Prof. Theophilus Adelodun Okin & Anor V. Mrs. Agnes Iyeba Okin (2019)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALUMJE, J.S.C.

The Respondent herein, who was plaintiff at the Federal High Court, Ilorin Division, at paragraph 50 of her statement of claim dated 4th April, 2014 and filed on the 7th April, 2014 claimed against the Appellants jointly and severally the following reliefs: –

“(a) A declaration that the claimant is a co-owner of Kinsey Academy and Kinsey College of Education both in Ilorin and 1st Defendant lacks the vires to appropriate same for himself.

(b) A declaration that the claimant is eminently and validly entitled to 50% of the assets of Kinsey Academy and Kinsey College of Education, Ilorin.

(c) A declaration that the unilateral takeover of the schools by the 1st Defendant to the exclusion of the claimant is illegal, null and void.

(a) A mandatory order of this honourable Court, compelling the 1st defendant, his agents, servants, employees and proxies to render proper account of the financial affairs of Kinsey Academy and Kinsey College of Education to the Court from 1st January, 2011 to date.

(e) An order of this honourable Court dissolving the partnership

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and winding down the affairs of Kinsey Academy and Kinsey College of Education, Ilorin and the liquidation of the assets and liabilities of the schools, and sharing same equally between the claimant and 1st Defendant.

(f) An order of perpetual injunction restraining the defendants, their agents, servants and privies from further administering the affairs of Kinsey Academy and Kinsey College of Education, Ilorin.

(g) The sum of two million naira (N2,000,000.00) only being general damages for the embarrassment, humiliation, frustration and inconvenience suffered by the claimant in the hands of the defendants.”

In their joint forty-six paragraph statement of defence filed on the 4th of June, 2014 the Appellants denied the Respondent’s claims. Issues having been joined, the case proceeded to trial. At the end of the trial, Learned Counsel for the parties addressed the Court. In a reserved and considered judgment, delivered on the 24th of February 2015 Faji J., granted to the Respondent reliefs a – e and g. The learned trial judge refused to grant relief f on the ground that the order sought therein will operate against no one, since the

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partnership by the grant of relief so (e) remain dissolved.

The Appellants were dissatisfied with the decision of the trial Court. Being aggrieved, they appealed to the Court of Appeal, Ilorin Division. The appeal was heard and in a reserved and considered judgment delivered on the 24th day of March, 2016, the lower Court dismissed the appeal and awarded a cost of N100,000.00 in favour of the Respondent.

Once again, the Appellants are dissatisfied with the decision of the lower Court. They filed two notices of appeal on the 29th March, 2016 and 7th April, 2016. These two notices of appeal were filed within the prescribed period in which a party who is dissatisfied with the decision of the lower Court, can appeal to this Court.

Parties filed and exchanged briefs of argument. Mr. B. R. Gold, Learned Counsel for the Appellants, settled the Appellant’s brief of argument. At page 3 paragraph 1.03 of the Appellant’s brief of argument filed on the 18/5/2016, learned counsel indicated that the appeal would be prosecuted on the notice of appeal filed on the 7th April 2016. That notice of appeal contains four grounds of appeal. Learned

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Counsel formulated two issues for determination of this appeal as follows:

“1. Whether the existence of partnership could be inferred between the 1st Appellant and the Respondent in line with the requirements listed by this Court in Ezejesi v Ezejesi (2010) All FWLR (Pt.517) 647.

2. Whether the decision of the Court of Appeal on the equal sharing of only the physical or liquid asset of the partnership is in accord with the findings of the Court as well as the Law, on partnership.”

Mr. A. O. Mohammed, Learned Senior Advocate of Nigeria, settled the respondent’s brief of argument. Learned Senior Counsel adopted the two issues formulated by learned counsel for the Appellant.

Learned Counsel for the Appellant filed a reply brief on the 7th November, 2017.

In arguing the first issue for determination of this appeal, learned counsel for the Appellant submitted that the findings of facts by the two lower Courts, though concurrent are perverse as they are not based on the evidence adduced in this case. Learned Counsel submitted that the trial Court was wrong to have imputed implied partnership between the 1st Appellant and the

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Respondent, and that the lower Court failed to right the wrong committed by the trial Court. In a further argument, Learned Counsel submitted that this Court had in the case of Ezejesi v Ezejesi (Supra) set out conditions which a party must establish before a Court can infer partnership arrangement between parties.

Learned Counsel urged this Court to hold that the lower Court is wrong to have held that the evidence on record are in consonance with the elements of implied partnership espoused in Ezejesi’s case. Finally learned counsel urged this Court to resolve this issue in favour of the Appellant on the ground that the decision of the lower Court is a blanket reliance on the conclusion of the trial judge that was influenced by sentiment rather than Law.

In his argument, learned Counsel for the Respondent submitted that even though the case of Ezejesi v Ezejesi (Supra) is a decision of the Court of Appeal, and not the decision of this Court as alluded to by the learned counsel for the Respondent, all the elements in that case in which partnership could be inferred are present in this case. Learned Counsel made reference to the evidence adduced by

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the Respondent at the trial Court as well as Exhibits A, F, I, J, K, M, and contended that the effect of the uncontradicted pieces of oral and documentary evidence on record leave no one in doubt that the Respondent and the 1st Appellant were partners in the business of running Kinsey Academy school. In aid, Learned Senior Counsel cited Section 169 of the Evidence Act and the authorities inOnamade v ACB (1997)1 SCNJ 65, Lawal v Union Bank (1995) 2 SCNJ 132 at 135. In a further argument, learned Senior counsel submitted that by Exhibit A, all the conditions in Ezejesi v Ezejesi (Supra are presumed and and deemed implied. In aid, learned Senior Counsel cited Nwankwo v Nwankwo (1995) 5 NWLR (Pt.394)153.

Finally Learned Senior Counsel urged this Court not to disturb the concurrent decisions of the two lower Courts. In the Appellant’s reply brief of argument, Learned Counsel submitted that the issue of bindingness of the case ofEzejesi v Ezejesi (Supra) on this Court is misconceived. Learned Counsel submitted that the complaint of the Appellants is that they were aggrieved with the reliance of the lower Court on the authority of Ezejesi to hold that the

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elements of partnership were available in this case. Learned Counsel denied that the Appellant ever suggested that the decision in Ezejesi was binding on this Court.

On the issue of estoppel which was raised by learned senior Counsel for the Respondent, Learned Counsel submitted that the principle and issue of estopel is a new innovation of the respondent in this appeal, as issues were not joined thereon at the lower Court. Learned Counsel went on to argue on Exhibit A which according to him does not satisfy the requirement of inference of partnership as laid down in the case of Ezejesi.

At page 9 paragraph 5.06 of the Appellant’s brief of argument, it is stated thus: –

At page 673 of the case of Ezejesi v Ezejesi (2010) All FWLR (Pt.517) this Court observed thus

By the passage reproduced herein above, learned Counsel falsely stated that the case of Ezejesi was decided by this Court. The case of Ezejesi, cited by learned Counsel for the Appellant is a decision of the Court of Appeal, Enugu Division. The lower Court is entitled to cite and rely on its decision which has not been overruled by this Court. The fact

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that the lower Court relied on its decision does not in any way transform that case to a binding decision on the Supreme Court. I take it that learned Counsel for the Respondent committed a genuine mistake by stating that Ezejesi v Ezejesi (Supra) is a decision of this Court. Learned Counsel did not in any way state that that decision is binding on this Court.

After going through the proceedings of the trial Court, especially the exhibits admitted during the trial, the lower Court at page 1093 paragraph 2 of the lead judgment of Onyemenam, said: –

“From the foregoing, I hold that the learned trial Judge was legally duty bound and as such was right in admitting the unchallenged evidence of the respondent in proof of partnership. He was also right when he found that the respondent was not a staff of Kinsey Academy but a co-owner of Kinsey Academy and Kinsey college of education.

This view is firmed up by the fact that the Respondent was known and addressed by both Kinsey Academy and Kinsey College of education respectively; and the 1st Appellant himself as “proprietress”, meaning, a woman who owns a business or property.”

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The Black’s Law Dictionary, 9th Edition defines partnership as a voluntary association of two or more persons who jointly own and carry on a business for profit.

Foreign statute II a partnership is presumed to exist if the persons agree to share proportionally the business’s profits or losses. The essential element common to all partnership is the pooling together of resources capital, labour and skill for the common benefit of the partners.

Now the respondent herein was the plaintiff at the trial Court. By the provision of Sections 131 and 132 of the Evidence Act 2011, the burden of proving that the Kinsey Academy and the Kinsey College of Education were jointly owned by herself and the 1st Appellant as partners squarely rested on her. These Sections provide as follows: –

“131 (1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he assert shall prove that those facts exist.

(2) when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

132 The burden of proof in a suit or proceeding lies on that person who would fail if no

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evidence at all were given on either side.”

During the hearing of this case at the trial Court, the respondent tendered various documents in evidence which were admitted and marked Exhibits A – Z, while the Appellants tendered documents which were admitted and marked Exhibits AA – JJ. Exhibit A is an application for registration of Business name with corporate Affairs Commission. The Business name is given as Kinsey Academy and the general nature of the business is to operate schools, Colleges, Architectural Consultancy services. The particulars in respect of each partner as endorsed on the form are:

(1) (Professor) Theophilus Adelodun Okin (Provost).

(2) NES lyabode Okin (Registrar).

The certificate of registration of business name which was issued by Corporate Affairs Commission is at pages 607 – 609 of the record of this appeal. The column for signature of all partners in the form is endorsed and signed by T. A. OKIN and A. I. OKIN. These documents are consistent with the evidence of the Respondent who testified that the school, Kinsey Academy was registered with the Corporate Affairs Commission on the 12th may, 2003, with the 1st

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Appellant and herself as joint owners or partners. In Domingo v The Queen (1963) LPELR 15448 (SC), this Court per Brett JSC held at page 11 para E as follows:

“The Law does not prohibit anyone from carrying on business either alone or in partnership with others under a name assumed for that purpose, but in order to enable persons doing business with the individual or partnership to discover who the person or persons behind the name are, the Law requires these particulars to be registered and the true names of the individual or the partners have to be shown in all trade catalogues, trade circulars and business letters sent out under the registered name.”

From Exhibit A, and the other exhibits referred to by the lower Court, it is very clear that the first Appellant and the Respondent were partners in the business of establishment of Kinsey Academy and Kinsey College of education. Apart from corning the name of the Partnership from their names, which the two lower Courts believed, they were joint signatories to the accounts of both institutions.

At page 1087 of the record of appeal, the lower Court acknowledged

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that the 1st Appellant and the Respondent were joint signatories to the partnership account, in the following words:-

“The properties that were acquired were executed in the names of both the 1st Appellant and the Respondent as owners. The schools’ account was also maintained in the name of the 1st Appellant and the Respondent.”

The Appellant did not lead any concrete evidence to the contrary.

In Nwankwo v Nwankwo (1995)5 NWLR fPt.394) 153, the Appellant Cecilia Ihuoma Nwankwo and the Respondent Emmanuel Chukwumaobi Nwankwo were married under Customary Law in 1976. During the marriage a firm named EMCECO Engineering company was registered under the Registration of Business Names Act, 1961 in the joint names of the appellant and the Respondent in 1980. The marriage between the parties broke down before the commencement of this case. The Appellant instituted an action at the then Imo State High Court, Aba, and claimed the following reliefs: –

“1. A declaration that the plaintiff is the owner and sole proprietor of the business known as EMCECO Engineering Company registered as No.1073 under the registration

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of Business Names Act 1961.

2. An injunction restraining the defendant from Further interfering with the plaintiffs control and management, or in any other way whatsoever meddling in the affairs of the said business.
3. An order directing the defendant to account to the plaintiff for all assets, property and utensils in trade of the said business which said assets, property and utensils in trade the defendant has forcibly appropriated to himself and excluded the plaintiff therefrom.
4. The sum of -N100,000.00 being special and general damage arising from loss suffered by the plaintiff due to the defendant’s undue interference with and forcible appropriation of and undue meddling in the said business of EMCECO Engineering Company.”

At the end of trial, and in a considered judgment delivered on the 24th February 2015, the trial Court granted reliefs 1 -3 and dismissed reliefs 4.

Dissatisfied with the decision, the Respondent appealed to the Court of Appeal Port-Harcourt Division. The lower Court heard the appeal and in a unanimous decision allowed the appeal and dismissed the Appellant’s claims at the trial Court. Aggrieved by the

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decision of the Court of Appeal, the appellant appealed to this Court and on Exhibit 13, an affidavit sworn to by the Respondent on the 18th of December, 1984, six days after the promulgation of Regulated and other Profession (Private Practice Prohibition) Decree No.34 of 1984 where the Respondent dissociated himself from all interest in the business, since he was a civil servant.

The respondent, for his own part, relied inter alia on the certified true copy of the original certificate of registration of the business, Exhibit 1, together with a certified true copy of the notice of change filed with the Registrar of Business Names when dealership in petroleum products was added to the registered particulars of the firm, Exhibit 2. He further relied on Exhibit 3 which is a certified true copy of the application for the registration of the business name of the firm dated the 23rd May, 1978.

Exhibit 3 was signed by both the Appellant and the respondent. It was the respondent’s case that he in fact floated EMCECO and merely included the name of his wife, the Appellant in the registration form in the interest of that family and the confidence and trust

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that existed between them as husband and wife. It was further his case that he delegated the appellant to run the business in their joint names.

After considering all the exhibits in the case, especially the application for registration of the company and the certificate of registration, this Court dismissed the Appellant’s appeal on the ground that she failed to establish that EMCECO Engineering company was her exclusive business. In the lead judgment of Wali JSC, this Court said:

“From the pleadings the evidence and circumstances of this case. I am satisfied that EMCECO Engineering Company is an existing business within the definition under the 1999 Constitution of Nigeria and within the definition under the Registration of Business Names Act, 1961. I am also satisfied that it was registered as a firm of unincorporated body of two persons comprising the plaintiff and the defendant. It is not disputed that the business was established for the purpose of making profit.”

The case of Nwankwo v Nwankwo (Supra) is clearly on all fours with the instant case. Kinsey Academy and Kinsey College of education were established for the purpose of making

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profit, and this is not disputed. The existence of partnership in this case was rightly inferred between the 1st Appellant and the Respondent. The first issue for determination of this appeal is resolved against the Appellant.

On the second issue for determination of this appeal, Learned Counsel submitted that the decision of the lower Court on the equal sharing of only the physical or liquid assets of the partnership between the 1st Appellant and the respondent does not accord with the right findings of the lower Court at page 1094 of the record of appeal, where it was held: –

“Whether such dissolution is by reason of the state of agreement of the partnership or by Court decree, each party is entitled to be indemnified to the tune of expenses he had rightly incurred on behalf of the partnership in the ordinary course of its business or for the preservation of the partnership.”

In a further argument, Learned Counsel submitted that the irresistible conclusion on the above findings of the Court below is that there must be evidence of the expenses rightly incurred by the Respondent on behalf of the partnership as well as evidence

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of the value of such expenses so incurred by the Respondent which must be laid before the Court by the respondent, in order to help the Court in determining the entitlement of each partner to the partnership. According to the learned counsel, since the respondent is only entitled to the quantum of her rightful expenses incurred on behalf of the partnership, it was wrong of the lower Courts to hold that the partners are entitled equally to the sharing of both the physical and liquid assets of the partnership. Still in argument, learned counsel urged this Court to hold that the decision of the lower Court is perverse.

In aid learned counsel cited Onyibor Anekwe & Anor v Mrs. Maria Nweke (2014) All FWLR (Pt.739) 1154 at 1175.

On the fate of the two institutions involved in this case, Learned Counsel submitted that the perverse decisions of the two lower Courts suppressed the justice of the case because:

1. The decision is aimed at killing the business of the adjudged partnership which are two institutions of learning where future of many students still hangs
2. The decision is only aimed at the capital and gain of the adjudged

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partnership

3. The decision fails to consider the existing liabilities of the adjudged partnership. In a further argument, Learned Counsel submitted that the decision of the lower Court was given in ignorance or forgetfulness of binding principle of Law that, partners to a partnership arrangement are liable to share in gains and losses.

It is learned Counsel’s contention that the decision of the lower Courts in support of sharing only the gains of the adjudged partnership, leaving only the first Appellant to bear the loss of the adjudged partnership is manifestly wrong and should be set aside in the interest of justice.

Finally, learned Counsel urged this Court to resolve this issue in favour of the Appellant.

In answer, Learned Senior Counsel for the Respondent submitted that apart from the fact that it was only the Respondent that gave evidence on the sharing formula at the hearing of this case, the Appellant did not give any contrary evidence on the sharing of the assets of the Kinsey Academy and Kinsey College of education. It is Learned Counsel’s contention that the trial Court was bound to accept the evidence of the Respondent. In a

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further argument, learned Senior Counsel submitted that neither the trial Court nor the Court of Appeal made mention of “Physical and liquid assets” in relation to the parties before this Court.

It is learned senior Counsel’s contention that “physical and liquid assets” was mentioned only in the lower Courts obiter at page 1094 of the record of this appeal, when it quoted from the case of Yesufu (Supra) and Halsbury’s Laws of England. Being obiter, learned senior Counsel urged this Court to hold that the argument canvassed by learned Counsel for the Appellant is irrelevant and should be discountenanced. According to the learned Senior Counsel, the respondent by oral and documentary evidence had placed the assets of the Partnership represented by Kinsey Academy and Kinsey College of Education before the trial Court, and it is the assets of the two schools that the trial Court directed that they be shared equally. Learned Counsel submitted that the lower Court was right to have ordered equal sharing of the assets of the partnership based on the evidence before the Court. Finally learned Counsel urged the Court to resolved this issue in favour of the

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Respondent.

In the reply brief, learned counsel for Appellant directed this Court’s attention to the end of paragraph 1 of page 1094 of the record where the lower Court held: –

“Consequently, I will add, each member, unless there is a formal agreement stating otherwise, will be entitled equally to the sharing of both the physical or liquid assets of the partnership,”

and submitted that the mention “physical or liquid assets” was not obiter, but the reason for the Court’s decision. In aid learned Counsel cited the Ekong v Udo (2003) FWLR (Pt.139) 1576 at 1594.

It is learned Counsel further submission that the respondent’s written statement did not show clearly how the physical and liquid assets of the partnership will be shared. Learned Counsel urged this Court to dismiss the appeal.

The first ground of appeal to the lower Court, without its particulars, reads as follows:-

“The learned trial judge erred in Law when haven (Sic) found that the plaintiff (Sic) (Respondent) failed to show how the amount realized, if any, is to be shared, and without any justified evidence on record held that; since it is a co-ownership, the assets and

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liabilities shall be shared equally between the plaintiff and the 1st defendant.”

In preparing the brief of argument, Learned Counsel for the Appellants submitted only one issue for determination of the appeal at the lower Court, and it reads thus:-

“Whether from the evidence and findings of the lower Court, the lower Court was right to have held that the two educational institutions were a business owned by the 1st Appellant and the Respondent jointly.”

According to the learned Counsel, this issue arose from the 1st, 3rd and 4th grounds of appeal. The 3rd ground of appeal without its particulars is reproduced hereunder as follows:-

“The learned trial Judge erred in Law when he held thus:- From the conduct of the parties, Kinsey Academy was being run by them together, plaintiff and 1st Defendant were proprietress and proprietor respectively with the irresistible conclusion that the business was owned by them jointly.”

The 4th ground of appeal is an omnibus ground of appeal which is couched in the following words:-

“The judgment of the Trial Court is against the weight of evidence.”

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From the wordings of the issue that was submitted for determination of the appeal at the lower Court, ground 1 which questioned the decision of the trial Court on equal, sharing of only the physical or liquid assets of the partnership was effectively abandoned, as the only issue for determination of the appeal did not arise from it. Having abandoned the ground that complained against the trial Court finding on equal sharing of physical or liquid assets, the Appellant, cannot raise it in this Court without obtaining leave to do so. By Section 233 (1) of the 1999 Constitution of the Federal Republic of Nigeria, this Court has jurisdiction to the exclusion of any other Court of Law in Nigeria, to hear and determine appeals from the Court of Appeal. It has no jurisdiction to hear appeals from the High Court by dint of Section 240 of the 1999 Constitution which confers exclusive jurisdiction on the Court of Appeal to hear appeals from the Federal or State High Courts. Learned Counsel for the Appellant, in the Appellant’s reply brief raised so much dust with respect to the comment by the lower Court that each member of the partnership will be entitled equally to the sharing of both the physical or liquid

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assets of the partnership unless there is a formal agreement stating otherwise. This comment is not supported by the issue submitted by the appellant for determination of the appeal before it. The Court was on a voyage of its own.

An appellate Court is only concerned with matters that are properly placed before it. It has no jurisdiction, over a decision against which there is no appeal to it. See Abdulkareem v Incar Nigeria Ltd (1984) 15 NSCC 603 at 617 para 5; Shodeinde v Registered Trustees Ahmadiyya Movement in Islam (1982) 2 SCNLR 284 at 326.

In Adeosun v The Governor of Ekiti State (2012)1 MJSC (Pt.1)1 at 9, this Court, per Ayoola JSC held: –

“An appellate Court is not in a position to determine the correction vel non of an issue not raised and determined by the court below.”

See Iweka v SCOA (200) 3 SC 21 at 31. What an appellate Court has to consider are not the grounds of appeal, but issues for determination of appeal. It is those issues and not the grounds of appeal that an appellate Court should address. See Ogbuanyinya v Okudo (No.2) (1990) 4 NWLR (Pt.146) 551; Bankole & Ors v Pelu & Ors (1991) LPELR-749. It is therefore

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very clear that the issue that is over-flogged herein was not submitted for determination at the lower Court, as such this Court has no jurisdiction to delve into it. The issue of whether there was no evidence of the physical or liquidated assets for sharing between the 1st Appellant and the respondent was not part of the issue submitted for determination at the lower Court. This issue is therefore resolved against the Appellant.

Having resolved the two issues submitted for determination of this appeal against the Appellant, this appeal shall be and it is hereby dismissed. The 1st Appellant shall pay to the Respondent, the sum of N500,000.00 as costs of prosecuting this appeal.h

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