Sunday Oyebadejo V. Ramoni Olaniyi & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A.

The plaintiff now referred to as appellant in this judgment filed a writ of summons against the three defendants referred to in this judgment as 1st, 2nd and 3rd respondents respectively at High Court Ibadan in Ibadan Judicial Division of the High Court of Oyo State with Coram as Honourable Justice R. G. Oyetunde.

After service of the writ of summons on respondents, pleadings were exchanged and amended that at the conclusion of trial it was based on amended pleadings. The amended pleadings shall simply be referred to in this judgment as statement of claim and statement of defence as the respondents had joint legal representation and joint statement of defence.

Following the now accepted rule of law of our civil process as decided in Udechukwu v. Okwuka 1956 SCNLR 189, Chief J.O. Lahau v. Chief Lajayetau & Ors (1972) 6 SC 190, Ajayi v. Military Administrator Ondo State (1997) 5 NWLR (Pt 504) page 237 SC, Odusoga v. Ricketts 19977 NWLR Pt 511 page 1 SC. Aroyebi v. Bello (1997) 11 NWLR (Pt 528)page 268 CA,Ouyero v. Nwadike (1996) 9 NWLR (Pt.471) page 231 CA, University of Calabar v. Essien 1996 10 NWLR Pt 47 page 322 CA: Enigbokan v. American International Insurance Co. Ltd. (1994) 4 NWLR (Pt 34 ) page 1, Nta v. Anigbo 1972 5 SC 156 that in all actions in the superior courts of record where pleadings set out the facts relied upon by each party, a writ must be taken out of the Court Registry. But once pleadings are filed and exchanged the statement of claim thenceforth supersedes the writ. It is the law that the writ itself must disclose reasonable cause of action. In many cases the statement of claim more than a writ amplifies through facts averred the real action a party pursues.

Applying above principle of supersession of writ of summons by statement of claim, I set out some paragraphs of the statement of claim which reflect the claims of the appellant as follows:-

“18. The plaintiff then got to know that the 2nd defendant was negotiating to sell the said car. The plaintiff made desperate search for him and upon confrontation by the plaintiff the 2nd defendant hatched out a bogus story that the plaintiff has sold the said car to him. The plaintiff hereby pleads fraud on the plaintiff by the defendants

Particulars of Fraud:

1. All documents used in the criminal trial were forged documents purporting to change ownership.
2. There was no contract of sale of car between the plaintiff and defendants.
3. The 1st defendant at no time possesses a car and I gave my car in this case to facilitate the contract award agreed genuinely by me with the defendants.
4. The plaintiff never signed any sale of car agreement with the 1st defendant or any of them and plead non est factum.
5. The plaintiff later got to know that the defendants are professional tricksters.

Whereof the plaintiff’s claims jointly and severally against the defendants are as follows:-

(1) The sum of Thirty Thousand Naira (N30,000.00) being general damages in detinue for the unlawful detention of the plaintiff’s car Peugeot 505 SR Saloon with registration No. OY 1135FE at lbadan since 12/12/86 up till this day by the defendants.

(2) A declaration that the release of the plaintiff’s car Peugeot 505 SR with Chasis/Engine No. 1234017 registration No. OY1135FE released to the 1st defendant Alhaji Ramoni Olaniyi on a motion ex parte by the High court lbadan in appeal 1/16/CA/89 Alhaji Ramoni Olaniyi v. Commissioner of Police on the 5th day of February, 1990 is void and of no effect being in breach of the fundamental rules of natural justice.

(3) The sum of Five Thousand, Four Hundred Naira (N5,400.00) being special damages for loss of use of the said car between 12/12/86 and this day.

(4) A mandatory order for the delivery and return to the plaintiff by the defendants of said Peugeot 505 SR Saloon with registration No. OY1135FE.”

After completion of pleadings the case proceeded to trial, in all appellant inclusive of himself called five witnesses through whom documentary evidence were admitted and marked as exhibits. All appellant’s witnesses were cross examined by the learned counsel for the respondents.

On their part, each respondent testified on behalf of himself and were cross-examined.

After conclusion of the testimonies of appellant and respondent their legal practitioners addressed the court after which on 30th day of January, 1996 in a considered judgment Oyetunde J. dismissed all the claims of the plaintiff/appellant it is the dismissal of the case. That as appellant was dissatisfied with the said judgment led to filling of an appeal which completion of arguments led to the delivery of this judgment.

Appellant at page 138 of the record of appeal filed his notice of appeal wherein in paragraph 3 the grounds of appeal are herein reproduced:-

“3. Grounds of Appeal:

(i) The judgment is against the weight of evidence.

(ii) The learned trial Judge erred in law when he held that the signature of the plaintiff was not forged.

(iii) The trial court erred in law to hold that the plaintiff has sold the vehicle to the 1st defendant when ownership is still registered in the plaintiff’s name in accordance with the law.”

Later appellant sought and was granted leave to file additional grounds of appeal. He filed 2, 3, 4, 5 and 6 as additional grounds of appeal which with the particulars are set down below. They are reproduced because of the comments to be made anon on them.

Additional Grounds of Appeal:

(2) The learned trial Judge misdirected himself in law and in fact when the court found that the allegation of fraud was not proved beyond reasonable doubt against the 1st, 2nd and 3rd defendants and thereby came to a wrong decision.

Particulars:

a) The trial court accepted the fact that the plaintiff gave possession and the Photostat copies of the vehicle particulars to the 2nd defendant.

b) The court also accepted that on three occasions, the police detained the vehicle at Ibadan, Ilorin and Lagos on questions of ownership and the plaintiff came to the rescue of the 2nd defendant.

c) The trial court accepted that the plaintiff complained to the police about the wrongful detention of his car by the 2nd defendant about 10 months after the release.

(d) The trial court on these accepted facts failed to compare and evaluate the expert evidence of the 2nd P.W. the handwriting analyst.

(e) The trial court failed to consider the decision in Okeowo v. Sanyaolu (1986) 2 NWLR (Pt. 23) 471 at 472 in relation to the presumption of ownership of a vehicle registered in the name of a person.

3. The learned trial Judge erred in law and on facts when the trial Judge took the case out of the realms contemplated by the parties as contained in their respective pleadings and at the trial and thereby resulted in a miscarriage of justice.

Particulars:

a) The question of receipt for the N5,000.00, given to the defendant for the proposed contract was not an issue neither was it pleaded by the parties.

b) The question of a National Video Recorder to be sold was also not an issue nor was it pleaded.

c) Whether the plaintiff was prudent was also not an issue.

d) Whether the plaintiff eventually won the electrical contract at Abuja was also not pleaded.

e) The question of total failure of consideration for which the plaintiff had not complained was not an issue.

4. The trial court erred in law to have granted a relief not claimed in the suit by the defendant.

a) There is no counter-claim for ownership by the 2nd defendant before the court.

b) There was no consideration given to the constitutional right of the plaintiff to appeal before the vehicle was released to the defendants.

5. The learned trial Judge erred in law to refuse to make declaration as to the release of the vehicle when the court held that “This Court is of equal jurisdiction with that court, and as such it has no jurisdiction to sit on appeal over the decision of another court.”

Particulars:

(a) Failure of the court to consider the effect of the fundamental rules of natural justice.

(b) The issue of jurisdiction was not canvassed before the trial Judge nor were parties given an opportunity to address on it.

(c) Failure to consider the provisions of Order 24 rule (5) High Court (Civil Procedure) Rules of Oyo State as to the right vested in the trial Judge to make declaratory judgments.

6. The trial court was wrong in law and in fact to have dismissed the plaintiffs claim in its entirety.

Particulars

(a) The presumption under S. 149(1) of the Evidence Act is not relevant.

(b) Change of ownership in a town outside the original registration of ownership is not conclusive and this fact was not considered.

(c) Mis-application of the decision in Okewo v. Sanyaolu (1986) 2 NWLR Part 23 471 at 472.

(d) Finding that “plaintiff has not proved his case on the balance of probability”.

In compliance with the rules of this court, appellant filed his brief of argument wherein at page 4 paragraph B, he raised the under-mentioned as issues for determination in this appeal.

“B Issues Arosing (SIC) Arising in the Appeal

From the state of the pleadings and evidence led on both sides, the issues joined in the lower court and the grounds of appeal filed in this case, the following issues arise for determination in this appeal that is to say:-

1. Whether the trial Judge correctly evaluated the evidence led in proof of fraud? If not whether there was a bona fide sale of the vehicle to the 1st defendant in accordance with Exhibit D.
2. Whether the learned trial Judge was right to depend on matters not pleaded by the parties to arrive at a conclusion?
3. Whether the learned trial Judge correctly invoked the presumption in section 149(i) of the EVIDENCE ACT in proof of ownership of the car.”
4. Whether a court of co-ordinate jurisdiction cannot make a declaratory order?
5. Whether the finding of the trial court on the balance of probability in a case of fraud is consistent with the law?

After service of the Appellant’s brief of argument on the respondents they filed a joint respondent’s brief of argument.

In paragraph B of respondent’s brief of argument they raised preliminary objections against grounds 2, 3 and 6 of the additional grounds of appeal as they offend against the rule of law that they alleged error in law and misdirection of facts as what amounts to error in law is distinct from what amounts to misdirection of facts therefore grounds 2, 3 and 6 of the additional grounds of appeal are incompetent and should be struck out. Reliance was placed on the case of Nwadike v. Ibekwe (1987) 4 NWLR (Pt 67) at page 718 particularly at pages 744-745 and Anibire & Ors v. Womiloju & Ors 1995 5 NWLR (Pt 295) at page 623-640.

Notwithstanding the preliminary objection respondents raised in paragraph C of respondent’s brief of argument the following are issues for determination.

“Issues for Determination:

The respondents would suggest that issues for determination be put as follows:-

1. Whether or not the plaintiff had proved his case beyond reasonable doubt as required by Section 137(1) of the EVIDENCE ACT, when the plaintiff alleged fraud against the defendants now respondents in this appeal when there was a sale of vehicle No. OY1135 FE to the 1st defendant/respondents by the plaintiff/appellant taking into consideration these facts and all the circumstances of the case.
2. Whether the trial Judge erred in law in refusing to make a declaratory order in respect of a criminal appeal No. I/16CA/89 in which a court of equal jurisdiction had adjudicated in a criminal case as an appellate court”.

It is pertinent to state that appellant after service of respondent’s brief of argument on him did not file a reply brief at least to contest the preliminary objection that grounds 2, 3 and 6 of the additional grounds of appeal be struck out.

Upon the matter coming up for argument of the appeal the learned counsel for respondents wrote to inform the court that he was unable to be present in court the day for argument of the appeal but urged the court to invoice its powers under the rules of this court, that having filed respondent’s brief of argument, respondent’s appeal be deemed to have been argued on their brief of argument, filed on 25th November, 1993.

Appellant on his part relied on his brief of argument filed on 3rd June, 1993 and urged the court to allow the appeal by rejecting respondents’ argument that the appeal be dismissed.

Order 6 Rule 9 Sub Rule 5 Court of Appeal Rules provides as follows:-

“Order 6 rule 9(5) when an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued”.

Having been urged by learned counsel to respondents to take the appeal in his absence, so when the appeal came up for argument appellant only relied and adopted his brief of argument of 3/6/93 and urged the court to allow the appeal.

Order 6 rules 9(5) Court of Appeal Rules was invoked against respondents that they argued their appeal based on their brief of argument of 25th November, 1993.

Like jurisdiction, respondents having raised preliminary objection to the competency of grounds 2, 3 and 6 of appellant’s additional grounds of appeal shall have to be considered first, notwithstanding that appellant did not react to it, as the attitude of this court is to do substantial justice by holding the scale of justice in the balance, between all parties before it.

As stated above the Kernel of the argument of respondents for striking out grounds 2, 3 and 6 of the additional grounds of appeal is that they raised issues of error of law and misdirection of facts together on each ground of appeal contrary to the rule in Nwadike v. Ibekwe (1987) 4 NWLR (Pt 67) page 718 by Supreme Court that a ground of appeal cannot in the same ground complain of error in law and misdirection of fact at the same time.

My understanding of striking out grounds 2, 3 and 6 of additional grounds of appeal as couched are based on errors of law and misdirection on the same grounds of appeal contrary to the provisions of ORDER 3 rule 2 sub rule 2 COURT OF APPEAL RULES which for case of reference is set down as follows:-

“ORDER 3 rule 2 sub rule 2, if the grounds of appeal allege misdirection or error in law, the particulars and nature of the misdirection or error shall be clearly stated.”

The above was judicially interpreted by the Supreme Court in (a) Paul Nwadike & 2 Ors v. Cletus Ibekwe & Ors 1987 4 NWLR (Pt 67) page 718 at 744 by Nnaemeka-Agu, JSC who stated as follows:-

“A ground of appeal cannot be an error in law and misdirection at the same time, as the appellants grounds clearly postulate, by their very nature one ground of appeal cannot be the two. For the word “misdirection” originated from the legal and constitutional right of every party to a trial by jury to have the case which he had made either in pursuit or in defence fairly submitted to the consideration of the tribunal.

Dokun Ajayi Labiyi (Representing Labiyi Family) v. (i) Alhaji Mustapha Moberuagba Aretiola (for himself and on behalf of Anretiola Family Ilero & Ors. (1992) 8 NWLR (Pt 258) page 139 at 169 S.C held, A ground of appeal which alleges a misdirection differs from and in fact mutually exclusive of one which alleges an error in law. This is because a misdirection relates to the court’s Statement of a party’s case whereas an error relates to the determination by the court (Nwadike v. Ibekwe) (1987) 4 NWLR (Pt 67) page 718 referred to see further Ambrose Akuchie v. Maria Nwanadi per ONU JCA (as he then was) (1992) 8 NWLR (Pt 258) page 214 at 223. Alice Chiatogu Amadi (substituted by Order of Court for Lawrence A. Amadi (deceased) v. Charles of Orsakwe & Two Ors. (1997) 7 NWLR (Pt. 511) page 161 CA and held:-

“4 A ground of appeal which alleges an error in law and misdirection on the facts is not a good ground. It is incompetent because by its nature one ground of appeal cannot be both an error in law and misdirection on the fact Nwadike v. Ibekwe supra. Bereyin v. Gbodo (1989) 1 NWLR (Pt 97) page 372 Uru v. Loko (1988) 2 NWLR (Pt. 77) p, 430 referred to) Akpan v. Otong (1996) 10 NWLR (Pt.476) page 108 SC Olaloye v. Administrator Osun State (1996) 10 NWLR (Pt 476) page 38 SC all the above authorities were followed and adopted in Godwin Lake v. Inspector General of Police (1997) 11 NWLR (Pt 527) page 57 at 67 wherein the Court of Appeal interpreted ORDER 3 rule 2(1) (2) Court of Appeal RULES as follows:-

“My understanding of the grounds of appeal in this appeal are based on errors of law and misdirection, when ORDER 3 rule 2(1) (2) COURT OF APPEAL RULES in clear, unequivocal terms and by mandatory provision provide that grounds of appeal shall set out complaints in a disjunctive manner of error in law or misdirection, non compliance applying the above mentioned cases that such ground is incompetent.”

In the instant appeal a critical and analytical consideration of grounds 2, 3 and 6 of the amended ground of appeal with the particulars shows that they complained of errors in law and misdirection of facts. After an in-depth consideration of grounds 2, 3 and 6 of the amended grounds of appeal they raised complaints of error in law and misdirection which methodology of couching grounds of appeal offend against Order 3 rule 2 (2) Court of Appeal Rules interpreted from line of authorities that a ground of appeal cannot be an error in law and a misdirection of fact at the same time such ground is incompetent. A fortiori grounds 2, 3 and 6 of the additional grounds of appeal are incompetent and are hereby struck out.

In Nwadike v. Ibekwe supra it was further held that where a ground of appeal which is incompetent is argued together with that which is competent both grounds would be deemed incompetent and struck out also stated in Bereyin v. Gbodo (1989) 1 NWLR (Pt 97) page 372 at 360 followed and adopted in Idaavor & Anor v. Chief Sampson Tigidam (1995) 2 NWLR (Pt 377) page 359 CA and African Continental Bank Plc. v. Eagle Super Pack Nig. Ltd (1995) 2 NWLR (Pt 379) page 590 CA. As a result issue 1 of appellant’s brief and argument on it is of no merit as it has been contaminated by incompetent ground 2 of additional grounds of appeal.

Issues 2 and 3 of appellant’s brief of argument suffer the same contamination of incompetency having been based on incompetent grounds of appeal. The only saving grace is ground one which is the omnibus ground in appellant’s brief of argument 4 and 5 of the additional grounds of appeal upon which issue 4 of appellant’s brief of argument in based.

The appeal is therefore going to be decided on issue 1 of respondents’ brief of argument which is similar to the omnibus ground of appeal that the judgment is against the weight of evidence, this ground alone can sustain an appeal as stated in Ezebilo Abisi & 4 Ors. (For themselves and on behalf of Abube Ikena Nanro v. Vincent Akwealor & Anor (For themselves and on behalf of Umuago lkenga Nando) (1993) 6 NWLR (Pt.302) page 641 at page 574, Ogundare JSC stated that:-

“(7) When an appellant complains that a judgment is against the weight of evidence all he means is that when the evidence adduced by him is balanced against that by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him Mogaji v. Odofin (1978) 4 SC 91 at 93-95 followed.

(8) An appellate court in its primary role in considering a judgment on appeal in a civil case in which the finding of facts is questioned will seek to know:-

(a) The evidence before the trial court.

(b) Whether it accepted or rejected any evidence upon the correct perception.

(c) Whether it correctly approached the assessment of the evidence before it and placed the right probative value on it.

(d) Whether it used the imaginary scale of justice to weigh the evidence on either side.

(e) Whether it appreciated upon the preponderance of evidence which side the scale is weighted having regard to the burden of proof Aghonifo v. Aiwereoba (1988) 1 NWLR (Pt 70) page 525 at 339, MISR Nig. Ltd, v. Ibrahim (1975) 5 SC 55 at 62, Egonu v. Egonu (1978) 111 at 129 followed.

(9) Evaluation of evidence is primarily the function of the trial Judge. It is only where and when he fails to evaluate such evidence at all or properly that a court of appeal can intervene and itself (re-evaluate) such evidence. Otherwise where the court of trial has satisfactorily performed its primary function of evaluating evidence and correctly ascribing probative value to it, the Court of Appeal has no business interfering with its finding on such evidence (Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) page 360, Obodo v. Ogba (1987) 2 NWLR (Pt 54) page 1 referred to:

(a) As a general rule, when the question of the evaluation of evidence does not involve the credibility of witnesses but the complaint is against the non evaluation or improper evaluation of the evidence tendered before the trial court, an appellate court is in a good position as the trial court to do its own evaluation Narumal & Sons (Nig.) Ltd. v. Niger-Benue Transport Company Ltd. (1989) 2 NWLR (Pt.106) page 730 at 742 followed.”

That being the case as appellant averred fraud and forgeries of the purported sale agreement being in a civil matter, the onus cast on appellant is to be found in Section 138(1) Evidence Act Cap. 112 Laws of the Federation of Nigeria which states as follows:-

“138(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt,” was judicially interpreted in Benson Ikoku v. Enoch Oli (1962) All NLR page 194 at 199 – 200, (1962) 1 SCNLR page 307 as follows:

“The subsection only applies where there is a specific allegation of a crime in the pleadings so that the “commission of a crime can properly be said to be a basis or foundation of the claim of defence as the case may be, applied and followed in Godwin Nwankere v. Joseph Adewunmi (1966) 1 All NLR 129, (1967) NMLR 45, Pedro v. Orafidiya (1975) 1 NMLR page 336 Omorhirhi v. Enatevwere (1988) 1 NWLR (Pt. 73) page 746 SC Uriel Ezeji v. H.C. Ike (1997) 2 NWLR (Pt. 486) page 206 at 223 CA, Chief Jim nwobodo v. Chief C. C. Onoh (1984) 1 SCNLR page 1, Chief Bola Ige v. Dr. Victor Omololu Olunloyo (1984) 1 SCNLR 158, (1984) 1 SC 250 UBN PLC v. Barini Prono Co. Ltd. (1998) 4 NWLR (Pt. 547) page 640 CA, Shuaibu v. N.A.B. Ltd. (1998) 5 NWLR (Pt. 551) page 582 Sc, Nsirim v. Omuna Construction Co. Nig. Ltd. (1994) 1 NWLR (Pt. 318) page 1.

As the complaint is whether the learned trial Judge applied the provisions of Section 138(1) Evidence Act supra rightly or wrongly as to the issue of sale of Peugeot 505 SR OY 1135 FE with reliance based on documentary evidence admitted before the court as stated at pages 134-136 of the record of appeal by the learned trial Judge thus:-

“As the issue of forged agreement for sale, Exhibit “D” and change of ownership Exhibit “G1”, the burden lies on the plaintiff to prove that they were forged by the defendant or their privies. The general rule is that where a crime is alleged in a civil case, the crime must be proved beyond reasonable doubt. It is not enough to show that the plaintiff was not the maker of the forged documents as it is in this case. It is remarkable that the handwriting of any of the defendants was not compared with the forged documents by the Analyst PW2. I find the allegations of fraud not proved beyond reasonable doubt against 1st, 2nd and 3rd defendants…

…The crux of the case is, was there a sale of the car to them by the plaintiff? Exhibit “A3” dated 30 December, 1985 is the receipt for change of ownership while Exhibit “A4” dated 2nd May, 1986 is the vehicle licence. They are both issued in the name of 1st defendant. They are both official documents Exhibit “A4″ being the latest vehicle licence on the car. The presumption arises under section 149(1) of the Evidence Act that the formal requisites for their validity were complied with.

The burden lies on the plaintiff to rebut this resumption sic (presumption). It has remained unrebutted, Accordingly, I find as a fact that there had been a sale, by the plaintiff of his vehicle No. OY 1135 FE to the 1st defendant with effect from 5 December, 1985. It seems to me that this case is not on all four with Okeowo v. Sanyaolu (1986) 2 NWLR (Pr. 23) 471.

…For the foregoing reasons I find that the plaintiff has not proved his case on the balance of probability. He is not entitled to succeed on any of the heads of claim which I dismiss in their entirety”

From the pleadings appellant’s case was that he surrendered possession of his car now in dispute with Registration No OY 1135 FE to the 2nd and 3rd respondents to facilitate the pursuit of the contemplated promised contract and to bolster up the dignity of 2nd and 3rd respondents and that he denied vehemently and emphatically the sale of the said vehicle to 1st respondent for the sum of N10,000.00 as stated in Exhibit D titled agreement for selling motor which is hereby reproduced:-

“Agreement of Selling Motor:

THIS AGREEMENT is entered into this 5th day December, 1985. Between Mr. Sunday Oyebadejo of SW7/15 Seventh Day Road, Oke Bola, Ibadan, (hereinafter called the “Vendor”) on the first part and Alhaji Ramoni Olaniyi of SW8/12826 Fatoke Street, Panapana Bus-Stop Challenge, Ibadan (Herein after called the “Purchaser”) on the second part.

‘Whereas today the Vendor desires to sell his Motor Peugeot 505 Reg. No.OY 1135 FE Engine No. 1234017 and Chassis No. do for the sum of N10,000.00 (Ten Thousand Naira) to Alhaji Ramoni Olaniyi agrees to buy the said motor for the sum of N10,000.00 (Ten Thousand Naira) WHEREAS today Alhaji Ramoni Olaniyi promised to pay (sic) the sum of N10,000.00 (Ten Thousand Naira) only to Mr. Sunday Oyebadejo of SW7/15 Seventh Day Road, Oke Bola, lbadan, and he promised to paid (sic) pay the money in full cash.

AND WHEREAS this agreement is made in present of Mr. Y. Oyinlola of Academy Area, Ibadan who is the surety for the Purchaser and Vendor.

Dated at Ibadan 5th day of December, 1985

Postage Stamp

Affixed

Mr. Sunday Oyebadejo

Vendor

Sgd….

Alhaji Ramoni Olaniyi

(Purchaser)

Sgd ….

Mr, Y, Oyinlola

(Witness for the Vendor & Purchaser)

Read over to them in Yoruba Language by me

Sgd,

Documentary Office

Date: 5/12/85

Rubber Stamp

Affixed

The letter writer who prepared Exhibit ‘D’ testified as PW3 and stated categorically that appellant did not accompany the respondents who instructed him to prepare Exhibit ‘D’ to his office either was it signed by the parties in his presence.

As appellant denied execution of Exhibit ‘D’ it was referred to handwriting expert to verify the authenticity of the vendor’s signature in Exhibit ‘D’. The handwriting expert testified as 2nd PW. In the course of his investigation by reference to him by the Nigeria Police, he took specimen signatures of appellant admitted as Exhibit ‘B-B7’, He compared scientifically under microscope the signatures in Exhibit ‘B-B7’ and Exhibit ‘D’ and also the signatures in Exhibit ‘G1’ and ‘G2’ which are purchase agreement and letter of change of ownership alleged to have been signed by appellant by the respondents. Appellant denied ever signing Exhibit D ‘G1’ and ‘G2’ and maintained that his signatures were forged. This was why Exhibits ‘D’, ‘G1’ and ‘G2’ were dispatched to 2nd PW for analysis, He testified as follows:

“On 22/7/86 two sets of documents were sent to my office for the purpose of examination and comparison. The documents are now shown to me witness identifies Exhibits ‘D’, ‘G1’ and ‘G2’. They were disputed signature. The papers now shown to me were the specimen signature. I examined the two sets of documents under videos spectra (v.s.c) in the laboratory. I found the signatures were simulated. I also found that the questioned signature in Exhibits ‘D’, ‘G1’ -G2 carries dissimilarity features with Exhibit ‘B-B7’, I later put up my report and signed my name. Exhibits ‘G1’ and ‘G2’ are simulated forgeries of Exhibit ‘B1 – B7’,

The police sent the documents to me during their investigation.

X-Examination by Mr. Adeyemi.

“Only B1-B7 was sent to me for analysis. The signature is a written signature”

From the pleadings appellant joined issues with respondents as pleaded in paragraph 18 of the statement of claim which led to testimony of 2nd PW a handwriting expert to show whether the signatures in Exhibits ‘D’, ‘G1’-G2 were authentic and true signatures of appellant to which he stated that the signatures in Exhibit ‘D’, ‘G1 and G2’ were disimilar to Exhibits ‘B1 – B7’ and that the signatures in Exhibits D, G1 – G2 were forgeries of Exhibit ‘B1 – B7’ which were specimen signatures of the Appellant.

From his testimony 2nd PW was presented as an expert and in my judgment he is an expert within the meaning of an expert under Section 57(1) Evidence Act Cap. 112, Laws of the Federation of Nigeria 1990 as stated in Michael John Aquad & Anor v. Inspector General of Police (1954) 14 WACA 449, see also Seismograph Service Nig. Ltd. v. Akporovo (1974) 6 SC 119 at 136 Seismograph Service (Nigeria) Ltd. v. Ogbeni (1976) 4 SC 85. Although the court is not bound to accept the opinion of an expert, however, where there is unchallenged and uncontradicted by any other evidence the court is bound to accept such expert evidence and act on it. Acting upon it appellant established that Exhibits ‘D’, ‘G1 – G2’ were forgeries of his signature, Having so held the finding of fact by the learned trial Judge that appellant failed to establish that Exhibits ‘D’, G1-G2 were not forgeries of appellant’s signature in my candid opinion was perverse. As an appellate court, I set aside that finding and resolve in favour of the appellant that he established beyond reasonable doubt under Section 138(1) Evidence Act Cap. 112 Laws of the

Federation of Nigeria 1990, the forgeries.

Appellants’ case was that the delivery of his car to respondents was a bailment. Claus Keepler & Anor v. Maria Ofosia (substituted for Henry Ofosia) (1995) 3 NWLR (Pt. 384) page 415 at page 430 CA wherein bailment was defined, its legal basis & types.

“(3) A bailment properly so called is the delivery of personal chattels on trust, usually on a contract, express or implied, that the trust shall be duly executed and the chattel redelivered either in the original or an altered form as soon as the time or use for or condition on, which they were bailed shall have elapsed or been performed and approved.

(4) The legal relationship of bailor and bailee can exist independently of any contracts and is created by the voluntary taking into custody of goods which are the property of another as in cases of sub bailment or of bailment by finding. The element common to all types of bailment is the imposition of an obligation, because the taking of possession in the circumstances involves an assumption of responsibility for the safe keeping of the goods.

(5) There are six kinds of bailment namely;

(a) A bare naked bailment of goods, delivered by one man to another to keep for the use of the bailor and this is called Depositum.

(b) When goods or chattels that are useful are lent to a friend Gratis to be used by him and this is called COMMANDATUN because the thing is to be returned in SPECIE.

(c) When goods are left with the bailee to be used by him for hire. This is called LOCATIO ET CONDUCITO and the lender is called locator and the borrower conductor.

(d) Where goods or chattels are delivered to another as Pawn to be a security to him for money borrowed from him by the bailor. This is called in latin COMMODATUN and in English a pawn or pledge,

(e) When goods or chattels are delivered to be paid by the person who delivers them to the bailee who is to do the thing about them.

(f) When there is a delivery of goods or chattels to somebody who is to carry them or do something about them Gratis i.e. without any reward for such his work or carriage:’ (Mohammed Khatoun v. Holland West Africa Lines & Anor. (1961) 2 SCNLR 47 at 50).

From the foregoing appellant’s case was a gratuitous bailment which means as held in Keepler v. Ofosia supra that;

“GRATUTIOUS bailment is another name given for a DEPOSITUM or naked bailment which is made only for the benefit of the bailor and is not a source of profit to the bailee, (COGGS v. Reward (1703 2 Lord Raymond 909 HCLT L.J 912 applied).

Applying the above, I hold from the printed record that Appellant granted possession of his car to respondents to facilitate and enhance the status of respondents with regard to the promised contract being pursued by 2nd respondent.

On the contrary, 1st respondent averred and led evidence in support that appellant sold his car Peugeot 505 SR with registration No. OY 1135 FE to him as evidenced by Exhibits ‘D’ with effective change of ownership as evidenced by Exhibits ‘G1 and G2’.

Having asserted valid sale to him (1st respondent) by appellant with joinder of sale and not sale the burden is on 1st respondent to establish valid sale based upon the rule of law that he who asserts must prove. As there is element of fraud and crime this must be established under Section 138(1) Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, As 1st respondent predicated the sale on Exhibit ‘D’ and change of ownership by Exhibit ‘G1′ and G2’ which are documentary evidence no extrinsic evidence to the contents are permissible as laid down in Section 132(1) Evidence Act aforesaid unless the proviso applies. It was because fraud, illegality and want of due execution by appellant was raised that made the proviso applicable with the evidence of 2nd PW the handwriting analyst.

In Union Bank of Nigeria Ltd v. Professor Albert Ojo Ozigi (1994) 3 NWLR (Pt. 333) page 385 at 400 the Supreme Court held as follows:

“(1) The general rule is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add, to vary, subtract from or contradict the terms of the written instrument. This is also provided in Section 131(1) now 132(1) Evidence Act (Olaoye v. Balogun (1990) 5 NWLR Pt. 148 at 24. Eke v. Odolofin (1961) 1 All NLR 842. Macaulay v. NAL Merchant Bank (1990) 4 NWLR (Pt. 144) page 283 Colonial Development Board v. Kamson (1955) 21 NLR 75, Molade v. Molade (1958) SCNLR 206, referred to.

(2) The operation of the parole evidence rule is not limited to oral evidence. It extends to extrinsic evidence in writing, such as drafts agreement. Preliminary agreements and letters relating to previous negotiations.

(3) General evidence is not admissible as to what passed between the parties before the execution of a written agreement or during its preparation. Exhibit ‘I’ was inadmissible because it constitutes an extrinsic evidence intended to be used to contradict the mortgage deeds.

(4) Where a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning.

(5) The general rule is that where the words of any instrument are free from ambiguity in themselves and where the circumstances of the case have not created any doubt or difficulty as to the proper application of the words…. an instrument is always to be construed according to the strict plain and common meaning of the words themselves.”

Applied and followed in Njoku v. Dikibo (1988) 1 NWLR (Pt. 534) page 496 CA, Nnadi v. Okoro (1998) 1 NWLR (Pt. 535) page 573 CA, Jessica Trading Co. Ltd. v. Bendel Insurance Co. Ltd. (1996) 10 NWLR (Pt. 476) page 1 SC Andrew Nwoke Okonkwo v. Cooperative and Commerce Bank (Nig.) Plc & Two Ors. (1997) 6 NWLR (Pt. 507) page 48 at 65 CA.

Applying the above to the instant appeal leads one to look critically at Exhibits ‘D, G1 and G2’ it is for this reason that Exhibit ‘D’ was reproduced above intentionally and adversely.

A proper look at Exhibit ‘D’ showed that it was prepared by a letter writer, the 3rd PW with limited literacy and the contents were clear and unambiguous leading to giving it ordinary, grammatical, natural meaning. My conclusion is that the consideration was for payment for the purchase price in future on an unfixed date. As the promise of the consideration 1st respondent has to show that he passed consideration and suffered a detriment by receipt of the sum by appellant after Exhibit ‘D’.

The subsequent transaction was Exhibit ‘G1’ dated the same day as Exhibit ‘D’. As appellant successfully established that his signature was forged in Exhibit ‘G1’, I reiterate that it is nullity and a void document and cannot and did not pass valid ownership of Peugeot 505 SR with registration No. OY 1135 FE to first respondent. I rely on the often quoted words of revered Lord Denning (of Blessed memory) in the privy Council case of Macfoy v. UAC (1962) AC 158 that you cannot build something on nothing such building is bound to collapse.

Looking at it from all angles appellant having regard to the weight of evidence proved beyond reasonable doubt that his signatures were forged on Exhibits ‘D, G1 and G2’. Therefore, 1st respondent who did not counter claim on his showing after Exhibit ‘D’ when and where he paid the appellant.

For the above reasons appellant appeal succeeds the judgment of Hon. R.G. Oyetunde of High Court, Ibadan delivered on 30 Jan., 1996 is hereby set aside and reversed for the reasons adumbrated above.

The appeal having succeeded shall lead me to consider what order to make under section 16 Court of Appeal Act Cap. 75 Laws of the Federation of Nigeria and to re-emphasise that section 16 Court of Appeal Act is not a Carte Blaneche for making any order, or blank cheque or Avant Garde powers. Its jurisdiction is limited only to issues raised before it hut cannot base its decision on such issues raised suo motu without affording or giving the parties an opportunity of addressing on them.

Having struck out grounds 2, 3 and 6 of the additional grounds of appeal, reliefs 2, and 3 are struck out as there are no sustainable grounds of appeal and issues based on them before the Court.

Relief 4 which is for an order for the delivery and return to the plaintiff/appellant by the defendants/respondents the said Peugeot 505 SR Saloon with registration No, OY 1135 FE is sustainable, As it is an equitable relief to grant or refuse it the court must act judicially and judiciously being exercise of judicial discretion, Likewise relief 1 is granted being general damages for the sum of N30.000.00 for wrongful and unlawful detention of car in dispute OY 1135 FE.

Therefore acting judicially and judiciously it is hereby ordered that the Defendants/Respondents jointly and or severally deliver and return Peugeot 505 Saloon car with registration No. OY 1135 FE to the Plaintiff/Appellant forthwith and with alacrity so as to avoid further deterioration of the car so as to avoid the situation that arose at the conclusion of the judgment of the Supreme Court in the case of Mrs. Stitch v. Attorney General, Federal Republic of Nigeria & Ors. (1986) 5 NWLR (Pt. 46) page 1007 SC.

The appeal having succeeded in part, I make no order of costs, the cost awarded in the lower court is hereby set aside if already paid a refund shall be made to the payer.

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Other Citations: (2000)LCN/0662(CA)