3PLR – AGBASIERE V. OKONKWO

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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CHIEF GREGORY AGBASIERE

V.

AUGUSTINE OKONKWO & 2 ORS

SUPREME COURT OF NIGERIA

SC.529/1964

31ST MARCH. 1966.

3PLR/1966/16  (SC)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS:    

SIR LIONEL BRETT, J.S.C. (Presided and Read the Judgment of the Court)

CHARLES DADI ONYEAMA, J.S.C.

MICHAEL OGUEJIOFO AJEGBO, J.S.C.

REPRESENTATION

T.C. Umezinwa – for the Appellant

O. Araka (with him, H. A. Lardner) – for the Respondents

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]

MAIN ISSUES

ACTION – Claim for account – Party spending in excess of amount collected on agreed enterprise – Whether to he ordered to give account of how money was spent.

MAIN JUDGEMENT

BRETT, J.S.C. (Delivering the Judgment of the Court):

In this case the three plaintiffs obtained the leave of the court to sue as representing the elders and people of Uli in the Orlu Division of Owerri Province in an action brought against the defendant in which they claimed: –

“(1)   that an account be taken of all the collection made by the people of Uli.

(2)     Payment of the amount found due on the taking of such account to the plaintiffs.

(3)     Such further order or such orders as the court deems fit and proper.”

Paragraphs 2, 3, 4 and 5 of the Statement of Claim set out the general circumstances in which the claim came to be made as follows: –

2. From the year 1946 to the date of this action the Uli community both men and women have been making large collections of funds for the purposes of carrying out developmental works in Uli.
3. For the purposes of these collections, the defendant who is a member of the Native Authority and the most influential personality in Uli, acted as the collector and treasurer of the funds thus collected.
4. The defendant despite several repeated demands (e.g. by resolutions, personal contacts and letters or otherwise) by the Uli Community as a whole has failed to render an account of all the monies he has thus collected for the developmental works in Uli.
5. The plaintiffs estimate of some of the monies that passed through the defendant’s hand as such Collector and treasurer of the funds thus collected is contained in the schedule annexed to this Statement of Claim.

The schedule gave particulars of 15 heads under which an account was claimed, with an estimate that £11,670: 18: 11 was collected. The Statement of Defence denied the plaintiffs right to represent the elders and people of Uli and pleaded that the community had never called on the defendant for an account and that he “was never a treasurer or collector of Uli funds and that at no time did he handle any money of Uli people.”

Reynolds, J., dismissed the action as regards 11 out of the 15 items set out in the Schedule to the Statement of Claim, and allowed it as regards 4 of them. The defendant has appealed against this judgment, but there is no cross-appeal by the plaintiffs.

On item 3 the Judge expressed his findings as follows –

“Item 3 concerns a sum of £902:2:0 alleged to have been received by the defendant for the building in 1947-8 of a Senior Boys School at Uli. It is said by the plaintiffs that the defendant acknowledged having received £902: 2: 0 for this purpose. The defendant in his evidence said that he himself built the school in question which was completed in 1948 at a cost of £2,100 and of that sum defendant had only received the sum of f800 from the people of Uli through their treasurer Philip Ukaigwe and the balance had not been paid to date. He denied having ever admitted receiving £902:2:0. On his own evidence I am clearly of opinion that defendant has made himself an accounting party. The people of Uli are entitled to know how £800 defendant admits receiving from them was expended. If they are liable for the balance as defendant asserts they are also entitled to know the details of their indebtedness. I do not accept the defendant’s evidence that he in fact rendered an account of this item. At the trial defendant produced what he called an account, which on inspection was clearly only as estimate for the work.”

The Judge rejected the defendant’s story that he had contracted to put up the building for £1,000 and we agree that the terms on which the defendant received the money made him prima facie liable to account for how it was spent. We do not, however, agree that if the defendant spent more on the building of the school than he received as the proceeds of the collection he ought to be ordered to give an account, and in saying that “if they are liable for the balance as defendant asserts they are also entitled to know the details of their indebtedness” we think the Judge overlooked the fact that there was no counter-claim. and that the onus of proving a claim against the community would rest on the defendant. Whatever may have been the position in 1954, when the suit was instituted, any claim by the defendant would have been statute-barred by 1961, when judgment was given, and it would be useless to order an account merely for the purpose of assessing how much the plaintiffs might be Gable for under a claim which has not been brought and could not now succeed.

Unfortunately, the Judge’s view that the defendant was liable to account even on his own evidence led him to make no finding on whether the defendant had in fact spent more than he received. This was a matter of defence and having regard to the Judge’s general view of the defendant’s credibility we do not feel justified in reaching a finding in the defendant’s favour merely on reading the record. We therefore uphold the judgment as regards this item, though it is by no means certain that anything will be found to be due to the plaintiffs.

Item 7 concerned the sum of £12:12:0 which the Judge found had been handed over to the defendant by the treasurer of the Uli Town Union when the Union was disbanded. The amount is small but there is no reason why the defendant should not account for it.

Item 8 concerned a sum of money collected at the rate of 2/- per head from women of Uli for building a girls’ school. The defendant was to supervise the work and make payments as it progressed, and the Judge found that he had “no doubt used for the enterprise the money collected and also some of his own money”.. If he spent more than he received as the proceeds of the collection we do not consider that it would serve any useful purpose to require him to produce accounts of how the money was spent.

Item 12 concerned sums collected for the building of a Roman Catholic Church. The trial Judge accepted the evidence that the defendant used his own tax collectors to collect the money, but the minutes of the Village Council show that on a number of occasions sums collected were produced and counted at meetings of the Council and handed over at once to the priest in charge of the parish, Father Peter Gilsenan. The defendant produced receipts issued by Father Gilsenan for a total sum of £4,399, and Father Gilsenan, who was called as a witness by the defendant, said that he had received further sums from Catholic members of the community to a total of £7,000£8,000 for which he had not given receipts. When cash was paid to him, he said, it was always by a committee and it was sometimes the defendant and sometimes another man “in the crowd” who actually handed it over.

In our view the evidence shows that the money was intended as an outright gift to the church and if anyone is entitled to demand an account from the defendant it is the church authorities, not the elders and people of Uli. The appeal succeeds as regards this item.

Finally there is an appeal against the award of 150 guineas costs and it is said that no costs ought to have been awarded until the account was taken and it was ascertained whether anything was due to the plaintiffs. The plaintiffs submit that litigation was only necessary because the defendant denied all liability to account and that they are entitled to their costs for establishing his liability. The plaintiffs have now failed as regards 13 out of 15 items; the hearing in the High Court seems to have occupied twelve days, and well over half of this time was taken up on issues on which the plaintiffs have failed. We do not consider that on balance they are entitled to any costs of the proceedings in the High Court and the award is set aside.

To summarise – as regards items 3 and 7 in the Schedule to the Statement of Claim the appeal fails and is dismissed. As regards items 8 and 12 the appeal succeeds, the judgment of the High Court is set aside and the action is dismissed. The award of costs in the High Court is set aside. The appellant is awarded costs of the appeal which, after taking into consideration the fact that the appeal has succeeded in part and failed in part, we assess at 70 guineas.

ONYEAMA, J.S.C.: I concur.

AJEGBO, J.S.C.: I concur.