Legalpedia Citation: (2024-11) Legalpedia 78102 (CA)

In the Court of Appeal

Holden At Abuja

Mon Nov 21, 2022

Suit Number: CA/ABJ/CV/1025/2020

CORAM

JOSEPH SHAGBAOR IKYEGH JUSTICE, COURT OF APPEAL

1. O. WILLIAMS-DAWODU JUSTICE, COURT OF APPEAL

MOHAMMED BABA IDRIS JUSTICE, COURT OF APPEAL

PARTIES

1. KAMBA ENGINEERING SERVICES CO. LTD
2. FA’ASH INTERNATIONAL LTD
3. SAMBALKO ENTERPRISES CO. LTD
4. LEKKI GARDENS ESTATE LTD

APPELLANTS

1. FIRST CHOICE PROPERTIES LTD
2. KAMBA INVESTMENT CO. LTD
3. ALHAJI IBRAHIM MOHAMMED KAMBA

RESPONDENTS

AREA(S) OF LAW

Not Available

SUMMARY OF FACTS

 

The appellants sued the Respondents before the High Court of the Federal Capital Territory sitting in Abuja (trial court). It was the Appellants case at the trial Court that on the 30^th of June, 2009, a statutory Right of Occupancy was granted in favour of the 1^st Appellant by the Minister of FCT Abuja in respect of Plot No. 1750. However, the 1^st Appellant offered to sell the said land at a fixed price of #100,000,000 when it was facing some financial constraints. The 1^st Appellant stated that the 2^nd Appellant approached them and indicated interest in purchasing the land. A deed of Assignment and Power of attorney was signed by both parties; however, the 1^st Appellant retrieved them because the 2^nd Appellant could not make an immediate payment. The 1^st Appellant re-advertised the sale of the land, the 2^nd Respondent approached the 1^st Appellant and offered to pay #60,000,000. The 1^st Appellant declined and insisted on the #100,000,000. The 3^rd Respondent went ahead to pay a total of #16,000,000 out of the agreed price but could pay the outstanding and requested for a refund of the #16,000,000 already paid. The 1^st Appellant claimed to try to refund the money but the 3^rd Respondent made it impossible to do so.

The 1^st Appellant re-advertised again, this time the 2^nd Appellant came back and paid the money in full, agreements were signed and the sale transaction was concluded. The 3^rd Respondent went to the FCT Police Command claiming he was the rightful owner of the land, he also instituted a civil suit against the 1^st Appellant. The court made an order restraining all parties from further acts of development on the land until the determination of the motion. The 1^st Appellant however found out that there were acts of trespass and destruction economic trees and cash crops to the value of #43,350,000 by the Respondents thus leading to loss, trauma, humiliation and embarrassment, hence the reason for the institution of the case by the Appellants.

The 1^st Respondent entered appearance and filed a statement of defence and counterclaim, the 2^nd and 3^rd also filed a statement of defence and counterclaim where they claimed the 3^rd and 2^nd Respondents bought the land from the 1^st Appellant, then sold same to the 1^st Respondent to the knowledge of the 1^st Appellant. The trial court entered judgment in favour of the 1^st, 2^nd and 3^rd Respondents, the 1^st Appellant was aggrieved with the decision of the trial court and has lodged an appeal at this instant court.

 

HELD

Appeal dismissed

ISSUES

1. Whether the trial court was right when it dismissed the Appellants’ case and granted the Respondents’ counter-claims despite the unchallenged evidence of fraud and forgery adduced by the Appellants?
2. Whether the trial court was right to have relied on false evidence given by the 1st Respondent and by extension the 2nd and 3rd Respondents?
3. Whether the lower court was right to have relied on Exhibits DW1A-C to grant the counter claims of the Respondents?
4. Whether the lower court could rely on the Appellants pleadings and the evidence of the Appellants’ sole witness, PW1, to enter judgment in favour of the Respondents after holding that PW1’s evidence was wholly hearsay?
5. Whether the lower court erred in law and occasioned a miscarriage of justice when it held that there was a binding contract between the 1st Appellant and the 2nd Respondent and that the 1st Appellant could only sue for specific performance?
6. Whether or not the purported contract between the 1st Appellant and the 3rd Respondent is void for illegality?
7. Whether the trial court erred in law and occasioned a miscarriage of justice when it discountenanced the cogent, direct, admissible and uncontroverted evidence of PW1 as hearsay and relied on the hearsay, inadmissible evidence of DW1?
8. Whether the burden of proving the juristic personality of the 2nd Respondent rests on the Appellants or on the 2nd Respondent and where its rests on the 2nd Respondent what is the consequence of its failure to discharge this burden?

RATIONES DECIDENDI

PROOF BEYOND REASONABLE DOUBT – COMMISSION OF A CRIME IN A CIVIL PROCEEDING MUST BE PROVED BEYOND REASONABLE DOUBT

The law is well settled that even though it is true that in civil proceedings, the preponderance of probability may constitute a solid and sufficient ground for a verdict, this is however subject to the provisions of Section 137 of the Evidence Act 2011 to the effect that if there is a commission of crime by a person in a civil proceeding and it is directly in issue in that proceeding, it must be proved beyond reasonable doubt. The standard of proof is no longer on a balance of probabilities but on proof beyond reasonable doubt. See the cases of OKWUARUME VS. OBABOKOR (1966) NMLR 47 and BENSON IKOKU VS ENOCH OLI (1962) ALL NLR 194. Per – MOHAMMED BABA IDRIS JCA

BURDEN OF PROOF – ON WHOM LIES THE BURDEN OF PROVING A PARTY IS GUILTY OF A CRIME IN A CIVIL PROCEEDING

The burden of proving that a party is guilty of a crime in a civil proceeding is subject to Section 139 of the Evidence Act, and it is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See the case of EDOKPOLOR & CO LTD VS. OHENHEN (1994) 7 NWLR (PT. 358) PAGE 511. In the instant appeal, forgery is a criminal offence and the Appellants are saddled greatly to prove same beyond reasonable doubt. To determine this particular issue, the questions that must be asked and sufficiently answered are: what are the ingredients of fraud and forgery? Did the Appellants satisfactorily prove beyond reasonable doubt the allegation of fraud and forgery against the 2^nd and 3^rd Respondents? Per – MOHAMMED BABA IDRIS JCA

FORGERY – MEANING OF FORGERY

In the case of N. B. A. VS. UBURU (2019) 6 NWLR (PT. 1668) PAGE 378 @ 385, forgery was defined as an act of fraudulently making a false document or altering a real document to be used as if genuine. Forgery was further defined as the noun form of the verb “forge” and to forge means to make a copy or an imitation of something in order to deceive people. It also means to fabricate by false imitation. Per – MOHAMMED BABA IDRIS JCA

FORGERY – ESSENTIAL INGREDIENTS OF FORGERY

Firstly, I must cite the Supreme Court case of OBIOMA VS. STATE (2020) 3 NWLR (PT. 1710) PAGE 45 @ 62 PARAS G – H, where it was held per Kekere-Ekun, JSC that the essentials of forgery are:

1. That there is a document or writing;

2. That the document or writing is forged;

3. That the accused person(s) forged the document(s) or writing in question;

4. That he intended the forged document or writing to be acted upon to the prejudice of the victim in the belief that it is genuine.”Per – MOHAMMED BABA IDRIS JCA

VITAL WITNESS – A VITAL WITNESS SHOULD NOT BE OMITTED

Even though it is trite that the law cannot force a party to call a certain person as a witness in proof of his case, it is dangerous and fatal for a party to omit vital witnesses that can help in proof of his case against another. Per – MOHAMMED BABA IDRIS JCA

VITAL WITNESS – MEANING OF A VITAL WITNESS

In the case of OCHIBA VS. STATE (2011) 17 NWLR (PT. 1277) PAGE 663 AT 696 PARAS A – B, it was held:

“A vital witness is a witness whose evidence may determine the case one way or the other and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness.”

 

In the case of STATE VS. NNOLIM & ANOR (1994) LPELR – 3222 (SC), it was held per Adio, JSC that:

 

“The question is: who is a vital witness? A vital witness is a witness whose evidence may determine a case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case.”

Per – MOHAMMED BABA IDRIS JCA

EVIDENCE – SIGNATURE OF A PERSON ON A DOCUMENT IS EVIDENCE THAT HE IS THE AUTHOR OF THE DOCUMENT

In the Supreme Court case of EKWUREKWU VS. STATE (2020) 4 NWLR (PT. 1713) PAGE 114 @ 133 PARAS B, it was held per Eko, JSC that:

“The signature of a person on the document is prima facie evidence of the fact that he is the author of the said document.”

See also the case of YADIS NIG. LTD VS. GREAT NIGERIA INSURANCE CO LTD (2000) LPELR – 10365 (CA). Per – MOHAMMED BABA IDRIS JCA

CALLING OF WITNESS – A PERSON WHOSE SIGNATURE IS DEEMED TO BE FORGED MUST BE CALLED AS WITNESS TO ESTABLISH THE TRUTH OF THE CONTENT OF THE DOCUMENT

Even though, it is the law that the person whose signature is deemed to have been forged need not be called as a witness to prove whether or not the signature belongs to him, he must be called as a witness if the truth of the content of the document is to be established.

In the Supreme Court case of OBIOMA VS. STATE (2020) 3 NWLR (PT. 1710) PAGE 45 @ 62 PARAS G – H it was held per Eko, JSC that:

 

“… the appellant has made so much fuss on the inability of the prosecution to call Dr Iboko whose signature was allegedly forged. The Appellant therefore contends that the failure to call Dr. Iboko was fatal to the prosecution’s case. The essence of calling Dr. Iboko is that through his evidence, it will be established that his signature was in fact forged. It is for the proof or otherwise that the disputed signature was forged. The purpose can be served by any other evidence establishing that fact. That is, if without calling Dr. Iboko the prosecution  discharges the onus of proving that his signature was forged, then it would be no further need to call him to testify that his signature was forged. The dicta in WAMBAI V KANO N.A (1965) NMLR 15 and ALAKE V THE STATE (1992) 9 NWLR PART 265 PAGE 260 supports this proposition… the fact that Dr. Iboko who made exhibit 10 did not testify as a witness does not ipso facto render exhibit 10 inadmissible in evidence. It is admissible in evidence as a real evidence and for the fact that it was indeed made, in the historical sense. If it is, however, proposed to establish the truth of the contents of the statement; in that circumstance, the statement becomes inadmissible hearsay. AZEEZ OKORO V THE STATE (1998) 14 NWLR PART 584 PAGE 181 SC AT PP 218 – 219.”

Per – MOHAMMED BABA IDRIS JCA

EVALUATION OF EVIDENCE – THE ONUS OF PROOF ON AN APPELLANT RELYING ON IMPROPERLY EVALUATED EVIDENCE TO SET ASIDE A JUDGMENT

In the case of OZUZU VS. EMEWU (2019) 13 NWLR (PT. 1688) PAGE 143 @ 159 PARAS A – C, it was held per Nweze, JSC that:

“It is settled that an appellant who relies on improper evaluation of evidence to set aside the judgment has the onus to identify or specify the evidence improperly evaluated or not evaluated. He has to show convincingly that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party complaining of wrong evaluation.”

Although the Appellants specifically particularized the evidence they felt was wrongly evaluated, they failed to convincingly show how the evidence was worthy of a better evaluation than what the learned trial judge did to give a different and favourable conclusion for them. See the case of DAKUR VS. DAPAL (1998) 10 NWLR (PT. 571) PAGE 573. Per – MOHAMMED BABA IDRIS JCA

IRREVOCABLE POWER OF ATTORNEY – IMPORT OF AN IRREVOCABLE POWER OF ATTORNEY GIVEN FOR A VALUABLE CONSIDERATION

In the Supreme Court case of MALAMI VS. OHIKHUARE (2019) 7 NWLR (PT. 1670) PAGE 132 @ 157 PARA E, it was held per Aka’ahs JSC that:

“An irrevocable power of attorney given for valuable consideration robs the donor of power to exercise any of the powers conferred on the donee.”

Per – MOHAMMED BABA IDRIS JCA

SALE RECEIPT – A SALE RECEIPT ENTITLES ONE TO AN EQUITABLE OWNERSHIP

The Supreme Court in the case of ISITOR VS. FAKARODE (2018) 10 NWLR (PT. 1628) PAGE 416 @ 423 PARA E, held per Aka’ahs, JSC that:

“The sale receipt tendered by the respondent entitles her to an equitable ownership of the disputed land.”

Per – MOHAMMED BABA IDRIS JCA

RECEIPTS – MEANING OF RECEIPTS

The Supreme Court, in the case of ETAJATA VS. OLOGBO (2007) 16 NWLR (PT. 1061) PAGE 554 @ 592 PARAS C – F held per Muhammad, JSC that:

“A receipt generally is that document or a piece of paper which signifies that goods or services have been paid for. It is an evidence of payment and must be a document whereby the receipt or deposit or payment of money is acknowledged or expressed. To constitute a receipt of anything, there must be a person to receive and a person from whom he receives and something received by the former from the latter and that something must be a sum of money.”

Per – MOHAMMED BABA IDRIS JCA

PROOF OF TRANSACTION – WHAT SUFFICES AS PROOF OF A TRANSACTION

Also, the Supreme Court held in the case of BENJAMIN VS. KALIO (2018) 15 NWLR (PT. 1641) PAGE 38 @ 53 PARAS D – H, per Eko, JSC that:

“It is not an immutable rule that proof of transactions shall be by production of receipts as evidence of payment of the purchase price.”

Per – MOHAMMED BABA IDRIS JCA

VALID CONTRACT OF SALE – MEMORANDUM OF UNDERSTANDING, POWER OR ATTORNEY AND PAYMENT OF AGREED CONSIDERATION CAN CONSTRUE A VALID BINDING CONTRACT OF SALE

Going by the wordings of the Memorandum of Understanding and the Power of Attorney and even the payment of the agreed consideration, it is clear that there was a valid binding contract of sale of land between the 1^st Appellant and the 2^nd and 3^rd Respondents. Per – MOHAMMED BABA IDRIS JCA

HEARSAY EVIDENCE – WHAT IS HEARSAY EVIDENCE?

What is hearsay evidence? In the case of OBOT VS. STATE (2014) LPELR – 23130 (CA), it was held that hearsay evidence is evidence that does not derive its value solely from the credit given to the witness himself but which rests also, in part, on the veracity and competence of some other person. Per – MOHAMMED BABA IDRIS JCA

HEARSAY EVIDENCE – THE INADMISSIBILITY OF HEARSAY EVIDENCE IN LAW

In the case of DANLADI VS. STATE (2019) 16 NWLR (PT. 1698) PAGE 342 @ 391, it was held that:

“By virtue of Section 37 and 38 of Evidence Act hearsay evidence is inadmissible in law regarding proving the truth of a fact.”

From the above case, hearsay evidence is only inadmissible with regard to proving the truth of a fact. It does not mean the entire evidence is rotten and must be disposed of. Per – MOHAMMED BABA IDRIS JCA

EVIDENCE – SUBMISSION OF COUNSEL CANNOT TAKE THE PLACE OF EVIDENCE

It is elementary law that no matter how brilliant the submission of counsel is, it cannot take the place of evidence. See the case of AJAYI VS. TOTAL (NIG) PLC (2014) ALL FWLR (PT. 719) PAGE 1060. 

In the case of FBN PLC VS. AKPARABONG COMMUNITY BANK LTD & ANOR (2005) LPELR – 7496, it was held that:

“The submissions of counsel cannot be a substitute for evidence.”

Also, in the Supreme Court case of CHUKWUJEKWU VS. OLALERE & ANOR (1992) 2 NWLR (PT. 221) PAGE 86, it was held that:

“it is now trite law that no matter how brilliant and persuasive counsel’s submission may be, it can never metamorphose to evidence.”

Per – MOHAMMED BABA IDRIS JCA

CROSS-EXAMINATION – PURPOSE OF CROSS-EXAMINATION

In the Supreme Court case of MTN VS. CORPORATE CPMMUNICATION INVESTMENT LTD (2019) LPELR – 47042 (SC) it was held per Kelere-Ekun, JSC that:

“On the issue of evidence elicited from a witness under cross examination, I do not agree with learned senior counsel for the appellant that because the evidence in Chief of DW1 was found to be of no moment, having been hoisted upon an incompetent statement of defence, the cross examination of the witness should also be jettisoned. The purpose of evidence in chief is to lead evidence in support of a party’s pleadings. The purpose of cross examination is to discredit the witness of one’s opponent and make his testimony unworthy of belief. Cross-examination of a witness may also enhance the case of the party crossexamining by affirming of supporting his position.”

Per – MOHAMMED BABA IDRIS JCA

CROSS-EXAMINATION – EFFECT OF EVIDENCE ELICITED UNDER CROSS-EXAMINATION

His Lordship Onnoghen, JSC gave an enlightening explanation on the effect of evidence elicited under crossexamination in the case of AKOMOLAFE VS. GUARDIAN PRESS LTD (2010) 3 NWLR (PT. 1181) 338 @ 351 F – H, where he held that:

“On the issue as to whether both parties called evidence in support of their pleadings, as held by the lower court, it is settled law that evidence elicited from a party or his witness(es) under cross examination, which goes to support the case of the party cross- examining, constitute evidence in support of the case or defence of that party. If at the end of the day the party cross-examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case or defence. In such a case, you cannot say that the party calls no evidence in support of his case or defence. One may however say that the party called no witness in support of his case or defence, not evidence, as the evidence elicited from his opponent under cross examination which are in support of his case or defence constitute his evidence in the case. There is however a catch to this principle. The exception is that evidence so elicited under cross examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties.”

The questions that must be asked and answered here are as follows:

(a) Are the evidence elicited from the testimony and cross

examination of DW1 supported by the pleadings filed by the 2nd and 3rd Respondents?

(b) Are the evidence elicited relevant to the case of the 2nd

and 3rd Respondents?

Per – MOHAMMED BABA IDRIS JCA

LEGAL PERSONALITY OF A COMPANY – ON WHOM LIES THE ONUS OF PROVING THE LEGAL PERSONALITY OF A COMPANY

In the case of P. P. M. C. VS. AKINYEMI & ANOR (2018) LPELR – 44989, it was held that the onus of proving the legal personality of a company lies on the company itself. When the juristic status of a company is challenged, the onus lies solely and only on the company to prove that indeed it has legal personality.  Per – MOHAMMED BABA IDRIS JCA

ILLEGAL CONTRACT – A PERSON WHO ENJOYED THE BENEFITS OF AN ILLEGAL CONTRACT IS ESTOPPED FROM RAISING ILLEGALLITY AS A DEFENCE TO VOID THE TRANSACTION

I will agree with the 1st Respondent and the 2nd and 3rd Respondents’ argument that a person who has enjoyed the benefits of an illegal contract cannot be allowed to raise the issue of illegality as a defence to render the transaction void. I have read the arguments of the learned Appellants’ counsel stating that the onus of proving the legal personality of a company lies strictly and solely on the company and I agree totally with his submissions in this regard and all the cases he relied on. The Supreme Court in the case of TERIBA VS. ADEYEMO (2010) 11 NWLR (PT. 211) PAGE 242 AT 263 – 264 PARAS F – A, held as follows:

“A person cannot benefit from his own wrong. In its adjudicatory function, the Court has a duty to prevent injustice in any given circumstance and avoid rendering a decision which enables a party to escape from his obligation under a contract by his own wrongful act or otherwise profit by his own wrongful act.”

Per – MOHAMMED BABA IDRIS JCA

INCORPORATED ENTITY – LEGALLY ADMISSIBLE PROOF OF AN INCORPORATED ENTITY

In the case of NLNG LTD VS. ONWUKWE (2019) 10 NWLR PART 1680 PAGE 247 @ PAGE 263 PARA B – C the Court of Appeal held per Jumbo-Ofo, JCA that:

“The law is, trite that the only document legally admissible in proof of an incorporated entity such as the Appellant is by production of its Certificate of incorporation.”

Per – MOHAMMED BABA IDRIS JCA

JURISTIC PERSONALITY – PROOF OF JURISTIC PERSONALITY OF A COMPANY

In the Supreme Court case of REPTICO S. A. GENEVA VS. AFRIBANK (NIG) PLC (2013) 14 NWLR (PT. 1373) PAGE 172, it was held that:

“No other document will satisfactorily establish the legal personality of an artificial person such as an incorporated liability company than its certificate of incorporation.”

Proof of juristic personality is through the production of certificate of registration or incorporation. See generally, the cases of APOSTOLIC CHURCH ILESHA VS A. G. MID-WEST 1972 4 S. C. 150 AT 159 and ABAKALIKI L. G. C. VS. ABAKALIKI R. M. O. (1990) 6 NWLR (PT. 155) 182 AT 192. Per – MOHAMMED BABA IDRIS JCA

ILLEGAL TRANSACTION – A PERSON WHO ENTERS AN ILLEGAL TRANSACTION WITH KNOWLEDGE CANNOT RAISE ILLEGALITY AS A DEFENCE

Also, in the case of ACHU VS. C. S. C. CROSS RIVER STATE (2009) 3 NWLR (PT. 1129) PAGE 475 @ 500 – 501 PARAS G – A, it was held that:

“A party who has knowledge or is presumed to have knowledge of the existence of an illegality in a transaction and enters into the transaction cannot later label it as illegal and raise illegality as a defence. Equity shall not condone it, as one cannot approbate and reprobate.”

The Appellants cannot raise this issue after they obviously consented to the illegality and enjoying the benefits thereof. Equity acting in personam will not allow a party to come to the temple of justice with dirty hands and unclean conscience. Equity generally abhors subterfuge, deception and unconscionable conduct. It also does not allow a party to benefit from his inequity. See the cases of OGUNPEHIN VS. NUCLEUS VENTURE (2019) 16 NWLR (PT. 1699) PAGE 533 and S.C.B. (NIG) LTD VS. BRAITHWAITE (2013) 4 NWLR (PT. 1397) PAGE 247. Per – MOHAMMED BABA IDRIS JCA

ABUSE OF COURT PROCESS – MEANING OF ABUSE OF COURT PROCESS

I have read through their little argument in this regard and I do not see how this appeal amount to an abuse of court process. Abuse of court processes is explained as a situation where a party uses court processes to harass and oppress the other party or uses it in a vexatious manner. In the case of ADEGBANKE VS. OJELABI & ORS (2021) LPELR – 54992 (SC), the Supreme Court held that:

“There is said to be an abuse of the process of the Court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter, against the same opponent on the same issues.”

Per – MOHAMMED BABA IDRIS JCA

ABUSE OF COURT PROCESS – WHEN ABUSE OF COURT PROCESS MAY BE OCCASSIONED

Abuse of court process may be occasioned where there is no law supporting a court process that has been filed. The abuse lies, among other things, in the inconvenience the other party has been put through in defending a recklessly incompetent process. I have read the Appellants Amended Notice of Appeal and amended brief of argument and I do not see how it amounts to an abuse of court process. Per – MOHAMMED BABA IDRIS JCA

CASES CITED

Not Available

STATUTES REFERRED TO

Companies and Allied Matters Act

Evidence Act 2011

Money Laundering (Prohibition) Act 2011

High Court of the FCT Rules

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