Chief Sikiru Kolawole Adejumo V. The State & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
GALINJE, J.C.A.
This is an appeal against the ruling of Silva J. of the Lagos State High Court, which was delivered on the 21st of November 1996 in which he overruled an application to release four cars which are exhibits in a matter that is still pending before that court.
The facts that gave rise to this appeal are simple and straight forward and are aptly well set out in the briefs of argument of counsel on both sides. I will do no more than to recount them briefly in this judgment.
Sometimes in 1992, the 2nd respondent, Olawale Ajiboye was arraigned before the court below for the offences of murder and stealing money from the 3rd respondent, whose Managing Director is the 2nd respondent. During the course of trial various exhibits including four cars which were recovered from the 2nd respondent were tendered and admitted in evidence as exhibits 52, 53, 54 and 55. At the close of the prosecution’s case, a no case submission was made on behalf of the 2nd and 3rd respondents. The court below upheld the no case submission in respect of the murder charge, but overruled the plea of no case submission in respect of the charge for stealing. The 2nd and 3rd respondents appeal to this court and to the Supreme Court were unsuccessful, and the case was returned to the court below for conclusion of trial.
At the reopening of the proceedings at the lower court, the 2nd respondent, who at all times represented the 3rd respondent, a limited liability company appeared only once after which he ceased to appear at subsequent adjournments.
A medical report was presented to the court which showed that the 2nd respondent was sick and was receiving medical treatment in the United States of America. Proceedings in the case became stalled.
The applicant herein then brought an application pursuant to Section 263 and 269 of the Criminal Procedure Law of Lagos State dated 27th June, 1996 for the release of the four cars, exhibits 52, 53, 54 and 55 in case No. LCD/47/91 which was then pending before the court below. In support of the application aforesaid, a 10-paragraphs affidavit dated 28th of June 1996 was filed. Exhibited on the affidavit are photocopies of the receipts in respect of the four cars which were said to have been issued by the 2nd respondent to the appellant evidencing the sale of the four cars to the latter. A further and better affidavit in support of the application was also filed. Annexed to this further and better affidavit is a photocopy of terms of settlement between the appellant and the 2nd and 3rd respondents which is marked ex. A.
The 1st respondent who initially raised objection to the grant of the application in its countrer-affidavit of 5th July 1996, recanted in another affidavit of 30th September 1996.
In their joint counter affidavit of 8th July 1996 the 2nd and 3rd respondents challenged the appellant’s application and urged the court not to release the cars as urged by the appellant.
In a considered ruling by the court below, the appellant’s application was dismissed. The reasons for the dismissal of the said application which are set out at pages 46 and 47 of the printed record of proceedings of the lower court are two fold:-
“1, That parties to a criminal case which constitute a felony cannot terminate such case through any forms of settlement between them.
- Violent contradictions between the documents of sale of the cars annexed to the appellant’s affidavit and his evidence during trial wherein he denied vehemently that he acquired the 2nd respondent’s vehicles.”
It is against this ruling that the appellant has appealed to this court on four grounds of appeal, which he later amended. The four amended grounds of appeal without their particulars read as follows:-
“1. The trial Judge misdirected himself when he held in (sic) page 3 of his ruling as follows:-
“A criminal case, particularly one that had been part heard to the extent to which proceedings had gone cannot be subject of such terms of settlement as contained in his (sic) document. In any case, terms of settlement in a criminal case: on the conditions contained m this document look and sound strange and are unheard of having regard to the history of the case”
- The learned trial Judge misdirected himself in holding that there existed violet contradiction between the documents of sale of the vehicles exhibits 52, 53, 54 and 55 and the evidence given by the applicant at the trial substantive criminal trial wherein applicant denied acquiring the said exhibits.
- The learned trial Judge erred in law in holding at page 4 of his ruling that section 263 and 269 of the Criminal procedure law cannot be applied to aid the release of the vehicles (exhibits 52 to 55) to the applicant.
- The learned trial Judge misdirected himself on the law when he held at page 4 of his ruling as follows:-
“I have given serious consideration to the inevitable damage to the vehicles by further delay in concluding this case, but short of a proper termination according to all relevant constitutional provisions, the vehicles cannot be released to anyone until after the conclusion of trial. They must remain in court’s custody”.
From these grounds of appeal, the appellant distilled only one issue for determination and that is:-
“Whether considering all the circumstances of this case and section 269 of the Criminal Procedure Law (Cap. 33) Laws of Lagos State 1994 the refusal of the trial Judge to release to the appellant the Toyota Nissan and Saab cars is justified”.
The 1st respondent however identified three issues for determination, and these are:-
“1. Whether the trial court is on (sic) empowered under section 263 and 269 of the Criminal Procedure Law to restore property recovered from an accused to whoever it feels is entitled to such property.
- Whether or not terms of settlement are relevant and effective in a criminal case.
- Whether the appellant adopted the correct procedure when he relied on the so called “terms of settlement” as a basis upon which he expected the trial Judge to exercise his powers under section 263 and 269 of the Criminal Procedure Law of Lagos State 1994″.
Before her oral submission, the learned DPP in the Lagos State Ministry of Justice withdrew issue No.2 and same was accordingly struck out.
The 2nd and 3rd respondents jointly distilled two issues from the grounds of appeal for determination of this appeal. These issues read as follows:-
“(i) Whether having regard to charge No. LCD/47/91 pending before the lower court, the learned trial Judge was in error when he refused to give effect to or countenance the terms of settlement prepared and executed as between the appellant on one part and the 2nd and 3rd respondents.
(ii) Whether Sections 263 and 269 of the Criminal Procedure Law, Laws of Lagos State of Nigeria 1993 are applicable to the facts of this case, and if so whether having regard to the totality of the evidence before him, the learned trial Judge should have exercised his discretion in favour of the release of exhibits 52, 53, 54 and 55 to the appellant.”
The law is settled that issues or questions for determination in an appeal are learned or distilled from the grounds of appeal before the court. Where issues raised are not formulated from any ground of appeal the Court of Appeal must discountenance such issues. See Omo v. Judicial service Commission, Delta State & 2 Ors. (2000) 3 SCNQR 28, (2000) 12 NWLR (Pt.6820) 444; Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523; Brawal Shipping (Nig.) Ltd. v. F. I. Onwadike Co. Ltd & 1 or (2000) 2 SCNQR 1379, (2000) 11 NWLR (Pt.678) 387.
In the instant appeal, the 3rd issue which was formulated by the learned DPP on behalf of the 1st respondent is not consistent with any of the grounds of appeal that was filed by the appellant. Since the 1st respondent did not file a cross appeal, it can only raise issues from the appellant’s grounds of appeal. The grounds of appeal before this court attack the ruling of the court below. However the 3rd issue which was formulated on behalf of the 1st respondent deals with the procedure adopted by the appellant at the court below. This court sits over the appeals on the actions and inactions of the court below. It does not sit on appeals against the actions or inactions of the parties before the lower court and none of the grounds of appeal before this court complained against the procedure adopted by the parties. Even if such ground existed, it would have been struck out for being incompetent. Since the 3rd issue which was formulated on behalf of the 1st respondent is incompetent same and all the argument canvassed on that issue are hereby discountenanced by me.
The sole issue which was formulated by the appellant, the 1st issue for the 1st respondent and 2nd and 3rd respondents are hereby spared and adopted. All the issues raised by all the parties shall be treated together.
In presentation of his argument, Babajide Koku Esq of counsel for the appellant categorized the facts of this case into two as follows:-
a – The initial transaction of transfer and
b – the subsequent transaction of transfer.
In respect of the initial transaction of transfer, learned counsel made reference to the areas of contradictions in the appellant’s case at the lower court and made concession in the following words –
“We however concede that there is an apparent contradiction between the applicant’s testimony at pages 25-26 of the record and paragraph 3(f) of the affidavit in support of the application ….”
Even with this apparent contradiction, learned counsel submits that contradictory evidence is no evidence and that the court is entitled to disregard paragraph 3(f) of the affidavit and the exhibit referred to therein. In aid he cites the decision in Bank of Baroda v. Mercantile Bank Ltd (1987) 3 NWLR (Pt 60) 233 at 239 4.
In a further submission, learned counsel says aside from paragraph 3(f) of the appellant’s affidavit, there are still credible evidence of transfer of the cars to the appellant. He referred to paragraph 3(e) of the affidavit which says:-
“That when the 1st respondent sold the above mentioned cars to him, he prepared and signed receipts for each of them. Photocopies of the receipts for the Toyota Nissan and Saab are attached hereto as exhibits A, B, C respectively”.
And contends that there was no denial that the 2nd respondent denied issuing the receipts. According to him, the onus is on the 2nd respondent to prove that he did not offer the cars to the appellant and that the offer of the car to the appellant was no longer capable of acceptance in 1996. Learned counsel referred the court to Section 139 Evidence Act and says the onus was not discharged.
Finally on this segment of his argument, learned counsel submits that the trial court placed no weight on the sworn affidavit of the DPP of Lagos State, where the DPP had no objection to the release of the cars.
On the 2nd segment of his argument which he referred to as the subsequent transaction of transfer learned counsel submits that the subsequent transaction of transfer is evidenced by and contained in the document inadvertently titled “Terms of Settlement”. Although learned counsel agrees that such settlement cannot terminate a criminal proceeding, he however insist that the document was not accorded the required interpretation to find out the intention of the parties. For this purpose he referred the court to the authority in Agwunedu v. Onwumere (1994) 1 NWLR (Pt. 321) 375.
In a further submission, learned counsel observed that the agreement between the appellant and the 2nd respondent was made in specific response to the appellant’s application in which the 2nd respondent consented to the release to the appellant the cars which are the subject matter of this appeal. According to him the agreement between the parties is binding since counsel on either side signed the document. For this he cites the authority in A.-G. Federation v. A.I.C. (1995) 2 NWLR (Pt 378) at 405 paragraphs F-G and Edozien v. Edozien (1993) 1 NWLR (Pt 272) 678.
Continuing his submission Koku, Esq. of counsel referred this court to paragraph 7 of the appellant’s affidavit in support of his application and submits that the trial court did not give due consideration to the facts contained therein which were not denied by counter affidavit and that the cars which form the subject matter of this appeal constitute any property other than that used in the commission of the offence mentioned under section 269 of the Criminal Procedure Law (Cap 33 Laws of Lagos State 1994). This being so he further submits that the lower court had the discretionary power under S.269 (a) Criminal Procedure Laws of Lagos State to release the cars to the person who appears to the court to be entitled to them. According to the learned counsel, the court below was in error when it held at page 7 of the record that S.269 of the Criminal Procedure Law of Lagos State is inapplicable in this case.
The learned DPP, Lagos State, who appeared for the 1st respondent, in her reply referred to the provisions of section 263(1), 263(A), 269 all of the Criminal Procedure Law and submits that the law is very clear that property taken from the accused can be restored to the rightful owner. In her reply to the issue of the ‘terms of settlement’, the learned DPP submits that terms of settlement have no relevance in criminal case and it must therefore follow that the court cannot and will not be coerced into basing the exercise of its powers under Sections 263 and 269 of the Criminal Procedure Law on such “terms of settlement”.
Finally, the learned DPP urged this court to dismiss this application. Seyilayo Ojo, Esq of counsel for the 2nd and 3nd respondents in his reply to the points raised in the submission for the appellant submits that the terms of settlement which was drawn between the appellant and the 2nd respondent was intended to finally discharge the criminal case No. LCD/47/91 which was pending before the lower court. This he said offends the provision of section 25 of the High Court Law of Lagos State. In a further submission, learned counsel referred to S.1 of the High Court Law of Lagos State and section 211 of the Constitution of Nigeria and contends that only the state acting through the Attorney General can terminate a criminal case of the nature the 2nd respondent was charged.
Continuing his reply, learned counsel for the 2nd and 3rd respondents referred to the contradiction in the appellant’s testimony during the trial of the 2nd respondent in case No. LCD/47/91 and paragraph 3(f) of the affidavit in support of the application for the release of the vehicles and submits that the character of a witness who gives inconsistent statements is a vital element in determining the level of his credibility. In aid, he cites Okoro v. The State (1997) 4 NWLR (Pt 497) 109.
Finally, learned counsel submits that counsel has apparent authority to settle claims on behalf of a client, but that can only be done within a defined parameter of law, as parties cannot agree on a false hypothesis and expect a court to be bound thereby. In aid he cites Whall v. Bulman & Anor. (1953) 2 All E.R. 306: Seismograph Services Nigeria Ltd. v. Eyuafe (1976) 10 NSCC 547, (1976) 9-10 SC 135.
In conclusion Ojo Esq. of counsel urged this Court to dismiss this appeal.
Once again this court has been called upon to review what is purely an exercise of the discretionary powers of the court below. A grant or refusal of the application, subject matter of this appeal by the lower court was purely within the province of the discretionary powers of that court. The law is settled that the discretion of a court must at all times be exercised not only judicially but also judiciously on sufficient materials, See Udensi v. Odusote (2003) 6 NWLR (Pt. 817) 545 at 558 paragraph B: Ogbuchi v. Governor Imo State (1995) 9 NWLR (Pt. 417) 53; University of Lagos v. M. I. Aigoro (1985) 1 NWLR (Pt 1) 143 at 148.
It is equally settled that if judicial discretion has been exercised bona fide uninfluenced by irrelevant consideration and not arbitrarily or illegally by the court, the general rule is that the appeal court will not accordingly interfere. However, an appellate court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the court below acted under a misconception of law or under misapprehension of fact in that it either gave way to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere:. See Udensi v. Odusote (supra) at page 558 paragraphs C-E, Enekebe v. Enekebe (1964) 1 All NLR 102.
The question now is whether the lower court was justified in the exercise of its discretion when it dismissed the appellant’s application.
In the first place it is not in doubt that the 2nd respondent was an accused in a criminal ease No. LCD/47/91. It is also not in doubt that during the pendency of that case, a document which is christened “Terms of Settlement”, was drawn and assented to by counsel for the appellant and the 2nd respondent and this document was annexed to the further and better affidavit dated 29th of August 1996 as exhibit A.
The terms of settlement read as follows:-
“Consequent upon the application filed by Chief Sikiru Kolawole Adejumo who is the complainant in the above criminal charge, it is hereby agreed between the complainant and accused as follows:-
(1) That three of the four vehicles listed in the complainants application of 27th of June 1996 namely:-
Saab Turbo car No. LA 900 MM
Toyota Car No. LA 212 KJ
Datsun Car No. LA 2400 AS
now exhibits 52, 53 and 54 respectively in this criminal charge shall be released forthwith to the complainant.
(2) It is further agreed that with the immediate release of these cars, the complainant hereby acknowledges the receipt of these cars and a complete discharge of all claims made by him which form the basis of this criminal prosecution.
(3) It is also agreed that this will also operate as a discharge of the judgment debt entered in favour of the complainant and his company against the accused and the defendant in suit No. LD/186/92 on the 3rd day of May 1995. ”
Before this terms of settlement was drawn up the appellant had filed an application before the court below in which he prayed for the release of the four vehicles. In the supporting affidavit, his averment was that the four vehicles were sold to him in partial repayment of the sum paid by him to the 2nd respondent for the purchase of a house and the house was not purchased. He also exhibited receipts which were issued to him by the 2nd respondent which were marked exhibits A, B, and C in respect of three cars.
Section 269 of the Criminal Procedure Law (Cap 33) Laws of Lagos State 1994 makes the following provisions:-
“Where, upon the apprehension of a person charged with an offence any property other than that used in the commission of the offence is taken from him, the court before which he is charged may order-
(a) that the property or a party thereof be restored to the person who appears to the court to be entitled thereto and if he be the person charged, that if he restored either to him or to such other person as he may direct ….”
It is very clear from the provision of S. 269 Criminal Procedure Law that property taken from the accused can be restored to the rightful owner at any stage of the proceedings. This cannot be done until a person who appears to the court to be entitled to the property is identified. This calls for assessment of the evidence and ascription of probative value to such evidence, an area that is narrowly available to this court. An appellate court has no jurisdiction to interfere with the assessment and evaluation of evidence of a trial court in the absence of special circumstances warranting such interference.
The appellant’s affidavit dated 28th June 1996 at the lower court, where he deposed to the facts that the 2nd Respondent had sold the four cars to him was challenged by the 2nd Respondent in their counter affidavit where it was deposed that the 2nd respondent was forced by the police to sign documents relating to the sale of the cars at prices dictated by the appellant, while he was still in detention. Secondly, in the proceedings of 21st of May 1992 the appellant made the following admission:-
“No property of the accused has been transferred to me since the arrest of the accused. I have my reason for saying this. Some friends of the accused came to me after his arrest and offered me his cars. I refused them, they then offered three properties said to belong to the accused….. It is not true that I have accepted the accused person’s cars and have registered them in my name or the name of my company.
It would not be with my approval if any of the accused’s cars had been transferred to my name, the name of my son or any of my organization. I reject the offer of transfer of the accused cars to me,”
However, in the supporting affidavit to his application before the lower court, the averment on behalf of the appellant at paragraph 3(e) reads as follows:-
“That when the 1st respondent sold the above mentioned cars to him, he prepared and signed receipts for each of them. Photocopies of the receipts for the Toyota Nissan and Saab are attached hereto as exhibit A, B, C respectively.”
Exhibits A, B, and C are all dated 4th October 1991. The testimony which repudiated the transfer of the vehicles by the appellant was given on the 21st of May 1992. From these pieces of evidence the issuance of the receipts, exhibits A, B, C predates the evidence of the appellant. It shows that the transfer of the cars had been concluded before his testimony of 21st May 1992. His denial of that transaction shows he had something to hide, and the court below was right to have used the contradiction highlighted in the appellant’s evidence as one of the tools in rejecting the appellant’s application.
On the terms of settlement, it is clear that document was meant to-
- Terminate the criminal proceedings in the case No.LCD/47/92-
- Discharge the judgment debt entered in favour of the appellant and his company against the 2nd respondent in Suit No. LD/186/92 dated the 3rd of May 1995.
This is clearly seen in the contents of the document itself.
Clause 2 of the terms of settlement reads:-
“It is further agreed that with the immediate release of the cars, the complainant hereby acknowledge the receipt of these cars as a complete discharge of all claims made by him which form the basis of this criminal prosecution”, (underlining is mine)
S.25 of the High Court Law (Cap 60) Laws of Lagos State which was cited and relied upon by learned counsel for the 2nd and 3rd respondents clearly spells out areas where parties to a criminal charge can settle out of court in the following words:-
“In criminal cases, the High Court may encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any offence not amounting to a felony and not aggravated in degree, on terms of payment of compensation or other terms provided by court.”
The offence for which the 2nd respondent is charged is stealing and by S.390 or the Criminal Procedure Law of Lagos State it is a felony which can only be terminated by the State by virtue of the powers conferred upon it by section 211 of the Constitution of the Federal republic of Nigeria 1999. The court below was therefore right when it ruled that the terms of settlement between the parties could not operate in such a way as to terminate the criminal proceeding that was pending before it.
Clause 3 of the terms of settlement talks of the civil matter which was concluded before another court. It read thus-
“It is also agreed that this will also operate as a discharge of a judgment debt entered in favour of the complainant and his company against the accused and the defendant in suit no. LD/186/92 on the 3rd day of May 1995.”
The cars were exhibits in a criminal case, their release was dependent on the discretion of the court. The terms of settlement in respect of the judgment in suit No. LD/186/92 could only be possible if the court below had agreed to release the vehicles. Since the vehicles were encumbered, the terms of settlement was at best superfluous, and the court below was right when it refused to give it any recognition.
One of the reasons the appellant gave at the lower court for his application to have the vehicles released to him is set out at paragraph 7(a) of the supporting affidavit. That paragraph reads:-
“(a) That the cars are kept under no protection and are beaten by rain and sun continually and have all been depreciating in form and value,”
I really sympathize with the appellant in the way things are:-
However, l count this as one of the hazards to a party who embarks on a rash and negligent steps when confronted with issues of concern, From the fact of the case that led to the criminal trial of the 2nd respondent, it is clear that that case arose from a business transaction which had wholly failed. The remedy, in my opinion lay in civil claim. However, the appellant chose to take the path of criminal trial. Since he has subjected himself to such trial, all the procedure for that purpose must be complied with. As it is now the depreciation of the vehicles may be an issue for concern for the court below.
I can do no more than to refrain from undue interference with the discretion of the lower court which I think was justly employed.
On the issue of the authority of counsel, I agree with Seyilayo Ojo Esq of counsel that parties cannot agree on a false hypothesis and expect to be bound thereby. If the authority is based on wrong law, it is wrong and cannot be salvaged.
On the whole, I find it difficult to disturb the ruling of the lower court and accordingly this appeal ought to be dismissed, and it is accordingly dismissed. Each party should bear his own cost.
Other Citations: (2006)LCN/1896(CA)
