3PLR – ADIMORA V. AJUFO

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ADIMORA

V.

AJUFO

 

IN THE SUPREME COURT OF NIGERIA

10TH JUNE, 1988.

SUIT NO. SC 210/1985

LN-e-LR/1988/6  (SC)

 

OTHER CITATIONS

(1988) NWLR (Pt.80) 1

 

BEFORE THEIR LORDSHIPS  

ESO,  J.S.C.

KAWU, J.S.C.

OPUTA, J.S.C.

WALI, J.S.C.

CRAIG, J.S.C.

 

BETWEEN

OKECHUKWU ADIMORA

 

AND

1. NNANYELUGO AJUFO
2. CHIEF ANTHONY ABADOM (The Akpe of Onitsha)
3. NNABUENYI PETER ABADOM

 

REPRESENTATION

1. E. Ezenko – for the Appellant
2. Umeadi – for the Respondent

 

MAIN ISSUES

COMMERCIAL LAW – Contract – Agreement to sell land – Payment of purchase price by vendee – Refusal by vendor to convey – Effect.

PRACTICE AND PROCEDURE – Pleadings – Statement of defence – Requirement of specific denial and complete answer to allegations – Order 33 rules 9, 10 and 11, High Court Rules, Cap. 61, of 1963, Laws of Eastern Nigeria – Effect of non-denial of plaintiffs averment.

PRACTICE AND PROCEDURE – APPEALS – When an appellate court may interfere with concurrent findings of two lower courts – Effect of perverse findings by trial court – Limitation of actions – Factors to be taken into consideration.

PRACTICE AND PROCEDURE – Evidence – Evidence contrary to pleadings – Effect.

WORDS AND PHRASES – ‘Cause of action’ – Meaning of – “Fraud” – Meaning of.

 

MAIN JUDGEMENT

OPUTA,J.S.C. (Delivering the Lead Judgment):

The facts of this case lie within a comparatively narrow compass. The only difficulty seems to be that both the Appellant’s brief as well as the Respondents’ Brief left much to be desired. The proper format of a good Brief should contain the:

(i)      Introduction and concise Summary of the Facts.

(ii)     Decision of the Court of Appeal.

(iii)    Issues for Determination.

(iv)    Legal Argument.

(v)     Summary and conclusions.

(vi)    List of Authorities.

I have had occasion in Engineering Enterprise of Niger Contractors v. A-G. of Kaduna State (1987) 2 N.W.L.R. 381 at pp. 413/414 to comment on Brief writing and on the format and contents of a good Brief. One can only hope that these observations would be heeded in future.

The Plaintiff negotiated through the intermediary of the 2nd Defendant to purchase eleven plots of land from the defendants’ family land situate at lyiukwu. Pursuant to an agreement to buy and sell, the Plaintiff paid the sum of N5,400 as purchase price of those eleven plots. The receipts for the payments were issued by the 2nd defendant and were tendered as Exhs. A, B, B1-B7. The only issues of fact on which the two Courts below based their findings and on which the Plain-tiff’s case was dismissed were:

(i)      Whether or not the 2nd defendant was acting for and on behalf of the Defendant’s family? and

(ii)     Whether the money the 2nd Defendant got from the Plaintiff (N5,400.00) was paid over to the Defendant’s family?

Without any reference to the pleadings and the evidence led the two Courts below decided both issues against the Plaintiff. Having thus lost in the two Courts below, the Plaintiff has now appealed to this Court against the concurrent findings of the two Courts below.

On the 22nd day of March 1988, when this appeal was heard, Mr. Ezeuko, learned counsel for the Appellant, was present but Chief Obianyo, learned counsel for the Respondent was absent although Miss C. N. Obianyo appeared for Chief F. M. Obianyo on the 14/12/87 when both principal counsel (Ezeuko – Obianyo) asked for adjournment. The appeal was then adjourned in open Court to 21/3/88. On the 22/3/88 Mr. Ezeuko referred us to Order 6 Rule 8(6) of the Supreme Court Rules 1985 and asked the Court to take the appeal as argued on the Briefs since both sides had each filed its Brief Argument. Under our Rules par-ties may rely on their Brief. Mr. Ezeuko who was present was allowed to comment on the issues of the limitation of time.

Ground 1, 2 and 3 of the Grounds of Appeal at pp. 75-77 deal with the Issues-

(1)     Whether the Plaintiff dealt with the 2nd Defendant in his personal capacity; or

(ii)     Whether the 2nd defendant was acting for and on behalf of the family;

(iii)    Whether the purchase price of N5,400.00 which the Plaintiff paid to the 2nd Defendant was ultimately paid over by the 2nd defendant to the family and if the answer to Issue No. (iii) above is yes was the Court of Appeal right in holding:

1. ‘There is therefore no basis, in my opinion for making the order compelling the Respondents to refund the money collected by the 2nd Respondent in his personal capacity’
2. ‘The Appellant had not successfully shown that the 2nd Respondent received the money on behalf of the family or issued the receipts on behalf of the family’
3. “As there was no contract the issue of damages did not arise at all. There was no contract and therefore there could not be an order for specific performance and consequently no order for damages could be made”?

This case stoutly and eloquently emphasises the central and crucial role of pleadings in civil cases. It also offers a valid exception to the well-known stand of this Court not to interfere with the concurrent findings of two Court below.

The Plaintiff, Okechukwu Adimora, sued the three Defendants for themselves and on behalf of all other members of the Mazeli- Alamuzo-Ojidoko family of Ogbeodogwu Quarters, Onitsha. He claimed as follows:

(a)     Specific performance by the defendants of the contract of sale.

In the alternative:

(b)     N5,400 (Five thousand, four hundred Naira) being the purchase price paid to the Defendants between 1958 and 1964.

(c)     N49,500 being the profit the Plaintiff would have made if he had sold the plots at the current value.

(d)     General Damages at N25,100.

Pleadings were ordered, filed and exchanged. Since the main complaint of the Plaintiff/Appellant is that the two courts below completely ignored the case of each party as pleaded, and went on a frolic of their own to make findings of fact on evidence not covered by or else contradictory to those pleadings, it becomes imperative to set out in detail the case of each of the parties as pleaded.

The Plaintiff’s case as pleaded is as follows:

“STATEMENT OF CLAIM

1. The Plaintiff is a Legal Practitioner based at Onitsha.
2. The 1st Defendant is the present Okpala and head of Mazeli-Alamuzo-Ojido-ko family. The 2nd Defendant who is a Second class Chief, popularly known as the Akpe of Onitsha and the 3rd Defendant are all important members of the family. All the Defendants were at all times material to this action, members of the Board of Trustees of the Defendants’ family land.
3. Between 1958 and 1968, the Defendant acting for themselves and on behalf of their family and as absolute beneficial owners, sold to the Plaintiff eleven Plots of their land situate at lyi-Ukwu Lay out along Oguta Road after Queens the Holy Rosary College now known as Girls’ High School, Onitsha at the price of ₤250 now N500 (Five hundred Naira) per plot.
4. By his letter dated the 11th of February , 1963 the 2nd defendant who was acting as Secretary to the board of Trustees confirmed the price of each plot as stated in paragraph 3 ante as well as other conditions relating to the transactions. This letter would be founded upon at the trial.
5. In consideration for the sale, the plaintiff paid to the Defendants the total agreed purchased price of N5,400 (five thousand, four hundred Naira) and the receipts covering this amount and dated 3/12/58, 27/8/62, 12/2/63, 1/7/63, 12/7/63, 15/6/64, 7/8/64 and 31/7/64 were duly issued to the Plain-tiff by the 2nd Defendant.
6. The Plaintiff purchased these plots of land with a view to resell nine plots when the value of land in area appreciates, and to build his residential house on the remaining plots.
7. On the completion of the payment of purchase price, the plaintiff requested the defendants to put him into possession and to allocate to him the plots so purchased.
8. Despite repeated demands the Defendants kept on prevaricating until the last civil war, set in. Meanwhile, the defendants stated to sell the plots at their lyi-Ukwu land at enhanced price.
9. At the end of the civil war, the Plaintiff returned to Onitsha and made several approaches to the Defendants for the allocation of the plots sold to him but the defendants would not comply but rather continued to sell the plot at their lyi-Ukwu land now at greatly enhanced price of between N6,000 and N7,000 per plot .
10. On or about the 5th of January, 1974 the first defendant who is the head of Ojidoko Mazeli family requested through his Solicitor Mr. N.C.O. Okwudili Esquire, to see the Plaintiff on the 7th January 1974. This message was conveyed to the Plaintiff by the Solicitor Mr. N.C.O. Okwudili Esq. by the Solicitor’s letter dated 5th January 1974.
11. The Plaintiff acting on the strength of this letter went to No. 20B, Ojedi Road to see the 1st Defendant who thereby apologised to the plaintiff for the in-ability of the of the family to allocate the purchased plots to him as the price of the said plots has greatly appreciated. The defendants have not returned to the Plaintiff the sum of N5,400 paid to them in respect of the plots sold to Plaintiff.
12. WHEREFORE the Plaintiff claims from the Defendants as follows:

(a)     Specific performance by the Defendants of the contract of sale

In the alternative:

(b)     N5,400 (Five thousand, Four hundred Naira) being the purchase price paid to the defendants between 1958 and 1964.

(c)     N49,500 being the profit the Plaintiff would have made if he had sold the plots at current value.

(d)     General Damages at N25,100.

Dated at Onitsha this 30th day of May, 1974.

(Sgd) G.E. EZEUKO Plaintiff’s Solicitor No. 10 Martin Street, Onitsha

It is very clear from the Plaintiff’s Writ of Summons and Statement of Claim that the 3 Defendants were sued for the themselves and as representing the Mazeli-Alamuzo-OJidoko Family, that the agreement to sell 11 plots of their family land was made between the Plaintiff and the family; that the agreed purchase price of N5,400.00 was paid by the Plaintiff to the family; that the Defendants’ family received the purchase price of N5,400.00 afore-mentioned but delayed, neglected and ultimately refused to convey not even one single plot to the Plaintiff.

What was the Defendants answer to the Plaintiff’s averments? In paragraph 8 of their Statement of defence the Defendants pleaded:

8. The defendants are not in position to admit or deny paragraphs 5, 6, 7 and 8 of the statement Claim and will put the Plaintiff to the strictest proof of the allegations contained therein”

If pleadings are to have any meaning at all, they should deal with the point of substance and should not be evasive. One therefore cannot shut one’s eyes to the prevailing tendency, nowadays, to make pleadings less exact. But if there are to be pleadings at all, there is a great advantage in holding that they should define the issues between the parties. I am not unaware of the fact that paragraph 1 of the Statement of Defence was a general traverse. It is however my view that paragraph 1 and 8 of the Statement of defence have not answered with sufficient particularity the facts averred by the Plaintiff in paragraph 5,6,7 and 8 of this Statement of Claim. The Plaintiff clearly set out all the receipts covering the various payments he made to the Defendants’ family through the 2nd Defendant. Just how could the Defendants not be in a position to admit or deny these payments evidenced by the receipts pleaded?

It is relevant here, to mention the provisions of Order 33 Rules 9,10 and 11 of the High Court Rules Cap. 61 of 1963 – Laws of Eastern Nigeria – applicable to Anambra State. By these Rules a mere general denial is insufficient. The Defend-ants in this case were bound to deals with the averments regarding the sale and payments of money to their family, the receipt covering those payments having been clearly pleaded. The Court will not accept insufficient traverse. The circum-stances, where, a half-hearted and weak-kneed denial will be regarded as insufficient traverse, has been considered in many decisions of this court. In Lewis and Peat (N.R.I.) Ltd. v. Akhimien (1976) 1 All N.L.R. 460 at p.465 this Court per Idigbe, J.S.C. noted:

“We must observe, however, that in order to raise an issue of fact there must be a proper traverse, and a traverse must be made either by a denial or non-admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the Statement of Claim, he must state so specifically; and he does not do this satisfactorily by pleading thus: “defend-ant is not in a position to admit or deny (the particular allegation in the Statement of Claim) and will at the trial put the plaintiff to proof”.

I must add that the Defendants’ position in this case was not made any better or stronger by saying that they “will put the plaintiff to the strictest proof of these allegations contained therein”. After all the onus of proof is an onus to prove an issue. There must first of all be an issue of fact before there could be an onus to prove that issue. And where there has been no sufficient traverse and therefore no issue, one wonders what the Plaintiff is expected to prove. And this is where Order 33 Rule 9 comes in:

“Order 33 r.9 …. Every allegation of fact, if not denied specifically or by necessary implication, or stated not to be admitted, shall be taken as established at the hearing” (italics mine).

In this case by the operation of the above rule, paragraphs 5, 6, 7 and 8 of the Plaintiff’s statement of claim should have been regarded as established and no further proof of them should have been required.

Another interesting aspect of the pleadings in this case is that the 3 Defendants filed one joint defence. The Plaintiff pleaded in paragraph 5 of his Statement of Claim that the purchase price of N5,400.00 was paid to the family through the 2nd Defendant who issued receipts covering the various payments. The Defendants’ statement of Defence did not plead that the amount of N5,400.00 pleaded in paragraph 5 of the Statement of Claim was not paid of the 2nd defendant. They did not plead that the 2nd defendant was paid in his personal capacity and not as an agent of the family. They merely pleaded that ’they will put the Plaintiff to the strictest proof of the allegations contained therein”.

Paragraph 6 of the Statement of Defence pleaded thus:

“6.     The Plaintiff was aware of the cases (between the Defendants and Chief Ibeziako and Obosi people) but decided to advance his own money and that of some of his relations to the Defendants’ family for the purchase of some land in future if the Defendants succeeded in winning the cases…” (italics mine)

The combined effect of paragraph 5, 6, 7 and 8 of the statement of claim vis-à-vis paragraphs 6 and 8 of the Statement of Defence will be as follows:

(i)      That the Plaintiff negotiated with the 2nd Defendant as agent of the family for the purchase of eleven plots of land in the lyiukwu land belonging to the Defendant.

(ii)     That the defendants agreed to sell 11 plots to the Plaintiff.

(iii)    That the Plaintiff paid a total of N5,400.00 to the Defendants’ family for the purchase of said 11 plots.

(iv)    That the family received the amount of N5,400.00 paid by the Plaintiff.

If pleadings are still what they are meant to be the above facts would have, at the close of pleadings, been regarded as established. It was thus unnecessary to adduce further evidence to establish any of the 4 facts listed above. The trial Court would have been right f it gave the plaintiff judgment (excluding specific performance) on the pleadings. I have on purpose said “excluding specific performance” because the Court cannot on the pleadings order specific performance, which is an equitable relief, without hearing evidence of the surrounding circum-stances which will dictate on whose side equity will lean.

The trial Court proceeded to receive oral evidence without adhering to the pro-visions of Order 32 of the High Court Rules which stipulates:

Order 32 –

Rule   1. At any time before or at the hearing, the Court may, if it thinks fit, on the application of any party, or of its own motion, proceed to ascertain and determine what are the material questions into writing and settle them in the form of issues, which issues when settled may state question of law on admitted facts, or questions of disputed facts, or questions partly of the one kind and partly of the other.

2. The Court may, if it thinks fit, direct the parties to prepare such issues, and the same shall be settled by the Court.
3. ……………………………………………………………………………………….
4. ……………………………………………………………………………………….

Our trial Courts should always insist on Settlement of Issues after pleadings, before the actual hearing. The practice has a good deal to commend it to all trial Courts. In Appellate Courts, Briefs are filed where the Issues or Questions for Determination are clearly set out. Where parties in a trial Court know the issues in controversy, they will more likely confine themselves to proof of such issues and no more. Also matters not in dispute can then easily be admitted by consent. This will lead to a considerable saving in time and effort. Where issues are settled, it will be clear to the parties and to the court on what points, issues or questions, the Court is called upon to reach a decision. Unfortunately issues were not settled in this case in the trial court and that is the root cause of the present headache in this otherwise simple and straightforward case.

After hearing evidence that was relevant and irrelevant; admissible and inadmissible (evidence of facts not pleaded is inadmissible and irrelevant as well as evidence that contradicts a party’s pleading) the learned trial Judge, Nwokedi, J. at p.33 of the record found as follows:

“1.     There is no doubt that the plaintiff bought some plots of land at lyiukwu Layout between 1958 and 1964.

2. There is no doubt that the 2nd Defendant …… was the intermediary through whom the Plaintiff purchased these plots”.

And at p.34 of the record the trial Judge continued:

3. It is however doubtful whether the Plaintiff dealt with the Defendants as members of the Mazeli/Alamuzo/Ojidoko family’.

This doubt is self-induced as it does not appear from the pleadings and the admissible evidence. The Plaintiffs in his paragraphs 4 and 5 of the Statement of Claim pleaded that he dealt with the Defendants’ family through the 2nd Defend-ant as the intermediary. The learned trial Judge did find (in finding No. 2 above) that the 2nd defendant was the intermediary. The question arises – intermediary between the Plaintiff and whom? The only logical, reasonable and I dare say obvious answer is intermediary between the Plaintiff and the Defendants’ family as pleaded by the Plaintiff and not at all traversed by and in the statement of Defence. Also at p.12 of the record, the trial Court, that conveniently entertained some doubt as to whether the Plaintiff dealt with Mazeli/Alamuzo/Ojidoko family or with the 2nd Defendant personally, (in spite of the pleadings) made the following notes:

“Court: Defendants at this stage asked to be given three months from date to produce the sum of N5,400 in court. Case is therefore adjourned to 31st July, 1975 for this amount to be produced in court”

Also at p.37 of the record is the following note:

‘The sum of N5,400.00 deposited in Court by the Defendants is to be returned to them”

From the two notes above it was and ought to have been clear to any unbiased and fair-minded tribunal that Plaintiff dealt with the family and not with the 2nd Defendant personally. In fact the Defendants clearly admitted in paragraph 6 of their Statement of Defence that “the Plaintiff ….advanced his own money and that of some of his relations to the Defendants family for the purchase of some land ……”In spite of this admission by the family and the payment of the N5,400.00 into Court by the self same family, the learned trial Judge still had some doubt. This kind of doubt cannot be genuine. It is either manufactured or self-induced. No appellate Court should take such doubt seriously.

There are some other bizarre findings by the learned trial Judge.        At p.34 of the record the trial Court made another findings:

“I have no doubt that the Plaintiff is a victim of an elaborate fraud carefully hatched out by the 2nd Defendant alone. I am satisfied that if the plaintiff paid out any money at all in respect of lyiukwu land he paid it to the 2nd Defendant who issued him with fake Receipts”.

Fraud implies a wilful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to. Fraud for the purposes of the civil law includes acts, omissions and concealments by which an undue and unconscientious advantage is taken of another: Green v. Nixon (1857) 23 Beav 530 at p.535. The defendants filed one joint Statement of Defence. Not one single paragraph of the entire pleadings of the Defendants pleaded fraud and in our law fraud has to be specifically pleaded. But if the trial Judge found the entire circumstances of the case, as pleaded by the Defendants, to constitute an “elaborate fraud” against the Plaintiff, one wonders why he singled out the 2nd Defendant who received the money – N5,400.00 from the Plaintiff and who (on the admission of the Defendants in paragraph 6 of the statement of defence) paid same over to the family. If Plaintiff was a victim of an elaborate fraud by the Defendants, as the finding in question seems to suggest, then one wonders why the trial Court failed to apply the maxim – Nullus commodum capere potest de injuria sua propria (Co Litt 148b) – “No man can take advantage of his own wrong”. Why did he (the trial Judge) allow the Defendants to win and thus take advantage of their deceit?

Again the Defendants in their Statement of Defence never challenged the “receipts” issued by the 2nd Defendant as anything but genuine. The defendants having admitted in their Statement of Defence (paragraph 6) that the Plaintiff paid money to their family for the purchase of plots in lyiukwu land cannot give any evidence contrary to that admission. If they did give such evidence, then the trial Court should have held that such evidence contrary to their pleadings went to no issue and should have expunged it from the record when considering its judgment:

Aniemeka Emegokwue v. James Okadigbo (1973) 4 S.C. 113 at p.117; George AND AND OTHERSv. Dominion Flour Mills Ltd. (1963) 1 All N.L.R. 71 at p.77; National Investment AND Properties Co. Ltd. v. Thompson Organisation Ltd. AND Anor. (1969) N. M. L. R. 99 at p.104; Ferdinand George v. The United Bank for Africa Ltd. (1972) 8-9 S. C. 264 at p.274; Ebueku v. Amola SC. 206/1985 delivered on 25/3/88 (not yet re-ported).

Was there any evidence categorically stating the opposite of paragraph 6 of the Defendants’ Statement of Defence? I am unable to find one. The defendants called only one witness – Nnanyelugo John Ajufo D.W. 1. His evidence in-chief made no mention of the amount of N5,400.00 paid by the Plaintiff for eleven plots in their lyiukwu land. But under cross-examination at pp. 20/21 of the record, D.W. 1 testified:

“I do not know that my family got some money from plaintiff. Plaintiff only told me so. 1 asked 2nd Defendant on record ff what Plaintiff told me about his paying money to members of our family through him was correct and he admitted but said that Plaintiff had no records, I wanted to know from the 2nd Defendant whether the money collected by him from the Plaintiff was for the family or for himself personally. He told me that Plaintiff did not complete the purchase price….”

As I observed earlier on, the 3 defendants were sued for and on behalf of their family. They all filed one Statement of Defence admitting that their family received the purchase money paid by the plaintiff. In view of this, the above cross- examination was absolutely unnecessary. But still I do not see anything in that evidence to justify the trial Court’s findings that the 2nd Defendant hatched and perpetrated an elaborate fraud on the Plaintiff; that if the Plaintiff paid any money at all in respect of the lyiukwu land, he paid it to the 2nd defendant personally and not for the family; that the receipts issued by the 2nd Defendant to the Plaintiff, Exhs. A, B, B1-B7 were all faked. It is sad and unfortunate that the Court of Appeal was misled, may be due to pressure of work, into confirming the absolutely erroneous and perverse findings of the trial Court, findings that blatantly ignored the pleadings of the parties. This Court has said it, and repeated it times without number, that parties are bound by their pleadings. It is usually taken for granted but this case calls for a direct pronouncement that like parties any trial Court is also bound by the pleadings and by the issues raised by and in those pleadings. The Court – the trial Court – has no right whatsoever to consider a case not pleaded by the par-ties and in the end make findings of fact on the imaginary case it itself conjectured. Trial Judges cannot raise issues for the parties if those issues do not flow from the pleadings filed: Atolagbe v. Shorun (1985) 1 N.W.L.R. 360 at p.373; Dr. Nwafor Orizu v. Anyaegbunam (1978) 5 S.C. 1 at p.36; Ibanga v. Usanga (1982) 5 S.C. 103 at p.124. In the case on appeal, the Defendants admitted in paragraph 6 of their Statement of Defence that the Plaintiff paid money for plots in lyiukwu land ‘to the Defendants’ family’. And yet, the trial Judge found as a fact that the plaintiff did not. The other defendants filed one joint Statement of Defence with the 2nd Defendant and therein, there was no allegation of fraud against the 2nd Defend-ant and yet the trial Judge mysteriously found, and against the natural drift of the pleadings, that the “Plaintiff was the victim of an elaborate fraud carefully hatched out by 2nd Defendant alone”. The 2nd Defendant issued the Plaintiff with receipts. No one questioned the genuineness of those receipts in the pleadings and yet still, the trial Judge found that the 2nd Defendant issued the Plaintiff with faked Receipts”. The Defendants willingly offered to pay and in fact paid into the Court the sum of N5,400.00 the Plaintiff paid to their family for the 11 plots the family offered to sell to him but failed to convey same. The trial Judge thought the Defendants were silly and ordered the money paid into Court to be withdrawn out of Court by the Defendants. This meant that the Defendants were to keep their 11 plots of land and also keep the Plaintiff’s N4,300.00. I wonder what anyone can call this – certainly not justice, not to talk of equity. I appreciate that it has been the policy of this Court not to interfere with concurrent findings of fact of two Court below: Enang v. Adu (1981) 11 – 12 S.C. 25 at p.42; Okagbue v. Romaine (1982) 5 S.C. 133 at pp. 170 – 171; Lokoyi v. Olojo (1983) 8 S.C. 61 at pp. 68 – 73; Ojomu v. Also (1983) 9 S.C. 22 at p.53; Alade v. Alemuloke (1988) 1 N.W.L.R. 207 at p.212. This policy is however subject to two important exceptions. An appellate Court should ex debito justitiae interfere where there has been a miscarriage of justice as where the judgment appealed against is perverse or not the result of a proper exercise of judicial discretion: Ntiaro v. Akpan (1914 – 22) 3 N.L.R. 9 at p.10. It should also interfere where there has been some violation of some principles of law or procedure. In the case on appeal, the judgment of the learned trial Judge suffers from a serious violation of the elementary rules and principles of pleadings, it suffers from perversity in that the trial Judge descended into the arena of conflict and started considering an imaginary case not pleaded by the parties and making equally imaginary finding of fact and thereby turned himself into a partisan. The net result of these two errors was an obvious miscarriage of justice. This Court in Atolagbe v. Shorun (supra) considered some of the objectionable features which also one finds in the present appeal. At p.373 of the report of Atolagbe’s case, Aniagolu, J.S.C. observed:

‘The finding clearly ran counter to the evidence and the pleadings, and was a finding based not on the case formulated by the parties, but on an imaginary case formulated by the trial Judge on his own accord. The law does not permit such deviation from principle”.

In the same case at p.375 of the report, I observed:

“Perverse simply means persistent in error, different from what is reasonable or required …… A decision may be perverse where the trial Judge took into account matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious …….”

In this case, the trial Judge obstinately shut his eyes to the admission of the Defendants (in paragraph 6 of the Statement of Defence) that the Plaintiff paid the purchase money to their family. He also took into account matters which he ought not to, namely that 2nd Defendant hatched and carried out an elaborate fraud on the Plaintiff. This was not pleaded by anyone. Also ignoring the significance of the Defendants willingly paying the purchase price of N5,400.00 into Court makes the judgment of the trial Court hardly reconcilable with reason, common-sense or justice. That payment made voluntarily by the Defendants was an admission against interest. It is difficult to understand why that payment in, made no impress-ion on the learned trial Judge unless he was bent on giving judgment for the Defendants willy nilly. Thus the concurrent findings of fact in this case, made against the pleadings and against the admissible evidence cannot be allowed to stand.

Grounds 1, 2 and 3 of the Grounds of Appeal therefore succeed. These 3 grounds were bound to succeed on the pleadings of the parties. From paragraphs 5, 6, 7 and 8 of the Statement of Claim which were not effectively traversed by paragraph 8 of the Statement of Defence and which paragraphs are thus deemed to have been established at the hearing; from the admission of the Defendants in paragraph 6 of their Statement of Defence that the purchase money was in fact paid to the Dependants’ family, one arrives at the inevitable conclusions:

(i)      That the 2nd Defendant did not deal with the Plaintiff in his personal capacity.

(ii)     That the 2nd defendant was the intermediary between the Plaintiff and the Defendants and that he concluded the contract to sell 11 plots of lyiukwu land to the Plaintiff for and on behalf of the Defendants’ family.

(iii)    That the purchase price of N5,400.00 collected by the 2nd Defendant was paid over by the 2nd Defendant to his – the Defendants’ family.

(iv)    That in view of the above –

(a)     This Court has the power and jurisdiction to order and compel the Defendants’ family to refund and pay over to the Plaintiff the purchase price of N5,400.00 which he paid for a consideration that has wholly failed.

(b)     There could have been an order for specific performance if there was evidence that eleven plots are still left unsold in the lyiukwu land of the Dependants.

(c)     In lieu of specific performance, the Plaintiff will be entitled to damages which will be the difference, between the current purchase price of 11 (eleven) plots in the lyiukwu land and its neighbourhood and the N5,400.00 paid by the Plaintiff.

So far so good for Grounds 1, 2 and 3.

Ground 4 of the Grounds of Appeal complained that:

“4.     Error in Law: The Court of Appeal erred in law when it upheld the decision of the trial Court that the action is statute-barred and more particularly in the following passages of the judgment (Mamman Nasir, P.C.A.) –

“Even if it is assumed that there was a valid contract agreement between the parties, the said agreement was breached by the Respondents from the moment the Appellant asked to be put in possession (para. 7 of Statement of Claim) and was not put. In my opinion the Appellant had been caught by the limitation period under limitation Act 1923 or 1977”.

Particulars

(a)     Paragraphs 5 and 6 of the Statement of Defence were specific as to when formal conveyance will be given to the Appellant.

(b)     Appellant’s pleadings show that the case with Chief Ibeziako in Suit No. SC. 514/65 ended on the 16th of June 1972.

(c)     On the determination of the Respondent’s case with Ibeziako, Appellant demanded a conveyance but the Respondents refused to proceed with the sale.

(d)     The Appellant then filed his action on 10th of April, 1974.

In dealing with limitation of actions, one of the most fundamental questions to answer is: When did the cause of action accrue?

This crucial question is also the most difficult, as the answer will depend on the surrounding circumstances of each particular case. But may be a collateral question has to be answered first – what is meant by cause of action? In its best definition it consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment: Cooke v. Gill (1873) L. R. 8 C.P. 107; Read v. Brown (1888) 22 O.B.D. 128. When these facts have occurred and provided there are in existence a competent plaintiff and a competent defend-ant a cause of action is said to accrue to the plaintiff because he can then prosecute an action effectively. Thus the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action.

When did the Defendants come out openly to say that they will not convey the plots to the Plaintiff? That event would seem to be the last straw – the accrual of the cause of action. The defendants themselves pleaded in paragraph S of their Statement of Defence that the purchase of the plots of land was to be “in the future if the Defendant succeeded in winning the cases” – the dispute between the Defendants and Chief Ibeziako and Obosi people. In his Reply to the Statement of Defence at pp. 14/15 the Plaintiff also pleaded that the conveyance to him was to be made at the end of the case with Chief Ibeziako and that that case SC/514/65 was finally determined by the Supreme Court on 16th June 1972. Paragraph 4 of the Plaintiff’s Reply pleaded as follows:

“4.     On or about 5th January, 1974 the first Defendant as the head of Ojidoko Mazeli family informed the Plaintiff categorically of the inability of the Defendants’ family to convey the plots purchased”.

Exhibit C is the letter with which the Head of the Defendant’s family invited the Plaintiff to a meeting at his residence on 7th January 1974. It was in this meeting that the Plaintiff was told that the family will not convey the plots purchased to him. The present action was filed as per T. R. No. 360951 dated 10/4/74. Three months and 3 days after the event (the refusal of the Defendants’ family to convey the plots) whereby the Plaintiff’s cause of action became complete. The Plaintiff’s case was thus not statute-barred. Ground 4 succeeds. All the grounds of appeal having now succeeded, the appeal also succeeds.

I will and hereby do set aside the judgment and orders of Onitsha High Court in this case especially the order for the amount of N5,400.00 paid out of Court to the Defendants. I also set aside the judgment and orders of the Court of Appeal Enugu Division dismissing the Plaintiff’s appeal and awarding N300.00 costs against him. In their place I make the following orders:

1. The sum of N5,400.00 paid into Court by the Defendants if already with-drawn should be paid by the Defendants to the Plaintiff immediately.
2. The Plaintiff is entitled to damages being the difference between the current price of 11 plots in the area and neighbourhood of the lyiukwu land in Onitsha and the price paid by the Plaintiff to the Defendants.
3. The Administrative Judge Onitsha Judicial Division of the Anambra State High Court will assess the damages due to the Plaintiff.
4. The Plaintiff is entitled to costs as follows –

(i)      In this Court          N500.00

(ii)     In the Court of Appeal     N300.00

(iii)    In the High Court  N250.00

ESO,  J.S.C.: I have had the priviledge of a preview of the judgment of my learned brother Oputa, J.S.C. I have also read the concurring judgment of my brother Craig, J.S.C. I am in support of both for the reasons eminently given by them.

It is true this Court will not lightly interfere with concurrent findings of fact. But in this case the plaintiff was eminently posited to succeed both by reasons of his pleadings and evidence adduced and in particular admissions made by the Defendants.

I can only recommend the injunction contained in the judgment of my brother Craig, J.S.C. as regards counsel’s duties in filing pleadings.

I abide by all the orders contained in the judgment of my learned brother Oputa, J.S.C.

KAWU,J.S.C.: I have had the advantage of reading in draft the lead judgment of my learned brother, Oputa, J.S.C. which has just been delivered. I agree with his reasoning and his conclusions and for the reasons set out in the said judgment, I too will allow the appeal. I abide by all the consequential orders made in the lead judgment including the orders as to costs.

WALI, J.S.C.: I have read before now, the lead Judgment of my learned brother, Oputa, J.S.C. and I agree with his reasoning and the conclusion that the appeal has merit and it ought to have succeeded.

The facts of the case have been briefly but adequately stated in the lead judgment of my learned brother and I do not think there is need to repeat them.

The general principle is that an appeal court does not usually interfere with con-current findings of fact by the lower courts. See Lucy Onowan AND Anor. v. J.J. Iser-hien In Re Lucy Onowan – Appellant (1976) 9-10 S.C. 227. But where such findings are found to be perverse or cannot be supported having regard to the evidence, the appeal court has a duty to interfere. See Christopher Okoro v. Eunice Uzoka (1978) 5 S.C.77; Fashanu v. Adekoya (1974) 1 All N.L.R. (Pt. 1) 35.

Considering the pleadings and the evidence adduced in this case, the appellant has proved his claim that the Respondents agreed to sell eleven plots of land at lyi-Ukwu Layout along Oguta Road, Onitsha, and that pursuant to that agreement the appellant paid to the respondents the sum of N5,400.00.

The appeal therefore succeeds and it is accordingly allowed. I abide by the consequential orders made by my learned brother, Oputa, J.S.C. in his lead judgment.

CRAIG,J.S.C.: I have had the advantage of a preview of the judgment just delivered by my learned brother Oputa, J.S.C. and I agree with his reasoning and conclusions.       I however, wish to add a few words of mine purely for the sake or emphasis.

Normally, the Supreme Court does not interfere with concurrent findings of facts of the lower Court unless it sees good reason to do so. See

1. Coker v. M. Oguntola (1985) 2 N.W.L.R. 87 Chinwedu v. Mbamali (1980) 3-4 S.C. 31 at 75

However, the instant case on appeal falls within the exception to the rule.

The case for the plaintiff was that he bought 11 plots of land out of the layout of the defendant’s family land. He paid the sum of N5,400.00 to the 2nd defend-ant for these plots, on the understanding that the said plots would be conveyed to him when the case which the family then had with the Obosi family was concluded. According to the plaintiff, the Supreme Court gave a final judgment in the case in 1972 and the plaintiff thereafter called on the defendants to convey the land to him but they refused; hence this action.

As shown on the writ of summons the defendants had been sued in a representative capacity for themselves and on behalf of all other members of the Mazeli-Alamuzo-Ojidoko family of Ogbeodogwu quarters Onitsha. The plaintiff’s case on the pleadings was that:

“3.     “Between 1958 and 1964, the defendants acting for themselves and on be-half of their family and as absolute beneficial owners, sold to the Plaintiff Eleven Plots of their land situated at lyi-Ukwu Layout along Oguta Road after Queen of the Holy Rosary College now known as Girls’ High School, Onitsha at the price of ₤250.00 [now N500.00 (Five hundred Naira) per plot.]

“4.     By his letter dated the 11th of February, 1963, the 2nd defendant who was acting as Secretary to the Board of Trustees confirmed the price of each plot as stated in paragraph 3 ante as well as other conditions relating to the transaction. This letter would be founded upon at the trial.

“5.     In consideration for the sale, the plaintiff paid to the Defendants the total agreed purchase price of N5,400.00 and the receipts covering this amount and dated – 3/12/58, 27/8/62; 1/9/62; 12/2/63; 1/7/63; 12/7/63; 15/6/64; 7/8/64 and 31/7/64 were duly issued to the Plaintiff by the 2nd Defendant.

“7.     On the completion of the payment of purchase price, the Plaintiff requested the Defendants to put him into possession and to allocate to him the plots so purchased.

“8.     Despite repeated demands the Defendants kept on prevaricating until the last civil war set in. Meanwhile, the defendants started to sell the plots at their lyi-Ukwu land at enhanced price.”

The plaintiff then avers that the defendants have refused to convey the property to him and he therefore asks for:

(a)     specific performance (this claim was abandoned at the Court of Appeal) or in the alternative.

(b)     the return of the purchase price (N5,400.00) paid to the defendants and

(c)     Special and general damages.

In an interesting reply the defendants denied generally all the allegations of facts contained in the statement of claim and put the plaintiff to the proof of them; but specifically they averred in the remaining paragraphs as follows:

“4.     “In further reply thereto, the Defendants state that until 1973, the 1st and 3rd Defendants were not members of any Board of Trustees of the Defendants’ family land: Before 1973, the 2nd Defendant and other people represented the family in land and other transactions.

“5.     The Defendants deny paragraph 3 of the Statement of Claim and will put the plaintiffs to the strictest proof of the allegations contained therein. In further reply thereto the Defendants state that as from 1955 up to 1970 IYIUKWU land was in dispute between the Defendants on one side and Chief Ibeziako and Obosi people on the other.

“6.     The Plaintiff was aware of the cases but decided to advance his own money and that of some of his relations to the Defendants’ family for the purchase of some land in the future if the Defendants succeeded in winning the cases. The documents respecting these and other transactions were destroyed during the civil war.”

Now a close inspection of the Statement of Defence shows that the Defendants have been very evasive in their answers: they have neither pleaded specifically to the allegations made against them, nor have they answered the “points of sub-stance” contained in the Statement of Claim as required by O. 33 r. 11 of the Rules of Court which reads as follows:

“When a party denies an allegation of fact he must not do so evasively, but answer the point of substance. And when a matter of fact is alleged with divers circumstances it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given.”

In this respect, I must draw the attention of Counsel to the timely warning of the Supreme Court in the case of J.J. Enwezor v. Central Bank of Nigeria Ltd. (1976) 3 S.C. 45 at 56 where Madarikan J.S.C. stated:

“In settling pleadings it is essential for Counsel to always bear in mind that pleadings –

“are not to be considered as constituting a game of skill between the advocates. They ought to be so framed as not only to assist the party in the statement of his case but the Court in its investigation of the truth between the litigants. (per Phillimore J. in The Why Not (1868) L. R. 2A AND E 265”

Now let us briefly examine the relevant portions of the Statement of Claim and see how the Defendants have reacted to the allegations contained therein.

1. In paragraph 3 of the Statement of Claim, the Plaintiff pleaded that the Defendants’ Family sold to him eleven plots of land at lyi-Ukwu Layout along Oguta Road, Onitsha at the rate of N500.00 per plot. The important matters which the Defendants had to give answers to are –

(a)     Did the Family have a piece of land along Oguta Road in Onitsha?

(b)     If so, was this land laid into plots which they called lyi-Ukwu Layout?

(c)     Did they offer these plots for sale to the public at N500.00 per plot?

(d)     Did they in fact sell eleven of these plots to the plaintiff at this rate?

In answer to these questions the Defendants merely denied all the allegations and left it at that – vide paragraph 5 of Statement of Defence. They did not offer any explanations at all.

Surely this is not good enough. In trials before the High court, parties owe it a duty to the Court to place all their cards on the table. They should admit what is admissible and deny what is not true. At the end of the exercise it should be possible for the Court to ascertain the real matter in controversy and proceed to deal with it.

For instance in dealing with paragraph 3 of the Statement of Claim, the Defend-ants could, say, admit that they had a lay-out at lyi-Ukwu but deny that the family had sold any plot of land to the Plaintiff; or they might plead that they only sold four plots to the Plaintiff and that he had refused to pay for these plots. It is to be understood that their answer will eventually form the basis of their case before the Court.

2. In paragraph 5 of the Statement of Claim, the Plaintiff alleged that he paid to the Family through the 2nd Defendant issued nine receipts (particulars of dates given) to cover this amount.

again the allegations to which the Defendants should give answers to are:

(a)     Was there an agreement between the Plaintiff and the Family that the Plain-tiff should pay N5,400.00 for the plots sold to him?

(b)     Did he in fact pay this amount to the Family through the 2nd defendant?

(c)     Did the 2nd Defendant issue the nine receipts (specified in the paragraph) to the Plaintiff?

The lame reply given to all these allegations was that the Defendants were not in a position to admit or deny the allegations – see paragraph 8 of Statement of Defence. Now this is a rather annoying and ineffective answer to the specific averments contained in the Statement of Claim and it does not do any credit to the case for the Defendants.

Again the Defendants could have admitted that the 2nd Defendant did collect N5,400.00 from the Plaintiff, but that the family did not authorise him to do so and that he was not acting for the family.

If that defence had been put forward and believed it would have been a valid answer to the plaintiff’s claims. But I have looked through the Statement of Defence and cannot find that any such defence was set up. In fact, I cannot find any concrete defence put up by the Defendants. Rather than that, it would appear that certain matters pleaded in other paragraphs of the Defence tended to support the plaintiff’s case. For instance the Defendants pleaded that:

“4.     ……… Before 1973, the 2nd Defendant and other people represented the Family in land and other transactions.

5. …… The Defendants state that as from 1955 up to 1970 IYIUKWU land was in dispute between the Defendants on one side and Chief Ibeziako and Obosi people on the other.
6. The Plaintiff was aware of the cases but decided to advance his own money and that of his relations to the Defendants’ Family for the purchase of some land in the future if the Defendants succeeded in winning the cases.

The documents respecting these and other transactions were destroyed during the civil war.” (Italics ours)

It is obvious that in these three paragraphs the Defendants had impliedly admitted:

(a)     That there was some transaction between the plaintiff and the Defendants’ Family in respect of the land at lyi-Ukwu.

(b)     That the 2nd Defendant and other members of the Family had represented the Family in the transaction.

(c)     That the plaintiff had bought and paid for (i.e. “advanced his own money) some plots of land at lyiukwu on the understanding that if the Family won the case against the Obosi people, they would confirm the sale.

(d)     That there were documents in support of the transaction, but these had been destroyed during the Civil War.

In my view the Defendants’ admission of these four points makes it unnecessary for the plaintiff to offer any further evidence on them. Nonetheless the parties gave evidence in support of their pleadings and significantly the 1st Defendant, who was the head of the Family and the only witness for the Defence made a further admission of the plaintiff’s case in his testimony.

This is what he said:

“I do not know that my family got some money from the plaintiff. Plaintiff only told me so. But 1 asked the 2nd defendant if what the plaintiff told me about his paying money to members of our family through him was correct and he admitted it. But said that the plaintiff has no records. I wanted to know from the 2nd defendant whether money collected by him from the plaintiff was for the family or for himself personally but he told me that the plaintiff did not complete the purchase price. He did not tell me the total money which the plaintiff paid to him and receipted for.”

In the light of this evidence, I am of the clear view that the plaintiff was entitled to succeed in his claims.

However, in his judgment the learned trial Judge after a review of all the evidence, found as a fact that:

‘There is no doubt that the plaintiff bought some plots of land at lyiukwu layout between 1958 and 1964. There is also no doubt that the 2nd Defendant ….. was the intermediary through whom the Plaintiff purchased those plots of land.”

The Judge then continued:

“It is, however, doubtful whether the plaintiff dealt with the Defendants as members of ….. Ojidoko family.”

Now, there was no reason whatsoever for the trial Judge to entertain this doubt especially in view of the admission which had been made on the pleadings and in the defendant’s evidence. The trial Judge in his judgment also stated:

“I am satisfied that if the Plaintiff paid out any money at all in respect of lyiukwu land he paid it to the 2nd Defendant who issued him with fake receipts.”

…….. I am inclined to think that the Plaintiff all the time relied on the 2nd Defendant who undoubtedly set out to dupe the Plaintiff …… I have no doubt that the plaintiff is a victim of an elaborate fraud carefully hatched out by the 2nd defendant alone.”

None of these remarks was pleaded or supported by the evidence before the Court. There has been no complaint that the receipts issued by the 2nd Defend-ant were faked, – indeed, those receipts were in fact admitted in evidence without any objection. Nor did any of the parties suggest that the 2nd Defendant had been fraudulent. The Family did not deny that the 2nd Defendant collected the money on their behalf. In their Statement of Defence they admitted that the Plaintiff made payment to the Family on the plots. What is more, during the trial of the case the Defendants applied to the judge to allow them to pay the amount involved (N5,400.00) into Court and they did so. The questions is, could they have paid this amount into Court if they had not received it from the Plaintiff? I think not; in those circumstance one finds it difficult to ascertain the basis on which the trial Court had come to find that the 2nd Defendant was fraudulent?

It seems to me that the findings of the trial Judge were diametrically against the run of the evidence before him. What is more, he appears to have set up a case for the Defendants totally different from that which the parties themselves had put forward and in such circumstances any judgment based on such perverse finding will be set aside. See:

Chief Frank Ebba v. Ogodo (1984) 4 S.C. 84 Okafor v. Idigo (1984) 6 S.C. 1

Anyaoke v. Dr. F. Adi (1986) 3 N.W.L.R. 731 Fashoro v. Abdallah (1987) 3 N.W.L.R. 134

In the instant case, I am satisfied that the findings made by the trial Court were contrary to the trend of accepted evidence and it was on this faulty basis that the plaintiff’s claims were dismissed, I am of the view that that judgment should not be allowed to stand.

In the Court of Appeal, the findings of the trial Judge were upheld. That Court agreed with the Court of first instance that the Defendant Family did not sell any plots of land to the Plaintiff and that he was therefore not entitled to succeed. For the reasons already given as well as for those contained in the lead judgment, 1 am of the view that that finding cannot be supported by evidence.

In the result and for the reason more fully set out in the lead judgment with which I agree, I would allow this appeal, set aside the finding of the two lower courts and enter judgment for the plaintiff as proposed by my learned brother Oputa, J.S.C. I also abide by his order for costs.

Appeal allowed.