Alhaji Usman Haruna V. Abuja Investment & Property Development Company & Ors (2016)
LawGlobal-Hub Lead Judgment Report
MOHAMMED MUSTAPHA, J.C.A.
This is an appeal against the judgment of the High Court of the Federal Capital Territory of the 27th of July 2010 vide an amended notice of appeal filed on the 22nd of June 2016 on the following grounds:
GROUND ONE:
The judgment is unreasonable, unwarranted and cannot be supported, having regards to the weight of evidence adduced at the trial.
GROUND TWO:
The Learned Trial Judge erred in law in granting reliefs to the respondents based on facts which were never pleaded or supported by evidence.
GROUND THREE:
The Learned Trial Judge erred in law in holding that there is no enforceable contract between the Appellant and the Respondents.
GROUND FOUR:
The Learned Trial Judge erred in law by holding that the contract for the sale of shop between the appellant and the 1st and 2nd respondents has been terminated by the subsequent conduct of the Appellant is not meeting up with the conditions of the contract.
GROUND FIVE:
The Learned Trial Judge erred in law and did violence to the principle of law enshrined in the Latin Maxim
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“nemo dat quod non habet” in holding that the sale of the same shop to the 3rd respondent by the 1st and 2nd respondents after a contract for the sale of the property had been concluded between the Appellant and the Applicant was valid and subsisting.
GROUND SIX:
The Learned Trial Judge erred in law and misapplied the law to the facts in treating the several payments made by the Appellant to the 1st and 2nd respondents as deposits.
The following reliefs were sought at the trial:
1. A declaration that the plaintiff/appellant is the rightful owner of the property in dispute, known as shop No. 208 in Block 19 Wuse Market Abuja.
2. A declaration that the subsequent offer granted to the 2nd defendant/respondent is unlawful without due process and of no effect whatsoever
3. An order granting the possession of the said shop No. 208 Block 19 Wuse Market Abuja to the plaintiff forthwith.
4. An order of perpetual injunction restraining all the defendant, their agents, privies and whatsoever claims through then from ejecting or disturbing the peaceful enjoyment of the plaintiff at the said property mentioned
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above.
The 3rd respondent counter claimed as follows:
1. A declaration by the Honourable Court that the 3rd Defendant is the lawful and bonafide owner of Shop 208 Block 19 Wuse Market, Abuja.
2. A declaration by the Honourable Court that the offer granted by the plaintiff dated the 22nd of January, 2007 with respect to Shop 208 Block 19 Wuse Market, Abuja is forfeited and void.
3. An order of the Honourable Court granting possession of Shop 208 Block 19 Wuse Market, Abuja to the 3rd Defendant.
4. An order of perpetual injunction restraining the plaintiff acting vide his agents servants and privies in any capacity whatsoever from the trespassing into shop 208 Block 19 Wuse, Abuja.
5. Cost of litigation N1.5 Million Naira. (See 1st & 2nd respondent’s brief)
From the grounds of appeal two issues were formulated for determination by W.Y. Mamman Esq., of counsel to the Appellant as follows:
Issue One:
Whether the learned trial judge erred in law when he granted reliefs to the Respondent based on the final written address instead of the evidence before him.
Issue Two:
?Whether the learned trial
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judge erred in law when he relied on the unpleaded facts/evidence of forgery and falsification of documents in his judgment.
Oluwaseun Alabi Esq, of counsel to the 1st and 2nd respondent formulated a lone issue of his own as follows:
Whether the learned trial judge was right in his conclusion that the Appellant?s case failed and in granting the 3rd Defendant’s Counter Claim.
M. Osita Esq., of counsel to the 3rd respondent formulated the following issues for determination by the Court:
Issue One:
Whether the learned trial Court based its judgment on the evidence adduced in Court.
Issue Two:
Whether the trial Court rightly established as an admission of the evidence of alteration, by failure of the Appellant to Cross Examine the DW1 regarding alteration on the face of Exhibit A4.
Issue Three:
Whether the 3rd Defendant is entitled to the ownership of shop 208 Block 19 Wuse Market Abuja, and the entire reliefs sought vide his letter of offer and the Appellant’s offer is deemed forfeited and void.
This appeal will be decided on a sole issue, not only for the purpose of brevity but also because it covers all
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the other issues formulated adequately, it is thus:
Whether the trial Court erred in law when it granted reliefs to the respondent based on the written address instead of evidence before it, and relied on unpleaded evidence of forgery and falsification in doing so.
It is submitted for the appellant that while referring to TALBA v. TALBA (2010) ALL FWLR part 522 PG 1780 at 1784, that a judgment must be based on evidence elicited before through testimonies before the Court and not more; and not on the written submissions of defense counsel.
That the issue of forgery with respect to Exhibit A4 was raised for the first time in the written address of the 1st and 2nd respondents, and the trial Court relied on it, he referred the Court to page 240 of the record of proceedings; he referred the Court to NIGER CONSTRUCTION LTD V. OKUGREMI (1987) 2 S.C 108, UNITED BANK FOR AFRICA LTD V. AKPARABONG COMMUNITY BANK LTD & ANR (2006) ALL FWLR part 320 at 7777 and CHIME V. EZEA (2009) ALL FWLR part 470 pg 659 at 678.
?That also even if the allegation of forgery were true the trial Court ought to have ensured that the standard of proof complies with
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that of crime which required proof beyond reasonable doubt, he referred the Court to SOFEKUN v. AKINYEMI (1980) 5-7 S.C and OLLEYE V. TRUSTEES OF ECWA (2001) ALL FWLR part 565 at 301.
It is further submitted for the appellant that evidence adduced in respect of facts not pleaded goes to no issue, learned counsel referred the Court to ADMINISTRATORS OF THE ESTATE OF GEN SANI ABACHA V. EKESPIFF (2009) ALL FWLR part 467 at 11.
That counsel to the 1st and 2nd respondents raised the issue of forgery for the first time in his address, and forgery is a criminal offence, he referred the Court to GANBA V. C.O.P. (2007) All FWLR part 384 at 260 and OSONDU V. FRN (2002) 12 NWLR part 682 page 483; that also allegation of a crime even in a civil matter has to be proved beyond reasonable doubt.
Learned counsel further submitted that the trial Court departed from pleaded facts, by admitting and relying on evidence of forgery raised in the defense; he referred the Court to UWAYEH V. UNRAJEH (2009) All FWLR part 458.
It is submitted for the 1st and 2nd respondents that the appellant pleaded and testified to the effect that he was only able to pay 10%
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of the initial deposit and subsequently an installment of N556,000 and was unable to pay the final balance.
That Exhibit A4 was pleaded as the receipt for the installment payment, but was clearly altered, DW1 denied that his colleague was responsible for the alteration.
That the trial Court evaluated these evidence and concluded that the appellant sought to depart from the pleaded facts, and based its judgment on the contradiction rather than the alteration of Exhibit A4.
Learned counsel further submitted that the issue of alteration raised could not have been pleaded as fraud because the alteration was on the face of the exhibit and so not one that could have been envisaged at the point of pleaded.
That also the trial Court was right to hold the parties to their pleadings; he referred the Court to BUHARI V. OBASANJO (2005) 2 NWLR part 910 page 241 and ENI OIL V. ORAEKWE (2006) 1 NWLR part 961 page 342.
?Learned counsel further submitted that the issue formulated is not based on the ratio upon which the judgment was given but on a single observation by the Court agreeing with the 1st and 2nd respondent’s counsel; contending also
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that the judgment was based on preponderance of evidence.
It is submitted for the third respondent that the claim of forgery and falsification did not arise for the first time during address, because DW1 raised the issue during his testimony, and he was not cross examined by the appellant’s counsel; and the Court’s decision was based on the evidence and pleadings before it which it found to be inconsistent.
It is further submitted that the testimony of DW1 is clear as it drew the Court’s attention to the alteration where the word ‘first’ installment was changed to ?final?, and not counter signed; and the witness was not cross examined on that by the appellant; learned counsel referred the Court to ADEYEMI V. BAMIDELE (1968) 1 ALL NLR 91 and KASHILE V. FOLANA (1989) 3 NWLR part 1 at 12; and also that no evidence in rebuttal was tendered.
That by not denying paragraphs 2 and 14 of the 1st and 2nd respondent’s pleadings which states that the 3rd defendant is a bona fide owner the appellant admitted the guideline for sale of the shop, and affirmed that the appellant did not enter into any binding contract with the 1st and 2nd
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respondents.
That the 3rd respondent pleaded in his counter claim at paragraphs 5, 8 and 9 that the appellant?s earlier offer was voided and reallocated to him, for failure to comply with the terms of the offer.
It is clear to this Court from the record of appeal, that DW1 testified on the 9th of June 2000 and led evidence to the effect that: “Exhibit A4 was issued by my partner in the office by name Anthony Margima while Exhibit A3 I don’t know who issued it. I denied it…I can see first installment and alterations?…because if there is any alteration we must sign on it…”, pages 220 to 221.
And even though he was cross examined on the same day by the plaintiff’s counsel, no question was put to him on the issue of alteration of the receipt by way of cross examination.
The appellants pleading at pages 109 and 110 of the record of appeal state at paragraphs 6, 7, 8, 11 and 12 to the effect that he was able to pay 10% of the initial deposit, and an installment vide a bank draft for N556,000,00, but could not pay the final balance in terms of the offer, see also witness statement of the appellant at page 7 of the record.
?The
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appellant adopted this statement on the 26th February 2009, and tendered documents which were admitted in evidence, including the receipt for the payment of N556,000 i.e. Exhibit A4, which was clearly altered.
All the parties consistently used alteration as well as forgery, and the trial Court evaluated the evidence, as much as it could, admirably, I must say, and came to the conclusion that the plaintiff appellant departed from the pleaded facts and made a new case at the trial, see page 239 of the record of appeal as follows:
“Exhibit A4 which is the receipt showing payment of N556,000 dated 070307 indicated final payment and Exhibit A3 which is the receipt showing payment of N1,970,000 dated 24/12/07 indicated second installment. Sincerely I find it difficult to reconcile these two exhibits vis a vis depositions…?
This Court cannot help but agree with learned counsel for the 1st and 2nd respondents that where a document is relevant in a case, for which reason it was admitted, issues related to its authenticity or otherwise become fair game.
?It is trite beyond dispute that parties are bound by their respective leadings, and they
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cannot for that reason make a case at variance with their pleadings, the trial Court cannot be faulted on that, see AMERICAN CYANAMID COMPANY V. VITALITY PHARMACEUTICALS LTD (1991) 2 NWLR (PT. 171) 15, OSHO & ANOR. V. FOREIGN FINANCE CORPORATION & ANOR. (1991) 4 NWLR (PT. 184) 157, BURAIMOH V. ESA (1990) 4 SC 1.
It is important also to point out that the failure of the plaintiff/appellant to cross examine DW1 on the issue of alteration did not help his case before the trial Court, clearly if DW1’S evidence had been impugned it would have gone a long way to help the appellant s case, especially in view of the fact that there is nothing to contradict what he said, see AKPRO V UGHALAA (1995) 8 NWLR part 411 page 128.
At the trial it should be noted again as earlier pointed out that the appellant adopted his testimony, in which he admitted he only paid 10%, and an installment, and tendered several documents, including Exhibit A4 which was altered, all purporting to have been issued to him by the 1st and 2nd respondents which were admitted in spite of objection on the ground that they were relevant, see page 217 of the record of proceedings.
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PW1 plaintiff/appellant also admitted at page 217 during cross examination that ail payments were to be made within 50 days, but “if they don’t want payment they might not give me receipt”
So the appellant’s contention at page 9 of his brief that the respondent ought to have objected when the document was tendered clearly lost sight of the fact that indeed its admission in evidence was objected to but admitted nonetheless on account of it being relevant.
The trial Court was therefore right in the considered opinion of this Court in holding the appellant to his pleadings, especially to his claim on the one hand that he did not pay the total cost, as opposed to his subsequent claim that he paid.
After the trial Court had analyzed the effect of Exhibit A3 and A4, which the appellant sought to use to make a case for payment in full, contrary to his pleadings, the Court had to observe that Exhibit A3 was later in time to Exhibit A4 with the attendant alteration, see pages 239 of the record of appeal; and in any event the alteration is such that it could not have been raised at the stage of pleadings, as contended for the appellant, because it was
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on the face of the exhibit tendered and admitted, and the respondents could not have envisaged it, and most importantly it is clear that the trial Court did not base its decision on the alteration, which it mentioned by way of obiter only, and not in any way connected with the ratio of the decision, SEE SAUDE V. ABDULLAHI (1989) 4 N.W.L.R. (PT.116) 387 S.C.; OKPEJI V. MINISTER OF AGRICULTURE (1997) 9 N.W.L.R. (PT.522) 693 CA and WEMA BANK PLC V. BRASTEM STERR NIG. LTD (2010) LPELR-9166-CA.
It is for these reasons that this Court finds that the trial Court rightly based its judgment on evidence adduced, and not on final address of counsel as contended, and the allegation of alteration was such that it did not require proof beyond reasonable doubt; accordingly the sole issue is resolved in favour of the respondents, and against the appellant.
Having resolved the sole issue in favour of the respondents, and against the appellant, the appeal fails for lack of merit, and it is hereby dismissed. The judgment of the trial Court is affirmed.
Parties to bear their respective costs.
Other Citations: (2016)LCN/8966(CA)
