football match in Congo in 1992 with the respondent representing the Director of Sports Council, Maiduguri. Appellant denies ever holding any money for any member of the team; he was not involved in the preparation of the estimates for the cost of the trip. He was paid $2.000 plus. He never collected $17,000 or any money for members of the team, for the trip to Congo. He admitted the second leg of the match was played in Lagos and the respondent was not a delegate.
Both counsel addressed the court.
The court after its findings entered judgment for the plaintiff and made the following orders:
“1.(a) The defendant is to pay to the plaintiff the sum of N156,040 or U.S. Dollars 1,880 its equivalent as claimed.
(b) N100,000 special and general damages are dismissed.
(c) Annual interest of 10% court rate, under Order 40 rule 7 is to be paid on the judgment debt in (1) until finally or fully liquidated.
(d) Other annual interest rates at 32% from 31/3/93 to 31/12/93 and 21% from 1/1/94 until judgment, as claimed, are each dismissed.
(e) Assessed costs of N1,800 are to be paid by the defendant to the plaintiff in the circumstances.
- In respect of the other four delegates, the defendant shall forthwith pay-
(a) to the State Government Treasury and duly receipted for in respect of Alhaji Adamu Mohammed who did not go to Congo as delegate 52.380 or its equivalent of N25m, 156.60 as paid to the defendant in March 1992, subject to production of any earlier appropriate payment receipt.
(b) To the other three delegates the balance of their estacode allowance of –
(i) $1.416 or its equivalent of N117,528 to Kachalla Gana, the Secretary of El-Kanemi Warriors Football Club;
(ii) 5935 or its equivalent of N77.605 to the Masseur (Official) of the Club:
(iii) $1.215 or its equivalent of N100,845 to the Club Nurse, at N83 per dollar in each case.”
Dissatisfied with the judgment of the court, the appellant appealed to this court against the judgment of the trial court. The defendant’s notice of appeal contained ten grounds of appeal which without particulars are as follows:-
“GROUNDS OF APPEAL
(1) The judgment is against the weight of evidence.
(2) The court below misdirected himself on facts when he held that the following facts are indisputable and unchallengeable from the pleadings and evidence:-
(a) ‘But the defendant paid him $500 on arrival in Congo leaving a balance of $1880’.
(b) ‘He promised to pay the balance of $1880 upon return to Nigeria but failed to do so despite several demands’.
(3) The court below misdirected himself on facts in holding thus:-
“There is copious evidence as earlier summarized as a whole so far, that the money was released to the defendant. At all material times, the defendant was the commissioner and the Accounting officer of the said ministry as well as the leader of the delegation. The estimate for the trip to Congo exhibit ‘PC 9’ was undisputably processed and forwarded to the Governor for approval by the Ministry. The sports council cannot deal directly with the State Government, let alone the Governor but only through an incumbent Commissioner as the head of the said Ministry. The approval for the amount in the estimate as earlier detailed was given by the Governor on 3rd March, 1992. The defendant was Commissioner from 22nd February, 1992 to 6th June, 1993. As regards the estimate for the second leg of the match in Lagos on 28th March, 1992, the procedure as above was adopted; and the approved sum of N250,000 was released to the defendant, as admitted in evidence under cross-examination. Clearly if anything, this confirms the procedure in respect of the 1st leg in Congo. Between 3rd March, 1992 and 28th March, 1992, there is no evidence as to any change in the procedure or in processing the estimate for the two trips.”
(4) The court below erred in law in holding that section 2(a) of the Public Officers (Protection) Law is inapplicable to the case of the appellant i.e. that appellant was not protected by the law.
(5) The court below erred in law by holding thus:-
‘I accept the statements or findings of the D. G. (Adm) and the S.S.G. generally, subject to modifications as ordered below, that:-
(1) The Club secretary, Kachalla Gana, confirmed that the $1,880 balance of the plaintiff’s estacode allowance was not paid by the defendant.
(2) This also means that Alhaji Abuhakar Sadiq Salihu (the defendant) had denied all the other delegates their estacode allowance despite having been given the money for the purpose by the government’.
(Bracket mine).
(3) The defendant should refund or pay the balance of the estacode allowances of the other five delegates, including the plaintiff, to their rightful owners
(4) In his minutes of 27/11/94, the S.S.G. agreed, and in particular stated that the defendant should be made to refund the monies due to the plaintiff and the other four officers.
(5) As stated by the D.G. (Adm) in exhibit “PC 13” the plaintiff frequently followed up his petitions “to obtain justice”.
(6) The court below erred in law in holding as follows:-
“The pronouncements exhibit “PC 13” and “PC 14″ are eloquent they are from the horses mouth, namely, the D.G. (Admin.) and the S.S.G. they are in a position to know what they said and have said it dearly’.
(7) The conclusion of the court below that there was no averment on the defence of fair hearing on the part of the appellant is wrong in law.
(8) The court below lacked jurisdiction to grant the award of various sums of money to four strange persons in the case under section 47(1) of the rules of court as applicable to court below.
(9) The court below erred in law in his judgment by relying on conflicting evidence of plaintiff/respondent and his witnesses as to payment of money i.e. American dollars.
(10) The rejection of defendant’s Federal Government’s circular on Estacode allowance is wrong in law”.
Briefs of arguments were filed on both sides and exchanged. The defendant/appellant formulated six issues for determination. They are as follows:-
ISSUE 1
Whether or not the trial court is right in directing the appellant to pay to the respondent the sum of N156,040 or $1,880, with all the attendant interest rates and cost of N1,800, in view of the available evidence placed before the trial court.
ISSUE 2
Whether direct and positive admission by the appellant on his own to pay any balance of money to respondent on arrival from Congo and whether exhibit “PC9” or any proved any liability against the appellant as to the payment of any estacode to the respondent.
ISSUE 3
Whether reliance placed on the minutes of the D-G (Admin) and Exhibits “PC 13”, “PC 11”, “PC 14” and “PC 10″ are in law sufficient legal evidence to found against the appellant as in this case.
ISSUE 4
Whether the general application of Order 47 Rule 1 of Borno State High Court Rules will support the award to the other delegates any amount of money or not.
ISSUE 5
Whether the conclusions of the trial court as to the liability of the appellant is sustainable in view of the conflicting evidence of respondent and his witnesses’?
ISSUE 6
Whether the rejection of the appellant’s attempt to tender the Federal Government’s circular on Estacode allowance has not led to miscarriage of justice against the appellant’?
The respondent formulated two issues for determination as follows:”
2.2(a) Whether the appellant is liable to pay to the respondent the said balance of estacode allowance in the sum of $1,880 being equivalent of N156, 040.00.
(b) Whether the Lower Court was right in suo motu making use of its powers under Order 47 Rule 1 of the Rules of the High Court of Borno State to order the appellant to pay the respective balances of estacode allowances to the other 3 delegates who were not parties before the lower court and return the estacode allowance meant for the 4th delegate to Government Coffers.”
Maybe I should observe here that from the appellant’s brief.
Issue No.1 covers ground 1 of the grounds of appeal.
Issue No.2 covers grounds 2 and 3.
Issue No.3 covers grounds 5 and 6
Issue No.4 covers ground 8
Issue No.5 covers ground 9; and
Issue No.6 covers ground 10.
As it stands, issue Nos. 4, 6 and 7 are not covered by any ground of appeal. It does appear to me that it is the law that where a ground of appeal is not covered by issue for determination that ground is deemed to be abandoned. Folorunsho v. State (1993) 8 NWLR (Pt.313) 612 at 618-619 paras. H-A; C-D. From this state of affairs it appears that grounds 4, 6 and 7 are not covered by any issue for determination. Grounds 4, 6 and 7 of the grounds of appeal are consequently deemed to have been abandoned.
The respondent raised two issues for determination. These two issues relate to the grounds of appeal and appear to be more relevant and less repetitive of one another. I intend to adopt the issues as formulated by the respondent. Each party adopted and relied on his brief of argument with a few oral additions.
On issue A of the respondent’s brief which corresponds to issue 1 – 3 of the appellant’s brief. This issue questions the finding of fact by a trial court. The plaintiff testified and called six witnesses. The defendant testified and called no witness.
The plaintiff and his witnesses, the numerous exhibits tendered leave no doubt in my mind that findings of the trial court on this issue were cogent and unassailable. The trial court evaluated the oral evidence of the plaintiff/respondent and his witnesses and scrutinized the exhibits tendered meticulously. As I said earlier, this was the finding of a trial court which an appellate court cannot disturb except it is perverse and not the result of proper exercise of judicial discretion. Here an appeal has been brought before an appellate court, on findings of fact such appellate court has a duty to consider the following:-
(a) Whether there was evidence to support the findings and/or the decision of the trial court. Here there was abundant evidence that the appellant should pay over to the respondent the balance of his estacode despite his denial.
(b) Whether the trial court has made a correct assessment of the evidence before it. The trial court, on this issue went into the evidence before it and correctly assessed it.
(c) Whether the trial court has wrongly accepted or rejected any evidence tendered at the trial. All evidence I have examined both oral and documentary was properly accepted.
(d) Whether there has been erroneous appraisal of facts leading to erroneous conclusion in the case. On this issue I completely agree with the appraisal by the trial court of the evidence before it. It correctly accepted the version of the story of the plaintiff/respondent on this issue.
See Anyaoke v. Adi (1986) 3 NWLR (Pt.310 731 at 742; Mogaji v. Odofin (1978) 4 S.C. 91. In Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) 35 and Woluchem v. Gudi (1981) 5 S.C. 291, it was held that an appellate court will not interfere with the findings of a trial court unless it is obvious that the court has not made good use of the unique advantage which it has of seeing and hearing the witnesses before it. On this issue, the appellant had nothing to offer. The learned counsel for the appellant was with due deference to him, simply fishing and like a drowning man out to catch every straw.
I have no choice other than to dismiss this appeal and affirm the decision of the trial court on this issue as it concerns the plaintiff/respondent.
On issue B, the trial court gave judgment in favour of Alhaji Adamu Mohammed and to the other three delegates. I feel ill at ease to find the basis for this judgment. I am unable to find evidence anywhere on the record on which the learned trial Judge based his decision. These people were complete strangers to the action. They were not parties and did not claim anything. It is a little curious how the court came to the conclusion to award them what they did not claim.
I can with ease find a chain of authorities to the effect that a court cannot award to a party what it did not claim. On this see the cases of:
Etim Ekpenyong v. Inyang Effiong Nyong (1975) 2 S.C. 71.
Kalio v. David Kalio (1975) 2 S.C. 15
Okpo Ojah v. Ogboni (1996) 6 NWLR (Pt.454) 272 at 290 B – C
Union Beverage Ltd. v. Owolabi (1988) 1 NWLR (Pt.68) 128 at 133.
Emaphil Ltd. v. Odili (1987) 4 NWLR (PT.67) 915.
Makanjuola v. Balogun (1989) 3 NWLR (Pt.108)
Based on the foregoing I have no hesitation whatever allowing this appeal and setting aside this and of the judgment of the trial court dated 20-6-96.
Consequently, I hereby make the following orders; that is to say:-
- The defendant/appellant shall pay to the plaintiff/respondent the sum of N156,040 or U.S.S1,880.
- Interest at the rate not exceeding Ten Naira per centum per annum to be paid by the defendant/appellant to the plaintiff/respondent from the date hereof till the judgment debt is liquidated.
- Costs of N1,800.00 as ordered in the court below payable by the defendant/appellant in favour of the plaintiff/respondent.
- In this court each party shall bear his costs.
- Award in favour of Alhaji Adamu Mohammed and the three other delegates is hereby set aside in its entirety as they were not parties to the action and claimed nothing.
Other Citations: (1999)LCN/0589(CA)
