Chief Adedapo Adekeye & Ors. V. Chief O. B. Akin-olugbade (1987)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C.

The present Respondent as Plaintiff sued two Defendants in the Lagos High Court namely Chief Adedapo Adekeye and Alban Pharmacy Limited claiming:

“(a) An account of the Partnership business of “Excelsior Building Society” from the period 24th March 1959 to date;

(b) An Order restraining 1st Defendant from continuing to waste and mismanage the Partnership property or alienating same in any way;

(c) Arrears of rent from 2nd Defendant from 24th March, 1959 to date;

(d) Fifty thousand Naira (N50,000.00) damages from 1st and/or 2nd Defendant for negligence in managing the partnership business without authority;

(e) Payment in equal shares of all rents and profits accruing from the partnership business.”

From the above claims it is pretty obvious that the entire case of the Plaintiff is predicated on the existence of a partnership relationship between the parties. The main issue on which other subsidiary issues will revolve will therefore be the existence of this Partnership. If the partnership is found as a fact to exist or to have existed then all the relevant legal consequences will follow otherwise the Plaintiff will be out of Court.

Pleadings were ordered,filed and delivered. These pleadings were amended several times before the actual trial by Dosunmu, J. (as he then was). On the 7th June, 1976 the Plaintiff amended his Writ of Summons and Statement of Claim. The amended Claim now included a Declaration that Title to the freehold property under Title LO. 3158 belongs to the Plaintiff. the two Defendants and the Estate of late G.O. Obajimi who were all partners in the firm of Excelsior Building Society. On the 5th December, 1978, Mrs. Glaribel Obajimi and Mrs. Gloria Akinwale joined in the action as representing the Estate of G.O. Obajimi. In the Court of Appeal itself the Plaintiff who was then Appellant brought a motion to amend his “Grounds of Appeal” and also applied “for leave to amend his Statement of Claim” in the manner set forth in the Second Schedule:-

“Second Schedule

Delete paragraph 19 of the Amended Statement of Claim herein and copied on pp.224 to 232 of the Record of Appeal and substitute the following:

Whereof the plaintiff claims against the Defendant jointly and severally as follows:

(a) A declaration that the property at the junction of Broad Street and Ports Novo Market Street (now renamed Abibu Oki Street) and comprised in Title No. LO.3158 is held by the second defendant subject to equitable interests and trusts in favour of the Plaintiff, the estate of G.O. Obajimi deceased and the two defendants.

(b) An order that the defendants do jointly and severally render an account of profits and income accruing to them or which reasonably ought to have accrued to them from the land and premises comprised in Title No. LO.3158.

(c) An Order for payment over to the Plaintiff of whatever sum or sums that may be found due and payable to the plaintiff after taking such account.

(d) An Order for partition or sale of the aforesaid land and premises in Title No. LO.3158.

(e) Such further or other orders as this Honourable Court may consider appropriate.”

As I observed earlier on the crux of the matter, the main issue in this case, is an issue of fact whether or not there was a partnership relationship between the parties. Now the Amended Claims highlights a second issue namely the existence of a trust express or implied. The eventual outcome of this appeal will largely depend on how these two issues are resolved. The trial Court after hearing the evidence made the following findings of fact:-

1. That the original partners in the Excelsior Building Society were the plaintiff, the 1st Defendant and one Mr. G.O. Obajimi (see p.277 of the record).
2. That before or on 14th March 1958 a fourth Partner Messrs Alban Pharmacy Ltd. Chemists and Druggists of Excelsior Building Society. “EX.A at pp.286 to 288 proved conclusively that Alban Pharmacy joined the Partnership.” See also p.279 Lines 21-30 when the learned trial Judge was satisfied that in signing EX.A the Alban Pharmacy Ltd. has at least “held itself out as a partner in the firm of Excelsior Building Society.”
3. That the 1st Defendant Chief Adedapo Adekeye had always been the Managing Director of Alban Pharmacy Ltd. the 2nd Defendant. (See p.278 Line 5).
4. That in the face of EX.A the property now in dispute (No. 128 Broad Street Lagos) cannot be anything but the property of the Partnership) the Excelsior Building Society (see p.280 of the record).
5. That as a matter of fact that Partnership property (viz No. 128 Broad Street Lagos) was registered on 10th April 1958 in the name of the 2nd Defendant the Alban Pharmacy Ltd. one of the partners of Excelsior Building Society (see pp. 277/278).
6. That the Plaintiff paid in full his contribution of N2,000.00 to the partnership and used his credit worthiness to secure a loan of N50,000 to N60,000 from the National Bank of Nigeria.
7. That it is untrue as contended by the 1st Defendant and the 2nd Defendant/Company that the property at No. 128 Broad Street. Lagos was theirs and had nothing to do with the partnership of Excelsior Building Society.

This, I agree, is a negative finding. But at times negative findings can be even more devastating than positive findings. But the learned trial Judge did not leave it at that, for at p.282 he positively found:)

8. “That the store building at Broad Street is under construction in the name of the 2nd Defendant as agent for Excelsior Building Society” (see p. 282 lines 17-22).
9. “I find that the Partnership erected the building on the plot in question through loans advanced to the 2nd Defendant by the National Bank of Nigeria.”
10. “With EX.E satisfying all the requirements of a partnership, and a building erected on the plot of land as agreed in EX.E, I fail to see how the 1st and 2nd Defendants could have successfully argued out of it.”

In other words the 1st and 2nd Defendants cannot successfully argue that they were not partners in the Partnership of Excelsior Building Society nor can they successfully argue that the property at No. 128 Broad Street does not belong to the Partnership.

In spite of the above formidable findings of fact the learned trial Judge dismissed the Plaintiffs claims. His reasons for dismissing the Plaintiffs case were partly because on the death of G.O. Obajimi the partnership as it were also died legally, partly also because of the way the Plaintiffs claims were framed and partly because the claims were caught by the Limitation Law of Lagos State. The Plaintiff then appealed to the Court of Appeal Lagos Division.

That Court, on the 2nd May, 1985, in a very well considered judgment, allowed the Plaintiffs appeal and set aside the judgment and orders of Dosunmu, J. (as he then was) and in its place entered judgment for the Plaintiff/ Appellant in terms of his Amended Claim which I set out earlier on in this judgment. The 1st and 2nd Defendants have now appealed to this Court against the unanimous judgment of the Court of Appeal. Since the Court of Appeal tied its judgment and orders unto the Amended Claim introduced by the Plaintiff who was the Appellant before the Court below, one might as well start the consideration of the present appeal from that amendment.

Ground 3 of the grounds of appeal to this Court complained that:

“3. The learned justices of appeal were wrong in law to have allowed the amendment of Claim made in the Second Schedule of the Appellant’s Motion paper dated 28th February 1985 when these were substantially and utterly divergent to the reliefs sought in the Lower Court and on the basis of which the issues were fought and judgment delivered by Dosunmu, J. (as he then was) wherefore they came to a wrong decision to the prejudice and damnification of the Respondents who opposed the said application.”

This ground of appeal raises so many questions about amendments viz:)

(i) What is an amendment

(ii) Can a Court of Appeal in the process of hearing an appeal allow an amendment to the proceedings the subject matter of the appeal

(iii) When should an amendment be refused

An amendment is nothing but the correction of an error committed in any process, pleading or proceeding at law or in equity, and which is done either as of course or by the consent of parties or upon notice to the Court in which the proceeding is pending. The object of Courts is to decide the rights of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights. There is no kind of mistake or error which if not fraudulent or intended to over-reach, the Courts cannot correct, if this can be done without injustice, to the other party. Blunders may occur and nowadays they do occur with disturbing regularity, but all the same the Courts should not be stampeded into chasing the shadows of these blunders rather than facing the substance of the justice of the case.

The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant. The Courts have therefore through the years taken a stand that however negligent or careless may have been the slips, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party. The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.

By Order 25 Rule 1 High Court of Lagos Civil Procedure Rules (that apply to this case) “the Court or a Judge in Chambers may at any stage of the proceedings allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties … In the case now on appeal the central issue in controversy is – Was the 2nd Defendant the Alban Pharmacy Ltd. a partner in the firm of Excelsior Building Society If yes (as found by the trial Court) then comes the next question – Was the building at No. 128 Broad Street erected with the money contributed by the Partnership If the answer is yes (as was found by the learned trial Judge) then one legal consequence will be that the Alban Pharmacy Ltd is an implied trustee for the Partnership in respect of that property. Although the property at No. 128 Broad Street Lagos was registered as No. La.3158 in the name of the 2nd Defendant yet the 2nd Defendant held and still holds it in trust (implied trust) for the partnership. This is exactly what Claim 1 of the Amended Claim seeks namely “a declaration that the property at the junction of Broad Street and Porto Novo Market Street (now renamed Abibu Oki Street) and comprised in Title No. LO.3158 is held by the second defendant subject to equitable interests and trust in favour of the Plaintiff, the estate of G.O. Obajimi deceased and the two defendants.” Every other Claim in the Amended Claims revolves around this main Claim 1 which is the real question in controversy between the parties. I do not see how what had already been found as a fact by the learned trial Judge could possibly prejudice, injure, surprise, over-reach or embarrass or work an injustice against the 2nd Defendant or any of the Defendants for that matter. I am very sure that if the amendment granted by the Court of Appeal were applied for in the trial Court, it would also have been granted. Section 16 of the Court of Appeal Act No. 43 of 1976 allows the Court of Appeal to ….. ” have full jurisdiction over the whole proceedings as if the proceedings have been instituted in the Court of Appeal as a Court of first instance ….. ” Any Court of first instance would grant this innocuous amendment. The Court below was right in holding that “it would be a travesty of justice to hold that the Appellant must lose this appeal if the errors made by his Solicitors in the formulation of his Claims in the Court of trial. … were left uncorrected when it is clear that no question of surprise or embarrassment or prejudice or attempt to over-reach arises.” I am in full agreement with the above dictum of Nnaemeka-Agu, J.C.A. in his lead judgment.

Ground 3 of the Defendants/Appellants’ grounds of appeal alleges that the amendment made by the Court of Appeal was in respect of Claims which “were substantially and utterly divergent to the reliefs sought in the lower Court and on the basis of which issues were fought and judgment delivered by Dosunmu, J.” It is correct that Dosunmu, J. (as he then was) did find some difficulty with the way the Plaintiffs claims were formulated. That itself was one reason why Chief Williams, S.A.N., learned counsel for the Plaintiff/Appellant in the Court below brought his motion for the proposed amendment. But it is stretching the matter too far to suggest that the Amended Claims were “utterly and substantially divergent to the reliefs sought in the trial Court.” It is also not correct as alleged in the Appellant’s Brief subnomen Question for Determination (1) that the Court below allowed new Claims to be formulated and canvassed before it.

The original Claim (c) was for arrears of rent from the 2nd Defendant and Claim (e) was for payment in equal shares of all rents, profits, accruing from the partnership business. I concede that the Original Claims are not as elegant as the Amended Claims but both pre-suppose that the 2nd Defendant, the Alban Pharmacy, was a partner in the Excelsior Building Society, and was accountable to the Plaintiff and the other Defendant Partners. That is the real question in controversy and the principal reason for allowing an amendment is to do substantial justice. It is only where the application to amend is made mala fide or if the proposed amendment would cause unnecessary delay or will in any way unfairly prejudice the other and opposite party, or where the amendment sought is quite irrelevant or useless, or would only and merely raise technical issues that leave to amend may be refused by a Court. I see none of these inhibiting factors in this case. Rather the Plaintiff is using the evidence available and the findings of the trial Court in support of his application.

The Court should allow all amendments that are required for the purpose of using already available evidence and what is more using the findings of fact of the trial Court. The Court does not set a time limit to do justice and in the same vein it does not or perhaps also cannot set a time limit to grant an amendment designed to achieve justice between the parties. In William Rainy v. Alexander Bravo (1872) L.R. 4 P.C.a. 287 the application to amend was made when the Judge was reading his judgment. It was refused by the trial Judge but it was ultimately granted by the Privy Council. The main concern of the Court in granting or refusing to grant an amendment is the interest of justice. All amendments ought to be granted if thereby justice is done between the contending parties. The Court below acted rightly in granting the amendment sought. Ground 3 therefore fails. Ground 2 which also dealt with the Amendment also fails.

I will now consider Ground I of the grounds of appeal which complains;)

“1. The learned Justices of Appeal were in error when they rejected the Civil Form 20 filed by 1st and 2nd Defendants/Respondents (hereinafter called “the Respondents”) and reflected at pages 321-325 of the Record of Proceedings and therefore came to a wrong decision ..,

Particular (a) of the Particulars of Error complained that:-

“a. The learned Justice of Appeals held that the Respondents ought to have filed a Cross-Appeal whereas the Respondents supported the judgment and only wished that the learned trial Judge ought to have considered other points which also reinforced the conclusion arrived at, namely dismissal of the Plaintiff’s Suits.” .

In Chief Williams’ Brief the 1st Question for Determination dealt with this issue:-

“(1) Whether the Court below was correct in striking out the Respondent’s Notice filed by 1st and 2nd Defendants in the Court below.”

The Court below beautifully dealt with the difference between a cross-appeal and a Respondent’s Notice and reminded Respondent’s counsel eager to file a Respondent’s Notice rather than a cross-appeal of the distinction drawn by this Court in its several decisions on the matter especially:-

(i) Alhaji Sunmonu & ors v. Gbadomosi Ashrote (1975) 1 N.W.L.R. 16 at p. 23 where this Court clearly held:-

“We are in no doubt that if the Plaintiff wanted a complete reversal of the decision of the lower Court he should have filed his cross-appeal under Order 2 Rule 2(1) and not under Order 2 Rule 13(1) as has been done.”

(ii) Also in Lagos City Council v. Ajayi (1970) 1 All N.L.R. 291 at pp.296 and 297, this Court discussed the main differences between a cross-appeal and a Respondent’s Notice. At p.297 the Supreme Court observed:-

“The Notice (Respondent’s Notice) postulates that the approach of the learned trial Judge to the case was correct, but that his conclusions had adversely affected the respondent who hereby contends that by the same reasoning of the learned, trial Judge he should have received a greater award.

In the case of appeal the 1st and 2nd Defendants who were Respondents in the Court below could not there and cannot here say that the decision of the trial Court dismissing the Plaintiffs claims “adversely affected the Respondents.”‘ The findings of fact of the learned trial Judge were all favourable to the Plaintiff/Appellant in the Court below, but the conclusion (the dismissal of his claims) was radically at variance with those findings. If there is anything like that, it is the Appellant who should have filed an “Appellant’s Notice.” But since there is nothing like that in our Rules of Court the Appellant who was Plaintiff in the Court of first instance filed an appeal.

In the recent case of Ellochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR 47 the issue of the propriety or otherwise of a Respondent’s Notice was considered by the Supreme Court and the Court held that a Respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and not by an application to affirm or vary the judgment on other grounds. The Civil Form 20 on which the Otunba Awopeju, learned counsel for the Appellants heavily relied upon is pursuant to Order 7 Rule 13 of the 1977 Supreme Court Rules dealing with “Respondent’s Notice.” Order 7 Rule 13(1) is predicated on the fact that there has been no cross-appeal by the Respondents. The present and relevant Rule is Order 8 Rule 3 of the Supreme Court Rules 1985.

The essential findings of fact made by the trial Court in this case were:-

l. That the Plaintiff and the 3rd Defendants (including the Alban Pharmacy) were all partners in the Partnership of Excelsior Building Society.

2 That the property in dispute though registered in the name of the 2nd Defendant (Alban Pharmacy Ltd.) belongs to the Partnership of Excelsior Building Society which provided the funds for the building of No.128 Broad Street Lagos.

With these two findings of fact, the legal position of the 2nd Defendant vis-a-vis the Plaintiff and the other defendants will be a question of law a legal conclusion from the facts as found. This is a conclusion which the trial Court or any appellate Court could draw: Benmax v. Austin Motor Co. Ltd. (1955) A.C. 370 at p.375: (1955) 1 All. E.R. 326 at p.328. In this case the trial Court failed to draw the right conclusion. It ran into error. The Court below corrected that error. Now upsetting the fundamental findings of the trial Court which formed the basis of the Court of Appeal’s decision can only be done in a cross-appeal and not by a Respondent’s Notice to affirm or vary the judgment on other grounds. See National Society for the Distribution of Electricity etc. v. Gibbs (1900) A.C. 280 at p. 287. This ground of appeal therefore fails.

Ground 4 dealt with the Limitation Law of Lagos State and complains:-

“4. The learned Justices of Appeal were in error to have held that Limitation Law did not avail the Respondents against the Plaintiff as the property in issue was a trust property when the finding of fact of the Lower Court was to the contrary and in spite of the reasons given in Respondent’s Brief as to why the property was the exclusive property of the 2nd Respondent”(italics mine).

This ground of appeal raises two radical questions namely the creation of a trust and whether or not a trustee can invoke the Limitation Law against the beneficiaries The question now arises – Was/Is the 1st Defendant and the 2nd Defendant trustees for the other partners in respect of the property now in dispute – No. 128 Broad Street Lagos A trust can be expressed or implied. When a trust is created intentionally by the act of the Settlor it is called an express trust. But where the legal title to property is in one person and the equitable right to the beneficial enjoyment of the same property is in, another, a Court of equity will from those circumstances infer an implied trust. Also a person incapable of being an express trustee may well be a trustee of an implied, resulting on constructive trust: Re Vinogradoff (1935) W.N. 68 refers. An implied trust is thus a trust founded upon the unexpressed but presumed intention of the settlor. One common example of implied trust is where on a purchase, property is conveyed into the name of someone other than the purchaser. The consensus of legal and judicial opinion is that the trust of a legal estate whether taken in the name of the purchasers and others jointly or in the names of others without that of the purchaser, whether in one name or several, whether jointly or successive, results to the man who advances the purchase money: See Re Scottish Equitable Life Assurance Society (1992) 1 Ch. 282: The Venture (1908) p.218. In the case on appeal the trial Court found at p.280 of the record:-

1. That in the face of EX.A the property now in dispute, No. 128 Broad Street Lagos, cannot be anything but the property of the Partnership – the Excelsior Building Society.
2. That as a matter of fact the partnership property No. 128 Broad Street Lagos was registered on 10th April 1958 in the name of the 2nd Defendant, the Alban Pharmacy Ltd. see pages 277/278 of the record.

Nearly all the findings of fact of the learned trial Judge bear out the conclusion that the 2nd Defendant, the Alban Pharmacy Ltd. was agent for the Excelsior Building Society, that the 2nd Defendant erected the building now in dispute for the Partnership through loans advanced to the 2nd Defendant by the National Bank acting on the credit worthiness of the Plaintiff. There was even a clear distinct and unambiguous finding at pp.281/282.

“The case of the 1st and 2nd defendants is that the building standing on the plot in question, 128 Broad Street, Lagos was their sale effort and nothing to do with Excelsior Building Society. This cannot be true” in the face of EX.M and MI.

These meetings EX.M & M1 clearly showed that “the building at No. 128 Broad Street is under construction in the name of 2nd Defendant as agent for Excelsior Building Society.” All these findings clearly show that the 2nd Defendant in whose name the property was registered held same as an implied trustee for the Partnership Excelsior Building Society.

The 1st and 2nd Defendants had been managing or mismanaging the said trust property since 1958 without accounting to any of the beneficiaries. Now when called upon to account they plead the Limitation Law of Lagos State. The Court of Appeal, rightly in my view, rejected the defence of limitation of actions as that defence does not by Section 32(4) of the same Limitation Law of Lagos State Cap 70 of 1973 apply to claims founded on “any fraudulent breach of trust to which the trustee was a party or privy” nor does it apply to recover trust property or the proceeds thereof still retained by the trustee and converted to his own use” (Italics mine). It will be a sad day for our law of property if the doctrine of implied trust is brushed aside and any person who holds the property of another is allowed to set up the statute of limitation against the beneficial owner. One only hopes that that day may never dawn. The trial Judge was wrong in not drawing the inference of an implied trust from his devastating findings of fact against the Alban Pharmacy – the 2nd Defendant. The Court of Appeal was right in rejecting the defence of limitation of action. This ground of appeal therefore fails.

Ground 5 deals with the equitable defences Laches, Stale Claims, Standing by, Acquiescence, etc. In spite of any other procedural defeat which Chief Williams. S.A.N. pointed out in his Brief – (that these defences though pleaded were not canvassed in the High Court and are thus deemed to have been abandoned: See Shell B. P. v. Abadi (1974) 1 All N.L.R. Part 1 P.1 at p.16 (lines 27-30) – Ground 5 suffers from a radical and intrinsic fundamental vice. How clean are the hands of the 1st and 2nd Defendants who had converted partnership property into their personal use and are still managing or mismanaging same The rights to be protected in this action are the beneficial rights of the other members of the Partnership against the illegal and inequitable conduct of the 1st and 2nd Defendants/Appellants. Can it be ever said that it has become dishonest and unconscionable on the part of the beneficiaries of the property at No.128 Broad Street Lagos to claim their legal entitlement as such beneficiaries’ If the answer is No as it is bound to be then the equitable defence of laches and acquaintance cannot avail the present Appellants. He who comes to equity must first do equity and also come with clean hands. The hands of the 1st and 2nd Defendants are so soiled that equity will close her eyes and her gates on them and refuse them any of her special protection or relief. Also Section 8(1) of the Trustee Act 1888 excludes these equitable defences where the claim is founded (as in the case on appeal) upon any fraud or fraudulent breach of trust to which the trustee was a party or privy, or is to recover trust property or the proceeds thereof still retained by the trustee or previously received by the trustee and converted to his use.

The last Ground of Appeal is Ground 6 and it complains that:-

“6. The judgment delivered by the Justices of Appeal on 2nd May 1985 was not made available to the parties on the same day to wit 2nd May,1985 or immediately subsequently thereafter or even as at 13th May 1985 …. is invalid null and void and of no legal effect as being in flagrant violation of Section 258(1) of, of the Constitution of the Federal Republic of Nigeria 1979.”

A drowning man they say clutches at straws. The usual complaints this Court has dealt with from Ifezue v. Mbadugha & anor. (1984) 5 S.C. 79: (1984) 1 SC N.L.R. 427 to Paul Odu & anor. v. Osafile & anor (1985) 1 N.W.L.R. 17 is the constitutional validity of a judgment delivered more than 3 months after the conclusion of evidence and final addresses. The Supreme Court does hand over to the parties copies of its judgments on the very day they are delivered. It is however very difficult to see other Courts plagued by lack of funds, inadequacy of supporting staff and materials being able to provide parties with copies of judgment “on the day of delivery thereof.” Our attention was not drawn either in the Briefs or in the oral argument to any definitive authority of this Court on the effect of failure of the Court delivering the judgment to “furnish all parties with duly authenticated copies.” In Ifezue’s case supra my learned brother Obaseki, J.S.C. considered though, obiter dictum, the effect of non-compliance with the second arm of Section 258(1) thus:-

“6. Per OBASEKI, J.S.C,

The second arm of Section 258(1) which deals with furnishing of authenticated copies of the decision on the date of delivery does not affect the validity of the decision. The decision of the Court has to be delivered before authenticated copies of it are made available. An authenticated copy produced on days subsequent to the date of delivery do not lose their validity as authenticated copies because they were not furnished on the day the decision was delivered by the Court.

As the failure to furnish authenticated copies of the decision to all parties to the cause on the date of delivery does not affect the genuineness of the authenticated copies, although a breach of the Constitutional provision for which the officers of the Court could be disciplined, that part of the provision of Section 258(1) of the 1979 Constitution is, in my view, directory.”

I agree with the above dicta. Since the issue is now squarely before the Court for a decision, I hold that the second arm of Section 258(1) of the 1979 Constitution is directory only and not mandatory with a nullification for noncompliance.

Chief Williams in his Brief did refer us to Section 258(4) which enacted that:-

“258(4) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of this Section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof.”

This amendment to Section 258 of the 1979 Constitution was introduced by Section 6 and Schedule 3 of the Constitution (Suspension and Modification) (Amendment) Decree No.17 of 1985 which became effective from 27th August 1985 after the judgment appealed against which was delivered on 2nd May 1985. I cannot say that there was or that there can ever be miscarriage of justice by failure to give the parties authenticated copies of the judgment of the Court of Appeal in this case on the very day the judgment was delivered. Ground 6 therefore fails.

Ground 7 is the omnibus ground dealing with facts. The findings of fact of the learned trial Judge were all in favour of the Plaintiff/Respondent in this case and there was evidence to support each finding.

Where the trial Court failed was in drawing the necessary logical conclusion of implied trust from those findings. Ground 7 also fails. All the grounds of Appeal considered having failed the appeal itself fails. It therefore ought to be dismissed and it is hereby dismissed. The judgment of the Court of Appeal and the consequential Orders it made are all affirmed and confirmed.

I order that the 1st and 2nd Defendants/Appellants do pay costs in this Court to the Plaintiff/Respondent assessed at N300.00 and to the estate of G.O. Obajimi cost in this Court assessed at N300.00.

---

SC.240/1985