IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 5TH DAY OF JULY, 2002
APPEAL NO: SC.60/1996
CITATION: SC (2002) 7 LLER 2
(2002) 13 NWLR (Pt.784)319
Before Their Lordships
ABUBAKAR BASHIR WALI, J.S.C.
EMMANUEL OBIOMA OGWUEGBU, J.S.C.
ANTHONY IKECHUKWU IGUH, J.S.C.
UMARU ATU KALGO, J.S.C.
SAMSON ODEMWINGIE UWAIFO, J.S.C.
EMMAN N. OKAFOR
JOHN NWOYE EZENWA
Sometime in 1983 in Lagos, the plaintiff and the defendant discussed the prospect of a company with which the defendant was involved in promoting. It was known as Pace Dry Cleaning and Laundry Services Ltd. The defendant got the plaintiff interested in buying 30% equity shares in the said company. The plaintiff paid the sum of N54,000.00 representing the 30% equity in ten installments and was given a receipt each for eight of those instalmental payments as per exhibits ‘G’ to ‘O’. In fact, as was pleaded, the company had before then been duly incorporated under the Companies Act 1968 and a certificate of incorporation no. RC 45931 issued.
Subsequently in July, 1984, the defendant wrote to inform the plaintiff that the share capital of the company had been increased by N50,000.00 and asked for an additional N15,000.00 from the plaintiff. The plaintiff refused. What followed was that the defendant informed him in writing that his share had been reduced from 30% to 10%. When the plaintiff went to meet the defendant at Aba to protest to him, he was presented with the alternative of either the 10% share or a refund of his money. It would appear the plaintiff opted for a refund and that the defendant offered to do so by N2,000.00 monthly installments. As this was unacceptable to the plaintiff, he filed a writ of summons on 12 July, 1985 at the High Court of Anambra State in Amawbia-Awka Judicial Division, holden at Awka against the defendant
But after judgement had been given, the defendant brought amotion to set aside the judgement on the basis, inter alia, that the court lacked jurisdiction, in that the defendant was not resident within the jurisdiction of the court. The court ruled otherwise accepting that his admission that he hails from Umuogbu Village, Awka, Anambra State, must necessarily be taken to mean that he resides there. The Court of Appeal agreed in this regard.
But the Supreme Court in upholding the appeal, and deciding that the High Court of Anambra State did not have jurisdiction in the matter said, inter alia,
The respondent failed to discharge the onus on him to prove that the appellant resides in Awka. No iota of evidence was led by him in his regard, not even by mere mention. I have also recited the manner in which the lower court held that because the appellant admitted hailing from Awka, it was an admission that he resided there. With due respect to the court below, this is a clear case of a faux pas in the way of drawing inference, and I consider it most unsatisfactory. As if that blunder was not enough, the court below further said per Awogu, J.C.A.:
“The defendant did not give evidence at the trial nor did his counsel cross-examine the plaintiff as to the residence of the defendant, and his carrying on business at Enugu in Anambra State ….. On the face of the pleading and evidence, there was nothing to suggest that the appellant did not reside or carry on business within jurisdiction.”
I think, with profound respect to the learned Justice of the court below, he seemed to have completely lost sight of the fact that issue having been joined on where the appellant resides, the onus was on the respondent to satisfy the court by evidence on that issue. What the learned Justice rested on was that since there was no evidence to suggest that the appellant did not reside in Awka, then he resided there; or that it was for the counsel for the appellant to ask the respondent in cross-examination as to where the appellant resided and that this not having been done, the appellant failed to show he did not reside in Awka. In whatever way this is viewed, the learned Justice shifted the burden of proof of that issue to the appellant. He was certainly in grave error.