Legalpedia Citation: (2014-02) Legalpedia (SC) 89115
In the Supreme Court of Nigeria
Fri Feb 21, 2014
Suit Number: SC. 86/2008
CORAM
PARTIES
DR. USENI UWAHMRS. SILKE UWAH APPELLANTS
DR. EDMUNDSON T. AKPABIO & ANOR
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiffs/Respondents commenced an action at the trial court against the Defendants/Appellants for a declaration that the partnership of the Plaintiffs and the Defendants in Mfon Abasi Nursery/Primary School is still in existence and not yet dissolved, a declaration that they the Plaintiffs are still part owners of the School and are entitled to jointly manage same with the Defendants and share in the profits and liabilities, an injunction restraining the Defendants from continuing the management of the School until partnership is dissolved, and order of court appointing an officer of Akwa-Ibom State judiciary as a receiver to manage the affairs of the School for both parties and to dissolve the partnership and share the proceeds equally to the Partners. The Defendant/Appellants at the trial court filed a defence and counter- claim seeking a declaration that they are entitled to possession of the school, an order for a refund of monies wrongly paid to the Plaintiffs, an injunction and a declaration that the said school belongs to them. The trial court found for the Plaintiffs and dismissed the Defendants’ counter-claim. Dissatisfied, the Defendants appealed to the lower court (Court of Appeal, Calabar division) which affirmed the trial court’s judgment. Still dissatisfied, the Defendant/Appellants have now appealed to this court.
HELD
Appeal dismissed
ISSUES
1. Whether the Learned Justices of the Court of Appeal were right in upholding the finding and action of the Learned Trial Judge, of excluding and/or rejecting evidence of further acts, meetings, decision and/or agreements made, held transpired and/or taken by or between the Appellants and Respondents, subsequent to exhibits 3 and 4, on the basis of exclusion of oral evidence by documentary evidence under section 132 of the Evidence Act, thereby resulting in the dismissal of the Appellant’s appeal?
2. Whether the Learned Justices of the Court of Appeal were right in refusing to hold the Partnership liable and committed to the action of the Solicitor engaged by both the Appellants and the Respondents to dissolve the same and sell the school (the subject of the partnership), of collecting the agreed deposit for the sale of the school to and from the Appellant and for extending the deadline for the payment thereof, under the law of Agency after upholding the finding of the learned Trial Judge that the said Solicitor was a common enemy to both the Appellant and the Respondents?
RATIONES DECIDENDI
CONCURRENT FINDINGS OF FACT- WHEN AN APPELLATE COURT CAN INTERFERE THEREWITH
“An appellate court’s interference with concurrent findings of fact is only allowed where the findings are shown to be perverse or that same is not the result of a proper exercise of discretion.” PER MUSA DATTIJO MUHAMMAD JSC
CIVIL SUIT- HOW DECIDED-PRINCIPLE THEREOF
“Civil suits are decided on the balance of probabilities; put differently on the preponderance of evidence. The principle requires that the totality of the evidence of both sides is taken into account and appraised in determining each side’s quantum. An imaginary scale is then used to determine which side’s evidence is”. PER MUSA DATTIJO MUHAMMAD JSC
CONCURRENT FINDINGS OF TWO LOWER COURTS-ATTITUDE OF APPELLATE COURTS WITH RESPECT TO INTERFERENCE OF
“The law had long been settled that once the findings of two lower Courts are reasonably justified by the evidence and no error in law, substantive or procedural, that leads to a miscarriage of justice is made by the lower Courts, this Court will not interfere with such concurrent findings of facts but must treat them with due respect”. PER MAHMUD MOHAMMED
REVIEW OF EVIDENCE-CONDITIONS WHERE THE SUPREME COURT CAN REVIEW EVIDENCE
“The well settled practice of this court is to be slow, or decline to review the evidence a third time unless there is proof of miscarriage of justice or a violation of some principle of law or procedure, or if the finding is found to be perverse”. PER BODE RHODES-VIVOUR JSC
AGENCY RELATIONSHIP-WHERE CONTRACT IS MADE BY AN AGENT ACTING WITHIN THE SCOPE OF HIS AUTHORITY FOR HIS DISCLOSED PRINCIPAL-WHETHER CAN SUE OR BE SUED UPON THE CONTRACT
“As a general rule, a contract made by an agent acting within the scope of his authority for his disclosed principal, in Law, is the contract of the principal and the principal not the agent is the person to sue or be sued upon the contract.” PER MUSA DATTIJO MUHAMMAD JSC
PERVERSE DECISION-WHEN IS A DECISION PERVERSE?
A decision is said to be perverse see,Adimora v. Ajufo (1988) 3 NWLR (PT 80) 1 and Ihewuezi v. Ekeanya (1989) 1 NWLR (pt96) 239, where:
(a) It is speculative and not based on any evidence or
(b) The court took into account matters which it ought not to have taken into account or
(c) The court has ignored the obvious PER MUSA DATTIJO MUHAMMAD JSC
AGREEMENT-BINDINGNESS OF ON PARTIES
“The principle has equally become trite that an agreement, where one is established to exist, necessarily binds the parties thereto. Whenever parties enter into an agreement in writing they are bound by its terms and neither the parties nor the court is legally allowed to read into the agreement terms on which the parties did not agree.” PER MUSA DATTIJO MUHAMMAD JSC
CASES CITED
ACN v Lamido & 4 ors 2012 2 SC (Pt. ii) p. 163Adimora V Ajufo (1988) 3 NWLR (PT. 80) 1Are v Apaye (1990) 2 NWLR (Pt 132) 298Atolagbe V Shorun (1985) NWLR (PT. 2) 360Balogun V Akanji (1988) 1 NWLR (PT. 70)Dibiamaka v Osakwe (1989) 3 NWLR (Pt. 107) 101Dr. Tunde Bamgboye V University Of Ilorin & Anor (1999) 10 NWLR (PT. 622) 290 at 329Iroegbu v. Okwordu (1990) 6 NWLR (Pt. 159) 643Koik V Magnusson (1999) 8 NWLR (PT. 615) 492 AT 514Larmie V D.P.M.S LTD (2005) 18 NWLR (PT. 958) 438Military Gov. of Lagos State & 4 Ors v. Adeylga & 6 Ors 2012 2 SC (pt. 1) p.68Niger Progress Ltd V North East Line Corporation (1989) 3 NWLR (PT. 107) 68Odutola V Alleru (1985) 1 NWLR (PT. 1) 92Ojibah V Ojibah (1991) 5 NWLR (PT 191) 296 AT 314Osuji v. Ekeocha (2009) 16 NWLR (pt 1166) 81Rabiu V. The State (1980) 8-11 SC 85R-Benkay Nig. Ltd. v. Cadbury Nig Plc 2012 3 SC (Pt. iii) P 169Samuel Osigwe V. PSPLS Management Consortium Ltd & Ors (2009) 3 NWLR (PT. 1128) 378
STATUTES REFERRED TO
None