M. N. Uttah V. Independence Brewery Limited (1974)

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ELIAS, CJN. 

In this appeal from the judgment of Aniagolu, J., delivered on August 7, 1972 at the Umuahia High Court, the plaintiff/respondent Company was awarded the amount of £3,497:6:10d. as per its Writ of Summons in respect of the balance of a trading account between the company and the defendant from February 26, 1964 to May 1, 1966.

During the material period, the defendant/appellant resided in Kano, Northern Nigeria, and the beer was transported from the company’s breweries in Umuahia to the defendant/appellant in Kano. The action was commenced in Suit No. HU/43/66 by means of a writ issued at Umuahia on July 4,1966, and pleadings were ordered and apparently delivered sometime in November, 1966, though it would seem that there was an outstanding application for an amendment of the particulars of the Counter-Claim and extension of time within which to file the Statement of Defence when the rebellion in Eastern Nigeria supervened on May 27, 1967.

The action nevertheless proceeded in the so-called “High Court of Biafra” from December 28, 1967 till November 18, 1968, when Aniagolu, J., made the following order: “It is hereby ordered that Mr. S.C. Ogbuehi a chartered accountant of 53 Annang Street, Umuahia, be and is hereby appointed a referee to take accounts between the parties and that on taking the said accounts he should arrive at balance due to the parties setting off the claims and counter claims of the parties.

It is further ordered that the said S.C. Ogbuehi do transmit his report to this court on or before the 31st day of January 1969. The costs for the taking of the accounts would be borne equally by the parties.” It would seem that Mr. Ogbuehi in due course submitted a report entitled “Report on Investigation of Trading Account Between Independence Brewery Limited and Mr. M.N. Uttah” in Suit No. HU/43/66. At the end of the civil war, the matter was taken over by the same Aniagolu, J., at the High Court of the Umuahia Judicial Division of the East-Central State of Nigeria on April 17, 1972 and, after conducting further proceedings into the report and the Counter-Claim by the defendant/appellant, the learned trial Judge gave the following judgment: “Accordingly the defendant’s claim to a further sum of £2,460:8/- on his counter-claim is rejected and dismissed.

The result is that the amount of £3,497:6:10d. already adjudged to the plaintiff stands as the final judgment between the parties in this suit.” The present appeal has been brought against that judgment on the following four grounds: “1. That the learned trial Judge misdirected himself in law in holding that ‘Depending on how one looks at it the notice from the plaintiff in this case may either be said to be actual (expressed) or constructive’. 2. That the learned trial Judge misdirected himself as to the facts in evidence when he said, ‘But the Referee saw the documents and gave them their due weight in his report’.

3. That the learned trial Judge by saying in his judgment inter alia, ‘I have neither seen the waybills nor the consignment notes. Not having seen any of the documents it is impossible for this court to determine the correctness of the contention of the defendant in respect of the documents, failed to direct his mind to the fact that the plaintiff did not deny receiving all the consignments of empty bottles as contained in the defendant’s annexure ‘A’ and that the Referee admitted that the plaintiff did not show him any documents showing notice of rejected empty bottles to he defendant. 4. That judgment is against the weight of evidence.”

When the appeal was about to be heard, Mr. Ukeni, learned counsel for the appellant, asked leave to be allowed to file an additional ground of appeal, the gravamen of which would be that the referee was not shown to have been duly appointed under a stated law. We think that learned counsel should have framed this as the only ground of appeal, not on the point concerning appointment under a stated law, but on the point that the judgment appealed from was a nullity since it was based on the report of a referee appointed by Aniagolu, J., in his capacity as a Judge of a non-existent High Court of the so-called “Biafra”, and that no appeal could lie from such an entity to the Supreme Court of Nigeria. It seems clear to us that the action was properly commenced within time and according to the Rules of the High Court of Eastern Nigeria as these existed up to and including May 26, 1967, but that, subsequently to that date, all the proceedings in the case before the High Court of the illegal regime must also be declared a nullity.

The justice of the case demands, however, that, since it was properly before a competent court prior to the intervention of the rebellion which made it impossible for the case to proceed, the present case should be remitted back to the newly constituted Umuahia High Court for a retrial from the point in May, 1967 when the proceedings were interrupted. The case should be regarded as still pending before the High Court of Umuahia as reconstituted and a proper judgment should, after due hearing, be entered by that court. There shall be no order as to costs.

Other Citation: (1974) LCN/1953(SC)