May 25, 2025
Legalpedia Citation: (2010) Legalpedia (CA) 16225 In the Court of Appeal HOLDEN AT CALABAR Mon Jul 12, 2010 Suit Number: CA/C/16/2010 CORAM PARTIES 1. GORDON TOM IWOK […]
CORAM
PARTIES
1. GORDON TOM IWOK & ORS
1. UNIVERSITY OF UYO2. AKWA IBOM STATE PROPERTY INVESTMENT COY (APICO)
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiffs/Appellants by an Originating Summons sought the following reliefs; a declaration of this Honourable Court that in all matters concerning the Ewet Housing Estate, Uyo, as occupied by the Plaintiffs vis-a vis the various communication between the Plaintiffs and the 1st Defendant on the one hand, and between the Plaintiffs and 2nd Defendant/Government on the second hand, the meetings, letters, dealings, negotiation and payments made by the 1st Defendant to the 2nd Defendant – all between the period of 1991 to 2007, there was and is a fiduciary Trust Relationship between the 1st Defendant and the Plaintiffs and the 1st Defendant acted as Trustee on behalf of the Plaintiffs, whether a Trustee who purchased property on behalf of his beneficiary/subjects does not owe the said beneficiaries/subjects a duty to formally handover the said purchased property to the said beneficiaries/subjects and to render account and refund excess monetary deductions from the beneficiary’s/subjects’ salaries if it had indeed been making such monthly deductions on the property purchased on behalf of his subjects among others. The 1st Respondent entered a conditional appearance and filed a notice of preliminary objection. With the leave of court, the 2nd Respondent entered appearance. Written addresses ordered by the trial court in the preliminary objection raised by the 1st Respondent were duly filed, adopted and relied on by Learned Counsel for the respective parties. In its ruling, the trial Court over-ruled and dismissed the preliminary objection holding that the action commenced by originating summons is proper in the circumstances. In opposition to the originating summons, the 1st Respondent filed a counter-affidavit. The trial court reviewed the case before it; and dismissed the suit on grounds that it was very hypothetical, speculative and spurious. Aggrieved by the said judgment, the Appellant has filed an appeal before this court.
HELD
Appeal Allowed
ISSUES
Whether the whole judgment delivered by Hon. Justice E. S. Chukwu of Federal High Court Uyo, on 5/10/2009 was not a miscarriage of justice.
RATIONES DECIDENDI
ISSUE FOR DETERMINATION – WHAT IS AN ISSUE FOR DETERMINATION IN AN APPEAL?
“In an appeal an issue is question to which parties have narrowed their several allegations and upon which they desire to obtain a decision of the Court. It may be a question of Law, or fact. See Eke v. Okwaranyia (2001) 4 SC NJ 307 102. It is a short question. Formulation of issues in appeal is not an exercise in easy writing.”
FORMULATION OF ISSUE FOR DETERMINATION – WHETHER IT IS APPROPRIATE TO FRAME AN ISSUE FROM EACH GROUND OF APPEAL
“It is not good practice to make a habit of framing an issue from each ground of appeal. The principle of formulation of issues is that an issue is framed from one ground in appropriate cases, but usually from several grounds.”
FORMULATION OF ISSUE FOR DETERMINATION – STATUS OF ISSUES FOR DETERMINATION FORMULATED IN EXCESS OF THE GROUND OF APPEAL
“Even if the substantive issues framed by Learned Counsel for the 2nd Respondent are derived from the grounds of appeal the number of issues presented by the 2nd Respondent would be in excess of the grounds of Appeal in violation of the rule that whereas an issue can be tied to more than one ground of Appeal the reverse is not the case. See Ayangadie v. O.A.U.T.H.C.M.B (2001) 7 NWLR (Pt 711) 187. The issues framed by Counsel for the 2nd Respondent in addition to the issues formulated by the Appellant which he adopted constitute surplussage and are hereby struck out. See Dung v. Gyong (1994) S NWLR (Pt 362) 315, Labiy v. Anretiola (1992) 8 NWLR (Pt 258) 139 Aduku v. Adejoh (1994) 5 NWLR (Pt 346) 582 .”
AGENT – WHETHER AN AGENT IS SUBJECT TO FIDUCIARY OBLIGATION
“An agent resembles a trustee in that each is subject to Fiduciary Obligation toward his principal in the case of agent and his beneficiary in the case of a Trustee. See Snell’s “Principles of Equity” 27th Ed page 89.”
“TRUST”- DEFINITION OF THE TERM “TRUST”
“A trust has been defined thus:
A Trust …… is the relationship which arises wherever a person called the trustee is compelled in Equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons (of whom he may be one and who are termed cestuis que trust) or for some object permitted by Law, in such a way that the real benefit of the property accrues, not to the Trustee but to the beneficiaries or other objects of the Trust
See Snell’s Principles of Equity 27th Edition P.87.”
TRUST – ORIGIN AND MEANING OF TRUST
“The concern of trust Law is that money or property is owned and managed on behalf of another. The word trust traces its origin to, and means substantially the same thing as “the use” in the English property law. The word use is derived from the Latin phrase “ad opus” meaning “on his behalf See Mait Land, Equity, “P.24 Megarry’s Manual of the Law of Real Property” by P. V. Banker 4th Edition page 65.”
TRUSTEE/BENEFICIARY RELATIONSHIP- ESSENTIAL ELEMENT OF A TRUSTEE/BENEFICIARY RELATIONSHIP
“An essential element of the trustee/beneficiary relationships is that the property subject of the trust must be vested in the trustee.”
DOCTRINE OF CONSTRUCTIVE TRUST – WHETHER THE DOCTRINE OF CONSTRUCTIVE TRUST CAN BE INVOKED IN FAVOUR OF A PERSON WITHOUT TITLE TO THE PROPERTY
“Even the doctrine of constructive trust cannot be invoked in absence of evidence that the 1st Respondent have acquired title to the housing units. See Anuruba v. ECB (2005) 10 NWLR (Pt 933) 321.”
BURDEN OF PROOF- ON WHO LIES THE BURDEN OF PROVING FACTS WITHIN ONES KNOWLEDGE
“The 1st Respondent did not provide a text of the statement of its Vice-Chancellor allegedly misunderstood by the Appellants, for he who alleges has the burden of proving what he alleges, the existence of which he wants the Court to believe. See S.139 of Evidence Act. S. 142 of the Evidence Act provides that:
“When any fact is especially within the knowledge of any person the burden of proving that fact is upon him.”
“MISCARRIAGE OF JUSTICE”- MEANING OF “MISCARRIAGE OF JUSTICE”
“The implication of miscarriage of justice is that the trial court has committed both misfeasance and non-feasance during the trial. It means that what is done is not justice according to law. See Okrokwo v. Udoh (1997) 9 NWLR (PT 519) 16, Awote v. Owodumi (No2) (1987) 2 NWLR (PT 57), Adelaja v. Oguntaye (2001) 6 NWLR (PT 719) 603. Miscarriage of justice has been defined as such departure from rules which permeate all judicial procedure as to make that which happened not in the proper sense of the words judicial procedure at all. See Devi v. Roy (1946) AC 508.”
COURT- INSTANCE A MISCARRIAGE OF JUSTICE SHOULD BE DECLARED
“The trend is that a miscarriage of justice should be declared only when the court after an examination of the entire case, including the evidence, is of the opinion that it is reasonable that a result more favourable to the appealing party would have been reached in the absence of the error. See Total (Nig) Ltd v. Wilfred Nwako (1978) 5 SC 1 Nnajiofor v. Ukonu (1986) 4 NWLR (pt. 36) 505, Devi v. Roy supra.”
CASES CITED
Not Available
STATUTES REFERRED TO
Court of Appeal Act 2004|Evidence Act, 2011|
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