OVERSEAS CON. CO. LTD. V. CREEK ENT. LTD. & ANOR.

• Pages: 1371-1388

OVERSEAS CON. CO

. LTD. V. CREEK ENT. LTD. & ANOR.

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1371

From the records, it is clear and learned counsel for the respondent, Mrs.

Uzoewulu, finally conceded that the prosecution failed to establish any nexus be-

tween the death of the deceased and any act or omission of the appellant. In other

words, no

prima facie

case was made out against the appellant. The conviction

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by the trial court was therefore wrong. The court below was also wrong in up-

holding a conviction obtained in the surrounding circumstances of this case where,

not even a

prima facie

case was made out. Such a conviction cannot be allowed

to stand.

The above were the reasons why I, on the 17th September, 1985, allowed the

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appeal and reveresed and quashed the conviction and sentence of the trial court

as well as the appeal judgment of the Court of Appeal.

Appeal allowed.

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OVERSEAS CON. CO

. LTD. V. CREEK ENT. LTD.

& ANOR.

20

OVERSEAS CONSTRUCTION COMPANY

(NIGERIA) LIMITED



APPELLANT

V

1.

CREEK ENTERPRISES (NIG) LTD

2.

ABANDONED PROPERTY AUTHORITY



RESPONDENTS

SUIT NO. SC 110/1984

SUPREME COURT OF NIGERIA

BELLO,



J.S.C.

OBASEKI,



J.S.C.

UWAIS,



J.S.C.

KAZEEM,



J.S.C.

OPUTA,



J.S.C.

13th December, 1985

Civil Appeals - Practice and Procedure - Joinder of parties - application by third

party to join as defendant dismissed - Claim for damages for trespass -

Plaintiff alleging that 1st defendant wrongly took possession of premises in

dispute and that plaintiff was presented from granting lease to a third party

because of this - Agreement for lease to child party tendered to prove financial

loss - Claim dismissed - Pleadings - Binding effect - issue of third party's

possession not raised on pleadings. - No mention of plaintiffs non possession.

- Plaintiffs evidence uncontradicted - Judgment of High Court and Court of

Appeal set aside.

Words and Phrases - "An issue" - Meaning of.

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ISSUES:

1.

Whether it is proper for a Court or trial Judge to raise an issue that was not

raised by the parties to an action in their pleadings and on which no evidence

has been led in support.

2.

What is the duty of appellate court where a trial court formulates its own issues

and bases its decisions on such issues even though parties on their pleadings

did not raise such issue?

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1372

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NIGERIAN SUPREME COURT CASES

[1985] 2 N.S.C.C.

3.

Whether it is proper for any court to base its decision on mere speculation not

backed by evidence.

4.

Whether, where the trial court made no assessment of damages, an appellate

court can undertake to make the assessment itself if there exists on the record

enough material and evidence on which such an assessment can be based.

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FACTS:

The trial court found as a fact that the respondent was in unlawful occupation

of the appellant's premises, the property in dispute, but the court failed to find the

respondent liable to the appellant for trespass and dismissed the claim because,

although contrary to the evidence before it, the trial court also found the appel-

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lant's tenants, Wiedemann & Walters, were in possession. It held that, trespass

being a wrong against possession, Wiedemann and Walters were the right parties

to sue in trespass and not the appellant.

Not being satisfied with this decision the appellant appealed to the Court of Ap-

peal and that Court affirmed the decision of the High Court Aba. As a result the

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appellant now appealed to the Supreme Court.

HELD:

1.

It is an essential principle of the rules of pleadings in our adversary system that

each party is free to formulate his own case and once formulated, he is bound

by his pleadings and cannot be allowed (without necessary amendment) to

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urge a case different from that formulated in his pleadings. The court

themselves here the trial court and the Court of Appeal - are bound to decide

only the case as formulated on the pleadings of the parties. It will be contrary

to the proper function of the court to enter upon any inquiry outside the

pleadings or to adjudicate on any matter not put in issue by the pleadings. The

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proper party to sue was not an issue in the case and the trial court was wrong

to have based its decision on it.

2.

Where a court formulates its own issues and bases its decisions thereon even

though not raised by the parties on the pleadings such a decision will be set

aside.

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3.

A finding which is merely speculative and not based on any evidence is perverse

and will invariably lead to a miscarriage of justice. In this case there is definitely

a mighty difference between saying that the key for the premises were in fact

given to Wiecemann and Walters and arguing that key of the premises must

have also been given to Wiedemann and Walters. One is a statement of fact the

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other is not. It is a mere speculation and no court is allowed to base its decision

on mere speculation.

4.

Where the trial court made no assessment of damages, an appellate court can

undertake to make the assessment itself if there exists on the record enough

material evidence and on which such assessment can be based. The appellate

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court will also consider all the surrounding circumstances including the period

of time the case has lasted and the urgent need to bring litigation to finality.

This is a proper case to make such assessment.

[Editorial Note:

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(1) As a general rule the Supreme Court will not normally disturb or upset the

concurrent findings of two courts unless there is some miscarriage of justice

or violation of some principle of law or procedure.

See further:

(i)

Enang v. Adu

(1981) 11-12 S.C. 25 at 42.

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(ii)

Okagbue v. Romaine

(1982) 5 S.C. 133 at 170/171

(iii)Lokoyi v. Olajo

(1983) 8 S.C. 61 at 68-73

(iv)Ojomu

v.

Ajao

(1983) 9 S.C. 22 at 53

(v)

Stephen Oteki v. A-G., Bendel State

(1986) N.W.L.R. 648.