Sir E. N. Ejiofor V. Christian Okafor & Ors (2007)
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MIKA’ILU, J.C.A.
A suit No. 0/241/2000 was instituted at the High Court of Anambra State, in the Onitsha Judicial Division by one Christian Okafor, now the 1st respondent, for himself and on behalf of the estate of Mrs. Ugonwa Okafor (now deceased) against one Sir E. N. Ejiofor, the 1st respondent and three others. As per para. 5 of their statement of claim, their claim against the defendants jointly and severally was as follows:-
“(a) A declaration that the attachment and sale of Volvo Car with registration number AR820 UWN belonging to Mrs. Ugonwa Okafor (deceased) was wrongful in law, void and of no effect whatsoever.
(b) An order setting aside the said sale.
(c) Return to the plaintiff of the said Car (if still in good condition and repair as it was before the attachment and sale) or, in the alternative, payment to the plaintiff of the current market value of the Car as assessed.
(d) N2,000,000 (Two million Naira) general damages for wrongful execution and sale of the said vehicle.”
Only the 1st defendant at the High Court defended the suit.
It is to be noted that the said Volvo Car was attached and sold in the execution of a valid judgment of the High Court. Onitsha in suit No. 0/409/97 between the appellant as the plaintiff and one Nathan Okafor, the husband of Ugonwa Okafor. The said Volvo Car was sold by public auction by the Deputy Sheriff of the High Court.
Onitsha to one Ugoabata Ezegbelu.
The High Court at the close of the cases of the parties and final address of their solicitors entered judgment in the case in favour of the 1st respondent, the plaintiff in the suit.
The 1st defendant. Sir E. N. Ejiofor, the only defendant who defended the suit was aggrieved and therefore filed their appeal.
Before this court, briefs have been filed and exchanged. In the appellant’s brief of argument four issues have been formulated for determination. They are as follows:
(i) Whether exhibits P1 – P7 were admitted by the High Court.
(ii) Whether the High Court was right in treating exhibits P1 to P7 as proof of their content and according them Probative value.
(iii) Whether the decision of the High Court that the Volvo Saloon Car had Engine No. 49897402655 and Chasis No. U1244842C2785604 and was initially registered as LA 8874 TG and subsequently re-registered as AR 820 UWN was born out by the pleading and evidence before the court.
(iv) Whether the award by the High Court of the sum of N367,250.00 as the current market value of the Volvo Car (special damages) and the sum of N367,250.00 general damages, in the alternative was proper and or proved.
The 1st respondent in the 1st respondent’s brief of argument has adopted the above issues for determination of the appeal. I will determine this appeal in term of the above issues. It is to be noted that the cross-appeal is withdrawn and it is struck-out.
Issue One
Whether exhibits P1-P7 were rightly admitted and accorded probative value by the High Court. It is to be noted that exhibits P1-P7 tendered by the 1st respondent at the trial in proof of ownership of the Volvo Saloon Car in issue are:
(i) P1 – Death certificate issued by Idemili Local Government of Anambra State.
(ii) P2 – Vehicle license for Volvo car registration number AR 820 UWN issued at Onitsha Anambra State.
(iii) P3 7 P3A – Receipts of payment made for Volvo Reg.
No. LA 8874TG issued by Lagos State Government.
(iv) P4-P4h Shipping documents in the name of Chidiebere C. Nnadi.
(v) P5 – Certificate of Insurance
(vi) P6 – Photocopy of receipt for payment to Lagos State Government.
(vii) P7 – Photocopy of change of ownership made by Chidiebere Anyanwu.
It is the submission of the appellant that all the above exhibits were tendered at the trial by PW1. Christian Okafor, the 1st respondent who was neither the maker nor a party to any of the above exhibits. Late Ugonwa Okafor. PW1’s mother was also not the maker of any of the exhibits. That no evidence at the trial “as adduced by the 1st respondent in satisfaction of the provision of section 91 (1)(b) of the Evidence Act of at all as to the impracticability of calling the makers of the exhibits to testify and tender the exhibits. He has added that the High Court was wrong to have admitted the said exhibits through PW1. He relies on the case of Inland Containers Ltd. v. R. C. T Co. (Nig) Ltd. (1997) 8 NWLR (Pt. 517) 505; 511 paragraphs F-H. This argument overweighs the respondents’ argument in which he tries to say that section 91(2)(a) of the Evidence Act would save the situation of admissibility of exhibits P1-P7. The necessary conditions as under section 91 (a) & (b) of the Evidence Act have not been met.
No evidence also to suggest undue delay or expense under section 91(2) of the Evidence Act as argued by the 1st respondent. No evidence was also adduced at the trial in satisfaction of the provision of section 91(1)(b) of the Evidence Act in respect of exhibits P1-P7.
Therefore issue 1 is hereby resolved in favour of the appellant.
Issue Two
Whether the High Court was right in treating exhibits P1-P7 as proof of their content and according it probative value.
The learned counsel for the applicant has contended, in the alternative, to issue 1, that even if exhibits P1 to P7 per chance were admissible through PW1, who was not the maker of the exhibits, each can only, in the absence of the fulfillment of the preconditions under section 91(1)(b) of the Evidence Act, be admitted as a “res” and not as proof of its content: Refer to Omorhirhi & Ors. v. Enatevwere (1988) 1 NWLR (Pt. 73) 746; (1988) 1 SCNJ (Pt. 11) 168: 186 and Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487; 545. I agree with the contention of appellant’s counsel that exhibits P1 to P7 respectively are of no evidential or probative value as regards proof of their content and afortiori ownership of the Volvo car by Ugonwa Okafor. That the trial court was wrong to have treated the exhibits as proof of their content and to have based its finding that late Ugonwa Okafor was the owner of the Volvo Car in issue on the contents of the exhibits wrongfully admitted in evidence and acted upon. This issue is therefore resolved in favour of the appellant.
Issue Three
Whether the decision of the High Court that the Volvo saloon car had Engine No. 49897402655 and Chassis No 1/4 1244842C2785604 and was initially registered as LA 8874 TG and subsequently re-registered as AR 820 UWN was born out by the pleading and evidence before the court.
It has been argued by the appellant’s counsel, and I agree, that the trial court’s decision that the Volvo car in issue belonged to late Ugonwa Okafor was premised on its finding that the Volvo car in issue had Engine No. 49897402655 and chassis No. 1/4 1244842C2785604 and was initially registered as LA 8874 TG and subsequently re-registered as AR 820 UWN. It is to be noted that the only identification of the car pleaded was its registration No. AR 820 UWN. The plaintiff did not also plead that the Volvo car was previously registered with a different number. It is trite that the adjudicatory duty of a court is restricted to the determination of issues properly raised in the pleadings of the parties before it. A court ought not to have considered a point or an issue not raised in the pleadings. Refer to Olawuyi v. Adeyemi (1990) 4 NWLR (Pt. 147) 746 and Balogun v. Oshunkoya (1992) 3 NWLR (Pt. 232) 827: 834. In the present case the trial court made finding on unpleaded facts that the Volvo car has engine number 49897402655 and chassis number 1/41244842C2785604 and was initially registered as LA 8874 TG and later re-registered as AR 820 UWN. The parties not having joined issues as to chassis and engine numbers of the Volvo car, as well as its re-registration from LA 8874 TG to AR 820 UWN, the trial court was wrong to have delved into those issues. Despite that no evidence was adduced at the trial by any of the parties as to the engine and chassis numbers of the Volvo car in issue, it is wrong for a trial court to base its decision on facts which are neither pleaded nor testified to in evidence. Refer to Nteogwuile v. Otuo (2001) 16 NWLR (Pt. 738) 58.
This issue is therefore resolved in favour of the appellant.
Issue Four.
Whether the award by the High Court of the sum of N367.250.00 as the current market value of the Volvo car and the general damages of N367.250.00 in the alternative were proper and or proved.
It has been argued by the appellant that the plaintiff did not plead the current market value of a fairly used Volvo car or any fact by which the current market value of a fairly used Volvo car could be determined. It has been argued by the appellant’s counsel and I agree, that the evidence of PW2 as to current value of a fair” used Volvo car, being not covered by pleading of the 1st respondent ought not have been admitted and made use of by the trial court. It is trite that un-pleaded evidence is absolutely inadmissible and ought to be expunged, Refer Unity Life & Fire Insurance Co. Ltd. v. I.B.W.A. Ltd. (2001) 7 NWLR (Pt. 713) 610. The evidence of PW2 not covered by pleadings is therefore expunged Consequently there is no evidence on the current market value of the Volvo in issue. The award of general damages in the alternative by the High Court is erroneous. The 1st respondent neither pleaded facts nor adduced any evidence as to collateral injury/loss suffered by him in consequence of the wrongful act of the defendants or as to the heads or head under which the claim of general damages sought was based.
There is no evidence to assist the assessment of general damages claimed by the 1st respondent. The general damages therefore awarded by the High Court was arbitrary, unreasonable and ought to be set aside. It is therefore set aside,
In the conclusion I am of the view that this appeal has merit and it is allowed. The judgment of the court below is hereby set aside. The claim of the 1st respondent is hereby dismissed, I award the sum of N6,000.00 as costs in favour of the appellant.
Other Citations: (2007)LCN/2613(CA)
