CORAM

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MOHAMMED MUSTAPHA JUSTICE, COURT OF APPEAL

FOLASADE AYODEJI OJO JUSTICE, COURT OF APPEAL

ABDULLAHI IBRAHIM BAYERO JUSTICE, COURT OF APPEAL

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PARTIES

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ADMAP LTD

APPELLANTS 

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APAPA LOCAL GOVERNMENT

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, BANKING, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE, PROPERTY AND CONVEYANCING

 

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SUMMARY OF FACTS

The appellant defaulted in paying a loan, necessitating the intuition of an action for recovery of the loan by Owena Bank plc against both the appellant and the respondent. Judgment was entered in favour of Owena Bank, which the appellant appealed. The Respondent took over the 1st and 2nd floor of the shopping complex.

The appellant (CW1) was able to establish the existence of a contract, and its subsequent breach by the respondent. The breach occurred as a result of the above-mentioned takeover of the 1st and 2nd floors of the shopping complex, on the 1st of October, 2008, in total disregard of the clear understanding that the appellant was to occupy the property in dispute for 20 years by virtue of a Development Agreement dated 27th August 1999 between the Claimant and Defendant.

The respondent did not participate in the proceedings leading up to this appeal. The lower court dismissed all the claims of the claimant/appellant.

Aggrieved by the decision, the Appellant made the instant appeal.

 

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HELD

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Appeal allowed

 

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ISSUES

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1. Whether a case of breach of contract was made out as to entitle the appellant to judgment in the light of the unchallenged evidence of CW1 before the lower court?

2. Whether the learned trial judge properly evaluated the evidence before him and was right in raising a defense for the respondent who neither maintained any position nor filed any defense before the honorable court, thereby occasioning a miscarriage of justice?

 

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RATIONES DECIDENDI

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CONTRACT – CONDUCT OF COURTS TO CONTRACT AGREEMENTS – WHERE A VALID CONTRACT AGREEMENT EXISTS

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It is very important not to lose sight of the fact that, in circumstances like these, parties to an agreement are bound by the terms of the agreement they willingly entered into, and no person, not even the Court has the power to input into that agreement or contract a term which was not stated therein by the parties; See Chief S. O. Agbareh & Anor VS. Dr Anthony Mimra & Ors (2008) LPELR-43211 (SC). – Per Mohammed Mustapha, JCA

 

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PROPERTY – WHETHER IT IS WRONG TO FORCEFULLY ENTER INTO ANY PROPERTY IN THE POSSESSION OF ANOTHER PERSON

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…it is wrong to forcefully enter into any property in the possession of another person, especially when that other person claims a right, rightly or even wrongly, and remains in possession. The right thing to do, if the respondent felt entitled, is to apply for an order of court authorizing it to take possession; see AGBOR V. METROPOLITAN POLIC COMMISSIONER (1969) 1 WLR page 703 and OJUKWU V. GOV OF LAGOS STATE (1985) 2 NWLR part 10 page 800.

The conclusion that the property would have been put at the risk of sale by the bank, if the respondent had not taken over is essentially an endorsing of self-help, and an unfortunate antithesis of chaos. – Per Mohammed Mustapha, JCA

 

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JUNGLE JUSTICE – CONDUCT OF COURTS TO JUNGLE JUSTICE – THE DISPOSITION OF THE LAW TO JUNGLE JUSTICE

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Unfortunately, in this case the respondent simply took over forcefully, believing that might is right. Even if the respondent thought he had a right to the property, rightly or wrongly, resort to self-help or brute force only worsens matters, because the law frowns at jungle justice. That is what informed the court in NIGERIAN NAVY V. GARRICK (2006) 4 NWLR (PT 969) at pages 163 – 104 to hold:

“Everybody (including private individuals, public individuals, government or police) is forbidden to take possession or repossession of premises by self-help, force and strong hand or with multitude of people. Everyone entitled to possession or repossession of premises can only do so by due process of the law. They must not take the law into their hands. They must apply to the Courts for possession and act on the authority of the Court.”; see also NWELE V. ODUH (2013) LPELR – 21236(CA) (Pp. 23-24 paras. F) – Per Mohammed Mustapha, JCA

 

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COURTS – DUTY OF COURTS IN ADJUDICATION WHERE A PARTY INEXCUSABLY ABSENTS HIMSELF FROM A MATTER

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It is important to bear in mind that in proceeding with the case and rendering decisions in the absence of the party that has deliberately stayed away, the Court must ensure that the rules of court are strictly complied with and that the rights due to the absent party are not disregarded or violated. The persistent and inexcusable absence of a party from the proceedings in a case cannot be relied on as a justification for noncompliance with the rules of procedure of the Court.

Where a party decides to be recalcitrant, the court has to be wary in all in does. Even though oftentimes the court does not escape blame one way or the other. – Per Mohammed Mustapha, JCA

 

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BURDEN OF PROOF – BURDEN OF PROOF WHERE EVIDENCE IS UNCONTROVERTED

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Granted, the burden of proof on the appellant is minimal, because of the non-participation in the proceedings by the respondent, and especially in view of the unchallenged evidence of CW1, and exhibits A-4.

“Where evidence is uncontroverted, the onus of proof is satisfied on a minimal proof since there is nothing on the other side of the scale; See BURAIMOH V. BAMGBOSE (1989) 2 NWLR (PT 109) 352.” See also Eastern Breweries Plc, AWO OMAMMA & ORS V. NWOKORO (2012) LPELR – 7949(CA) (Pp. 27 paras. D).

Be that as it may, it is not open sesame for the appellant; because minimal proof, is still proof and a case completely lacking in credible evidence in proof of essential ingredients of an alleged claim, has not satisfied even the minimum proof and therefore, must fail whether or not it was challenged by the adverse party; see MTN V. MUNDRA VENTURES (NIG) LTD (2016) LPELR-40343(CA) (Pp. 66 paras. B). – Per Mohammed Mustapha, JCA

 

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COURTS – DUTY OF COURTS WHERE THE RESPONDENT/OTHER PARTY IS INEXCUSABLY ABSENT FROM THE PROCEEDING

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The lower court had a duty or responsibility, notwithstanding the persistent and inexcusable absence of the respondent from the proceedings to comply with all rules of procedure, especially fair hearing; ONYEAKARUSI V. NWADIOGO (2016) LPELR-40932 (CA) (Pp. 16-20 paras. A) and AINA V. UBA PLC (1997) 4 NWLR part 498 page 181. – Per Mohammed Mustapha, JCA

 

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PARTIES – CONDUCT OF PARTIES WHEN JUDGMENT IS GIVEN AGAINST THEM

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It is uncharitable as a matter of fact to accuse the lower court of manufacturing evidence on behalf of the respondent. That language is to say the least uncouth. The mere fact that the lower court arrived at a finding or conclusion not agreeable to the respondent does not per se prove or establish bias. The lower court had every right to its views and opinions, without suffering disrespect for carrying out its judicial functions. Counsel should be circumspect in accusing the court of bias. – Per Mohammed Mustapha, JCA

 

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SUO MOTU – WHERE A COURT CAN BE SAID TO HAVE RAISED AN ISSUE SUO MOTU

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A Court can only be accused of raising an issue suo moto, if the issue or matter of facts did not exist in the litigation; see OLORUNKUNLE V. ADIGUN (2012) 6 NWLR (PT 1297) 407 and MAX-CLEAN BECAL VENTURE LTD & AND V. ABUJA ENVIRONMENTAL PROTECTION BOARD. – Per Mohammed Mustapha, JCA

 

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COURTS – POWER OF COURTS TO FORMULATE ISSUES FOR DETERMINATION

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…the law permits a Court to ignore some or all issues in the briefs of argument and formulate its own issues, the way it deems them to be material once they are distilled from the grounds of appeal; CHABASAYA VS. ANWASI (2010) 10 NWLR (1201) 163; see also SHA VS. KWAN (2000) 8 NWLR (670) 685 @ 700, the Supreme Court held that:-

“The Court of Appeal is at liberty and possess the jurisdiction to modify or reject all or any of the issues formulated by the parties and frame its own issues or, to reframe the issues by the parties if, in its views, such issues will not lead to proper determination of the appeal.” See also ONOCHIE VS. ODOGWU (2006) 6 NWLR (975) 65, GOVERNOR EKITI STATE VS. OLUBUNMO (2017) 3 NWLR (1551) 1 @ 23 and OAK PENSIONS LTD & ORS V. OLAYINKA (2017) LPELR-43207(CA) (Pp. 4-5 paras. F). – Per Mohammed Mustapha, JCA

 

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COURT – CONDUCT OF COURT WHERE THE THRESHOLD ISSUE IS RESOLVED IN FAVOUR OF A PARTY EVEN IF OTHER ISSUES ARE RESOLVED AGAINST THAT PARTY

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Even though the first issue was resolved in favour of the appellant, against the respondent, and the second issue in favour of the respondent, against the appellant, the appeal succeeds, because issue one is the threshold issue. – Per Mohammed Mustapha, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Court of Appeal Rules

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