Chief G. N. Okoye V. Mr. Frank Tobechukwu (2016) LLJR-CA
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MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
The respondent as the plaintiff instituted suit no. O/138/2005 in the High Court of Anambra State holden at Onitsha wherein he claimed the following reliefs against the appellant in his Further Amended Statement of claim filed on 9/7/07:
a. ?A declaration that the plaintiff is the person entitled to the said low density, Plot No. 24 Block 11 Site B, Site and Services Scheme Trans Nkisi Onitsha Anambra State.
b. N5, 000,000.00 (Five Million Naira) damages for trespass.
c. Perpetual injunction restraining the defendant, the agents, privies, cohorts and workmen from trespassing or further trespassing on the said low density Plot 24 Block 11 Site B, Site and Services Scheme Trans Nkisi Onitsha or in any other manner disturbing or interfering with the plaintiffs possession of the said land.?
The respondent?s case is that he applied to the Federal Ministry of Works and Housing for allocation of land. Pursuant to his application, Plot No. 24 Block 11 Site B, Site and Services Scheme, Trans Nkisi, Onitsha was allocated to him by the said Federal Ministry of
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Works and Housing. He accepted the allocation, paid the requisite fees and obtained an approval for the building to be constructed on the land. In September, 2004, the appellant trespassed on the said land by depositing sand and stone on the land.
The appellant as the defendant contended that the land which the respondent referred to as plot 24 Block 11 Site B, Site and Services Scheme Trans Nkisi Onitsha is Plot 448 Block XV111, Federal Ministry of Works Scheme. According to the appellant, the alleged site B was invented by some unscrupulous staff of the Federal Ministry of Works and Housing. Most importantly, the appellant pleaded that he is not the allottee of plot 448 Block XV111 which the respondent is claiming as plot 24 Block 11 Site B. He asserted that there is no person called Frank Tobechukwu, the name was invented to circumvent the law and embark on multiple allocations which the law forbids.
The respondent called three witnesses. The appellant testified as DW1 and called no other witness. In a considered judgment delivered by Honourable Justice V. N. Agbata sitting at the High Court of Anambra State, Onitsha Judicial Division on 20th
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April, 2009, judgment was entered in favour of the respondent as follows:
?I, therefore, consider the case of the plaintiff as being meritorious. The plaintiff is therefore, the person entitled to the statutory right of occupancy over the piece or parcel of land known as plot No. 24, Block 11, Site B of the Sites and Services Scheme, Trans Nkisi layout, Onitsha, more particularly delineated shown verged red in the plaintiff?s plan No. CE (A)/LD 006/2006, Exhibit P9. The defendant, his agents, and/or servants are, therefore, hereby restrained from further trespass on the land aforesaid. No order as to costs.?
Dissatisfied with the above judgment, the appellant has appealed to this Court on 8 Grounds of appeal which are reproduced below without their particulars:
GROUND I: ERROR IN LAW
?The learned trial judge erred in law and occassioned a gross miscarriage of justice when he failed to consider any of the documents tendered by both parties and admitted in evidence in the suit.
GROUND II: MISDIRECTION IN LAW
The learned trial judge misdirected himself in law and came to a wrong decision which occassioned
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a gross miscarriage of justice when he failed to consider, evaluate or make a finding of facts on the contents of the bundle of document admitted as Exhibit D3.
GROUND III: MISDIRECTION
The learned trial judge misdirected himself in law and came to a wrong decision which occassioned a gross miscarriage of justice when he held as follows:
?At the end of the respective cases for the parties both counsel addressed the Court extensively, I have carefully considered the pleadings of the parties together with the evidence adduced with rapt attention the submissions of the counsel with respect thereof (sic). The issue in controversy in this suit, seems to me to be, as between the plaintiff and the defendant who is the rightful allottee of the disputed portion of land.?
GROUND IV: ERROR IN LAW
The learned trial judge erred in law and came to a wrong decision when he totally failed to consider and determine any of the issues raised by both parties to the suit as the issues for determination.
GROUND V: ERROR IN LAW
The learned trial judge erred in law and came to a wrong decision when he held that the Plaintiff/Respondent
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was entitled to the statutory right of occupancy over the plot of land in dispute without resolving whether the Plaintiff/Respondent had sued the proper party in this suit.
GROUND VI: ERROR IN LAW
?The learned trial judge erred in law and came to a wrong decision which occassioned a gross miscarriage of justice when he held thus:
?In my most humble opinion the above cannot by any stretch of imagination, be considered a defence to the formidable case which was made out by the Plaintiff, since the Defendant has admitted, that the land in dispute does not belong to him, he has nothing to lose if the Court declares the Plaintiff the owner thereof.?
GROUND VII: ERROR IN LAW
The learned trial judge erred in law and came to a wrong decision, which occassioned a gross miscarriage of justice when he held that it is none of the business of the Defendant if the Plaintiff had applied for the land with a Pseudo name.
GROUND VIII:
The judgment is against the weight of evidence.?
The appellant?s counsel formulated 7 issues for determination as follows:
1. ?Whether it was right and proper for
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the learned trial judge not to consider and evaluate any of the documents tendered by both parties and admitted in evidence in this case fought by both parties on documentary evidence.
2. Whether based on the state of pleadings, the learned trial judge was right in concluding that the issues in controversy was whether as between the Plaintiff and the Defendant who was the rightful allottee of the disputed land.
3. Whether the learned trial judge was justified in failing to consider and determine any of the issues raised by both parties to the suit as the issues for determination and proceeded to formulate his own sole issue without affording the parties an opportunity to address on it.
4. Whether the learned trial judge was right when he held that the Plaintiff/Respondent was entitled to the statutory right of occupancy over the plot of land in dispute without resolving whether the Plaintiff/Respondent had sued the proper party.
5. Whether it was right for the learned trial judge to make a declaratory judgment that the Plaintiff/Respondent was entitled to the statutory right of occupancy over the land subject matter of this suit solely
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because the Defendant/Appellant admitted that the said land does not belong to him.
6. Whether the learned trial judge was right and justified in holding that it was none of the business of the Defendant/Defendant if the Plaintiff/ Respondent had applied for the land with Pseudo name, when the Defendant/Respondent had raised an issue of jurisdiction that the Plaintiff/Respondent is a non-existing person and that the name Frank Tobechukwu was invented.
7. Whether based on the totally of evidence adduced in this case, the judgment delivered by the trial Court is sustainable.?
The respondent?s counsel formulated the following three issues for determination.
1. ?Whether the Respondent has sued a wrong person in this matter.
2. Whether the Respondent is a non-existent person which thereby deprives the Court of jurisdiction in the matter.
3. Whether, based on the pleadings and the evidence on record, the learned trial judge was justified in declaring the Respondent as entitled to the Statutory Right of Occupancy over the Plot of land in dispute.?
The respondent raised a preliminary objection to the
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competency of the appeal by a notice of preliminary objection filed on 27th September, 2013 on the ground that this appeal is a mere academic exercise as the decision of the Court below has not adversely affected the interest of the appellant because the appellant having admitted that Plot 24 Block 11 Site B, the subject matter of this appeal, was never allocated to him, the appellant did not suffer any loss from the decision of the Court below and has not appealed against the finding of the Court below that he has nothing to lose if the Court declares the plaintiff the owner thereof.
The argument in support of the objection is incorporated in the respondent?s brief. It is submitted by counsel that only an aggrieved party can maintain an appeal against judgment of a Court of law. Where a party is not aggrieved in any way, he has no business whatsoever to appeal in the matter. He referred to OGUNKUNLE VS. ETERNAL SACRED ORDER OF THE C & S. (2001) 12 NWLR (PT. 727) PAGE 359 AT 370 ? 371 (H ? B), NGIGE VS. OBI (2006) LRECN PAGE 11 AT 61 (B ? C), A. G. OF THE FED. VS. ANPP (2003) LRECN PAGE 300 AT 331 (C ? E). He further
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submitted that the appellant having admitted that the land subject matter of the judgment being appealed against does not belong to him has not suffered any loss and is not an aggrieved party. Therefore, this appeal is incompetent and should be struck out.
In his response contained in the amended reply brief, the appellant?s counsel submitted that the appellant having been adjudged a trespasser with an order of perpetual injunction restraining him, his servants and agents from further trespass on the land, he is an aggrieved party affected by the judgment. He referred to N. B. A. V. CHUKWUMEIFE (2007) 8 NWLR (PT. 1035) PAGE 221 AT 237 (C ? D), NABARUMA V. OFODILE (2004) 13 NWLR (PT. 891) PAGE 599 AT PAGE 620 ? 621 (G ? C), OKOYEKWU V. OKOYE (2009) 6 NWLR (PT. 1137) PAGE 350 AT 375 (F ? H). He urged the Court to dismiss the objection.
RESOLUTION:
The right of appeal is created by Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Section 243 (1) (a) of the Constitution stipulates that the right to appeal to the Court of Appeal from the decisions of the High Court shall be
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exercisable in the case of civil proceeding such as the one on appeal at the instance of a party to the case or with the leave of the High Court or Court of Appeal at the instance of any other person having an interest in the matter. Though the right to appeal to the Court of Appeal is a constitutional right, it is a right which can only be exercised strictly within the purview or limit of the Constitution or relevant statutory provision. From the plethora of authorities available on the right to appeal, it is very clear that certain conditions must exist before a right of appeal from any decision of a High Court to the Court of Appeal can be exercised. Those conditions include the following:
(1) The right to appeal can only be exercised by a party to the proceedings or any other person having an interest in the matter.
(2) For a party to exercise a right of appeal, he/she must show that he is aggrieved by the judgment.
(3) A person aggrieved by a decision is one who is adversely affected by the decision of the Court in that the decision has wrongfully deprived him of something or has adversely affected his title to something.
See
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TOOCHUKWU ANYANWU V. EMEZIE OKOROAFOR & ORS. (2012) LPELR ? 20823, OMOTESHO V. ABUDULAHI & ORS. (2007) LPELR ? 8412 (CA). In MOBIL PROD. (NIG.) UNLTD V.MONOKPO (2003) 18 NWLR (PT. 852) Page 346 at 399 (A ? C), the Supreme Court held that a party to the proceedings can only appeal against a decision which has deprived him of something. The Court stated thus:
?A party to proceedings cannot appeal a decision arrived there at which does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is such a grievance, he cannot appeal against a judgment which has not affected him since the whole exercise may turn out to be academic. Under no circumstances can it be argued that a party to proceedings who has not been affected by a decision may nevertheless appeal against it merely as a party. See, for instance, AKINBIYI V. ADELABU (1956) SCNLR 109 where it was recognized that a person entitled to appeal is a person aggrieved by a decision, i.e. a person against whom a decision has been pronounced which deprived him of some right.?
Though Section 241 (1), (f) (ii) gives a
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party to the proceedings the right to appeal against the decision of the High Court where an injunction is granted or refused, that right is not absolute. No right of appeal is absolute. The right to appeal against an order of injunction can only be exercised by a person who is adversely affected by the order. I am of the firm view that the mere fact that an order of injunction was made against the appellant does not automatically entitle him to appeal against that order. This is because he has not suffered any legal grievance and the order has not deprived him of something or wrongfully refused him something. The appellant on his own clear and unequivocal admission has no right to the land at all. The law is settled that the only person entitled to appeal against a decision is a person aggrieved. A person aggrieved is a person who has suffered a legal grievance. In IKONNE V. C.O.P. & ANOR. (1986) 4 NWLR (PT.36) PAGE 473 AT 479 the Supreme Court explained the meaning of ?a person aggrieved as follows:
?The expression? person having interest? has been defined as synonymous with ?person aggrieved.? In
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Re: SIDEBOTHAM, EX. P. SIDEBOTHAM (1990) 14 CH. D. AT P. 465, JAMES L. J.,
said,
?A person aggrieved? must be a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.?
In Re: REED BOWEN & CO. Ex. P OFFICIAL RECEIVER (1987) 19 Q. B. D. AT P. 178, Lord Esther pointed out that ?a person aggrieved? includes ?a person who has a genuine grievance because an order has been made which prejudicially affects his interests.?
See also C.P.C. V. NYAKO (2011) 17 NWLR (PT.1277) PAGE 451 AT 481 (F-H). A person who has nothing to do with the property in respect of which a restraining order is made against him has not been deprived of his entitlement to anything and is therefore not an aggrieved person.
?The only reason why the appellant has filed this appeal according to him is to protect the interest of his children from his estranged wife to who he is now saying the land was allocated. First, the alleged allocation to the appellant?s estranged wife was never raised or
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disclosed throughout the pendency of the suit at the Court below. The law is settled that an address no matter how brilliant does not take the place of evidence. Secondly, the appellant is not entitled to protect a non-existing right. The appellant having categorically stated that the land was not allocated to him, none of his privies including his children can lay claim to the property or exercise any right in respect of the land through him. Even if the appellant wins this appeal, he or his privy cannot thereby become the owner of the land or get a right to enter the land. This appeal is clearly academic and cannot achieve anything. The attitude of the appellate Courts to an appeal that constitutes an academic exercise has been stated in many cases. See BADEJO VS. FED. MIN. OF EDUC. (1996) 8 NWLR (PT. 464) PAGE 15, BAKO V. INEC & ORS. (2013) LPELR ? 20727 (CA). MMAMMANN V.F.R.N. (2013) 6 NWLR (Pt. 1351) PAGE 569 AT 582 (B-C), 1279). Where a decision in an appeal will not confer any right or benefit on an appellant, the Court has a duty to terminate or end the appeal. I have considered the entire facts and circumstances disclosed by this appeal, the
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provisions of the Constitution and cases decided by this Court and the Supreme Court, I am of the firm view that the objection has merit and ought to succeed.
Since it is firmly settled that it is duty of an intermediate appellate Court to deal with and make its pronouncement on all issues properly raised before it, I will proceed with the consideration and determination of the appeal on its merit.
I have considered the record of appeal, the grounds of appeal and the issues formulated by counsel to both parties, I am of the view that all the issues formulated by both counsel are subsumed under issue 7 formulated by the appellant?s counsel. For avoidance of doubt, the issue is ?Whether based on the totality of the evidence adduced in this case, the judgment delivered by the trial Court is sustainable.?
The appellant?s counsel submitted that the learned trial judge was wrong when he failed to consider or evaluate the documents tendered by the parties in the suit. According to counsel, the case was essentially contested on documentary evidence, therefore, failure to consider and evaluate the documents tendered as exhibits
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has occassioned a miscarriage of justice. He referred to INEC VS. OSHIOMOLE (2009) NWLR (PT. 1132) PAGE 607 AT 663 ? 664 (H ? A), NDUKWE VS. STATE (2009) 7 NWLR (PT. 1139) PAGE 43 AT 86 (E), ARABAMBI VS. ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (PT. 959) PAGE 31. Counsel submitted that the learned trial judge was wrong when he failed to consider, determine or resolve any of the issues raised by both parties but instead proceeded to raise a sole issue for determination without affording the parties the opportunity to address the Court. He referred to OWODUNNI V. RTD. TRUSTEES OF C. C. C & 13 Ors. (2000) 10 NWLR (PT. 675) PAGE 315, ODUNAYO VS. YUSUF VS. ADEGOKE (2007) 11 NWLR (PT. 1045) PAGE 332 AT 360 (G ? H). Counsel further submitted that the learned trial judge was wrong when he concluded that the issue in controversy was who between the appellant and the respondent was the rightful allottee of the land in dispute contrary to the issues joined by the parties and the state of the pleadings. He referred to N. B. C. I. V. INTERGRATED GAS (NIG.) LTD. (2005) 4 NWLR (PT. 916) PAGE 617 AT 644 ? 645, A. G. LEVENTIS (NIG.) PLC. V. AKPU
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(2007) 17 NWLR (PT. 1063) PAGE 416 AT 446. Counsel also submitted that the learned trial judge was wrong when he granted a declaration that the respondent was entitled to the statutory sight of occupancy over the land in dispute without resolving the issue of whether the respondent sued the proper party and solely because the appellant admitted that the land does not belong to him and that it is not the business of the appellant if the respondent applied for the land in a pseudo name since the law is settled that in a claim for declaration of title, the onus is on the plaintiff to prove that he is entitled to the declaratory reliefs. He referred to OWHONDA VS. EKPECHI (2003) 17 NWLR (PT. 849) PAGE 326, UGWUNZE VS. ADELEKE (2008) 2 NWLR (PT. 1070) PAGE 148 AT 176, TEMILE VS. AWANI (2001) 12 NWLR (PT. 728) PAGE 726, EZE OKONKWO VS. OKEKE (2002) 11 NWLR (PT. 777) PAGE 1 AT 29 ? 30 (G ? B).
In response, the respondent?s counsel submitted that the law is certain that he who asserts must prove. Since the appellant asserted that the land in dispute belongs to a third party, the onus is on the appellant to supply the identity of the third party
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and if the appellant is not the owner of the land as he claimed, he has no business in opposing an injunction and appealing against the judgment. Counsel argued that the allegation that the respondent is a non-existent person and that the name was invented for procuring multiple allocations of land are allegations of fraud and the law requires the pleading of sufficient particulars of the fraud and sufficient proof by evidence. He referred to USENFOWOKAN VS. IDOWU (1969) NSCC, VOL. 16 PAGE 108 AT 112, UHUNMWANGHO VS. OKOJIE & ORS. (1982) 9 SC 101 AT 138. Counsel submitted that the learned trial judge was entitled and in fact duty bound to discountenance the bare and vague allegations of fraud made by the appellant.
In reply, the appellant?s counsel submitted that if the respondent wanted the appellant to disclose the identity of the third party, he should have asked for further and better particulars of the appellant?s pleading or take advantage of the provisions of Order 26 Rules 1, 2, 8 (1) of the High Court (Civil Procedure) Rules of Anambra State, 2006.
RESOLUTION:
The primary duty of the Court is to identify and decide the
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real issue(s) in dispute between the parties. The focus of the Court should be the subject matter of the litigation and the issues in dispute. Where there is no dispute between the parties, there is nothing for the Court to decide and there cannot be any burden of proof because the Court will only consider live issues in controversy between the parties and not hypothetical issues or questions which have no bearing or effect on the right of the parties. See TRADE BANK PLC VS. BENILUX (NIG.) LTD. (2003) 9 NWLR (PT. 825) PAGE 416, BUNGE VS. GOV. OF RIVERS STATE (2006) 12 NWLR (PT.995) PAGE 573. From the entire pleadings of both parties and the evidence led, the issue which was in dispute was the allocation or ownership of the land in dispute which both parties knew but referred to in different names or with particulars. There was no ambiguity in the pleadings of both parties particularly Paragraph 10 of the Further Amended Statement of Defence on pages 177 ? 182 of the record wherein the appellant pleaded thus:
?The Defendant was never informed of such forgery. The Defendant was validly allocated plot 447 Block XVIII At Trans Nkisi, Sites and
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Services Scheme. Defendant reiterates that he is not the allottee of Plot 448, Block XVIII which the Plaintiff is claiming in this suit as Plot 24, Block 11.
The appellant in his evidence under cross-examination confirmed the fact that the land in dispute which he referred to as plot 448 was not allocated to him. The learned trial judge in his judgment on page 391 of the record held as follows:
?The facts of the case are, mostly, not disputed. The Federal Ministry of Works and Housing allocated to the plaintiff plot No.24 Block 11, site B of the Sites and Services Scheme. Trans Nkisi Layout, Onitsha. Thereafter, he went into effective possession until the defendant trespassed by deposited building materials thereon. The plaintiff reported the incident to the Federal Ministry of Work and Housing who promptly cautioned the defendant to desist from his offending acts of trespass on the land.
On the other hand, the defendant seems to be saying that the land in dispute is not plot No. 448 of the said Trans Nkisi Layout Onitsha. According to him, the said plot No. 448 does not belong to him but to a third party whom the
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plaintiff neglected to sue. He, therefore, appears to me, to be saying that he is the wrong person to have been in the suit. This is borne out, particularly, by Paragraphs 13 and 19 of the defendant?s deposition of the 19th day of May 2008.
In my most humble opinion, the above cannot, by any stretch of the imagination, be considered a defence to the formidable case which was made out by the plaintiff. Since the defendant has admitted that the land in dispute does not belong to him, he has nothing to lose if the Court declares the plaintiff the owner of thereof. It is also none of the business of the defendant if the plaintiff had applied for the land with the pseudo name.?
In law, the above finding and decision of the learned trial judge cannot be faulted. Though, the law is settled that a declaratory relief such as title to land is not granted on admission, with the clear and categorical admission of the appellant that the land subject matter of the litigation was not allocated to him, the story ended. There was nothing for the learned trial judge to consider. There was no dispute or any issue between the parties for the learned trial
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judge to consider. See BUNGE VS. GOV. OF RIVERS STATE (SUPRA), LEWIS & PEAT (N. R. T) LTD VS. A. E. AKHIMIEN (1976) 6 S.C 159. The appellant both in his pleading and his evidence stated that the respondent knows the owner of the land in dispute but elected not to sue the rightful owner, thus setting up the title of a third party as a defence to the action. The appellant failed to state in his pleading or in his evidence the person to who the land was allocated. The law is settled that a party in a claim for declaration of title cannot rely on the title of a third person unless he is claiming on the strength of such title. In legal parlance, the appellant raised a defence of Jus Terti which means ?a right of a third party?. In ADELAKUN VS. ISE OGBEKUN (2003) 7 NWLR (PT. 819) PAGE 295, this Court per Aderemi, JCA as he then was held that ?a third party cannot be heard to contend that the right to the land in dispute was in another person?. See also ADERINOYE VS. LEGIT GLOBAL INVERSTMENT LTD. (2014) LPELR ? 24050 (CA).
?The only duty the leaned trial judge had was to decide whether the respondent was entitled to succeed in
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his claim against the appellant. The learned trial judge had no business to open an enquiry as to whether the land was allocated to an undisclosed and invisible third party. The law is settled that the Court should confine itself to the case presented by parties before it. In my humble view, the learned trial judge identified the real issue in dispute between the parties and rightfully resolved same in favour of the respondent when he held as follows:
?At the end of the respective cases for the parties both counsel addressed the Court extensively, I have carefully considered the pleadings of the parties together with the evidence adduced with rapt attention the submission of the Counsel with respect thereof. The issue in controversy, in this suit, seems to me to be, as between the plaintiff and the defendant who is the rightful allottee of the disputed portion of land.?
In INTERCONTRATORS LTD. VS. NPFMB (1988) I NSCC 759, the Supreme Court held that “It is neither desirable nor permissible in the determination of a matter for the Court to take into consideration issues neither relevant nor necessary for its decision.?
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The Court has the power to disregard and ignore irrelevant issues which are raised purposely to obscure the main or real issue before it. See A. C. N. & ANOR. VS. INEC & ORS. (2013) LPELR ? 19991 (CA), The learned trial judge was right when he ignored and disregarded irrelevant issues raised by the appellant.
Even if it is correct that the learned trial judge should have considered the evidence led by both parties at the Court below notwithstanding the admission of the 1st respondent that the land was not allocated to him, failure of the Court to evaluate evidence does not automatically lead to a reversal or setting aside of the judgment. This is because the law is settled that where a trial Court failed or neglected to evaluate evidence led which is mainly documentary and which does not involve the demeanour or credibility of witnesses, an appellate Court is in as good a position as the trial Court to evaluate the evidence and come to its own decision. See AYUYA VS. YORIN (SUPRA), NTEOGWUILE V. OTUO (2001) 16 NWLR (PT. 738) 58, ODUTOLA & ORS. V. MABOGUNJE & ORS. (2013) LPELR ? 19909 (SC), MOMOH & ORS. V. UMIRU & ORS.
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(2011) LPELR ? 8130 (SC).The appellant confirmed that the evidence led in this case is totally documentary evidence. Therefore this Court is in as good a position as the learned trial judge to evaluate the evidence, make its own findings and reach its own decision.
The respondent tendered twelve exhibits. Exhibit P3 is the letter by which Plot 24, Block 11 Trans Nkisi Site B (Low Density) was allocated to Frank Tobechukwu by the Federal Ministry of Works and Housing. Exhibit P4 is the receipt issued to him in acknowledgement of the payment of the requisite fee. Exhibits P5B and P6A are the building plan and the letter of approval by Ministry in respect of the building that respondent intend to construct on the land. Exhibit P9 is the survey plan of the land. Exhibit P11 is the layout plan which shows plot 24 Block 11 within site ?B? and it is verged red. There is no plan or layout plan showing that the land in dispute is plot 448. The respondent called PW3 who was the Zonal Town Planning Officer of the Federal Ministry of Housing and Urban Development, Field Headquarters, Awka, Anambra State to testify on the allocation. He stated that
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he was in Court in response to the subpoena issued and served on the Controller of the Ministry which was passed to him. He tendered the subpoena as Exhibit P10. He confirmed in his statement on pages 126 ? 129 of the record of appeal that the land in dispute is Plot 24 Block 11, Site B, Low Density of Trans Nkisi Layout, Onitsha. He narrated in detail how site B in the scheme came into existence. He confirmed that plot 24 Block 11 was allocated to the respondent. He also confirmed that plot 448 Block XV111 is among the forged allocation letters carried out by syndicates for which the Ministry made the publication of 1st October, 1999 Daily Champion Newspaper cancelling such false allocation letters. The publication was tendered as Exhibit P6. Under cross-examination, he said there was allocation of plots in Site A in 1992. Plots 447 and 448 were allocated in 1992 in site A. He could not remember the names of the allotees. He said the publication of 1st October, 1999 shows that plots 447 and 448 were allocated in Block XV111A site A.
I have examined Exhibit 6, it shows that plots 447 and 448 in Block XV111A were allocated to Chinwe E. Okeke and
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Godwin Ogwueleka respectively. That according to Exhibit P6 was the authentic list of allotees. No other letter of allocation was tendered to challenge Exhibits P3 and P4. The evidence clearly shows that any allocation of plot 448 to any other person apart from the persons listed in Exhibit P6 was not genuine and is among those cancelled. Thus all the relevant documents relating to the allocation of the land in dispute to the respondent are unchallenged and uncontroverted. In a land cause or matter, it is not mandatory to call a grantor or his representative or privy as a witness. However, where two rival claimants trace their title or grant to the same grantor, the evidence of the grantor becomes necessary particularly where the grantor is available and can be called as a witness. The imaginary scale of justice tilts in favour of the party that calls the grantor and whose grant is confirmed by the grantor and supported by credible documentary evidence where available. In this case, the grantor confirmed the grant to the respondent and denied the alleged grant to any other person. The allocation to the respondent is clearly established by documentary evidence.
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The question of the appellant?s evidence out weighing the evidence of the appellant does not even arise since the appellant is not claiming ownership of the land in dispute. The bundle of documents tendered as Exhibit D3 has nothing to do with the land in dispute which the appellant referred to Plot 448 but confirmed by PW3 to be Plot 24, Block 11, Site B on the layout. The mere assertion or bare allegation that the land belong to a third party fell far short of the required proof.
It is firmly settled that an appellate Court will not set aside the decision of a trial Court which is right and just merely because the trial judge gave wrong reasons for the decision. SeeIBULUYA & ORS. VS. DIKIBO & ORS. (2010) 18 NWLR (PT. 1225) PAGE 627. The appellate Court is concerned with whether the decision is right and just and not whether it is grounded on right reasons. Having considered the entire pleadings of parties, the evidence led, the grounds of appeal, the issues formulated for determination and arguments of counsel to both parties, I do not hesitate to hold that this appeal totally lacks merit.
?RESPONDENT?S NOTICE OF INTENTION TO
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CONTEND
The respondent?s counsel filed a notice of intention to contend that the judgment of the Court below be upheld on grounds other than those relied upon by the Court below. The notice was filed on 27th September, 2013. The ground for the notice is that there is a presumption of regularity in favour of the Power of Attorney (Exhibit P2) donated to the respondent?s attorney and the appellant did not discharge the onus on him to show that the respondent is a non-existent person. Counsel submitted that the Court is entitled to presume that Exhibit P2 was executed by the respondent same having been executed by the donor before a Notary Public as shown on the face of the document. He relied on Sections 145 (2) and 150 OF THE EVIDENCE ACT, 2011, PROSPECT ILE MILLS VS. I. C. I PLC, ENGLAND (1996) 6 NWLR (PT. 457) 668 AT 689 (E ? G), ARJANDAS HIRANAND MELWANI (SUING THROUGH HIS ATTORNEY LATEPH AKINGBADE ADENIJI VS. FIVE STAR IND. LTD (2002) 3 NWLR (PT. 753) 217 AT 247 (B ? C). Counsel argued further that even if the Court finds that the ground relied upon by the lower Court cannot sustain the conclusions reached by the Court, the
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judgment will still be upheld on the basis of the presumption of validity of Power of Attorney executed before and authenticated by a Notary Public.
In response, the appellant?s counsel submitted that the parties having joined issue in the pleadings as to the non-existence of Frank Tobechukwu, the burden was on the respondent to prove the existence of Frank Tobechukwu and that burden cannot be dislodged by any legal gymnastics and in the absence of proof that Frank Tobechukwu is an existing person, Sections 145 (2) and 150 of the Evidence Act, 2011 will not avail the respondent.
RESOLUTION:
The provisions of Section 145 (2) and 150 of the Evidence Act, 2011 on the presumption as to a Power of Attorney is very clear and unambiguous and does not warrant any clumsy argument. Those sections provide that:
145 (2). “Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.
150. “The Court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by a
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notary public or any Court, judge, magistrate, consul or representative of Nigeria or, as the case may be, of the President, was so executed and authenticated.”
A Combined reading of Sections 145 (2) and 150 of the Evidence Act, 2011 clearly brings out the intention of the law maker. Once a Power of Attorney shows ex facie that it was executed before a Notary Public who authenticated same, the Court must presume that its execution was valid and regular. The Court has no discretion in the matter. The provision of Section 145 (2) of the Evidence Act, 2011 reinforces the command and the mandatory directive given to the Court in Section 150 of the Act.
Whoever asserts that a power of attorney has not been regularly executed or that it is a forgery as the appellant contends has the burden to prove his allegation by cogent and credible evidence. See N. P. S. VS. ADEKANYE & ORS (2002) 15 NWLR (PT. 790) 318, AWOSILE V. SOTUNBO (1992) LPELR ? 658, (1992) NWLR (PT. 243) 514, ONOBA VS. ABUJA BUILDING PRODUCTS LTD & ORS (2014) LPELR ? 22794 (CA), KALU VS. AGU & ORS. (2014) LPELR ? 22849 (CA), 1108 ABUBAKAR. The appellant
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relied on the closeness of serial numbers of the application form obtained by the respondent and one Nonso Dumebi, the bank drafts by which the requisite fees were paid, the receipts issued and the fact that the two powers of attorney were witnessed by the same person and donated to the same person to conclude that it was a single individual that was behind the high level racketeering using fictitious names to acquire multiple plots. Those deductions and subtractions in my view do not amount to a cogent proof that Tobechukwu is a non-existent person. Once a power of attorney was donated to the Feloral Merchants Nigeria Limited and ex-facie complied with the law, the presumption of regularity inures in favour of the document. It is not open to the appellant to insist on a particular mode or form of proof of the authenticity of the power of attorney. The presumption of regularity has not been rebutted by the appellant. The contention of the appellant that the respondent is a non-existent person or that proper parties are not before the Court is misconceived.
?In conclusion, I find that the appellant has failed to show that the judgment is wrong. This appeal
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lacks merit and it is hereby dismissed. The judgment of the High Court of Anambra State delivered in suit No. O/138/2005 by Hon. Justice Vin. Agbata on 20th April, 2009 is hereby affirmed. There shall be N100,000.00 (One Hundred Thousand Naira) costs in favour of the respondent.
Other Citations: (2016)LCN/8765(CA)
