BY EJEME IKEKHUA

CASE REVIEW OF

(2010) 7 N.W.L.R. (PT. 1192)

SYNOPSIS

TABLE OF CASES BRIEF FACTS OF THE CASE ISSUES FOR DETERMINATION ARGUMENT OF COUNSEL DECISION COMMENTS/CONCLUSION

TABLE OF CASES

UMORU V. IJUMU LOCAL GOVERNMENT COUNCIL PAGE 1

EDOHOEKET V. INYANG PAGE 25

IGWE V. EZEANOCHIER PAGE 61

CASE NO.1

UMORU V. IJUMU LOCAL

GOVERNMENT COUNCIL PAGE 1

BRIEF FACTS OF THE CASE

The appellant instituted an action against the respondent at the lower court and sought inter alia an order for the return to the appellant of the 130G Cat Grader detained by the respondents at Esubu check point in okene, Kogi State or payment of the sum of N50,000 being the cost of transporting the grader from Ogidi to Okene; the sum of N2,940,000.00 (Two Million Nine Hundred And Forty Thousand Naira) only being the appellants daily loss of income from 17/12/2003 which was the date the appellant was wrongfully prevented from removing his grader to 21/2/2004.

The appellant’s case was based on detinue. The appellant hired his Caterpillar Grader to PW3 on behalf of Masters Concepts Limited for 9 (nine) days .

The 2nd respondent acting as an agent of the 1st respondent refused to allow the appellant to remove his grader.

The trial court dismissed the appellants claim and dissatisfied the appellant appealed to the court of appeal contending that the trial court was wrong to hold that the appellant could not recover against the respondent because there was no privity of contract.

ISSUES FOR DETERMINATION

ISSUES DECIDED BY CA

. Whether it was necessary for the plaintiff to establish privity of contract between the defendants and himself before this action, which is founded in tort, can succeed.

. Whether from the totality of the evidence adduced at the trial of this case, the plaintiff had established a case of detinue against the defendants.

. Whether having regards to settled principles of law relating to award of damages in detinue, the quantum of damages awarded by the learned trial judge in the case is correct?

. Whether the learned trial judge had properly evaluated the evidence adduced by the parties at the trial of this case.

ARGUMENT OF COUNSEL

ISSUE ONE: the appellant can claim against the respondent even though there is no privity of contract because his action is based on wrongful detention of his chattel

ISSUE 2: the appellant stated that a case of detinue was

established and stated the ingredients. The respondent said he did not establish ownership so the action must fail.

ISSUE 3: The quantum of damages awarded by the trial judge was not correct.

ISSUE 4 : The appellant submitted that the learned trial judge did not properly evaluate the evidence adduced before him.

DECISION

1. The action is founded in tort known as detinue and so the doctrine of privity of contract is irrelevant and does not apply

2. The court found that the plaintiff had established a case of detinue against the defendant.

3. The court of appeal disagreed with the learned trial judge on some parts of the claim and resolved this issue in favour of the appellant.

4. The court of appeal then set aside the findings made by the trial judge.

.

COMMENTS/CONCLUSION

I agree with the judgment Even though the appellant was not a

privy to the contract with the respondents that cannot preclude him from claiming the remedies sought especially since his action is not based on the contract.

CASE NO. 2

EDOHOEKET V. INYANG PAGE 25

BRIEF FACTS OF THE CASE The respondent’s late father in 1958 asked his sister the former 1st

defendant to help him buy a piece of land in Eket for which he sent her money.

The respondent’s late father put his half bro PW2 in charge of the construction work .

Unfortunately the respondents father died in the 1962 while the respondent was still so young so the family put the former 1st defendant in charge of the property to be held by her in trust for the respondent and his siblings and that the proceeds of rent be used to carter for them.

Later in 1983 the former 1st defendant laying claims to the property wanted to write a will on how the property is to be shared this was opposed by the respondent who informed elders of the family.

Years later the respondent realized that the former 1st defendant had surreptitiously and through misrepresented facts acquired the certificate of occupancy on the said land

Hence the respondent brought this action that the certificate of occupancy was null and void having being obtained by misrepresentation and for an order declaring the plaintiff the owner of the land and perpetual injunction restraining the defendants

The court granted all the reliefs sought by the plaintiff and also granted some unclaimed reliefs in favour of the defendant

Aggrieved the appellant appealed and the respondents also cross appealed

ISSUES FOR DETERMINATION

Whether the plaintiff proved his case beyond the preponderance of evidence to warrant the declaration made by the TC.

Whether the TJ was right to give 5 rooms to the appellant when based on the evidence, declared the respondent as the owner.

Whether the TJ was right to grant 5 rooms to the defendant without a counter claim for declaration or partitioning.

ARGUMENT OF COUNSEL

ON ISSUES 1

. Appellant : the plaintiff is to rise and fall on the strength of his case and not on the weakness of the defence.

. Respondent: proved his case beyound reasonable doubt. Failure to cross examine means admission.

ON ISSUE 2 &3

. Appellant: Exhibit B which is based on arbitration which the court relied upon was admitted in error because it created title in land & was not registered, was not signed by the appellants, they both relied on receipt as proof of ownership

. Respondent: trial court went outside the reliefs sought by either of the parties to grant the 5 rooms to the appellant especially since it had made a declaration in favour of the respondent. Also the courts order is null & void

because it is not based on any relief sought

DECISION

The court of appeal upheld the decision of the trial court that the certificate of occupancy obtained by the deceased former 1st defendant is null and void, having being obtained by misrepresentation of facts.

On the cross appeal the court of appeal held that it is trite law that the courts do not grant to the plaintiff or counter claimants a remedy which has not been claimed and established by the pleadings and evidence

COMMENTS/CONCLUSION

I agree with the decision of the CA dismissing the appeal and upholding the cross appeal on the grounds that the court is not a charitable organization and would only grant reliefs that have been sought.

CASE NO. 3

IGWE V. EZEANOCHIER

PAGE 61

BRIEF FACTS OF THE CASE The Appellants filed the substantive application

for the enforcement of their fundamental rights to freedom of association, freedom of movement, freedom of expression, and right to dignity of their persons.

The trial court held that the main issue in the appellants case was where to pay their security levy rather than the breach of their fundamental rights.

It therefore dismissed the application on the grounds that it was improperly commenced under the Fundamental Rights (Enforcement Procedure) Rules.

Dissatisfied with the decision of the trial court, the appellants appealed to the court of appeal.

ISSUES FOR DETERMINATION The CA formulated 2 issues for

determination but took both together since they were inter related:

Issue 1: Whether the appellant’s complaint was properly brought under the Fundamental Rights (Enforcement Procedure) Rules and thereby entitled to the reliefs sought. (ground 1 and 5)

. Issue 2: Whether the appellants complain was about where to make payment of security levy rather than breach of their fundamental rights (ground 3 of the ground of appeal)

ARGUMENT OF COUNSEL

Appellants: A close look at the reliefs sought by the appellant

shows that the substantial reliefs sought is the enforcement of the Fundamental Rights of the appellant and not the dispute over where to pay security levy. EFR is the main relief sought and not the ancillary relief.

Respondent: The respondents counsel on his part contended that

the dispute between the parties was where the appellants should pay their security levy and this controversy cannot be subject of enforcement of fundamental rights but an ordinary writ of summons.

DECISIONCA:

The court therefore held that the appellant’s complaint was properly brought under the Fundamental Rights (Enforcement Procedure) Rules and are entitled to the reliefs sought being that their complaint was about the infringement of their fundamental rights by the respondents rather than where to make payment for security levy.

The appeal was considered meritorious and it succeeded and the judgment of the trial court was set aside. And the reliefs sought by the appellant against the respondents were also granted.

COMMENTS/CONCLUSION

I agree with the CA’s decision especially since the facts in support of the application at the TC showed that appellant’s actually proved the infringement of their fundamental right and it was wrong for the TC say it was based on where to pay levy.