DE-JURE REPORTS

A Publication of the
De-Jure Publishing Company Limited
No. 16 Ajayi Crowther Street Asokoro, Abuja-FCT

...a compendium of court judgements

(2017) 1 DJR ii
(2017) 1 DJR iii

1 October 2017

(2017) 1 DJR

De-Jure Publishing Company Limited

No. 16 Ajayi Crowther Street Asokoro, Abuja-FCT
(2017) 1 DJR iv

DE-JURE REPORTS
Editor-in-Chief
Halima .I. Alfa, LL.B, BL, MCIArB, LL.M, MPHIL

Managing Editor
Ahmad A. Dauda

Law Reviewers
C. Uzo
O. Vincent
S.A Nasiru
(2017) 1 DJR v

JUSTICES
OF
THE SUPREME COURT

Hon. Justice Walter S. N. Onnoghen GCON

Chief Justice of Nigeria
Hon. Justice Ibrahim Tanko Muhammad CFR
Justice of the Supreme Court
Hon. Justice Olabode Rhodes-Vivour CFR
Justice of the Supreme Court
Hon. Justice Nwali Sylvester Ngwuta CFR
Justice of the Supreme Court
Hon. Justice Mary Ukaego Peter-Odili CFR
Justice of the Supreme Court
Hon. Justice Olukayode Ariwoola
Justice of the Supreme Court
Hon. Justice Musa Dattijo Muhammad
Justice of the Supreme Court
Hon. Justice Clara Bata Ogunbiyi
Justice of the Supreme Court
Hon. Justice Kumai Bayang Akaahs OFR
Justice of the Supreme Court
Hon. Justice Kudirat Motonmori Olatokunbo Kekere-Ekun
Justice of the Supreme Court
Hon. Justice John Inyang Okoro
Justice of the Supreme Court
Hon. Justice Chima Centus Nweze
Justice of the Supreme Court
Hon. Justice Amiru Sanusi OFR
Justice of the Supreme Court
Hon. Justice Amina Adamu Augie CON
Justice of the Supreme Court
Hon. Justice Ejembi Eko
Justice of the Supreme Court
Hon. Justice Paul Adamu Galinje
Justice of the Supreme Court
Hon. Justice Sidi Dauda Bage
Justice of the Supreme Court
(2017) 1 DJR vi

CONTENTS

 Index of Cases Reported

 Index of Subject Matter

(2017) 1 DJR vii

INDEX
OF
CASES REPORTED

(2017) 1 DJR

1. Ani v State (2017) 1 DJR 85 (SC)

2. Araka v Ejeugwu (2017) 1 DJR 1 (CA)

3. Attah v State (2017) DJR 93 (SC)

4. Cameroon Airlines v Otutuizu (2017) CLR 37 (SC)

5. Commerce Assurance Ltd v Alli (2017) 1 DJR 12 (SC)

6. Harka Air Services v Keazor (2017) 1 DJR 62 (SC)

7. Home Dev. Ltd. v Scancila Cont. Co. Ltd (2017) 1 CLR 26 (SC
(2017) 1 DJR viii

INDEX
OF
SUBJECT – MATTER
Alibi – Attah v State (2017) DJR 93 (SC)
Arbitral award (Action to enforce) – Araka v Ejeugwu (2017) 1 DJR 1
(CA)
Arbitral award (Time limit for setting aside) – Araka v Ejeugwu (2017) 1
DJR 1 (CA)
Arbitral award (Whether can be set aside concurrently) – Araka v
Ejeugwu (2017) 1 DJR 1 (CA)
Arbitral award (Whether misconduct of Arbitrator can be pleaded) – Araka
v Ejeugwu (2017) 1 DJR 1 (CA)
Arbitration agreement – Commerce Assurance Ltd v Alli (2017) 1 DJR
12 (SC)
Arbitration award – Commerce Assurance Ltd v Alli (2017) 1 DJR 12
(SC)
Arbitration award – Home Dev. Ltd. v. Scancila Cont. Co. Ltd (2017) 1
CLR 26 (SC)
Arbitration clause – Commerce Assurance Ltd v Alli (2017) 1 DJR 12
(SC)
Arbitration matters (Special Nature of) – Araka v Ejeugwu (2017) 1 DJR
1 (CA)
Arbitration proceedings – Commerce Assurance Ltd v Alli (2017) 1 DJR
12 (SC)
Averment in pleadings – Cameroon Airlines v Otutuizu (2017) CLR 37
(SC)
Aviation accident – Harka Air Services v Keazor (2017) 1 DJR 62 (SC)
Aviation matter – Cameroon Airlines v Otutuizu (2017) CLR 37 (SC)
Aviation related causes of action – Harka Air Services v Keazor (2017)
1 DJR 62 (SC)
Award of damages – Cameroon Airlines v Otutuizu (2017) CLR 37 (SC)
Award of damages – Harka Air Services v Keazor (2017) 1 DJR 62 (SC)
(2017) 1 DJR ix

Breach of contract – Cameroon Airlines v Otutuizu (2017) CLR 37 (SC)

Brief of argument – Cameroon Airlines v Otutuizu (2017) CLR 37 (SC)
Brief writing – Commerce Assurance Ltd v Alli (2017) 1 DJR 12 (SC)
Credibility of witnesses – Attah v State (2017) DJR 93 (SC)
Cross examination – Cameroon Airlines v Otutuizu (2017) CLR 37 (SC)
Defences raised in criminal trials – Attah v State (2017) DJR 93 (SC)
Federal High Court – Cameroon Airlines v Otutuizu (2017) CLR 37 (SC)
Identification and recognition – Attah v State (2017) DJR 93 (SC)
Initiation of procedure in criminal trial – Attah v State (2017) DJR 93
(SC)
Insanity – Ani v State (2017) 1 DJR 85 (SC)
Interlocutory applications – Araka v Ejeugwu (2017) 1 DJR 1 (CA)
Issues for determination – Araka v Ejeugwu (2017) 1 DJR 1 (CA)
Judgement in foreign currency – Harka Air Services v Keazor (2017) 1
DJR 62 (SC)
Jurisdiction of court – Araka v Ejeugwu (2017) 1 DJR 1 (CA)
Liability of carrier – Cameroon Airlines v Otutuizu (2017) CLR 37 (SC)
Liability of carrier to passengers N– Harka Air Services v Keazor (2017)
1 DJR 62 (SC)
Medical evidence – Ani v State (2017) 1 DJR 85 (SC)
Misconduct on part of airline – Harka Air Services v Keazor (2017) 1
DJR 62 (SC)
Parties to an action – Cameroon Airlines v Otutuizu (2017) CLR 37 (SC)
Special damages – Cameroon Airlines v Otutuizu (2017) CLR 37 (SC)
Technicalities – Araka v Ejeugwu (2017) 1 DJR 1 (CA)
Ticket – Cameroon Airlines v Otutuizu (2017) CLR 37 (SC)
Transit visa – Cameroon Airlines v Otutuizu (2017) CLR 37 (SC)
Ubi Jus ibi remedium – Harka Air Services v Keazor (2017) 1 DJR 62
(SC)
(2017) 1 DJR x

Unchallenged evidence – Cameroon Airlines v Otutuizu (2017) CLR 37

(SC)
Warsaw Convention – Harka Air Services v Keazor (2017) 1 DJR 62
(SC)
Warsaw Convention 1955 (as amended) – Cameroon Airlines v Otutuizu
(2017) CLR 37 (SC)
(2017) 1 DJR 1

Case Year: 1999

Judge: Salami. JCA
Counsel: Araka, O. Ezeuko, G.E. SAN
Citations: Citation1 - (2017) 1 DJR 1 (CA) Citation2 - (1999) 2 NWLR
(Pt.589) (CA) Citation3 - CA/E/115/98

Araka v Ejeugwu (2017) 1 DJR 1 (CA)

{Brief}
1 Arbitral award (Action to enforce)
2 Arbitral award (Whether can be set aside concurrently)
3 Arbitral award (Whether misconduct of Arbitrator can be pleaded)
4 Arbitral award (Time limit for setting aside)
5 Arbitration matters (Special Nature of)
6 Issues for determination
7 Technicalities
8 Jurisdiction of court
9 Interlocutory applications

{Facts}
A dispute arose between the appellant and respondent as to the rent payable
upon the revision of a lease between them. In accordance with the terms of
the lease, the court appointed an arbitrator for the parties upon their failure
to agree on one. The arbitrator in his award a fixed a certain sum as rent
payable annually by he respondent to the appellant lessor.

Thereafter, appellant applied to the High Court through an originating

summons for the recognition and enforcement of the arbitral award.
Respondent filed a counter-affidavit to the summons alluding to the
arbitrator’s misconduct by his acting outside his jurisdiction. Five days
later, the respondent filed a motion asking the court to set aside the award
or remit the matter to the arbitrator or another arbitrator. There was no
affidavit in support of the motion.

The trial court held that the arbitrator misconducted himself and set aside
the award.

Dissatisfied with the ruling, the appellant appealed to the Court of Appeal.

{Issues}
1. Whether it was competent for the learned trial Judge to have made
his ruling on the respondent's motion which itself is grossly
incompetent.
(2017) 1 DJR 2

2. Whether the learned trial Judge had not grossly erred in law when
he took the counter-affidavit (which is a defence to the appellant's
originating summons for the enforcement of the award) together
with the respondent's motion on notice as an application to set aside
the award or to remit the award for consideration

{Held - Summary}
Dismissing the appeal by a majority of 2-1 Akpabio. J.C.A Dissenting
1. Arbitral award - What must be pleaded to set it aside
The defendant cannot in an action to enforce an arbitral award plead
as a defence misconduct or irregularity on the part of the arbitrator.
His proper course is to move to have the award set aside. Moreover,
There is nothing depriving a defendant of his right to have an
arbitral award set
<<Page 1>>
aside on ground of mistake or misconduct concurrently with the
plaintiff's action to enforce the same award provided the defendant
come by way of motion. It is perfectly with in his right to seek for
the award to be set aside by way of application. What he cannot do
is to seek to do so by way of pleading or Counter -affidavit in an
action for enforcement of the award.

2. Jurisdiction - When issue of ought to be raised

The question of jurisdiction and competence of a court can be taken
at any stage of the proceedings even on appeal to the Supreme Court
but it is expedient that the party raising such should do so at the
earliest opportunity.

3. Applications during pendency of suit - Nature of

All applications during the pendency of a suit are usually made by
way of motion. Application maybe made either ex-parte or on
notice to the party or parties to be affected.

DISSENTING OPINION OF AKPABIO, J.C.A.

1. Arbitration cases are 'sui generis: that is, they are in a class by
themselves, governed by a different set of rules as prescribed on the
Arbitration and Conciliation Act, Cap. 19, Laws of Federation of
Nigeria, 1990.
2. A complaint that a claim is statute-barred is a complaint about
competency of the suit as the court will not have jurisdiction to try
the case. Any complaint about non-compliance with a condition
precedent is a complaint about competence which will deprive a
court of jurisdiction to try a case.
(2017) 1 DJR 3

3. By virtue of section 29(1) of the Arbitration and Conciliation act, a

party who is aggrieved by an arbitral award may within three
months from the date of the award by way of an application for
setting aside request the court to set aside the award.

<<Page 2>>
{Held - Lead Judgement} Delivered by Salami JCA
This is an appeal against the ruling of Amaizu J., delivered on 29th day of
January, 1996,inwhich he set aside the award of an arbitrator, Mr. Damian
Okolo and remitted the matter to the arbitrator to arbitrate within the ambit
of the submission.

The application by an originating summons commenced an action for the

recognition and enforcement of an award. The award was made pursuance
of the deed of lease made between the parties on 9th October, 1975. Clause
4 (a) of the deed of lease provides for revision of the reserved rent every
fifteen years while clause 4(b) provides thus-
"If the leasor and lessee are unable to agree as to the rent to be paid
upon by them or in the absence of such agreement to an arbitrator
appointed by a judge of the High Court."

Sequel to the abilities of the parties to agree upon an arbitrator, Olike, J.,
appointed Okolo, barrister at law, surveyor and valuer to investigate the
dispute and fix the rent payable. The arbitrator, Mr. Damian Okolo, fixed
the sum of N7,200 as the rent payable annually by the respondent. The
action for the recognition and enforcement of the award and for the
payment of all arrears of rent was brought under the provisions of
Arbitration and Conciliation Act, Cap. 19of the Laws of Federation of
Nigeria, 1990, on 6th of February, 1995.

On 21st April, 1995, the respondent joined issue with appellant by deposing
to a counter-affidavit averring principally that the arbitrator misconducted
himself by acting outside his jurisdiction and thereby rendering his decision
a nullity. Thereafter, to be precise, five days later the respondent brought a
motion no notice under the provision of section 30 (1) of the Arbitration
and Conciliation Act Cap. 19. seeking for an order to set aside the award or
remit same to the arbitrator or another arbitrator on grounds of misconduct.

After taking submission of counsel, learned trial Judge in a reserved and

considered ruling found as follows:-
"Hold that the arbitrator went outside the limits of his jurisdiction
as provided for in clause 4(c) supra. To that extent the arbitrator
misconducted himself....
(2017) 1 DJR 4

It follows that the application would-be brought under section 30 of

the Act, and consequently is not statute barred."

The applicant was thoroughly dissatisfied with he ruling of the learned trial
Judge and appealed to this court on four grounds of appeal. The learned
counsel for applicant in paragraph 1.7 of the appellant's brief observed as
follows:0
"... and will at the hearing of the appeal rely on grounds of appeal
dealing with the competency of the respondent's motion on notice
abandoning the rest of the grounds of appeal as filed."

<<Page 3>>
The concomitant of this application is that all the grounds of appeal are
abandoned except the ground challenging the competency of the
respondent's motion and are struck out: Odiase & Anor v. Vincent Agho
(1972) 3 SC 71, 76. The appellant is, therefore, left with only one ground
of appeal which calls into question the competence of the respondent's
motion on the strength of which the trial Judge seemingly found for the
respondent. The only or remaining ground of appeal reads as follows:
"The learned trial Judge erred in law in hearing the defendant's motion to
set aside the arbitration award when the motion itself was grossly
incompetent.
(a) The only application before the court was the one contained in the
originating summons by the plaintiff dated Janaury 27, 1995, for the
recognition and enforcement of the award made by the arbitrator,
Mr. Damian Okolo on September 8, 1994.
(b) No originating summons was ever filed by the defendant nor was
any motion supported by an affidavit filed by the defendant to set
aside or remit the award of the arbitration.
(c) The only affidavit evidence before the court was the affidavit in
support or in opposition of the originating summons for the
recognition and enforcement of the award.
(d) The motion paper filed by the defendant for setting aside he award
was most unprecedented.
(e) The said motion paper bore the court suit number 0/67/95 which is
the suit number assigned to the plaintiff's originating summons
when it was filed in January, 1995. No court number was ever
assigned to the motion paper filed by the dependant besides the
court number assigned to the plaintiff's originating motion. "(Italics
mine)

The substance of the appellant's grouse arising from the only ground of
appeal is that the respondent filed a motion which is not supported by an
(2017) 1 DJR 5

affidavit and in the result the motion is novel and unprecedented. The issue,
that may be distilled or framed from that ground of appeal is the appellant's
issue 2 or 3 which issues read as follows:-
2. Whether it was competent for the learned trial Judge to have made
his ruling on the respondent's motion which itself is grossly
incompetent.
3. Whether the learned trial Judge had not grossly erred in law when
he took the counter-affidavit (which is a defence to the appellant's
originating summons for the enforcement of the award) together
with the respondent's motion on notice as an application to set aside
the award or to remit the award for consideration."

The other issue formulated by the appellant reads thus:-

"(1) Whether the learned trial Judge had not grossly erred in law when
he
<<Page 4>>
granted the respondent's motion on notice filed some (7) seven
months after the publication of the award and which was clearly
statute barred, pursuant to sections 29 and 30of the Arbitration and
Conciliation Act 1988 Cap.19 Laws of the Federation of Nigeria,
and, Order 29 rule 13 of the Anambra State Contract Law, 1986,
Cap. 32 Vol. 2 Revised Laws of Anambra State of Nigeria 1991."

This formulation goes to no issue or is irrelevant to the existing ground of

appeal and the appellant, having withdrawn or abandoned all the other
grounds of appeal, apart from the one attacking the competence of the
respondent's motion on notice. That issue for than reason is
discountenanced. The remaining two issues are variants of each other and
would be taken together.

The parties in compliance with the practice and procedure of this court filed
and exchanged briefs of argument which were at the hearing of the appeal
adopted and relied upon.

In this connection the learned counsel for the appellant argued issues 2 and
3 which he purports to have distilled from ground 1 of the grounds of
appeal. It is settle law that an issue maybe formulated from one or more
grounds of appeal but the tendency now is to discourage formulation of
more than one issue from a single ground of appeal: Alhaji Sule Agbetoba
& others v. The Lagos state Executive Council & Others (1991) 4 NWLR
(Pt. 188) 664 (1991) 6 SCNJ 1,12.

Learned counsel for appellant, in the appellant's brief submitted that no

(2017) 1 DJR 6

application was made to set aside the award. He contended that the motion
on notice filed on behalf of the respondent is incompetent in that the motion
on notice was not supported by affidavit. He went on to further contend that
the award being sought to be set aside was not verified by any affidavit.
Learned counsel for appellant further contended that the respondent
appears to have relied upon a counter-affidavit deposed to in respect of
another matter in moving the motion.

On this issue, learned counsel for the respondent, in respondent's brief

argued that the appellant replied to the issues raised both on the
respondent's application and his counter affidavit without raising objection
to the form of the respondent's motion paper. Learned counsel further
submitted that it is too late in the day to raise this issue at this stage. He but
stressed his submission with the Supreme Court decisions in the cases of
Adedoyin v. Adedoyin (1966) NMLR. 77: Nafiu Surakatu v. Nigerian
Housing Development Society (1981) 4 SC 26, 35-36: Kano State Urban
Development Board v. Fanz Const. Co. Limited (1990) 4 NWLR (Pt. 142)
134. 88.

Learned senior counsel for respondent contended that the appellant cannot
be heard to complain having acquiesced in the procedure adopted in
arriving at the decision being appealed against. It seems to me that
respondent is not contesting the adequacy or otherwise of the motion
papers. The respondent is merely taking on the appellant, on this
<<Page 5>>
issue, on the narrow technical point of the latter's failure to raise the point
at the trial court to afford that court of the opportunity to express its opinion
on the issue for consideration of this court. I agree with learned senior
counsel for the respondent that this court is not a court of trial. It is an
appellate court which must have the benefit or advantage of the previously
expressed view of the trial court before coming to a decision on a point. In
the respondent's brief, the case of Adedoyin v.Adedoyin(supra) cited was
described as a decision of the Supreme Court. I am unable to lay my hands
on a Supreme Court decision going by that description. The judgment
answering to that description was delivered by Akinkugbe,J. (as he then
was) in the High Court. Western Nigeria on June 15, 1965. Learned counsel
are implored to exercise patience in their citation of authorities in this court.

I agree with learned senior counsel for respondent that it is the duty of this
court, nay any court, to ensure that substantial justice is not sacrificed on
the altar of mere technicality: Nafiu Surakatu v. Nigeria Housing
Development Society (1981) 4 SC. 26. 35-36 cited in the respondent's brief;
G.B Ollivant Ltd. v. Vanderpye 2 WACA 368 and Anoje v. Opara Nkweje
(2017) 1 DJR 7

& others 15 WACA 41. The objection taken, in the instant appeal, is not a
mere technicality designed to defeat the course of doing substantial justice.
The defect complained of is not of minor importance. It is not only
important, it seems to me fundamental. The implication is that the
respondent's application praying the court to set aside the award of the
arbitrator is incompetent for the respondent's default to support the motion
with affidavit in accordance with age old practice. The supporting affidavit
is to set forth the facts upon which the order or relief is sought. it follows,
going by our practice, necessarily that the application was incompetent and
the learned trial Judge ought not to have entertained it not to talk of making
an order pursuant thereto. The appellant impliedly is questioning the
legitimacy of the order setting aside the arbitrator's award. The question
now is whether the appellant can challenge the competence of the learned
trial Judge to look at a motion that is not supported by an affidavit or
affidavits at this stage of the proceedings. I think he is perfectly in order to
do so.

The court is only vested with jurisdiction and power to adjudicate on an

issue when the matter is brought before it in accordance with both
substantive and adjectival law. The question of jurisdiction can be taken at
any stage of the proceedings even on appeal to the Supreme Court. It is trite
that this issue of jurisdiction and competence of a trial court can be raised
on appeal. Barclays Bank of Nigeria Limited v. Central Bank of Nigeria
(1976) 6 SC 175, 185. It is, however, preferable that, where all the facts are
available to the party raising such technical objection, to do so at the court
below to give notice to the opposing party to know the nature of the case
he has to meet.: Shobogun v. Sanmi (1974) I All NLR (Pt. 2) 311, 316
(1974) 11 SC 35, 40.

Notwithstanding, the appellant's failure to raise the objection at the earliest

opportunity, I think he is perfectly in order to raise, at this stage, the said
objection. I now propose to consider the issue raised in the appeal on its
merit. The issue raised in this appeal is not only novel, it is quite interesting.
It is common ground that there was an award dated 8th September, 1994
made in favour of the appellant. The appellant therefore came by way of an
originating summons to seek recognition and enforcement of the award.
The
<<Page 6>>
originating summons filed on the 6th February, 1995 was registered as suit
No.0/67/95. It is equally a common ground that the respondent deposed to
a counter-affidavit to the affidavit in support of the originating summons
on21st April,1995 denying the averments contained in the said affidavit and
setting up his own defence. In the counter- affidavit. Therefore, that is, on
(2017) 1 DJR 8

25th April, 1995, the respondent filed a motion to set aside the award on
ground of arbitrator's misconduct. The motion is not supported by affidavit
verifying to the facts the respondent sought to rely upon to have the award
set aside as envisaged under section 30(1) of the Arbitration and
Conciliation Act Cap. 19 Laws of the Federation of Nigeria 1990. It may
be pertinent to mention, at this stage, that the application made by the
respondent was give the same number as the originating summons filed by
the appellant to enforce the award.

Generally, all applications, during the pendency of a suit, unless it is

otherwise prescribed by provision of law, be it substantive or adjectival, are
made by a way of motion. Application may be made either ex- parte or on
notice to the part or parties to be affected. The motion paper stating clearly
the terms of the relief or order sought and supported by affidavit and further
affidavits is verifying to the facts sought to be relied upon in canvassing the
application. The application of the respondent to set aside the award made
on 8th September, 1994 was not supported by an affidavit setting forth the
fact or facts the respondent proposed to rely upon to obtain the relief or
order sought in the terms of the motion paper, it is not in dispute that
respondent relied upon the facts averred to in the counter-affidavit which
was deposed to five days before the motion itself was filed in opposition to
the originating summons.

As I observed earlier, the respondent is not contesting the appeal on the

merit. learned counsel for appellant contended that if the respondent was
seriously applying for the award to be set aside, he ought to have made an
application for recognition and enforcement of the award. he relied on a
passage in Russell on Arbitration 19th edition, page 343 and the case of
K.SU.D.B. v. Fanz Const. Co.Ltd. (1990) 4 NWLR (Pt. 142) I. 41. The
passage referred to in Russel on Arbitration, 19th edition, at page 343 in
the appellant's brief cannot be found at that page. The passage, which , is at
page 393 of the book, is set out immediately hereunder -
"Misconduct or mistake of arbitrator. The defendant cannot in an
action on an award plead as a defence misconduct or irregularity on
the part of the arbitrator.
His proper course, if these ground exist is to move to have the award
set aside."

The proposition of law on arbitration credited to Russel at page 393 of

Russell on Arbitration 19th edition received judicial endorsement of no less
a court than the Supreme Court in the case of Kano State Urban
Development Board v. Fanz Construction Co. Ltd.(1990) 4 NWLR (Pt.
142) 1 at 42 where Agbaje J.S.C. said:-
(2017) 1 DJR 9

"This passage recognises the right of the defendant to an action on

an award to move to have the award set aside if there exists on the
part of the arbitrator misconduct or irregularity. Obviously by an
action on an action on an award the plaintiff is seeking to enforce
he award... The passage, in my view, is only saying
<<Page 7>>
that the application to set aside the award must be a separate
proceeding independent of the action the award." (Italics mine)

The passage contained at p. 393 of Russell on Arbitration 19th edition is

substantially the same as section 30(1) of the Arbitration and Conciliation
Act Cap. 19. It reads thus:
"30 (1) Where an arbitrator has misconducted himself, or where the arbitral
proceedings or award has been improperly procured, the court may on the
application of a party set aside the award."

The proposition contained in the Russel on Arbitration does not prevent the
respondent from seeking to set aside the award simply because the
appellant had sought to have it enforced. There is nothing in the proposition
of law per Russell set out above depriving the respondent of his right to
have the award set aside on ground of mistake or misconduct concurrently
with he appellant's action to enforce the same award provided the
respondent comes by way of motion. It is perfectly with in the respondent's
right to seek for the award to be set aside by way of application. What he
cannot do is to seek to do so by way of pleading or counter-affidavit in an
action for enforcement. The mistake or misconduct does not mean there
was no decision. There was a decision even if an improper one which has
to be set aside on formal application. Hence Lopes L.J. said in Bache v.
Billingham (1984) Q.B. 107, 112.
"If this were an ordinary arbitration, I take it that would be good
ground for applying to the court to set it aside on the ground of the
misconduct of the arbitrators; but if an action had been brought
upon that award, it would not have been a good plea to have said
there was no award,"

The misconduct, that is, ignoring of parties' submission, can be canvassed

as a ground for setting aside the award on application, but cannot be set up
as a defence to an action upon the award as the respondent attempted to do
in his counter-affidavit deposed to on 21st April. 1995. Paragraph 3,4 and
5 of the said counter-affidavit is pertinent. The three paragraphs are recited
immediately hereunder -
3. That I am informed by my counsel, G.E. Ezeuko. SAN., and I verily
believe him that the award should not be enforced as the arbitrator
(2017) 1 DJR 10

misconducted himself in this award.

4. That I am informed by my counsel G.E. Ezeuko SAN., and I verily
believe him that the arbitrator ignored the parties' submission before
him on which the arbitration was based.
5. That I am informed by my counsel, G.E. Ezeuko, SAN., and I verily
believe him that the award is not related tot he parties submission
before the arbitrator."

If the counter-affidavit were to be the only step taken by the respondent, he

would have been caught on a wrong foot. He would have failed because the
award cannot be set aside without a motion specifically so praying. In a
way the court cannot grant a relief that is not asked for. The method would
have been a gross violation of the principle of
<<Page 8>>
law enunciated in Russell on arbitration 19th edition a page 393. The
respondent to rescue it case filed a motion few days after deposing tot he
said counter-affidavit.

This motion was not supported by an affidavit nor a further affidavit. But.
at the hearing, learned counsel, in moving the court appears to have placed
reliance on the counter-affidavit. The appellant also agrees that the
respondent is entitled to make the application. The right of the respondent
to make the application is not in dispute. What the appellant is strenuously
contesting is respondent's entitlement to make use of the counter affidavit
deposed to in opposition to the appellant's application, to be independent of
appellant's originating summons should be supported by an affidavit and
cannot seek succour from any material already placed on record such as the
counter-affidavit to the appellant's affidavit for enforcement and
recognition of the award. Ordinary, a motion to be competent ought to be
supported by its own affidavit. Tat seems tome to be the standard practice.
Order 36 rule of the Anambra State High Court (Civil Procedure) Rules,
1988, requires an applicant for stay of execution or proceedings to support
the application by affidavit setting forth the facts upon which the relief is
sought. See also order 3 rule 3(1) of the Court of Appeal Rules. But it seems
to me that Order 16 rule 5 of Anambra State High Court (Civil Procedure)
Rules, 1988, applicable in Enugu State of Nigeria, has given the respondent
a lee way. Order 16 rule 5 of the said rules provides that if a motion is to
be supported by facts which are not already part of the record in the suit,
there shall be filed all affidavits of such other facts along with it. The
relevant rule reads as follows:-
"If a motion is to be supported by facts which are already not part
of the proceeding in the suit, there shall be filed with the motion
paper all affidavits of such other facts on which the person moving
(2017) 1 DJR 11

intends to rely"

Since all the facts respondent required are already part of the record by
virtue of the counter-affidavit, the respondent, in the circumstance, is not
required to depose to affidavit of the facts which are already forming part
of the proceedings. It is only where the fact is not already part of the
proceedings that the respondent would be required to depose to affidavit or
further affidavit setting forth the fact upon which the order of setting aside
is sought. In view of the presence of paragraphs 3, 4 and 5 of the counter
affidavit already set out in the proceedings, the respondent's motion dated
24th April 1995 and filed on the following day, substantially complied with
the provisions of section 30(1) of the Arbitration and Conciliation Act Cap.
19 of the Laws of Federation of Nigeria. 1990. The application dated 24th
April, 1995 and filed on 25th April, 1995 is competent.

The answer to the appellant's issue 3 is negative and ground 1 of the

grounds of appeal fails and it is dismissed by me. The appeal consequently
fails and it is dismissed with costs which is assessed at N2,000.00.

Tobi JCA agreed with the lead judgement. Akpabio JCA dissented

{Nigerian Cases Referred to}

<<Page 9>>
Adedoyin v. Adedoyin (1966) NMLR 77
Agbetoba v. Lagos State Exec. Coun. (1991) 4 NWLR (Pt. 188) 664
Alhaji Albishir & Sons Ltd. v. B.U.K. (1996) 9 NWLR (Pt. 470) 37
Anoje v. Nkweje 15 WACA 41
B.I.P. Ltd. v.Nipol Ltd. (1986) 5 NWLR (P. 44) 767
Barclays Bank of Nigeria v. CBN (1976) 6 SC 175
Commerce Assurance Ltd. v. Alli (1992) 3 NWLR (Pt. 232) 710
Ita v. Idiok (1923) 4 NLR 100
Kano State Urban Dev. Board v. Fanz Const. Co. Limited (1990) 4 NWLR
(Pt. 142) 13
Madukolu v. Nkemdilim (1962) 2 SCNLR 341
Shobogun v. Sanni (1974) 1 All NLR (Pt. 2) 311
Surukatu v. Nigerian Housing Development Society (1981) 4 SC 26

{Counsel}
Onyechi Araka, Esq-for the Appellant
G.E. Ezeuko, SAN - for the Respondent
(2017) 1 DJR 12

Case Year: 1992

Judge: Nnaemeka-Agu. JSC
Counsel: Adekoya, A. Ojo, G.O
Citations: Citation1 - (2017) 1 DJR 12 (SC) Citation2 - (1992) 3 NWLR
(Pt.232) 710 (SC) Citation3 - SC.73/1986

Commerce Assurance Ltd v Alli (2017) 1 DJR 12 (SC)

Judgement delivered on April 10th, 1992

{Brief}
 Brief writing
 Arbitration agreement
 Arbitration proceedings
 Arbitration award
 Arbitration clause

{Facts}
The respondent as plaintiff in 1980 instituted this action against the
defendant now appellant at the Ibadan High Court claiming as follows:
(a) A declaration that the Defendant/Company should pay to the
plaintiff the sum of N82, 019.41 (Eighty two thousand and nineteen
Naira and forty one kobo) which said sum of N82,019.41 is the
award made on the 19th of March, 1980 in connection with an
Arbitration in which Chief H. Ayo Ogunfeibo, Legal Practitioner
appointed by both the plaintiff and the defendant in respect of
difference/dispute arising from a Comprehensive Insurance Policy
No. MV078/1B covering the plaintiff’s Trailer No. OD 149A for
the period 27/4/76 to 26/4/77 which said vehicle was involved in a
road accident at A.T. & P. Round-About, Sapele, Bendel State of
Nigeria on the 19th of December, 1976.
In the alternative, that the said award of N82, 019.41k and all the
interlocutory costs awarded during the arbitration proceedings be
ordered to be the judgment and /or order of this Honourable Court.
(b) The plaintiff also claims 15% interest from the date of the said
award (i.e. 19/3/80) till the date of judgment in this case.

The trial Judge granted the first of the declarations sought by the respondent
but refused the claim for interest.

Earlier and before the institution of the present action the respondent had
commenced proceedings to enforce the arbitration award before another
High Court Judge in suit No. M/17/80. Upon objection being raised, the
(2017) 1 DJR 13

learned Judge refused to enforce the award and struck out the action without
going into the merits of the case.

When the present action was commenced the respondent applied to set
aside the writ of summons on the grounds that
(i) the defendants sued in the writ of summons is a misnomer, having
been sued as Commerce Assurance Company Limited instead of
Commerce Assurance Limited; and

<<Page 1>>
(ii) in view of the previous proceeding in suit No. M/17/80 before
Falade, J, the learned trial Judge in the instant case had no
jurisdiction to entertain the suit.

The respondent (then plaintiff) in a bid to remedy the suit, by another

motion applied to change the name of the defendant from Commerce
Assurance Company Limited to Commerce Assurance Limited contending
that it was a case of a misnomer and a mistake of counsel. The trial Judge
ruled in favour of the respondent.

Being dissatisfied with the decision reached by the trial court the appellant
appealed to Court of Appeal, which dismissed its appeal.

The appellant further appealed to the Supreme Court.

{Issues}
(i) Whether a plaintiff whose claim was struck out and not dismissed
by the court is estopped from bringing a fresh action before the court
to enable its claim be determined on the merits and whether the
respondent who had sought to enforce as arbitration award in this
suit is barred from bringing an action for judgment on the award.
(ii) Whether the appellant can now complain of the excessiveness of the
award made by the Arbitrator as the appellant did not apply to the
court to have the award set aside or remitted when made and when
the issue of the excessiveness of the award was not raised at the
trial.
(iii) Whether the Court of Appeal can exercise its power under section
16 of the Court of Appeal act to review the award of damages when
the point was not raised at the trial and whether the Court of Appeal
can properly do so in this case even if the point had been raised at
the trial.
(v) Whether the Arbitration Clause as contained in Clause 8 of the
Policy of Insurance i.e. Exhibit A does not constitute a valid
(2017) 1 DJR 14

submission to Arbitration and whether the said Clause does not

confer jurisdiction on the arbitrator consented to by the parties.
(vi) Whether the terms of reference of an Arbitrator need be contained
in a single or in a formal document.

{Held-Summary}
1. Issues for determination - Rules guiding framing of
A proper issue for determination in an appeal ought to be mirror of
the facts of the case as ascertained in the court below.

<<Page 2>>
2. Arbitration clause - Requirements for bindingness of
Where an arbitration agreement is written, it may be included in a
particular contract by reference or implication. Agreement between
parties may incorporate arbitration provision, which are set out in
other documents but in order to be binding the arbitration provisions
must be brought to the notice of both parties.

3. Bindingness of arbitration proceedings on parties thereto-

Parties may resort to the normal machinery for administration of
justice by going to the regular courts of the land and have their
disputes determined both as to the fact and to the law, by the courts.
Or, they may choose the arbitrator to be the judge between them. If
they take the latter course, they cannot, when the award is good on
the face of it, object to the award on grounds of law or of facts. The
general rule is always understood to be that parties took their
arbitrators for better or worse both as to decision of fact and
decision of law.
A person who has submitted to arbitration cannot turn to the court
to ask it to review the award when he believes that it is too high.
The court has no power to alter an award; it can only set it aside or
remit it to the arbitrator.

4. Procedure for enforcement of arbitration award

Two alternative methods of enforcement of an award are open to an
applicant, namely:
1. By application directly to enforce the award……….
or
2. By application to enter judgment in terms of the award and so to
enforce the judgment by one or more of the usual forms of
execution……………”
(2017) 1 DJR 15

Thus the two alternative methods are fundamentally different. The

summary method treats the award as an existing judgment and only
seeks to enforce it. The enforcement by action seeks to get a
judgment in terms of the award. There can, therefore, be no question
of a proceeding by way of summary procedure to enforce the award
being pleaded as estoppel per rem judicatam. As in that case the
court itself decides nothing. It simply enforces the award as if it
were a judgment.

5. Setting aside arbitration award

Where a person affected by an arbitration award wishes to have it
set aside, he must apply timeously, and before the successful party
takes steps to enforce the award or have a judgment entered in his
favour in terms of the ward. In this case therefore must as the
learned trial Judge had criticized the
<<Page 3>>
award as rather too high, the award which was made over ten years
ago, stands as the learned Judge has no powers to tamper with it.

6. Amendment of names of parties to proceedings-

It is settled that where an amendment sought relates to a mere
misnomer, it will be granted almost as a matter of course.

7. Arbitral award - Whether can be altered

The court has no power to alter an award; it can only set it aside or
remit it to the arbitrator.

{Held - Lead Judgment} Delivered By Nnaemeka-Agu, JSC

This is a further appeal by the defendant/company, Commerce Assurance
Limited, against the judgment of the Court of Appeal, Ibadan Division,
which had dismissed his appeal against the judgment of an Ibadan High
Court presided over by Ademakinwa, J. The claim before the learned trial
Judge was against Commerce Assurance Co. Ltd. and was for the following
reliefs:
(a) A declaration that the Defendant/Company should pay to the
plaintiff the sum of N82, 019.41 (Eighty two thousand and nineteen
Naira and forty one kobo) which said sum of N82, 019.41 is the
award made on the 19th of March, 1980 in connection with an
Arbitration in which Chief H. Ayo Ogunfeibo, Legal Practitioner
appointed by both the plaintiff and the defendant in respect of
difference/dispute arising from a Comprehensive Insurance Policy
No. MV078/1B covering the plaintiff’s Trailer No. OD 149 for the
period 27/4/76 to 26/4/77 which said vehicle was involved in a road
(2017) 1 DJR 16

accident at A.T.&P. Round-About, Sapele, Bendel State of Nigerian

on the 19th of December, 1976.
In the alternative, that the said award of N82,019.41 and all the
interlocutory costs awarded during the Arbitration proceedings be
ordered to be the judgment and/or order of this Honourable Court.
(b) The plaintiff also claims 15% interest from the date of the said
award (i.e. 19/3/80) till the date of judgment in this case.

After hearing the learned trial Judge granted to the plaintiff the declaration
he sought but disallowed the claim for interest.

For a completion of the background of the case, I should mention that

before the present action was commenced, the plaintiff had commenced
proceedings to enforce the award before another High Court Judge. Falade
J in suit No. M/17/80. The learned Judge upon an objection by the
defendant in that suit struck it out without going into the merits of the case.
He refused to enforce the award, hence the plaintiff commenced this
action.I may further mention that when the present
<<Page 4>>
action was commenced, the defendant applied by a motion on notice to set
aside the writ of summons on the grounds that:
(i) the defendants sued in the writ of summons is a misnomer, having
been sued as Commerce Assurance Company Limited instead of
Commerce Assurance Limited and
(ii) in view of the previous proceeding in suit No. M/17/80 before
Falade, J the learned trial Judge in the instant case had no
jurisdiction to entertain the suit.

The plaintiff had, on the other hand by a motion dated 15th December, 1980,
applied to amend the name of the defendant from Commerce Assurance
Company Limited to Commerce Assurance Limited. It was supported with
an affidavit in which the plaintiff swore that it was a case of a misnomer
and a mistake of counsel. In a considered ruling handed down on the 20th
day of February, 1981, Ademakinwa, J. ruled against the defendant. On the
first issue above, the learned trial Judge, after considering the relevant
authorities, held as follows: -
“it is clear from the foregoing observations that the principle was
endorsed that where a wrong legal entity has been sued, such an
error could be rectified by the substitution of the correct legal entity
for the one wrongly sued, provided that the correct legal entity is
put on notice so as to afford him an opportunity of being heard as
to whether he could be properly substituted or not. Where the court
is satisfied that a mistake sought to be corrected is genuine and not
(2017) 1 DJR 17

misleading, an amendment to correct the name of a party may be

allowed, not withstanding that the effect of the amendment to
correct the name of a party may be allowed, not withstanding that
the effect of the amendment will be to substitute a new party. (See
Jeoba v Owonifari (1974) 10 SC 157 at page 168). It is not contested
that the Commerce Assurance Ltd. which is the correct defendant
in this case is not a juristic person neither is it contested that the
correct defendant has not been put on notice of the pendency of this
suit. It is therefore my view that the misdescription of the
defendant/company’s name is a misnomer, which could be cured by
an amendment and to that extent the submission of the learned
counsel for the defendant/company is untenable and is accordingly
rejected”.

On the second issue above, the learned trial Judge held that there are two
methods of enforcing an arbitration award, namely:
(i) By application directly to enforce the award; or
(ii) By application to enter judgment in terms of the award and so to
enforce the judgment by one or more of the usual forms of
execution.

<<Page 5>>
Then he reasoned that as the former action under Falade, J was merely
struck out and not dismissed, it was not capable of creating an estoppel so
as to deprive the court of jurisdiction. There can be no doubt that
Famakinwa, J., correctly stated and applied the law on both of the above
issues. In any event, the defendant did not appeal against his decision on
the issues. I shall refer to the effect of this state of affairs in this appeal later
on.

In the end the learned trial Judge, as I have stated, granted to the plaintiff
the declaration he sought. The appeal by the defendant to the Court of
Appeal, Ibadan Division, coram, Uche Omo, JCA (as he then was) Sulu-
Gambari and Omololu. Thomas, JJCA was dismissed, hence the defendant
has appealed further to this Court. Parties filed and exchanged their briefs.
The appellant filed an amended brief Appellant formulated issues for
determination, which according to it arose from the grounds of appeal filed.
They are as follows: -
(1) Can an Arbitrator have jurisdiction in a matter without terms of
reference agreed to and drawn up and signed by the parties’ parties
that they should submit to Arbitration in the event of a dispute
arising from the contract?
(2017) 1 DJR 18

(2) After an award has been made by an Arbitrator; and leave to enforce
it has been refused by a competent High Court on the ground that
the Arbitrator has no jurisdiction to sit on the Arbitration and that
the award was invalid and a nullity, can another High Court in the
same judicial Division have jurisdiction to commence trial on an
action filed by the plaintiff for a Declaration on the adjudged invalid
award?
(3) Can an Arbitral Award which has been declared unenforceable by
a competent High Court be enforced again without a reversal of that
judgment by a Superior Court?.
(4) What are the remedies for enforcing an Arbitral Award. Is it by
originating Summons to enforce the award or by application to enter
judgment terms of the Award or by seeking a declaration on the
award by a Writ of Summons. If, after an award has been refused
by High Court, will the party in whose favour the award was made
be entitled to the second alternative remedy for the enforcement of
the award one after the other i.e. by seeking leave by originating
summons to enforce as award and if he fails by seeking declaration
on the award by a writ of summons or filing another application to
enter judgment in terms of the award.
(5) Can the Court substitute a new defendant for another non-existent
one with or without notice to the new one to be substituted. Must
the party substituted be served with all processes of the Court in the
proceedings?
(6) Whether the Court of Appeal is competent to review the award of
damages under section 16 of the Court of Appeal act if the trial
judge in the lower court found it excessive.

<<Page 6>>
I must, however, point out that most of these issues have been vitiated by
some factual assumptions which are not borne out by the true facts of the
case. For an example, issue number (3) carries with the assumption that the
award had been declared unenforceable. This was clearly not so. As I have
stated, Falade, J struck out the first action, which was commenced by an
originating summons. He did not go into the merits of the case. It was
therefore wrong to posit an issue which is predicated on the assumption that
he had declared the award unenforceable. I cannot overemphasize the fact
that a proper issue for determination in an appeal ought to be a mirror of
the facts of the case as ascertained in the court below. In formulating any
issue for determination in an appeal, a party is entitled to formulate it with
a slant favourable to his own case. But in doing so, he cannot misstate or
mutilate the facts. Having regard to the grounds of appeal and the true facts
(2017) 1 DJR 19

of the case. I prefer the issues as formulated on behalf of the respondents,

which run thus:
(i) Whether a plaintiff whose claim was struck out and not dismissed
by the court is estopped from bringing a fresh action before the court
to enable its claim be determined on the merits and whether the
respondent who had sought to enforce as arbitration award in this
suit is barred from bringing an action for judgment on the award.
(ii) Whether the appellant can now complain of the excessiveness of the
award made by the Arbitrator as the appellant did not apply to the
court to have the award set aside or remitted when made and when
the issue of the excessiveness of the award was not raised at the
trial.
(iii) Whether the Court of Appeal can exercise its power under section
16 of the Court of Appeal act to review the award of damages when
the point was not raised at the trial and whether the Court of Appeal
can properly do so in this case even if the point had been raised at
the trial.
(v) Whether the Arbitration Clause as contained in Clause 8 of the
Policy of Insurance i.e. Exhibit A does not constitute a valid
submission to Arbitration and whether the said Clause does not
confer jurisdiction on the arbitrator consented to by the parties.
(vi) Whether the terms of reference of an Arbitrator need be contained
in a single or in a formal document.

I shall, however, connect these to the issues formulated on behalf of the

appellants and whenever possible, consider them together.

I shall consider the first issue formulated on behalf of the appellant together
with issues numbers (v) and (vi) for the respondent. It has been urged on
behalf of the appellant that there cannot be a valid arbitration in the absence
of some terms of reference subscribed to by both parties. This was indeed
one of the grounds upon
<<Page 7>>
which Falade, J., struck out the first proceeding. On behalf of the
respondent, however, it was submitted that as by clause 8 of the Policy of
Insurance between the parties they agreed to refer any dispute as to a claim
by the plaintiff on the defendant/company to arbitration, it constituted a
sufficient submission of the dispute to arbitration satisfied the requirement
of agreement to such a submission, and gave the court jurisdiction to
enforce the award.

In my view, the contention on behalf of the appellant on this point is totally

misconceived. For although it is the law that to constitute a proper
(2017) 1 DJR 20

arbitration which the courts can enforce there must be an agreement to

submit the matter to arbitration, it is equally true that a policy of insurance
constitutes a contract between the insurer and the insured. A clause in such
a policy dated 20th July, 1976, which provides that any dispute as to a claim
by the insured against the insurers shall be referred to arbitration is a
sufficient agreement to submit the dispute to arbitration, and any award by
an arbitrator so appointed shall be binding on both parties thereto. In such
a case, the High Court may adjudicate on the issue between the parties or
direct the issue between them to be determined in accordance with the terms
of agreement, see Baker v Yorkshire Fire & Life Assurance Co. (1892) 1
A B 144; Anglo Newfoundland Development Co. v R (1920) 2 K B 214, p
223, C A. The learned authors of Halsbury’s Laws of England Vol. 2 (4th
Edn.) para. 522, put the contention of the appellant in this respect at rest
when they stated:
“If the agreement is written, it (meanings arbitration provision) may
be included in a particular contract by reference or implication. The
agreement between the parties may incorporate arbitration
provisions which are set out in other documents, but in order to be
binding the arbitration provisions must be brought to the notice of
both parties.

See: Morgan v William Harrison Ltd. (1907) 2 Ch. 137 C A; Clement v

Devon County of Devon Insurance Committee (1918) 1 K B 94, and Frank
Fehr & Co. v Kassam Jivral & Co. Ltd. (1949) 82 Le.L.Rep 673. The
defendant who is the author of the policy cannot claim that it did not have
notice of the provision. It is surprising that the appellant, conscious of
clause 8 of their own policy submitted to and fully took part in the
arbitration proceedings before raising this question ex post facto. The law
will not allow them to do so. See also Kano State Urban Development
Board v Fanz Construction Co. Ltd. (1986) 5 NWLR (pt 39) 74; also.

Heyman & Anors v Darwins Ltd (1942) 1 All E R 337 p 339. It is certainly
not necessary, in view of clause 8 of the policy, that the parties should again
formulate another agreement to submit their differences to arbitration. It is
enough that clause 8 contemplates that they would submit their present and
future differences
<<Page 8>>
to arbitration.. This distinguishes this case from that of Caerleon Tinplate
Co. v Hughes (1891) 60 L.J.E.B. 640 which was cited in argument. In that
case the bought, note signed by the defendants stated that any dispute
between the parties would be referred to arbitration. But the sold note
signed by the plaintiff contained no reference to arbitration or anything else
to show that a submission to arbitration was intended or agreed to. The
(2017) 1 DJR 21

position in this case is different. I must therefore resolve this issue against
the appellant.

On issues numbered (3) and (4) by the appellant, it has been submitted that
the judgment of Falade, J., is a final judgment and therefore constitutes res
judicata. It pronounced on the arbitration as being a nullity and void. As the
findings in a judgment by a High Court can only be set aside on appeal, and
there was no appeal, the judgment stands and ousts the jurisdiction of any
other High Court to adjudicate again in the matter, counsel submitted. He
cited the case of May v Mills (1914) 30 T L R 287 in support.

In his own submission, learned counsel for the respondent pointed out that
the earlier suit, No. M/17/80 was merely struck out and not dismissed. The
ground for the striking out was that there was exfacie doubt as to the
validity of the award. As it did not finally dispose of the rights of the parties
in the case it was not a final judgment and, so, could not be pleaded as
estoppel or bar the respondent from instituting another action, he submitted.
It was not a determination on the merits. In the further submission of
counsel, even if the decisions was final, the respondent was in law not
barred from bringing an action for a declaration that the award should be
paid since a person who has obtained an order for leave to enforce an
arbitration is not prevented from bringing an action on the award. It was
not a case of where a Judge was setting aside or varying an order made by
another Judge of concurrent jurisdiction, he submitted. In support, he cited
the following authorities:
China Stream Navigation Co. v Van Luan (1905) 22 T LR 26; In re
Boks & Co. AND Peters Rushton & Co. Ltd. Arbitration (1919) 1
K.B. 491, at pp. 497; and
Russel 446 -497 on Arbitration (18th Edn) 329.

I wish to begin my consideration of the above submissions by noting that

although there is now in force in Nigeria an Arbitration and Conciliation
Act, (Cap. 19 Laws of the Federation of Nigeria, 1990) effective throughout
the Federation with effect from the 14th of March, 1988 that act does not
apply in this case which was decided in the High Court, Ibadan, Oyo State
on the 16th of July, 1981. The old Arbitration act (Cap 13 Laws of the
Federation 1958) applied to Lagos only. Section 13 of the Arbitration Law
of Oyo State, 1978, which re-enacted The Arbitration Law of the Western
Region, (Cap 9 of 1959) provides simply that:
<<Page 9>>
13. An award on a submission may, by leave of the court or a judge, be
enforced in the same manner as a judgment or order to the same
effect.
(2017) 1 DJR 22

This was an enabling provision which did not affect the existing
procedures. It was presumably under the power conferred by this section
that the respondent initially applied to enforce the award made in his
favour. But in England, before provisions in pari materia with the above,
such as under section 26 of the Arbitration act of 1950, came into force, it
had been settled and recognized that procedure by action upon an award
was one that could be pursued where the objection raised was such as to
render the validity of the award a matter of doubt. When such was the case,
no order was made giving leave to proceed summarily under the award. See
Re Books & Co. and peter, Ushkin & Co. Arbitration (1919) 1 K.B. 491;
also May v Mills (1914) T.L.R. 287. This principle was in fact one of the
principles of the common law received in Nigeria in 1900. As in England,
when provisions such as those in section 13 of the Arbitration Law of Oyo
State were introduced, the view of the courts was that the new provisions
were an alternative procedure to the existing common law procedure by
action. The learned authors of Supreme Court Practice, 1979, recognized
this position where they state in paragraph 3787 of Vol. 2 thus:
“Two alternative methods of enforcement of an award are open to an
applicant, namely:
1. By application directly to enforce the award……….
or
2. By application to enter judgment in terms of the award and
so to enforce the judgment by one or more of the usual forms
of execution……………”

Thus the two alternative methods are fundamentally different. The

summary method treats the award as an existing judgment and only seeks
to enforce it. The enforcement by action seeks to get a judgment in terms
of the award. There can, therefore, be no question of a proceeding by way
of summary procedure to enforce the award being pleaded as estoppel per
rem judicatam. As in that case the court itself decides nothing. It simply
enforces the award as if it were a judgment. Where there is doubt, as I have
stated, and it becomes unwise to enforce the award summarily, the court
simply strikes out the application to enforce the award summarily leaving
the applicant free to commence an action.

That was indeed what Falade, J., himself had in mind when he stated.
“It is well settled that the procedure by action upon an award is one
that ought to be pursued where the objections raised are such as to
render the validity of the award a matter of doubt. Where there is
no objection to the
<<Page 10>>
(2017) 1 DJR 23

award, or where the objections raised are such as can be easily

disposed of the summary procedure is prompt and convenient, but
where there are matters which may gravely affect the validity of the
award, then it is proper that they should be dealt with by an action
in which the facts can be fully ascertained, and no order should be
made giving leave to proceed summarily under the award. See In re
Boks & Co and Peters Rushton & Co. Ltd. (1919) 1 K B 491 at 496.

From the totality of the evidence before me and the submissions

made by the two counsel, there is a doubt on the face of the
proceedings as to the validity of the award. In May v Mills (1914)
30 T L R 287 it was held that no order for the enforcement of any
award should be made if there was a doubt on the face of the
proceedings whether there had been a valid arbitration.

Taking into consideration the circumstances of this case therefore,

I hold that the application is not well founded. The originating
summons is therefore struck out.

Thus he fully recognized, when he struck out the proceeding to enforce the
award, that the respondent could proceed by way of an action. He did not
intend to decide anything and so decided nothing. He only felt that there
was some doubt as to the validity of the award and held that in such a
circumstance the correct procedure was by way of an action. This was
exactly what the respondent proceeded to do. As nothing was yet decided,
the learned trial Judge’s striking out of the application could neither be final
not operate as res judicata. The submissions on behalf of the appellant on
these issues were therefore misconceived.

The fourth issue raised on behalf of the appellant has already been taken
care of during my consideration of issues numbered 2 and 3. Furthermore,
it was predicated on the premises that Falade, J., refused the award. He did
no such thing. From the portion of his judgment which I have set out above,
he only felt that there was a ground for doubt as to the validity of the award
and so the proper procedure for its enforcement would be by action.

I agree with learned counsel for the respondent that as the learned trial
Judge in his reserved ruling on the 20th of February, 1981 held that the
plaintiff/respondent suing Commerce Assurance Company Limited rather
than Commerce Assurance Limited as a mere misnomer and proceeded to
amend the name of the defendant accordingly but the appellant never
appealed against the decision, it is not open to the appellant now to raise
(2017) 1 DJR 24

the point again in this appeal. The matter could only have been reopened
by an appeal at the proper time, or by asking for leave and
<<Page 11>>
extension of time to raise it in this appeal. As there has been no appeal, the
decision and the amendment made thereunder subsist.

There is no material before the court to support the submission on behalf of

the appellant that Commerce assurance Company Limited is not a juristic
person and that an amendment cannot properly be made to substitute a
juristic person for a non juristic person. While the submission that an
amendment cannot be made in order to substitute a juristic person for a non
juristic person is technically correct, it cannot avail the appellant. This is
because the learned trial Judge found that what was involved was a mere
misnomer. And it is settled that where an amendment sought relates to a
mere misnomer, it will be granted almost as a matter of course. See on this:
Sam Warri Esi v Shell B.P. Petroleum Development Co. of Nig. Ltd. (1958)
SCNLR 384 (1958) 3 F S C 94.

Finally, I shall deal with issue number 6 in which the appellant contends
that, as the learned trial Judge was of the view that the quantum of the award
was rather too high, he should have proceeded to reduce it to a reasonable
figure. In his submission, an action seeking for a declaration of an award is
almost like a new action. Learned counsel on behalf of the respondent
submitted that the learned Judge had no power to do so. The correct
procedure that the appellant could have adopted was to have applied within
six weeks to set aside the award. Having failed to do so, and as the award
was valid on the face of it, the award stands. He cited:
Caledonian Railway Co. v Turcan
Kano State UDB v Fanz Construction Co. Ltd. (supra)
Ita v Idiok (1923) 4 NLR 100.

Now, I believe that the appellant’s contention on this issue reveals a lack
of appreciation of the true nature of arbitration proceedings. The underlying
principle is that parties to a dispute have a choice. They may resort to the
normal machinery for administration of justice by going to the regular
courts of the land and have their disputes determined both as to the fact and
to the law, by the courts. Or, they may choose the arbitrator to be the judge
between them. If they take the latter course, they cannot, when the award
is good on the face of it, object to the award on grounds of law or of facts.
Smith, L. J., reiterated the principle in Montgomery Jones & Co. v
Liebenthal (1898) 78 L.T. 406 where he stated at p. 408:
(2017) 1 DJR 25

“I for my part, have always understood the general rule to be that

parties took their arbitrators for better or worse both as the decision
of fact and decision of law.”

The West African Court of Appeal reiterated the same principle in the case
of Foli v Akese (1930) 1 WACA 1, at p 2, so also the Privy Council in Larbi
v Kwasi &
<<Page 12>>
Ors. (1950) 13 WACA 81, p. 82. A person who has submitted to an
arbitration cannot turn to the court to ask it to review the award when he
believes that it is too high. As the learned authors of Russell on Arbitration
(18th Edn) put it at p 314:
“The court has no power to alter an award; it can only set it aside or
remit it to the arbitrator.”
See also; Hall v Anderson (1825) 2 Bing, 476; Moore v Butlin (1877) 7
L.J.Q.B. 20. But I must add that as pointed out by learned counsel for the
respondent, where a person affected by an arbitration award wishes to have
it set aside he must apply timeously, and before the successfully party takes
steps to enforce the award or have a judgment entered in his favour in terms
of the award: see Efana Ekeng Ita v Edet Idiok (1923) 4 NLR 100. Applying
the above principles to the present case, it follows that much as the learned
trial Judge had criticized the award as rather too high, the award, which was
made over ten years ago, stands as the learned Judge has no powers to
tamper with it. The award could not be treated as just a court judgment on
appeal before the learned Judge. The questions of section 16 of the Court
of Appeal act dos not arise.

All the issues raised by the appellant having been resolved against it, the
appeal fails and is dismissed. I assess and award costs of N1,000.00 against
the appellant.

Karibi-whyte, Belgore, Wali and Akpata JJSC all concurred with the lead
judgement.

{Nigerian Cases Refereed to}

Ita v Idiok (1923) 4 NLR 100
K.S.U.D.B. v Fanz Construction Co. Ltd. (1986) 5 NWLR (pt 39) 74
Olu of Warri v Esi (1958) SCNLR 384.
{Counsel}
Chief Adedeji Adekoya - for the Appellant
G.O. Ojo - for the Respondent.
(2017) 1 DJR 26

Case Year: 1994

Judge: Kutigi. JSC
Counsel: Toro, E. SAN Respondent absent/unrepresented
Citations: Citation1 - (2017) 1 CLR 26 (SC) Citation2 - (1994) 8 NWLR
(Pt.362) 252 (SC) Citation3 - SC.195/1988

Home Dev. Ltd. v. Scancila Cont. Co. Ltd (2017) 1 CLR 26 (SC)

{Brief}
- Arbitration award

{Facts}
The dispute in this matter was subjected to arbitration and an award was
duly made by the arbitrator in August 1985. In October of the same year,
appeallant went to the High court in Kaduna State seeking to set aside the
award or for the dispute to be brought under another arbitrator. A
preliminary objection was raised by the respondent that the application was
incompetent on the grounds inter alia that the application was statute-barred
because it was filed outside the 15 days allowed by Order 22 rule 12 of the
High Court of Kaduna State (Civil Procedure) Rules 1977. The High Court
upheld the preliminary objection and struck out the originating motion on
notice.

The appellant appealed to the Court of Appeal which dismissed the appeal.
Dissatisfied with the decisions of the Court of Appeal, the appellant
appealed to the Supreme Court.

{Issue}
Whether Order 22 rule 12 of the High Court of Kaduna State (Civil
Procedure) Rules is applicable to bar an originating application filed after
15 days of the making of an arbitration award and where the said
application seeks to set aside the award made consequent upon a
submission by the parties to an agreement containing an arbitration clause.

{Held - Summary}
Unanimously dismissing the Appeal
1. Under the relevant applicable laws, every arbitration embarked
upon in a submission shall have the same effect as if it is a reference
by a court.

{Held - Lead judgement} Delivered by Kutigi JSC

By an originating notice of motion dated 22/10/85 and filed on 23/10/85
the appellant, Home Developments Ltd, sought for an order that:-
(2017) 1 DJR 27

"The award of Mr.Gabriel Aduku (hereinafter called "the

Arbitrator") dated the 29th day of August, 1985 made in the reference to
arbitration before him between Home Developments Ltd (hereinafter -
called "the Applicant") and Scancila Contracting Company Limited
(Hereinafter called "the Rosicrucian") under the Arbitration clause
contained in the contract Agreement signed on the 19th day of March,
1981:

<<Page 1>>
(1) Be set aside, and
(2) That the High Court should invoke its power under and by virtue of
sections 6(6)(a) and (b) and 236 of the Constitution of the Federal Republic
of Nigeria 1979 Order 22 Rule 9, High Court (Civil Procedure) Rules,
1977, to become seized of the matter and thereupon make any awards,
orders and grant any reliefs it deems fit and Justice in the circumstances of
this matter, or Page 1
(3) In the Alternative, that the award be remitted to another Arbitrator
the Court may appoint, for reconsideration; and that the costs of and
incidental to this application to be paid by the said SCANSILA
CONTRACTING COMPANY LIMITED."

These prayers were immediately followed by as five-page foolscap size

"grounds for the application". The motion was also supported by an
affidavit of 49 paragraphs sworn to by one Alhaji Isa Ibrahim Makarfi,
Company Executive of Home Developments Ltd, the appellant.

The respondent, Scancila Contracting Co. Ltd entered a conditional

appearance under protest with a notice of preliminary objection to the
application on the following grounds-
"1. That the Applicant's application dated 22nd October, 1985 and filed on
23rd October, 1985 for an order that the award of Mr. Gabriel Aduku - (the
Arbitrator) dated the 29th day of October, 1985 made in the reference to
arbitration before him between the Applicant and the Respondent be set
aside and or remit the award to another Arbitrator the court may appoint,
for reconsideration commenced in this suit by originating Notice of Motion
is incompetent and should be struck out and or dismissed by this
Honourable Court:-
(i) The form and commencement of this suit is unknown to and contravene
the provisions of Order of Rules 1, 2 and 3; Order 2 Rules 1, 2 and 3; and
Order 34 Rule 8 High Court (Civil Procedure) Rules, 1977, made pursuant
to section 116(1) High Court Law of Kaduna State.

(ii) If at the Application aforesaid was made in pursuant of section 35

(2017) 1 DJR 28

of the High Court Law Cap., 49, same contravenes the provisions of Order
8 Rules 3(1-6) Rules of Supreme Court of Practice, White Book Volume 1.

(iii) The application aforesaid was not made within fifteen days after the
publication of the award aforesaid, as prescribed by the provisions of Order
22 Rule 12 of the High Court (Civil Procedure) Rules 1977.

(iv) The provisions of Sections 11 and 12 of the Arbitration Law Cap, 7

Laws of Northern Nigeria 1963, applicable in Kaduna State, are governed
and or
<<Page 2>>
regulated by the provisions of the rules of court, viz High Court (Civil
Procedure) Rules 1977,which came into operation on the 1st day of March,
1977.

2. This Honourable Court is incompetent to entertain and or hear the

Applicant's application aforesaid, in that:-
(i) For the reasons given in Ground above.
(ii) The Applicant's suit was not initiated by due process of law and
upon fulfillment of any condition precedent to the exercise of jurisdiction
by the Court.
(iii) Inherent jurisdiction and powers of a court cannot be a total
substitute for the Rules of Court.

3. The Applicants application aforesaid, is an abuse of the process of the

court and should, for the foregoing reasons, amongst others, be struck out
and or dismissed.

The preliminary objection was argued.

In a considered ruling, the learned trial judge observed at page 48 of the

record thus:-
"In the instant case, the applicant has not properly initiated the
proceedings by the due process of law enumerated as mandatory in Order
2 rule 1 of the H.C.C.P. Rules, and this is not a case which can be started
by following Section 35 of the High Court Law for reasons stated earlier.
With regard to the other point that the application was not made within 15
days of Order 22 Rule 12 H.C.C.P., Rules 1977, I think as long as the
Rules of Court apply to the arbitration proceedings then it is mandatory for
the application to be made within the 15 days after the publication as
stipulated in Order 22 Rule 12.
It is not disputed by the applicant as can be seen in their affidavit
particularly paragraph 3 in Exhibit X that the award was made and
(2017) 1 DJR 29

published on 28th day of August, 1985 and received by them on 20th

September, 1985 while the application to set aside the award was filed on
23/10/85. This is clearly more than 15 days after the publication.
From the wordings of Rule 12 Order 22 non-compliance with the
rule will in view make the suit incompetent".

He continued and concluded on page 50 as follows-

"In the final analysis in view of the foregoing reasons I am of the
view that this suit is incompetent as it was not properly commenced as
stipulated by the High Court Rules and also it was commenced after the
expiration of 15 days period stipulated in Order 22 Rules 12. I also hold
that the provisions of Section 35 of the High Court Law which enjoins
the High Court where the Local rules do not make specific provisions, to
apply the practice and procedure of the High
<<Page 3>>
Court of Justice in England, as not applicable in the instant case. The
application to set aside the award or remit it is hereby struck out. I must
commend both learned counsel for brilliant submissions."

Aggrieved by the decision of the trial court above, the appellant appealed
to the Court of appeal Kaduna. Three grounds of appeal were filed and from
them the following three issues respectively arose for determination:-
"1. Whether in view of Order 2 Rule 1 of the Kaduna State High Court
(Civil Procedure) Rules of 1977 the action or application of this nature
should only be commenced by a writ of summons to the exclusion of any
other procedure such as an organising notice of motion as in this case.

2. Whether an action or application commenced by originating notice of

motion which ought to have been commenced by a writ of summons should
be struck out and not treated as if it had been commenced by a writ of
summons.3. Whether Order 22 Rule 12 of the High Court (Civil Procedure)
Rules of 1977 is applicable to this case and therefore the application is time
barred or whether by virtue of section 35 of the High Court law Cap, 49
Laws of Northern Nigeria applicable in Kaduna State, the computation of
time is governed by the applicable English Law at the time of enactment of
the Arbitration Law."

The Court of Appeal in a reserved judgement allowed the appeal on issue

1 & 2 but dismissed it on issue 3, namely, that the suit was time barred
having been brought long after the expiration of fifteen day when the
arbitration award was made and published. Delivering the lead judgement
Akpata J.C.A., (as he then was) said on page 141 thus-
"I have therefore come to the conclusion that since the originating
(2017) 1 DJR 30

notice of motion the subject matter of this appeal was filed long after the
expiration of the fifteen days period stipulated in Order 22 Rule 12, it was
incompetent and was rightly struck out. While grounds 1 and 2 succeed,
ground 3 fails. The appeal as a whole therefore fails. It is accordingly
dismissed. There will however be no order as to costs."

Still dissatisfied with the decision of the Court of Appeal, the appellant has
further appealed to this Court. Only one ground of appeal was filed and it
reads-
"That the learned Judges of the Court of Appeal erred in Law when
they held that the suit before the High Court was time barred by virtue of
Order 22 Rule 12 High Court (Civil Procedure) Rules, 1977 in that the suit
was brought outside 15 days after the publication of the Arbitrator's award
when the award in this suit was not an award made pursuant to section 90
of the High Court Law Cap.49 Laws of Northern Nigeria applicable to
Kaduna State and when also the Arbitration Law Cap.7 Laws of Northern
Nigeria applicable to Kaduna State
<<Page 4>>
prescribed not time limit for challenging an arbitration award.
Particulars
(a) Order 22 of the High Court (Civil Procedure) Rules, 1977 of Kaduna
State applies exclusively to an arbitration ordered by the Court in a cause
or matter already before the court in exercise of powers conferred by
section 90 of the High Court Law.

(b) The suit brought in the High Court in the instant case, are proceedings
subsequent to an extra-judicial arbitration as opposed to arbitration ordered
by the court in a suit pending before it.

(c) Order 22 rule 1 of the High Court Rules makes express reference to
section 90 of the High Court Law and not the Arbitration Law Cap 7 and
any construction other than the plain and ordinary meaning of the said
section 90 and order 22 will be doing extreme violence to the meaning of
those provisions.

(d) At the time of enacting the Arbitration Law Cap.7 in 1914, the
applicable statute of General Application was the Arbitration Act of
England 1889, which prescribed a time limit of six (6) weeks after
publications of the arbitration award.

(e) For the learned Judges of the Court of Appeal to have imported the
provisions of Order 22 of the High Court (Civil Procedure) Rules into the
Arbitration Law was ultra vires their powers and duty as same amounted to
(2017) 1 DJR 31

judicial legislation as opposed to judicial interpretation.

Learned Counsel for the appellant in his brief formulated two issues for
determination thus -
"(i) Whether there is any lacuna in the Arbitration Law Cap.7, Laws of
Northern Nigeria, 1963, applicable in Kaduna State and/or the Kaduna
State High Court (Civil Procedure) Rules, 1977, so as to warrant a recourse
being made to the practice and procedure for time being of the High Court
of Justice in England by virtue of section 35 of the High Court Law Cap.49,
Laws of Northern Nigeria, 1963, applicable in Kaduna State, in the
circumstances of this case?

(ii) Whether Order 22 of Kaduna State High Court (Civil Procedure) Rules,
1977 dealing with arbitration ordered by the High Court in suits pending
before it pursuant to section 90 of the High Court Law Cap.49 can properly
be said to also govern arbitration made otherwise than as contemplated by
the said section 90 of the High Court Law?"

Clearly the above two issues are in substances exactly the same as issue 3
which the Court of Appeal had considered and decided against the appellant
as illustrated
<<Page 5>>
above.

Arguing the issues together, counsel for the appellant in his brief submitted
that Order 22 of the Kaduna High Court (Civil Procedure) Rules 1977
relates to an arbitration ordered by the Court in suit pending before it and
does not relate, as in the present appeal, to an arbitration which has been
held and concluded but the award whereof is being challenged in court. In
short, Order 22 does not apply to arbitration made upon a submission by
the parties which falls squarely within the ambit of the Arbitration Law
Cap.7. He said the 1977 Rules have to be considered along with the
provisions of section 35 of the High Court Law Cap.49 Laws of Northern
Nigeria, 1963 applicable in Kaduna State. And that although generally,
resort cannot be had to English Rules of Practice and Procedure where there
are provisions in our local rules, English Rules can be resorted to where
there are local rules on a point as well as where the existing are not as
comprehensive as they should be. It was then submitted that the 1977 Rules
have made no provision in respect of practice and procedure for challenging
an arbitration award pursuant to the right conferred by sections 11 & 12 of
the Arbitration Law and that in view of obvious lacuna, resort has to be
made to the relevant practice and procedure for the time being of the High
Court of Justice in England. He referred to Order 22 Rules 1 & 2 of the
(2017) 1 DJR 32

1977 Rules, Section 35 of the High Court Cap.49 and to the following
cases-

Laibru Ltd. v. Building & Civil Eng. Contractors (1962) 1 All NLR 387
Adigun v. Attorney-General of Oyo State (1987) 2 NWLR (Pt.56) 197
Ademola II v.Thomas (1946) 12 WACA 81
Paul v. George (1959) 4 FSC 198; (1959) SCNLR 510

Counsel also referred to the judgment of the Court of Appeal at pages 128
& 136.

It was further submitted that as far as Kaduna State is concerned, the

English practice and procedure applicable in this case was the practice and
procedure obtainable on 3rd November, 1955 being the date when the High
Court Law Cap.49 was enacted. He said the procedure and practice for
challenging an arbitration award in this case is by originating Notice
Motion only. We were referred to Onayemi v. Okunnubi (1965) 1 All NLR
362. Mid-west Govt. v. Armels Transport Ltd (1977) 10 S.C. 431 Akunnia
v. Attorey-General of Anambra State & Ors (1977) 5 S.C. 161 Annual
Practice 1965 Vol. 1 Para. 1994/14 Page 81. Russel on Arbitration 18th
Edition Page 499/480. Nigerian Commercial Law & Practice 1983 Vol. 1,
by Olakunle Orojo page 252.

Learned Counsel contended that the Arbitration Law nowhere prescribes a

time limitation for challenging an arbitration award, while Order 22 Rule 1
makes
<<Page 6>>
express reference to Section 90 of the High Court Law from where it takes
its roots. He said this case is concerned with an extra-judicial arbitration as
opposed to that ordered by the Court in a cause or matter before it. It was
submitted that both the High Court and the Court of Appeal were wrong to
have imported into the Arbitration Law a time bar of 15 days. The duty of
courts is to interpret the law and not to fill-in the gaps. Section 90 and Order
22 are both clear and unambiguous and the court is urged to give to those
provisions their plain and ordinary meaning as opposed to any strained
interpretation. The office of a Judge is jus dicere not jus dare. The following
cases were cited in support:-
Magor & St. Mellons R.D.C. v. New port Corporation (1952) A.C. 189 at
191; I.B.W.A. v. Imano (Nig.) Ltd (1988) 3 NWLR (Pt.85) 633; Jammal
Steel Structures Ltd. v. A.C.B. (1973) 1 All NLR (Pt.11) 208; Ohunka V.
The State (1988) 1 NWLR (Pt.72) 539.

It was also submitted that the Arbitration Law deals in general terms with
(2017) 1 DJR 33

arbitrations upon submission by the parties while section 90 and Order 22

specifically provide for arbitration upon a reference by the court in a suit
before it. Being a subsequent specific legislation section 90 and Order 22
should be construed as excluding or delimiting the application of the
Arbitration Law. The rule of interpretation is that a special provision is
exempted and taken out of the general provision which would therefore not
apply. He cited in support.:-
Martin Schroder & Co. v. Major & Co. Ltd., (1989) 2 NWLR (Pt.101) 1;
Akpan v. The State (1986) 2 NWLR (Pt.227) 225; Orubu v. N.E.C. (1988)
5 NWLR (Pt.94) 323; Governor of Kaduna State & Ors. Kogoma (1982) 6
S.C. 87; (1982) 3 NCLR 206.

It was further submitted that at the time of enacting the Arbitration Law
in 1914, the applicable English Statute of general application on arbitration
was the Arbitration Act of England 1889 and that under the English Act,
an application to remit or set aside an award must be within six (6) weeks
after the award has been published. It was therefore a deliberate omission
on the part of the law maker who was aware of the English Law on the
matter not to impose any time limitation. He said the decision of this Court
in United Nigeria Insurance Company Ltd v. Leandro Stocco (1973) 1 All
NLR (Pt.1) 168 which decided virtually the same issue as in the present
appeal should be distinguished as inapplicable because of the provision of
Order 22 Rule 1 which expressly excluded the rules from being applicable
to an arbitration on a submission. We were urged to allow the appeal and
set aside the decisions of the lower courts.Counsel for the respondent in
reply submitted that the Court of Appeal was right when it held that the suit
before the High Court was time barred by virtue of Order 22 Rule 12 of the
1979 Rules in that suit was brought outside the 15 days after the publication
of the award. He said an arbitration embarked upon by
<<Page 7>>
submission of parties has the same effect as if it is a reference by a court
pursuant to section 90 of the High Court Law. He said although no rules of
court have been made pursuant to the Arbitration Law, Order 22 Rule 12
which relates to arbitration proceedings ordered by courts is by implication
applicable to arbitration on submission by the parties and that English rules
will not apply. That the artificial distinction between arbitration ordered by
court as prescribed in Section 90 and Order 22 and arbitration on
submission under the Arbitration Law is a distinction without difference.
He said there was no lacuna anywhere in the High Court Law or the 1977
Rules. That the Arbitration Law is " a law to provide for the reference and
submission of disputes to arbitration", while Order 22 Rule 12 prescribes a
time limit of fifteen days within which to apply to set aside an award.
Learned counsel referred to section 13 & 18 of the Arbitration Law and said
(2017) 1 DJR 34

it was clear that every arbitration is to be regarded as if it were pursuant to

a submission. The rules made under Order 22 should therefore be regarded
as having been made in the High Court of Lagos State (Civil Procedure)
Rule which is in pari materia with Order 22 Rule 12 of the 1977 Rules
herein came up for interpretation in the case of U.N.I.C. Ltd. Leandro
Stocco (supra), and this Court held that the rules were applicable to both an
arbitration on submission and arbitration ordered by court and that the time
bar of 15 days applied. The Court was asked to follow that precedent and
dismiss the appeal.

In the consideration of this appeal the starting point (and possibly) the
stopping point too), will be the case of U.N.I.C Ltd. v. Leandro Stocco
(supra) which both sides cited their briefs as having decided virtually the
same issue as in the present appeal even though the appellant said it is
distinguishable and inapplicable to the instant case. Being a decision of this
Court I am bound to follow it once it is found to be applicable.

Now, in the Leandro Stocco case, the plaintiff sought leave to enforce an
award whereupon the defendants some six weeks after publication of the
award, applied for an order setting it aside or remitting it to the arbitrator
for certain reasons. The trial Judge held that the application to set aside or
remit the award was not of time since it was not within 15 days after
publication of the award. On appeal to this Court, it was held inter alia that
the trial Judge rightly held that the application to set aside the award or
remit it to the arbitrator is statute-barred under Order 49 Rule 13 of the
Lagos State High Court (Civil Procedure) Rules, Delivering the
judgement of the Court, Elias C.J.N. stated thus:-
".................. Learned Counsel of the appellants, in arguing ground
I, contended that their application was not made out of time, as found by
the learned trial Judge since, according to him, Order 49, Rule 13 of the
Lagos High Court Rules must be read subject to Order 49, Rule 1 which
says that parties desirous of referring a matter in difference to the
arbitrator, may do so at any time. He further
<<Page 8>>
contended that, the Arbitration Act itself, there is no provision setting out
any time-limit within an application to set aside an award ought to be
brought, and that section 12 of the Act sets no time-limit to cases arising
within Lagos State. We think that there is no merit in this argument and
that the learned trial Judge is right in applying Order 49, Rule 13 of the
Lagos High Court Rules in holding that the application was out of time".

I also hasten to think that there is no merit in the submissions of learned

appellant's counsel in this case as brilliant and forceful as they sounded.
(2017) 1 DJR 35

Counsel on both sides agree that Order 49 Rule 13 of the Lagos High Court
Rules. the two rules respectively prescribe a time limit 15 days for applying
to set aside an award.

The Arbitration Act Cap. 13 Laws of the Federation of Nigeria and Lagos
1958 applicable in Lagos State is also in pari materia with the Arbitration
Law Cap. 7 Laws of Northern Nigeria 1963 applicable in Kaduna State.
Sections 3, 4 and 18 of the Arbitration law (See equivalent sections of the
Act), read:-
"3. A submission, unless a contrary intention is expressed therein, shall be
irrecoverable, except by leave of the Court or a Judge or by mutual consent,
and shall have the same effect in all respects as if it had been made on order
of court.

4. A submission, unless a contrary intention is expressed therein, shall be

deemed to include the provisions set forth in the schedule, so far as they are
applicable to the reference under the submission.

18. This law shall apply to every arbitration under any Act or Law passed
before or after the commencement of this Law as if the arbitration were
pursuant to a submission, except in so far as this Law is inconsistent with
the Act of Law regulating the arbitration or with any rules of procedure
authorised or recognised by that Act or Law."

And the word "submission" is defined under section 2 of the Laws as well
as the Act thus:-
"Submissions" means a written agreement to submit present or future
differences to arbitration, whether an arbitrator is named therein or not."

All the foregoing provisions show that while every arbitration under any
Act or Law (including Kaduna State High Court Law), is to be regarded as
if the arbitration is pursuant to a submission, an arbitration embarked upon
a submission shall also have the same effect as if it is a reference by a court.
Therefore the submission of appellant's counsel to the effect that Order 22
Rule 12 and the decision in U.N.I.C. Ltd v. Leandro Stocco (supra) would
not apply simply because Order 22 Rule 1 made reference only to an
arbitration ordered by court
<<Page 9>>
under section 90 of the High Court Law, is clearly misconceived and
untenable. It must be stressed again that it is obvious from the clear
language of the Arbitration Law that an arbitration embarked upon on a
submission shall have the same effect as if it is a reference by a court
pursuant to section 90 of the High Court Law. So it is in this case as it was
(2017) 1 DJR 36

in U.N.I.C. Ltd. Leandro Stocco (supra). Consequently there is no lacuna

either in the Arbitration Law or in the 1977 Rules as contended by the
appellant.

I have therefore come to the conclusion that since the originating Notice of
Motion herein was not filed within 15 days as stipulated by Order 22 Rule
12 of the Kaduna State High Court (Civil Procedure) Rules, it was
incompetent and rightly struck-out by the trial High Court as confirmed by
the Court of Appeal.

The appeal therefore fails and is accordingly dismissed. The respondent is

awarded costs assessed at N1,000.00 only.

Ogundare, Onu, Uwais and Iguh JJSC all agreed with the lead judgement.

{Nigerian Cases Referred to}

A-G Bendel State v. A-G Federation (1981) 10 S.C.1
Kolawole v. Alberto (1989) 1 NWLR (Pt.98) 382
Lawal v. Younan (1961) 1 SCNLR 323
Okokor v. State (1967) NMLR 189
U.N.I.C. Ltd. v. Stocco (1973) 1 All NLR 168

{Counsel}
E.J.J Toro - for the Appellant
Respondent absent and unrepresented.
(2017) 1 DJR 37

Case Year: 2011

Judge: Rhodes-Vivour JSC
Counsel: Agbabiaka, A SAN Respondent absent/unrepresented
Citations: Citation1 - (2017) 1 DJR 37 (SC) Citation2 - (2011) 4 NWLR
(Pt.1238) 512 (SC) Citation3 - SC.217/2004

Cameroon Airlines v Otutuizu (2017) CLR 37 (SC)

Judgement delivered on February 4th 2011

{Brief}
- Parties to an action
- Award of damages
- Brief of argument
- Aviation matter
- Liability of carrier
- Ticket
- Transit visa
- Warsaw Convention 1955 (as amended)
- Breach of contract
- Federal High Court
- Special damages
- Cross examination
- Averment in pleadings
- Unchallenged evidence

{Facts}
The respondent is a business man. He had a business appointment in
Manzini Swaziland, and so he went to the appellant's office at Oko Awo
Close, Victoria Island, Lagos. There he was told that the appellant flies to
Manzini, Swaziland. Two tickets exhibits A and B were sold to the
respondent by agents of the appellant. The tickets were routed as follows:
Exhibit A - Lagos to Doula. Cameroon to Harare, Zimbabwe, return on the
same route to Lagos. Exhibit B - Harare, Zimbabwe to Manzini, Swaziland,
and back to Harare.

The respondent purchased both tickets for the sum of 923 (United States
Dollars). According to exhibits A and B the flight was scheduled to depart
Lagos on 27/2/96 to Manzini, Swaziland by way of Cameroon, Zimbabwe.
On arrival in Zimbabwe, the appellant was kept in the transit hall and the
next morning flown to Johannesburg South Africa, instead to Manzini,
Swaziland. On arrival in Johannesburg, the respondent was arrested and his
personal effects and briefcase containing $20,000.00 removed from him
(2017) 1 DJR 38

and never returned to him. He was deported to Zimbabwe where he spent

seven days in jail before he was flown to Nigeria.
Was there breach of contract?

The respondent as plaintiff sued the appellant, as defendant in the Federal

High Court, Lagos Division, claiming in paragraph 15 of his statement of
claim thus:
15. WHEREFORE the plaintiff claims the sum of N5,000,000.00 (Five
Million Naira from the defendant being general and special
damages as follows:
(a) Special Damages:

Particulars of special damages

(i) Cost of ticket i.e. 923 US Dollars or its Naira equivalent N80,
000.00
(ii) The sum of 20,000.00 US Dollars or its Naira equivalent, removed
from the defendant and unrefunded till date N 1,800,000.00
(iii) Cost of sundry personal effect removed by the defendant from
plaintiff N200, 000.00

(b) General Damages N2, 920,000.00

Total N5, 000.000.00

The plaintiff gave evidence in support of his case and tendered three
exhibits, viz exhibits A and B, airline tickets issued by the defendant,
exhibit C, receipt for foreign currency, $20,000.00

An employee of the defendant gave evidence for the defendant.

The learned trial Judge examined evidence. His Lordship said:

"Looking at exhibit A the defendant aircraft is indicated therein with the

symbols "UY" and the defendant thereon undertook to transport the
plaintiff by air from Lagos to Doula to Harare, Doula to Lagos.

Again, on exhibit B, the aircraft indicated with the symbols "ZC" undertook
to transport the plaintiff from Harare to Manzini, to Harare. DW1 who gave
evidence on oath stated that the symbol "ZC" does not belong to the
defendant aircraft and that the carrier on the second leg of the outward
journey routed Harare - Manzini - Harare is not their responsibility,
although the ticket was issued by the defendant".
(2017) 1 DJR 39

In finding if there was breach of contract by the appellant, the learned trial
Judge examined clauses 4 and 5, on conditions of contract in exhibit B

Clause 4 states that carriage to be performed by several successive carriers

is regarded as a single operation.

Clause 5 states that an air carrier issuing a ticket for carriage over the lines
of another air carrier does so as its agent.

The learned trial Judge then concluded that since the respondent was never
flown to Swaziland, the final destination of the respondent on the outward
journey on exhibit B, the appellant was in breach of contract: The Court of
Appeal agreed with the learned trial Judge. There are thus concurrent
findings of fact that the appellant was in breach of contract to fly the
respondent from Lagos to Manzini and back to Lagos.

In a considered judgment delivered on the 23rd of June, 2000, the learned

trial Judge Sanyaolu, J. (as he then was) concluded thus:

"In conclusion, I hereby enter judgment for the plaintiff against the
defendant in the sum of N580, 000.00 (five hundred and eighty thousand
naira) made up as follows:
(i) N80, 000.00 being the cost of ticket
(ii) N500, 000.00 as general damages
Total N580, 000.00

The defendant appealed, and the plaintiff cross-appealed to the Court of

Appeal. In the Court of Appeal, the defendant in the trial court was the
appellant/cross-respondent; while the plaintiff was the respondent/cross
appellant.

{Issues}:
1. Whether the subject matter of the case was exclusively governed by
the Warsaw Convention, 1955 (as amended).

2 Whether the award of N500, 000.00 as general damages was

sustainable having regard to the Warsaw Convention, 1955 (as
amended), the findings of the trial court and the evidence adduced
at the trial.

3. Whether the Court of Appeal was right to have awarded the sum of
20,000.00 US Dollars as special damages when the remedy was
already covered by the provision of the Warsaw Convention.
(2017) 1 DJR 40

4. Whether the award of 20,000.00 US Dollars as special damages by

the Court of Appeal was supportable in law, having regard to the
evidence adduced at the trial and the findings of the trial court.

5. Whether the Court of Appeal was right in discountenancing the

appellant's reply brief.

{Held - summary} (Unanimously dismissing the appeal):

1. Warsaw Convention 1955 (as amended) in Nigeria - Application
and objective of status of
The Warsaw Convention as amended at the Hague in 1955 is
applicable in Nigeria by virtue of the Carriage by Air (Colonies,
Protectorates and Trust Territories) Order, 1953. It came into
operation on 1st January, 1954. In view of the provision of section
315 of the 1999 Constitution, it is an existing law. The Convention
as incorporated into Nigerian law has the force of law in relation to
matters which relate to the rights and liabilities of carriers. The
object of the Convention is to provide a uniform international code
in the areas which it covers. All countries that are signatories to it
apply it without recourse to their respective domestic laws.

2. Duty on carrier to deliver ticket to passenger

By virtue of Article 3(1) (c) of the Warsaw Convention, for the
carriage of passengers, the carrier must deliver to a passenger a
ticket which shall contain the agreed stopping places, provided that
the carrier may reserve the right to alter the stopping places in case
of necessity and that if it exercises that right, the alteration shall not
have the effect of depriving the carriage of its international
character.

3. Transit visa - when required by a passenger and whose duty to

obtain
A transit visa is issued to a passenger by a country through which a
plane would fly and land, enroute the final destination. The country
in which the passenger's journey terminates does not issue transit
visa. It is the duty of the passenger to get a transit visa. It is also the
duty of the airline to refuse to take a passenger on board who has
not got a transit visa. Airlines insist on passengers having transit
visas but that only applies if the airline informs the passenger on the
stops that would be made before the final destination of the aircraft
and in effect the passenger. In the instant case, the appellant never
told the respondent that he needed a transit visa for South Africa.
(2017) 1 DJR 41

This was so because the appellant was not going to stop over in
South Africa enroute Swaziland.

4. Airline - When liable for damages occasioned by delay in carriage

of passenger, luggage or goods
By virtue of Articles 19 and 20 of the Warsaw Convention, a carrier
is liable for damage occasioned by delay in the carriage by air of
passengers, luggage or goods. However, the carrier is not liable if
he proves that he and his servants or agents took all necessary
measures to avoid the damage or that it was impossible for him or
them to take such measures.

5. Limit of liability of carrier in carriage by air

By virtue of Article 22 of the Warsaw Convention, in the carriage
of passengers, the liability of the carrier for each passenger is
limited to the sum of 125,000 francs. Where, in accordance with the
law of the courts seised of the case, damages may be awarded in the
form of periodical payments, the equivalent capital value of the
payments shall not exceed 125,000 francs, However, by special
contract, the carrier and the passenger may agree to a higher limit
of liability. In the carriage of registered luggage and of goods, the
liability of the carrier is limited to the sum of 250 francs per
kilogram, unless the consignor has made, at the time when the
package was handed over to the carrier, a special declaration of the
value at delivery and has paid a supplementary sum if the case so
requires. In that case, the carrier will be liable to pay a sum not
exceeding the declared sum, unless he proves that that sum is
greater than the actual value to the consignor at delivery. As regards
objects of which the passenger takes charge himself, the liability of
the carrier is limited to 5,000 francs per passenger.

6. Aviation matters - Exclusive jurisdiction of Federal High Court

over
The Federal High Court has exclusive jurisdiction over aviation
related causes of action. A plaintiff would have a valid claim if his
suit is commenced within two years from the date of arrival at his
destination or from the date on which the aircraft ought to have
arrived or from the date the flight ended.

7. Relationship between documentary and oral evidence -

Documentary evidence always serves as a hanger from which to
assess oral testimony. In the instant case, exhibits "A" and "B" were
the airline tickets bought by the respondent. The exhibits exposed
(2017) 1 DJR 42

the oral testimony of DW1 as unreliable. It was never agreed by the

parties that the appellant would fly the respondent to Swaziland
through South Africa. The agreement was as in exhibits "A" and
"B".

8. Unchallenged evidence - Treatment of

Where evidence given by a party in proceeding is not challenged by
the adverse party who had the opportunity to do so, the court ought
to act positively on the unchallenged evidence before it.

{Held - Lead Judgment} Delivered by Rhodes -Vivour J.S.C

The respondent as plaintiff sued the appellant, as defendant in the Federal
High Court, Lagos Division, claiming in paragraph 15 of his statement of
claim thus:
15. WHEREFORE the plaintiff claims the sum of N5,000,000.00 (Five
Million Naira from the defendant being general and special
damages as follows:
(a) Special Damages:

Particulars of special damages

(i) Cost of ticket i.e. 923 US Dollars or its Naira equivalent N80,
000.00
(ii) The sum of 20,000.00 US Dollars or its Naira equivalent, removed
from the defendant and unrefunded till date N 1,800,000.00
(iii) Cost of sundry personal effect removed by the defendant from
plaintiff N200, 000.00

(b) General Damages N2, 920,000.00

Total N5, 000.000.00

The plaintiff gave evidence in support of his case and tendered three
exhibits, viz exhibits A and B, airline tickets issued by the defendant,
exhibit C, receipt for foreign currency, $20,000.00

An employee of the defendant gave evidence for the defendant. In a

considered judgment delivered on the 23rd of June, 2000, the learned trial
Judge Sanyaolu, J. (as he then was) concluded thus:

"In conclusion, I hereby enter judgment for the plaintiff against the
defendant in the sum of N580, 000.00 (five hundred and eighty thousand
naira) made up as follows:
(i) N80, 000.00 being the cost of ticket
(ii) N500, 000.00 as general damages
(2017) 1 DJR 43

Total N580, 000.00

The defendant appealed, and the plaintiff cross-appealed to the Court of

Appeal. In the Court of Appeal, the defendant in the trial court was the
appellant/cross-respondent; while the plaintiff was the respondent/cross
appellant.

The appellant/cross respondent formulated two issues. They are

1. Whether the learned trial Judge was right in awarding general
damages of N500, 000.00 having regard to the nature of the
plaintiff's/respondent's claim in the court below (being one of
carriage by air) and having regard to his earlier findings in the same
judgment.

2. Whether the award of special damages of N80, 000.00 by the court

below as the refund of the cost of the plaintiff/respondent's airway
ticket was right having regard to the weight of evidence adduced
before the court below and the provisions of the Warsaw
Convention 1929 as amended at the Hague 1955.

The respondent/cross-appellant filed a lone issue for consideration. It reads:

1. Whether the trial court was right against the background of the
evidence adduced at the trial and all applicable laws in awarding
N80, 000.00 and N500.000.00 respectively as special and general
damages in favour of the respondent against the appellant.

As regards the cross-appeal, the respondent/cross-appellant formulated two

issues. Both issues were adopted by the appellant/ cross respondent. The
issues are:
1. Whether the respondent at the trial proved his claim for the sum of
$20,000 or its naira equivalent to be entitled to judgment on that
sum.

2. Whether it was legally mandatory on the respondent having regard

to the nature of the respondent's claim to join the South African
authorities as party to this suit to succeed in the claim for $20,000
or its naira equivalent of N 1, 800,000.

The court of Appeal dismissed the appeal and in the penultimate paragraph
of the judgment found for the cross-appellant as follows:

"The cross-appeal having succeeded, the appellant/ cross-respondent is

accordingly ordered to pay the cross-appellant/respondent $20,000, a
(2017) 1 DJR 44

category of special damages claimed against the former by the latter which
claim has been proved to have naturally stemmed from the breach of the
contract between the two and on costs the appellant/cross-respondent was
ordered to pay N10, 000.00 to the respondent/cross-appellant."

This appeal is from that judgment. Briefs were filed and exchanged in
accordance with Rules of this court. The appellant filed its brief on the 3rd
of October, 2006. The respondent did not file a brief, and was absent and
unrepresented at the hearing of this appeal on the 9th of November, 2010.

Learned counsel for the appellant, Mr. A.A. Agbabiaka, SAN formulated
five issues for determination. They are:
1. Whether the subject-matter of this action being one of international
carriage of passengers and goods by air is not exclusively governed
by the Warsaw Convention, 1955 (applicable in Nigeria by virtue
of the (Colonies Protectorates and Trust Territories) Order 1953,
Vol. XI of the 1958 Laws of the Federation of Nigeria.

2. Whether the award of N500, 000.00 as general damages upheld by

the learned Justices of the Court of Appeal is sustainable having
regard to the provisions of the Warsaw Convention (as amended at
the Hague, 1955), the findings of the trial Judge and the evidence
adduced at the trial.

3. Whether the learned Justices of the Court of Appeal could rightly

award a common law remedy of special damages in the sum of US
$20,000.00 to the respondent when the said remedy is already
covered by the statutory provision of the Warsaw Convention.

4. Whether the award of $20,000.00 as special damages by the learned

Justices of the Court of Appeal is supportable in law having regard
to the evidence adduced at the trial and the findings of the trial
Judge.

5. Whether the learned Justices of the Court of Appeal were right in

discountenancing the appellant's reply brief for allegedly containing
further arguments in respect of the appellant's main appeal.

In deciding this appeal, I shall consider the 2nd to 5th issues formulated by
the appellant, moreso as the respondent did not file a brief, and was absent
and unrepresented at the hearing of the appeal on the 9th November, 2010.
By virtue of Order 6 rule 9 of the Supreme Court Rules, this court will
proceed with the hearing of the appeal if the respondent failed to file his
(2017) 1 DJR 45

respondent's brief and also failed to appear in court on the hearing date (as
is the case in this appeal). Not filing respondent's brief in no way puts the
appellant at an advantage, since the judgment of the Court of Appeal is in
favour of the respondent. The appellant still has to show that the judgment
of the Court of Appeal was wrong. Before going any further, I must
determine if concurrent findings of fact by the two courts below, that there
was breach of contract by flying the respondent to South Africa instead of
to Manzini, Swaziland is correct.

The Facts:
The facts are as plain as plain can be: The respondent is a business man. He
had a business appointment in Manzini Swaziland, and so he went to the
appellant's office at Oko Awo Close, Victoria Island, Lagos. There he was
told that the appellant flies to Manzini, Swaziland. Two tickets exhibits A
and B were sold to the respondent by agents of the appellant. The tickets
were routed as follows: Exhibit A - Lagos to Doula. Cameroon to Harare,
Zimbabwe, return on the same route to Lagos. Exhibit B - Harare,
Zimbabwe to Manzini, Swaziland, and back to Harare.

The respondent purchased both tickets for the sum of 923 (United States
Dollars). According to exhibits A and B the flight was scheduled to depart
Lagos on 27/2/96 to Manzini, Swaziland by way of Cameroon, Zimbabwe.
On arrival in Zimbabwe, the appellant was kept in the transit hall and the
next morning flown to Johannesburg South Africa, instead to Manzini,
Swaziland. On arrival in Johannesburg, the respondent was arrested and his
personal effects and briefcase containing $20,000.00 removed from him
and never returned to him. He was deported to Zimbabwe where he spent
seven days in jail before he was flown to Nigeria.
Was there breach of contract?

The learned trial Judge examined evidence. His Lordship said:

"Looking at exhibit A the defendant aircraft is indicated therein with the

symbols "UY" and the defendant thereon undertook to transport the
plaintiff by air from Lagos to Doula to Harare, Doula to Lagos.
Again, on exhibit B, the aircraft indicated with the symbols "ZC" undertook
to transport the plaintiff from Harare to Manzini, to Harare. DW1 who gave
evidence on oath stated that the symbol "ZC" does not belong to the
defendant aircraft and that the carrier on the second leg of the outward
journey routed Harare - Manzini - Harare is not their responsibility,
although the ticket was issued by the defendant".
(2017) 1 DJR 46

In finding if there was breach of contract by the appellant, the learned trial
Judge examined clauses 4 and 5, on conditions of contract in exhibit B

Clause 4 states that carriage to be performed by several successive carriers

is regarded as a single operation.

Clause 5 states that an air carrier issuing a ticket for carriage over the lines
of another air carrier does so as its agent.

The learned trial Judge then concluded that since the respondent was never
flown to Swaziland, the final destination of the respondent on the outward
journey on exhibit B, the appellant was in breach of contract: The Court of
Appeal agreed with the learned trial Judge. There are thus concurrent
findings of fact that the appellant was in breach of contract to fly the
respondent from Lagos to Manzini and back to Lagos. It is very well settled
that concurrent findings by the trial court and the Court of Appeal would
not be disturbed by the Supreme Court except there has been exceptional
circumstances to disturb those findings such as:
1. The findings cannot be supported by evidence, or are perverse.

2. There is miscarriage of justice or violation of law or procedure. See:

Okonkwo v. Okonkwo (1998) 10 NWLR (Pt.571) p. 554; Ogbu v.
State (1992) 8 NWLR (Pt. 259) p. 255; Igago v. State (1999) 14
NWLR (Pt.637) p.1

On the purchase of airline tickets, exhibits A and B by the

respondent, a contract between the parties was established, and in
the exhibits can be found the contract of the parties: By the terms in
exhibits A & B the appellant agreed to fly the respondent from
Lagos to Harare and back to Lagos, and as agent of "ZC" the carrier
on the second leg of the outward journey, from Harare to Manzini
and back to Harare. The appellant was responsible for the
respondent being flown to Manzini, Swaziland.

In view of the contents of clauses 4 and 5 of exhibit B, the authority

of the appellant to enter into contract on behalf of "ZC" is implied
from the circumstances of the case consequently the agent, (the
appellant) is liable, and clearly responsible for the breach of
contract. Before I draw the curtains on breach of contract by the
appellant I must examine the pleadings.

On the route agreed by the parties, the respondent averred in paragraph 5

of the statement of claim thus:
(2017) 1 DJR 47

5. The plaintiff accepted the defendants offer aforesaid and paid the
defendant the sum of 923 US Dollars being the cost of the
defendants' ticket to Swaziland. The defendant represented that the
established route aforesaid shall strictly be followed. The plaintiff
contend that the defendant informed him that a transit visa is
required passage through the Republic of South Africa and as such
the defendant would not make a stopover at South Africa enroute
Swaziland, the plaintiff's destination. The plaintiff accepted the
arrangement as he did not have a South Africa transit visa.

In reply, paragraphs 6 and 7 of the further amended statement of defence

reads:
6. the defendant denies paragraph 5 of the statement of claim save for
the averment that the plaintiff paid the sum of 923 US Dollars as
the cost of the defendant's ticket and the defendant puts the plaintiff
to the strictest proof of all the other averments in the said paragraph.

7. In further reply to paragraph 5 of the statement of claim, the

defendant states that it is not the responsibility of the defendant
under the contract for carriage of goods and passengers by Air as
governed by the Warsaw Convention as amended at the Hague,
1955 to obtain transit or any other regular visa for passengers or to
guarantee that the passenger would be granted entry into the country
of transit by the government thereof.

The material issue for determination in the pleadings laid out above is
whether the appellant informed the respondent that he did not need a South
Africa transit visa because the appellant would not fly to South Africa.
In evidence-in-chief the respondent said:

" ... We did not agree to be taken to Johannesburg ... " And in cross-
examination he said:

" ... South Africa was never mentioned to me so the issue of passing through
South Africa does not arise….”

In evidence in chief DWl, Rose Jumbo said:

"It is not correct that we did not inform him of the transit visa to South
Africa, we informed the plaintiff about the issue of transit visa before he
boarded the aircraft. It is the duty of the passenger to get a transit visa. We
go to South Africa."
(2017) 1 DJR 48

Under cross-examination, DWl said:

"The final destination of the plaintiff was Johannesburg. There is no
Johannesburg in exhibit A and B ... I would not know whether the problem
of the plaintiff arose in Johannesburg... "

In one breath, DW1 says the respondent was informed that he needs a
transit visa to South Africa, while in the next breath she says the destination
of the respondent is Johannesburg. A transit visa is issued to a passenger
by a country through which a plane would fly/land, enroute the final
destination. Transit visa is not issued by the country in which the
passengers journey terminates. It is true that it is the duty of the passenger
to get a transit visa, and it is also the duty of the airline to refuse to take a
passenger on board who has not got a transit visa,

Documentary evidence always serves as a hanger from which to assess oral

testimony. See: Kimdey v. Mil. Gov. of Gongola State (1988) 2 NWLR (Pt.
77) p. 445; Omoregbe v. Lawani (1980) 3-4 SC p. 108.

Exhibits A and B are the airline tickets bought by the respondent. The final
destination of the respondent is Manzini in Swaziland. The said exhibit
exposes oral testimony of DW1 as unreliable. It was never agreed by the
parties that the appellant would fly the respondent to Swaziland, through
South Africa. The agreement was as in exhibits A and B.

On the close of pleadings material facts are averred by the plaintiff and
denied by the defendant. That the defendant will put the plaintiff to the
strictest proof (as averred in paragraph 6 of the further amended statement
of defence) is bad. There must be a clear denial or non-admission.

There is an admission by inference that the plaintiff was told that he did not
need a South Africa transit visa because the plane would not stop over in
South Africa. In the circumstances, the facts stated in paragraph 5 of the
statement of claim are conclusive against the defendant.

Furthermore, airlines insist on passengers having transit visas, but that only
applies if the airline informs the passenger on the stops that would be made
before the final destination of the aircraft, (and in effect the passenger). The
respondent was never told by the appellant that he needs a transit visa for
South Africa. This was so because the appellant was not going to stop over
in South Africa enroute Swaziland (see Exhibits A and B).

I must at this stage refer to the provisions of Article 3(i) (c) of the
Convention. It reads:
(2017) 1 DJR 49

"3(1) for the carriage of passengers the carrier must deliver a passenger
ticket which shall contain the following particulars:

(c) the agreed stopping places, provided that the carrier may reserve the
right to alter the stopping places in case of necessity, and that if he
exercises that right the alteration shall not have the effect of
depriving the carriage of its international character."

My Lords, exhibits A and B are the passenger tickets. On them can be seen
the agreed stopping places. The tickets were/are routed as follows: Exhibit
A - The flight shall commence from Lagos, Nigeria, with stops in Douala,
Cameroon, and then on to Harare, Zimbabwe. Exhibit B is from Harare to
Manzini and back to Harare.

There was no evidence before the learned trial Judge that there was any
reason to deviate from the agreed stopping places. Flying to Johannesburg,
South Africa amounts to willful misconduct that the appellant has been
unable to explain. The appellant was in breach of contract and created the
situation which led to the loss of the respondent's brief case, and his
deportation to Nigeria after spending eight nights in jail. In the absence of
justification for flying to Johannesburg, South Africa, there is a clear breach
of contract since the respondent was never flown to Manzini, Swaziland.
The appellant is responsible for all that happened to the respondent in South
Africa, and so concurrent findings by the two courts below that the
appellant was in breach of contract is affirmed.

The Warsaw Convention as amended at the Hague 1955 is the relevant

Legislation in this case. It is applicable in Nigeria by virtue of the Carriage
by Air (Colonies, Protectorates and Trust Territories) Order, 1953. It came
into operation on the 1st day of January 1954, and it can be found in the
Laws of the Federation of Nigeria and Lagos 1958 Vol. XI.

In view of the provisions of section 315 of the Constitution it is an existing

law. The Convention as incorporated in Nigeria Law, has the force of Law
in relation to matters which relate to the rights and liabilities of carriers.

The Federal High Court has exclusive jurisdiction over aviation related
causes of action. See Section 251 (l) K of the Constitution; and a plaintiff,
claimant would have a valid claim if his suit is commenced within two
years from the date of arrival at his destination or from the date on which
the aircraft ought to have arrived or from the date the flight ended. See
Article 29 of both Legislations.
(2017) 1 DJR 50

The Nigerian Legislation is ipsissima verba the Convention, so all reference

to the Legislation shall be to the Convention. Chapter III of the Nigerian
Legislation is titled "Liability for the carrier" and it contains Articles 17 to
30.

A brief summary is necessary at this stage.

Article 17 deals with liability for death or injury suffered by the passenger.
Article 18 deals with the carriers liability for destruction, loss, or damage
to registered baggage or cargo.

Article 19 reads:
"The carrier is liable for damage occasioned by delay in the carriage by air
of passengers, luggage or goods."

Article 20 provides that:

"The carrier is not liable if he proves that he and his servants or agents have
taken all necessary measures to avoid the damage or that it was impossible
for him or them to take such measures."

Article 21 deals with cases where the damage was caused or contributed to
by the injured person's negligence,

Article 22 makes provision for the limitation of the liability of the carrier
for each passenger and for registered baggage and cargo. It reads:
(1) In the carriage of passengers the liability of the carrier for each
passenger is limited to the sum of 125,000 francs. Where, in
accordance with the law of the courts seised of the case, damages
may be awarded in the form of periodical payments, the equivalent
capital value of the said payments shall not exceed 125,000 francs.
Nevertheless, by special contract, the carrier and the passenger may
agree to a higher limit of liability.

(2) In the carriage of registered luggage and of goods the liability of the
carrier is limited to the sum of 250 francs per kilogram, unless the
consignor has made, at the time when the package was handed over
to the carrier, a special declaration of the value at delivery and has
paid a supplementary sum if the case so requires, In that case the
carrier will be liable to pay a sum not exceeding the declared sum,
unless he proves that that sum is greater than the actual value to the
consignor at delivery.

(3) As regards objects of which the passenger takes charge himself the
liability of the carrier is limited to 5,000 francs per passenger.
(2017) 1 DJR 51

(4) The sums mentioned above shall be deemed to refer to the French
franc consisting of 651/2 milligrams gold of millesimal fineness
900. These sums may be converted into any national currency in
round figures.

Article 23 provides:
"Any provision tending to relieve the carrier of liability or to fix a lower
limit than that which is laid down in this convention shall be null and void."

Article 25 states that:

"(1) The carrier shall not be entitled to avail himself of the provisions of
this Convention which exclude or limit his liability, if the damage
is caused by his willful misconduct or by such default on his part as
in accordance with the law of the court seized of the case, is
considered to be equivalent to willful misconduct.

(2) Similarly the carrier shall not be entitled to avail himself of the said
provisions, if the damage is caused as aforesaid by any agent of the
carrier acting within the scope of his employment."

The object of the convention is to provide a uniform international code in

the areas with which it covers. All countries that are signatories to it apply
it without recourse to their respective domestic law. A close examination
of issues 2 to 4 for determination questions when an award of damages in
action for breach of contract of International carriage by air can be made.

It is well settled that the appellant was in breach of contract as principal and
agent in not flying the respondent to Manzini, Swaziland, (exhibits A and
B). It is reasonably foreseeable that a passenger (the respondent) arriving
in South Africa without a transit visa would be arrested, with grave
consequences for the passenger. Consequently, the act of the appellant
flying the respondent to South Africa with no justifiable reason for doing
so and knowing fully well that the respondent did not have a transit visa,
apart from being a clear breach of the agreed route, it amounts to a negligent
breach of contract. A willful misconduct in the extreme.

By the provision of Article 25 of the Convention a carrier (the appellant)

loses its entitlement to rely on the limit set on its liability by Article 22(1)
where a briefcase containing $20,000 and valuables of the respondent is
taken away (and never returned) by South African Immigration officials as
a result of the willful act by the appellant, in flying the respondent to South
Africa, when it knew that the respondent did not have a South African
(2017) 1 DJR 52

transit visa. When the carrier commits willful misconduct, the respondent
is entitled to more damages than the limit set in Article 22 of the
Convention.

Oshevire v. British Caledonian Airways Ltd. (1990) 7 NWLR (Pt.163)

p.507 presents similar reasoning. In that case, it was held that where a
parcel containing valuable cargo is stolen as a result of concerted action
taken within the scope of their employment by one or more employees of
the carrier who also most probably stole the documents, the plaintiff would
be entitled to more damages than the limit in Article 22 supra, since the
carrier had committed willful misconduct. I am highly swayed by this
reasoning. Indeed, in all other cases spelt out in the Convention the limits
on liability must be followed but where there is breach of contract of such
a magnitude that it amounts to a willful act, a willful misconduct the limits
are no longer applicable. In my view, there was no justification whatsoever
for flying the respondent to South Africa.

In view of my line of thought, issues 2, 3, 4 and 5 would now be considered.

Issue one has in effect been answered. Further comments on it would
amount to repetition.

Issue 1:
Whether the award of N500, 000 as general damages upheld by the learned
Justices of the Court of Appeal is sustainable having regard to the
provisions of the Warsaw Convention (as amended at the Hague 1955), the
findings of the trial Judge and the evidence adduced at the trial.

Learned counsel for the appellant observed that his submissions are not on
whether the sum of N500, 000 general damages is adequate, but whether
the sum is justified under the provisions of the Warsaw Convention, and
evidence led in court. He submitted that the provisions of Article 25 of the
Convention does not apply because the act of the appellant flying to South
Africa does not amount to willful misconduct. Reference was made to:
Oshevire v. British Caledonian Airways Ltd. (1990) 7 NWLR (Pt.163)
p.507; Harka Air Services v. Keazor (2006) 1 NWLR (Pt.960) p.160.

In conclusion learned counsel observed that before the trial court there was
insufficient evidence to support the award of N500.000 as general damages,
and the affirmation of the award by the Court of Appeal amounts to a
travesty of justice.

He urged us to determine this issue in favour of the appellant. In arriving at

the award of N500, 000.00 the learned trial Judge said:
(2017) 1 DJR 53

"Based on the authorities which I have earlier referred to in this judgment

and coupled with the facts of the present case, I hold that the plaintiff is
entitled to some compensation as general damages. In the circumstances, I
make an award of N500, 000 as general damages in favour of the plaintiff'.

The Court of Appeal agreed with the learned trial Judge's reasoning and
observed that the Court of Appeal would not interfere with a trial court's
order for damages that had not been shown to have proceeded upon a wrong
principle of law. The court went on:

"N500, 000 compensation to the respondent for the trauma of his arrest and
detention by the South African Authorities and for the loss of earning
because of such incarceration is manifestly neither too small nor too big to
be revisited by this court. The award does not constitute a further
compensation to one accommodated by other reliefs..."

Once breach of contract is established, damages follow. General damages

are thus losses that flow naturally from the adversary and E it is generally
presumed by law, as it need not be pleaded or proved. See U.B N. Ltd. v
Odusote Bookstores Ltd. (1995) 9 NWLR (PtA21) p.558

General damages is awarded by the trial court to assuage a loss caused by

an act of the adversary. An appeal court is always loath to interfere with
such award, but will be compelled to do so:
(a) Where the trial Judge acted under a misapprehension of facts, or
law;
(b) Where he failed to take into account relevant matters;
(c) Where the amount awarded is too low or too high;
(d) Where failing to interfere would amount to injustice.

Damages are awarded to restore the plaintiff as far as money can to the
position he would have been if there had been no breach. That is to say to
compensate the plaintiff for the loss. See: Shell BP v. Jammal Engineering
Ltd. (1974) 4 SC p.33

Evidence before the trial judge justifies an award of general damages. The
respondent was never flown to Manzini, Swaziland and so he was unable
to keep his business appointment. Instead he was flown to South Africa
where his brief case and valuables were taken from him and never returned.
He was put in jail twice, for a night in South Africa and seven nights in
Zimbabwe where he was deported to Lagos, Nigeria. The above paints a
harrowing and traumatic experience for the respondent. I find the award of
(2017) 1 DJR 54

N500, 000 adequate in the circumstances and it is sustainable in view of

Article 25 of the Convention which removes the limit of the carriers
liability.

Issues 3 and 4, now renumbered 2 and 3 would be taken one after the
other.

Issue 2:
Whether the learned Justices of the Court of Appeal could rightly award a
common law remedy of special damages in the sum of $20,000 to the
respondent when the said remedy is already covered by the statutory
provision of the Warsaw Convention.
Issue 3:
Whether the award of $20,000 as special damages by the learned Justices
of the Court of Appeal is supportable in Law, having regard to the evidence
adduced at the trial and the findings of the trial Judge.

On issue 2, learned counsel for the appellant observed that where a common
law relief is enshrined in a statute, resort must be had only to the statute and
not the appropriate legal remedy/relief. Relying on: Patkun Industries
(Nig.) Ltd. v. Niger Shoes Manufacturing Co. Ltd. (1988) 5 NWLR (Pt. 93)
138; Cameroon Airlines v. Abdul-Kareem (2003) 11 NWLR (Pt.830) p1,
contending that the award of $20,000 special damages was wrong in view
of the limits spelt out in Article 22 of the Convention.

On issue 3, he observed that the loss of $20,000 was not established by trial
court. He argued that the respondent has to prove his actual loss of the said
sum notwithstanding that a breach of contract was established, contending
that special damages must be proved by credible and compelling evidence.
Concluding, he urged this court to decide this issue in favour of the
appellant since the respondent did not prove that the sum was lost by
credible and compelling evidence.

On issue 2, the submission of learned counsel for the appellant that where
a common law relief is enshrined in a statute, resort must be had only to the
statute is correct. Article 22 of the Convention makes provision for
limitation of the carrier (appellant) in damages to 125,000 francs. Article
25 of the same Convention is clear that the carrier would not be entitled to
avail itself of Article 22 if the claim arose from willful misconduct of the
carrier. In view of the fact that the appellant did not comply with the
provision of Article 3(i) (c) of the Convention, earlier alluded to and
explained the award of $20.000 as special damages was correct.
(2017) 1 DJR 55

In the circumstances the award of $20,000 was made in accordance with

the provisions of Article 25 of the Convention, because the appellant's act,
flying to South Africa amounts to willful misconduct. A breach of contract.
The award was made in accordance with the Convention (a statute).

On issue 3, evidence led in the trial court by the respondent in support of

his claim of $20,000 as special damages runs as follows:
.
"...the security officers came in and took me to a room. They asked for my
luggage and my brief case containing my wrist watch. I was told that as a
Nigerian I was unwanted in South Africa...
"
His Lordship reasoned thus:
"It follows from the evidence before the court that the plaintiff's briefcase
containing his wrist watch and money were removed by South African
immigration authorities who have not been made parties to this case. This
was also confirmed by PW 1 under cross examination. I therefore cannot
make an award on this head of claim.

The Court of Appeal thought differently. That court said:

"Since breach of the contract between him and the appellant had
successfully been proved, the court on the authorities cannot justly decline
redressing any wrong that directly and reasonably stemed from the breach.
The trial court's refusal to accede to the respondent's prayers regarding the
$20,000, it held established and flowing from the breach is indeed baffling.
Such a decision is untenable in law. This conclusion determines the Court
of Appeal which invariably has to and is determined in favour of the cross-
appellant".

And with that the cross appeal succeeded. The sum of $20,000 was ordered
to be paid to the respondent. It is important at this stage that I examine
pleadings and evidence led to see if the court of Appeal was correct, but I
must observe that special damages are for a fixed sum, unlike general
damages which are at large, and awarded entirely at the discretion of the
Judge. To succeed in a claim for special damages a party must plead,
particularise, or itemise it. It must be claimed specially and proved strictly.
The respondent pleaded special damages and particularised it in paragraph
15(a) of 8 his pleadings.

In support of the claim for $20,000 the respondent averred in paragraph 9

of this pleadings thus:
(2017) 1 DJR 56

9. The plaintiff further avers that to his shock and chagrin, the
defendant instead of flying him to his destination conspired with
South African officials and got his travelling papers, his travellers
cheques and cash amounting to $20,000 seized and converted. The
plaintiff was detained by the defendant and its collaborators and was
flown to Lagos, Nigeria after several days of detention at Harare,
Zaire and Cameroon.

Paragraphs 17 and 18 of the further amended statement of defence is the

response. It reads:
17. The defendant denies paragraph 9 of the statement of claim and puts
the plaintiff to the strictest proof of all the averments therein.

18. further to paragraph 17 above and in further reply to paragraph 9 of

the statement of claim, the defendant states that it has no business
with and did not conspire with the South African officials and/or
South Africa Immigration Services of Johannesburg airport or any
other airport whatsoever, it being a carrier and could therefore not
have had any authority to impound and/ or convert the plaintiff
travelling papers, travelers cheques and cash as alleged or at all.

Averments in pleadings are facts as perceived by the party relying on them.

There must be oral or/and documentary evidence to show that the facts
pleaded are true. Consequently, pleadings without evidence to support it
are worthless. In evidence in chief the respondent said:

'I lost my $20.000 and the ticket I bought from them which did not serve
me any purpose and the important documents I had with me including my
passport..."

Cross-examination is on pages 47 to 48 of the record of appeal. The

respondent was not cross-examined on the loss of $20,000. The position of
the law is well settled that where a party testifies on a material point, in this
case, the loss of $20,000, the appellant ought to cross-examine him, or show
that his testimony is untrue. Where, as in this case neither was done, the
court would readily conclude that the adverse party, in this case the
appellant does not dispute the fact. The sole witness for the defendant's
(appellant) evidence is on pages 50 to 51 of the record of appeal. Nowhere
in the testimony did the witness deny the loss of the (plaintiff's/
respondent's) $20,000 or support its averments in paragraph 18 of its
statement of defence. Since no evidence was led in support of the averments
in paragraph 18 of the further amended statement of defence, the entire
paragraph is abandoned.
(2017) 1 DJR 57

Furthermore, I must state that after pleadings are settled a material fact is
affirmed by one of the parties, but denied by the other. The question raised
between the parties is an issue of fact. To raise an issue of fact there must
be a proper traverse. That is to say traverse must be made either by a denial
or non-admission either expressly or by necessary implication. See: Lewis
and Peat Ltd. v Akhimien (1976) 1 All NLR (Pt. 1) p.469.

A feeble denial by the appellant in its pleadings was not supported by

compelling evidence or any evidence.

My Lords, it is well settled that where evidence given by a party in

proceedings is not challenged by the adverse party who had the opportunity,
to do so, the court ought to act positively on the unchallenged evidence
before it.
Odulaja v. Haddad (1973) 11 SC p. 357;
Nwabuoku v. Ottih (1961) 2 SCNLR p. 232

Decisions of this court are clear on this point. The unchallenged testimony
of the respondent, not challenged by the appellant, that his briefcase
containing $20.000 and some valuable items was taken away from him by
South African Immigration Officials and never returned to him is
affirmative evidence that respondent's claim for special damages for
$20,000 is justified since the appellant's act of flying the respondent to
South Africa without justification was responsible for the loss.

Finally, the reasoning of the learned trial Judge that the award of $20,000
cannot be made because the South African Immigration Officials were not
made parties is strange in view of the fact that non-joinder of a party cannot
defeat a claim. It is well settled that it is the duty of the plaintiff to sue all
relevant or interested parties, but if the plaintiff fails to do so it does not
mean that his action would fail. See: M. Onayemi v. O. Okunubi & Anor.
(1966) NMLR p.50

The learned trial Judge rightly held that the appellant as agent is responsible
for the acts of a disclosed principal (Airline designated ZC) for the flight
from Harare to Manzini and back to Harare. The appellant is a relevant and
necessary party in the absence of the principal. There was thus no need to
make South African Immigration Officials parties in this case. The
respondent has proved by unchallenged evidence which I find very credible
and compelling that he lost $20,000 when the appellant made a detour to
Johannesburg, South Africa in unexplained circumstances. The act of the
(2017) 1 DJR 58

appellant flying the respondent to South Africa was responsible for the loss.
The award of $20,000 by the Court of Appeal was correct.

Issue 4
Whether the learned Justices of the Court of Appeal were right in
discountenancing the appellant's reply brief for allegedly containing further
arguments in respect of the appellant's main appeal.

The grievance of the appellant arose from the findings of the

Court below when it said:
"Before going into the merits or demerits of the appeal and/or cross-appeal,
be it observed that appellant/ cross-respondent's brief apart from containing
arguments in respect of the cross-appeal also contains further arguments in
respect of the main appeal. These arguments are not in respect of such new
matters adduced in the respondent's/cross-appellant's brief in relation to the
main appeal which arguments appellant never had the opportunity of
addressing in his brief. No. These are further argument to those already
made and contained in appellant's brief regarding his appeal. Reply brief
must not provide such a facility and arguments of this type must be
discountenanced. It is so done here. See Order 6 rule 5 of the Court of
Appeal Rules, 1981 as amended and Iso v. Eno (1999) 2 NWLR (Pt.590)
p.204 Onuaguluchi v. Ndu (2000) 11 NWLR (Pt.679) p.519 A.C.B. Ltd v.
Apugo (1995) 6 NWLR (Pt.399) p.65."

Learned Counsel for the appellant observed that his reply brief was divided
into two sections, to wit:

Section A - Containing appellant's reply to respondent's brief on the main

appeal.

Section B - Containing the cross-respondent's brief in the cross-appeal.

He argued that what the Court of Appeal discountenanced are issues (i), (ii)
and (iii) in this appeal, contending that the court below denied themselves
the benefit of arguments on those issues. Order 6 rules 5 of the Court of
Appeal Rules provides for the filing of reply brief. There are a plethora of
cases which explain when a reply brief should be filed, but I shall restrict
myself to the recent decision of this court on that issue, as all the decisions
are saying the same thing.

In Longe v. First Bank of Nig. Plc (2010) 2-3 SC p.61; (2010) 6 NWLR
(Pt. 1189) 1 at 55 paras. C-E, it was held inter alia that:
(2017) 1 DJR 59

" ... A reply brief is necessary and usually filed when an issue of law or
argument raised in the respondent's brief calls for a reply. Where a reply
brief is necessary, it should be limited to answering new points arising from
the respondent's brief. Although, an appellant's reply brief is not mandatory
where a respondent's brief raises issues or points of law not covered in the
appellant's brief, an appellant ought to file a reply brief. ... It is not proper
to use a reply brief to extend the scope of the appellant's brief or raise issues
not dealt with in the respondent's brief."

A reply brief is only necessary when an issue of law or argument in the

respondent's brief calls for a reply.

Before the Court of Appeal were two appeals. The main appeal and a cross-
appeal. Parties on appeal present their respective cases by filing an
appellant's brief, and a respondent's brief. The appellant files a reply brief
when an issue of law or argument in the respondent's brief calls for a reply.

The role of the respondent in an appeal is to defend the judgment of the

trial court, but where the respondent is not comfortable with a finding (not
the entire judgment) in the judgment which he considers fundamental he
can only do so by filing a cross-appeal. The respondent in the main appeal
for the purposes of the cross-appeal, files a respondent/cross-appellant's
brief. The appellant in the main appeal must respond, and so he files an
appellant/cross-respondent's brief. If the respondent/cross-appellant seeks
to respond to an issue of law or argument in the appellant/cross-
respondent's brief he files a respondent's/cross-appellant's reply brief. It is
only after these processes are properly before the court, that the appeal can
be heard. Processes before the Court of Appeal were:
1. Appellant's brief (on page 91 of the record of appeal).

2. Respondent's brief (on page 146 of the record of appeal).

3. Cross-appellant's brief (on page 1533 of the record of appeal).

4. Appellant/cross-respondent's reply brief (on page 164 of the record

of appeal.

In the appellant's brief two issues were formulated. They are:

1. Whether the trial Judge was right to award N500, 000 general
damages.

2. Whether the award of N80, 000 (cost of respondent's airway ticket)

was correct.
(2017) 1 DJR 60

The respondent joined issues in his respondent's brief. No new issues or

point of law was raised and so the appellant did not file a reply brief. In the
respondent's/cross-appellant's brief two issues were formulated. They are:
1. Whether the respondent proved his claim for $20,000 special
damages;

2. Whether the respondent ought to join the South African authorities

before its claim for $20,000 can succeed.

Rather than file an appellant/cross-respondent's brief, an appellant/cross-

respondent's reply brief was filed. The legal argument in the brief is on
pages 168 to 178 of the record of appeal.

Pages 168 to 172 contain arguments that are for the sole purpose of
extending the scope of the appellant's brief. It is only arguments on pages
173 - 178 that answer the cross-appellant and the Court of Appeal
considered arguments on the issue of $20,000 special damages and the non
joinder of South African authorities before making a finding.

The appellant used his appellant's/cross-respondent's reply brief to extend

the scope of his appellant's brief, a situation of having two bites at the
appeal.

Issues 1, 2 and 3 in this appeal were very well considered by the Court of
Appeal before findings were made.

In conclusion, I would dismiss this appeal. There shall be no order on costs.

Onnoghen, Fabiyi, Adekeye and Galadima JJSC all concurred with the
lead judgement.

{Nigerian Cases Referred to}:

Cameroon Airlines v. Abdul-Kareem (2003) 11 NWLR (Pt. 830) 1
Harka Air Services v. Keazor (2006) 1 NWLR (Pt. 960) 160
Igago v. State (1999) 14 NWLR (Pt. 637) 1
Kimdey v. Mil. Gov. of Gongola State (1988) 2 NWLR (Pt. 77) 445
Lewis and Peat Ltd. v. Akhimien (1976) 1 All NLR (Pt. 1) 469
Longe v. F .B. N. Plc (2010) 6 NWLR (Pt. 1189) 1
Nwabuoku v. Ottih (1961) 2 SCN LR 232
Odulaja v. Haddad (1973) 11 SC 35
Ogbu v. State (1992) 8 NWLR (Pt. 259) 255
Okongwu v. N.N.P.C. (1989) 4 NWLR (Pt. 115) 296
(2017) 1 DJR 61

Okonkwo v. Okonkwo (1998) 10 NWLR (Pt. 571) 554

Omoregbe v. Lawani (1980) 3-4 SC 108
Onayemi v. Okunubi (1966) NMLR 50
Oshevire v. British Caledonian Airways Ltd. (1990) 7 NWLR (Pt. 163) 507
Oshin & Oshin Ltd. v. Livestock Feed Ltd. (1997) 2 NWLR (Pt.486) 162
Pan Bisbilder (Nig.) Ltd. v. F.B.N. Ltd. (2000) I NWLR (Pt. 642)684
Patkun Ind. Ltd. v. Niger Shoes Mtg. Co. Ltd. (1988) 5 NWLR (Pt. 93) 138
Shell BP Petroleum Dev. Co. v. Jammal Engineering Ltd. (1974)4 SC 33
U.B.N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558
Udeagu v. Benue Cement Co. Plc (2006) 2 NWLR (Pt. 965) 600

{Counsel}:
A. A. Agbabiaka, SAN - for the Appellant
Respondent not represented.
(2017) 1 DJR 62

Case Year: 2011

Judge: Adekeye, JSC
Counsel: Seriki, R Duru, J
Citations: Citation1 - (2017) 1 DJR 62 (SC) Citation2 - Citation3 -
SC.262/2005

Harka Air Services v Keazor (2017) 1 DJR 62 (SC)

Judgement delivered on June 17th 2011

{Brief}
- Aviation related causes of action
- Ubi Jus ibi remedium
- Aviation accident
- Warsaw Convention
- Misconduct on part of airline
- Liability of carrier to passengers
- Judgement in foreign currency
- Award of damages

{Facts}:
The respondent was a passenger on board the appellant's aircraft on a flight
from Kaduna to Lagos. There was bad weather at the point of embarkation
as a result of which all other commercial airlines cancelled their flights, and
there was none operating two hours before the respondent's aircraft took
off. The flight to Lagos was turbulent. At Lagos airport, the appellant's
aircraft was not given clearance to land when it reached the landing
threshold because it was above normal and regular height. The appellant's
pilot also did not respond to the Lagos Airport Air Traffic Controller on
whether he was landing or carrying out a missed approach. When the
appellant's aircraft eventually hit the runaway, it had passed more than 60%
of the entire runway, which made it impossible for it to make a safe landing.
The appellant's aircraft therefore crash-landed.

The respondent had a traumatic experience. He suffered serious injuries and

body pains. The respondent also lost his hand luggage and personal items.
He was later treated at the hospital when he sought a medical treatment.
The injuries the respondent suffered curtailed his day to day activities.

Consequently, he suffered loss professionally and financially. The

respondent was aggrieved by the injuries and loss he suffered. So, he sued
the appellant at the Federal High Court and claimed the sum of $5,000,000
(2017) 1 DJR 63

(Five Million United States of America Dollars) as general and special

damages.

In a considered judgment, the trial court found that there was willful
misconduct on the part of the appellant's pilot. Consequently, the trial court
awarded N1, 257,840 as special damages and costs of the suit to the
respondent.
The appellant was dissatisfied with the judgment of the trial court and it
appealed to the Court of Appeal.

The Court of Appeal also found that there was willful misconduct on the
part of the appellant but held that the trial court erred when it awarded
damages in naira when the respondent's claim was made in United States
of America Dollars. The Court of Appeal awarded $11,000,000 (Eleven
Thousand United States of America Dollars) as general damages and set
aside the award of special damages made by the trial court on the ground
that the claim for special damages was not proved.
The appellant was still dissatisfied. So, it appealed to the Supreme Court.

{Held Summary}: (Unanimously dismissing the appeal):

1. Warsaw Convention 1929 - Purpose of and whether applicable in
Nigeria
The purpose and intention of the Warsaw Convention, 1929 is to
remove the actions governed by the convention, as amended by the
Hague Protocol, from the uncertainty of the domestic laws of the
members States.
Likewise, the Warsaw Convention 1929, which was domesticated
as a Nigerian law by the Carriage by Air (Colonies, Protectorates
and Trust Territories) Order 1953, Vol. XI, Laws of the Federation
of Nigeria and Lagos, 1958, as amended by the Hague Protocol, is
part of the existing Laws in Nigeria pursuant to section 315 of the
Constitution of the Federal Republic of Nigeria, 1999, as it has not
been repealed by any law or declared invalid or incompetent by any
court of competent jurisdiction.

2 International treaty - Nature and status of

An international treaty is an international agreement which the high
contracting States have submitted to be bound by, and its terms and
provisions are above domestic legislation. Thus, any domestic
legislation in conflict with an intentional treaty is void.

3. Aviation accident - what is

(2017) 1 DJR 64

An aircraft accident is an occurrence associated with the operation

of an aircraft, which takes place between the time any person boards
the aircraft with the intention of flight until such time as all such
persons have disembarked, in which a person suffers a fatal or
serious injury as a result of being in the aircraft.

4. Liability of airline - When it arises

An airline's liability to its passengers or customers could arise as a
result of:
(a) Injury sustained on board an aircraft; or
(b) Death arising from the course of a journey; or
(c) Damage to or loss of goods; or
(d) Delayed or denied boarding; or
(e) Interactions in the course of preparing for or the actual conduct of
flight operations.

5. Exclusion clauses or limitation of liability - when it will not avail

carrier
Article 25 of the Warsaw Convention, 1929 stipulates that a carrier
is not entitled to avail himself of the provisions of the Convention
which exclude or limit his liability if:
(a) the damage is caused by his willful misconduct or by such default
on his part as in accordance with the law of the court seised of the
case, is considered to be equivalent to be willful misconduct;
(b) The damage is caused as aforesaid by any agent of the carrier acting
within the scope of his employment.

In other words, where there is default of such magnitude that it amounts to

a willful misconduct, the limits provided by the Warsaw Convention to
liability of a carrier are not applicable.

6. Limitation of liability of Airlines - For passenger and registered

baggage and cargo
By virtue of Article 22 of the Warsaw Convention, 1929, the
liability of a carrier is limited as follows:
(a) 125,000 francs for each passenger. However, by special contract,
the carrier and the passenger may agree to a higher limit of liability;

(b) 250 francs per kilogram for registered luggage and goods unless the
consignor, at the time when the package was handed over to the
carrier, made a special declaration of the value at delivery and paid
a supplementary sum if the case so requires. In that case, the carrier
will be liable to pay a sum not exceeding the declared sum unless
(2017) 1 DJR 65

he proves that the sum is greater than the actual value to the
consignor at delivery;
(c) 5,000 francs per passenger for objects which the passenger takes
charge himself, All sums mentioned above refer to the French franc
consisting of 65V, milligrams gold of millesimal fineness 900. The
sums may, however, be converted into any national currency in
round figures,, (Pp. 345-36!, paras.

7. Aviation matters - Court with jurisdiction over

The Federal High Court has exclusive jurisdiction over aviation
related causes of action.

8. Statutory provision and common law principle - Precedence over

one another
Where a domestic or common law right has been enacted into a
statutory provision, as it is with the Warsaw Convention, 1929, it is
to the statutory provision that resort must be had for such right and
not the domestic or common law. Hence an air passenger is not at
liberty to choose as between the provisions of the convention and
the domestic or common law for claims for damages against the
carrier. Such claims have to be asserted only in accordance with and
subject to the terms and conditions of the Warsaw Convention and
cannot be pursued under any other law.

9. "Ubi jus ibi remedium" - Application of the maxim

The dictates of "ubi jus ibi remedium" doctrine is that where there
is a proven legal right, there should be a remedy.

10. Award of damages - principles governing and appellate court

attitude to
The award of damages is essentially the duty of a trial court and an
appellate court will not interfere with an award of damages except
where:
(a) The trial court acted under a misapprehension of facts or law; or
(b) The trial court failed to take into account relevant matter; or
(c) The amount awarded by a trial court is too low or too high; or
(d) The failure of the Court of Appeal to interfere would amount to
injustice.

11. Power of Nigerian courts to award judgment in foreign currency

The courts in Nigeria have the power to enter judgment in favour of
a party in any foreign currency claimed where it is appropriate to
do so. In the instant care, the appellant breached the duty of care it
(2017) 1 DJR 66

owed the respondent and the respondent suffered damages. In the

circumstance, the Court of Appeal was right in awarding damages
in foreign currency as claimed by the respondent.

{Held - Lead Judgment} Delivered by ADEKEYE, J.S.C.

In the writ of summons issued at the Federal High Court Lagos, Emeka
Keazor as plaintiff, claimed against the defendant, Harka Air Services
Nigeria Limited as follows:
(1) The sum of $5,000,000.00 (Five Million United States Dollars)
being compensation and damages arising from the lost luggages and
personal effects and injuries sustained by the plaintiff on board the
defendant's aircraft which crash landed in Lagos on the 24th day of
June, 1995.
2) Interest at the rate of 21% from the 24th day of June 1995 until
judgment and thereafter at the rate of 10% per annum until final
payment.

In the twelve paragraph of his statement of claim filed on the 1st of

February 1996, the plaintiff pleaded his particulars of special damage.
Loss of checked in luggage $5,000
Loss of baggage carried $2,000
Filing fees $1,000
Expenses incurred up to filing action $30.000
$38.000

The background facts of this case are that on the 24th of June 1995, the
plaintiff now respondent in the instant appeal, boarded Harka Air Services
Limited on its flight No.TU134 from Kaduna to Lagos. There was bad
weather at the point of embarkation as a result of which all other
commercial Airlines cancelled their flight F and there was none operating
two hours before the defendant's flight took off. The flight to Lagos was
turbulent. The descent in Lagos was irregular, as the aircraft finally crash-
landed. This was followed by a smoke and fire outbreak in the cabin which
caused panic and confusion as passengers scampered for safety. The
plaintiff/respondent had a traumatic experience, coupled with sustaining
injuries and body pain. He lost his hand luggage and personal effects. The
serious nature of the injuries required medical attention. He suffered loss
professionally and financially as the injuries curtailed his day to day
activities. As the plaintiff/respondent was convinced that the crash was due
to the negligence, careless and recklessness of the defendant/appellant, its
servants, agents and employees in maintaining, controlling and operating
the said aircraft on the fateful day, he wrote to the defendant/appellant for
(2017) 1 DJR 67

compensation. As his claim was unheeded, he filed an action at the Federal

High Court, Lagos.

At the trial before the Federal High Court, the plaintiff called two witnesses,
himself and one of the air accident investigators. In his considered
judgment, the learned trial Judge found in favour of the plaintiff and
awarded Nl,257,840.00 (One Million, Two Hundred and Fifty-Seven
Thousand, Eight Hundred and Forty Naira) as special and general damages
as well as costs of the action. Being aggrieved by the decision of the trial
court, the defendant/appellant appealed to the Court of Appeal, Lagos. In
the judgment delivered on the 17th of March 2005, the Court of Appeal
allowed the appeal in part having found that there was sufficient evidence
of willful misconduct on the part of the appellant, it found that the trial
court was in error to have awarded damages in naira when it was
specifically pleaded in US Dollars. The lower court awarded $11,000 US
Dollars as an appropriate compensation for general damages; the claim for
special damages failed and was set aside. The appellant made a further
appeal to this court based on the notice of appeal dated the 21st of March
2005.

Parties exchanged briefs and when the appeal was heard on the 21st of
March 2011, the appellant in the appellant's brief filed on 6/2/06 distilled
two issues for determination follows:
(1) Whether the learned justices of the Court of Appeal were right in
affirming the decision of the trial court by holding that the appellant
(defendant) was guilty of willful misconduct as provided in Article
25 of the Warsaw Convention of 1929.

2) Whether the learned Justices of the Court of Appeal were entitled

to award a sum of $11,000 (Eleven Thousand Dollars) as general
damages in favour of the respondent.

In the respondent's brief deemed filed on the 14/10/09, the respondent

adopted the two issues raised by the appellant for determination in this
appeal.

The appellant filed a reply brief on 11/11/09 adopted and relied on same in
the argument of this appeal. The appellant in the brief made further
submission on the two issues for determination in the appeal. The appellate
courts had in many decided cases laid emphasis on when a reply brief is
necessary and what it should address. A reply brief is filed when an issue
of law or argument raised in the respondent's brief usually by way of a
preliminary objection calls for a reply. Where a reply brief is necessary, it
(2017) 1 DJR 68

should be limited to answering any new points arising from the respondent's
brief. Although the filing of a reply brief by an appellant is not mandatory,
where a respondent's brief raises issues or points of law not covered in the
appellant's brief, an appellant ought to file a reply as failure to file one
without an oral reply to the points raised in the respondent's brief may
amount to a concession of the points of law or issues raised in the
respondent's brief. It is not proper to use a reply brief to extend the scope
of the appellant's brief or raise issues not dealt with in the respondent's
brief. A reply brief is not meant to have a second bite of the cherry, which
is exactly the purpose of the appellant's reply brief in this appeal. Since the
appellant used the reply brief to extend the scope of his argument and
submission in the two issues raised for determination, it is utterly irrelevant
to this appeal.
Olafisoye v. F.R.N. (2004) 4 NWLR (Pt. 864) Pg.580. Popoola v. Adeyemo
(1992) 8 NWLR (Pt. 257) pg. 1. Longe v. F.B.N. Plc. (2010) 6 NWLR (Pt.
1189) pg. 1. Shuaibu v. Maihodu (1993) 3 NWLR (Pt. 284) pg. 748.

Issue One
Whether the learned justices of the Court of Appeal were right in affirming
the decision of the trial court by holding that the appellant was guilty of
willful misconduct as provided in Article 25 of the Warsaw Convention of
1929.

The appellant submitted on this issue that the relevant statute applicable to
the respondent's claim at the trial court is the provision of the Carriage by
Air (Non-International) Colonies, Protectorates and Trust Territories Order
of 1953 which incorporated the terms and conditions of the Warsaw
Convention of 1929 are Articles 22 (1) and 25 of the Warsaw Convention.
By virtue of Article 25 of the Warsaw Convention, the appellant was
entitled to rely on the limitation of its liability except the respondent was
able to prove that the damages he suffered was caused by the willful
misconduct of the appellant or its agents acting within the scope of their
employment. The act or omission must also be shown to have been done
with knowledge that damage would probably result. Thus where a pilot did
not know that damage would probably result from his omission, the court
is not entitled to attribute to him knowledge which another pilot might have
possessed or which he himself possessed.

Oshevire v. British Caledonian Airways Ltd. (1990) 7 NWLR (Pt. 163) pg.
507.

The appellant adopted the definition of Willful Misconduct as portrayed in

the English case of Horabin v. BOAC (1952) 2 All ER pg. 1006. The
(2017) 1 DJR 69

appellant contended that willful misconduct in the definition combined the

act or omission to act as well as the mental element. Such definition is not
pleaded in the respondent's statement of claim at pages 12-15 of the record
of appeal. Willful misconduct was only incorporated by way of particulars
and the learned justices of the Court of Appeal were wrong in holding that
willful misconduct was pleaded. The appellant concluded that the evidence
led by the respondent and PW2 was clearly at variance with the facts
pleaded in paragraph 10 of the statement of claim and relates to facts not
pleaded and such evidence goes to no issue. No evidence was led at the trial
to prove the particulars of the averments in paragraph 10 of the statement
of claim. Paragraph 10 of the statement of claim is deemed abandoned. The
learned justices have no evidence to support their finding of willful
misconduct. Paragraph 11 of the statement of claim and evidence of PW2
at pages 132 and 138 of the record before the trial court show that
investigation into the air crash have not been completed. The evidence of
the two witnesses for the respondent does not prove willful misconduct; it
at best proves negligence or carelessness on the part of the appellant. The
two lower courts have no justification to hold that the appellant was guilty
of willful misconduct. The court is urged to resolve this issue in favour of
the appellant.

The respondent replied that the lower court in its judgment considered the
provision of Article 25 of the Warsaw Convention. Once the court can
make a finding of willful misconduct, damages are left at large. The lower
court adopted the definition of willful misconduct in the case of Goldman
v. Thai Airways International Limited (1983) 3 All ER pg. 693. The lower
court therefore expatiated on when knowledge would be imputed. The
lower court made concurrent findings of fact with the trial court that the
appellant was guilty of willful misconduct. The respondent explained that
what is before this court is the concurrent findings of fact by the trial court
and the Court of Appeal, which should not be disturbed by this court unless
there are cogent and compelling reasons shown to justify interfering with
these findings of fact.

The respondent cited the cases of:

Ogbu v. Wokoma (2005) 7 SC (Pt. 11) pg. 123; (2005) 14 NWLR (Pt. 944)
118 Okeke v. Agbodike (1999) 12 SC (Pt. 11) pg. 101; (1999) 14 NWLR
(Pt. 638) 215 Ibenye v. Agwu (1998) 9-10 SC pg. 18; (1998) 11 NWLR
(Pt. 574) 372 Alakija v. Abdulai (1998) 5 SC 1; (1998) 6 NWLR (Pt.552)
1.

The appellant has also not shown that the findings of fact of the two lower
courts are perverse, patently erroneous or not the result of a proper exercise
(2017) 1 DJR 70

of judicial discretion. He cited the cases of Abidoye v. Alawode (2001) 3

SC pg. 1 at pg. 9; (2001) 6 NWLR (Pt.709)463. Lokoyi v. Olojo (1983) 8
SC pg. 61 at pg. 68; (1983) 2 SCNLR 127, Ojomu v. Ajao (1983) 9 SC pg.
22 at pg. 53; (1983) 2 SCNLR 156.

The respondent defined a perverse decision as stated in decided cases of

this honourable court like
Uka v. Irolo (2002) 7 SC (Pt. 11) pg. 97 at pg. 108 reported as Irolo v. Uka
(2002) 14 NWLR (Pt. 786) 195. State v. Ajie (2000) 7 SC (Pt. 1) pg. 24;
(2000) 11 NWLR (Pt. 678) 434, Misr (Nig.) Ltd. v. Ibrahim (1974) 5 SC
pg. 55, Incar (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt. 8) pg-453.
Ramonu Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) pg. 360; (1985) 4 SC
(Pt. 11) 250 at pg. 282.

As this court has no reason to interfere with the findings of fact of the two
lower courts. The respondent urged the court to resolve this issue against
the appellant.
I have given due consideration to the submission of both parties on this
issue. The substance of the submission of the appellant is that the evidence
of the respondent and his witness did not prove willful misconduct; all it
can at best establish is negligence or carelessness in the absence of
conclusive investigation into the air crash according to the evidence of
PW2. In the cases of Oshevire Caledonian Airways Ltd. (1990) 7 NWLR
(Pt. 163) pg. 507 and Horabin v. BOAC (1952) 2 All ER pg.1006, the
definition of willful misconduct comprise of the act or omission to act as
well as the mental element. The averments in the statement of claim of the
respondent at pages 12-15 of the record of appeal do not reflect the
definition. Willful misconduct came into the pleading by way of the
particulars. The respondent justified the lower court's finding of willful
misconduct based on the case of Goldman v. Thai Airways International
Limited (1983) 3 All ER pg. 693. Since there was finding of willful
misconduct, issue of damages is left at large. The two lower courts believed
the averments in the pleadings and the oral evidence led by the two
witnesses of the respondent as to the accident and the resultant effect on the
respondent. It is however apt to examine the position of the law and the
definition of willful misconduct relied upon by the two lower courts in their
respective findings of fact. The salient facts not disputed are that the
respondent boarded the appellant's plane from Kaduna which crash landed
in Lagos and the facts revealed by PW2, a member of the investigation
panel into the accident in the Interim report. The learned trial Judge aptly
described this at pages 178-180 of the record that:
(2017) 1 DJR 71

"There is unchallenged, uncontradicted and credible evidence in this matter

uncontradicted that the defendant operated its flight on the 24th day of June
1995 from Kaduna to Lagos when other Airlines refused to do so and
cancelled their flights. It is also on record that it rained on the morning of
the 24th day of June 1995. The ill-fated aircraft was not given any clearance
to land at all by the Air Traffic Controller when it reached the threshold the
aircraft involved herein was a height above the normal and regular height.
The pilot did not respond to the inquiry of the Air Traffic Controller
whether he was landing or carrying out a missed approach. The interim
report of the investigation was sub-poened and it is part of the record in this
suit. It has also been shown by credible evidence that at the time this aircraft
came in contact with the runway, it had already passed more than 60% of
the total runway distance. According to the evidence of PW2, it was
impossible to make a safe landing with the type of approach made by the
ill-fated aircraft. I am therefore absolutely satisfied that the defendant
herein is guilty of willful misconduct as provided in Art. 25. I am fully
satisfied that the pilot being a servant of the defendant had knowledge that
damage, death or injury were probable result from the way he handled this
ill-fated aircraft. I therefore so hold."

The lower court held that the respondent's statement of claim particularly
paragraphs 10 (a) - (r) have graphically spelt out the particulars of willful
misconduct which evidence the trial court described as unchallenged,
uncontradicted and credible. The lower court supported the foregoing with
cases Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) pg.417. F.C.D.A.
v. Naibi (1990) 3 NWLR (Pt. 138) pg. 270. Obimiami Brick & Stone (Nig.)
Ltd. v. A.C.B. Ltd. (1992) 3 NWLR (Pt. 229) pg. 260.

Under the Aviation Law, an aircraft accident is an occurrence associated

with the operation of an aircraft which takes place between the time any
person boards the aircraft with the intention of flight until such time as all
such persons have disembarked in which (a) a person suffers a fatal or
serious injury as a result of being in the aircraft, Annex 13 to the Chicago
Convention, dealing with Aircraft Accident and Incident Investigation. The
Civil Aviation (Investigation of Accidents) Regulation 2 (1). (d).
Regulation (2) (1) Civil Aviation (Investigation of Air Accidents and
Incidents) Regulations U.K. Statutory Instrument No. 2798, 1996. There
are laws regulating the liability of the carrier to its passengers. An airline's
liability to its passengers or customers could arise as a result of
a) Injury sustained on board an aircraft or
b) Death arising from the course of a journey or
c) Damage or loss of goods
d) Delayed or denied boarding or
(2017) 1 DJR 72

e) Interactions in the course of preparing for or the actual conduct of

flight operations.

Section 48 of the Civil Aviation Act 2006.

Warsaw Convention 1929
Montreal Convention 1999

The Warsaw Convention 1929 which is applicable and relevant to the

instant appeal was domesticated as a Nigerian law by the Carriage by Air
(Colonies, Protectorates and Trust Territories)
Order 1953 Vol. XI Laws of the Federation 1958, as amended by the Hague
Protocol. It is still part of the existing law in Nigeria pursuant to section
315 of the 1999 Constitution as it has not been repealed by any law or
rendered invalid or incompetent by any court of competent jurisdiction. In
the case of Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt.498) pg. 124
at 149- 150 at paragraphs H-A, the Supreme Court per Wali JSC (as he then
was) said: -
"An important International convention like the Warsaw Convention
cannot be said to be impliedly repealed when this country is still taking
advantage of its provisions and has not promulgated similar enactment to
replace it. The convention is so important to this country both domestically
and internationally to be avoided. A vacuum of such magnitude cannot be
tolerated in our legal system. It is a notorious fact that all air-travelling
tickets, whether domestic or international, contain notices alluding to the
provision of the Warsaw Convention being referred to in this case as the
1953 Order. The 1953 Order can certainly be taken judicial notice of under
section 74(1) (a) of the Evidence Act (Cap. 112) Laws of the Federation of
Nigeria, 1990.

The Warsaw Convention is an International treaty, an International

agreement, a compromise principle which the high contracting States have
submitted to be bound by the provisions.

They are therefore an autonomous body of law whose terms and provisions
are above domestic legislation. Thus, any domestic legislation in conflict
with the Convention is void. The purpose and intention of the Warsaw
Convention is to remove those actions governed by the Warsaw
Convention as amended by the Hague Protocol from the uncertainty of the
domestic laws of the member States.

The law is that where domestic/common law right has been enacted into a
statutory provision, it is to the statutory provision that resort must be had
for such right and not the domestic/common law. Hence an air passenger is
(2017) 1 DJR 73

not at liberty to choose as between the provisions of the convention and the
domestic/common law for claims for damages against the carrier. Such
claims have to be asserted only in accordance with and subject to the terms
and conditions of the Convention and cannot be pursued under any other
law.

Cameroon Airlines v. Abdul Kareem (2003) 11 NWLR (Pt.830) pg. 1

El Al Israel Airlines Ltd. v. Tseng 919 F. Supp 155 S.D.N.Y. 1996
Sidhu v. British Airways (1997) 1 All ER pg.193
Air France v. Saks 105 S. Ct. 1338 470 U.S., 392 84 L.Ed 2d 289 (1985).

I shall now refer to and consider the relevant and appropriate provisions of
the Warsaw Convention as amended by the Hague Protocol.

By virtue of Article 17 of the Warsaw Convention, the Carrier is liable for

the damages sustained in the event of the death or wounding of a passenger,
if the accident which caused the damage so sustained took place on board
the aircraft or in the course of any of the operations of embarking or
disembarking. To establish D liability, the claimant must prove that
(a) The passenger must have been wounded or suffered bodily injury
(b) The injury must have arisen from the accident
(c) The accident must have occurred on board the aircraft or during the
course of embarking or disembarking.

Article 22 makes provision for the limitation of the liability of the carrier
for each passenger and for registered baggage and cargo. It reads -
(1) In the carriage of passengers, the liability of the carrier for each
passenger is limited to the sum of 125,000 francs.
Where in accordance with the law of the courts seized of the case,
damages may be awarded in the form of periodical payments; the
equivalent capital value of the said payments shall not exceed
125,000 francs.
Nevertheless, by special contract, the carrier and the passenger may
agree to a higher limit of liability.

(2) In the carriage of registered luggage and of goods, the liability of

the carrier to the sum of 250 francs per kilogram unless the
consignor has made, at the time when the package was handed over
to the carrier, a special declaration of the value at delivery and has
paid a supplementary sum if the case so requires. In that case, the
carrier will be liable to pay a sum not exceeding the declared sum,
unless he proves that the sum is greater than the actual value to the
consignor at delivery.
(2017) 1 DJR 74

(3) As regards objects of which the passenger takes charge himself, the
liability of the carrier is limited to 5000 francs per passenger.

(4) The sums mentioned above shall be deemed to refer to the French
franc consisting of 651/2 milligrams gold of millesimal fineness
900. The sums may be converted into any national currency in
round figures.

Article 25 stipulates that -

(1) The carrier shall not be entitled to avail himself of the provisions of
this convention, which exclude or limit his liability, if the damage
is caused by his willful misconduct or by such default on his part as
in accordance with the law of the court seised of the case, is
considered to be equivalent to willful misconduct.

(2) Similarly, the carrier shall not be entitled to avail himself of the said
provisions, if the damage is caused as aforesaid by any agent of the
carrier acting within the scope of his employment.

By virtue of Article 25 (1), the carrier shall not be entitled to avail himself
of the provisions of this convention which limit or exclude his liability if
the damage is adjudged by a court seised of the case to be caused by his
willful misconduct. Similarly, the carrier shall not be entitled to avail
himself of the provisions if the damage is caused as aforesaid by any agent
of the carrier acting within the scope of his employment. Where there is
default of such magnitude that it amounts to a willful misconduct, the limits
provided by the convention to liability of the carrier are not applicable. For
the definition of willful misconduct, the two lower courts relied on the
definition in the case of Horabin v. BOAC (1952) 2 All ER 1006 as follows
-
"Misconduct is misconduct which the will is a party and it is wholly
different from mere negligence or carelessness, however gross that
negligence or carelessness may be.... To be guilty of willful misconduct,
the person concerned must appreciate that he is acting wrongfully, or is
wrongfully omitting to act, and yet persists in so acting or omitting to act
regardless of the consequences, or acts or omits to act with reckless
indifference as to what the result may be, all the problems must be evidence
in the light of that definition."

The lower court cited and relied upon the case of Goldman v. Thai Airways
International Limited (1983) 3 All ER 693 where willful misconduct was
amplified as follows -
(2017) 1 DJR 75

"For damage awarded against the carrier to be at large in accordance with

the provision of Article 25 of the Convention…. it is not sufficient for the
act or omission that is relied on to have been done recklessly, it must be
shown to have been done with knowledge that damage would probably
result. Thus where a pilot did not know that damage would probably result
from his omissions, the court is not entitled to attribute to him knowledge
which another pilot might have possessed or which he himself should have
possessed." Oshevire v. British Caledonian Airways Ltd. (1990) 7 NWLR
(Pt. 163) pg. 507

The trial court referred to the unchallenged, uncontradicted and credible

evidence establishing the willful misconduct on the fateful day as follows

(1) The airline operated its flight when other airlines cancelled their
flight due to bad weather.
(2) The defendant's air craft was not given clearance to land when it
reached the threshold, as it was at a height above normal and
regular.
(3) The pilot did not respond to the Air Traffic Controller whether he
was landing or carrying out a missed approach.

The interim report of investigation tendered by PW2 under subpoena show

that
(1) As at the time the aircraft hit the runaway, it had passed more than
60% of the entire runway - which made it impossible for it to make
a safe landing.
The trial Judge concluded that the pilot as a servant of the appellant
had knowledge that damage, death or injury was probable to result
from the way he handled the ill-fated aircraft.
The lower court held that -
"The probability of the result must be as qualifying the nature of the
act and if the nature of the act is to make the damage probable,
provided the concurrent circumstances for impact or damage are
there, then the probability of damages is fulfilled."

Knowledge would be imputed where the nature of the damage would

ordinarily flow from the reckless conduct of the pilot. In other words, from
the foregoing prevailing circumstances and especially the pleadings of the
respondent having been culminated by the evidence thereon, it is glaring
without more that the learned trial Judge was right in holding that the
defendant/appellant was guilty of misconduct as provided in section 25 of
the Warsaw Convention of 1929.
(2017) 1 DJR 76

In the surrounding circumstances of this case - I agree with the concurrent

findings of the two lower courts and I find their conclusion in this matter,
that the appellant is guilty of willful misconduct impeccable. Concurrent
findings of fact of both the trial court and the Court of Appeal would not
be disturbed by the Supreme Court except there are cogent and compelling
reasons shown to justify disturbing the findings of fact, such as, where the
findings cannot be supported by evidence or are perverse, patently
erroneous where there is a miscarriage of justice or not the result of a proper
exercise of judicial discretion.

Ogbu v. Wokoma (2005) 7 SC (Pi. 11) pg.123; (2005) 14 NWLR (Pt. 944)
118.
Alakija v. Abdulai (1998) 5 SC 1; (1998) 6 NWLR (Pt.552) 1.
Uka v. Irolo (2002) 7 SC (Pt. 11) pg. 97 reported as Irolo v. Uka (2002) 14
NWLR (Pt. 786) 195. Okonkwo v. Okonkwo (1998) 10 NWLR (Pt. 571)
pg. 554
Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) pg. 360
Incur (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt.8) pg. 453
Abidoye v. Alawode (2001) 3 SC 1 pg.9; (2001) 6 NWLR (Pt.709) 463
Ojomu v. Ajao (1983) 9 SC pg. 22; (1983) 2 SCNLR 156

I resolve Issue One in favour of the respondent.

Issue Two
Whether the learned justices of the Court of Appeal, were entitled to award
a sum of $11,000 (Eleven Thousand Dollars) as general damages in favour
of the respondent?

The appellant submitted that the lower court in allowing the appellant's
appeal in part set aside the award of special and general damages in Naira
made by the trial court in favour of the respondent. The award of $11,000
awarded by the court of appeal in favour of the respondent as general
damages tantamount to a variation of the judgment of the trial court in the
absence of a cross-appeal or respondent's notice tantamount to a court
granting a relief not sought by the plaintiff/respondent. The appellant
submitted further that while it is not in dispute that a court can award
judgment in foreign currency, the bone of contention in this appeal is
whether it can award judgment in foreign currency when the contract, the
subject-matter of the suit is in Naira (the Nigerian Local Currency) and the
evidence in support of the claim. The lower court invoked section 15 of the
Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria 2004
which only empowers the Court of Appeal to make an order which the court
below could have made, and does not allow the Court of Appeal to make
(2017) 1 DJR 77

an order which the trial court could not have made in resolving the
controversy between the parties in a particular case. The Warsaw
Convention 1929 has no provision for the award of damages in dollars. The
award of $11,000 Dollars is not only arbitrary but also unsupported by the
evidence adduced at the trial court. The case of Saeby Jernstoberi M.F. A/S
v. Olaogun Enterprises Ltd. (1999) 14 NWLR (Pt. 637) pg. 128 relied upon
by the lower court is not only distinguishable from this suit but also
inapplicable. This court is urged to set aside the award of $11,000 as
general damages in favour of the respondent.

The respondent by way of reply submitted that the Court of Appeal is

empowered to give appropriate relief on the hearing of an appeal without
being restricted by the relief specifically sought in the notice of appeal
provided that they are necessary for the final determination of the appeal
before it. By the combined effect of Order 3 rule 23 Court of Appeal Rules
2002 applicable at the time of the hearing of the appeal and section 16, now
15 of the Court of Appeal Act, the court is empowered to substitute the
orders of the lower court with its own orders, if such an order was one that
it considers the lower court would have rightly made and if it is one that the
justice of the case requires. The Court of Appeal does not require filing of
a cross-appeal or a respondent's notice. The respondent referred to cases

Mogaji v. Military Administrator of Ekiti State (1998) 2 NWLR (Pt.538)

pg. 425.
Bunyan v. Akingboye (1999) 5 SC (Ft. 11) pg.91 at 99; (1999) 7 NWLR
(Pt. 609) 31.
A.-G., Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) pg. 646.
A.C.B. Ltd. v. Apugo (2001) 2 SC pg 215; (2001) 5 NWLR (Pt.707) 483
C.G.G, (Nigeria) Ltd. v. Ogu (2005) 2 SC (Pt. 11) pg. 50; (2005) 8 NWLR
(Pt. 927) 366.
Onuaguluchi v. Ndu (2001) 3 SC 48; (2001) 7 NWLR (Pt. 712) 309.

The court is urged to resolve this issue in favour of the respondent and
dismiss the appeal, I have to commence my reasoning in this issue by laying
emphasis on the notorious fact that the award of damages is essentially the
duty of a trial court and will not be interfered with except unless certain
circumstances exist:
a. Where the trial court acted under a misapprehension of facts or law
b. Where it failed to take into account relevant matter
c. Where the amount awarded is too low or too high
d. Where failure to interfere would amount to injustice.
Ogunkoya v. Peters (1954) 14 WACA 505
(2017) 1 DJR 78

Agaba v. Otobusin (1961) 2 SCNLR 13 Bala v. Bankole (1986) 3

NWLR (Pt. 27) pg. 141 Soleh Boneh Overseas (Nig.) Ltd. v.
Ayodele (1989) 1 NWLR (Pt.99) pg. 549

Both the trial court and the lower court made concurrent findings of willful
misconduct against the appellant, consequently damages are left at large.
At the Federal High Court Lagos which has exclusive jurisdiction over
aviation related causes of action, the trial judge entered judgment in favour
of the respondent against the appellant for a cumulative sum of
N1,257,840.00 (one million, two hundred and fifty-seven thousand, eight
hundred and forty Naira). The Court of Appeal Lagos in its judgment
delivered on the 17th of March 2005, allowed the appeal in part, set aside
the judgment of the trial court and instead awarded a sum of $11,000
(cloven thousand dollars) in favour of the respondent as damages.

The lower court approached the issue of damages by concluding that the
respondent had suffered great injuring arising from the willful misconduct
of the appellant. It is fair, just and equitable that he should and ought to be
compensated. The court drew the conclusion that the respondent w is
general damages in foreign currency.

They based their perception on two authorities of the Supreme Court - the
cases of Saeby Jernstoberi M.F. A/S v. Olaogun Enterprises Ltd, (1999) 14
NWLR (Pt. 637) pg. 128 at pages 145 - 146.
Koya v. United Bank for Africa Ltd. (1997) 1 NWLR (Pt.481) pg. 251 at
269.

The lower court further thereafter proceeded to invoke the provision of

section 15 of the Court of Appeal Act, Cap. 36, Laws of the Federation of
Nigeria 2004 by which the lower court assumed full jurisdiction over the
whole proceedings as if the proceedings had been instituted in the Court of
Appeal as court of first instance. The court concluded that -
"Consequently therefore it is my humble view that the issue of general
damages lies within the jurisdiction of this court to award, with due
consideration therefore to the whole circumstance of the pains and suffering
experienced by the respondent on the evidence adduced before the lower
court, I would assess the sum of eleven thousand U.S. Dollars ($11,000) as
an appropriate compensation for general damages."

The bone of contention of the appellant relates to whether the learned trial
court was entitled to give judgment in naira having regard to the
respondent's claim being in Dollars and also with the respondent having no
corresponding naira equivalent claim in Dollars. In order to relate the
(2017) 1 DJR 79

court's finding to the claim before it, it would be necessary to reproduce the
relevant paragraphs of the respondent's claim -

Paragraph 8
"The plaintiff was therefore required to seek medicine and medical
attention and to be hospitalized for a very long period of time, immediately
after the crash, the plaintiff was hospitalized at Eko Hospital, Lagos. The
plaintiff has continued to attend the aforementioned hospital as an out-
patient. The plaintiff has suffered extreme pain and mental anguish and will
in the future continue to suffer pain and mental anguish all to his damage
to the tune of $5,000,000."

Paragraph 12
"In view of the foregoing, the plaintiff reserves the right to add to his claim
any other findings that could become public as a result of the investigation
being carried out as to the cause and circumstance of the air crash.
Particulars of Special Damage
Loss of checked in luggage $5,000
Loss of baggage carried $2.000
Filing fees $1,000
Expenses incurred up to filing action $30,000

Paragraph 13
"The plaintiff shall at the trial rely on all correspondence, recording
transcripts, letters, manuals in proof of the averments."

Paragraph 14
"Whereof the plaintiff claims judgment against the defendant in the sum of
$5,000,000.00 (U.S. Dollars)."

The poser raised by the court's judgment are as follows:

a. Whereas the respondent's claim was in Dollars, there was no
indication of the claim in Naira equivalent.
b. There is no evidence on record of the conversion of any currency
whether from Franc to Naira or from Dollars to Naira.
c. The submission of both counsel in respect of the currency rate of
conversion was not heeded.
d. The issue of the exchange rate of the Naira to the Dollar is a matter
of fact which must be proved by evidence.
e. Where a party has proved his case to be entitled to the reliefs
claimed, it is incumbent on the trial court to grant the reliefs in the
same manner in which they are sought in the pleadings.
(2017) 1 DJR 80

From the foregoing, it is apparent that parties were at cross-roads as to the

propriety or not of the currency differentials between the claim and the
eventual relief awarded which are at variance in the absence of an evidential
harmonizing factor. The lower court went further to hold that such
deficiency is obviously detrimental to the respondent's case. The lower
court therefore held that it was not open to the trial court to have awarded
the reliefs in Naira where the claim was in United States Dollars a different
currency, as the special damages suffered by the respondent was in United
States Dollars and not in Naira as awarded by the trial court. The lower
court invoked section 15 of the Court of Appeal Act, to give the damages
in U.S. Dollars.

The purport and intent of section 15 of the Court of Appeal Act Cap 36
Laws of the Federation of Nigeria, 2004 is as described by Agbaje JSC (of
blessed memory) in the case of Okoya v. Santilli (1990) 2 NWLR (Pt.131)
pg. 172 at pg. 207 that-
"By virtue of Section 16 of the Court of Appeal Act, the lower court has all
the powers of the trial court i.e., the powers the Federal High Court has in
the matter before it which is now before us on appeal. So in my view, the
lower court, in order to settle completely and finally the matters in
controversy between the parties to this appeal in the matter before the lower
court and in order
to avoid multiplicity of legal proceedings concerning any of those matters,
can grant all such remedies as any of the parties may appear to be entitled
to.

However in my judgment a party will appear to be entitled to such a remedy

only after a claim to it has been plainly made out though not formally
claimed and dealt with according to the relevant principles governing such
a claim if it had been formally made."

Consequently, section 16 now section 15 gives the Court of Appeal power

to deal with any case before it on appeal, which power includes the
jurisdiction of a court of first instance. The section confers on the lower
court wide power to enable it make order which the High Court would have
made in a matter of jurisdiction of the High Court i.e. a precondition for the
invocation of the provision of section 16 now section 15 by the Court of
Appeal. The section stipulates that the Court of Appeal may from time to
time; make any order necessary for determining the real question is
controversy in the appeal.
Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) pg. 264
Adeleke v. Cole (1961) 1 All NLR 35; (1961) 1 SCNLR 65
(2017) 1 DJR 81

Union Bank of Nigeria Limited v. Fajebe Foods and Poultry Farms (1994)
5 NWLR (Pt. 344) 325
Chief Igiehon v. Omoregie (1993) 2 NWLR (Pt. 276) pg. 398
Chief Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt. 39) pg.
1
Chief Uzoukwu v. Igwe Ezeonu II (1991) 6 NWLR (Pt. 200) pg. 708
Kokoro-Owo v. Ogunbambi (1993) 8 NWLR (Pt.313) pg. 627
Professor Olutola v. University of Ilorin (2004) 18 NWLR (Pt. 905) pg. 416
Faleye v. Otapo (1995) 3 NWLR (Pt. 381) 1.

It is amply obvious that the lower court invoked section 16 now section 15
of the Court of Appeal Act so as to determine the real question in
controversy in the appeal - which is the currency in which the damages
flowing from the established willful misconduct of the appellant would be
awarded.
The respondent referred to Order 3 rule 23 Court of Appeal Rules 2002
which provides that -

Rule 23(1)
"The court shall have power to give any judgment or make any order that
ought to have been made, and to make such further or other order as the
case may
require including any order as to costs.''

Rule 23(2)
"The powers contained in paragraph (1) of this rule may be exercised by
the court notwithstanding that the appellant may have asked that part only
of a decision may be reversed or varied, and may also be exercised in favour
of all or any of the respondents or parties although such respondents or
parties may not have appealed from or complained of the decision."

The combined reading of section 16 now section 15 of the Court of Appeal

Act and Order 3 rule 23 Court of Appeal Rules, 2002 gives the Court of
Appeal powers in Civil Appeals of the court of first instance and in order
to settle completely and finally the matters in controversy between the
parties and to avoid multiplicity of legal proceedings, has powers to grant
any remedy or make any orders to which any of the parties before it may
appear to be entitled to or make such variation of the orders of the trial court
as may be necessary to avoid multiplicity of proceedings and to make the
judgment effective so far as that can be done without injustice.

Bunyan v. Akingboye (1999) 5 SC (Pt. 11) pg. 91; (1999) 7 NWLR (Pt.
609) 31
(2017) 1 DJR 82

A.-G., Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) pg. 646
A.C.B. Ltd. v. Apugo (2001) 2 SC pg. 215; (2001) 5 NWLR (Pt. 707) 483.

It is firmly established that the evidence of the respondent in naira cannot

be used and did not support his averments in U.S. Dollars without
corresponding evidence of the conversion rate of one currency to the other
- while there was no evidence that damages was granted by the trial court
as per the respondent's statement of claim. Another vital question arising in
the circumstance is when the Nigerian Courts and particularly the lower
court have the jurisdiction to enter judgment and make awards in foreign
currency. There are Nigerian authorities to answer that question in the
positive. In the case of Koya v. U.B.A. Ltd. (1997) 1 NWLR (Pt. E 481)
pg. 251 at 259 the Supreme Court per M.E. Ogundare, JSC of blessed
memory had this to say -
"It is my respectful view that courts in this country can claim jurisdiction
to entertain and determine cases where sums in foreign currency are
claimed. The old rule in England, as well as in Nigeria, is judge-made and
in the light of present day circumstances of extensive international
commercial relationships, that rule should give way to a new rule as now
in England more so that the difficulties hitherto experienced in enforcing
such judgments no longer apply."

My Lord had in the foregoing judgment supported the foregoing conclusion

with reasons as follows:
(1) The Exchange Control Act 1962 has been repealed and the Naira
allowed to float on market forces may determine.
(2) By section 7 of the Admiralty jurisdiction Decree 1991 the Federal
High Court is given jurisdiction to award judgments in foreign
currency.
(3) The Arbitration and Conciliation Act Cap 19 Laws of the Federation
of 1990, provides that the courts in Nigeria can enforce arbitrary
awards in foreign currency.
(4) The Foreign Currency (Domiciliary Accounts) Act Cap 151, Laws
of Nigeria 1990 authorises citizens, corporate bodies, diplomats,
foreign diplomatic missions and international organizations to
import foreign currency and deposit same in a designated local bank
account maintained in an approved foreign currency.
(5) The Foreign Judgments Reciprocal Enforcement Act Cap 152
allows for the enforcement in Nigeria of judgments given in foreign
countries in their currency.
(2017) 1 DJR 83

These legislations arc still intact and applicable and there are cases to
support that the courts, in appropriate cases, have power to enter judgment
in favour of a party in any foreign currency claimed.
Saeby Jernstoberi M.F. A/S v. Olaogun Enterprises Ltd. (1999) 14 NWLR
(Pt. 637) pg. 128 Koya v. United Bank for Africa Ltd. (1997) 1 NWLR
(Pt.481) pg. 251
Nwankwo v. Ecumenical Development Co-Operative Society (2002) 1
NWLR (Pt. 749) pg. 513
U.B.A. Ltd. v. Ibhafidon (1994) 1 NWLR ([Pt. 318) pg. 90
Broadline Enterprises Ltd. v. Monterey Maritime Corporation (1995) 9
NWLR (Pt. 417) pg. 1
The trial and lower courts having identified that there is proof of a breach
of a legal duty resulting in proved injury, the law automatically presumes
damages to flow. The lower court was therefore in order to have invoked
the right process of law to award the damages in foreign currency in line
with the statement of claim of the respondent. I resolve Issue Two in favour
of the respondent.

In sum this appeal lacks merit and it is hereby dismissed. I assess the cost
of this appeal as N50, 000.00 in favour of the respondent.

Onnoghen, Tabai, Fabiyi and Rhodes-Vivour JJSC all concurred with the
lead judgement

{Nigerian Cases Referred to}

A.C.B. Ltd. v. Apugo (2001) 5 NWLR (Pt.707) 483
A.-G., Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646
Abidoye v. Alawode (2001) 6 NWLR (Pt. 709) 463
Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417
Adeleke v. Cole (1961) 1 SCNLR 65
Agaba v. Otobusin (1961) 2 SCNLR 13
Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1
Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360
Bala v. Bankole (1986) 3 NWLR (Pt. 27) 141
Breadline Ent. Ltd. v. Monterey Maritime Corp.(1995) 9 NWLR (Pt.417)1
Bunyan v. Akingboye (1999) 7 NWLR (Pt. 609) 31
C.G.G. (Nig.) Ltd. v. Ogu (2005) 8 NWLR (Pt. 927) 366
Cameroon Airlines v. Abdul Kareem (2003) 11 NWLR (Pt. 830) 1
Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512
Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt. 39) 1
F.C.D.A. v. Naibi (1990) 3 NWLR (Pt. 138) 270
Faleye v. Otapo (1995) 3 NWLR (ft. 381) 1
Ibenye v. Agwu (1998) 11 NWLR (Pt. 574) 372
(2017) 1 DJR 84

Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt. 498) 124

Igiehon v. Omoregie (1993) 2 NWLR (Pt. 276) 398
Incar (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt. 8) 453
Iroegbu v. Okwordu (1990) 6 NWLR (Pt. 159) 643
Irolo v. Uka (2002) 14 NWLR (Pt. 786) 195
Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264
Kale v. Coker (1982) 12 SC 252
Kokoro-Owo v. Ogunbambi (1993) 8 NWLR (Pt. 313) 627
Koya v. U.B.A. Ltd. (1997) 1 NWLR (Pt. 481) 251
Lokoyi v. Olojo (1983) 2 SCNLR 127
Longe v. F.B.N. Plc. (2010) 6 NWLR (Pt. 1189) 1
Misr (Nig.) Ltd. v. Ibrahim (1974; 5 SC 55
Mogaji v. Mil., Admin., Ekiti State (1989) 2 NWLR (Pt.538) 425
Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184
Nwankwo v. Ecumenical Dev. Co-Operative Society (2002) 1 NWLR
(Pt.749) 513
Obimiami Brick & Stone (Nig.) Ltd. v. A.C.B. Ltd. (1992) 3 NWLR (Pt.
229) 260
Ogbu v. Wokoma (2005) 14 NWLR (Pt. 944) 118
Ogunkoya v. Peters (1954) 14 WACA 505
Ojomu v. Ajao (1983) 2 SCNLR 156
Okeke v. Agbodike (1999) 14 NWLR (Pt. 638) 215
Okonkwo v. Okonkwo (1998) 10 NWLR (Pt. 571) 554
Okoya v. Santilli (1990) 2 NWLR (Pt.131) 172
Olafisoye v. F.R.N. (2004) 4 NWLR (Pt. 864) 580
Olutola v. Unilorin (2004) 18 NWLR (Pt. 905) 416
Onuaguluchi v. Ndu (2001) 7 NWLR (Pt. 712) 309
Oshevire v. British Caledonian Airways Ltd. (1990) 7 NWLR (Pt. 163) 507
Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1
Saeby Jernstoberi M.F. A/S v. Olaogun Ent. Ltd. (1999) 14 NWLR (Pt.
637) 128
Seatrade G.B. v. Awolaja (2002) 4 NWLR (Pt. 758) 520
Shuaibu v. Maihodu (1993) 3 NWLR (Pt. 284) 748
Soleh Boneh Overseas (Nig.) Ltd. v. Ayodele (1989) 1 NWLR (Pt. 99) 549
State v. Ajie (2000) 11 NWLR (Pt. 678) 434
U.B.A. Ltd. v. Ibhafidon (1994) 1 NWLR (Pt. 318) 90
U.B.N. Ltd. v. Fajebe Foods and Poultry Farms (1994) 5 NWLR (Pt. 344)
325
Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt. 200) 708

{Counsel}:
Rotimi Seriki - for the Appellant
Mr. John Duru - for the Respondent
(2017) 1 DJR 85

Case Year: 2002

Judge: Katsina-Alu. JSC
Counsel: Onegbedan, P. Irenlen, R.O.
Citations: Citation1 - (2017) 1 DJR 85 (SC) Citation2 - (2002) 9 MJSC
172 Citation3 - SC. 315/2001

Ani v State (2017) 1 DJR 85 (SC)

Judgement delivered on May 3rd 2002

{Brief}
- Insanity
- Medical evidence

{Facts}
The Appellant on the morning of 1/3/88 left her house and went to the house
of P.W.3 Charity Ani whom the Appellant described as "my friend". She
met P.W. 2 and the deceased children at home. On inquiry about P.W.3 and
her husband, the children told the Appellant that their parents had gone to
the farm. Upon hearing this, the Appellant went to a nearly Mechanic
Workshop and picked up an iron rod and returned to the house of P.W.3.
The Appellant first attacked Peter aged 5 years with the iron rod. While
Peter cried in pains he told Amoge aged 4 years to run for safety. The
Appellant hit Peter on the head with the rod several times until he died.
Next, the Appellant pursued Amoge to a house where she took cover under
a bed. The occupant of the room on seeing the Appellant, showed the
Appellant where Amoge was biding. The Appellant then dragged Amoge
out from under the bed. She hit Amoge repeatedly with the iron rod until
she died. Thereafter the Appellant chased P.W. 2 who ran to the Motor Park
for help. When the Appellant saw a policeman (P.W.4) she ran. P.W. 4
however chased her, caught up with her and arrested her and look her in for
questioning. The Appellant made Exhibit B, a confessional statement to the
Police.

Appellant was for murder of the deceased children whereupon She raised
the defence of insanity which was rejected. Appellant was convicted and
sentenced.

Dissatisfied appellant appealed to the Court of Appeal which dismissed her

appeal and affirmed the judgment of the Trial Court.

Dissatisfied, appellant appealed to the Supreme Court.

(2017) 1 DJR 86

{Issues}:
Whether or not the lower Court was right in affirming the decision that the
defence of insanity did not avail the Appellant.

{Held - Summary}
1. Presumption of sanity
By virtue of Section 27 of the criminal code every person is
presumed to be of
<<Page 1>>
sound mind and to have been of sound mind until the contrary is
proved. Accordingly, there is no duty on the prosecution in criminal
cases to establish what the Law presumes in its favour, that is to
say, the sanity of an accused person. Where an accused pleads
insanity or insane decision as a defence to a criminal prosecution,
there is a duty and the onus on him to rebut the primary presumption
of Law as to his sanity and to establish his insanity or insane
delusion as the case may be within the context of Section 28 of the
criminal code.
2. Insanity - Defence of; onus of Accused who relies on
Where an Accused person pleads insanity, the onus is on him to
produce evidence of insanity. In the instant case the onus was on
the Appellant to establish insanity.
3. Insanity - Motive (Whether relevant in plea)
The mere absence of any motive for a crime is not sufficient ground
upon which to infer mania. The absence of motive is at most a
matter to be taken into consideration when there is no other
evidence indicative of insanity rather than the opposite.
4. Insanity - discharge of onus of proof of
For the defence of insanity to succeed, however, the accused must
establish that he was at the time of the commission of the offence
suffering either from "mental disease" or "natural mental infirmity"
and that his condition was such that at the relevant time, he was
deprived of capacity:
(1) to understand what he was doing or
(2) to control his actions or
(3) to know that what he was doing was wrong or that he ought
not to do the act or make the omission for which he stands
Trial.
This burden on the accused to prove his insanity, however, is merely
as in civil cases, that is to say, on the balance of probability or the
preponderance of evidence.
(2017) 1 DJR 87

{Held Lead Judgment} Delivered By Katsina-Alu JSC

This is an appeal from a conviction for murder. The defence raised at the
Trial was that of insanity. The learned Trial Judge held that the defence of
insanity failed. The Appellant's appeal to the Court of Appeal was
dismissed. She has further appealed to this Court.

The facts of this case are not in dispute. The Appellant on the morning of
1/3/88 left her house and went to the house of P.W.3 Charity Ani whom the
Appellant described as "my
<<Page 2>>
friend". She met P.W. 2 and the deceased children at home. On inquiry
about P.W.3 and her husband, the children told the Appellant that their
parents had gone to the farm. Upon hearing this, the Appellant went to a
nearby Mechanic Workshop and picked up an iron rod and returned to the
house of P.W.3. The Appellant first attacked Peter aged 5 years with the
iron rod. While Peter cried in pains he told Amoge aged 4 years to run for
safety. The Appellant hit Peter on the head with the iron rod several times
until he died. Next, the Appellant pursued Amoge to a house where she
took cover under a bed. The occupant of the room on seeing the Appellant,
showed the Appellant where Amoge was hiding. The Appellant then
dragged Amoge out from under the bed. She hit Amoge repeatedly with the
iron rod until she died. Thereafter the Appellant chased P.W.3 who ran to
the Motor Park for help. When the Appellant saw a policeman (P.W.4 ) she
ran. P.W.4 however chased her, caught up with her and arrested her and
took her in for questioning. That was when she made Exhibit B
confessional statement of the Police.

The lone issue for determination raised by the Appellant is whether or not
the lower Court was right in affirming that the defence of insanity did not
avail the Appellant.

Every person is, unless the contrary is proved, presumed by law to be sane,
and to be accountable for his actions. But if there is an incapacity, or defect
of the understanding, as there can be no consent of the will, the act is not
punishable as a crime. Whether the accused was sane or insane in the legal
sense at the time when the act was committed is a question of fact to be
decided by the Trial Judge and not by medical men however eminent, and
is dependent upon the previous and contemporaneous acts of the Accused.
See R v. Revitt, 34 Cr. App. R 87.

Where an accused pleads insanity, the onus is on him to produce evidence

of insanity. In the instant case the onus was on the Appellant to establish
insanity. See Udofia v. The State (1981) 11 - 12 SC 49. Although plainly
(2017) 1 DJR 88

there was no apparent motive for the gruesome murders, the law is that
mere absence of any evidence of motive for a crime is not sufficient ground
upon which to infer mania: see R v. Ashigifuwo 12 WACA 389. The
absence of motive is at most a matter to be taken into consideration when
there is no other evidence indicative of insanity rather than the opposite -
Ayinde v. The Queen (1963) 1 All NLR 399.

It is to be observed that the law on the subject to which the Court must
address its mind is Section 28 of the Criminal Code. The section provides
that a person.
"is not criminally responsible for an act ...........................
if at the time of doing the act ............................... he is in such a
state of mental disease or natural mental infirmity as to deprive him
of capacity to understand what he is
<<Page 3>>
doing or of capacity to know that he ought not to do the act
………………..”

In order, therefore, to establish the defence of insanity, the defence must

first show that the accused was at the relevant time, suffering from either
mental disease or from a "natural mental infirmity." Then it must be
established that the mental disease, or the natural mental infirmity as the
case may be, was such that, at the relevant time, the accused was, as a result
deprived of capacity:
"(a) to understand what he was doing; or
(b) to control his actions; or
(c) to know that he ought not to do the act or make the
omission."
See R v. Omoni 12 WACA 511. So much for the law.

I now turn to the application of the law to the facts. The defence of the
Appellant at her Trial was, I need hardly say, simply one of insanity. The
defence called certain witnesses. The first was Reuben Osahon Consultant
and Psychiatrist of the Psychiatrist Hospital Benin City, The sum total of
his evidence is that "From the history I have given and from the
examination of the accused person there was no doubt that she was
suffering from depressive illness."

The second witness was Maria Enefome Urefe (Mrs.), a Pharmatist and
Technician at the Prison Clinic. She testified inter alia:
"When I tried to interview the accused person she was unable to say
reasonable thing and was incoherent, accused person was
restless..................,................."
(2017) 1 DJR 89

The Appellant herself gave evidence in her defence. Her evidence in part,
reads:
"The mother of the deceased told me that she will revenge on the
husband but I advised the mother of the deceased P.W.3 to live in
harmony with husband despite their misunderstanding. Thereafter
the 3 P.W, informed me that she has some medicine she wanted to
make so that the husband will like her, the 3 P.W. invited me to
accompany her to the place of the native doctor but I refused on the
ground that I had never visited a native doctor since I was born. The
3 P.W. said that I should not inform the husband of her mission, due
to much pressure I agreed to accompany the 3 P.W. who said that I
should accompany her to the place of the native doctor at Ring
Road, Benin City. Thereafter when 3 P.W took me to the place of
the native doctor at Ring Road. It turned out that the person is an
Hausa man. When I entered the latter person's place 3 P.W. said that
I am the person she has been telling the Hausa man. There the Hausa
man brought out two chairs and asked myself and 3 P.W. to sit down
and I sat near the juju. There they told me to sit down and they will
put something in my body so that the they will put in my
<<Page 4>>
body will make the medicine they will do for P.W.3 not to affect
me. Thereafter the Hausa medicine man carried a juju and put it on
my head, when this medicine was put on my head I felt very
differently I could not talk again and even the way I felt I wanted to
shout but I could not shout; but thereafter the Hausa man brought
out a razor and put some cuts on my both hands and applied the
medicine. Thereafter I became unconscious of myself and could not
even remember what the Hausa man did to me, since that date I did
not know how I left the place of the medicine man and returned to
my residence. It was after I was put in prison custody and I was
being treated that I came to know myself."

It is to be observed that the alleged visit to the native doctor took place three
months before the commission of this crime.

As I have already indicated, there was no apparent motive for the gruesome
murders of the innocent children. But it was argued on behalf of the
Appellant that the Court should have inferred insanity or some mental
disorder from the fact that there was no motive for the murders. But as I
have already stated, the law on this point is now settled. Mere absence of
any evidence of motive for a crime is not sufficient ground upon which to
infer insanity. See R v. Ashigifuwo (supra).
(2017) 1 DJR 90

But let us examine the evidence a little more closely. It is to be borne in

mind that in insanity cases, the Judge must consider the behaviour of the
accused at the time of the killing as well as after the killing. See Kure v.
The State (1988) 1 N WLR (Part 71) 404; Ishola Karimu v. The State (1989)
1 SC 121 at 134. First, the events prior to the murders. P.W. 2 Teresa
Ogbuani was an eye witness to the killing of her little brother and sister. In
her evidence-in-Chief she testified thus;
"On 1st day of March, 1988 my father Mr. Ogbuani went to the farm
so also was my mother. On the same day the accused came to our
house and asked for my father and I told her that my father had gone
to the farm so also was my mother, thereafter the accused went to
the main road and look to both end of the road to ascertain if any
person was coming - during this period every person and our
neighbor had gone to the farm leaving only small children at home.
After accused had ascertained that no body was coming to our house
she went to a mechanic shed and accused pick up an iron rod,
thereafter accused hide the iron rod, after the accused locked three
of us inside the house, myself, Amoge and Peter. As we were
knocking the door after the accused locked us inside the house an
old woman who owned the house came and opened the door for
three of us. Thereafter three of us carried food and began to eat
outside our residence, whilst there the accused came to us, pushed
the deceased Peter Ogbhahi down and used the piece of iron
<<Page 5>>
rod he was holding to hit him on the head several times. The
deceased cried as he was being hit on the head by the accused, and
told Amoge Ogbuani to run but the accused person after killing
Peter pursued Amoge as she was running she entered the latter
woman's house as she was pursing Amoge, the woman showed
Amoge the deceased to the accused who dragged Amoge out from
under the bed and used the piece of iron she was holding to kill the
deceased Amoge in the woman's house, after accused had killed
Amoge I began to run and the accused began to pursue me. I ran to
the Motor Park and went and called some person at the Park who
pursued the accused and caught her. When those persons caught the
accused they held her and used some rope to tie her hand. The
accused person was later taken away by a Policeman."

P.W. 4 Sgt. Joseph Irumudimam was the IPO. In his evidence, he said:
"Immediately the accused saw me she began to run a way. I pursued
the accused and arrested the accused person with the iron rod. I later
took the accused to the Esigie Police Station for investigation."
(2017) 1 DJR 91

Under cross-examination this witness said:

"I was wearing my police uniform and when the accused sighted me
she began to run."

In his judgment the learned Trial Judge considered the evidence on this
issue and held that the defence of insanity was not established. He rejected
it. The Court below affirmed this decision.

The first point to note is that when the Appellant came to the home of
P.W.3, she enquired about the whereabouts of the parents of the children,
P.W.2 told her that their father and mother had gone to the farm. Secondly
on hearing that the parents were not home, the Appellant went to a
mechanic workshop up the road, picked up an iron rod and returned to the
house. That was when she savagely killed the children. It must be
remembered that in the case of little Amoge, she ran to a neighbor’s room
and hid under the bed. The Appellant pursued her, dragged her out from
under the bed, took her outside and beat her to death with the iron rod.
When she finished with her, she chased P.W.2 who ran to the motor park.
It is instructive that the Appellant did not attack any other child or person.
She confined her attack to the children of P.W.3. Surely if she ran amok as
it has been suggested then she would have attacked anybody in her way. I
am clearly of the view that this was a case of premeditated murder.

I am strengthened in this view by Exhibit B, the statement of the Appellant

made on
<<Page 6>>
1/3/88 the day of the incident. It was a confessional statement. It is
coherent. And the events are stated in their chronological order. It is
important to note that the Appellant herself provided the motive for the
murders. She stated in Exhibit B that she killed the children because their
mother (P.W.3) used her (the Appellant) for juju in order to make money.

From the evidence before the Trial Court, it will be seen clearly that the
Appellant was not, at the time of the commission of the offence, in such a
state of either mental disease or natural mental infirmity as to deprive her
of the capacity to control her actions: See R. v. Omoni 12 WAC A 511.

The evidence of the state of mind of the Appellant after the killing was
manifest in Exhibit B. This is a confessional statement she made to the
police after her arrest soon after the commission of the crime on 1/3/88.
Exhibit B is coherent. It sets out the sequence of events of that fateful day.
What is more, the Appellant was still at the scene of crime when P.W.4 a
policeman arrived. When the Appellant saw him, she ran away. This is
(2017) 1 DJR 92

evidence that she knew she had done wrong. I have therefore no doubt in
my mind whatsoever that the Appellant both understood what she was
doing and knew that she ought not to have done it. In my judgment the
behaviour of the Appellant immediately before and immediately after the
killing did not suggest any insanity on her part. The defence of insanity was
rightly rejected by the two Courts below. See Majemu v. The State (2001)
9 NWLR (Pt.718) 349.

In the circumstances, this appeal is dismissed. The conviction and sentence

are hereby affirmed.

Wali, Mohammed U, Iguh and Ayoola JJSC all concurred with the lead
judgement.

{Nigerian Cases Referred To}

Anyim v. State (1983) 1 SCNLR 370.
Arisa v. State (1988) 3 NWLR (Pt. 83) 388.
Arum v. State (1979) 11 SC91.
Ayinde v. Queen (1963) 2 SCNLR 362.
Emeryl v. State (1973) 3 SC 215.
Ikpi v. State (1976) 12SC71.
Karimu v. State (1989) 1 NWLR (Pt. 96) 124.
Kure v. State (1988) 1 NWLR (Pt. 71) 404.
Madugba v. Queen (1958) SCNLR 17.
Madjemu v. State (2001) 9 NWLR (Pt. 718) 349.
<<Page 7>>
Mboho v. State (1966) 1 All NLR 69.
Oladele v. State (1993) 1 NWLR (Pt. 269) 294.
Onyekwe v. State (1988) NWLR (Pt. 72) 565.
R. v. Ashigifuwo (1948) 12 WACA 389.
R. v. Echem (1952) 14 WACA 158.
R. v. Inyang (W6) 12 WACA 5
R. v. Ogor (1961) 1 SCNLR 121.
R. v. Omoni (1949) 12 WACA 511.
R. v. Onakpoya (1959) SCNLR 384
Sanusi v. State (1984) 10 SC 166.
Udofia v. State (1981) 11-12 SC 49,

{Counsel}
Pat Onegbedan Esq. for the Appellant.
Richard Otaigbe Irenlen Esq. for the Respondent.
(2017) 1 DJR 93

Case Year: 2010

Judge: Musdapher JSC
Counsel: Musa, J.Y Umar, A.I.
Citations: Citation1 - (2017) DJR 93 (SC) Citation2 - (2010) 3 (pt.iv)
MJSC 139 Citation3 - SC.44/2009

Attah v State (2017) DJR 93 (SC)

Judgement delivered on March 26th 2010

{Brief}
- Defences raised in criminal trials
- Alibi
- Identification and recognition
- Initiation of procedure in criminal trial
- Credibility of witnesses

{Facts}:
These are two separate appeals against the judgment of the Court of Appeal
Kaduna Judicial Division delivered on 6/1/2009, wherein the Court below
affirmed the decision of the Kano State High Court convicting the
Appellants and others for the offences of conspiracy to commit robbery and
of armed robbery contrary to the provision of the Robbery and Firearms
(Special Provisions) Decree, 1984 as amended by Decree No.62 of 1999.

Before the trial High Court, the Appellants herein and others were tried on
a two count charge as follows:-

"1. First Head of Charge

That you Samuel Attah, Vincent Friday, Ikechukwu Sunday and
Hyginus Ofromota on or about the 10th day of September 2000 at
Naibawa Quarters, Kano, within Kano Judicial Division agreed to
do an illegal act to wit; rob the house of Alhaji DanjumaAli Garko
at Naibawa Quarters of money and jewelry and the same act was
done pursuant to the agreement and that you thereby committed an
offence contrary to Section 5(b) of the Robbery and Firearms
(Special Provisions) Decree, 1984 as amended by Decree No.62 of
1999.

The Second Head of Charge

That you Samuel Attah ofNaibawa Quarters, Vincent Friday of
Unguwa Uku, Quarters, Ikechukwu Sunday of Naibawa Quarters
and Hyginus Of or mat a of Unguwa Uku Quarters, within the Kano
(2017) 1 DJR 94

Judicial Division on the 10th day of September, 2000 at about

8:30p.m. while armed with guns committed the offence of armed
robbery in the house of Alhaji DangumaAli Garko of Naibawa
quarters and robbed them of cash and jewellery worth N94,000.00
and thereby committed I an offence punishable under Section
1(2)(a) of the Robbery and Firearms (Special Provisions) Decree,
1984 as amended by Decree No.62 of 1999".

In proof of its case against the accused persons, the prosecution called five
witnesses. In their defence all the accused persons including the Appellants,
testified on their own behalf and, called four other witnesses. At the
conclusion of the trial the learned trial Judge found all the accused persons
guilty as charged. All the accused persons were sentenced to death. The
Appellants together with the others appealed to the Court of Appeal,
Kaduna Judicial Division in appeal No. CA/K/70/C 2004 and their appeal
was dismissed as aforesaid on the 6/1/2009. In each of these two appeals
by the 1st and 2nd accused persons before the trial Court, this Court granted
each of them extension of time to appeal and leave to raise fresh issues
raised in grounds 2, 3, 4, 5 and 7 of the grounds of appeal.

{Issues}:
1. Whether the discretion of the learned trial Judge in granting leave
to prefer charge against the Appellants was exercised in accordance
with the law.

2. Whether there was enough credible and admissible evidence before

the learned Justices of the Court of Appeal for confirming and
affirming the convictions and sentences of the Appellants.

3. Whether the non-compliance of the judgment of the learned trial

Judge with the mandatory provisions of Section 269(1) of the
Criminal Procedure Code did not vitiate the entire proceedings and
thus rendering it a nullity.

4. Whether having regard to the entire circumstances of the case the

prosecution did not withhold evidence thereby denying the
Appellants a fair trial.

5. Whether the Appellant's defences of alibi was (were) adequately

considered and rightly rejected by the Courts below.
(2017) 1 DJR 95

6. Whether having regard to the circumstances of this case, the learned

Justices of the Court of Appeal were right to hold that an
identification parade was unnecessary.

{Held - Summary}: (Unanimously dismissing the appeals).

1. Criminal trial procedure - duty of the defence to object timeously
to irregularity therein
Where there is an irregularity in the initiation of the procedure for a
criminal trial, the defence has a duty to object timeously and not
when the trial is concluded.

2. Alibi - defence of, how raised

In any criminal trial, where an accused puts forward the defence,
that he was somewhere else at the relevant time and not at the scene
of the crime when the offence for which he is charged as committed
he is said to have raised the defence of alibi.

3. Alibi - definition of
Alibi is a latin word meaning elsewhere.
Alibi is a defence based on the physical impossibility of a
Defendant's guilt by placing the Defendant in a location other than
the scene of the crime at the relevant time. The fact or state of being
elsewhere when an offence was committed.

4. Alibi - defence of and duties of the prosecution and the accused

when raised.
The duty is on the prosecution to disprove the allegation as it is the
duty of the prosecution to prove the guilt of the accused beyond
reasonable doubt. The duty of the accused is merely to raise the
defence promptly and properly. An accused person is duty bound to
furnish the necessary information from which his where-abouts at
the crucial time can be checked and where there is more credible
evidence believed by the trial Judge fixing the accused person at the
scene of the crime, where he is seen committing the offence, the
defence of alibi will collapse. Once the defence of Alibi has been
promptly and properly put up, the burden is on the prosecution to
investigate it and rebut such evidence in order to prove the case
against the accused person beyond reasonable doubt.

5. Identification parade - Nature of and definition of

An identification parade is one tending to show that the person
charged with an offence is the same person who committed the
offence. Identification means a whole series of facts and
(2017) 1 DJR 96

circumstances for which a witness or witnesses associate a

Defendant with the commission of the offence charged. It may
consist of or include evidence in form of finger prints, handwriting,
palm prints, voice, identification parade, photographs or the
recollection of the features of the culprits by a witness who saw him
in the act of commission which is called in question or a
combination of two or more of these.

6. Identification parade - Role of

Although an identification parade is not a sine qua non to a
conviction for a crime alleged, it is essential in the following
instances:-

(a) Where the victim did not know the accused before and his
first acquaintance with him was during the commission of
the offence.

(b) Where the victim or witness was confronted by the offender

for a very short time and

(c) Where the victim due to time and circumstances might not
have had the full opportunity of observing the features of the
accused.

7. Identification parade - where unnecessary.

An identification parade is unnecessary where:

(a) There is clear and uncontradicted eyewitness account and

identification of the person who allegedly committed the
offence.

(b) It is unnecessary where witnesses knew the suspects

previously.

(c) Where the accused is linked to the offence by convincing,

cogent and compelling evidence, an identification parade is
not a relevant fact.

8. Identification parade - where necessary and when not

An identification parade is often necessary where the witness first
acquaintance with the accused is during the commission of the
crime, then an identification parade may be held. But it must be
remembered that such a parade is not fool proof It is not a guarantee
(2017) 1 DJR 97

against the usual errors of observation, errors of recognition or error

of reconstruction. The criminal law is full of cases of mistaken
identity identification parade is irrelevant and unnecessary where
the witnesses knew the accused person or persons. It will be
superfluous and completely unnecessary when the prosecution
witnesses knew the accused persons.

9. Identification and recognition - distinction between

Recognition of an accused person arises when a person sees or
acknowledges the identity of a man or woman well-known to him
committing a crime. Such recognition dispels any shadow of doubt
about his commission of the crime.

10. Armed robbery - what the prosecution must prove to succeed in

proof of
It is trite that for the prosecution to succeed in proof of the offence
of armed robbery, there must be proof beyond reasonable doubt of
the following:

(a) That there must be robbery or series of robberies.

(b) That the robbery or each robbery was an armed robbery.

(c) That the accused was one of those who took part in the
armed robbery.

11. Contradictions in the evidence of prosecution witnesses that will

lead to discharge and acquittal of an accused person - Nature of
In all criminal prosecutions it is the duty of the prosecution to prove
the guilt of the accused beyond all reasonable doubt. Thus where
there are substantial contradictions on material points in the
evidence of the prosecution witness or witnesses or between the
evidence of a witness, the accused will be discharged and acquitted
on the premises that it cannot be said that there was proof beyond
reasonable doubt. Where there are conflicts, discrepancies or
contradictions that are material in nature, that go to the root of the
substance of the case, so as to raise doubts in the mind of the Court,
the Court should not convict. But the point must be made, it is not
every trifling inconsistency in the evidence of the prosecution
witnesses that is fatal to the case. It is only when such
contradictions, inconsistencies, or conflicts are substantial, crucial
and fundamental to the main issues in question, which therefore
(2017) 1 DJR 98

necessarily create doubts in the mind of the trial Judge, an accused

may be entitled to benefit therefrom.

{Held - Lead Judgment}: Delivered by Musdapher JSC

These are two separate appeals against the judgment of the Court of Appeal
Kaduna Judicial Division delivered on 6/1/2009, wherein the Court below
affirmed the decision of the Kano State High Court convicting the
Appellants and others for the offences of conspiracy to commit robbery and
of armed robbery contrary to the provision of the Robbery and Firearms
(Special Provisions) Decree, 1984 as amended by Decree No.62 of 1999.

Before the trial High Court, the Appellants herein and others were tried on
a two count charge as follows:-

"1. First Head of Charge

That you Samuel Attah, Vincent Friday, Ikechukwu Sunday and
Hyginus Ofromota on or about the 10th day of September 2000 at
Naibawa Quarters, Kano, within Kano Judicial Division agreed to
do an illegal act to wit; rob the house of Alhaji DanjumaAli Garko
at Naibawa Quarters of money and jewellery and the same act was
done pursuant to the agreement and that you thereby committed an
offence contrary to Section 5(b) of the Robbery and Firearms
(Special Provisions) Decree, 1984 as amended by Decree No.62 of
1999.

The Second Head of Charge

That you Samuel Attah of Naibawa Quarters, Vincent Friday of
Unguwa Uku, Quarters, Ikechukwu Sunday of Naibawa Quarters
and Hyginus Of or mat a of Unguwa Uku Quarters, within the Kano
Judicial Division on the 10th day of September, 2000 at about
8:30p.m. while armed with guns committed the offence of armed
robbery in the house of Alhaji DangumaAli Garko of Naibawa
quarters and robbed them of cash and jewellery worth N94,000.00
and thereby committed I an offence punishable under Section
1(2)(a) of the Robbery and Firearms (Special Provisions) Decree,
1984 as amended by Decree No.62 of 1999".

In proof of its case against the accused persons, the prosecution called five
witnesses. In their defence all the accused persons including the Appellants,
testified on their own behalf and, called four other witnesses. At the
conclusion of the trial the learned trial Judge found all the accused persons
guilty as charged. All the accused persons were sentenced to death. The
Appellants together with the others appealed to the Court of Appeal,
(2017) 1 DJR 99

Kaduna Judicial Division in appeal No. CA/K/70/C 2004 and their appeal
was dismissed as aforesaid on the 6/1/2009. In each of these two appeals
by the 1st and 2nd accused persons before the trial Court, this Court granted
each of them extension of time to appeal and leave to raise fresh issues
raised in grounds 2, 3, 4, 5 and 7 of the grounds of appeal. Each of the
Appellants filed a separate Notice of Appeal containing eleven grounds of
appeal on the 27/7/2009. It should be mentioned that the Appellants have
filed identical grounds of appeal, briefs of argument and Appellant's reply
briefs. All the briefs filed by the Appellants are identical in all particulars.
At the hearing of these appeals, since, it is the same Counsel appearing in
both appeals, for the Appellants it was agreed that the appeals be considered
together.

As mentioned above, the briefs are identical and the learned Counsel for
the Appellant(s) has identified and submitted the issues for the
determination of the appeal(s) as follows:-

"1. Whether the discretion of the learned trial Judge in granting leave
to prefer charge against the Appellant(s) was exercised in
accordance with the law.

2. Whether there was enough credible and admissible evidence before

the learned Justices of the Court of Appeal for confirming and
affirming the conviction(s) and sentence(s) of the Appellants.

3. Whether the non-compliance of the judgment of the learned trial

Judge with the mandatory provisions of Section 269(1) of the
Criminal Procedure Code did not vitiate the entire proceedings and
thus rendering it a nullity.

4. Whether having regard to the entire circumstances of the case the

prosecution did not withhold evidence thereby denying the
Appellant(s) a fair trial.

5. Whether the Appellant's defence(s) of alibi was (were) adequately

considered and rightly rejected by the Courts below.

6. Whether having regard to the circumstances of this case, the learned

Justices of the Court of Appeal were right to hold that an
identification parade was unnecessary."

Now, I shall discuss the issues as they appear in the Appellant(s) briefs.
(2017) 1 DJR 100

Issue No.1
Whether the discretion of the learned trial Judge in granting the
leave to prefer the charge against the Appellant(s) was exercised in
accordance with the law.

This is a fresh point or issue which was not discussed in the Courts below,
this Court granted leave to the Appellant(s) to raise it. It is submitted that,
the leave granted to prefer the charge before the trial Court was contrary to
the provisions of Section 185(b) of the Criminal Procedure Code of Kano
State and also the Criminal Procedure (Application For Leave To Prefer a
charge In the High Court) Rules 1970, in that the proofs of evidence of the
witnesses were not accompanied with the application. It is again argued
that the failure to accompany the proofs of evidence amounted to a denial
of fair trial as provided by Section 36(6)(b) of the Constitution. It is
submitted that the grant of the application was not a proper exercise of
discretion in that the learned trial Judge had no materials with which to
exercise the discretion judiciously and judicially as he is required to do.
Learned Counsel for the Appellant relied on the cases Bature v. The State
(1994) 1 SCNJ 19, in which case Ogundare JSC of blessed memory stated
that the non-compliance with the provisions of Section "185 of the Code is
not a mere irregularity". The cases of Okegbu v. The State (1979) 11 SC 1
and Onuoha v. C.O.P (1959) 4 FSC 23 were mentioned. It is further
submitted that the failure to strictly comply with the provisions of Section
185(b) of the Criminal Procedure Code rendered the trial a nullity. Learned
Counsel referred to Madukolu v. Nkemdilin (1962) All NLR (Pt.2) 581.

Learned Counsel also referred to the cases Ikomi v. The State (1986) 3
NWLR (Pt.38) pg.341, State v. Sampson Gali (1974) 5 Sc. 67,
Ohwovoriole v. F.R.N. (2003) FWLR (Pt.141) pg.2019, Abacha v. The
State (2000) 7 SCNJ 1 at 35. The State v. Aibangbee (1988) 3 NWLR
(Pt.84) pg.548.

It is submitted that the grant of the leave without the proofs of evidence was
made on mere suspicion and speculation and was therefore not a proper
exercise of discretion and was done without jurisdiction and as such the
whole trial was a nullity.

It is submitted for the Respondent on the other hand that the application to
prefer the charge was not under the provisions of Section 185(b) of the
Criminal Procedure Code and that it was made under Section 9(2) of the
Robbery and Firearms (Special Provisions) Decree 1984 as amended by
Decree No.62 of 1999. It is further submitted that the case of Bature v. State
does not apply because in that case the issue was not on the question of
(2017) 1 DJR 101

proof of evidence but on the issue whether leave to prefer the. charge was
clearly granted or not. It is further submitted that the requirement of the
proof of evidence under Section 185 of the Criminal Procedure Code of
Kano State and the Criminal Procedure (Application for leave to prefer a
charge) Rules 1970 was introduced in era of holding Preliminary Inquiry
and by Kana State Edict No.13 of 1977, the 1970 rules of necessity became
spent. It is further submitted that Section 185 the Kano State Criminal Code
is unique and there is no similar provision in the Criminal Procedure Act
and as such the cases of Ikomi and Abacha do not apply, further it was
decided that the proofs of evidence filed on those cases were insufficient to
sustain the charges. It is also argued that the decision of Ohwovoriole supra
does not also apply.

It is also submitted that in the instant cases, the issue only arose when the
trial was concluded and the Appellant(s) were confronted with iron clad
evidence. It cannot now, after the trial where in abundance of evidence was
adduced, for the Appellant(s) to complain. It is finally submitted that the
application to prefer the charges was not predicated under Section 185 of
the Criminal Procedure Code of Kano State but under Decree No.5 of 1984
which did not envisage the filing of proofs of evidence.

Now, there is no doubt that the application before the trial Judge was not
premised under Section 185 of the Criminal Procedure Code of Kano State.
The heading of the application reads:-

"Application to prefer a charge under Section 9(2) of the Robbery

and Firearms (Special Provisions) Decree, No.5 of 1984 as
amended by Decree No.62 of 1999. "

Now, the application contained the list of the witnesses and what they were
going to state as follows:

"1. Inspector Murtala Sallau

To state his findings during his investigations of the case.

2. Hajiya Maijidda Danjuma

To state how the accused persons robber her.

3. Hajiya Zainab Danjuma

To state how the accused forcefully removed the key to her
husband's saving box and robbed them of cash and jewellery
contained in the box.
(2017) 1 DJR 102

4. Hakeem Danjuma
To state how the accused forcefully robbed his mother of her cash
and jewellery.

5. Mustaphar Danjuma
To state how the accused forced him to take them to his father's
room."

"Summary of evidence
The prosecution will lead evidence to show that the accused persons
threatened the victims with guns and other dangerous weapons
thereby robbing them of cash and jewellery."

In my view, the above clearly satisfies the provisions of Robbery and

Firearms Tribunal Rules of Procedure. The rules provide:-

"1. The trial of offences under this Act shall commence by way of an
application supported by evidence made to the Tribunal by the
prosecutor.

2. Where after the perusal of the application and the evidence or any
further evidence in such form as the Tribunal may consider
necessary, the Tribunal is satisfied that any person appears to have
committed offence under this Act, it shall cause the person to be
brought before the Tribunal on such a date and such time as it may
direct."

It appears that the learned trial Judge was satisfied having regard to what
the witnesses would state, that the accused persons appeared to have
committed the offences. I too, having regard to what was brought before
the Court of trial, am of the opinion that the learned trial Judge had
exercised his discretion both judicially and judiciously and I am not
convinced that there is any thing which would warrant my interference with
the proper exercise of the discretion. It is clear that what the rules required
a prosecutor to do was merely to show that an offence appeared to have
been committed by the accused and not at that stage, that the accused will
be convicted for the offence charged.

The cases cited by the learned Counsel for the Appellant clearly are in-
appropriate, and do not apply. The legislation on armed robbery was a
special legislation to deal with the serious menace afflicting the public and
was clearly different from the situations envisaged under Section 185 of the
(2017) 1 DJR 103

Criminal Procedure Code or the cases of Ikomi v. The State (1986) supra
or Abacha v. The State supra.

In any event, the Appellant ought to have complained against the exercise
of the discretion by the trial Judge to grant the application to prefer the
charge before the trial and Court when the trial was concluded and on an
appeal in the last Court of resort, the Supreme Court. At the trial, evidence
was adduced by the prosecution witnesses which was believed by the trial
Judge that the Appellant(s) committed the offences charged. In my view,
such a complaint can only be valid before the trial and accordingly, where
an accused person consented to his trial after even a faulty exercise of
discretion to prefer a charge, he cannot after the conclusion of the trial raise
the complaint. In my view, it is too late. Where there is an irregularity in
the initiation of the procedure for a criminal trial, the defence has a duty to
object timeously and not when the trial is concluded. See Agbo v. The State
(2006) 6 NWLR (Pt.977) 545, Adekunle v. The State (2006) 14 NWLR
(Pt.1000) 717.

In my view, the learned trial Judge properly exercised his discretion to grant
the leave to prefer the charge against F the Appellant(s), accordingly issue
No.1 is resolved against the Appellant(s).

Issue 2
Whether there was enough credible and admissible evidence before
the learned Justices of the Court of Appeal for confirming the
conviction(s) and sentence(s) of the Appellant(s).

It is submitted for the Appellants that the evidence adduced by the

prosecution is not credible or reliable to convict the Appellants,
PW1 for example did not give the names of the accused person even
when she said she knew them. Learned Counsel referred to the case
of Isah v. The State (2008) All FWLR (Pt.443) at pg.1243.

It is also submitted that the evidence of PW2 who stated that she was very
frightened and that she had never seen the accused persons before the
incident, could not identify the Appellant(s), with any degree of certainty.
Learned Counsel referred to the case of Ndidi v. The State (2007) All
FWLR (Pt.381) pg.1617 at 1639 and Ikemson v. The State (1989) 6 SC.
(Pt.5) 14. It is also argued that although PW3 said she knew the accused
persons, she was frightened of guns especially when Accused Nos 1-3
pointed guns at her. PW4 the lPO, did not give comprehensive evidence as
to which of the witnesses properly identified the Appellant(s) at the
identification parades. It is further submitted that none of the witnesses
(2017) 1 DJR 104

claimed to have identified all the four accused persons at the identification
parades.

It is again submitted that PW1 made an inconsistent E statement in her

evidence before the Court and her statement to the Police. Learned Counsel
relied on the case of Egbohonome v. The State (1993) 9 SCNJ 1 at 21 and
submitted that the evidence of PW1 cannot be relied upon. Learned Counsel
also referred to the case of Princewill v. The State (1994) 7-8 SCNJ 226
and submits that since no explanation was given to explain the
contradictory nature of the evidence of the prosecution witnesses, such
evidence G could not be acted upon. See James Ikhane v. C.O.P (1977) All
NLR 234 at 237; Boy Muka v. The State (1976) 10-11 SC 305, Ndidi v.
The State (2007) All FWLR (Pt.381) pg.1650, Omopupa v. The State
(2008) All FWLR (Pt.445) pg.1648.

For the Respondent, it is submitted that there was no contradiction in the

evidence of the witnesses nor did any of the witnesses contradict
themselves. PW1, PW2, PW3 and PW5 testified on what they saw during
the robbery and that there was no doubt on the identity of the robbers who
entered their house on that fateful day. Both PW 1 and PW3 stated even
before the trial that they knew the robbers. It is submitted that the finding
is not perverse as it is supported by the evidence led and believed. It is
further submitted that the case of Egboghonome supra cited for the
Appellant does not apply. It is again submitted that there is no contradiction
on the evidence of the prosecution witnesses as to the identity of the
accused persons and even if there is difference in the testimony of the
witnesses as to the identity of the accused, which is not present in this case,
the contradiction must be material, substantial and fundamental to the main
issue in controversy.

Now, it is trite in all criminal prosecutions that it is the duty of the

prosecution to prove the guilt of the accused beyond all reasonable doubt.
Thus where there are substantial contradictions on material points in the
evidence of the prosecution witness or witnesses or between the evidence
of a witness, the accused will be discharged and acquitted on the premises
that it cannot be said that there was proof beyond reasonable doubt. See
Akosile v. The State (1972) 8 SC 332, Ngwo Kalu v. The State (1988) 4
NWLR (Pt.90) 503. Where there are conflicts, discrepancies or
contradictions that are material in nature, that go to the root of the substance
of the case, so as to raise doubts in the mind of the Court, the Court should
not convict, see Ejigbadero v. The State (1978) 9 & 10 SC 81, Ibrahim v.
The State (1991) 4 NWLR (Pt.186) 399. But the point must be made, it is
not every trifling inconsistency in the evidence of the prosecution witnesses
(2017) 1 DJR 105

that is fatal to the case. It is only when such contradictions, inconsistencies,

or conflicts are substantial, crucial and fundamental to the main issues in
question, which therefore necessarily create doubts in the mind of the trial
Judge, an accused may be entitled to benefit there from. See Okonji v. The
State (1987) 1 NWLR (Pt.52) 659. In the instant case, the minor
discrepancies in the evidence of the prosecution witnesses are not
substantial or sufficient, by themselves, to entitle the Appellant to an
acquittal. See Iko v. The State (2001) 14 NWLR (Pt.733) 221. It is not a
contradiction to say in evidence what a witness never told the police in his
earlier statement. Such differences or variances on peripheral matters as in
the instant appeal, are neither material nor fundamental. The fundamental
and crucial issues are that PW1, PW2, PW3 and PW5 identified the
Appellants as the persons who robbed them in the night in question.

In the instant case, the learned trial Judge found see page 109 of the printed
record:-

"PWs 1 and 5 testified that the accused persons are their neighbours
and they see them everyday either passing near their house or when
PW5 went to school or goes to play football in the field near their
house where he saw them daily. This is well corroborated by the
testimonies of the 1st accused who as DW1 admitted to being a
neighbour of Alhaji Danjuma Ali Garko. (DW1 being the Appellant
in SC. 44/2009). The 2nd accused as DW2 testified that he did not
know the complainant and his family but that he used to go to the
residence of the 3rd accused xxxxxxxx the 3rd accused as DW3
admitted to also being a former neighbour of the complainant, he
knew everybody in the complainant's house. xxxxxxxxxxxxxxx
That there was bright light during the robbery operation. I believe
the witnesses especially PWs 1, 2, 3 and 5, when they said they
recognized the accused persons as their neighbours together with
those who used to hang about with them as the persons that robbed
their house on the night of September, 2000. xxxxxxxxxxxxxxx
This knowledge was confirmed by some of the defence witnesses
xxxxxxxxxx. An identification parade was therefore unnecessary
xxxxxxxxxxxxxxx."

Thus the learned trial Judge had in the main accepted as true the evidence
of the prosecution witnesses. Similarly the COUl1 of Appeal at page 242
of the record with reference to the evidence stated:-

"In the appeal at hand, the trial Court in a most comprehensive

manner properly evaluated the evidence adduced before it- and
(2017) 1 DJR 106

made its findings thereon. There is a presumption that the findings

of fact of a trial Court or Tribunal are right or correct and so remains
until dislodged by the party who challenges such findings. The
Appellants in the instant appeal have not dislodged the findings of
facts made by the trial Court; equally they have not shown that the
findings are perverse or that the trial Court drew wrong inference
from accepted facts to warrant us to interfere with the findings.
xxxxxxxxxxxxxxxxx."

I too, am not convinced that there are any reasons why I should interfere
with the concurrent findings of facts by the two Courts. The credibility of
witnesses is a matter for the trial Court, see R v. Omisade (1964) 1 All NLR
233. I may add the complaint of the Appellant(s) with reference to the
identification parade is clearly insignificant from the undoubted facts of
this case, it is not even necessary to hold an identification parade. See
William v. The State (1992) 8 NWLR (Pt.261) 515. In ,evidence of
witnesses, inaccuracies may no doubt occur and inaccuracies as opposed to
conflict or contradictions which do not occasion miscarriage of justice do
not avail the accused. See Ogbu v. The State (1992) 8 NWLR (Pt.259) 255.
In view of what I have stated above, issue No.2 must also be resolved
against the Appellant(s).

Issue No.3
"Whether the non-compliance of judgment of the learned trial Judge
with the mandatory provisions of Section 269(1) of the Criminal
Procedure Code did not vitiate the entire proceedings thus rendering
it a nullity."

This is a fresh issue for which leave of this Court was sought and obtained.
That is to say, the issue did not arise in the lower Courts for their
consideration. It is submitted that the record of the judgment of the trial
Judge as contained on pgs 61-118 of the printed record did not contain the
signature or seal of the trial Judge as required by Section 269(1) of the
Criminal Procedure Code. Learned Counsel referred to the case of the
Queen v. Fadina (1958) NSCC, (Pt. 52) at pgs 33-54 and also the case of
Yakubu v. Chief of Naval Staff (2005) All FWLR (Pt.248) pg.1693.

I have examined the record of proceedings and at page 118 it is recorded

thus:-

"Signed
Hon. Judge 2/07/03"
(2017) 1 DJR 107

In my view this is full compliance with the provisions of Section 269(1) of

the Criminal Procedure Code of Kano State in relation to the signing of the
judgment. I without much ado also resolve issue No.3 against the
Appellant(s).

Issue No.4
"Whether having regard to the entire circumstances of this case, the
prosecution did not withhold evidence thereby denying the
Appellant fair trial".

This is also a fresh issue for which leave of this Court was sought and
obtained to raise it. It is submitted that no proofs of evidence were filed by
the prosecution even though evidence was abound that PW1, PW2, PW3
and PW5 made statements to the police. It is further submitted that PWs 1,
3 and 5 made statements to the police and the prosecution had failed to
produce such statements at the trial. It is urged on the Court to hold that
since there is no dispute that such evidence existed and was not produced,
such evidence would be unfavourable to the prosecution vide Section
149(a) of the Evidence Act; if produced. Learned Counsel referred to the
case of Abacha v. The State supra on the issue of non filing of proofs of
evidence. Learned Counsel also referred to Section 36(6)(b) of the 1999
Constitution. He also referred to the cases of Layonu & others v. The State
(1967) All NLR (Pt.210), Akpabio v. The State (1994) 7-8 SCNJ 429. It is
submitted that the failure to give the accused the statements of witnesses
amounts to a denial of fair hearing vide Ransome Kuti v. A.G. of the
Federation (1985) 2 NWLR (Pt.6) pg.211. Learned Counsel also referred
to Saude v. Abdullahi (1989) 4 NWLR (Pt.116) pg.387, Federal Republic
of Nigeria v. lfeagwu (2003) 15 NWLR (Pt.842) 213.

The learned Counsel for the Respondent on the other hand submits that
there is no requirement of the law that statements of witnesses to the police
should be given to the accused. See Gaji v. The State (1975) NNLR 98 at
112. It is further submitted that none of the accused asked for those B
statements when they knew the existence of such statements.

Now, in the case of Layonu & others v. The State supra BRET JSC
observed at page 201 "In our experience c the principle has always been
applied, as it was in R v. Adebanjo (1935) 2 WACA 315, to any written
statement in the possession of the prosecution which was made by a witness
called by the prosecution and relates to any matter D on which the witness
has given evidence. Such a statement is not evidence of the facts contained
in it and the only use to which the defence can put it is to cross-examine
the witness on it and then if it is intended to impeach his credit. xxxxxx".
(2017) 1 DJR 108

The prosecution is not required by law to tender prosecution's witness

statement to the police. See Section 199 of the Evidence Act. See also Gaji
v. The State supra.

It is the duty of the defence at the crucial moment to F demand the admitted
previous statements made by witnesses for the purposes of cross-
examination. The issue that the prosecution withheld the statements cannot
hold water. If the defence wanted the statements they should have G
demanded the statements from the prosecution. The prosecution has no
duty to disclose what they have in the case dairy. It is not an issue of
withholding evidence under Section 149(a) of the Evidence Act. The issue
also has nothing to do with the provisions of Section 36 of the Constitution
or the issue of fair hearing. I must also resolve issue No.4 against the
Appellant(s).

Issue No.5
"Whether the Appellant's(s) defence of Alibi was adequately
considered and rightly rejected by the Courts below."

It is submitted that the Appellant(s) raised the defence of alibi and the
learned trial Judge has failed to analyze the defence of alibi, he merely
disbelieved the Appellant(s). It is submitted that where an evidence of alibi
is not considered or properly evaluated it amounted to a denial of fair
hearing and natural justice, vide Adigun v. Attorney-General of Oyo State
(1987) 1 NWLR (Pt.53) pg.678. It is submitted that it is not enough to reject
the evidence merely on the basis that those who gave evidence in support
of the Alibi are members of the same family of the Appellant(s). It was
wrong also for the trial Judge to opine that the raising of the alibi was an
after thought see Akpan v. The State (1986) 1 All NLR (Pt.1) pg.436.

The Court of Appeal was also in error to have held that the trial Judge had
properly considered the defence of Alibi and had rightly rejected it see
Aiguoreghian v. The State (2004) All FWLR (Pt.195) 753.

The learned Counsel for the Respondent on the other hand argued that the
trial Judge had adequately dealt with the defence of alibi raised by the
Appellant(s) and as affirmed by the Court of Appeal Tightly rejected the
defence. It is submitted that the defence of alibi crumbles immediately the
prosecution gives more credible or superior evidence. The Appellant(s)
were found and fixed at the scene of the crime by the prosecution witnesses
and the learned trial Judge preferred the evidence of the prosecution
witnesses as against that of the defence. Learned Counsel referred to the
cases of Almu v. The State (2009) 10 NWLR (Pt.1148) 31 and Daggaya v.
(2017) 1 DJR 109

The State (2006) 7 NWLR (Pt.980) 637, Adava v. The State (2006) 9
NWLR (Pt.984) pg. 152.

Now, in any criminal trial, where an accused puts forward the defence, that
he was somewhere else at the relevant time and not at the scene of the crime
when the offence for which he is charged as committed he is said to B have
raised the defence of alibi.

The duty is on the prosecution to disprove the allegation as it is the duty of

the prosecution to prove the guilt of the accused beyond reasonable doubt.
The duty of C the accused is merely to raise the defence promptly and
properly.; See, Yanor v. The State (1965) NMLR 337, Njovens v. The State
(1973) 5 SC. 17, Adedeji v. The State (1971) All NLR 75, Salami v. The
State (1988) 3 NWLR (Pt.85) 670. See generally Gachi v. The State (1965)
NMLR 333.

An accused person is duty bound to furnish the necessary information from

which his where-abouts at the E crucial time can be checked and where
there is more credible evidence believed by the trial Judge fixing the
accused person at the scene of the crime, where he is seen committing the
offence, the defence of alibi will collapse see Akpan v. The State (1991) 5
SCNJ 1, Ikemson v. The State (1989) 20 NSCC (Pt.11) 471. Once the
defence of Alibi has been promptly and properly put up, the burden is on
the prosecution to investigate it and rebut such evidence in order to prove
the case against the accused person beyond reasonable doubt. See Adedeji
v. The State (1971) 1 All NLR pg.75.

In any event, the trial Judge has duty, even in the absence of the
investigation of alibi raised by an accused, to consider the credibility of the
evidence adduced vis a vis the alibi see Ozaki v. The State (1990) 1 NWLR
(Pt.124) 92. It is the law where an alibi is properly raised, the prosecution
must investigate it, however, it is also the law where there is visual and
positive identification of the accused at the scene of the crime which is
believed by the trial Judge, the Appellate Court should not disturb such a
finding. In the instant case, I am satisfied that the trial Court had adequately
and properly dealt with defence of alibi raised by the Appellant(s) and
having regard to the overwhelming evidence of the prosecution witnesses
which fixed the Appellant(s) at the scene of the crime, the evidence of alibi
been weaker, the Appellant(s) was properly convicted. I also resolve issue
No.5 against the Appellant(s).

Issue No.6
(2017) 1 DJR 110

Whether having regard to the circumstances of this case, the learned

Justices of the Court of Appeal were right to hold that the
identification parade was unnecessary.

It is submitted that in this case 4 identification parades took place. It is

submitted that it is curious to hold 4 identification parades when the
accused persons are known to the prosecution witness. It is submitted that
in view of the evidence of PW4, it would be unsafe to affirm the concurrent
findings of facts when according to the evidence of PW4 "only some of the
prosecution witnesses identified the accused person."

Now, an identification parade is often necessary where the witness first

acquaintance with the accused is during the commission of the crime, then
an identification parade may be held. But it must be remembered that such
a parade is not fool proof. It is not a guarantee against the usual errors of
observation, errors of recognition or error of reconstruction. The criminal
law is full of cases of mistaken identity see the case of Walter Graham
Rowland (1947) 32 CR. App. R. But it is the law that identification parade
is irrelevant and unnecessary where the witnesses knew the accused person
or persons. It will be superfluous and completely unnecessary when as in
this instant case the prosecution witnesses knew the accused persons. See
Ikemson v. The State supra. The offence took place under a bright light and
the accused were not masked or disguised and the witnesses called by the
prosecution identified them as those living in their neighbourhood. Indeed,
some of accused used to go to the house of the witnesses to take water. See
Otiti v. State (1993) 4 NWLR (Pt.290) 675. In the instant case the
Appellant(s) even corroborated the evidence of the prosecution witnesses
that they were not strangers and that they knew themselves. The
Appellant(s) did not at any occasion during the trial claim that the
prosecution witnesses PW1, PW2, PW3 and PW5 never knew them before
that fateful night. It is accordingly true that both the accused and the victims
knew themselves. I am in agreement with the Court of Appeal that under
the undoubted facts of this case formal identification parade is not
necessary see Orinmoloye v. The State (1984) 10 NWLR 188.
Identification is only essential when the identity of the accused in relation
to the commission of the offence is in dispute. So, what was done by the
police in this case was superfluous and unnecessary and serves no purpose.
I also find no merit in the Appellant(s) complaint under issue 6 and I
accordingly resolve the issue against the Appellant(s).

In the end, having considered all the identical issues in appeals SC 44/2009
and SC. 45/2009 and having resolved them against the Appellants, these
two appeals are dismissed by me. I affirm the decision of the lower Courts.
(2017) 1 DJR 111

Onnoghen, Tabai, Muhammad and Adekeye JJSC all concurred with the
lead judgement

{Nigerian Cases referred to}

Abacha v. State (2000) 7 SCNJ 1.
Adava v. State (2006) 9 NWLR (Pt.984) 152.
Adedeji v. State (1971) 1 All NLR 75.
Adekunle v. State (2006) 14 NWLR (Pt.1000) 717.
Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt.53) 678.
Agbo v. State (2006) 6 NWLR (Pt.977) 545.
Aiguoreghian v. State (2004) All FWLR (Pt.195) 753.
Akosile v. State (1972) 8 SC 332.
Akpabio v. State (1994) 7-8 SCNJ 429.
Akpan v. State (1986) 1 All NLR (Pt.1) 436.
Akpan v. State (1991) 5 SCNJ 1.
Almu v. State (2009) 10 NWLR (Pt.1148) 31.
Amina v. State (1990) 6 NWLR (Pt.155) 125.
Ani v. State (2003) 11 NWLR (Pt.830) 142.
Archibong v. State (2004) 1 NWLR (Pt.855) 488.
Audu v. State (2003) FWLR (Pt.153) 325.
Balogun v. A.G Ogun State (2002) 6 NWLR (Pt.763) 512.
Bature v. State (1994) 1 SCNJ 19.
Bello v. Police (1959) WRNLR 124.
Daggaya v. State (2006) 7 NWLR (Pt.980) 637.
Egbohonome v. State (1993) 9 SCNJ 1.
Ejigbadero v. State (1978) 9 & 10 SC 81.
Eyisi v. State (2001) 8 WRN 1.
FRN v. Ifeagwu (2003) 15 NWLR (Pt.842) 213.
Gachi v. State (1965) NMLR 333.
Gaji v. State (1975) NNLR 98.
Ibrahim v. State (1991) 4 NWLR (Pt.186) 399.
Ikemson v. State (1989) 20 NSCC (Pt.11) 471.
Ikhane v. C.O.P (1977) All NLR 234.
Iko v. State (2001) 14 NWLR (Pt.733) 221.
Ikomi v. State (1986) 3 NWLR (Pt.38) 341.
Isah v. State (2008) All FWLR (Pt.443) 1243.
Kalu v. State (1988) 4 NWLR (Pt.90) 503.
Kuti v. A.G. Federation (1985) 2 NWLR (Pt.6) 211.
Layonu v. State (1967) All NLR (Pt.210).
Madukolu v. Nkemdilim (1962) All NLR (Pt.2) 581.
Muka v. State (1976) 10-11 SC 305.
Ndidi v. State (2007) All FWLR (Pt.381) 1617.
(2017) 1 DJR 112

Ndukwe v. State 37 NSC (2) QLR 425.

Njovens v. State (1973) 1 NWLR 331.
Nwabueze v. State (1988) 7 SCNJ (Pt.11) 248.
Nwachukwu v. State (1985) 1 NWLR (Pt.11) 218.
Nwosisi v. State (1976) 6 SC 109.
Odu v. State (2001) 5 SCNJ 115.
Ogbu v. State (1992) 8 NWLR (Pt.259) 255.
Ohwovoriole v. F.R.N. (2003) FWLR (Pt.141) 2019.
Okegbu v. State (1979) 11 SC 1.
Okonji v. State (1987) 1 NWLR (Pt.52) 659.
Okosi v. A.G. Bendel State (1989) 1 NWLR (Pt.100) 642.
Omopupa v. State (2008) All FWLR (Pt.445) 1648.
Onuoha v. C.O.P. (1959) 4 FSC 23.
Orinmoloye v. State (1984) 10 NWLR 188.
Otiti v. State (1993) 4 NWLR (Pt.290) 675.
Ozaki v. State (1990) 1 NWLR (Pt.124) 92.
Princewill v. State (1994) 7-8 SCNJ 226.
Queen v. Fadina (1958) NSCC (Pt.52) 33.
R. v. Omisade (1964) 1 All NLR 233.
Salami v. State (1988) 3 NWLR (Pt.85) 670.
Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387.
State v. Aibangbee (1988) 3 NWLR (Pt.84) 548.
State v. Gali (1974) 5 SC. 67.
Ugwumba v. State (1993) 6 SCNJ (Pt.11) 217.
Walaka v. State (1991) 8 NWLR (Pt.211) 522.
William v. State (1992) 8 NWLR (Pt.261) 515.
Williams v. I.G.P. (1965) NWLR 470.
Yakubu v. Chief of Naval Staff (2005) All FWLR (Pt.248) 1693.
Yanor v. State (1965) NMLR 337.

{Counsel}:
Dr. J.Y. Musa for the Appellants.
Alhaji Aliyu Umar, A-G Kano State for the Respondents.