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(1972) 3 S.C (REPRINT) 175
(1972) All N.L.R 233
MADARIKAN, JJ .S.C.
SOWEMIMO, AG. J.S.C.
Chief F. R. A. Williams (J. O. Obeahon with him) for the appellant.
C. Udeh (Senior State Counsel) for the first respondent.
O. K. Ajayi (K. S. Okeaya-Inneh with him) for the second respondent.
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
Legislation: Supreme Court Rules, 1960, 0.7, r. 18(1) and (5), and r. 19.
Appeals (Civil)-to Supreme Court-Procedure at trial-Objection on appeal by party who consented to its adoption; not allowed.
Practice and Procedure-Comparison of handwriting by trial judge-Finding based on matters in evidence.
Practice and Procedure-Orders for arrest and prosecution of defendant – and for impounding of exhibits wrongly made.
LEWIS, J.S.C. (delivering the judgment of the Court):-In Suit B/30/69 The Principal Lotteries Officer of the Mid-Western State brought a claim in the Benin High Court in which he sought a declaration:-
“(a) That the 1st defendant is the person entitled to the sum of £4,000 being the 1st prize of the Mid-Western State Government lottery drawn at Benin City on the 10th of July, 1969; OR
IN THE ALTERNATIVE:
(b) That the 2nd defendant is the person entitled to the said amount.
When the matter came before the High Court on the 27th of August, 1969, Irikefe J. with the consent of counsel representing both the plaintiff and the 1st and 2nd defendants respectively according to the record settled the procedure to be adopted in the following terms:-
“By consent of all counsel in the case I propose to treat this suit as an application in the way of an originating summons filed by the Principal Lotteries Officer, Mid-Western State of Nigeria to determine which as between the 1st and 2nd respondent herein is entitled to the 1st prize valued £4,000 in respect of the 11th draw to the Mid-Western State of Nigeria Government lottery, which draw took place on 10th July, 1969. By consent of counsel and in virtue of powers, vested in me under Order 13, rule 1 (High Court Civil Procedure Rules) no pleadings will be filed in this matter-and hearing will now proceed subject to the following matters which will be agreed upon by counsel and therefore will not be open to proof:-
(a) It is agreed that the matters set out at paragraphs 1 to 8 of the writ are taken as proved. This statement was made by Alhaji Momoh for the applicant and was agreed to by both Obeahon and Okeaya-Inneh for the respondents.
At this stage, the counsel in this matter are agreed that Mr J. O. Iluebbey, an Administrative Officer, Class I who is the Chairman of the Lotteries Board, should be called to testify.”
Mr Iluebbey then gave evidence for the plaintiff/applicant and both the 1 st and 2nd defendants/respondents called evidence and on the 9th of September, 1969 the learned trial judge in his judgment found the 2nd defendant to be the person entitled to the £4,000 first prize on the 11th draw of the Mid-West State Government lottery held on the 10th of July, 1969, and he ordered payment accordingly of that sum by the applicant to the 2nd defendant. He also made a number of other orders with which we shall deal later.
The 1st defendant has appealed against that decision and the first point taken on his behalf by Chief Williams pertained to a ground of appeal that read:-
“The learned trial judge erred in law and/or failed to exercise his discretion judicially in proceeding with the trial without pleadings once it became clear to him that fraud amounting to criminal offences were alleged by one side against the other.”
It was the submission of Chief Williams here that the procedure adopted of treating the claim as if it was an originating summons was so irregular that the judgment could not stand and a rehearing ought to be ordered. He further submitted that as no procedure in respect of an originating summons is laid down in the Mid-West High Court Civil Procedure Rules it was necessary to follow the practice in England and there the basic principle was that an originating summons was heard on affidavit evidence, supplemented if necessary by oral evidence, but that there must be at least affidavit evidence to start with, and that there was no such affidavit evidence here. He relied on Order 28 in the 1970 Annual Practice of the English Supreme Court (the White Book). Moreover he submitted that in In re Powers, Linsell v. Phillips (1885) 30 Ch.D. 291 Lindley L.J. at page 296 said:-
“I think the Vice-Chancellor can hardly have understood that in this case there are no facts in dispute. A summons is not the proper way of trying a disputed debt where the dispute turns on questions of fact, but where there is no dispute of fact the validity of the debt can be decided just as well on a summons as in an action. I think, therefore, that the Vice-Chancellor took an erroneous view when he declined to entertain the application.”
and that showed that if facts were seriously in dispute, as was the case in the present appeal, then the procedure by originating summons was not suitable. Finally on this point he argued that pleadings were necessary here to show on whom the onus of proof would lie and it was not satisfactory to try a case which involved allegations of fraud without pleadings.
Both Mr Udeh and Mr Ajayi for the plaintiff and 2nd defendant respectively adopted the same main argument on this ground of appeal namely that the I st defendant was estopped from challenging the procedure adopted as he had through his counsel consented to it before the High Court. We were referred to two cases in the former Supreme Court (now the High Court) where it was held that failure to object to a wrong procedure at the trial meant that it could not be raised later, see C.F.A.O. v. Onitsha Industries Limited (1932) 11 N.L.R. 102 and Colony Development Board v. Kamson and Others (1955) 21 N.L.R. 75. We were also referred to Palgrave Gold Mining Company v. McMillan  AC. 460 where at page 462 Lord Hobhouse in the Privy Council said:-
“The award embraced damages to be paid to other landowners besides the respondent, but its validity has been challenged by the respondent alone. For that purpose he applied in the Supreme Court for a writ of certiorari, and he also moved the Court to quash the award. The appellants’ counsel have urged objections to the propriety of that procedure. But it is clear that an invalid award may be set aside in some way or other by the Supreme Court; and it is not suggested but that the merits of this case were fully brought before the Court. Therefore, even if the appellants could show that the proceedings were informally started, their Lordships would not on that ground be willing to reverse the judgment; and so they declined to hear the point argued. ”
Mr Ajayi further submitted that Order 13, rule 1 of the High Court (Civil Procedure) Rules of the Western State applicable in the Mid-West which reads:-
“In all suits written pleadings shall be ordered by the court unless the court considers in any particular suit that written pleadings are unnecessary.”,
anyway established that the learned trial judge was entitled to do away with pleadings but Chief Williams, to our mind rightly, in reply pointed out that Order 13, rule 3 which reads:-
“When the court for any reason decides not to order written pleadings the court, either itself or by the Registrar, shall at or before the trial take from each party, or from the solicitor of each party, and record, a short statement of the facts and pleas upon which such party relies sufficiently definite and detailed to enable the court and the parties to know as far as possible at the outset of the trial the issues of fact and law which fall to be decided at the trial. Such record shall be read over by the court to the parties as soon as made and shall thereupon bind the parties to the same effect as if such record were pleadings filed under this order.”,
would in that case apply and that procedure was not followed here. The basic objection however of Mr Udeh and Mr Ajayi seems to us correct. Once the procedure that was adopted was consented to by all parties it is too late for the 1st defendant to be heard on appeal to say that the procedure worked an injustice on him because he lost in the High Court. Not only was the procedure that was adopted quite specifically consented to by his then counsel in the High Court but we do not in fact anyway see that it worked any injustice, as Chief Williams submitted.
Chief Williams then argued that the decision was against the weight of evidence. It was his submission that the 1st defendant obtained booklets of lottery tickets from the Principal Lotteries Officer and that he was liable to pay for all he took subject to being entitled to return whole booklets of tickets if they were not sold, and that the 2nd defendant was in effect the agent of the 1st defendant who was paid commission of 4s by the 1st defendant for every booklet of tickets that the 2nd defendant sold and that ownership of a ticket would vest in whoever bought it and any remaining unsold by the 2nd defendant would belong to the 1st defendant unless they were in a whole booklet returned by him to the Principal Lotteries Officer. It was his submission therefore that the onus lay on the 2nd defendant to show that he had purchased the winning ticket and he had not done so. Chief Williams was however forced to concede that there was evidence that the 2nd defendant had purchased the winning ticket but he submitted that the learned trial judge was wrong to have believed it as there were discrepancies in the evidence both as to the time the ticket was purchased and what conversation took place when it was purchased and that whilst he conceded that the learned trial judge did deal with the discrepancy as to the time he did not advert to the discrepancy as to the conversation that took place at the time of purchase.
To our mind however the discrepancy as to the purchase relied on by Chief Williams was not a discrepancy as to the purchase of the winning ticket by the 2nd defendant but as to what took place when the 2nd defendant’s witness Mr Egbase bought a ticket from the 2nd defendant which subsequently proved to be the ticket numbered next to the winning ticket. The vital issue was whether the 2nd defendant purchased the winning ticket or whether he had returned it unsold to the 1st defendant as the 1st defendant claimed. The 2nd defendant maintained that the 1st defendant in effect got the ticket from him by a trick when it was discovered that the 2nd defendant had won the 1st prize with it. The learned trial judge came to the conclusion that he believed the story of the 2nd defendant but Chief Williams maintained that one of his reasons for doing so was because he believed that the 1st defendant had forged the 2nd defendant’s signature at page 73 of the 1st defendant’s duplicate book of receipts in regard to the return of the vital ticket unsold to the 1st defendant and that the learned trial judge came to that conclusion by wrongly comparing the signature on that page with the admitted signature of the 2nd defendant on other pages of that duplicate book (exhibit G); and that he was wrong to come to that conclusion without expert evidence and without the pages in question have been put in evidence to witnesses, but Mr Ajayi for the 2nd defendant showed to our satisfaction that in fact the specific pages referred to by Chief Williams were dealt with in evidence on the record. We do not think therefore that this is a case that falls within the objectionable procedure of a judge of his own volition making a study of exhibits, and relying thereon for findings in his judgment, in respect of matters therein which had not been brought out in evidence and which we dealt with in Bornu Holding Company Ltd. v. Bogoco SC. 93/1970 (unreported) of the 29th of November, 1971 when dealing inter alia with the case of the Queen v. Wilcox  All N.L.R. 631 upon which Chief Williams relied before us.
Whether or not we would have come to the same conclusion, as Chief Williams suggested we would not, as to the forgery of the signature at page 73 of exhibit G by an examination of it is not the issue as what is important is whether there was evidence that entitled the learned trial judge to come to the conclusion that he did and in our view there was.
Moreover Mr Ajayi was to our mind quite right in submitting that it was not only on a comparison of the signature that the learned trial judge came to the conclusion that he did but because he took account of the whole background and specifically found that he did not believe the 1st defendant’s story that the 2nd defendant returned the vital booklet with the winning ticket unsold to him. The learned trial judge made a vital finding when he said:
“I find in particular as a fact that in respect of the 11th draw the 2nd respondent accounted in full to the 1st respondent for the two booklets of tickets exhibit F and Fl on 7th July, 1969, and did not (repeat not) return four tickets as unsold to the 1st respondent.”
There was no conflict in the 2nd defendant’s story as to his purchase of the winning ticket as the only possible conflict in the evidence was as to what took place when Mr Egbase bought from him the ticket numbered next to the winning ticket. In our view therefore the learned trial judge was entitled to come to the conclusion that he did that the 2nd defendant was on the evidence the purchaser of the winning ticket. Two other grounds of appeal were argued which are really extraneous to the vital issue of who was the purchaser of the winning ticket but they pertained to other orders that, though not asked to do so, the learned trial judge of his own volition saw fit to make. The grounds of appeal read:-
“5(a) The learned trial judge erred in law in making an order for the arrest and prosecution of the appellant when the duty and responsibility for deciding on such questions are not matters within his competence.
(b) Even if it was proper for the learned trial judge to make such order, it was outside the competence of the learned trial judge to draft and recommend the charges that should be brought against the appellant.
PARTICULARS OF ERROR
(i) The order if complied with will delay and may frustrate the exercise by the appellant of his constitutional right of appeal.
(ii) Once a notice of appeal is filed the disposal of exhibits are matters governed by the rules of court prescribed by the Chief Justice of Nigeria for appellants to the Supreme Court and even if it was competent for the learned trial judge to make the order, it should have been made subject to any appeal to the Supreme Court.”
The learned trial judge concluded his judgment as follows:-.
“The facts disclosed in this matter are quite capable of undermining the confidence of the public at large both in the lottery and its agents for distribution of tickets. Commonsense would therefore dictate that the 1st respondent should not get away lightly and should be given an opportunity of clearing his name in a criminal prosecution.
The attitude of the Nigerian public in these matters brings readily to mind how true Edmund Burke was when he said:-
‘The only thing necessary for the triumph of evil is for good men to do nothing.’
I therefore order the immediate arrest of the 1st respondent who is to be released on bail in the sum of £250 with one surety conditioned for his surrendering himself to the officer in charge of crime in the Mid-Western State police headquarters who after due investigation should charge the said 1st respondent to court.
He could be charged with stealing a valuable security to wit the ticket, exhibit H, carrying a prize of £4,000 or with forgery, uttering and false pretences. In the case of false pretences the representation may be that he falsely represented that he had to have custody of exhibit H in order to use same in prosecuting the 2nd respondent to the Lotteries Board for his prize-that is a representation as to an existing fact coupled with a future promise which is an indictable felony. He may also be charged with destroying evidence, to wit pages out of exhibit J.
I accordingly order that all the exhibits in this case be impounded and released to the Nigeria Police, any appeal in this matter to the Supreme Court notwithstanding. The counsel for the 1st respondent Mr James Obeahon may take his client out on bail.
The police are to seek the advice of the Ministry of Justice in the formulation of charges and the case may be taken either summarily or by obtaining leave of another judge (not myself) to file information without a preliminary inquiry.”
There is no doubt at all in our mind that the learned trial judge was seriously in error here as to the orders that he made as is shown by Layiwola and Drs. v. The Queen  4 F.S.C. 119 where Abbott Ag. D.J.F. there said:-
“There is one other matter to which we would refer. The learned trial judge saw fit, in his judgment, to pass adverse comment on the action of the prosecuting authorities in charging ten of the rioters in this case before a magistrate with malicious damage and stealing and charging the eight persons before the learned trial judge with murder.
The judge expressed the view that all the persons identified as taking part in the riot should, in view of the provisions of section 8 of the Criminal Code, have been charged with all the offences which flowed from the riot, and he goes on ‘in my opinion it was not open for the prosecution to elect or select which of the accused persons should be charged with the minor offences which (with) the graver. The fact that only one witness identified some of the persons charged is, in my view, beside the point. That is a matter which relates to proof and it is the province of the court’. With due respect to the learned trial judge, we find ourselves quite unable to agree with this view. It is without question the province of the Law Officers of the Crown (in this case the Director of Public Prosecutions) to decide, in the light of what the public interest requires in any particular case, who shall be charged, and with what offence. It is entirely a matter for this Officer’s quasi- judicial discretion and, in our view, in order to secure the proper administration of justice, he must be left to exercise this discretion according to his own judgment, neither acting on any rule of thumb nor taking into account any other consideration than the public interest. ”
The learned trial judge here should not have ordered the arrest of the 1st defendant and ordered that he should be specially charged with certain offences. If the learned trial judge felt strongly that the matter required investigation he should have referred the papers to the Director of Public Prosecutions for his consideration but certainly he should not have directed that a prosecution should take place.
Moreover, as to the direction of the learned trial judge in regard to the exhibits, in our ruling on the application for a stay in regard to the learned trial judge’s directions, which we allowed, we set out the position as we saw it when on the 12th December, 1969 we said:-
“As the issues raised in this application were not contested and the relief sought not resisted and, as there is an appeal before this Court against the whole of the decision given by the learned trial judge in the case, this Court would not like to say more than to observe that the order made by the court below with respect to the exhibits, the subject- matter of this application, would appear to have ignored completely or at least not have had in contemplation the rules of this Court as to how exhibits should be treated in the event of an appeal and when an appeal is pending in this Court from the judgment of a judge.
In this connection we would content ourselves with drawing attention to Order VII, rule 18, sub-rules (I) and (5) and rule 19 of the Rules of this Court which are in the following terms:-
Order VII, rule 18, sub-rule (I): ‘Subject as hereinafter provided, each party shall, immediately after an appeal becomes pending before the Court, deliver to the court below all documents (being exhibits in the case or which were tendered as exhibits and rejected) which are in his custody or were produced or put in by him at the trial’.
‘All original documents delivered to the court below under this rule shall remain in the custody of the Court below until the record of appeal has been prepared, and shall then be forwarded with the record to the Registrar and shall remain in the custody of the Court until the determination of the appeal:-
Provided that the Court or Registrar may allow the return of any document to any party pending the hearing of the appeal and subject to such conditions as it or he may impose.’
‘After an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in this Order, every application therein shall be made to the Court and not to the court below, but any application may be filed in the court below for transmission to the Court’.
It is to be hoped that judges at the conclusion of their judgments when making orders would always have recourse to the provisions of the Rules of this Court for guidance as to the limits of their powers.”
It is fair to say that Mr Udeh, the senior state counsel for the plaintiff/applicant, did not seek to support these directions of the learned trial judge and Mr Ajayi for the 2nd defendant did not seek to deal with them in argument on the appeal as he maintained that his client was not concerned. We have no doubt that we must set aside these orders and we accordingly direct that the orders of the learned trial judge as to the arrest of the 1st defendant, as to his being charged with various offences to wit stealing, forgery, uttering and false pretences and destroying evidence, as to the impounding of the exhibits and as to the police seeking the advice of the Ministry of Justice on the formulation of charges, be set aside. The Ministry of Justice is represented by Mr Udeh before us and we do not think that any directive is necessary from us in regard to this matter as he can take such action as he thinks fit about bringing the matter to the attention of the Director of Public Prosecutions of the Mid- West State. Subject to the orders that we have just made the appeal is dismissed with 54 guineas costs to the plaintiff/applicant and 54 guineas costs to the 2nd defendant.
Cases referred to in the judgment
C.F.A.O. v Onitsha Industries Ltd. (1932) 11 NLR 102
Colony Development Board v. Kamson and Ors., (1955) 21 N.L.R. 75.
Palgrave Gold Mining Co. v. McMillan,  A.C. 460,462.
Bornu Holding Co. Ltd. v. Bogoco, SC.93/1970 of 29th November, 1971 (see  1 All N.L.R.).
Queen v. Wilcox,  All N.L.R. 631.
Layiwola and Ors. v. The Queen,  4 F.S.C. 119.