Apic Nigeria Limited & Ors V. C.P.E. Basic X Nig. Limited (2016)
LawGlobal-Hub Lead Judgment Report
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
This is an appeal against the judgment of IPAYE, J. of the Lagos State High Court delivered on 3rd October, 2012.
The suit in the lower Court was commenced by an Amended Writ of Summons and Amended Statement of Claim, wherein the Claimant claimed the following reliefs:
1. A declaration that the only valid Deed of Development lease between the Claimant and the 1st Defendant are the Deed of Development lease stamped on 15/7/98 and the Supplemental Deed dated 30/9/98.
2. A declaration that the undated Deed of Development lease granting the 1st Defendant a lease of 20 years and purportedly made between the Claimant and the 1st Defendant is a forgery.
3. A Declaration that any agreement between the 1st Defendant and the 2nd – 21st Defendants purporting to grant the 2nd ? 21st Defendants a tenure that is beyond 31st July, 2004 is null and void and of no effect whatsoever.
4. A Declaration that the 1st Defendant is not entitled to collect any rent from the 2nd ? 21st Defendants as from 1st August, 2004.
5. An order
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directing the 2nd-21st Defendants to pay their rents with effect from the 1st day of August, 2004 to the Claimants until they vacate the property.
Pleadings were filed and exchanged between parties after which judgment was granted on the 3rd October, 2012 wherein all the reliefs sought by the Claimant were granted.
The Appellant dissatisfied with the judgment filed a Notice of Appeal dated 22nd October, 2012. The Respondent also being dissatisfied with a portion of the judgment filed a Notice of Cross Appeal dated 27th November, 2012.
The Appellant’s brief dated 3rd April, 2013, and filed 8th April, 2012 was settled by Rotimi Seriki of Rotimi Seriki & Co. The Appellant also filed a reply brief dated 10th June, 2013 and filed on 11th June, 2013 but deemed properly filed on 22nd January, 2014. Five issues were settled for determination thus:
“1. Whether the learned trial judge was right in arriving at the conclusion that the Claimant (Respondent) did not receive or execute a purported 20 years lease?
2. Whether the learned trial judge was right in arriving at the conclusion that the 20 years Development lease (Exhibit 10) is
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a forgery and a fraudulent document?
3. Whether the learned trial Judge was right in holding that the 20 years Development lease (Exhibit 10b) was invalid, null, and void for not containing a commencement date?
4. Whether the learned trial Judge was right in refusing to admit in evidence as an exhibit a Certified True Copy of the judgment delivered by Mr. A. O. Isaac Chief Magistrate 1 of the Magistrates Court of Lagos State in CHARGE NO. A/43/2005 COMMISSIONER OF POLICE v. NASIRU AROWOGBOLA AKINLUSI?
5. Whether the learned trial Judge was right in granting all the reliefs sought by Claimant (Respondent)?”
The Respondent on the other hand filed his brief/Cross Appeal on the 9th May, 2013 and same was filed same day. It was settled by Emmanuel Udoka of Emmanuel Udoka & Co.
The Respondent adopted all the issues raised for determination by the Appellant in his brief. Therefore, these issues shall be adopted by the Court, however issues 1-3 of this appeal shall be grouped together as all 3 issues touches on the contention arising from the Deed of Development Lease, while the last two issues shall be treated
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separately.
ISSUES 1 – 3
Appellant argued firstly that the trial Court relied so much on the testimony of CW1 & CW4 to arrive at the conclusion that the Respondent did not receive a copy of the 20 years Deed of Development Lease, nor execute same. He referred to the pleadings filed by parties and. submitted that parties did not join issues as touching the time and date of the execution of the Deed i.e. Exhibit 10b, based on this he submitted that the judge acted in error. He thus contended that the learned trial judge discharged and acquitted DW1 of the offence of conspiracy and forgery of the said Exhibit 10b.
The Respondent on the other hand submitted that contrary to the argument of the Appellant, both parties actually joined issues on the receipt and execution of Exhibit 10b. He referred to the Amended Statement of claim, the testimony of PW1 & DW1 all at pages 297, 545 and 595 respectively of the records. He then contended that the onus of proving the receipt of the Exhibit in contention lies on the Appellants since they alleged that the Respondents received it. He cited Section 131 of the Evidence Act, 2011 and FATB v.
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PARTNERSHIP INVESTMENT CO. LTD [2003] 18 NWLR (Pt. 851) 35 at 73; BARRY v. BUTHIN 12 ER 1089 at 1090; JOHNSON v. MAJA 13 WACA 290.
On the issue of the discharge and acquittal of DW1, he submitted that it is of no moment because the said judgment was tendered and rejected by the trial Court, and same cannot be an issue in the instant appeal, he referred to page 557 of the record. He then urged the Court to discountenance the argument of the judgment and cited OLUFEAGBA v. ABDUL-RAHEEM [2009] 12 SC (Pt. II) at 10.
The Appellant in response argued that the law is clear that it is only issues for determination that are argued in a brief and not grounds of appeal, he cited AGBAI v. OKOGBUE [1991] 7 NWLR (Pt. 204) 391 at 421; CHIKELUE v. IFEMELUDIKE (1997) 11 NWLR (Pt. 529) 390 at 401.
On the second issue, Appellant submitted that the lower Court also relied heavily on the testimony of CW3 & CW5 and the report of a handwriting expert which is Exhibit 12, thereby arriving at a conclusion that Exhibit 10b was a forgery. Also, that the lower Court did not avert its mind to the fact that CW3 was not a signatory to the handwriting analysis
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report contrary to claims that he was a member of the team; CW5 admitted that although he countersigned Exhibit 12, he was only a forensic pathologist; DSP Kolawole who was a signatory to Exhibit 12 wasn’t called as a witness; from the face of Exhibit 12, there was no indication that the signatures were analyzed by signature experts neither was CW3 part of the team; the signature experts did not compare the signatures of CW1 & CW2 on Exhibit 10b. He submitted that it is undisputed law that the burden of proof in Criminal Matters is beyond reasonable doubt. He cited Section 135 of the Evidence Act 2011 and U.T.B v. AWANZIGANA ENT. LTD [1994] 6 NWLR (Pt. 348) 56 at 79-80; IGBEKE v. EMORDI [2010] 11 NWLR (Pt. 1204) 1 at 49; FASAKINN v. SIWOKU [2009] 16 NWLR (Pt. 1167) 305. He contended further that rather than restrict herself to the evaluation of CW3’s testimony as touching Exhibits 10 & 12, she embarked on an independent signature analysis. He finally submitted that from all the evidence adduced at the trial Court, the Respondent failed to prove beyond reasonable doubt that Exhibit 10b was a forged document.
?
The Respondent on his own part
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argued this issue on three (3) broad categories: (a) Non contradiction of the evidence of the witnesses at trial; (b) circumstantial evidence; (3) Introduction of another dimension of 2018.
Firstly, on the contradiction of evidence, he cited Section 136 of the Evidence Act, 2011 and OGBEIDE v. OSULA [2004] 12 NWLR (Pt. 886) 132 Paras E-H to the effect that where an allegation of forgery is raised in a Civil Suit, same shall be proved beyond reasonable doubt, and submitted that the trial Court was right to have held that Exhibit 10b is a forgery. He referred to pages 546-552 of the record which contains evidence of witness all of which were neither challenged nor controverted, he relied on NITEL v. IKPI [2007] 8 NWLR (Pt. 1035) at 109-110. He gave the settled position of law that one of the ways the Court can adjudicate on a matter is through circumstantial evidence, he cited AMALA v. STATE [2004] 12 NWLR (Pt. 888) 555. He therefore contended that DW1 cannot be said to be a truthful witness considering the fact that he has two inconsistent evidences which are both material. He cited AYANWALE v. ATANDA [1998] 1 NWLR (Pt. 68) 22; AREMU v. CHUKWU [2012] 3
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NWLR (Pt. 1288) at 620; MONOPRIX NIG. LTD v. OKENWA [1995] 3 NWLR (Pt. 383) 325; EZEMBA v. IBENEME (2004) 14 NWLR (Pt. 894) 645; FORTUNE INTERNATIONAL BANK PLC. v. PEGASUS TRADING OFFICE (2004) 4 NWLR (Pt. 863) 387-388.
The Appellant in response argued that the law is settled that circumstantial evidence only relates to Criminal Proceedings and not Civil Proceedings as the Respondent portends it to be, he then urged the Court to discountenance the arguments of the Respondent based on the circumstantial evidence.
On the third issue, the Appellant submits on the position of the law that parties are bound by their pleadings and cited N.N.P.C. v. IDONIBOYE OBU [1996] 1 NWLR (Pt. 247) 655 at 672, he also referred to the pleadings filed by parties at the lower Court before submitting that indeed the learned trial judge was wrong to have held that Exhibit 10b was invalid, and null and void for not containing a commencement date.
?The Respondent on this issue however argued that the law is settled that for a lease to be valid, the date of its commencement must be certain. He cited NIENEDIM v. UDUMA [1995] 6 NWLR (Pt. 402) 383 at 396. He went on
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to say that of the two leases, only one has a commencement date by virtue of its supplemental Deed. He then urged the Court to discountenance the Deed in absence of a commencement date. He further submitted that even if Exhibit 10b was said to commence from the day vacant possession was given to the Defendant, it could be said that it has no commencement date. He cited COMMISSIONER FOR LAND & HOUSING KWARA STATE v. ATANDA (2007) 2 NWLR (Pt. 1018) 374; LACE v. CHANDLER (1994) 1 ALL ER 305 at 306-307; OGBAHONN v. REGISTERED TRUSTEES CCC [2002] 7 NWLR 7 (Pt. 749) 704. He then concluded on this issue that the trial Court was right to have pronounced it a nullity as a result of it lacking a commencement date.
RESOLUTION
This deals with the propriety of the lower Court concluding that the Claimant did not receive or execute a purported 20 years lease in Exhibit 10b and the finding that the said Exhibit 10b is a forgery and a fraudulent document and same was invalid, null and void for not containing a commencement date.
The Amended Statement of Claim in Paragraph 29 and Paragraphs 10, 11 of the statement of Defence, joined issues on the
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Development lease entered into by them, so it is obvious that the same would be proved at the time of the trial. It is trite that he who asserts must prove the existence, delivery and making of same, coupled with the authority and the draft of the said Deed of Development lease in question.
See Section 131 of Evidence Act 2011 and ADEGOKE v. ADITI & ANOR (1992) 5 NWLR (Pt. 242) 410.
In OSAWARU v. EZEIRUKA (1978) 6-7 SC 91, the Apex Court held per NNAEMEKA-AGU, JSC:
“In Civil cases, where the general burden of proof in the sense of establishing his case lies on the plaintiff, such a burden is not as static as in Criminal cases. Therefore there will be instances in which on the state of pleadings, the burden of proof will be on the defendant also as the case progresses. Such a situation will arise when it may become the duty of the defendant to call evidence in proof or rebuttal of some particular points which may arise in the case.”
Evidence of DW1 during Cross Examination at page 559 of the record was:
“… when the construction was going on it was gulping a lot of money, I approached the Claimant for extension. Yes I was
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in possession and carrying out construction before I asked for extension of the lease period. Yes this was before Exhibit 13 was produced i.e. lease for 20 years. Yes my lawyer wrote in Exhibit 10a, yes there is no commencement date on the lease agreement forwarded by my lawyer as shown on Exhibit 10b, it commenced in 1998. No there is nowhere CW1 acknowledged receipt of the document forwarded as in Paragraph 13 and 17. No, the new lease of 20 years did not make reference to the earlier lease of 6 years or termination of same.
No effort was made to prove delivery of the lease, nor was the lawyer who drafted the Deed called as a witness, or how it was received and when the whole negotiation began before it crystallised into a Deed.
I agree with the lower Court that the claimant did not read or execute the said lease; in fact the Claimant vehemently showed that it was strange to him and the Respondent did not challenge or contradict its evidence. The lower Court did a comparison and evaluation of the Deed of Development in Exhibit 3a and the supplemental Deed in Exhibit 3b and found as a fact that the period of the Developer’s exclusive use was
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only for six years. Again from the pleadings, the claimant pleaded forgery and particulars thereof and the burden in this regard was definitely that of a criminal burden beyond reasonable doubt, see Paragraph 23 of Claim at page 6 of the Record.
Section 135 (1) of Evidence Act:
“If the Commission of a crime by a party to any proceeding is directly in issue in any proceeding Civil or Criminal, it must be proved beyond reasonable doubt.”
The Amended statement of Defence in Paragraphs 5-15 at page 441 of the record herein are copious pleading on steps to the preparation of the deed and final hand over to the Chief Ezenife.
5. “In answer to Paragraph 22 of the Statement of Claim, the Defendants aver that there was no forged Deed of Development Lease as the Deed of Development Lease was executed by the Claimants and the 1st Defendant.
6. With regards to Paragraph 23 of the Statement of Claim, the 1st Defendant aver that it was in the course of construction that the 1st Defendant approached and pleaded with Chief Executive of the Claimants that in view of the huge amount of money expended on the project that extension of the
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Development Lease be granted.
7. The 1st Defendant also avers that Chief Chukwuemeka Ezeife in his usual magnanimous nature agreed to tenure of 20 years and instructed the Chief Executive of the 1st Defendant to prepare another Deed of Development Lease to reflect the new agreement of 20 years lease.
8. The 1st Defendant avers that in line with the agreed terms: it instructed its Solicitors, Barrister Olufemi Alade who prepared another Deed of Development Lease.
9. The 1st Defendant also avers that 3 copies of the Development Lease were delivered to Chief Chukwuemeka Ezeife, the Chief Executive of the Claimant at his Awolowo Road, Ikoyi, Lagos Office.
10. The 1st Defendant further avers that the said Chief Chukwuemeka Ezeife on delivery of the Deed of Development Lease gave its Chief Executive Officer an appointment at a later date to collect the executed Deed of Development Lease just as he did when the 1st Deed of Development Lease was executed.
11. That on the appointed date, the Executive of 1st Defendant was at Chief Chukwuemeka Ezeife’s office at Awolowo Road, Ikoyi to collect the newly executed Deed of Development Lease.<br< p=””
</br<
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12. The executed documents were then handed over to Barrister Olufemi Alade for Stamp Duty.
13. The 1st Defendant states that its Solicitor, Barrister Olufemi Alade paid for stamp duties on the documents and handed over the 3 copies to its Chief Executive.
14. The 1st Defendant thereafter forwarded a copy of the new Deed of Development Lease to Chief Chukuemeka Ezeife and he was very happy with the entire transaction and even offered the Chief executive kola nuts representing peace and friendship in Igbo Land.
15. The Defendants deny Paragraph 23 of the Statement of Claim and put the Claimant to proof of the averments therein.”
The above reproduced paragraphs of the Amended Statement of Defence is also contained in Paragraphs 8-18 of the Amended Defendant’s witness Statement on Oath at page 443-444 of the records. In Paragraphs 8-11 above, Respondent averred steps of preparation of the Exhibit 3a and signing and initialing of each page before stamping by the 1st Defendant in Paragraph 13. He covered the necessity of Exhibit 3b that the earlier deed did not contain a commencement date and was dated 30/9/98 and thereby disowned the
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deed.
At page 546, CW1 testified in cross examination as to drafting and signing of Exhibit 3a & 3b but disowned supplemental lease of 20 years. CW2, the estate agent at page 307 who introduced the 1st Defendant to the Respondent in his statement on oath disowned the Deed of 20 years and stated that he was only aware of two deeds i.e. Exhibit 3a & 3b.
?He maintained this under cross examination and was not shaken. CW4 – Chief Ebele Ezeife was part of negotiation and implementation of Development Lease agreement between Claimant and 1st Defendant/Appellant at page 304, testified at pages 549. He was cross examined and maintained that Exhibit 10b was not executed by them. He was the Procurement Manager of the CPE Basic X; he made the complaint of forgery to the police. He did not execute any of the deeds but witnessed the signing. CW3 & CW5 tendered Exhibit 5 & 12-14, being analysis and reporting of the handwriting analysis on the Exhibit 10b. Under cross examination, it was shown that the investigation/examination of all documents were team work of three people who participated of which he headed and assigned it to them all in
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proof that the Exhibit 10b was a strange document which was never seen nor signed, executed, witnessed by the Respondent, who authorized the development of the property, On the other hand, the Appellant (Defendant) only called one witness, the developer who testified at page 557-560 of the records, the 3rd – 20th are defendants/tenants.
Under cross-examination, he testified that he asked for an extension of the lease period for 20 years which was to expire in 2018. He agreed that his lawyer made Exhibit 10a, but in Exhibit 13 it was not acknowledged by CW1, it did not make reference to earlier lease of 6 years or termination of same. This is the only evidence in defence of the allegation.
The learned trial judge held at page 575 of the record as follows:
…”as a well experienced property developer, I am persuaded that the Defendant made careful calculation before he submitted his bid proposals for consideration, I am therefore of the considered opinion that it is rather suspicious that after the due execution of the lease agreement as in Exhibit 3a & 3b he turns around to seek a radical change in the terms agreed and I so hold. It is
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settled law that parties are bound by the terms of the agreement they have voluntarily entered into and a Court of law is expected to hold them to their agreement”….
The learned trial judge continued at page 577 thus:
“… I am nevertheless satisfied that the Claimant established beyond reasonable doubt that the signatures of the CW1 (Chief Ezeife) & CW4 (Ebele Ezeife) found on Exhibit 10b (the purported 20 year lease) – were contrived and mere simulations of the true signature of CW1 & CW4 and I so hold. I am able to come to this conclusion for further reason that a cursory look at the signatures of CW1 & CW4 on Exhibit 10b will reveal that they are markedly different from their signatures found on Exhibits 3a & 3b on which both parties are ad idem. Let me equally add that unlike Exhibits 3a & 3b, which clearly shows the impressions of the corporate seals of both companies, no such seal impressions are found on the controversial lease of 20 years and I so hold. Finally a close look at the controversial lease of document (i.e. Exhibit 10b) clearly reveals that the said document makes no reference whatsoever to either
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Exhibit 3a (the principal lease) and or 3b (the supplemental deed) with a view to incorporating the terms already agreed by them or stipulating that the terms of the previous agreement (i.e. 3a & 3b) are no longer binding and I so hold. All these suggest to me that the questioned document i.e. Exhibit 10b, is not only a fraudulent document, it does not represent the agreement between parties”….
I cannot agree less, that the lower Court did an extensive evaluation on the evidence before her and came to the correct conclusion that the Respondent proved through scientific evidence Exhibit C3 & C5 coupled with evidence of preparation of Exhibit 3a & 3b to arrive at this finding. The Court cannot in the light of the evidence before it shut its eyes to the obvious.
The duty of appraising evidence and ascertaining probative values is in the province of the trial Court. This duty is not shared with any party to the case, it is the Court that saw and heard from witnesses and thus the duty of assumption of the values to the evidence is the singular duty of the Court.
?See EBOADE v. ATOMESIN (1997) 5 NWLR (Pt. 506) 490 at 507-508;
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MOGAJI v. ODOFIN (1928) 4 SC 94-96, IVIN & ORS v. EVHURHOBARA & ORS (1991) 2 NWLR (Pt. 173) 252.
On the above issues therefore, in answer to whether the 20 years Development lease i.e. Exhibit 10b was invalid, null and void for not containing a commencement date. I would refer to paragraph of page 578 of the records wherein the learned trial judge held thus:
“In addition, Exhibit 10b appears to have no commencement date. The import of such a lacuna is that such an agreement in the eyes of the law runs against the grain of a lease”…
This extracts continues immediately after the evaluation of the issue of forgery reproduced earlier in this judgment, the learned trial judge had merely added this angle of commencement date to amplify the fact that the Exhibit 10b had too many defects to be held to be what was executed. Exhibit 10b is invalid, null and void particularly since it was for the same reason that Exhibit 3b a supplementary deed was made at the instance of CW1.
?I have no hesitation in holding that this issue is mischievous and for whatever it will seem the lease is invalid, null and void for this and other reasons
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early found.
On the totality I resolve the 3 issues under issue 1 in favour of the Respondent.
ISSUE 4
Appellant referred to pages 556-557 of the records wherein the learned trial judge rejected the Certified True Copy of the judgment of the magistrate in COMMISSIONER OF POLICE v. NASIRU AROWOGBOLA AKINLUSI, he then submitted that this action of the lower Court placed heavy reliance on failure to comply fully with the requirement of the law in Section 4 (1) & (2) of the Evidence Act, 2011 and Section 23 of the Interpretation Act. He cited WEMA BANK PLC. v. BRASTEM STERR NIG. LTD [2011] 6 NWLR (Pt. 1242) 58 at 83.
He further submitted that the document sought to be tendered complied with four (4) out of five (5) of the requirements stipulated by the Evidence Act cited above, and that if same had been admitted as evidence by the lower Court, it would have had a material effect on the judgment of the trial Court.
?The Respondent arguing this issue contended that the Appellant’s counsel objected to the admissibility of the said judgment of the magistrate on reasons of non-compliance with the relevant provision of the
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Evidence Act. He however, contended that the reliance of the Appellant on the Interpretation Act is a misinterpretation of same as it did not interpret the manner of compliance with the provision of the Evidence Act. He cited AQUA LIMITED v. ONDO STATE SPORTS COUNCIL [1988] 4 NWLR (Pt. 91) 622 at 641-642; CROWN STAR & CO. LTD v. THE VESSEL MV MALI (2000) 1 NWLR (Pt. 637); DANTATA v. MUHAMMED (2012) 8 NWLR (Pt. 1302) 380.
The Appellant in his reply contended that the above cases cited by the Respondent are irrelevant and not applicable to the instant case. He also contended that the submission of the Respondent on the effect of the inadmissibility of the judgment of the magistrate is based on mere speculation and submits that the law is very clear beyond citing of authorities that the Court will not act on mere speculation.
The Appellant at trial page 556 of Records sought to tender the judgment of the Magistrate Court, but same was rejected due to improper certification- no title of the certifying officer. This objection was upheld by the lower Court and it was marked rejected. See TABIC INV. LTD v. GTB PLC (2011) 6 ? 7 SC (Pt. 3) at
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56.
In Section 104 of the Evidence Act:
“1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of legal fees prescribed in that respect, together with a certificate written at the foot of such copy that is a true copy of such document or part of it as the case may be.
2) The certification mentioned in Subsection 1 of this Section shall be dated and subscribed by such officer with this name and his offered title and shall be sealed, whenever such officer is authorized by law to make use of a seal and such copies so certified shall be called certified copies.
3) Copies of documents certified in accordance with Section 104 may be produced in proof of the contents of the public documents or parts of the public document of which they purport to be copies.” (Underlining mine).
Therefore in line with the above, the learned trial judge correctly interpreted the law and applied same. It is a mandatory requirement of the law, it is a public document and it must be genuine and such authorizing officer must disclose his full identity –
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name, title, signatures and document sealed.
The wording of the Act is clear, whenever such officer is authorized by law to make use of a seal. Therefore, the title is an important disclosure to enable the public knows if he is authorized or not. I resolve this issue against the Appellant.
ISSUE 5
Appellant submitted that the Respondent’s claim at the trial Court was based on allegation of forgery and relied on Sections 131-133 & 135 of the Evidence Act, 2011 that the Respondent had the onus of proving the allegation beyond reasonable doubt. He cited MOHAMMED v. MOHAMMED (2012) 11 NWLR (Pt. 1310) 1 at 47-48.
He further submitted that it is not in dispute between parties that the 2nd-20th Appellants were tenants of the Respondent at all material times. It is also not in dispute that the 2nd-20th Appellants have no contractual relationship with the Respondent. He finally submitted that there was thus no justification for the grant of the 5th relief at the trial Court. The learned trial judge was thus not entitled to direct them to pay their rents.
He therefore urged the Court allow this appeal and resolve same in his
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favour.
On the other hand, the Respondent referred to the Claimant’s Amended Writ and Statement of Claim on pages 291-298 of the record and submitted that the learned trial judge was right in granting all the reliefs because reliefs a & b were presented to the Court for adjudication to which the Appellants joined issues in their defence and also raised the issue of expiration of the lease in 2018. The remaining 3 reliefs were in issue before the trial Court. He referred to pages 442-549 of the records. He further submitted that the issue is a fresh issue and thus cannot be raised on appeal. He cited FADARE v. A-G OYO STATE (1982) 4 SC 1 at 16-17; NSIRIM v. NSIRIM [1990] 3 NWLR (Pt. 138] at 285; SADIKU v. A-G LAGOS STATE (1994) 7 NWLR (Pt. 355) 235; ONOMIARU v. R.C.C.C. LTD. [1995] 7 NWLR (Pt. 406) 214.
On the issue of privity of contract, Respondent submitted that even if it were competent, it will still fail. He relied on CARRENA v. AROWOLO [2008] 6-7 SC (Pt. 1) 84 & 85; CLETUS AGU CHIEKWEILO v. AUGUSTINE [1998] 8 NWLR (560) 144 at 123 Paras. G-H; NSIEGBE v. MGBENA [2007] 10 NWLR (Pt. 1042) at 375.
He finally urged the Court to
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dismiss this appeal and resolve same in their favour.
Appellant in reply contended that Respondent’s submission on the privity of contract contradicts the argument that the Respondent’s solicitors conceded that issues were joined between parties as regards the reliefs claimed by the Respondent.
He then submitted that the applicable principles of law for a grant of reliefs on issues that have been joined by parties cannot by imagination constitute a fresh issue on appeal.
On the issue of privity of contract existing between the Respondent and the 2nd-20th Appellants, he submitted that it is worthy of mention that the 1st Respondent pleaded and admitted that the 2nd-20th Respondents were tenants of the 1st Respondent, hence the matter is not a fresh issue and does not require the leave of Court.
The Respondent’s claim at page 2 of the records will be reproduced hereunder for better appreciation of this issue:
1. “A declaration that the only valid Deed of Development lease between the Claimant and 1st Defendant are the Deed of Development lease stamped on 15/7/98 and the supplemental Deed dated 30/9/98.
2. A declaration
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that the undated Deed of Development lease granting the 1st Defendant a lease of 20 years and purportedly made between the Claimant and the 1st Defendant is a forgery.
3. A declaration that any agreement between the 1st Defendant and any of the other Defendants purporting to grant the 2nd-21st Defendants a tenure that is beyond 31st July, 2004 is null and void and of no effect whatsoever.
4. A Declaration that the 1st Defendant is not entitled to collect any rent from the 2nd- 21st Defendants as from 1st August 2004.
5. An order directing the 2nd-21st Defendant to pay their rents with effect from 1st day of August 2004 to the Claimants until they vacate the property.”
The resolution of this issue flows from the resolution of issues 1 & 2 above. Having found and held that the purported deed of Exhibit 10b & 13 is not the agreement between parties and confirming the nullity of the lease; it then means that Exhibit 3a & 3b are the only agreements between parties and by law the intention of parties therein should be effected. Therefore, relief 1 was proved and upheld and issue b-c-d-e flows there from and falls or sinks with issue 1, and therefore it
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was properly granted. Exhibit 3a & 3b ended in 1st of August, 2004 terminating all rights and autonomy given to the Appellant including possessions, there is evidence that Appellant had put tenants on all parts of the property and all efforts to regain the Respondents portion failed, this was not contractual.
The Respondent is therefore entitled to collect rents as any tenure beyond its expiration by way of an agreement is null and void and of no effect. The tenants have ample notice of case and judgment in this case at the lower Court and are bound by the judgment of this Court on the issue; they are bound to pay rents from 1st August, 2004 to Respondents.
I agree that the Respondents having proved their cases are entitled to the reliefs sought. This Court sees no reason to interfere. See NSIEGBE v. MGBENA (2007) 10 NWLR 1 (Pt. 1042) at 375.
The appeal is unmeritorious and is hereby dismissed. The judgment of IPAYE J, of Lagos High Court delivered on 3rd October, 2012 is hereby affirmed.
Costs of N50,000.00 to the Respondents.
CROSS APPEAL
The Respondent/Cross Appellant submitted one issue for determination:
<br< p=””
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“Whether there was any basis upon which the trial Court held that the Defendants were able to establish that the Criminal charge of forgery, etc. preferred against him at the Magistrate Court was heard and he was acquitted and discharged.”
The Respondent submitted that it relied on the arguments in Respondents brief, and referred to pages 577 to 578 of the record which contains the judgment of the lower Court wherein the learned trial judge was analyzing the evidence of CW3 & CW5. He submitted that the finding of the learned trial judge based on the discharge and acquittal of the Defendant was wrong.
“On the other hand although the Defendant was able to establish that the Criminal charge of forgery etc. preferred against him at the Magistrate Court was heard and he was acquitted and discharged. I am nevertheless satisfied that the claimant has established beyond reasonable doubt that the signatures of the CW1 (Chief Ezenife) and Cw4 (Ebele Ezenife) I found on Exhibit 10b (the purported 20 year lease) were contrived and mere simulations of the true signatures of CW1 and CW4 and I so hold.”
Respondent submitted reasons for this
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contention, that there was no connection between the flow of analysis and the sudden finding; there were so many Defendants in the suit, and the trial judge did not mention who out of the Defendants was acquitted and discharged, and that the Certified True Copy of the said Magistrate Judgment was between Commissioner of Police v. Nasiru Arowogbola Akinlusi was not a defendant in the High Court matter and the said Certified True Copy was rejected. That the judge gave no reason to back up this finding as every decision or finding must have a reason he relied on ITA v. EKPENYONG [2001] 1 NWLR (Pt. 695) at 618.
The Cross-Respondent to the Cross appeal filed a brief wherein he submitted one sole issue for determination:
“Whether the learned trial judge was right in arriving at the conclusion that the 1st Defendant’s Managing Director was able to establish that he was discharged and acquitted of the criminal charge of forgery preferred against him at the Magistrate Court?”
He cited the following cases to argue that issues in Civil proceedings are determined on preponderance of evidence and balance of probabilities EYO v. ONUCHA [2011] 11 NWLR
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(Pt. 1257) PG 1 at 26; AKEREDOLU & ORS v. AKINREMI & ORS [1989] 3 NWLR (Pt. 108) 164; ADEOGUN v. FASOGBON [2011] 8 NWLR (Pt. 1250) PARAS. 427. He then submitted that no reply was filed to the Amended Statement of Defendant and therefore was deemed to have admitted them, the aforementioned discharge and acquittal of the 1st Cross Respondent’s Managing Director having failed to join issues with the latter on same.
He submitted that DW1 was not cross examined on the issue. He referred to evidence on record and submitted that the Cross Appellant’s witness did not controvert nor contradict the evidence of DW1. Finally, he submitted that it is not every accidental slip or mistake that will result in a decision being set aside and that such must be of a fatal nature that will affect the decision of the trial Court.
In Cross Appellant’s Reply, he submitted that the submission of Cross Respondent is incompetent for reason that irrespective of a reply to the Statement of Defence not filed the issue of the Magistrate in charge A/43/005 did not arise at the lower Court or form the basis of the judgment. He relied on FADARE v. A.G. OYO STATE (1982)
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4 SC 1 AT 16; NSIRIM v. NSIRIM [1990] 3 NWLR (Pt. 138) 385; SADIKU v. A.G. LAGOS STATE (1994) 7 NWLR (Pt. 355) 235. That this issue raised is an issue not raised in the lower Court and cannot be argued without the leave of Court. He further canvassed that the issue of accidental slip was not raised in the grounds and therefore was outside the brief, he relied on DREXEL ENGINEERING v. TRANS INTERNATIONAL BANK [2008] 12 SC (Pt. 11); EFCC v. ODIGIE [2013] 17 NWLR (Pt. 1384) 633.
On the part of the Court, in resolving the sole issue in the Cross-appeal the above reproduced portion of judgment complained about, it is clear that the Defendant raised it as a defence in its Statement of Defence; it is trite that he who asserts must prove. Since it is an allegation of discharge and acquittal; it must be proved by production of Certified True Copy of same. In Section 128 of Evidence Act, 2011:
“when a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of document, no evidence may be given or such judgment or proceeding or of terms of
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such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the Act; nor may the contents of any such document be contradicted, altered, added or varied by oral evidence.”
Therefore, the fact of discharge cannot be proved by mere word of mouth especially as the tendered copy was marked rejected for non compliance with the provision of certification in Section 104(2) of the Evidence Act. The contents were not part of the findings before arriving at the judgment. Furthermore, the 1st Defendant herein was not the accused in the Criminal case; it was DW1, so it differs and should not/cannot form a basis for such pronouncement. The 1st Defendant here is APIC Nigeria Ltd, while Nosiru Agboola is the Developer accused in the Magistrate Court and was DW1. The other 2nd ? 21st Defendants in the lower Court are tenants of the 1st Defendant. It is not known which “Defendant” referred to in the judgment proved that it was discharged; in fact neither Defendants herein proved that they were discharged. Nosiru Agboola was not a party therein; he was
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only the sole witness for the Defendants.
Therefore, based on the evidence before it, there was no basis for the lower Court to have arrived at such finding, coupled also in the light of no defendant establishing that the Criminal charge was filed, heard against him and that same was acquitted and discharged. I hereby set aside that finding of the lower Court.
The Apex Court per Chukwuma Eneh, JSC, in ONWUKA v. ONONUJU [2009] 11 NWLR (Pt. 1151) 114 held, thus:
“The grounds on which an appeal Court will interfere with exercise of discretion by a trial Court on appeal are as follows:
a) Where the Court has acted arbitrarily; or
b) Where the Court has taken into account extraneous consideration it should not have taken; or
c) Where the Court has omitted to take into account relevant matters.”
See AJAGBE v. IDOWU [2011] LPELR-279 SC; AMADI v. ORISAKWE [2005] 7 NWLR (Pt. 92) at 385.
After all a cross-appeal can be filed by a Respondent seeking to correct errors in the judgment or set aside a finding which is crucial and fundamental to the case. See LAFIA LOCAL GOVT. v. GOVT. OF NASSARAWA STATE & 35 ORS (2012)
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17 NWLR (Pt. 1328) 94.
Having resolved the sole issue in favour of the Cross Respondent, the cross-appeal is meritorious; it succeeds and is hereby allowed.
The part of the judgment of IPAYE, J, of Lagos High Court delivered on 3rd Oct, 2012 appealed against is hereby set aside.
Other Citations: (2016)LCN/8924(CA)
