Adekeye v. Akin-Olugbade (1987)

214
Adekeye v. Akin-Olugbade
27 July 1987

       1.
CHIEF ADEDAPO ADEKEYE

       2.
ALBAN PHARMACY LTD.

       3.
MRS. CLARIBEL O. OBAJIMI

       4.
MRS. GLORIA O. AKINWALE

V.

CHIEF O. B. AKIN-OLUGBADE

SUPREME COURT 

SC.240/1985

KAYODE ESO. J.S.C. (Presided)

ANTHONY NNAEMEZIE ANIAGOLU, J.S.C.

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

CHUKWUDIFU AKUNNE OPUTA. J.S .C. (Delivered the lead Judgment)

SALIHU MODDIBO ALFA BELGORE, J.S.C.

FRIDAY, 19TH JUNE, 1987

APPEALS – Respondents notice – When Party ought to cross-appeal rather than file respondent’s file respondent’s notice.

APPEALS – Section 16, Court of Appeal Act, 1976 – Application for amendment in the Court of Appeal – When Court of Appeal can grant.

CONSTITUTIONAL LAW – Second limb of section 258(1) of the 1979 Constitution – Whether mandatory or directory – Failure to furnish authenticated copies of decisions on the date of delivery – Effect.

EQUITY – Equitable defences – Laches and standing- by – Whether defences can properly be raised by party in breach of trust.

EQUITY- Maxims of equity – Application.

LIMITATION OF ACTIONS – Application of the defence of limitations to actions involving trust property – Section 32(4), Limitation Law of Lagos State, Cap. 70, 1973.

PRACTICE AND PROCEDURE – Amendment of pleadings – Order 25 rule 1, High Court of Lagos (Civil Procedure) Rules – When amendment can be ordered.

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PRACTICE AND PROCEDURE – Equitable defences when proper – Section 8(1), Trustees Act, 1888 applicable in Lagos – Effect.

PRACTICE AND PROCEDURE – Pleadings – Defences pleaded but not canvassed at the High Court – Effect.

TRUSTS – Express and implied trust – How constituted – Meaning.

TRUSTS – Equitable defences – Laches and standing-by etc.- Whether applicable.

Issues:

1.
Whether the learned Justices of Appeal were right in allowing the amendment of the plaintiff/respondent’s claims in the circumstances of this case.

2.
Whether the Court of Appeal was correct in striking out the respondent’s notice filed (by 1st and 2nd defendants/appellants) in the Court of Appeal.

3.
Whether in the circumstances of this case, the learned Justices of Appeal were right in holding that the property at No. 128, Broad Street Lagos was a trust property and thus the plaintiff/respondents claims could not be affected by the Limitation Law of Lagos State, Cap. 70, 1973.

4.
Whether the failure to supply the defendant/appellants with authenticated copies of the judgment of the Court of Appeal on the date of delivery made the judgment of the Court of Appeal a nullity as being in breach of section 258(1) of the 1979 Constitution.

Facts:

The plaintiff/respondent brought an action against the 1st and 2nd defendants/ appellants claiming:

(a)
An account of the Partnership business of Excelsior Building Society from the period 24th March 1959 to date;

(b)
An order restraining 1st defendant from continuing to waste and mismanage the partnership property or alienating same in any way;

(c)
Arrears of rent from 2nd defendant from 24th March, 1959 to date;

(d)
N50,000 damages from 1st and/or 2nd defendant for negligence in managing the partnership business without authority;

(e)
Payment in equal shares of all rents and profits accruing from the partnership business. The defendants raised the equitable defences of laches, acquiescence and stale claims.

In his judgment, the learned trial judge found as follows:

(a)
The original partners in the Excelsior Building Society were the plaintiff, 1st defendant and one Mr. G. O. Obajimi.

(b)
The 2nd defendant Alban Pharmacy Ltd later joined as a fourth partner.

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(c)
The property in dispute No. 128 Broad Street, Lagos was erected in the name of the 2nd defendant as agent for Excelsior Building Society.

(d)
The property was erected through loans advanced to the partnership by the National Bank of Nigeria.

(e)
Although, the property was registered in the name of the 2nd defendant the property is partnership property.

(f)
The 1st defendant had always been the Managing Director of the 2nd defendant.

The 1st and 2nd defendants however did not canvass the equitable defences pleaded. In spite, of these findings, the learned trial Judge dismissed the plaintiffs claims on the grounds that:

(a)
it was caught by the Limitation Law of Lagos State; and

(b)
the partnership died with the death of O.O. Obajimi.

The plaintiff appealed to the Court of Appeal. At the Court of Appeal the 1st and 2nd defendants filed a respondent’s notice to upset the fundamental findings of fact of the learned trial Judge. The plaintiff also brought an application for the amendment of the plaintiff’s claims claiming inter alia:

(a)
A declaration that the property at the junction of Broad Street and Port Novo Market Street now renamed Abibu-Oki Street is held by the 2nd defendant subject to equitable interests and trusts in favour of the plaintiff, the estate of O.O. Obajimi deceased and the two defendants.

(b)
An order that the defendants do jointly and severally render an account of all profits and income accruing to them or which reasonably ought to have accrued to them from the land and premise.

(c)            …………..

(d)            …………..

(e)            ……………

The Court of Appeal struck out the respondent’s notice but granted the plaintiffs application for amendment of his claims. The Court of Appeal thereafter went on to allow the appeal on the ground that the Limitation Law was inapplicable on the ground that the property was trust property.

On appeal to the Supreme Court by the 1st and 2nd defendants.

Held (Unanimously dismissing the appeal):

1.
By Order 25 rule 1 of the High Court of Lagos (Civil Procedure) Rules, the court or a Judge in Chambers may at any stage of the proceedings allow either party to alter or amend his endorsement or pleading in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

2.
By virtue of section 16 of the Court of Appeal Act, the Court of Appeal can grant an amendment which would have been granted by the trial court had the application been made in the trial court.

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     3.
An amendment of the plaintiff’s claims in the Court of Appeal to reflect a fact already found by the trial court is proper since such amendment could not possibly be said to have prejudiced the fair trial of the case neither could it have caused any surprise, injury or embarrassment to the other party.

4.
A Court ought to refuse an application for amendment where:

(a)
it is made mala fide;or

(b)
it would cause unnecessary delay; or

(c)
it will in any way unfairly prejudice the opposite party; or

(d)
it is quite irrelevant or useless; or

(e)
it would only and merely raise technical issues.

5.
The court should allow all amendments that are required for the purpose of using already available evidence and findings of fact of the trial court.

6.
A respondent’s notice under Order 8 rule 3 of the Supreme Court Rules 1985 postulates that the approach of the learned trial Judge or the Court of Appeal as the case may be, was correct, but that his conclusions had adversely affected the respondent who thereby contends that by the same reasoning of the learned trial Judge he should have received a greater award. L.C.C. v. Ajayi (1970) 1 All N.L.R. 291 followed.

7.
Where a respondent wants a complete reversal of the decision of the lower court, he ought to file a cross appeal instead of a respondent’s notice – Sunmonu v. Ashote (1975) 1 NMLR 16.

8.
In the instant case, the grant of the application for amendment in the Court of Appeal was proper and the amended claims were not substantially divergent to the reliefs sought in the trial court since they were based on facts already found by the trial court.

9.
The Court of Appeal was also right in rejecting the respondent’s notice filed by the appellant as the appellant ought to have sought to upset the fundamental finding of fact of the court by way of cross-appeal instead of filing a respondent’s notice.

10.
A trust can be express or implied.

11.
When a trust is created intentionally by the act of the settlor it is called an express trust.

12.
Where the legal title to property is in one person and the equitable right to the beneficial enjoyment of the self same property is in another a court of equity will from those circumstances infer an implied trust.

13.
A person incapable of being an express trustee may well be a trustee of an implied, resulting or constructive trust.

14.
An implied trust is thus a trust founded upon the unexpressed but presumed intention of the settlor.

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15.
In view of the findings of the trial court that:

(a)
The building at No. 128 Broad Street, Lagos was built by the 2nd defendant appellant as agent for Excelsior Building Society.

(b)
The original partners in the Excelsior Building Society were the plaintiff, 1stdefendant and one Mr. G.O. Obajimi.

(c)
The plaintiff paid in full his contribution of N2,000 to the partnership and used his credit worthiness to secure a loan of N50,000 to N60,000 from the National Bank of Nigeria, the Court of Appeal was right in holding that the property at No. 128, Broad Street, Lagos is a trust property.

16.
By virtue of section 32(4) of the Limitation Law of Lagos State, Cap. 70, 1973 the defence of limitation of action does not apply to claims founded on any fundamental breach of trust to which the trustee was a party or privy nor does it apply to recover trust property or the proceeds thereof still retained by the trustee and converted to his own use.

17.
A party who raises equitable defences of laches, stale claims standing by etc must canvass those defences in the High Court otherwise they would be deemed abandoned. Shell B.P. v. Abadi (1974) 1 All NLR (Pt. 1) Page 1 followed.

18.
By virtue of section 8(1) of the Trustees Act, 1888 (applicable in Lagos State) equitable defences are excluded where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was a party or privy or is to recover trust property or the proceeds thereof still retained by the trustee or previously received by the trustee and converted to his use.

19.
The second arm of section 258(1) of the 1979 Constitution is directory only and not mandatory. Thus an authenticated copy of a judgment not produced on the day it was delivered in open court does not thereby lose its validity (Dictum of Obaseki, J.S.C – in lfezue v. Mbadugha (1984) 1 SCNLR 427 applied).

20.
In the instant case, there was no miscarriage of justice by failure to give the parties authenticated copies of the judgment of the Court of Appeal on the very day the judgment was delivered.

21.
“Per OPUTA, J.S.C. at pages 223-224:

“An amendment is nothing but the correction of an error committed in any process, pleading or proceeding at law or in equity, and which is done either as of course or by the consent of parties or upon notice to the court in which the proceeding is pending. The object of courts is to decide the rights of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights. There is no kind of mistake or error

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which if not fraudulent or intended to overreach, the courts cannot correct, if this can be done without injustice to the other party. Blunders may occur and nowadays they do occur with disturbing regularity, but all the same the courts should not be stampeded into chasing the shadows of these blunders rather than facing the substance of the justice of the case. The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant. The courts have therefore through the years taken a stand that however negligent or careless may have been the slips, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party. The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.”

22.
Per Oputa, J.S.C. at page 227

“One common example of implied trust is where on a purchase, property is conveyed into the name of someone other than the purchaser. The consensus of legal and judicial opinion is that the trust of a legal estate whether taken in the name of the purchasers and others jointly or in the names of others without that of the purchaser; whether in one name or several, whether jointly or successive, results to the man who advances the purchase money”

Nigerian Cases Referred to in the Judgment:

Ellochin (Nig.) Ltd. v. Mbadiwe (1986) 1 . (Pt. 14) 47

Ifezue v. Mbadugha (1984) 1 SCNLR 427

Lagos City Council v. Ajayi (1970) 1 All NLR 291

Odi v. Osafile (1985) 1 . (Pt. 1) 17

Omisade v. Akande (1987) 2 . (Pt. 55) 158

Shell B.P. v. Abadi(\91A) 1 All NLR (Pt. 1) 1

Sunmonu v.Ashote (1975) 1 NMLR 16

Foreign Cases Referred to in the Judgment:

Benmax v. Austin Motor Co. Ltd. (1955) AC 370; (1955) 1 All ER 326

Director of Aboriginal and Islanders Advancement Corporation v. Peinkinna, The Times, January 28, 1978

National Society for the Distribution of Electricity etc v. Gibbs (1900) AC 280

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                Rainy v. Bravo (1872) LR 4 PCA 297
                Re: Scottish Equitale Life Assurance Society (1902) 1 Ch. 282
               Tito v. Waddell (No. 2) (1972) Ch. 105
                Venture (1908) P 218
Vinogradoff, Re (1935) WN 68

Nigerian Statutes Referred to in the Judgment:

Constitution (Suspension and Modification) Amendment Decree No. 17 of 1985, S. 6

Constitution of the Federal Republic of Nigeria, 1979, S. 258(1)(4)

Court of Appeal Act, No. 43, 1976, S. 16

Limitation Law of Lagos State Cap. 70 of 1973, S. 32(4)

Foreign Statute Referred to in the Judgment:

Trustee Act 1888 of England, S. 8(1)

Nigerian Rules of Courts Referred to in the Judgment:

High Court of Lagos (Civil Procedure) Rules, O. 25 r. 1

Supreme Court Rules, 1977, O. 7 r. 13, 13(1)

Supreme Court Rules, 1985, O. 8 r. 3

Appeal:

This was an appeal against the judgment of the Court of Appeal which set aside the decision of the trial court and granted the plaintiff/respondent’s claims. The Supreme Court unanimously dismissed the appeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the Appeal: Kayode Eso, J.S.C. (Presided); Anthony Nnaemezie Aniagolu, J.S.C.; Adolphus Godwin Karibi-Whyte, J.S.C.; Chukwudifu Akunne Oputa, J.S.C. (Read the Lead Judgment); Salihu Modibbo Alfa Belgore, J.S.C.

Appeal No.: SC.240/1985

Date of Judgment: Friday, 19th June, 1987

Names of Counsel: Otunba, J. Olu Awopeju (with him, A. O. A. Awopeju) – for the 1st and 2nd Defendants/Appellants

Chief F.R.A. Williams, SAN (with him, Dr. D.O.B.A. Akin-Olugbade; T. E. Williams and Adesegun Akin-Olugbade) – for the Plaintiff/Respondent

Mr. M. I. Igbokwe – for the 3rd and 4th Defendants/Respondents

Court of Appeal:

Division of the Court of Appeal from which the Appeal was brought: Court of Appeal, Lagos

Names of Justices that sat on the Appeal: Philip Nnaemeka-Agu.

J.C.A. (Presided and Read the Lead Judgment); Uthman Mohammed, J.C.A.; Barclay Berepikibo Pepple, J.C.A.

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Appeal No.: CA/L/152/83

Date of Judgment: Thursday, 2nd May, 1985

Names of Counsel: Chief F. R. A. Williams, SAN (with him, F.R.A. Williams Jnr.) – for the Appellant

Otunba T. O. Awopeju (with him, A. O. A. Awopeju) – for the 1st and 2nd Respondents

High Court

Name of High Court: High Court, Lagos

Name of Judge: Dosunmu, J.

Suit No.: LD/427/1975

Date of Judgment :Monday, 17th September, 1979

Counsel:

Otunba, J. Olu Awopeju (with him, A. O. A. Awopeju) – for the 1stand 2nd Defendants/Appellants.

Chief F.R.A. Williams, SAN (with him, Dr. D.O.B.A. Akin-Olugbade; T. E. Williams and Adesegun Akin-Olugbade) – for the Plaintiff/Respondent Mr. M. I. Igbokwe – for the 3rd and 4th Defendants/Respondents

OPUTA, J.S.C. (Delivering the Lead Judgment): The present respondent as plaintiff sued two defendants in the Lagos High Court namely Chief Adedapo Adekeye and Alban Pharmacy Limited claiming:

“(a)
An account of the partnership business of “Excelsior Building Society” from the period 24th March, 1959 to date;

(b)
An Order restraining 1st defendant from continuing to waste and mismanage the partnership property or alienating same in any way;

(c)
Arrears of rent from 2nd defendant from 24th March, 1959 to date;

(d)
Fifty thousand Naira (N50,000.00) damages from 1st and/or 2nd defendant for negligence in managing the partnership business without authority;

(e)
Payment in equal shares of all rents and profits accruing from the partnership business.”

From the above claims it is pretty obvious that the entire case of the plaintiff is predicated on the existence of a partnership relationship between the parties. The main issue on which other subsidiary issues will revolve will therefore be the existence of this partnership. If the partnership is found as a fact to exist or to have existed then all the relevant legal consequences will follow otherwise the plaintiff will be out of court.

Pleadings were ordered, filed and delivered. These pleadings were amended several times before the actual trial by Dosunmu, J. (as he then was). On the 7th June, 1976 the plaintiff amended his writ of summons and statement of claim. The amended claim now included a declaration that title to the freehold property

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under Title LO. 3158 belongs to the plaintiff, the two defendants and the estate of late G.O. Obajimi who were all partners in the firm of Excelsior Building Society. On the 5th December. 1978, Mrs. Glaribel Obajimi and Mrs. Gloria Akinwale joined in the action as representing the Estate of G.O. Obajimi. In the Court of Appeal itself the plaintiff who was then appellant brought a motion to amend his ”Grounds of Appeal” and also applied “for leave to amend his Statement of Claim”in the manner set forth in the Second Schedule:

“Second Schedule

Delete paragraph 19 of the amended statement of claim herein and copied on pp. 224 to 232 of the record of appeal and substitute the following:

Whereof the plaintiff claims against the defendant jointly and severally as follows:

(a)
A declaration that the property at the junction of Broad Street and Ports Novo Market Street (now renamed Abibu Oki Street) and comprised in Title No. LO. 3158 is held by the second defendant subject to equitable interests and trusts in favour of the plaintiff, the estate of G.O. Obajimi deceased and the two defendants.

(b)
An order that the defendants do jointly and severally render an account of all profits and income accruing to them or which reasonably ought to have accrued to them from the land and premises comprised in Title No. LO.3158.

(c)
An Order for payment over to the plaintiff of whatever sum or sums that may be found due and payable to the plaintiff after taking such account.

(d)
An Order for partition or sale of the aforesaid land and premises in Title No. LO.3158.

(e)
Such further or other orders as this honourable court may consider appropriate.”

As I observed earlier on the crux of the matter, the main issue in this case, is an issue of fact whether or not there was a partnership relationship between the parties. Now the amended claims highlights a second issue namely the existence of a trust express or implied. The eventual outcome of this appeal will largely depend on how these two issues are resolved. The trial court after hearing the evidence tirade the following findings of fact:

1.
That the original partners in the Excelsior Building Society were the plaintiff, the 1st defendant and one Mr. O.O. Obajimi (see p. 277 of the record).

2.
That before or on 14th March 1958 a fourth Partner Messrs Alban Pharmacy Ltd. Chemists and Druggists of Excelsior Building Society. “EX. A at pp. 286 to 288 proved conclusively that Alban Pharmacy joined the Partnership.” See also p. 279 lines 21-30 when the learned trial Judge was satisfied that in signing EX. A the Alban Pharmacy Ltd. has at least “held itself out as a partner in the firm of Excelsior Building Society.”

3.
That the 1st defendant Chief Adedapo Adekeye had always been the Managing Director of Alban Pharmacy Ltd, the 2nd defendant. (See p. 278 line 5).

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(Oputa, J.S.C)
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4.
That in the face of EX. A the property now in dispute (No. 128 Broad Street Lagos) cannot be anything but the property of the Partnership) the Excelsior Building Society (see p. 280 of the record).

5.
That as a matter of fact that Partnership property (viz No. 128 Broad Street Lagos) was registered on 10th April 1958 in the name of the 2nd defendant the Alban Pharmacy Ltd. one of the partners of Excelsior Building Society (see pp. 277/278).

6.
That the plaintiff paid in full his contribution of N2.000 to the partnership and used his credit worthiness to secure a loan of N50,000 to N60,000 from the National Bank of Nigeria.

7.
That it is untrue as contended by the 1st defendant and the 2nd defendant/company that the property at No. 128 Broad Street, Lagos was theirs and had nothing to do with the partnership of Excelsior Building Society.

This, I agree, is a negative finding. But at times negative findings can be even more devastating than positive findings. But the learned trial Judge did not leave it at that, for at p.282 he positively found:)

   “8.
That the store building at Broad Street is under construction in the name of the 2nd defendant as agent for Excelsior Building Society” (see p. 282 lines 17-22).

“9.     I find that the partnership erected the building on the plot in question through loans advanced to the 2nd defendant by the National Bank of Nigeria.”

“10.     With EX. E satisfying all the requirements of a partnership, and a building erected on the plot of land as agreed in EX. E, I fail to see how the 1st and 2nd defendants could have successfully argued out of it.”

In other words the 1st and 2nd defendants cannot successfully argue that they were not partners in the Partnership of Excelsior Building Society nor can they successfully argue that the property at No. 128 Broad Street does not belong to the Partnership.

In spite of the above formidable findings of fact the learned trial Judge dismissed the plaintiff’s claims. His reasons for dismissing the plaintiff’s case were partly because on the death of O.O. Obajimi the partnership as it were also died legally, partly also because of the way the plaintiff’s claims were framed and partly because the claims were caught by the Limitation Law of Lagos State. The plaintiff then appealed to the Court of Appeal Lagos Division.

That court, on the 2nd May, 1985, in a very well considered judgment, allowed the plaintiff’s appeal and set aside the judgment and orders of Dosunmu, J. (as he then was) and in its place entered judgment for the plaintiff/appellant in terms of his amended claim which I set out earlier on in this judgment. The 1st and 2nd defendants have now appealed to this court against the unanimous judgment of the Court of Appeal. Since the Court of Appeal tied its judgment and orders unto the amended claim introduced by the plaintiff who was the appellant before the court below, one might as well start the consideration of the present appeal from that amendment.

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Ground 3 of the grounds of appeal to this court complained that:

“3.   The learned Justices of appeal were wrong in law to have allowed the amendment of claim made in the Second Schedule of the appellant’s motion paper dated 28th February, 1985 when these were substantially and utterly divergent to the reliefs sought in the lower court and on the basis of which the issues were fought and judgment delivered by Dosunmu, J. (as he then was) wherefore they came to a wrong decision to the prejudice and damnification of the respondents who opposed the said application.”

This ground of appeal raises so many questions about amendments viz:

(i)
What is an amendment?

(ii)
Can a Court of Appeal in the process of hearing an appeal allow an amendment to the proceedings the subject matter of the appeal?

(iii)
When should an amendment be refused?

An amendment is nothing but the correction of an error committed in any process, pleading or proceeding at law or in equity, and which is done either as of course or by the consent of parties or upon notice to the Court in which the proceeding is pending. The object of courts is to decide the rights of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights. There is no kind of mistake or error which if not fraudulent or intended to over-reach, the courts cannot correct, if this can be done without injustice to the other party. Blunders may occur and nowadays they do occur with disturbing regularity, but all the same the courts should not be stampeded into chasing the shadows of these blunders rather than facing the substance of the justice of the case.

The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant. The courts have therefore through the years taken a stand that however negligent or careless may have been the slips, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party. The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.

By Order 25 rule 1 High Court of Lagos (Civil Procedure) Rules (that apply to this case) “the court or a Judge in Chambers may at any stage of the proceedings allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.” In the case now on appeal the central issue in controversy is – Was the 2nd defendant the Alban Pharmacy Ltd. a partner in the firm of Excelsior Building Society? If yes (as found by the trial Court) then comes the next question – Was the building at No. 128 Broad Street erected with the money contributed by the Partnership? If the answer is yes (as was found by the learned trial Judge) then one legal consequence will be that the

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Alban Pharmacy Ltd. is an implied trustee for the Partnership in respect of that property. Although the property at No. 128 Broad Street Lagos was registered as No. LO. 3158 in the name of the 2nd defendant yet the 2nd defendant held and still holds it in trust (implied trust) for the partnership. This is exactly what claim 1 of the amended claim seeks namely “a declaration that the property at the junction of Broad Street and Porto Novo Market Street (now renamed Abibu Oki Street) and comprised in Title No. LO.3158 is held by the second defendant subject to equitable interests and trust in favour of the plaintiff, the estate of O.O. Obajimi deceased and the two defendants.” Every other claim in the amended claims revolves around this main claim I which is the real question in controversy between the parties. I do not see how what had already been found as a fact by the learned trial Judge could possibly prejudice, injure, surprise, over-reach or embarrass or work an injustice against the 2nd defendant or any of the defendants for that matter. I am very sure that if the amendment granted by the Court of Appeal were applied for in the trial court, it would also have been granted. Section 16 of the Court of Appeal Act No. 43 of 1976 allows the Court of Appeal to … “have full jurisdiction over the whole proceedings as if the proceedings have been instituted in the Court of Appeal as a Court of first instance ….” Any court of first in stance would grant this unnocuous amendment. The court below was right in holding that “it would be a travesty of justice to hold that the Appellant must lose this appeal if the errors made by his Solicitors in the formulation of his claims in the court of trial … were left uncorrected when it is clear that no question of surprise or embarrassment or prejudice or attempt to over-reach arises.” I am in full agreement with the above dictum of Nnaemeka-Agu, J.C.A. in his lead judgment.

Ground 3 of the defendants/appellants’ grounds of appeal alleges that the amendment made by the Court of Appeal was in respect of claims which were substantially and utterly divergent to the reliefs sought in the lower court and on the basis of which issues were fought and judgment delivered by Dosunmu, J.” It is correct that Dosunmu, J. (as he then was) did find some difficulty with the way the plaintiffs claims were formulated. That itself was one reason why Chief Williams, S.A.N., learned counsel for the plaintiff/appellant in the court below brought his motion for the proposed amendment. But it is stretching the matter too far to suggest that the amended claims were “utterly and substantially divergent to the reliefs sought in the trial court.” It is also not correct as alleged in the appellant’s brief subuomen Question for Determination (1) that the court below allowed new claims to be formulated and canvassed before it.

The original claim (c) was for arrears of rent from the 2nd defendant and claim (e) was for payment in equal shares of all rents, profits, accruing from the partnership business. concede that the original claims are not as elegant as the amended claims but both pre suppose that the 2nd defendant, the Alban Pharmacy, was a partner in the Excelsior Building Society, and was accountable to the plaintiff and the other defendant Partners. That is the real question in controversy, and the principal reason for allowing an amendment is to do substantial justice. It is only where the application to amend is made mala fide or if the proposed amendment would cause unnecessary delay or will in any way unfairly prejudice the other and opposite party, or where the amendment sought is quite irrelevant or useless, or would only and merely raise technical issues that leave to amend

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may be refused by a court. I see none of these inhibiting factors in this case. Rather the plaintiff is using the evidence available and the findings of the trial court in support of his application.

The court should allow all amendments that are required for the purpose what is more using the findings of fact of the trial court. The court does not set a time limit to do justice and in the same vein it does opt or perhaps also cannot set a time limit to grant an amendment designed to achieve justice between the parties. In William Rainy v. Alexander Bravo(1872) L.R. 4 P.C.A. 287 the application to amend was made when the Judge was reading his judgment. It was refused by the trial Judge but it was ultimately guaranteed by the Privy Council. The main concern of the court in granting or refusing to grant an amendment is the interest of justice. All amendments ought to be granted if thereby justice is done between the contending parties. The court below acted rightly in granting the amendment sought. Ground 3 therefore fails. Ground 2 which also dealt with the amendment also fails.

I will now consider ground 1 of the grounds of appeal which complains:

“1.
The learned Justices of Appeal were in error when they rejected the Civil Form 20 filed by 1st and 2nd defendants/respondents (hereinafter called “the respondents”) and reflected at pages 321 – 325 of the record of proceedings and therefore came to a wrong decision.”

Particular (a) of the particulars of error complained that:

“(a)
The learned Justices of Appeals held that the respondents ought to have filed a cross-appeal whereas the respondents supported the judgment and only wished that the learned trial Judge ought to have considered other points which also reinforced the conclusion arrived at, namely dismissal of the plaintiff’s suits.”

Chief Williams’ brief the 1st Question for Determination dealt with this issue:

“(1)
Whether the court below was correct in striking out the respondent’s notice filed by 1st and 2nd defendants in the court below.”

The court below beautifully dealt with the difference between a cross-appeal and a respondent’s notice and reminded respondent’s counsel eager to file a respondent’s notice rather than a cross-appeal of the distinction drawn by this court in its several decisions on the matter especially:

(i)
Alhaji Sunmonu & Ors v. Gbadomosi Ashote(1975) 1 NMLR 16 at p. 23 where this court clearly held:

“We are in no doubt that if the plaintiff wanted a complete reversal of the decision of the lower court he should have filed his cross-appeal under Order 2 rule 2(1) and not under Order 2 rule 13(1) as has been done.”

(ii)
Also in Lagos City-Council v. Ajayi (1970) 1 All N.L.R. 291 at pp. 296 and 297, this court discussed the main differences between a cross-appeal and a respondent’s notice. At p. 297 the Supreme Court observed:

“The notice (respondent’s notice) postulates that the approach of the learned trial Judge to the case was correct, but that his conclusions had adversely affected the respondent who hereby

[1987] 3 .
Adekeye v. Akin-Olugbade
(Oputa, J.S.C)
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contends that by the same reasoning of the learned trial Judge he should have received a greater award.”

In the case of appeal the 1st and 2nd defendants who were respondents in the court below could not there and cannot here say that the decision of the trial court dismissing the plaintiff’s claims “adversely affected the respondents”. The findings of fact of the learned trial Judge were all favourable to the plaintiff/appellant in the court below, but the conclusion (the dismissal of his claims) was radically at variance with those findings. If there is anything like that, it is the appellant who should have filed an “appellant’s Notice” But since there is nothing like that in our Rules of Court the appellant who was plaintiff in the court of first instance filed an appeal.

In the recent case of Ellochin (Nig.) Ltd. v. Mbadiwe (1986) 1 . (Pt.14) 47 the issue of the propriety or otherwise of a respondent’s notice was considered by the Supreme Court and the court held that a respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and not by an application to affirm or vary the judgment on other grounds. The Civil Form 20 on which the Otunba Awopeju, learned counsel for the appellants heavily relied upon is pursuant to Order 7 rule 13 of the 1977 Supreme Court Rules dealing with “respondent’s notice.” Order 7 rule 13(1) is predicated on the fact that there has been no cross-appeal by the respondents. The present and relevant rule is Order 8 rule 3 of the Supreme Court Rules, 1985.

The essential findings of fact made by the trial court in this case were:

1.
That the plaintiff and the 3rd defendants (including the Alban Pharmacy) were all partners in the Partnership of Excelsior Building Society.

2.
That the property in dispute though registered in the name of the 2nd defendant (Alban Pharmacy Ltd.) belong to the Partnership of Excelsior Building Society which provided the funds for the building of No. 128 Broad Street Lagos.

With these two findings of fact, the legal position of the 2nd defendant vis-a-vis the plaintiff and the other defendants will be a question of law a legal conclusion from the facts as found This is a conclusion which the trial court or any appellate court could draw: Benmax v. Austin Motor Co. Ltd. (1955) A.C. 370 at p 375; (1955) 1 All E.R. 326 at p. 328. In this case the trial court failed to draw the right conclusion. It ran into error. The court below corrected that error. Now upsetting the fundamental findings of the trial court which formed the basis at the Court of Appeal’s decision can only be done in a cross-appeal and not by a respondent’s notice to affirm or vary the judgment on other grounds. See National Society for the Distribution of Electricity etc. v. Gibbs (1900) A.C. 280 at p. 287. This ground of appeal therefore fails.

Ground 4 dealt with the Limitation Law of Lagos State and complains:

          “4.           The learned Justices of Appeal were in error to have held that Limitation Law did not avail the respondents against the plaintiff as the property in issue was a trust property when the finding of fact of the lower court was to the contrary and in spite of the reasons given in respondent’s brief as to why the property was the exclusive property of the 2nd respondent.” (Italics mine).

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This ground of appeal raises two radical questions namely the creation of a trust and whether or not a trustee can invoke the Limitation Law against the beneficiaries? The question now arises – Was/is the 1st defendant and the 2nd defendant trustees for the other partners in respect of the property now in dispute – No. 128 Broad Street Lagos? A trust can be expressed, or implied. When a Lust is created intentionally by the act of the settlor it is called an express trust. But where the legal title to property is in one person and the equitable right to the beneficial enjoyment of the same property is in another, a court of equity will from those circumstances infer an implied trust. Also a person incapable of being an express trustee may well be a trustee of an implied, resulting on constructive trust: Re Vinogradoff (l935) W.N. 68 refers. An implied trust is thus a trust founded upon the unexpressed but presumed intention of the settlor. One common example of implied trust is where, on a purchase, property is conveyed into the name of someone other than the purchaser. The consensus of legal and judicial opinion is that the trust of a legal estate whether taken in the name of the purchasers and others jointly or in the names of others without that of the purchaser; whether in one name or several, whether jointly or successive, results to the man who advances the purchase money: See Re: Scottish Equitable Life Assurance Society (1992) 1 Ch. 282: The Venture (1908) p. 218. In the case on appeal the trial court found at p. 280 of the record:

1.
That in the face of EX. A the property now in dispute, No. 128 Broad Street Lagos, cannot be anything but the property of the Partnership – the Excelsior Building Society.

2.
That as a matter of fact the partnership property No. 128 Broad Street Lagos was registered on 10th April 1958 in the name of the 2nd defendant, the Alban Pharmacy Ltd. See pages 277-278 of the record,

Nearly all the findings of fact of the learned trial Judge bear out the conclusion that the 2nd defendant, the Alban Pharmacy Ltd. was agent for the Excelsior Building Society, that the 2nd defendant erected the building now in dispute for the Partnership through loans advanced to the 2nd defendant by the National Bank acting on the credit worthiness of the plaintiff. There was even a clear distinct and unambiguous finding at pages 281-282.

“The case of the 1st and 2nd defendants is that the building standing on the plot in question, 128 Broad Street, Lagos was their sole effort and nothing to do with Excelsior Building Society. This cannot be true” in the face of EX. M and M1.

These meetings EX. M & M1 clearly showed that “the building at No. 128 Broad Street is under construction in the name of 2nd defendant as agent for Excelsior Building Society.” All these findings clearly show that the 2nd defendant in whose name the property was registered held same as an implied trustee for the Partnership Excelsior Building Society.

The 1st and 2nd defendants had been managing or mismanaging the said trust property since 1958 without accounting to any of the beneficiaries. Now when called upon to account they plead the Limitation Law of Lagos State. The Court of Appeal, rightly in my view, rejected the defence of limitation of actions as that defence does not by section 32(4) of the same Limitation Law of Lagos State, Cap. 70 of 1973 apply to claims founded on “any fraudulent breach of

[1987] 3 .
Adekeye v. Akin-Olugbade
(Oputa, J.S.C)
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trust to which the trustee was a party or privy” nor does it apply to recover trust property or the proceeds thereof still retained by the trustee and converted to his own use” (Italics mine). It will be a sad day for our law of property if the doctrine of implied trust is brushed aside and any person who holds the property of another is allowed to set up the statute of limitation against the beneficial owner. One only hopes that that day may never dawn. The trial Judge was wrong in not drawing the inference of an implied trust from his devastating findings of fact against the Alban Pharmacy – the 2nd defendant. The Court of Appeal was right in rejecting the defence of limitation of action. This ground of appeal therefore fails.

Ground 5 deals with the equitable defences laches, stale claims, standing by, acquiescence, etc. In spite of any other procedural defeat which Chief Williams, S.A.N. pointed out in his brief – (that these defences though pleaded were not canvassed in the High Court and are thus deemed to have been abandoned: See Shell B.P. v. Abadi (1974) 1 All NLR (Pt. 1) p. l at p. 16 (lines 27-30) – Ground 5 suffers from a radical and intrinsic fundamental vice. How clean are the hands of the 1st and 2nd defendants who had converted partnership property into their personal use and are still managing or mismanaging same? The rights to be protected in this action are the beneficial rights of the other members of the Partnership against the illegal and inequitable conduct of the 1st and 2nd defendants/appellants. Can it be ever said that it has become dishonest and unconscionable on the part of the beneficiaries of the property at No. 128 Broad Street Lagos to claim their legal entitlement as such beneficiaries? If the answer is No as it is bound to be then the equitable defence of laches and acquiescence cannot avail the present appellants. He who comes to equity must first do equity and also come with clean hands. The hands of the 1st and 2nd defendants are so soiled that equity will close her eyes and her gates on them and refuse them any of her special protection or relief. Also section 8(1) of the Trustee Act, 1888 excludes these equitable defences where the claim is founded (as in the case on appeal) upon any fraud or fraudulent breach of trust to which the trustee was a party or privy, or is to recover trust property or the proceeds thereof still retained by the trustee or previously received by the trustee and converted to his use.

The last ground of appeal is ground 6 and it complains that:

“6.
The judgment delivered by the Justices of Appeal on 2nd May, 1985 was not made available to the parties on the same day to wit: 2nd May, 1985 or immediately subsequently thereafter or even as at 13th May 1985 …. is invalid, null and void and of no legal effect as being in flagrant violation of section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979.”

A drowning man they say clutches at straws. The usual complaints this court has dealt with from Ifezue v. Mbadugha & Anor.(1984) 5 SC 79; (1984) 1 SCNLR 427 to Paul Odi & Anor v. Osafile & Anor (1985) 1 . (Pt. 1) 17 is the constitutional validity of a judgment delivered more than 3 months after the conclusion of evidence and final addresses. The Supreme Court does hand over to the parties, copies of its judgments on the very day they are delivered. It is however very difficult to see other courts plagued by lack of funds, inadequacy of supporting staff and materials being able to provide parties with copies of judgment “on the day of delivery thereof.” Our attention was not drawn either in

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the briefs or in the oral argument to any definitive authority of this court on the effect of failure of the court delivering the judgment to “furnish all parties with duly authenticated copies.” In Ifezue’s case (supra) my learned brother, Obaseki, J.S.C. considered though, obiter dictum, the effect of non-compliance with the second arm of section 258(1) thus:

“6.
Per Obaseki, J.S.C.

The second arm of section 258(1) which deals with furnishing of authenticated copies of the decision on the date of delivery does not affect the validity of the decision. The decision of the court has to be delivered before authenticated copies of it are made available. An authenticated copy produced on days subsequent to the date of delivery do not lose their validity as authenticated copies because they were not furnished on the day the decision was delivered by the court. As the failure to furnish authenticated copies of the decision to all parties to the cause on the date of delivery does not affect the genuineness of the authenticated copies, although a breach of the constitutional provision for which the officers of the court could be disciplined, that part of the provision of section 258(1) of the 1979 Constitution is, in my view, directory.”

I agree with the above dicta. Since the issue is now squarely before the court for a decision, I hold that the second arm of section 258(1) of the 1979 Constitution is directory only and not mandatory with a nullification for non-compliance.

Chief Williams in his brief did refer us to section 258(4) which enacted that:

“258(4) The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof.”

This amendment to section 258 of the 1979 Constitution was introduced by section 6 and Schedule 3 of the Constitution (Suspension and Modification) (Amendment) Decree No.17 of 1985 which became effective from 27th August, 1985 after the judgment appealed against which was delivered on 2nd May 1985. I cannot say that there was or that there can ever be miscarriage of justice by failure to give the parties authenticated copies of the judgment of the Court of Appeal in this case on the very day the judgment was delivered. Ground 6 therefore fails.

Ground 7 is the omnibus ground dealing with facts. The findings of fact of the learned trial Judge were all in favour of the plaintiff/respondent in this case and there was evidence to support each finding. Where the trial court failed was in drawing the necessary logical conclusion of implied trust from those findings. Ground 7 also fails. All the grounds of appeal considered having failed the appeal itself fails. It therefore ought to be dismissed c and it is hereby dismissed.The judgment of the Court of Appeal and the consequential orders it made are all affirmed and confirmed. I order that the 1st and 2nd defendants/appellants do pay costs in this court to the plaintiff/respondent assessed at N300.00 and to the estate of O.O. Obajimi cost in this court assessed at N300.00.

[1987] 3 .
Adekeye v. Akin-Olugbade
(Aniagolu, J.S.C)
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     ESO, J.S.C.: I have had the privilege of a preview of the judgment just delivered by my learned brother, Oputa J.S.C. and I am in complete agreement with the reasoning and the orders made by him which I hereby adopt.

ANIAGOLU, J.S.C.: I have had a preview of the judgment just delivered by my learned brother, Oputa, J.S.C., and I am in full agreement with his reasoning and conclusion. This is another case of breach of faith, in a partnership business, by one partner against the other – in this case, a deceased partner whose estate should be credited with his entitlements from the partnership. The facts in this case on appeal may not be as lurid, in terms of breach of faith, as those in Omisade and Others v. Akande (1987) 2 . (Pt.1) 158 but they belong to the same kindred, being relations, as it were, by blood and possessing similar characteristics. The particular sting in this case lies in the fact that one should have thought that the memory of a deceased partner – a partner whose credit worthiness, while he was alive, was solely responsible for the ability of the partnership to raise credits from the bank with which the partnership got to what it later came to be, the metamorphosis which the partnership property had undergone, as contrived by the appellants, notwithstanding should have prevailed in pricking the conscience of the appellants into doing justice. Equity acts in conscience and that is one of the severe aspects of justice.

To plead the statute of limitations or the equitable defences of laches, acquiescence, standing-by or the like, against the beneficiaries of the deceased partner, is not to understand the real principles of equity or the spirit of implied trusts.

             Section 32(4) of the Limitation Law, Cap. 70, Vol. IV, Laws of the Lagos State of Nigeria, 1973 provides that:

“(4)
No period of limitation fixed by this law shall apply to an action against a trustee or any person claiming through him where:

   (a)
the claim is founded on any fraud or fraudulent breach of trust to which the trustee was party or privy, or

   (b)
the claim is to recover trust property or the proceeds thereof still retained by the trustee and convened to his own use.”

Where there is a fraud or fraudulent breach of trust or where, as in the present case, the claim is to recover trust property converted by the trustee (in this case the appellants) to his own use, the courts will chase the trustee and, as in this case, recover the trust property, making the fraudulent trustee disgorge any financial gains he may have made from the conversion, no matter how long it takes to do so, no matter how long he has succeeded in eluding the beneficiaries and keeping the property or proceeds thereof away from them; and no matter what changes and/or variations he has succeeded in converting the property or the proceeds.

That is the spirit of trusts; that is the spirit which underlined the approach to, and the reasoning in, those decisions in Director of Aboriginal and Islanders Advancement Corporation v. Peinkinna; The Times, January 28, 1978, in respect of the Australian Aboriginal rights in Bauxite found in the Aborigine reserve of Aurukun in the State of Queensland, Australia, and in Tito v. Wadddell (No.2) (1972) Ch. 165 in respect of phosphates found in the island owned and inhabited by the Banabans.

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I would also dismiss this appeal, and hereby dismiss it, with costs as decreed by my learned brother, Oputa, J.S.C., in the lead judgment.

KARIBI-WHYTE, J.S.C.: I have had the privilege of a preview of the judgment of my learned brother, Oputa, JSC in this appeal. I agree with his reasoning and eventual conclusion that all the grounds of appeal argued having failed, the appeal fails. I will accordingly dismiss the appeal which is hereby dismissed.

I also abide by the consequential orders made, including the order as to costs.

BELGORE, J.S.C The raison d’etre of the court trying a case is to do justice between parties. In our own background, apart from obeying the law, justice implies in a litiguous matter the settling of dispute between parties. Anything short of this can be dangerous to the integrity of the court and impede confidence in trying issues. On many occasions, due to wrong briefing through ignorance of litigants or through the manifest errors of counsel, issues are not property placed before the court before hearing. At hearing, new matters do appear, relevant to material extent, but because they are either not pleaded and given in evidence whereby procedurally they are inadmissible, or pleaded and evidence is available but inadvertently left out in which case they are unproved. In such cases the issues between the parties are not properly put before the court for determination. Without allowing amendment of pleadings to accommodate the patently relevant matters being brought to issue, or without allowing evidence inadvertently left out though pleaded, being put before the court, the real dispute between the parties will be unsettled. In such cases justice would have failed due to adherence to inflexible legalism. Law is stubborn, that is how it should be; but this only means it stands steadfastly by what is just. Thus it is that courts allow amendment to achieve justice of a case, to settle the real dispute between the parties. Pleadings are technical weapons of practice but they are a shield and not a sword. The errors in pleadings which could be corrected in good time should be allowed to be corrected; so are omissions. They should be corrected at the earliest time they are discovered so that the other side will have ample opportunity to counter that amendment if it is so desired. The golden rule is that if the other side will not be embarrassed or placed in serious jeopardy as to amount to injustice, amendment of pleadings should be allowed.

In the instant case the amendment carried out in the Court of Appeal did nothing more than to crystallize all the issues the parties contended in the trial court and those issues are relevant to a just decision in the case. That is to say, the dispute between the parties can only be settled by having all those issues brought into the fore in the amendment in juxtaposition with those actually pleaded in that court and the evidence adduced on them brought before the court. Having had the privilege of a preview of the lead judgment delivered by my learned brother, Oputa, J.S.C. and with the comments above on ground 3, I agree that this appeal lacks merit. I also dismiss it. I make the same consequential orders as made by him in that judgment.

Appeal dismissed.

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