Calabar Central Co-operative Thrift & Credit Society & Ors. V. Bassey Ebong Ekpo (Substituted by Edet Bassey Ekpo) (2001)

LawGlobal-Hub Lead Judgment Report

EKPE, J.C.A.

By an Originating Summons issued at the instance of the plaintiff now respondent by Calabar High Court of Cross River State, against the defendants now appellants, the respondent sought for the determination of the following question:

“Whether, in accordance with the Land Use Decree 1978, valid title has been passed from the plaintiff to the 1st defendant arising from the agreement of 25th January, 1987, over the plaintiff’s property situate at No. 3C Enebong Avenue, Calabar.”

(a) A declaration that the purported conveyance is null, void and of no effect whatsoever and is against the provisions of the Land Use Decree of 1978.

(b) An Order directing the 1st defendant, its agents, servants, privies, assigns to vacate the property situate at No. 3C Enebong Avenue, Calabar.

(c) An Order directing that the original documents of the survey and building plans and the agreement originally conveying the plot/parcel of land known as 3C Enebong Avenue, Calabar to the plaintiff be returned to the plaintiff.

(d) The sum of N400,000.00 (four hundred thousand naira) as general damages.”

The respondent filed an affidavit of 18 paragraphs in support of the Originating Summons with Exhibits A, B, and C and later further and better affidavits in support thereof. The appellants filed a counter-affidavit with Exhibits A, B, and C to C4 and D and a further and better counter-affidavit in opposition to the Originating Summons.

From the affidavits and counter-affidavits of the parties, the pertinent facts of the case of each side, leading to this appeal may be stated thus: The respondent’s case is that he was employed as a Clerk by the 1st appellant in July, 1964, and by May, 1974, he had risen to the position of a Senior Travelling Secretary, in the 1st appellant’ company. On 24th June, 1987, the respondent was suspended from duty by the 1st appellant pursuant to a letter of suspension, marked Exhibit B annexed to the respondent’s main affidavit. In Exhibit B, the respondent was accused of having perpetrated some fraudulent acts which tended to tarnish the image of the 1st appellant and he was therefore, ordered to go on immediate suspension pending the result of an investigation into the matter by the 1st appellant. The 2nd and 3rd appellants were the president and member respectively of the management committee of the 1st appellant company. Consequent upon the accusation, the respondent was arrested by the police at the instance of the appellants and was taken to the police station Atakpa, Calabar, where he was detained for interrogation and investigation. He was later released on bail on the same day. This was followed by the second and third arrests by the police. Upon the third arrest, the respondent was taken to the Police Headquarters at Diamond Hill, Calabar, where he was shown round the police cells by the police. The cells were occupied by hardened criminals, murderers and rapists. After showing him the cells, the police told him (the respondent), to sign a deed of “Mortgage” over his property situate at No. 3C Enebong Avenue, Calabar, by which his ownership of the said property would be given to the appellants, in exchange for or discharge of an alleged debt of N80,000.00 owed to the 1st appellant by the respondent and that, if he refused so to do, he would be thrown into the police cell, where the criminals were detained. The said deed of “Mortgage” is Exhibit ‘A’ annexed to the main affidavit of the respondent, which turns out to be a deed of conveyance. It is the case of the respondent, that in view of the psychological trauma, the shame of having been arrested several times by the police, the imminent torture that he was likely to undergo in the police cell, by the said criminals and the frail state of his health, he was obliged to sign Exhibit ‘A’ and to hand over all the original documents pertaining to his said property to the appellants. He maintained that after signing Exhibit ‘A’, he was eventually freed from further intimidation by the appellants, but he had no house to go into, as he had given away his only house at No. 3C Enebong Avenue, Calabar, to the appellants by virtue of Exhibit ‘A’. The respondent also asserted that, up till the time of his instituting this action, the appellants had not released the result, of their investigation or informed him of the outcome of any wrong doing or fraud, he was alleged to have committed. He maintained that, the appellants exercised undue influence or duress over him to sign Exhibit ‘A’ and by so doing, the appellants had defrauded him of his said property. The respondent denied defrauding or owing the appellants any sum of money whatsoever, or as was indicated in Exhibit ‘A’.

The case of the appellants on the other hand is an absolute refutal of the respondent’s story. They stated that the respondent who was an employee of the 1st appellant, was suspended from duty as he was found to have in the course of his duty defrauded the 1st appellant to the tune of N80,000.00 which later increased to N100,000.00, following the audit of the 1st appellant’s accounts by auditors. The appellants claimed that the respondent had admitted his role in the fraud at a management committee meeting of the 1st appellant. The minutes of the said meeting were annexed to the appellant’s main counter-affidavit as Exhibit ‘A’. Hence, the appellants reported the matter to the police. The appellants denied intimidating the respondent in executing Exhibit ‘A’, the deed of conveyance and insisted that the respondent executed Exhibit ‘A’, when it dawned on him (the respondent) that he was neck-deep in the fraud, and was likely to face a multiplicity of criminal prosecutions and civil suits from the 1st appellant and so the respondent offered to sell his said property to the 1st appellant in settlement of the debt he owed, to the 1st appellant as arising from defrauding the 1st appellant of the amount involved. The appellants annexed Exhibit ‘B’ to their main counter-affidavit, to show that there was no intimidation of the respondent, but that the respondent expressed his desire to sell his said property to the 1st appellant.

In a considered ruling dated 20/11/95, after hearing the Originating Summons, the learned trial Chief Judge, Ecoma, C.J. at pages 41 to 42 of the main record of appeal stated thus:

“On the whole, I hold the view that fraud against the plaintiff (respondent) has not been proved. If so, the plaintiff should have been charged to court. The idea of converting what should have been a criminal case, into a civil one is wrong. The purported exchange of a house for the sum of N80,000.00 as contained in Exhibit A, is completely wrong in law. Exhibit ‘A’ itself from (sic) the foregoing is not valid in law, the transaction being a nullity…

Having regard to all the foregoing, I think I should accede to the reliefs sought and do so accordingly, by making the following orders of this court.”

The learned trial Chief Judge finally granted reliefs A, B, and C claimed by the respondent, but as regards, relief D, he awarded the sum of N100,000.00 as general damages to the respondent.

Being dissatisfied with the ruling of the learned trial Chief Judge, the appellants have appealed against it to this court on seven grounds of appeal. Later, the appellants by application on notice dated 29/7/99 and filed on 30/7/99, in this court sought for leave to amend their notice and grounds of appeal. The application was granted on 23/11/99 by this court and the amended notice and grounds of appeal were deemed as properly filed and served. There are six amended grounds of appeal, which are reproduced as follows:

“1. Ground One

The learned trial Judge erred in law in deciding the case vide the Originating Summons procedure. The wrong adoption of this procedure therefore, occasioned a miscarriage of justice to the defendants/appellants.

Particulars

viva vocae (sic) evidence which would have enabled the cross-examination of witnesses were shut cut.

2. Ground Two

The judgment is against the weight of evidence.

3. Ground Three

The learned trial Judge erred in law when he held that failure to obtain Governor’s consent prior to the transaction between the parties herein rendered the agreement null and void.

Particulars

Failure to obtain Governor’s consent only renders the transaction incomplete and not void.

4. Ground Four

The learned trial Judge erred in law, when he failed to find that it was the plaintiff/respondent’s duty to obtain Governor’s consent for the transaction in issue and therefore, failed to arrive at the appropriate legal effect/ consequence of that failure which error occasioned a miscarriage of justice to the defendant/appellants.

Ground Five

The learned trial Judge erred in law when he ordered the return of the property No. 3C Enebong Avenue, Calabar, to the plaintiff/respondent, but failed to order the return of the purchase money to the 1st defendant/appellant.

Particulars

Where consideration fails, money paid should be returned.

Ground Six

The 2nd and 3rd defendants/appellants were wrongly joined as none of the reliefs sought was exactable from the 2 of them jointly or each severally.”

The parties filed and exchanged briefs of argument. In their brief of argument, the appellants identified seven issues for the determination of the appeal, namely:

“(a) Whether or not the question of nullity/voidity of a document/instrument particularly on ground of coercion/fraud (see basis of claims at P.1 and judgment at P.38 lines 10-11 of proceedings) is a question of interpretation of the document and therefore, fit to be taken vide the Originating Summons procedure or an issue to be proved on hard facts by viva vocae (sic) evidence allowing cross-examination of witnesses. Did this non-receipt of viva (vocae) evidence by the learned trial Judge, occasion a miscarriage of justice to the defendants/ appellants?

(b) Whether the totality of the evidence supports the judgment?

(c) Whether the learned trial Chief Judge was right at law, when he held that the transaction between the plaintiff/respondent and the 1st defendant/appellant was void because, the consent of the Governor was not first sought and had?

(d) Whether or not it is competent for a party to benefit from his own omission to the detriment of another party to the same transaction?

(e) In the unlikely turn that the learned trial Chief Judge was right in his judgment, should he not have ensured restitutio in integrum by ordering the refund of the purchase money. Should the plaintiff/respondent keep both the house and the money, particularly the sums paid by the 1st defendant/appellant to the plaintiff/respondent’s creditors.

(f) Whether or not the 2nd and 3rd defendants/appellants are personally liable jointly, the 2 of them along with the 1st defendant/appellant or severally each of them, for any of the reliefs sought in the lower court.

(g) Whether or not in the circumstances of this case the Court of Appeal is competent to enter a proper judgment herein.”

The respondent in his own brief of argument identified two issues for determination to wit:

“1. Whether on the evidence before the learned trial Judge, the respondent proved his case and was entitled to judgment in his favour.

2. Whether there is a binding and enforceable contract between the appellants and the respondent.”

Prior to the hearing of the appeal, the respondent had filed a notice of preliminary objection to the competency of the appellants’ amended notice and grounds of appeal and issue No. G, in the appellants’ brief of argument. The objection was fully argued in the respondent’s brief. The appellants also filed the appellants’ reply brief in response to the preliminary objection by the respondent.

Before going into the merits of this appeal, I shall firstly deal with the arguments on the preliminary objection raised by the respondent and replied to by the appellants. The preliminary objection is three pronged. Firstly, there is the objection against the validity and competency of grounds 1, 4, 5 and 6 of the appellants’ amended notice and grounds of appeal in that they do not relate to or arise from the judgment of the lower court, nor do they relate to the issues raised at the trial. Secondly, there is the objection to grounds 2 and 3 of the appellants’ amended notice and grounds of appeal in that they cannot be argued together with grounds 1, 4, 5 and 6 of the grounds of appeal which are considered incompetent. Thirdly, the objection here is centered against the competency of Issue No. G of the appellants’ issues for determination of the appeal. I shall now deal with the above three pronged attacks in the notice of preliminary objection to this appeal seriatim.

Objection No.1

The respondent has argued that grounds 1, 4, 5 and 6 of the amended grounds of appeal, do not relate to and are not based on the issues canvassed at and decided by the lower court. It was submitted that the appellants’ right of appeal is circumscribed within the parameters of the judgment appealed against and that an appellate court will not allow a ground of appeal, which impugns the judgment of the lower court on ground of error other than that contained in the judgment. It was also submitted that there should be a correlation between the grounds of appeal and the judgment being challenged on appeal and that the two must not be at variance. The following cases were alluded to:- Federal College of Education v. Anyanwu (1997) 4 NWLR (Pt. 501) 533; Ojo v. Gharoro (1999) 8 NWLR (Pt.615) 374 at 386: Bello v. Aruwa (1999) 8 NWLR (Pt.615) 454 at 468 to 469; Oba v. Egberongbe (1999) 8 NWLR (Pt.615) 485 at 489 to 490. It was further submitted that, apart from the fact that the said grounds of appeal are not based on the judgment appealed against, the appellants cannot also seek to raise issues, that were not canvassed or raised at the court below. The respondent contended that the appellants never raised at the court below arguments on grounds 1, 4, 5 and 6 of the amended grounds of appeal for determination by that court and they cannot seek to raise them in this court. The cases of Abiola v. Abacha (1997) 6 NWLR (Pt.509) 413 at 425; Omosowan v. Chiedozie (1998) 9 NWLR (Pt.566) 477 at 488; Federal Mortgage Bank of Nigeria v. Nigeria Deposit Insurance Corporation (1999) 2 NWLR (Pt.591) 333 at 359 to 360 were referred to. It was therefore, urged on this court to discountenance and strike out grounds 1, 4, 5 and 6 as incompetent for being irrelevant to the judgment now challenged by the appellants.

In the reply brief, the appellants contended that ground one of the grounds of appeal complains against the procedure adopted by way of originating summons in the commencement of this action and submitted that it constituted part of the hearing and as such it is a proper subject of appeal having by itself constituted a miscarriage of justice and referred to Balogun v. Labiran (1988) 3 NWLR (Pt.80) 66 where it was held by the Supreme Court that it will interfere with concurrent findings of the courts below when there has been some violation of some principles of law or procedure. Also cited are Otogbolu v. Okeluwa (1981) 6-7 S.C 99; Ibodo v. Enarofia (1980) 5-7 S.C. 42; Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 643. It was argued that if a violation of a procedural principle can justify the disturbance of concurrent findings, then it must necessarily justify the disturbance of one finding and that the procedure for doing this is by an appeal upon a proper ground. In answer to ground 4 of the grounds of appeal complained of by the respondent, the appellants argued that this ground of appeal was properly raised in the proceedings and referred to page 34 line 17 and page 35 line 12 of the record of appeal, and therefore, submitted that it fell for determination before the trial court and is a fit subject of appeal to this court. On ground 5 of the grounds of appeal, the appellants adopted the line of their argument proffered in respect of ground 4 above. As regards ground 6 of the grounds of appeal it was argued that the 2nd and 3rd appellants were unnecessary parties at the trial before the court below and in this court and even if this appeal succeeds nothing can be exacted from them in their personal capacities.

I have closely and carefully, considered the submissions by counsel for both parties. It is a settled principle of law by a long line of decided cases both in the Supreme Court and in the Court of Appeal that grounds of appeal against a decision or judgment must of necessity relate to the decision and be based on the issues in controversy or canvassed in the court below. Where a ground of appeal cannot be fixed and circumscribed within a particular issue in controversy in the judgment challenged, such a ground of appeal cannot justifiably be regarded as related to the decision. In Saraki & Ors v. Kotoye (1992) 9 NWLR (Pt.264) 156; (1992) 3 N.S.C.C. 331 at page 345 Karibi-Whyte J.S.C. had this to say:

“It is a well settled proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.”

In Bello v. Aruwa (1999) 8 NWLR (Pt.615) 454 it was held that grounds of appeal are not formulated in abstract. They must arise from the judgment in the same way as the issues arise from the grounds of appeal. And however meritorious a ground of appeal may be, it must be connected with the controversy between the parties at the trial court. In Abiola v. Abacha (1997) 6 NWLR (Pt.509) 413 it was held that the grounds of appeal must stem from the decision of the court below. See Onwuchekwa v. Onwuchekwa &Anor (1991) 5 NWLR (Pt.194) 739; Oba v. Egberongbe (1999) 8 NWLR (Pt.615) 485.

After a hard look at grounds 1, 4, 5 and 6 of the amended grounds of appeal complained of in the notice of preliminary objection, and guided by the authorities cited above, it is my firm view that grounds 1, 5 and 6 thereof, do not relate to or arise from the decision or the judgment being challenged by the appellants. They were not canvassed at the court below and indeed, they are extraneous matters to the decision of the court below. Clearly, therefore, grounds 1, 5, and 6 of the amended grounds of appeal are incompetent. They are hereby struck out. See Salami v. Mohammed (2000) 9 NWLR (Pt.673) 469. Consequently, issues Nos. (a), (e) and (f) respectively, formulated from the incompetent grounds 1, 5 and 6 aforesaid are also incompetent. In law, issues for determination of an appeal can only be validly formulated from valid and competent grounds of appeal. Where grounds of appeal are incompetent and are struck out, the issues formulated from them cannot stand-alone. An appellate Court will not entertain any argument or submission on issues not covered by competent and subsisting ground or grounds of appeal. See Akpan v. The State (1992) 6 NWLR (Pt.248) 439; Agundo v. Gberbo (1999) 9 NWLR (Pt.617) 71, Accordingly, issues Nos. (a), (e) and (f) are hereby struck out.

There is yet another angle to this matter. The appellants have strongly argued that the said ground one of the amended grounds of appeal, raises the issue of wrong procedure adopted by the trial court which has occasioned a miscarriage of justice and therefore, is a proper ground of appeal. It is pertinent to note that, the procedural issue raised in ground one of the amended grounds of appeal is being raised for the first time in this appeal, in this court. It was not raised by the appellants in the court below at the trial, where that court would have, if it was then raised, had the benefit of the views of the parties’ counsel on the issue and resolved the issue one way or the other, in order to form a proper subject of appeal. The appellants were contended with the procedure adopted at the trial for the commencement of the action, and defended the action to the very end. And now that the judgment is against them, behold, they are raising in this court, the issue of wrong procedure with the attendant violation of procedural principle, which they asserted has occasioned a miscarriage of justice to them (the appellants). The law is well settled that as appellate court will not normally allow a party to raise for the time a fresh point or issue which was not taken in the court below. Where, however, a party wishes to raise on appeal a new issue not canvassed previously at the court below, leave of the appellate court is necessary as it is a condition precedent, and the party ought to seek and obtain such leave before raising the new issue. See Manuel Misa v.Raikes Currie & Ors (1876) AC 554 at 559; Banbury v. Bank of Montreal (1918) AC. 626 (H.L.); Seismograph Services (Nigeria,) Ltd. v. Eyuafe (1976) 9-10 S.C. 135 at page 155; Oredoyin v. Arowolo (1989 4 NWLR (Pt.114) 172 at 192; Atoyebi & Anor v. Governor of Oyo State & Ors. (1994) 5 NWLR (Pt.344) 290; Salami v. Mohammed (2000) 9 NWLR (Pt.673) at 469. In Skenconsult (Nigeria.) Ltd, vs Sekondy Ukey (1981) 1 S.C. 6 at page 18, the Supreme Court stated thus:

“It is clear that this court will not allow a party on appeal to raise a question not raised in the court of trial or grant leave to a party to argue new grounds not canvassed in the lower courts, except where the new points or new grounds involve substantial points of law, substantive or procedural which need to be allowed to prevent an obvious miscarriage of justice.”

The Supreme Court in the Sken Consult case did, not decide that a party should not obtain the leave of the court to raise or argue a fresh issue or ground involving a substantial point of law, substantive or procedural in nature, on appeal. I concede that the fresh issue raised by the appellants on ground one of the amended grounds of appeal is on procedure, but I hold the view that there was need for the appellants to first seek and obtain the leave of this court before raising the fresh issue. There is no evidence that the appellants sought and obtained the leave of this court to do so. In the circumstances therefore, the appellants cannot be allowed to raise in this court the fresh issues not raised or canvassed in the court below. In my view, the objection has merit and it is hereby sustained.

As regards ground 4, of the amended grounds of appeal, I agree with the appellants that this ground of appeal was canvassed in the court below, as can be seen at page 34 line 17 and page 35 line 12, of the record of appeal. Indeed, ground 4 is an extension of ground 3 and it is quite in order. The objection to ground 4 fails.

Objection No.2

The gravamen of this objection is that grounds 2 and 3 of the amended grounds of appeal cannot be argued together with grounds 1, 5 and 6 of the grounds of appeal, which I have already declared incompetent, because this court lacks jurisdiction to entertain grounds 2 and 3, which are contained in the same amended notice of appeal with the incompetent grounds of appeal. The respondent conceded that grounds 2 and 3 of the grounds of appeal are competent by themselves, but argued that they are rendered incompetent by reason of the fact that, they are mixed together with the incompetent grounds of appeal. It was further argued that it is not the duty of this court to carry out a “surgical operation” on the grounds of appeal by exercising the defective or incompetent grounds of appeal from the competent grounds as the amended notice of appeal is a nullity and so are all the issues formulated from the grounds of appeal therein. It was submitted that under Order 3 rule 2(7) of the Court of Appeal Rules 1981 (as amended), this court has the power to strike out the amended notice of appeal of the appellants. The cases of Agundo v. Gberbo (1999) 9 NWLR (Pt.617) 71 at pages 86 and 87; Emecheta v. Ogueri (1998) 12 NWLR (Pt.570) 502 at 517; A.S.R. Co. Ltd. v. Blosah (1997) 11 NWLR (Pt.527) 145 at 155 were cited in support. In their reply, the appellants contended that even though the court lacks jurisdiction to entertain a bad and incompetent ground of appeal, it has jurisdiction to entertain a good and competent one, in the same notice and grounds of appeal. Reference was made to Ojukwu v. Onyeador (1991) 7 NWLR (Pt.203) 286, where the Court of Appeal after declaring some of the grounds of appeal as incompetent, nevertheless, went on to entertain the other grounds of appeal in the same, notice of appeal which were found to be competent and the court did not strike out both the good and the incompetent grounds of appeal. The cases of Obimiami Brick & Stone (Nig.) Ltd. v. A.C.B. (1992) 3 NWLR (Pt.229) 260; Guda v. Kitta (1999) 12 NWLR (Pt.629) 21; Obala of Otan-Aiyegbaju v. Adesina (1999) 2 NWLR (Pt.590) 163 at 179 to 180, were cited to buttress the argument.

I have carefully, considered the arguments on Objection No.2. I will say straightaway that, there is a serious misconception by the learned Counsel for the respondent in his argument. I am unable to find any authority in support of that argument. The law is well settled that where there exists competent grounds of appeal and also incompetent grounds of appeal in one notice of appeal, the Court of Appeal has jurisdiction after so declaring the incompetent grounds of appeal and striking them out, to entertain the appeal on the grounds of appeal found to be competent. See First Bank of Nigeria Plc v. Ejikeme (1996) 7 NWLR (Pt.462) 597; Ojukwu v. Onyeador (1991) 7 NWLR (Pt.203) 286; Obaia of Otan-Aiyegbaju v. Adesina (1999) 2 NWLR (Pt.590) 163 at pages 179 and 180. In Ansa v. Ishie (1999) 7 NWLR (Pt.610) 277, this court (Calabar Division) struck out the incompetent grounds of appeal and retained the only competent ground of appeal. It did not, so to say, throw away the baby with the dirty water. This is consistent with the duty of the court to do substantial justice devoid of legal technicalities.

In the instant case, this court has found that grounds 1, 5 and 6 of the grounds of appeal are incompetent and has struck them out. In my view, grounds 2 and 3 which have rightly been conceded to be competent, are hereby retained with ground 4 to sustain the amended Notice of appeal. The cases relied upon by the respondent’s counsel do not apply. This objection shall also fail.

Objection No.3

The objection here focuses on Issue No. (g) in the appellants’ brief of argument for the determination of the appeal. It reads:

“Whether or not in the circumstances of this case, the Court of Appeal is competent to enter a proper judgment herein.”

The respondent has argued that issue No. (g) is not based on or distilled from any of the grounds of appeal, filed as required by law and therefore, the issue is incompetent and liable to be struck out. He referred to A.G. of the Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt.618) 187 at 229; Bank of the North Ltd. v. Saleh (1999) 9 NWLR (Pt.618) 331 at 343; Giwa-Amu v. Guardian Newspapers Ltd (1999) 8 NWLR (Pt.616) 568 at page 579 to 580. The appellants offered no reply to the submission and they are therefore, deemed to have conceded to it. In my view, the objection is unanswerable, to say the least, I entirely, agree with the learned Counsel for the respondent. Simply stated, it is trite law that issues for determination in an appeal, must be based on or distilled from the grounds of appeal filed and where such is not the case, the issues are incompetent and should be struck out. In the instant case, issue No. (g) is not based on or distilled from any of the competent grounds of appeal of the appellants. Therefore, issue No. (g) is incompetent and it is hereby struck out. In the final result therefore, the preliminary objections on the incompetence of grounds 1, 5 and 6 of the amended grounds of appeal and on issue No. (g) hereby succeed and are allowed. Grounds 1,5 and 6 and issue No. (g) are hereby, struck out. However, in respect of grounds 2, 3, and 4 of the grounds of appeal, the preliminary objection are not sustainable and are accordingly refused and dismissed.

Having disposed of the preliminary objection to this appeal, I now deal with the merit of the appeal. We are left with grounds 2, 3 and 4 of the grounds of appeal, which are the competent grounds and issues Nos. (b), (c) and (d) respectively, related thereto as the competent issues for the determination of the appeal. After a careful perusal of the issues above-mentioned and the issues formulated by the respondent, I formed the view that, the two issues identified by the respondent are germane and more preferable for the determination of the appeal and I therefore, adopt them. For the sake of repetition the two issues read:

1. Whether on the evidence before the learned trial Judge, the respondent proved his case and was entitled to judgment in his favour?
2. Whether there is a binding and enforceable contract between the appellants and the respondents?

I take Issue No.1 first. This issue relates to ground 2 of the appellants’ amended grounds of appeal. In brief of argument, the appellants have argued that, there was no reason for the learned trial Judge to make finding against the documentary evidence before him, without calling witnesses and this rendered the judgment of the learned trial Judge perverse and thereby, occasioned a miscarriage of justice. It was submitted that there was no coercion on the respondent to sign Exhibit ‘A’, and even if there was any pressure on the respondent during his arrests by the police, the pressure was no longer there, when the respondent signed Exhibit ‘A’ on 25th January, 1987. It was also submitted that on the state of the evidence before the trial court, no coercion was proved, and that fraud was neither pleaded nor proved, yet the learned trial Judge declared that Deed of Conveyance (Exhibit ‘A’) void. It was submitted that Exhibit ‘A’ does not bear two dates as was found by the learned trial Judge, and that the action was not timeously commenced. In his reply, the respondent referred to paragraphs 9, 11 and 12 of the affidavit in support of the originating summons to show that Exhibit ‘A’ was procured under duress and as such Exhibit ‘A’ was not enforceable. He referred to the finding of the learned trial Judge in his judgment at page 38 lines 24 to 30 of the record of appeal. It was the argument of the respondent that the appellants made the issue of commission of fraud and embezzlement by the respondent the foundation of their case, leading to the suspension of the respondent from his work, and their decision to punish the respondent by seizing his said property at No. 3C Enebong Avenue, Calabar, and fixing a false purchase price of N80,000.00, which was neither owed to the appellants nor collected by the respondent from the appellants, instead of prosecuting the respondent in a court of law on the allegations of fraud and embezzlement leveled against him. The respondent condemned this type of sharp practice and referred to Sadiq v. Bandi (1991) 8 NWLR (Pt. 210) 443,447. It was further argued that the statutory declaration of house ownership, Exhibit B, annexed to the main counter-affidavit of the appellants, by which the respondent declared his intention to sell his said property at No. 3C Enebong Avenue, Calabar, to the 1st appellant at a price to be agreed upon by both parties, is a very unusual practice by a willing vendor with a proper title. As to the long delay before the respondent commenced the action, it was contended by the respondent that the action was not time-barred at the time it was commenced, and that the appellants never cited any statutory authority or law to show that the suit was time-barred. It was therefore, urged upon the court to hold that the respondent duly proved his case and was entitled to the judgment the trial court gave in his favour.

The paramount consideration in determining issue No. 1 is whether there was evidence of coercion or duress on the respondent to sign Exhibit A, the deed of conveyance and the subject matter of the action. In Black’s Law Dictionary, 6th Edition at page 504, the word duress, is defined as any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise could not (or would); subjecting a person to improper pressure, which overcomes his will and coerces him to comply with a demand to which he would not yield if acting as free agent.

From paragraphs 9, 10, 11, 12 and 13 of the affidavit in support of the Originating Summons, the respondent has asserted that there was duress or coercion on him. The said paragraphs are reproduced hereunder as follows:

“9. That as a consequence of the contents of Exhibit ‘B’ (i.e. the letter dated 24th June, 1987, suspending the respondent from duty by the appellants) wrongfully accusing me of fraud, I was immediately, arrested at the instance of the 1st – 3rd defendants by the police and taken to the police station, Atakpa, Calabar, for interrogation and investigation into the aforesaid accusation. I was later on released the same day on bail.

10. That two weeks after my first arrest aforesaid, I was again arrested and taken to the police station, Atakpa, Calabar, for further investigations and I was subsequently forced to spend a night in the police cell, before being released.
11. That I was arrested again for the third time and after two weeks of the last arrest mentioned in the preceding paragraph and taken to the police Headquarters, Diamond Hill, Calabar, where I was shown round, by a police officer, the cells occupied by hardened criminals, murders and rapists and thereafter, I was told in a no uncertain terms that if I did not sign Exhibit ‘A’, which in effect purported to give ownership to the Ist-3rd defendants, I would be thrown into the police cell with the criminals etc.
12. That in view of the psychological trauma, the shame of having been arrested several times, the imminent torture I was likely to undergo in the cell and the frail state of my health, I was thus, obliged to sign Exhibit ‘A’ and hand over all the original documents pertaining to my property at No. 3C Enebong Avenue, Calabar, which included the survey and building plans and the agreement conveying the said land to me.
13. That on signing Exhibit ‘A’, I was eventually freed from further intimidation by the defendants, but with no house to go to as the only one I had had been given away via Exhibit ‘A’.”

(Italics mine for emphasis)

The appellants denied the duress or coercion and in reaction to the respondent’s averments in the foregoing paragraphs of the affidavit, the appellants deposed in paragraphs 10, 11 12, 13, 14 and 16 of their counter-affidavit the following:

“10. That paragraph 9 of the affidavit is denied, but in answer thereto the defendants’ counsel tells me and I verily believe him that, the plaintiff was suspended only after he had admitted at a Management Committee Meeting, his role in the fraud. The defendants only reported the matter to the police. A photocopy of the Report of the committee meeting is attached hereto and marked Exhibit ‘A’.

11. That the defendants are not in a position to admit or deny the contents of paragraphs 10 and 11 of the affidavit as they are issues within the peculiar knowledge of the plaintiff, this the defendants’ counsel tells me and I verily, believe him.
12. That the defendants deny paragraphs 11 and 12 of the affidavit but state in further answer thereto, that after the meeting referred to in paragraph 10 above further investigation reveal that the plaintiff had embezzled over N80,000.00 (eighty thousand Naira) made up of members’ thrift savings, special savings, loan refund, rent etc, all property of the 1st defendant.
13. That the defendants deny paragraph 12 of the affidavit as being false and misleading but inform me and I verily believe them that, when it dawned on the plaintiff that he was neck-deep in the fraud and was likely to face a multiplicity of criminal prosecutions and civil suits from 1st defendant and even some individual members, he (plaintiff) offered to sell the said building in settlement of the debt aforesaid. A copy of an affidavit by plaintiff expressing his desires to sell the building to the 1st defendant is attached hereto and marked Exhibit’B’.
14. That the defendants have informed me and I believe them that in furtherance of his intention, the plaintiff acknowledge (sic) some of his indebtedness to the 1st defendant, but because his entire indebtedness had not been ascertained, he could not state the purchase (price) in the affidavit, (Exhibit ‘B’).
15. The defendants deny ever intimidating the plaintiff as stated in paragraph 13 of his affidavit, but repeat that the plaintiff executed the deed of sale as a result of the facts contained in paragraphs 12, 13, 14 and 15 hereof.”

This K. E. Owuru Esq. Tells me and I believe him. (Underlining for emphasis).

In order to determine whether or not there was duress or coercion on the respondent to sign Exhibit ‘A’ (the Deed of Conveyance), regard must be had to the affidavit evidence and the documents attached thereto before the court. Undoubtedly, there are material conflicts between the affidavits of the parties as set out above. On this basis, it was contended by the appellants that the learned trial Judge should have called for oral evidence from witnesses in order to resolve the conflicts, but he did not do so. It has to be emphasised here that, it is not only by calling oral evidence that conflicts in affidavit evidence could be resolved as there may be authentic documentary evidence, which supports one of the affidavits in conflict with another and which is capable of resolving the conflict and tilting the balance in favour of the affidavit which agrees with it. Documentary evidence is a yardstick with which to assess oral testimony. Where, therefore, there are documents which will enable the court to resolve the affidavits which are materially in conflict, there is no need for oral evidence. See Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) 35 at page 48; Monica Ego Kanno v. Mrs. Banigo Ibiani Kanno & Ors. (1986) 5 NWLR (Pt.40) 138 at 139; Lijadu v. Lijadu (1991) 1 NWLR (Pt.169) 627 at 649.

I have carefully, perused the documentary exhibits annexed to the affidavits of both parties and I am not convinced that duress can be discerned or ascertained from them. By no stretch of the imagination can one find any evidence of duress in the documents especially in Exhibit A, which is said to have been procured by duress or coercion on the respondent. The learned trial Chief Judge in his ruling at page 38 lines 24 to 27, of the record of appeal held thus:

“Paragraphs 9, 11 and 12 of the plaintiff’s affidavit contain evidence of relevant facts to show that Exhibit A was procured by duress.”

With due respect, the learned trial Chief Judge fell into a serious error by so holding without any regard to paragraphs 10, 11, 12, 13, 14 and 16 of the appellants’ counter-affidavit which in material particular denied the respondent’s claim of duress or coercion in his supporting affidavit, and without anything in exhibit A to show clearly, any evidence of duress or coercion on the respondent. This is not an issue of credibility of witnesses where this court cannot interfere with the evidence. Paragraphs 9, 10, 11, 12 and 13 of the respondent’s main affidavit considered by the learned trial Judge are mere ipsi dixit of the respondent and are admissible pieces of evidence resting on the assertion of the respondent who made them. But having been seriously challenged by the appellants in their counter-affidavit, they are not enough for deciding the issue of duress without calling for oral evidence from witnesses. It was not the business of the Judge to speculate on the issue of duress. Therefore, I disagree with the learned trial Judge, and I hold the view that there is no evidence to show that Exhibit A was procured by duress. Even though the circumstances of this case leading to the signing of Exhibit A, the Deed of Conveyance, by the respondent are not salutary, I am however, not prepared to accept the view that there was duress on the respondent to sign Exhibit A. Indeed, I frown at the conduct of the appellants in compromising with the respondent and the police the case of fraud and embezzlement reported against the respondent, and their colluding with the respondent to give away his property by signing Exhibit A, without prosecuting the respondent for the criminal allegations in a court of law. Then after about eight years of signing Exhibit A, the respondent was aroused from his complacency to challenge in the court his signature on Exhibit A, claiming that it was procured by duress or coercion on him. It is apparent to me from the surrounding facts of this case, that the parties were interested in settling the criminal allegations against the respondent out of court by agreeing with the respondent to sign Exhibit A and also make Exhibit B (the Statutory Declaration of House Ownership) in discharge of the purported debt of N80,000.00 owed by the respondent to the 1st appellant, which sum of money was equivalent to the said sum of N80,000.00 allegedly defrauded and embezzled by the respondent, rather than prosecute the respondent in the court. The whole idea behind the execution of Exhibit A was to conceal the true facts and show the existence of an imaginary debt of N80,000.00 by the respondent to the 1st appellant, when in actual fact there was none. In my view, therefore, the respondent did not on the evidence before the court below prove that there was duress on him to entitle him to judgment on that score.

Issue No.2 in the respondent’s brief relates to grounds 3 and 4 of the appellants amended grounds of appeal. On this issue, the appellants have attacked the ruling of the learned trial Judge that non-compliance with Section 22 of the Land Use Act 1978, rendered Exhibit A void. It was submitted by the appellants that the effect of not obtaining the consent of the Governor rendered Exhibit A, the instrument or conveyance, inchoate and not void, and they cited Solanke v. Abed (1962) NRNLR 92; Ogbo v. Adoga (1994) 3 NWLR (Pt. 333) 469 at page 476. It was contended that the conveyance, Exhibit A, is binding on the parties and those having notice of it. The appellants argued that section 20(1) of the Land Use Act 1978, does not render invalid any alienation of a statutory right of occupancy without the consent of the Governor. It was further submitted that the decision of the lower court occasioned a miscarriage of justice. References were made to Adedeji v. N.B.N (1989) 1 NWLR (Pt.96) 212; Savannah Bank (Nigeria.) Ltd. v. Ajilo & Ors. (1989) 1 NWLR (Pt.97) 305 at 307; Awojugbagbe Light Ind. Ltd. v. Chinukwe (1995) 4 NWLR (Pt.309) 379,(1995) 4 K.L.R. (Pt.30) 707 at 747 to 748. It was also argued that a party cannot take advantage of his own default. Onuwaje v. Ogbeide (1991) 3 NWLR (Pt.178) 147 and Ekanem v. Akpan (1991) 8 NWLR (Pt.211) 616 at 622 were alluded to in support of the contention.

In his reply, the respondent stressed that the learned trial Judge was right to hold that the requirement of section 22 of the Land Use Act 1978, was not complied with and in effect therefore, the transaction was null and void. He referred to sections 22 and 26 of the Land Use Act 1978. It was submitted that the Supreme Court in the case of Savannah Bank Ltd. v. Ajilo & Ors. (1989) 1 NWLR (Pt.97) 305; (1989) 1 NSCC 135, held that it was not bound by the case of Solanke v. Abed (supra) because the court reasoned that it was called upon to interpret sections 22 and 34 of the Land Use Ac-t 1978, and not to consider equitable principles. The respondent disagreed with the submission of the appellants that the transaction between the parties in this case was inchoate or incomplete as the transaction was not in stages, that is, the first stage of making an agreement to sell the property and the second stage of obtaining the Governor’s consent to complete the sale. On whether the respondent benefited from his own default in not obtaining the consent of the Governor, It was submitted that the respondent did not benefit from the transaction but rather he was the loser, having been coerced into parting with his property for the alleged offences of fraud and embezzlement reported by the appellants to the police, for which the respondent was not charged to a court of law and tried in accordance with the provisions of the law.

Section 22 of the Land Use Act 1978 provides as follows:

“It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever, without the consent of the Governor first had and obtained:

Provided that the consent of the Governor –

(a)

(b)

(2) The Governor when giving his consent to an assignment, mortgage or sub-lease may require the holder of a statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage or sub-lease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under subsection (1) … may be signified by endorsement thereon.”

I shall also reproduce the provision of Section 26 of the Land Use Act 1978 as follows:

“Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Decree (Act) shall be null and void.”

In his ruling at page 40 lines 13 to 21, of the record of appeal, the learned trial Chief Judge stated the position thus:

“It is clear that by virtue of Section 34 (2) of the Land Use Decree 1978, the land known as No. 3C Enebong Avenue, is one which is deemed to be subject to statutory right of occupancy. The requirements of the Land Use Decree have not been followed and the acts of the parties would be null and void. The law is that an act which is a nullity, is devoid of legal effect. Macfoy v. U.A.C. Ltd, (1962) AC 152; (1961) 4 W.L.R. 1405 at 1409.”

I entirely agree with the learned trial Judge, and I will go further to postulate the legal position that the combined effect of sections 22 and 26 of the Land Use Act 1978, is to render null and void any alienation or transfer of a statutory right of occupancy or interest or right thereunder without the consent of the Governor first had and obtained. The effect of section 22 of the Land Use Act 1978, fell for interpretation by the Supreme Court in the well known case of Savannah Bank (Nigeria.) Ltd. & Anor v. Ajilo & Anor (1989) 1 NWLR (Pt.97) 305; (1989) A.N.L.R. 26. The facts of the case are that the plaintiffs/respondents mortgaged their interest in a piece of developed land in Lagos to the defendants/appellants to secure a loan. The deed of mortgage was executed and registered in the Deeds Registry. The plaintiffs/respondents defaulted in redeeming the mortgage and in an attempt by the defendants/appellants to foreclose the mortgage, the plaintiffs/respondents sued and claimed a number of reliefs based on the ground that the deed of mortgage was null and void in that the consent of the Military Governor was not obtained prior to entering into the mortgage. The High Court of Lagos State, granted the reliefs sought by affirming that the deed was null and void as the consent of the Military Governor was not obtained, in view of section 22 of the Land Use Act 1978. On appeal to the Court of Appeal, the decision of the lower court was upheld by the Court of Appeal. The defendants/appellants further appealed to the Supreme Court. In a unanimous decision of the full court, the Supreme Court affirmed the decision of the High Court and the Court of Appeal and held that the deed of mortgage was null and void as the consent of the Military Governor was not obtained, and it dismissed the appeal. It was stressed in the judgment of Karibi-Whyte J.S.C. that prior consent in writing by the Governor to alienation is a statutory requirement, which will be inconsistent with any contrary provision.

The case of Ogbo v. Adoga (supra) cited by the appellants’ counsel is radically different from the instant case. In that case, no conveyance or instrument of transfer of the property was prepared and executed by the parties, let alone obtaining the consent of the Governor to alienate the property. Indeed, at the stage the action was filed in the High Court, Makurdi, there was no conveyance as it was still an agreement by the vendor to convey to the purchaser. The Court of Appeal in that case regarded the transaction as an inchoate agreement which was not void. In the instant case, there is the deed of conveyance (Exhibit A) which does not bear the consent of the Military Governor as provided by section 22 of the Land Use Act 1978. It is therefore, my firm views in the instant case that the deed of Conveyance Exhibit ‘A’ is null and void and of no effects whatsoever.

Finally, the question of the respondent being allowed to benefit from his own fraud or to take advantage of his own default is non sequitur. The respondent cannot be said to have benefited from the fraud and embezzlement alleged against him which were not established in a court of law. The learned trial Judge was right in my view to hold in his ruling that he was not satisfied that the allegation of fraud had been established against the respondent and the question of his being allowed to benefit from his fraud did not arise. Also at page 42 lines 16 to 23 of the record, the learned trial Judge in his ruling stated:

“On the whole, I hold the view that fraud against the plaintiff has not been proved. If so the plaintiff should have been charged to court. The idea of converting what should have been a criminal case into a civil one is wrong. The purported exchange of a house for the sum of N80,000.00 as contained in Exhibit A is completely wrong in law. Exhibit A itself from the foregoing is not valid in law, the transaction being a nullity.”

I agree with him. There is no appeal against the above finding of the learned trial Chief Judge and therefore, there is no basis for this court to disturb it. In the absence of the appellants establishing that there was infact and in reality a genuine debt of N80,000.00 owed to the 1st appellant by the respondent for which the respondent’s property at No. 3C Enebong Avenue, Calabar, was conveyed to the 1st appellant by Exhibit A in discharge of the said debt, there is nothing that the respondent can be said to be taking advantage of. The appellants in the court below were unable to establish a genuine indebtedness and so cannot complain. Issue No. 2 is therefore, resolved against the appellants.

In the final result therefore, I hold that this appeal lacks merit and it is hereby dismissed. I award the sum of N5,000.00 costs to the respondent.

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Other Citations: (2001)LCN/0974(CA)