OKOLIE v. OKOLIE (2020)

OKOLIE v. OKOLIE

(2020)LCN/15380(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, September 18, 2020

CA/L/80/2019

RATIO

CRIMINAL LAW: FORGERY: BURDEN OF PROOF

First of all, forgery is a criminal offence and the Appellant who alleges that the Respondent forged the receipts must plead same with particulars of the forgery and then at the trial prove that allegation beyond reasonable doubt. See Section 135(1) and (2) of the Evidence Act 2011, which provides that:
(1) – If the commission of a crime by a party to any proceedings is directly in issue, civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime is subject to Section 139 of the this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
See also Eya Vs. Olopade (2011) LPELR- 1184 (SC). the Appellant did not plead this forgery and/or its particulars. The learned counsel did not point out where the Appellant pleaded this allegation or the evidence led in proof of same. I have not found any. The argument goes to no issue at all and it is disregarded. PER BALKISU BELLO ALIYU, J.C.A.

EVIDENCE: RELEVANCE OF DOCUMENTARY EVIDENCE

The trite position of the law is that a document tendered in Court is the best evidence of the contents of such document, and oral evidence cannot be allowed to discredit or contradict the content thereof except where fraud is pleaded. See Section 128 of the Evidence Act, 2011 and the cases ofA. G. of Bendel State Vs. UBA Ltd (1986) 4 NWLR (pt. 37) 5 and Ambursa Vs. Ahmed & Ors. (2018) LPELR-46419 (CA). PER BALKISU BELLO ALIYU, J.C.A.

CIVIL PROCEEDING: BURDEN OF PROOF

By way of introduction to the determination of the two issues, it is a settled principle of law by a long line of decisions of this Court and the Apex Court that civil cases are decided on preponderance of evidence, which expression according to the Black’s Law Dictionary, 9th Edition, page 1301 means:
“Greater in weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that though, not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. This is the burden of proof in most civil trials….”
Preponderance of evidence is also referred to as balance of probability. See also Sections 131 to 134 of the Evidence Act 2011. PER BALKISU BELLO ALIYU, J.C.A.

DUTY OF COURT: EVALUATION OF EVIDENCE

It means that evaluation of evidence involves the weighing of the totality of evidence adduced before the trial Judge on that imaginary scale of justice and weighing one against the other to decide which has the most convincing force in term of quality, and accept it in preference to the other and then apply the appropriate law. See Odofin & Ors. Vs. Mogaji & Ors. (1978) NSLCC 257 at 277 and Wachukwu & Anor. Vs. Owunwanne & Anor. (2011) LPELR-3466 (SC). Indeed one of the rules of evaluation of evidence enunciated by the Apex Court in the case of Buhari Vs. INEC & Ors. (2008) LPELR-814 (SC) is that the trial Court should give equal and compassionate consideration to the evidence of both parties in the evaluation exercise. This means that the judge should not project the case of one party over the other, but must consider the totality of the entire case before arriving at a decision that is just in the perception of an ordinary reasonable man. See Ajibulu Vs. Ajayi (2013) LPELR-21860 (SC) and Otito Vs. Odidi & Ors. (2010) LPELR-9070 (CA) among others. PER BALKISU BELLO ALIYU, J.C.A.

COURT PROCEEDING: FUNDAMENTAL HUMAN RIGHT: THE PRINCIPLE OF FAIR HEARING

The principle of fair hearing is built upon two pillars of justice represented by the Latin maxims audit alteram partem (hear the other side) and nemo judex in causa suo (no one should be a judge in his own case). These two pillars of justice are to the effect that both sides to a dispute must be afforded equal opportunity to present their side of the story and that no one is allowed to judge his own cause. Ejiwunmi J.S.C. speaking for the Apex Court in the case of Unibiz Nig. Ltd Vs. Commercial Bank Credit Lyonnais Ltd (2003) 6 NWLR (pt. 816) 402 or (2003) LPELR- 3380 (SC) at 29 A-B held as follows:
Fair hearing in the context of Section 33(1) of the Constitution of 1979 encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of justice-audit alteram partem and nemo judex in causa suo- as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so. Section 33(1) of the 1979 Constitution is the same with extant Section 36(1) of the 1999 Constitution of Nigeria (as amended), and it entrenches the twin pillars of natural justice referred to supra as a fundamental human right guaranteed to every person in Nigeria. This fundamental principle of fair hearing requires that a trial/proceedings in Courts must be conducted according to all applicable legal rules with a view to ensuring that justice is not only done to all parties, but it also appears to be so done. It is therefore a settled principle of law that any proceeding or decision of Court that breaches the principle of fair hearing amount to a total nullity and must be set aside. See Arije Vs. Arije & Ors. (2018) LPELR-44193 (SC) at page 19-2- A-F, Nwabueze V. The People of Lagos State (2018) LPELR-44113 (SC) and Victoria Island Properties Ltd & Ors. Vs. Asifo-Egbe & Ors. (2018) LPELR-43694 (CA).
It is also pertinent to state that whether any proceeding or trial was conducted in breach of any of the rules of fair hearing highlighted supra depends on the facts and circumstances of the case under consideration. In other words, breach of fair hearing principle must flow directly from the facts of the case, and the party alleging the breach has the burden to prove and show that the conduct of the proceeding led to a failure of justice. See Maikyo Vs. Itodo & Ors. (2007) LPELR-1821 (SC). and Eke Vs. Military Administrator of Imo State (2006) LPELR- 6162 (CA). PER BALKISU BELLO ALIYU, J.C.A.

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

MRS. JOSEPHINE UCHENNA OKOLIE APPELANT(S)

And

SIMON AMADI OKOLIE RESPONDENT(S)

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State (trial Court) delivered on the 23rd May, 2016 by Hon. Justice W. Animahun in respect of suit No. BD/23/13. The Respondent who was the claimant commenced the suit via a writ of summons accompanied with a statement of claim against the Appellant (as the defendant). The facts that gave rise to the suit are stated in the statement of claim; that the Respondent was allocated a property known as House No. 4, G-Close, 321 Road, 3rd Avenue, Festac Town Lagos by the Federal Housing Authority (FHA) through a letter of allocation dated 18th July 1977, which he relied upon at the trial. The Appellant and the Respondent were husband and wife married under the Matrimonial Act on the 7th September 1974 and living in Lagos then.

However, in 1980, the Respondent re-located from Lagos to Imo State leaving the said house in the possession of the Appellant, but he frequently sent money to her for payment of mortgage to the FHA in respect of the property. It was his case before the trial Court that the Appellant never made any contribution to the mortgage payment on the property, neither was the house jointly owned by them as a couple while they were married. He claimed that he purchased the form to participate in the ballot to bid for the house, which ballot was opened to all Nigerians by the FHA and he won. The Appellant also participated in the same balloting but she did not win.

On the 14th December, 2005, the High Court of Abia State dissolved the parties’ marriage, but the Appellant and the children of the marriage continued living and in the property. The Respondent/Claimant further asserted that the Appellant made several surreptitious efforts to take over the property in 2002 and in 2006 when she wrote to the FHA claiming to be the owner of the house and requesting to know the outstanding balance on the property. The FHA refused to supply the details and insisted that the Respondent must apply in person, being the lawful owner of the property. He said he paid all the outstanding money for the property and the FHA finally leased the house to him through a letter dated 16th January, 2003. The Respondent then instructed his lawyers to write to the Appellant to give him vacant possession of the house but she refused and lay claim to the house. The Respondent therefore filed this suit praying the trial Court for the following orders:
1. A DECLARATION that the Claimant is the owner and allotee of all that property lying, being and known as House 4, G Close, 321 Road, 3rd Avenue, Festac Town, Lagos State together with its appurtenance covered by Letter of Offer Ref: FHA/EST/1/TB/102 dated 18th July, 1977 to Mr. Simeon Amadi Okolie and Deed of Lease dated 18th December, 2003 between Federal Housing Authority and Mr. Simeon Amadi Okolie.
2. Possession of the property together with its appurtenance situate lying and known as House 4 G Close, 321 Road, 3rd Avenue, Festac Town, Lagos State together with its appurtenance covered by Letter of Offer Ref: FHA/EST/1/TB/102 dated 18th July, 1977 to Mr. Simeon Amadi Okolie and Deed of Lease dated 18th December, 2003 between Federal Housing Authority and Mr. Simeon Amadi Okolie.
3. N1,500, 000 (One Million Five Hundred Thousand Naira only per annum with effect from 14th December, 2005 until possession is given up for the use and occupation of the premises lying, being and given up for the use and occupation of the premises lying, being and known as House 4 G Close, 321 Road, 3rd Avenue, Festac Town, Lagos State together with its appurtenance covered by Letter of Offer Ref: FHA/EST/1/TB/102 dated 18th July, 1977 to Mr. Simeon Amadi Okolie and Deed of Lease dated 18th December, 2003 between Federal Housing Authority and Mr. Simeon Amadi Okolie.

In defence of the suit, the Appellant/Defendant filed her statement of defence (pages 80 to 92 of the record of appeal) in which she asserted that it was at her prompting that the Respondent applied for duplex instead of a three bedroom house because his salary alone could never be the basis to apply for a duplex. She claimed that as husband and wife, they mutually agreed to acquire the said house for their use and their immediate family. The name of the Respondent was only used as the allotee of the property because he was the head of the family, but as a couple, they pooled their salaries and resources together for the acquisition and perfection of the house and all sources of payment for the house were from their joined income. She asserted that she made payments for the mortgage over the years in respect of the house and borne the burden of maintenance, repairs and improvement of the house which she particularize in paragraph 45 of her statement of defence to include construction of borehole, improvement of boys’ quarters from 2 bedroom to 3-bedroom, and improving the building by constructing a gate and perimeter fence. She also averred that she singlehandedly paid all the tenement rates to Lagos State Government from 1986 to 2007 in respect of the house. Upon these facts, the Appellant asserted that there is a resulting trust in her favour in respect of the property as such the Respondent should desist from laying claim on it.

The Appellant also counter claimed for the same property as shown in pages 103 to 112 of the record of appeal and she relied on similar facts as stated in her statement of defence to pray the trial Court for the following three orders against the Respondent:
1. Possession and ownership of the property situate, lying and known as the duplex House 4, G Close, 321 Road, 3rd Avenue, Festac Town Lagos.
2. Perpetual injunction preventing the Defendant by counterclaim, his successors in title, legal representatives, agents and assignees from harassing, selling and/or alienating, claiming and trespassing on the said property.
3. An order of the Court directing that the counter claimant to use, live and occupy the House 4, G Close, 321 Road, 3rd Avenue, Festac Town, Lagos throughout her life time and for the said house to be inherited by the two (2) children of the Marriage, i.e. Chukwefumnanya Okolie and Ifeanyichukwu Okolie.

The Respondent filed a reply to the Appellant’s statement of defence and defence to her counter claim copied in pages 188 to 195 of the record of appeal. He denied that the house was jointly owned by the parties and asserted that the balloting was open to all Nigerians on personal basis, and the Appellant also purchased the balloting form which was just N5 then. He denied all the averments of the Appellant contained in her counter claim and urged the trial Court to dismiss same.

During the trial, each of the parties testified and tendered documents in support of their pleadings, at the end of which their respective counsel filed written addresses, leading to the matter to be adjourned for judgment. In the Court’s judgment, the learned trial Judge granted all the reliefs sought by the Respondent against the Appellant and thereby declared the Respondent as the sole owner of the house in contention. He dismissed the Appellant’s counter claim, and ordered her to vacate the house immediately and also to pay rent to the Respondent in the sum of N1.5 Million per annum from 17th March, 2007 until possession is given up to the Respondent.

Aggrieved with the judgment of the trial Court, the Appellant appealed to this Court via her notice of appeal initially filed on the 1st June, 2016, but amended and filed on the 15th March, 2019, deemed properly filed on the 23rd June, 2020. She relied on four (4) grounds to pray this Court to allow this appeal and to set aside the judgment of the trial Court. The Appellant’s brief of argument was settled by Ola Sobowale Esq., and filed on the 28th January, 2019, deemed properly filed on the 23rd June, 2020. The learned Appellant’s counsel proposed the following three issues for the determination of the appeal:
1. Whether the Appellant’s right to fair hearing was violated in the way the learned trial Judge handled the case at the lower Court when he amended the 3rd relief sought in the Respondent’s statement of claim without affording the parties opportunity to address the Court on the said amendment before granting the said 3rd relief as amended suo moto. (Grounds 2 & 3).
2. Whether or not having regard to the evidence led before the lower Court, the judgment of the lower Court is borne out of the case presented by the parties and whether by so doing, the decision of the lower Court occasioned a miscarriage of justice (Ground 1).
3. Whether or not the Appellant made out a case of joint ownership/joint contribution for the purchase and upgrade of the property in dispute to create a lien in her favor against the Respondent. (Ground 4).

In opposing the appeal, the Respondent filed the Respondent’s brief of argument on the 6th March, 2019, settled by A. O. S. Hodonu Esq. It was deemed properly filed on the 23rd June, 2020 and the learned counsel adopted the Appellant’s three issues for the determination of this appeal.

The Appellant’s reply brief was filed on the 5th April, 2019 and consequentially deemed properly filed on the 23rd June, 2020.

The appeal was heard on the 26th June, 2020 and the learned counsel on both sides argued the appeal in terms of the parties’ respective briefs of argument. The Appellant’s learned counsel urged the Court to allow the appeal and set aside the judgment of the trial Court and the Respondent’s counsel prayed that the appeal be dismissed and the judgment of the trial Court affirmed.

APPELLANT’S SUBMISSIONS
The learned Appellant’s counsel argued issue one from pages 7 to 11 of the Appellant’s brief. He referred us to relief 3 sought by the Respondent by his originating processes, to wit, annual rent on the house in dispute at N1.5 Million per annum, and the reply thereto contained in Appellant’s statement of defence in which she averred that the Respondent had in previous proceedings, in suit No. LD/127/2006 claimed the annual rental value of the house to be N600, 000 per annum and in another claim he stated the rent as N1, 000, 000 per annum. He posited that the Respondent (claimant) did not deny these facts in his reply to the statement of defence nor did he amend his 3rd relief. He submitted that it amounted to the learned trial Judge descending into the arena when he offered explanation (in page 383 of the record) for the relief 3 without recourse to the parties on the issue. He submitted that this action of the learned trial Judge breached the Appellant’s right to fair hearing thereby occasioning a miscarriage of justice against the Appellant, who has been ordered to pay a debt based on grounds that she was not given a chance to defend herself against. He relied for support on the cases of Ugboaja Vs. Akitoye-Sowemimo & Ors. (2008) LPELR-3315, FRN Vs. Saraki (2017) LPELR-43392 (CA), Asaboro & Anor. Vs. Pan Ocean Oil Corporation (Nig.) Ltd & Anor. (2017) LPELR-41558 (S) Edosaca Vs. Osakue & Ors. (2018) LPELR-44157 (CA).

On issue two, the learned Appellant’s counsel submitted that while the learned trial Judge acknowledged both the pleadings and the evidence made available during the trial, but he failed to fully consider and apply the appropriate principle of law to the pleadings and evidence in arriving at his decision. He argued that the case of the Appellant before the trial Court was that she and the Appellant jointly contributed money for the payment of mortgage of the house in dispute. She also argued that Exhibits 10A-H relied upon by the Respondent were forged documents, in view of discrepancies on them and the Appellant also testified that apart from the payments of mortgage, she also expended N1,352, 615.00, to upgrade and make the house habitable. That the receipts of all the payments she made, totaling N73, 431.06 out of the total mortgage consideration were in the name of the Respondent being the allotee of the house but she was in possession of the original of the receipts of the payment she made.

It was therefore argued that by virtue of her contribution to the payment of the mortgage and other expenses, the Appellant has acquired an equitable right over the said property. He referred the Court to the averments of the Appellant in her statement of claim and counter claim contained in pages 95 and 366 of the record of appeal, where the facts of her right were pleaded and that same were not controverted by the Respondent. He contended that the learned trial Judge failed to give any consideration to the uncontroverted pleadings and evidence and the effect in law on same before arriving at his decision. Particularly, the failure of the Respondent to cross examine the Appellant on her claim that he expressly authorized the FHA to give the possession of the house to the Appellant and on the money she expended on the property. He submitted also that despite acknowledging the documentary Exhibits 11 to 25 tendered and relied by the Appellant in support of her case, the learned trial Judge failed to consider, comment, or act on them in reaching his decision. He submitted that this failure on the part of the learned trial Judge to consider and evaluate evidence placed before him led to injustice. He urged the Court to resolve issue two in favour of the Appellant, relying on the cases of Abubakar & Ors. Vs. Nasamu & Ors. (2011) LPELR-1831 (SC) Nwankwoala Vs. FRN (2018) LPELR-43891 (SC), Udemba & Ors. Vs. Owerri Municipal L. G. (2018) LPELR-43862, Pius Vs. State (2015) LPELR-24446 (SC), Eze Vs. State (2018) LPELR-43715 (SC) and Ugwuegede Vs. Asadu & Ors. (2018) LPELR-43717 (SC) and others in support.

On issue three, learned counsel submitted, relying on the case of Odelola V. Odelola & Ors. (2016) LPELR-42222 (CA), that the Appellant led credible and uncontroverted documentary evidence to prove that she made a total contribution of N73,431.06 for the mortgage property, which entitled her to an equitable right, but that the learned trial judge only acknowledged the fact that the allocation was made in Respondent’s name, and failed to consider the evidence led by the Appellant. He contended that the learned trial Judge engaged in doing the case for the Respondent to the detriment of the Appellant. Learned Counsel relied on the case of Yadado & Anor. Vs. Itace (2018) LPELR-43866 (CA) in urging us to resolve issue three in favour of the Appellant, and to set aside the judgment of the trial Court upon his argument in support of the issues for determination.

RESPONDENT’S SUBMISSIONS
The learned counsel for the Respondent argued issues one from paragraph 6.1 to 6.4 of the Respondent’s brief. He submitted that contrary to the argument of the Appellant under this issue, there is nowhere in the judgment of the trial Court where relief 3 was amended. He quoted copiously from the judgment of the trial Court in page 383 of the record of appeal and submitted that the learned trial Judge was right and his judgment was impeccable and constitutes an answer to the complaint of the Appellant under her issue one. He further argued that, like the learned trial Judge found in his judgment, annual rental value is not static, but varies from year to year. He therefore submitted that the argument of the Appellant under this issue is baseless and the cases cited are irrelevant.

The learned Respondent’s counsel argued issues 2 and 3 together. On issue two, he drew our attention to the Appellant’s argument in paragraph 3.2.4 of her brief wherein she stated that the structure of her case is that she jointly contributed towards mortgage payments of the house in dispute and that Exhibits 10A – H, the Respondent relied upon before the trial Court were forged. On issue three, he posited that the grouse of the Appellant is that she made a case of joint ownership of the property through joint contribution for the purchase and upgrade of the house. But in contrast to the case of joint ownership she is making in this appeal, the three reliefs she sought before the trial Court were for sole ownership of the house. He argued that it means that in this appeal, the Appellant has abandoned her counter claim of sole ownership and decided to hang on joint ownership of the property in issue. He submitted that a Court is bound by the reliefs sought by a party and it cannot give to a party a remedy over and above what he asks for. He relied on the cases FAAN & Ors. Vs. Greenstone Ltd& Anor. (2009) 10 NWLR (pt. 1150) 624 at 629 and Chidume Ozo Anieke Vs. Nnaji Okolie & Ors. (2009) 9 NWLR (pt. 1147) 633 for support.

It was further submitted for the Respondent that the learned trial Judge duly considered the evidence led by both parties, as shown on pages 380 to 382 of the record of appeal before holding that the allocation of the house in issue was made in the name of the Respondent. He argued that the learned trial Judge specifically found that the Appellant indeed purchased a form to participate in the ballot and actually participated, but she did not win. That the learned trial Judge supported his decision on the failure of the Appellant to contradict the Respondent’s pleading in paragraph 23 of his statement of claim wherein he stated that she participated in the ballot to purchase a house of her own but she did not win, with Order 5 (1) and (2) of the High Court of Lagos State Civil Procedure Rules 2012. It was the learned counsel further submissions that the law is trite that documentary evidence cannot be varied by oral evidence. He relied on Section 128 of the Evidence Act 2011 and the case of Anyanwu & Ors. Vs. Uzowuaka & Ors. (2009) 13 NWLR (pt. 1159) 445 at 451 for support.

He also argued that in this case, all the documents tendered by the parties bear the name of the Respondent and there was no admissible evidence led to show that the Appellant made any contribution to the acquisition and development of the property in issue. He submitted that the Appellant cannot approbate and reprobate at the same time, by claiming sole ownership in one breath and making a case of joint ownership in another breath. Conclusively, he submitted that this appeal is unmeritorious and should be dismissed.

APPELLANT’S REPLY BRIEF
By way of reply on points of law to the Respondent’s argument on issue one, learned Appellant’s counsel insisted that the holding of the learned trial Judge in page 383 of the record regarding the Respondent’s relief three amounted to amending the relief suo moto. Further that by limiting the award of the Respondent’s claim of rent (which was from 21st March, 2007 till possession is yielded to the Respondent) on the ground that the “14th December, 2005 to 21st March, 2007 fall outside the limitation period”, the learned trial Judge suo moto raised the issue of whether or not relief 3 claimed by the Respondent was statute barred. He also considered (and made a finding) on the said issue without inviting the parties to address the Court thereon. He urged the Court to set aside the finding of the trial Court on relief 3 in line with the principle of law settled in the cases of Edosaca Vs. Osakue & Ors. (2018) LPELR- 44157 (CA) and Egbuchu Vs. Continental Merchant Bank Plc & Ors. (2016) LPELR-40053 (SC).

In response to the argument of the Respondent on issues 2 and 3, the learned Appellant’s counsel submitted that the Respondent did not join issues with the Appellant on the latter’s argument regarding inconsistencies of the Respondent’s pleadings on annual rental value of the property, on the failure of the learned trial Judge to consider discrepancies on the Respondent’s Exhibits 10A-H, and failure to make a finding on the Appellant’s Exhibits 11 to 25 among other issues argued. He relied on the case of Fulani V. State (2018) LPELR-45195 (SC), to submit that the Respondent is deemed to have conceded the Appellant’s argument on the said issues.

RESOLUTION
The Respondent having adopted the issues proposed by the Appellant means that they are ad idem on the issues in controversy to be determined in the appeal. I agree with them and will be guided by the three issues proposed by the Appellant in determining the appeal. However, I agree with the Respondent’s learned counsel that issues 2 and 3 are the same being complaints against the evaluation of evidence of the learned trial Judge. I will determine the two issues together in order to avoid unnecessary repetition.

ISSUE ONE
This issue distilled from grounds 2 and 3 of appeal is whether the Appellant’s right to fair hearing was violated in the way the learned trial Judge handled the case at the lower Court when he amended the 3rd relief sought in the Respondent’s statement of claim without affording the parties opportunity to address the Court on the said amendment before granting the said 3rd relief against the Appellant. The principle of fair hearing is built upon two pillars of justice represented by the Latin maxims audit alteram partem (hear the other side) and nemo judex in causa suo (no one should be a judge in his own case). These two pillars of justice are to the effect that both sides to a dispute must be afforded equal opportunity to present their side of the story and that no one is allowed to judge his own cause. Ejiwunmi J.S.C. speaking for the Apex Court in the case of Unibiz Nig. Ltd Vs. Commercial Bank Credit Lyonnais Ltd (2003) 6 NWLR (pt. 816) 402 or (2003) LPELR- 3380 (SC) at 29 A-B held as follows:
Fair hearing in the context of Section 33(1) of the Constitution of 1979 encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of justice-audit alteram partem and nemo judex in causa suo- as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so. Section 33(1) of the 1979 Constitution is the same with extant Section 36(1) of the 1999 Constitution of Nigeria (as amended), and it entrenches the twin pillars of natural justice referred to supra as a fundamental human right guaranteed to every person in Nigeria. This fundamental principle of fair hearing requires that a trial/proceedings in Courts must be conducted according to all applicable legal rules with a view to ensuring that justice is not only done to all parties, but it also appears to be so done. It is therefore a settled principle of law that any proceeding or decision of Court that breaches the principle of fair hearing amount to a total nullity and must be set aside. See Arije Vs. Arije & Ors. (2018) LPELR-44193 (SC) at page 19-2- A-F, Nwabueze V. The People of Lagos State (2018) LPELR-44113 (SC) and Victoria Island Properties Ltd & Ors. Vs. Asifo-Egbe & Ors. (2018) LPELR-43694 (CA).
It is also pertinent to state that whether any proceeding or trial was conducted in breach of any of the rules of fair hearing highlighted supra depends on the facts and circumstances of the case under consideration. In other words, breach of fair hearing principle must flow directly from the facts of the case, and the party alleging the breach has the burden to prove and show that the conduct of the proceeding led to a failure of justice. See Maikyo Vs. Itodo & Ors. (2007) LPELR-1821 (SC). and Eke Vs. Military Administrator of Imo State (2006) LPELR- 6162 (CA).

As stated earlier, the complaint of the Appellant under this issue is that the learned trial Judge suo motu amended the 3rd relief sought by the Respondent and then granted it against the Appellant without calling on the parties to address it on the amendment. If this complaint is found to be correct, it will invalidate the entire proceedings and the decision reached therefrom.

In order to determine this complaint, I will examine the third relief sought by the Respondent in this case. It is contained in the writ of summons located in page 2 of the record of appeal and in the statement of claim in page 13 to 14 thus:
N1,500,000. 00 (One Million Five Hundred Thousand Naira Only) per annum with effect from 14th December, 2005 until possession is given up for the use and occupation of the premises lying, being and known as House 4, G Close, 321 Road, 3rd Avenue, Festac Town Lagos State together with its appurtenance covered by Letter of Offer Ref: FHA/EST/1/TB/102 dated 18th July 1977 to Mr. Simeon Amadi Okolie and Deed of Lease dated 18th December, 2003 Between Federal Housing Authority and Mr. Simeon Amadi Okolie. Annual rental value is N1, 500, 000. 00 (One Million Five Hundred Thousand Naira only).

The Appellant in denying the claim in the above relief three pleaded and testified in paragraph 49 of her statement on oath (page 102 of the record of appeal) that the Respondent in another suit No: LD/1271/2006 claimed in his sworn statement on oath dated 31st October, 2006 that the annual rental value of the property as N600,000 per annum with effect from 14th December, 2005. Again by another letter dated 23rd January, 2013, filed in the same trial Court, the Respondent stated the rental value of the property to be N1,000,000. 00 (One Million Naira only), with effect from the same date of 14th December, 2005; while in this case, his claimed in relief 3 quoted supra, for the annual rental value is N1.5 Million, which contradicted his earlier claims for the same date and on the same property.

The reply to the statement of defence and defence to counter claim filed by the Respondent is located in pages 188 to 194 of the record. The reply to the statement of defence and defence to counter claim was supported by the Respondent’s additional statement on oath as his evidence, contained from page 195 to 199 of the record of appeal. I have carefully gone through these processes, I did not find any denial to the Appellant’s assertion in paragraph 49 of her statement of defence regarding the various sums claimed by the Respondent as the annual rental value for the property in issue. It is therefore correct that the facts pleaded and evidence led by the Appellant regarding the Respondent’s claim of different annual rental values of the property for the same period of 14th December, 2005 were neither denied nor contradicted by the Respondent before the trial Court.

In his judgment, the learned trial Judge considered this complaint of the Appellant in page 383 of the record when he held that:
“The Claimant pleaded N1.5 Million (One Million, Five Hundred Thousand Naira) as the annual rental value of the land in dispute. In controverting the claim, the Defendant says that the claim contradict his earlier claim in suit No: LD/1271/2006 where he states the amount as N600,000 (Six Hundred Thousand Naira) and in a letter dated 14th day of December, 2005 where the figure was said to be N1Million (One Million Naira).”

It is clear that it was in the course of the narration and evaluation of the pleadings and evidence before the trial Court that the learned trial Judge made the above quoted findings upon which he reached the following conclusion, in the same page 383 of the record of appeal:
It appeared that the counsel thinks that the amount must be permanently fixed. I do not think so. As the description goes (annual rental value), it is determined by the annual market value of a property. I therefore hold that this claim was not properly controverted. There is therefore no reason why same should not be granted…. The sum of N1.5Million (One Million Five Hundred Thousand Naira) per annum is therefore awarded in favour of the Claimant, from the 21st day of March, 2007 until possession of the aforementioned property is yielded to the Claimant. I limit the award to the above date because the claims from 14th December, 2005 – 21st Day of March, 2007 fall outside the limitation period of six years.

The above decision of the learned trial Judge was reached upon his evaluation of the pleadings and evidence of the parties and the conclusion he reached, rather than an amendment of the relief sought. The learned trial Judge did not amend the pleading of the Respondent but he simply granted it, despite the fact that the Respondent had presented conflicting sums as annual rental value of the property in issue, which fact His Lordship also acknowledged. It is noteworthy that the learned trial Judge actually awarded what the Respondent sought in relief three and no more. The only difference is that the annual rent the Appellant was ordered to pay the Respondent was reduced from the 14th December, 2005 (claimed by the Respondent) to be from 21st March, 2007 till the possession is given up. This period is less than what the Respondent claimed as annual rental value for the property. Interestingly, this reduction of the period within which the Appellant was ordered to pay annual rental value of the property actually favours the Appellant. Be that as it may, it is a trite law that a Court is not bound to grant the exact claim of the plaintiff. Where circumstances of a case warrant it, the Court can and has the power to award less but never more than what the party claims. See Nwagu Vs. Fadipe (2012) LPELR-7966 (CA) and Lawal & Anor. Vs. Fadipe (2012) LPELR-7966 (CA).

The Appellant also contended under this issue that the learned trial Judge descended into the arena of conflict and “tinkered” with relief 3 claimed by the Respondent when he (learned trial Judge) offered explanation why he limited the date for the Appellant to pay the annual rent value to the Respondent. This complaint is directed at the learned trial Judge’s holding that; “I limit the award to the above date because the claims from 14th December, 2005 – 21st Day of March, 2007 fall outside the limitation period of six years.” Learned Appellant’s counsel argued in the Appellant’s reply brief that by the above holding, the learned trial Judge suo motu raised the issue of whether or not the third relief sought by the Respondent was statute barred or not and therefore liable to be struck out. This contention of the learned Appellant’s counsel has no basis because the clear words used by the learned trial Judge to grant 3rd relief sought by the Respondent was in view of the limitation Law. And since the trial Court is the High Court of Lagos State, the learned trial Judge could only be referring or taking judicial notice of the Lagos State Limitation Law to reduce the period for the payment of the annual rental value on the property to the Respondent. The learned trial Judge is entitled to take judicial notice of any law and enactment in reaching his decision regardless of pleading or evidence. See Section 122(2)(a) of the Evidence Act 2011 which provides that:
The Court shall take judicial notice of-
a. all laws, enactments and any subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria.
Sub-section (1) of Section 122 provides that the facts, which the Court shall take judicial notice of need not be proved.

From all I have stated supra, I am of the firm view that the learned trial Judge did not amend the 3rd relief sought by the Respondent against the Appellant. He simply evaluated the evidence and came to the decision to grant same. Whether or not he was right to do so is what will be determined under issues 2 and 3. But issue one is resolved against the Appellant.

ISSUES 2 & 3
In issue 2, the Appellant questions the correctness of the decision of the trial Court considering the evidence led by the parties, while the crux of issue 3 is whether the Appellant made out a case of joint ownership of the property in dispute that will create a lien on same in her favour.

The crux of the Appellant’s issues two and three under consideration is that the learned trial Judge did not consider all the relevant evidence presented by the Appellant in arriving at his decision. He enumerated these pieces of evidence led by the Appellant, which he contended the learned trial Judge failed to consider, even though he (learned trial Judge) acknowledged these various pieces of evidence. The Appellant’s evidence relating to Appellant’s contribution for the payment of the mortgage for the property, the Appellant’s allegations that the Respondent’s Exhibits 10A-H mortgage payment receipts were all forged, the evidence that the Appellant expended N1, 352, 615 to upgrade and make the property habitable, and the evidence that the Appellant never sent her any money for the payment of mortgage to the FHA.

It is noteworthy that the parties in this case, particularly, the Respondent who sought declaratory reliefs relied on documentary evidence to support his case. These documents are listed, front loaded and copied in the record of appeal in page 22 to 65. The letter of offer written to the Respondent offering him the property in dispute is contained in pages 23 to 26 of the record and admitted during the trial as Exhibit 1. Then there is deed of lease between the Respondent and the FHA dated 18th December, 2003 copied in page 31 of the record and admitted in evidence as Exhibit 4. By this document, the property in dispute was leased to the Respondent for 98 years by the FHA from 1st January, 1982. The receipts of payments made to the FHA in respect of the properties were admitted in evidence as Exhibits 10 A-H respectively and they were all in the name of the Respondent as the owner of the property. And finally there is letter of FHA dated 14th February, 2007 written to the lawyers of the Appellant informing the Appellant that there was nothing in their record suggesting any joint ownership either legal or equitable with any person including the Appellant. As such, the Authority stated that it is in no position to give effect or be bound by any caveat given by the Appellant and that the authority will continue to deal only with the Respondent as the original allotee of the property.

By these documentary exhibits, the Respondent has established, at least prima facie, being the owner of the leasehold of the property. This is enough to shift the burden to the Appellant to prove her entitlement to a lien in the property as she claimed, since she did not dispute that the property was allocated to the Respondent. The question now arises as to what evidence did she proffer before the trial Court to discharge this burden.

She also tendered and relied on receipts of payments to FHA which she claimed to have been made on the property as shown in Exhibit 14. These are also frontloaded and copied in pages 124 to 183. They comprised of letter of application for employment dated 10th October, 1979 addressed to the Permanent Secretary of Ministry of Establishment Enugu, a hand written letter dated 20th June, 1980, and another letter on the letter headed paper of Ugogwu Secondary Commercial School dated 6th January, 1981 addressed to the General Manager of FHA signed by S. A. Okolie in which it was stated that the FHA should hand over the disputed property to the Appellant being his wife. However, in view of the FHA’s letter to the lawyers of the Appellant, dated 2007, the authority did not accede to the request in this exhibit. The rest of the documents relied upon by the Appellant are receipts of payments for the property all issued in the name of the Respondent.

The record shows that the learned trial Judge extensively reviewed and considered the documents tendered by both parties before him. He started by correctly finding that there is no dispute on the fact that the property was allocated to the Respondent and as such, the burden of proving joint ownership or any right of lien in respect of the properties shifted to the Appellant as the defendant. He also observed that the receipts of payments in 1981 for the mortgage, which the Appellant claimed she paid, have columns for the name of payee. He observed that:
These are the ones that have columns for the name of the payee. If the Defendant paid for them, as she claims, I expect her name to be in the columns. They created an opportunity for the Defendant to reflect her contribution to the purchase of the land in dispute. This is particularly so because of her allegation that the Claimant contracted a customary law marriage with another woman in 1977 and has his first child through her in the same year. Bearing the agreement on joint ownership in mind and being aware that the Claimant has taken a second wife, I do not expect the Defendant to make any payment in the name of the Claimant as payee.

I cannot fault the finding of the trial Court which is clearly supported by documentary evidence on record, which I have also carefully consider. I agree totally with the learned trial Judge that the Respondent made a very strong case of being the owner of the disputed property and against joint ownership of same, particularly supported by the FHA letter of 14th February, 2007 and the deed of lease. The trite position of the law is that a document tendered in Court is the best evidence of the contents of such document, and oral evidence cannot be allowed to discredit or contradict the content thereof except where fraud is pleaded. See Section 128 of the Evidence Act, 2011 and the cases ofA. G. of Bendel State Vs. UBA Ltd (1986) 4 NWLR (pt. 37) 5 and Ambursa Vs. Ahmed & Ors. (2018) LPELR-46419 (CA).

The Appellant did not prove or place before the trial Court documents that will prove that the property was jointly owned between the parties. The fact that they were married alone without more does not prove this claim, especially in view of the evidence of dissolution of their marriage. In fact, it is in the proceedings for the dissolution of their marriage that the settlement of properties ought to be canvasses but apparently it was not.

It was also contended by the Appellant that the learned trial Judge did not consider the fact that the Appellant pleaded the Exhibits 10A-H relied upon by the Respondent as evidence of payment of mortgage were forged, and the money she expended to make improvement on the properties. First of all, forgery is a criminal offence and the Appellant who alleges that the Respondent forged the receipts must plead same with particulars of the forgery and then at the trial prove that allegation beyond reasonable doubt. See Section 135(1) and (2) of the Evidence Act 2011, which provides that:
(1) – If the commission of a crime by a party to any proceedings is directly in issue, civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime is subject to Section 139 of the this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
See also Eya Vs. Olopade (2011) LPELR- 1184 (SC). the Appellant did not plead this forgery and/or its particulars. The learned counsel did not point out where the Appellant pleaded this allegation or the evidence led in proof of same. I have not found any. The argument goes to no issue at all and it is disregarded.

Similarly, apart from pleading the cost of renovation of the house, no document of any kind was pleaded or presented in proof of the alleged N1,352, 615 claimed by the Appellant. Again none was pointed out to us from the record by the learned counsel. This allegation remained unproven as well. It is manifestly clear that the Appellant failed to prove her claim of joint ownership or entitlement to any lien in the property.

Another grouse of the Appellant is in respect of relief 3 granted by the learned trial Judge in favour of the Respondent ordering her to pay the sum of N1.5Million as annual rental value on the property she occupied from 2005 till possession is given to the Respondent. I have stated the pleadings of the Appellant in paragraph 51 (a) and (b) of the statement of defence (page 91 of the record) supported by paragraph 49 (a) and (b) of her statement on oath/evidence in chief, (page 102 of the record of appeal) in my determination of issue one supra. She pleaded and testified that:
In SUIT NO: LD/1271/2006: SIMON AMADI OKOLIE VS. JOSEPHINE UCHENNA OKOLIE the Claimant at paragraph 17(b) of his statement on oath sworn on the 31st of October 2006 in said case stated on oath:
“17. Finally, my Lord, I pray the Honourable Court to grant my claims as follows:
b) N600, 000 (Six Hundred Thousand Naira only) per annum with effect from 14th December, 2005 until possession is given up for the use and occupation of the premises. Annual rental value is N600, 000. 00 (Six Hundred Thousand Naira only).”
b. “The Claimant’s counsel pursuant to the provisions of the Rules of this Honourable Court by a letter dated 23rd January, 2013 expressly stated inter alia:
“Our Client’s claims against you are as follows:
N1, 000, 000. 00 (One Million Naira Only) per annum (as annual rental value) with effect from 14th December, 2005, until possession is given for the use and occupation of the premises.” (Underlining supplied).

Also under issue one, I found that the Respondent did not deny or controvert the allegation of the Appellant regarding his contradictory claim of different sums of money under oath quoted supra. It is an elementary rule of pleadings that facts pleaded and not denied by the opponent party are deemed admitted and regarded in law to be true and correct, requiring no proof. See Section 123 of the Evidence Act 2011 and the cases of Hassan V. Obodoeze & Ors. (2012) LPELR-14355 (CA) and Vitachem (Nig.) Ltd Vs. DSM Sinochem Indi Private Ltd (2017) LPELR- 43199 (CA).
It means that the Respondent has admitted contradictory claims of three different annual rental values on the property in dispute twice under oath, and in a letter filed before the Court. I also reproduced the acknowledgment of the learned trial Judge of the same complaint of the Appellant on this issue. Most unfortunately, the learned trial Judge did not make a finding on this contradictory evidence clearly placed and deemed admitted before him. In the case of Dada & Anor. Vs. Ayeni & Ors. (2014) LPELR- 41082, Ugo, JCA held that:
“It does not require citation of authorities to know that when witnesses to a party give inconsistent and contradictory evidence on material facts in a case, the Court saddled with sifting truth from falsehood must reject not only their evidence but even the case of the party based on such evidence. If authority is needed, see Mogaji v. Cadbury (Nig.) Ltd (1985) 2 NWLR (PT 7) 393.”

Indeed in this appeal, the learned trial Judge fell into error when he chose to award the N1.5million claimed in the suit and ignored the two other sums of N600,000 and N1Million Naira upon the reasoning unsupported by pleadings and evidence that annual rental value varies. The award of the relief three in this circumstance is perverse. The Respondent did not prove the annual rental value of the property in dispute and he was not entitled to the award/grant of that relief.

In the final analysis, issues 2 and 3 are resolved against the Appellant save for the claim of N1.5Million as annual rental value for the property, which has not been proved. It means that the Appeal partly succeeds only as regard relief three claimed by the Respondent. The Judgment of the trial Court is affirmed. Parties shall bear their costs of prosecuting this appeal.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft, the succinct leading judgment, delivered by my learned brother Balkisu Bello Aliyu, JCA. I am in full agreement with the articulate reasoning and conclusion in it. I too allow the appeal in part, in the manner decreed in the erudite leading judgment.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read in draft the leading judgment of my learned brother, Balkisu Bello Aliyu, JCA, which has just been delivered.

Having also read the Records of Appeal and the briefs of argument flied arid exchanged by the parties, I find that the manner of resolution of the crucial issues in the appeal, as articulated in the leading judgment, are in accord with my views.

Accordingly, I entirely agree with, and do not desire to add to the reasoning and conclusion in the leading judgment. I adopt the same as mine and equally allow the appeal in part, and on the same terms as set out in the leading judgment. I abide by the order as to costs.

Appearances:

OLA SOBOWALE ESQ. For Appellant(s)

A.O. S. HODONU ESQ. For Respondent(s)