Olatunbosun Odejide V. Madam Olaide Fagbo (2003)
LawGlobal-Hub Lead Judgment Report
MURITALA AREMU OKUNOLA, J.C.A.
This is an appeal by the defendant/appellant against the judgment of Oye Iyanda, J., sitting at the High Court of Osun State, Ile-Ife in suit No. HIF/171/92 which was delivered on the 4th of December, 1996. The facts of this case briefly put were as follows:
The plaintiff/respondent’s claim against the defendant/appellant was for N122,940.00 special damages for alleged conversion of her building materials to wit: sands, gravels and blocks (see pages 11-12 of the record of proceedings hereinafter referred to as the record).
The plaintiff claimed that the said building materials were deposited on her land between 1981-1984. She claimed further that the land measuring 120 ft x 100 ft was bought in 1976 from her vendor, one Kamoru Ayoade. She claimed further that she lost her title to this land via the Ile-Ife High Court judgment, (exhibit D2), in 1986 in which her vendor, Kamoru Ayoade was the defendant and one Oba Famodun, the Owa of Igbajo was the plaintiff in which judgment her vendor lost his title to the land. The defendant/appellant, in 1988, bought six plots of land from Oba Famodun, the Owa of 1gbajo.
The latter gave him exhibit D2, a copy of the Ile-Ife High Court judgment in his favour as evidence of ownership and exhibit D1, as purchase receipt (see pages 24-25 and 43-63 of the record). The defendant/appellant denied ever converting the plaintiff/respondent’s building materials and that he bought all the materials he used to erect his fence on the land. Issues were thus joined by the parties. Plaintiff/respondent called 3 witnesses and gave evidence (see pages 30, 31, 32, 33, 35 and 36 of the record). The defendant did not call any witness but gave evidence for himself (see pages 36-38 of the record). Judgment was entered for the plaintiff/respondent in the sum of N59,000 being the current market value of her blocks and N1,000 cost was awarded in her favour.
Dissatisfied with this judgment, the defendant/appellant filed two different notices of appeal dated 12/12/96 and 6/1/97 respectively (vide pages 64 and 66-68 of the records) to this Honourable Court.
From pages 66-68 of the records, the defendant/appellant (hereinafter referred to as the appellant) filed 3 grounds of appeal.
From the grounds of appeal the appellant herein formulated the following five issues for determination in this appeal, viz:
“1. Whether the award of N59,000 special damages against the defendant for conversion is supported by evidence on the record.
2. Whether there are material contradictions in evidence adduced by the plaintiff and her witnesses, and if yes, whether they rendered the evidence unreliable.
3. Whether the learned trial Judge wrongfully received in evidence, exhibits P2, P3, P4 and P5 which are purchase receipts of some blocks when the same were not specifically pleaded.
4. Whether the learned trial Judge wrongfully rejected purchase receipt of certain building materials dated 4/8/99, 28/8/88 and 30/8/88 as exhibits, and if yes, whether the refusal materially influenced the judgment against the plaintiff.
5. Whether the plaintiff/respondent has discharged the burden of proof from the totality of the evidence adduced by her and her witnesses.”
The respondent’s counsel also formulated three issues from the grounds of appeal which but for framing and the language used boil down to the five issues raised by the appellant in the appellant’s brief.
These are:
“1. Whether it was a fact that the plaintiff/respondent deposited some building materials on the site as found by the learned trial Judge.
2. Whether the trial Judge properly evaluated the evidence in support of the plaintiff/respondent’s claim.
3. Whether the exhibits tendered by either side were properly received in law and or properly rejected in law.”
For purposes of this judgment, I shall use the appellant’s five issues which have incorporated the three issues in the plaintiff/respondent’s (hereinafter referred to as the respondent) brief. Be that as it may, both learned counsel to the parties have filed their briefs of argument on behalf of their respective clients. On 14/4/03, when this appeal came before us for hearing, learned counsel to the appellant, Mr. A. L. Akintola informed the court that the case was slated for that day and the respondent’s counsel, who had filed herein the respondent’s brief, had been duly served with the hearing notice for that date, is absent. He urged the court to invoke the provision of Order 6 rule 9(5) of the Court of Appeal Rules to hear the appeal.
Learned counsel thereafter adopted and relied on the appellant’s brief filed herein on 23/12/97. He urged the court to allow the appeal and set aside the judgment of the lower court. After his submission, the court observed that the respondent’s counsel was personally served on 4/3/03 with the hearing notice to appear in court on that day (i.e. 14/4/03) and he was absent. Having filed the respondent’s brief, the court invoked the provision of Order 6 rule 9(5) of the Court of Appeal Rules to hold that the said respondent’s brief filed herein on 10/3/98 be deemed as having been adopted and the appeal deemed as having been duly argued.
I have considered the submissions of both learned counsel to the parties in this appeal as contained in their respective briefs of argument vis-a-vis the records and the prevailing law. I shall now give my views on them. In this regard, I shall take issues 1 & 3 together to be followed by issues 2 & 5 and conclude with issue 4 as contained in the appellant’s brief. On issues 1 & 3, which centre on whether the award of N59,000 special damages against the defendant for conversion is supported by evidence on the record and whether the trial Judge wrongfully received in evidence exhibits P2, P3, P4 & P5 which were purchase receipts of some blocks, when the same were not specifically pleaded, both learned counsel to the parties addressed us copiously in their respective briefs. Learned counsel to the appellant on issues 1 & 3 submitted by way of summary on paragraph 5.0 on page 12 of the appellant’s brief and urged the court to hold that the award of N59,000.00 could not be supported by evidence. The available evidence exhibits P2, P3, P4 & P5 are not direct and not specifically pleaded.
Learned counsel urged the court to expunge them from the records as they had failed to prove the actual number of blocks that were allegedly converted by the appellant. Learned counsel urged the court to set aside the award of N59,000.00 special damages and N1,000.00 cost awarded against the appellant.
By way of reply, learned counsel to the respondent by way of summary on page 7 of the respondent’s brief on the admissibility of exhibits P2, P3, P4 & P5 submitted that the learned trial Judge was right when he stated at page 59 of the record that:
“But what I accept as proof of the number of blocks on the land is the total number of blocks written in the four receipts of purchase of blocks exhibits P2-P5 tendered by the plaintiff in her evidence on oath before this court at page 60, lines 4-5 of the record of the proceedings in this appeal, the trial Judge stated that but I must stress that although the plaintiff claim for blocks, sands and gravel, she tendered receipts for blocks only and this is what I can act upon.”
The pertinent question to consider here is whether the learned trial court was right to have received in evidence and acted upon exhibits P2-P5 as he has indicated in his judgment supra. From the state of pleadings reviewed supra, the plaintiff/respondent had not specifically pleaded exhibits P2-P5.
The poser here is ‘whether the award of N59,000.00 special damages could stand in the absence of any evidence save exhibits P2-P5 supra which was not specifically pleaded.
This poser had come for consideration and determination by the apex court in this country to the effect that special damages must be specifically proved. Since parties are bound by their pleadings, evidence given on matters not pleaded goes to no issue. The law is that, a plaintiff must call evidence to support his pleadings, and evidence which is in fact adduced to be contrary to his pleadings should never be admitted. See National Investment & Properties Co. Ltd. v. Thompson Organisations Ltd. (1969) 1 NMLR 99 p.104; See also Emegokwue v. Okadigbo (1973) 4 SC 113; Shell BP Ltd. v. Abedi & 4 Ors. (1974) 1 All NLR 1, 13 & 16; Enang v. Adu (1981) 11-12 SC 25; Ibanga v. Usanga (1982) 5 SC 103; Amobi v. Amobi (1996) 8 NWLR (Pt. 469) 638, (1996) 9-10 SCNJ 207, 224-225.
From the foregoing authorities, I hold that since exhibits P2, P3, P4 & P5 were not pleaded they should be expunged from the records and I so hold. Apart from the fact that they were not pleaded, there was no evidence on the record to show that they represent the value of the blocks at the time of conversion and yet the learned trial Judge held:
“But I must stress that although the plaintiff claim for blocks sands and gravel, she tendered receipts for blocks only (i.e. exhs. P2-P5) and this is what I can act upon.” (Italics mine for emphasis)
The above listed authorities show that the learned trial Judge was in error to have acted upon exhs. P2-P5 for the award of N59,000.00 special damages. What is more P2-P5 did not sufficiently prove the number of the alleged converted blocks. For instance, the number of 9 inch blocks deposited on the land was 7,500 (see pages 11-12 of the record). But exhibits P2-P3 only showed 3,500 9 inch blocks. Exhibit P4 shows 2,000 4 inch blocks, whereas it was 4,000 that were pleaded. Similarly, exhibit P5 shows 3,000 6 inch blocks while 6,000 were pleaded.
Furthermore, there was no evidence on the record either from the plaintiff or any of her three witnesses as to the whereabouts of the purchase receipts for the remaining blocks which were not covered by exhibits P2-P5. It is also interesting to note that the award of N59 ,000.00 special damages was not claimed by the plaintiff/respondent. What the plaintiff claimed via her pleading and evidence as per the blocks was the current market value of N121,200.00. The respondent however could not prove this.
The learned trial Judge at that stage ought to have dismissed her claim instead of awarding N59,000.00. I submit it is trite that a trial court cannot grant to a plaintiff a remedy which has not been claimed by the plaintiff because it has no power to do so. See Olurotimi v. Ige 1993) 8 NWLR (Pt. 311) 257, (1993) 1 SCNJ 1 at 13 from paragraphs 24-27. See also Ekpeyong & 4 Ors. v. Nyong & 4 Ors, (1975) 2 SC 71 at 81-82; Kalio & Ors. v. Daniel-Kalio (1975) 2 SC 15 at pages 17-19; Nigerian Housing Development Society Ltd. & Anor. v. Mumuni (1977) 2 SC 57 at page 81; University of Lagos & 2 Ors. v. Dada (1971) U.I.L.R. (Pt. 3) 344.
In the light of the foregoing authorities, I resolve issues 1 & 3 in favour of the appellant.
On issues two and five which relate to whether there are material contradictions in the evidence of the plaintiff/respondent and whether the plaintiff/respondent has discharged the onus of proof on her by the evidence adduced, both learned counsel to the parties made copious submissions in their respective briefs. Learned counsel to the appellant by way of summary on pages 13-15 of the appellant’s brief submitted that there are contradictions in the evidence adduced by the plaintiff and her witnesses which contradictions are material and go to the weight to be attached to them.
According to counsel, the respondent’s case is predicated on the conversion of certain building materials. It is therefore a claim for special damages for certain particular and identifiable items. These items are listed on pages 11-12 of the record.
Learned counsel observed that in the evidence of PW1 at (pages 30-31) of the record, he said as to the number of the blocks:
“I think the blocks were about 2,000 in number” (paragraphs 9-10). While the plaintiff herself gave evidence (at page 32 paragraphs 1-5 of the record) as to the number of the blocks as 17,400.
Furthermore, PW4 states (at page 35, paragraphs 11-13) of the record as follows:
“I noticed some cement blocks were packed on the land. The blocks must be between three thousand and five thousand…”
Learned counsel therefore submitted that the learned trial Judge faced with these contradictions ought not to have relied on either of them but to hold that the plaintiff/respondent had failed to prove her case.
On the admission by the defendant/appellant that he met some blocks on the disputed land, learned counsel to the appellant submitted that after saying that he met some blocks on the land, appellant said further that they were not the plaintiff’s. Learned counsel submitted that that is no admission of the plaintiff/respondent’s specific claim of 17,400 blocks of various specifications.
Learned counsel referred to S. 20 of the Evidence Act which stipulates that for oral evidence to qualify as an admission, same must be clear and unambiguous. Learned counsel submitted that since the appellant admitted that he met some blocks on the land but did not say the actual number, not that they belonged to the respondent, when in fact he denied that he ever used the respondent’s blocks.
Learned counsel submitted that such admission is of no evidential value and would not relieve the respondent of her responsibility to prove her case being a mere acknowledgment. In the circumstance, learned counsel submitted that the evidence relied upon by the plaintiff is mainly contradictory and hence, she has failed to discharge the burden of proof imposed on her by S. 137 of the Evidence Act.
By way of reply, learned counsel to the respondent by way of summary on page 5 of the respondent’s brief observed that the defendant/appellant in paragraph 5 of his statement of defence avers that he did not use the materials of the plaintiff deposited on the land and gave evidence towards this line.
Learned counsel submitted that from the printed records, the appellant admits that the respondent deposited materials on the land but did not use them. Learned counsel further submitted that the learned trial Judge was right when at page 46 line 24-25 he said ‘the parties joined issues only on the building materials which the plaintiff deposited on the land before the case started between 1981-1984’. He also submitted that at page 58, line 26-30, the findings of the learned trial Judge confirmed that the building materials were on the land. The Judge held ‘suffice it to say that I believe the evidence of the plaintiff and her witnesses Nos. 1 and 4 that blocks were on the land which the defendant built upon’ (see also page 59 lines 15-20).
Learned counsel submitted that this fact is supported by evidence and should not be disturbed. See Ariche v. The State (1993) 6 NWLR (Pt. 302) 752, (1993) 7 SCNJ 457 at 467. The Supreme Court per Belgore, J.S.C. stated that ‘unless a finding of fact is not supported by evidence or is perverse or based on evidence not legally admissible, the finding will not be disturbed by the appellate court’. See also Fashanu v. Adekoya (1974) 6 SC 83, 91; Yassin v. Barclays Bank D.C.O. Ltd. (1968) 1 All NLR 171. In the light of the court’s finding from pages 59 – 60 of the judgment in the proceedings, I urge the court not to disturb the findings thereon.
I have considered the submissions of both learned counsel to the parties on these issues two and five vis-a-vis the records and the prevailing law. From the submission of learned counsel to the appellant, the material contradictions alleged by the appellant in the evidence given by the plaintiff/respondent in the court below relates to the estimate given by the witnesses of the number of blocks on the land now in possession of the appellant. The judgment of the lower court is not predicated on the estimates given in evidence by the plaintiff’s witnesses, rather the lower court recognized that none of the witnesses placed the blocks on the land, consequently, the evidence was treated at best as an opinion. The court below showed that he relied on the number of blocks stated in exhibits P2-P5 tendered before the court. The alleged contradiction on the number of blocks on the land given by the witnesses does not go to the root of the main issue to be considered, which the court below considered, which is, were there blocks on the land which were subsequently possessed by the defendant? And did the said blocks belong to the plaintiff? From the evidence on the printed records, the answer in both questions is in the positive.
The prevailing law is that for a contradiction to be material and upturn a judgment, it must be such and that it can be said could lead to a wrong or perverse conclusion to warrant the interference of an appellate court. See Arase v. Arase (1981) 5 SC at page 33. The record shows that despite the initial denial of the defendant/appellant, the plaintiff successfully proved and established her ownership of identifiable chattels of blocks, sand and gravel which she deposited on the parcel of land on which she intended to build a house when she lost the land to the vendor of the defendant.
The respondent after admitting her loss, sought to remove her chattel which she alleged that the appellant had used and denied its use. The court below after reviewing the evidence has ruled that he believed that the plaintiffs chattel were on the land of the defendant at the time that the defendant took possession of the said land and that the said defendant/appellant used the said chattels to make a fence and refused to admit to return same or pay for the market value. It is trite that an appellate court does not intervene to reverse the findings of fact of the court below, even if the court would have held a different view. See Wahabi Aigbosho Olanrewaju v. Governor of Oyo State (1992) 11-12 SCNJ at pp. 105-6, (1992) 9 NWLR (Pt. 265) 335.
I agree with the above judgment of the Supreme Court. In the circumstance, I resolve issues 2 and 5 against the appellant and I hold that the plaintiff in the court below proved his claim against the defendant/appellant on a balance of probabilities.
On issue 4 which relates to whether the learned trial Judge wrongfully rejected purchase receipts dated 4/8/88, 28/8/88 and 30/8/88, both learned counsel to the parties have addressed us copiously in their respective briefs of argument. I have considered the submissions vis-a-vis the records and the prevailing law. Learned counsel to the appellant submitted at pages 16-18 of the appellant’s brief by way of summary that though the purchase receipts dated 4/8/88, 28/8/88 and 30/8/88 are not issued in the name of the appellant, they are issued in the name of his hospital. Since he stated that he was a private medical practitioner, he must have a clinic or hospital from where he operates, hence, counsel contended, the court ought to take judicial notice that the receipts were issued in the name of his hospital.
Learned counsel further referred to page 37 paragraphs 6-7 of the record where the appellant said:
“I paid for the materials I used to fence the land. I now tender the three receipts.”
To buttress the fact that proper foundation had been for the tendering of the purchase receipts. On the whole learned counsel submitted that since the receipts are relevant and admissible, they should be admitted in evidence notwithstanding that they are not from proper custody.
By way of reply, learned counsel to the respondent by way of summary justified the rejection of the purchase receipts of the lower court on the ground that a party who said he made payment and tendered receipts which showed the name of another has not shown relevance of his name to the receipt. I have considered the submissions of both learned counsel to the parties on this issue. I seem to agree with the learned counsel to the respondent that since the purchase receipts showed the name of another person, he has not shown relevance of his name to the receipts. What is more, the receipts are not self-explanatory and since no foundation has been laid for their admissibility, I hold that the court was in order when it rejected the receipts. It is clear from the record that the statement made subsequently by the defendant that a medical doctor must have a hospital where he works is an averment made after the court had ruled that he failed to see the relevance of the receipts to the witness.
As reiterated supra, the court rightly rejected those exhibits. In the circumstance, I resolve issue No.4 against the appellant and in favour of the respondent.
Before concluding this judgment, I need to point out that although the issues formulated by the appellant are contrary to the authorities more than the grounds, but since the issues were consolidated into three, they were in fact taken as three issues and deemed as such. Be that as it may, the appeal is dismissed on the last issue – issue 4. The appeal however succeeds on issues 1 & 3 and same is dismissed on issues 2, 4 & 5.
In sum, the appeal is allowed in part with substantial part of the judgment of the lower court affirmed. Costs of N5,000.00 is awarded in favour of the appellant.
Other Citations: (2003)LCN/1438(CA)
