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In The Supreme Court of
On Friday, the 15th day of
October 1976
Before Their Lordships
S.C.
114/75
Between
And
Judgement of the Court
Delivered by
Ayo Irikefe. J.S.C.
In the
Calabar Judicial Division of the High Court of the then South Eastern
State, the appellant herein endorsed her writ against the respondent in the
following terms:
"Plaintiff's claim as against
the defendant is for a declaration that the property (tenement) No. 78
Egerton Street, Calabar,
including the premises and appurtenances thereof is the property of the
first plaintiff, value about £600 (six hundred pounds) that the transaction
between first plaintiff and the defendant in respect of the said property
was a mere loan to the plaintiff by the defendant in (his) the defendant's
capacity as a money lender upon the security of the title deeds of the
property, and that the defendant's claim in his letter dated January 28,
1970, to the first plaintiff through the Chairman South Eastern State
Rehabilitation Commission that the property (tenement) No. 78
Egerton Street, Calabar,
is (his) the defendant's property by virtue of an alleged deed of sale and
conveyance is void for fraud and therefore unenforceable. An order for
accounts and for the delivery of the title deeds obtained by the defendant
in respect of this property from the date of the transaction based on the
alleged deed of sale and conveyance referred to in paragraph (1) above in so
far as the defendant has refused to accept of the mortgaged money of £400
(four hundred pounds) loaned to the plaintiff by the defendant, and payment
of any amount due to the defendant be deducted on return of the said
property (tenement) No. 78 Egerton Street,
Calabar, to the plaintiff."
The above claim was
subsequently whittled down in the statement of claim to read:
"5(a)
The plaintiffs therefore claim from the
defendant the return of the property at No. 78 Egerton
Street, Calabar, to the first plaintiff together
with the appertaining title deeds thereof which had been surrendered to him
(the defendant) as a security for the loan transaction as stated in
paragraph 3 above.
(b)
An account of all his (the defendant's) dealings with the property
after the eight (8) year period in the terms of the agreement referred to in
paragraph 3 above or in the alternative after the due collection of £400
(four hundred pounds) which were made (or ought to have been made) by the
defendant from the property."
The second plaintiff,
Bassey Edet, was
dismissed from the case as having been improperly joined and is not,
therefore, concerned with this appeal.
This action came about in this
way. In the year 1954 or thereabouts, the appellant, then engaged in trade
between Calabar and Fernando Po (Equatorial
Guinea), found herself short of trading capital and appealed to the fourth
prosecution witness (Asuquo
Effiong Ekanem), who, in turn, put her in
touch with the respondent, a financier and registered money lender.
For a loan of £200, the
respondent had asked for a further sum of £200 as interest. He had also
insisted on the appellant making a deposit of all her title deeds. All these
conditions were met by the appellant, who, there and then, put the
respondent into possession of the property (
The appellant laid claim to
the property, but was told that the respondent was also claiming it. Both
parties were then advised by the third prosecution witness (the Custodian of
Abandoned Property) to go to the High Court in order to establish title.
Hence this action.
On the other hand, the
respondent's claim to the property in dispute (exhibit 14) is founded on two
separate transactions, namely, the purchase by him from the appellant of the
house lying to the front of the premises on April 3, 1955, for the sum of
£340 (three hundred and forty pounds) and of the one lying to the rear of
the premises on June 26, 1956, for £408 8s. (four
hundred and eight pounds eight shillings).
Both parties called evidence
during the trial in support of their conflicting assertions and the learned
judge (Koofreh J., as he then was), after
carefully evaluating all such evidence, accepted the respondent's case and
dismissed the appellant's action. This appeal is against the dismissal.
The only ground of appeal
argued by learned counsel appearing on behalf of the appellant is the
general ground which alleges that the judgment of the learned trial judge is
against the weight of evidence.
No argument of any substance
was advanced to disparage the factual findings of the learned trial judge,
who, in our view, had done all he could to subject the testimony offered on
both sides to the minutest scrutiny.
His was the privilege of
dealing with the testimony at first hand and of watching the demeanour of
the various witnesses, and we are not in any doubt that the conclusions to
which he came as the result of this opportunity are amply supported by the
printed record.
We have stated times without
number that it is not one of the functions of this Court, as indeed of any
appellate court, to substitute its own views of the evidence for those of
the court of trial, which court is better equipped to deal with these
matters.
We would only interfere with a
decision based on matters of fact when it is clear that the same is perverse
or not the result of a proper exercise of judicial discretion. See
Kodilinye v.
Odu [1935] 2 W.A.C.A. 336,
Okoye v. Ejiefo
[1934] 2 W.A.C.A. 130, Kuma v.
tfuma [1936] 5 W.A.C.A. 4,
Dadzie
v. Kojo [1940] 6 W.A.C.A. 139
and Akinloye v.
Eyiyola [1968] N.M.L.R. 92.
We accordingly saw no merit in
this appeal and thought that the need to hear the respondent's counsel in
reply did not arise. Our order is that the appeal fails and it is dismissed.
The judgment of the High Court
of the
Counsel
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