OLATUNBOSUN ODEJIDE v. MADAM OLAIDE FAGBO(2003)

OLATUNBOSUN ODEJIDE v. MADAM OLAIDE FAGBO

(2003)LCN/1438(CA)

In The Court of Appeal of Nigeria

On Thursday, the 26th day of June, 2003

CA/I/133/97

RATIO

EVIDENCE: EVALUATION OF EVIDENCE

“A trial court evaluating the evidence before him has been adjudged to be possessed of power in making his conclusion when he has decided according to the Evidence Act to receive or reject evidence to place such evidence on an imaginary scale. See Mogaji v. Odofin (1978) 4 SC 91. This decision is made not so much on the quantum or number of witnesses called, but on the probative value and the credibility of the evidence submitted at the trial. In the instant appeal, the respondent averred facts on the number of blocks, the value of the blocks, sands and gravels on the land on which she, the plaintiff claim the defendant/appellant built her land.” PER MURITALA AREMU OKUNOLA, J.C.A.

EVIDENCE: WHETHER ORAL EVIDENCE IS ADMISSIBLE

“What is more the judgment is vitiated by the supply by the court of evidence of the market value on which the judgment of the court is based. A receipt in writing or a document is the best evidence in proof of its content. No oral evidence is generally admissible to vary or contradict a written document, unless such evidence is pleaded and proved by evidence of the parties. See Att.-General, Bendel State v. U.B.A. Ltd. (1986) 4 NWLR (Pt.37) at p.547. For the above reasons, I set aside the order of the court below of a judgment in the sum of N59,000, and substitute same with an order for the sum of N5,730. being the sum proved before the court. See Ordia v. Piedmont (Nig.) Ltd. (1995) 2 NWLR (Pt. 379) 516. In the event I resolve the said issues 1 and 3 in favour of the appellant.” PER MURITALA AREMU OKUNOLA, J.C.A.

JUSTICES

MURITALA AREMU OKUNOLA Justice of The Court of Appeal of Nigeria

SAKA ADEYEMI IBIYEYE Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

Between

1.OLATUNBOSUN ODEJIDE Appellant(s)

AND

MADAM OLAIDE FAGBO Respondent(s)

MURITALA AREMU OKUNOLA, J.C.A. (Delivering the Leading Judgment):

This is an appeal by the defendant/appellant against the judgment of Oye Iyanda, J., sitting at the High Court of Osun State, Ile-Ife in suit No. HIF/171/92 which was delivered on the 4th of December, 1996. The facts of this case briefly put were as follows:

The plaintiff/respondent’s claim against the defendant/appellant was for N122,940.00 special damages for alleged conversion of her building materials to wit: sands, gravels and blocks (see pages 11-12 of the record of proceedings hereinafter referred to as the record).

The plaintiff claimed that the said building materials were deposited on her land between 1981-1984. She claimed further that the land measuring 120 ft x 100 ft was bought in 1976 from her vendor, one Kamoru Ayoade. She claimed further that she lost her title to this land via the Ile-Ife High Court judgment, (exhibit D2), in 1986 in which her vendor, Kamoru Ayoade was the defendant and one Oba Famodun, the Owa of Igbajo was the plaintiff in which judgment her vendor lost his title to the land. The defendant/appellant, in 1988, bought six plots of land from Oba Famodun, the Owa of 1gbajo.

The latter gave him exhibit D2, a copy of the Ile-Ife High Court judgment in his favour as evidence of ownership and exhibit D1, as purchase receipt (see pages 24-25 and 43-63 of the record). The defendant/appellant denied ever converting the plaintiff/respondent’s building materials and that he bought all the materials he used to erect his fence on the land. Issues were thus joined by the parties. Plaintiff/respondent called 3 witnesses and gave evidence (see pages 30, 31, 32, 33, 35 and 36 of the record). The defendant did not call any witness but gave evidence for himself (see pages 36-38 of the record). Judgment was entered for the plaintiff/respondent in the sum of N59,000 being the current market value of her blocks and N1,000 cost was awarded in her favour.

Dissatisfied with this judgment, the defendant/appellant filed two different notices of appeal dated 12/12/96 and 6/1/97 respectively (vide pages 64 and 66-68 of the records) to this Honourable Court.
From pages 66-68 of the records, the defendant/appellant (hereinafter referred to as the appellant) filed 3 grounds of appeal.

From the grounds of appeal the appellant herein formulated the following five issues for determination in this appeal, viz:
“1. Whether the award of N59,000 special damages against the defendant for conversion is supported by evidence on the record.
2. Whether there are material contradictions in evidence adduced by the plaintiff and her witnesses, and if yes, whether they rendered the evidence unreliable.
3. Whether the learned trial Judge wrongfully received in evidence, exhibits P2, P3, P4 and P5 which are purchase receipts of some blocks when the same were not specifically pleaded.
4. Whether the learned trial Judge wrongfully rejected purchase receipt of certain building materials dated 4/8/99, 28/8/88 and 30/8/88 as exhibits, and if yes, whether the refusal materially influenced the judgment against the plaintiff.
5. Whether the plaintiff/respondent has discharged the burden of proof from the totality of the evidence adduced by her and her witnesses.”

The respondent’s counsel also formulated three issues from the grounds of appeal which but for framing and the language used boil down to the five issues raised by the appellant in the appellant’s brief.

These are:
“1. Whether it was a fact that the plaintiff/respondent deposited some building materials on the site as found by the learned trial Judge.
2. Whether the trial Judge properly evaluated the evidence in support of the plaintiff/respondent’s claim.
3. Whether the exhibits tendered by either side were properly received in law and or properly rejected in law.”

For purposes of this judgment, I shall use the appellant’s five issues which have incorporated the three issues in the plaintiff/respondent’s (hereinafter referred to as the respondent) brief. Be that as it may, both learned counsel to the parties have filed their briefs of argument on behalf of their respective clients. On 14/4/03, when this appeal came before us for hearing, learned counsel to the appellant, Mr. A. L. Akintola informed the court that the case was slated for that day and the respondent’s counsel, who had filed herein the respondent’s brief, had been duly served with the hearing notice for that date, is absent. He urged the court to invoke the provision of Order 6 rule 9(5) of the Court of Appeal Rules to hear the appeal.

Learned counsel thereafter adopted and relied on the appellant’s brief filed herein on 23/12/97. He urged the court to allow the appeal and set aside the judgment of the lower court. After his submission, the court observed that the respondent’s counsel was personally served on 4/3/03 with the hearing notice to appear in court on that day (i.e. 14/4/03) and he was absent. Having filed the respondent’s brief, the court invoked the provision of Order 6 rule 9(5) of the Court of Appeal Rules to hold that the said respondent’s brief filed herein on 10/3/98 be deemed as having been adopted and the appeal deemed as having been duly argued.

I have considered the submissions of both learned counsel to the parties in this appeal as contained in their respective briefs of argument vis-a-vis the records and the prevailing law. I shall now give my views on them. In this regard, I shall take issues 1 & 3 together to be followed by issues 2 & 5 and conclude with issue 4 as contained in the appellant’s brief. On issues 1 & 3, which centre on whether the award of N59,000 special damages against the defendant for conversion is supported by evidence on the record and whether the trial Judge wrongfully received in evidence exhibits P2, P3, P4 & P5 which were purchase receipts of some blocks, when the same were not specifically pleaded, both learned counsel to the parties addressed us copiously in their respective briefs. Learned counsel to the appellant on issues 1 & 3 submitted by way of summary on paragraph 5.0 on page 12 of the appellant’s brief and urged the court to hold that the award of N59,000.00 could not be supported by evidence. The available evidence exhibits P2, P3, P4 & P5 are not direct and not specifically pleaded.

Learned counsel urged the court to expunge them from the records as they had failed to prove the actual number of blocks that were allegedly converted by the appellant. Learned counsel urged the court to set aside the award of N59,000.00 special damages and N1,000.00 cost awarded against the appellant.

By way of reply, learned counsel to the respondent by way of summary on page 7 of the respondent’s brief on the admissibility of exhibits P2, P3, P4 & P5 submitted that the learned trial Judge was right when he stated at page 59 of the record that:
“But what I accept as proof of the number of blocks on the land is the total number of blocks written in the four receipts of purchase of blocks exhibits P2-P5 tendered by the plaintiff in her evidence on oath before this court at page 60, lines 4-5 of the record of the proceedings in this appeal, the trial Judge stated that but I must stress that although the plaintiff claim for blocks, sands and gravel, she tendered receipts for blocks only and this is what I can act upon.”

The pertinent question to consider here is whether the learned trial court was right to have received in evidence and acted upon exhibits P2-P5 as he has indicated in his judgment supra. From the state of pleadings reviewed supra, the plaintiff/respondent had not specifically pleaded exhibits P2-P5.

The poser here is ‘whether the award of N59,000.00 special damages could stand in the absence of any evidence save exhibits P2-P5 supra which was not specifically pleaded.

This poser had come for consideration and determination by the apex court in this country to the effect that special damages must be specifically proved. Since parties are bound by their pleadings, evidence given on matters not pleaded goes to no issue. The law is that, a plaintiff must call evidence to support his pleadings, and evidence which is in fact adduced to be contrary to his pleadings should never be admitted. See National Investment & Properties Co. Ltd. v. Thompson Organisations Ltd. (1969) 1 NMLR 99 p.104; See also Emegokwue v. Okadigbo (1973) 4 SC 113; Shell BP Ltd. v. Abedi & 4 Ors. (1974) 1 All NLR 1, 13 & 16; Enang v. Adu (1981) 11-12 SC 25; Ibanga v. Usanga (1982) 5 SC 103; Amobi v. Amobi (1996) 8 NWLR (Pt. 469) 638, (1996) 9-10 SCNJ 207, 224-225.

From the foregoing authorities, I hold that since exhibits P2, P3, P4 & P5 were not pleaded they should be expunged from the records and I so hold. Apart from the fact that they were not pleaded, there was no evidence on the record to show that they represent the value of the blocks at the time of conversion and yet the learned trial Judge held:
“But I must stress that although the plaintiff claim for blocks sands and gravel, she tendered receipts for blocks only (i.e. exhs. P2-P5) and this is what I can act upon.” (Italics mine for emphasis)

The above listed authorities show that the learned trial Judge was in error to have acted upon exhs. P2-P5 for the award of N59,000.00 special damages. What is more P2-P5 did not sufficiently prove the number of the alleged converted blocks. For instance, the number of 9 inch blocks deposited on the land was 7,500 (see pages 11-12 of the record). But exhibits P2-P3 only showed 3,500 9 inch blocks. Exhibit P4 shows 2,000 4 inch blocks, whereas it was 4,000 that were pleaded. Similarly, exhibit P5 shows 3,000 6 inch blocks while 6,000 were pleaded.

Furthermore, there was no evidence on the record either from the plaintiff or any of her three witnesses as to the whereabouts of the purchase receipts for the remaining blocks which were not covered by exhibits P2-P5. It is also interesting to note that the award of N59 ,000.00 special damages was not claimed by the plaintiff/respondent. What the plaintiff claimed via her pleading and evidence as per the blocks was the current market value of N121,200.00. The respondent however could not prove this.

The learned trial Judge at that stage ought to have dismissed her claim instead of awarding N59,000.00. I submit it is trite that a trial court cannot grant to a plaintiff a remedy which has not been claimed by the plaintiff because it has no power to do so. See Olurotimi v. Ige 1993) 8 NWLR (Pt. 311) 257, (1993) 1 SCNJ 1 at 13 from paragraphs 24-27. See also Ekpeyong & 4 Ors. v. Nyong & 4 Ors, (1975) 2 SC 71 at 81-82; Kalio & Ors. v. Daniel-Kalio (1975) 2 SC 15 at pages 17-19; Nigerian Housing Development Society Ltd. & Anor. v. Mumuni (1977) 2 SC 57 at page 81; University of Lagos & 2 Ors. v. Dada (1971) U.I.L.R. (Pt. 3) 344.

In the light of the foregoing authorities, I resolve issues 1 & 3 in favour of the appellant.

On issues two and five which relate to whether there are material contradictions in the evidence of the plaintiff/respondent and whether the plaintiff/respondent has discharged the onus of proof on her by the evidence adduced, both learned counsel to the parties made copious submissions in their respective briefs. Learned counsel to the appellant by way of summary on pages 13-15 of the appellant’s brief submitted that there are contradictions in the evidence adduced by the plaintiff and her witnesses which contradictions are material and go to the weight to be attached to them.

According to counsel, the respondent’s case is predicated on the conversion of certain building materials. It is therefore a claim for special damages for certain particular and identifiable items. These items are listed on pages 11-12 of the record.

Learned counsel observed that in the evidence of PW1 at (pages 30-31) of the record, he said as to the number of the blocks:
“I think the blocks were about 2,000 in number” (paragraphs 9-10). While the plaintiff herself gave evidence (at page 32 paragraphs 1-5 of the record) as to the number of the blocks as 17,400.

Furthermore, PW4 states (at page 35, paragraphs 11-13) of the record as follows:
“I noticed some cement blocks were packed on the land. The blocks must be between three thousand and five thousand…”

Learned counsel therefore submitted that the learned trial Judge faced with these contradictions ought not to have relied on either of them but to hold that the plaintiff/respondent had failed to prove her case.

On the admission by the defendant/appellant that he met some blocks on the disputed land, learned counsel to the appellant submitted that after saying that he met some blocks on the land, appellant said further that they were not the plaintiff’s. Learned counsel submitted that that is no admission of the plaintiff/respondent’s specific claim of 17,400 blocks of various specifications.

Learned counsel referred to S. 20 of the Evidence Act which stipulates that for oral evidence to qualify as an admission, same must be clear and unambiguous. Learned counsel submitted that since the appellant admitted that he met some blocks on the land but did not say the actual number, not that they belonged to the respondent, when in fact he denied that he ever used the respondent’s blocks.

Learned counsel submitted that such admission is of no evidential value and would not relieve the respondent of her responsibility to prove her case being a mere acknowledgment. In the circumstance, learned counsel submitted that the evidence relied upon by the plaintiff is mainly contradictory and hence, she has failed to discharge the burden of proof imposed on her by S. 137 of the Evidence Act.

By way of reply, learned counsel to the respondent by way of summary on page 5 of the respondent’s brief observed that the defendant/appellant in paragraph 5 of his statement of defence avers that he did not use the materials of the plaintiff deposited on the land and gave evidence towards this line.

Learned counsel submitted that from the printed records, the appellant admits that the respondent deposited materials on the land but did not use them. Learned counsel further submitted that the learned trial Judge was right when at page 46 line 24-25 he said ‘the parties joined issues only on the building materials which the plaintiff deposited on the land before the case started between 1981-1984’. He also submitted that at page 58, line 26-30, the findings of the learned trial Judge confirmed that the building materials were on the land. The Judge held ‘suffice it to say that I believe the evidence of the plaintiff and her witnesses Nos. 1 and 4 that blocks were on the land which the defendant built upon’ (see also page 59 lines 15-20).

Learned counsel submitted that this fact is supported by evidence and should not be disturbed. See Ariche v. The State (1993) 6 NWLR (Pt. 302) 752, (1993) 7 SCNJ 457 at 467. The Supreme Court per Belgore, J.S.C. stated that ‘unless a finding of fact is not supported by evidence or is perverse or based on evidence not legally admissible, the finding will not be disturbed by the appellate court’. See also Fashanu v. Adekoya (1974) 6 SC 83, 91; Yassin v. Barclays Bank D.C.O. Ltd. (1968) 1 All NLR 171. In the light of the court’s finding from pages 59 – 60 of the judgment in the proceedings, I urge the court not to disturb the findings thereon.

I have considered the submissions of both learned counsel to the parties on these issues two and five vis-a-vis the records and the prevailing law. From the submission of learned counsel to the appellant, the material contradictions alleged by the appellant in the evidence given by the plaintiff/respondent in the court below relates to the estimate given by the witnesses of the number of blocks on the land now in possession of the appellant. The judgment of the lower court is not predicated on the estimates given in evidence by the plaintiff’s witnesses, rather the lower court recognized that none of the witnesses placed the blocks on the land, consequently, the evidence was treated at best as an opinion. The court below showed that he relied on the number of blocks stated in exhibits P2-P5 tendered before the court. The alleged contradiction on the number of blocks on the land given by the witnesses does not go to the root of the main issue to be considered, which the court below considered, which is, were there blocks on the land which were subsequently possessed by the defendant? And did the said blocks belong to the plaintiff? From the evidence on the printed records, the answer in both questions is in the positive.

The prevailing law is that for a contradiction to be material and upturn a judgment, it must be such and that it can be said could lead to a wrong or perverse conclusion to warrant the interference of an appellate court. See Arase v. Arase (1981) 5 SC at page 33. The record shows that despite the initial denial of the defendant/appellant, the plaintiff successfully proved and established her ownership of identifiable chattels of blocks, sand and gravel which she deposited on the parcel of land on which she intended to build a house when she lost the land to the vendor of the defendant.

The respondent after admitting her loss, sought to remove her chattel which she alleged that the appellant had used and denied its use. The court below after reviewing the evidence has ruled that he believed that the plaintiffs chattel were on the land of the defendant at the time that the defendant took possession of the said land and that the said defendant/appellant used the said chattels to make a fence and refused to admit to return same or pay for the market value. It is trite that an appellate court does not intervene to reverse the findings of fact of the court below, even if the court would have held a different view. See Wahabi Aigbosho Olanrewaju v. Governor of Oyo State (1992) 11-12 SCNJ at pp. 105-6, (1992) 9 NWLR (Pt. 265) 335.

I agree with the above judgment of the Supreme Court. In the circumstance, I resolve issues 2 and 5 against the appellant and I hold that the plaintiff in the court below proved his claim against the defendant/appellant on a balance of probabilities.

On issue 4 which relates to whether the learned trial Judge wrongfully rejected purchase receipts dated 4/8/88, 28/8/88 and 30/8/88, both learned counsel to the parties have addressed us copiously in their respective briefs of argument. I have considered the submissions vis-a-vis the records and the prevailing law. Learned counsel to the appellant submitted at pages 16-18 of the appellant’s brief by way of summary that though the purchase receipts dated 4/8/88, 28/8/88 and 30/8/88 are not issued in the name of the appellant, they are issued in the name of his hospital. Since he stated that he was a private medical practitioner, he must have a clinic or hospital from where he operates, hence, counsel contended, the court ought to take judicial notice that the receipts were issued in the name of his hospital.

Learned counsel further referred to page 37 paragraphs 6-7 of the record where the appellant said:
“I paid for the materials I used to fence the land. I now tender the three receipts.”

To buttress the fact that proper foundation had been for the tendering of the purchase receipts. On the whole learned counsel submitted that since the receipts are relevant and admissible, they should be admitted in evidence notwithstanding that they are not from proper custody.

By way of reply, learned counsel to the respondent by way of summary justified the rejection of the purchase receipts of the lower court on the ground that a party who said he made payment and tendered receipts which showed the name of another has not shown relevance of his name to the receipt. I have considered the submissions of both learned counsel to the parties on this issue. I seem to agree with the learned counsel to the respondent that since the purchase receipts showed the name of another person, he has not shown relevance of his name to the receipts. What is more, the receipts are not self-explanatory and since no foundation has been laid for their admissibility, I hold that the court was in order when it rejected the receipts. It is clear from the record that the statement made subsequently by the defendant that a medical doctor must have a hospital where he works is an averment made after the court had ruled that he failed to see the relevance of the receipts to the witness.

As reiterated supra, the court rightly rejected those exhibits. In the circumstance, I resolve issue No.4 against the appellant and in favour of the respondent.

Before concluding this judgment, I need to point out that although the issues formulated by the appellant are contrary to the authorities more than the grounds, but since the issues were consolidated into three, they were in fact taken as three issues and deemed as such. Be that as it may, the appeal is dismissed on the last issue – issue 4. The appeal however succeeds on issues 1 & 3 and same is dismissed on issues 2, 4 & 5.

In sum, the appeal is allowed in part with substantial part of the judgment of the lower court affirmed. Costs of N5,000.00 is awarded in favour of the appellant.

SAKA ADEYEMI IBIYEYE, J.C.A.: I have been privileged to read in advance the judgment just delivered by my learned brother, Okunola, J.C.A. He thoroughly considered the five issues which arose for determination in this appeal. I agree with him that there is merit in issues 1 and 3 while issues 2, 4 and 5 are devoid of merit. I also resolve issues 1 and 3 in favour of the appellant while issues 2, 4 and 5 are resolved against the appellant. The appeal therefore succeeds in part. I abide by the costs awarded in favour of the appellant.

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.: The plaintiffs claim before the High Court, Osun State, in the Ife Judicial Division read as follows “For the return of the following, sands, gravel and blocks deposited on the plaintiffs site at Elesha Line 1. Off University of Ife, Road 7,Ile Ife since 1981-1984 or its moneys worth which the defendant has used to construct his house on the said site after a suit.”

The items sought to be recovered are itemized as follows;
(1) 7,400 No.9″ Blocks at N 8.00 per block = N59,200.00
(2) 6,000 No.6″ Blocks at N 7.00 per block = N42,000.00
(3) 4,000 No.4″ Blocks at N 5.00 per block = N20,000.00
(4) 3 loads of gravel at N 400.00 per load = N 1,200.00
(5) 3 loads of sand at N180.00 per load = N 540.00

Total = N122,940.00

The defendant denied the claim, and deposed that:
(1) He did not find any materials on the land he won from the plaintiff’s vendor by a court action.
(2) He did not use the materials of the plaintiff said to be on his land.
(3) The materials on the land did not belong to the plaintiff, by this, the defendant finally admitted that he did know the plaintiff, but did not promise the plaintiff, as the latter had averred, that he would pay for the materials, which the defendant said did not belong to the plaintiff.

The learned trial court took evidence from the witnesses of the plaintiff who are three in number, and from the defendant. The court below having received the evidence, assessed same, and ruled in the ultimate paragraph of the judgment delivered on 4/12/96 as follows:
“In the light of the above, and to ensure that justice is done in this case, it is hereby ordered that the defendant shall pay to the plaintiff the sum of N59,000 which is the prevailing value of the blocks.
As costs follow the events, the plaintiff is normally entitled to the costs of these proceedings; but since the plaintiff cannot tell the court the amount of out of pocket expenses and the counsel to the defendant left the issue of costs to the court; I shall award N1,000 costs only in favour of the plaintiff.”

Against the said judgment of Iyanda, J. as above, the defendant who is dissatisfied with the judgment has appealed on four grounds, and formulated for determination of the appeal four issues viz:
“(1) Whether the award of N59,000.00 special damages against the defendant for conversion is supported by evidence on the record?.
(2) Whether there are material contradictions in evidence adduced by the plaintiff and the witnesses, and if yes, whether they rendered the evidence unreliable?.
(3) Whether the learned trial Judge wrongfully received in evidence exhibits P2, P3, P4 and P5, which are purchase receipts of some blocks when the same were not specifically pleaded?.
(4) Whether the learned trial Judge wrongfully rejected purchase receipts of certain building materials dated 4/8/88, 28/8/88 and 30/8/88, as exhibits, and if yes, whether the refusal materially influenced the judgment against the plaintiff?
(5) Whether the plaintiff/respondent has discharged the burden of proof from the totality of the evidence adduced by her and her witnesses?”

The appellant’s notice and grounds of appeal was filed on 13/12/96. It is contained in the printed record of the proceedings in the court below. The conditions of appeal were met by evidence of the receipt on the record on 16/12/96. Evidence exists in the record that the respondent was served the record, by the certificate of the registrar. The appellant’s brief was filed on 23/12/97, and served on the respondent. Up to the time the appeal was fixed for hearing; the respondent failed, refused or neglected to file the respondent’s brief.

After ensuring that hearing notices were issued and served on the respondent, the court acted under the provisions of Order 6 rule 10 of the Court of Appeal Rules, 2002 and proceeded to hear the submissions and adoption of the appellant’s brief. Consequently, this appeal is determined only on the appellant’s brief since the respondent failed to file brief as required under Order 6 rule 4(1) of the said rules. The fact of the case are that the plaintiff bought in October 1979, two plots of a parcel of land from the 1st plaintiff’s witness.

The said plots of land became a subject of litigation when the Owa of 1gbajo land claimed the land, and obtained judgment against the plaintiff in the High Court. The winner of the suit, Owa of Igbajo is the vendor to the defendant.

Before the case was determined in court, and after the plaintiff had bought the said land from the 1st plaintiff’s witness, Alhaji Kamoru Ayoade, the plaintiff had placed on the land several items of building materials, as itemized above. It is the plaintiff’s claim that the defendant, a medical doctor who subsequently bought the land from Owa of Igbajo, used the said sand on the land, which the plaintiff had placed on the land, for building her own house and she sought a recovery of the said items or the value of the items.

In the plaintiffs’ evidence before the court, there were inconsistent and contradictory evidence of the number of blocks on the land, and the cost of the blocks. The court below received in evidence, receipts tendered in evidence in proof of the number and costs of the blocks on the land, upon which the judgment of the court is partly based. The court also considered the current at the time, the market value of the blocks, and the depreciating value of the Naira. It is against the said judgment that the appellant being dissatisfied has filed this appeal and formulated issues which were argued in the appellants’ brief. The appellant argued together issues one and three, issues two and five, and issue four separately.

On issues 1 and 3, the appellant submitted that the court was in error to make an order in favour of the respondent for the value of the blocks claimed at the time of the conversion of the blocks. The appellant submitted that the plaintiffs’ claim in the court below had to be strictly proved. That the current market value of the items said to be converted is not stated in the plaintiffs’ claim, it is wrong he submitted for the court to award it, since the prices stated is not sufficient proof of the claim. The appellant submitted that the plaintiffs’ claim in the court below require strict proof which if not made should not have entitled the respondent to judgment. He submitted that there is no proof of the quantity or number of blocks on the land as each witness for the plaintiff claimed the number to be N7,400 of 9″ blocks, at N8.00 per block, 6000 of 6″ block at N7,000, 4000 of 4″ block at N5, per block, exhibits P2 – P3 tendered by the plaintiff showed only 3,500, 9″ block, exhibits P4 and P5, show 3,000, 6″ block.

The appellant argued that the sum of N59,000 awarded by the court as special damages was not claimed by the respondent as the plaintiff in the court below, but that what the plaintiff claimed thereon was the current market value; and that the court should not award to a party what he has not claimed.

In the absence of a response from the respondent, the reply to the submission of the appellant in the complaint in his issue will be founded on the pronouncement of the court below on the issue complained about and the correct position of the law on the issue. It is within the functions of a presiding Judge adjudicating on a matter before him to review, assess and evaluate the evidence before him.

A trial court evaluating the evidence before him has been adjudged to be possessed of power in making his conclusion when he has decided according to the Evidence Act to receive or reject evidence to place such evidence on an imaginary scale. See Mogaji v. Odofin (1978) 4 SC 91. This decision is made not so much on the quantum or number of witnesses called, but on the probative value and the credibility of the evidence submitted at the trial. In the instant appeal, the respondent averred facts on the number of blocks, the value of the blocks, sands and gravels on the land on which she, the plaintiff claim the defendant/appellant built her land.

The plaintiff was unable to tender strict proof in the nature of receipts for the purchase of the sand and gravel; the court did not make any award to the plaintiff on sands and gravel. The plaintiff did tender receipts of relevant dates for the 9″ inch and 6″ inch blocks.

The receipts tendered exhibits P2 and P3 showed the quantity; that is, the number of blocks and the sum paid to buy them. The court recorded as follow in his judgment:
“I do not regard this as contradiction as each witness was giving mere estimate of the number of blocks he saw at the land, neither of them counted or carry blocks for the plaintiff. But what I accept as proof of the number of blocks on the land is the total number of blocks written on the four receipts of purchase exhibits P2 – P5, tendered by the plaintiff in her evidence on oath before this court.”

In proof of the plaintiff’s claim, she tendered only four receipts for blocks purchased and packed on the land.

Exhibits P2 – P5 are:
P2 shows N130 for 9 inch or 200 blocks
P3 shows N2,800 for N3,500 9 inch blocks
P4 shows N1,000 for 200 4 inch blocks
P5 shows NI,800 for 2,000 6 inch blocks total N5,730.”

According to the plaintiffs claim and evidence, the price of the blocks have increased the 9 inch block is now N8,000 per block P2. P3 now cost N28,000. In exhibits P5 6 inch block is now N7.00 per block now N21,000. In exhibit P4. 4 inch block is now N5.00 per block, it is now N10,000. The total current value of the blocks is N59,000. The record of proceedings does not indicate the source of the current market value admitted by the court. The actual cost of blocks shown on the receipts tendered as exhibits is N5,730.00. In my view the current market value of the blocks is not proved, though the plaintiff claimed it in his writ and no evidence of it is tendered. It is a claim that is not proved before the court. It seems to me that the current market value on which the trial court placed his assessment of the case of the blocks is an arbitrary figure.

The duty of the court is to determine the actual loss occasioned to the plaintiff by the act of the defendant from the tenure of the appeal, and the language used therein. The defendant does not appear to deny the use of the plaintiffs blocks, since the judgment found that he used the blocks but denies the exaggerated and unreal value given to the used blocks. The claim of the plaintiff is in the nature of a claim for special damages being for the loss of identifiable item, and for restitution of the plaintiff to the position he would be if he had the items in her possession. Such loss to the plaintiff must be proved strictly. See Elf (Nig.) Ltd. v. Sillo (1994) 6 NWLR (Pt.350) at 258 (II) Adeosun v. Adisa (1986) 5 NWLR (Pt.40) 225 at 235D.F.

In this case, the plaintiff in the court below made a claim for damages against the defendant or for the return of her chattels. A claim in conversion under the common law arises when the defendant has taken possession and title to the chattels to which the plaintiff is entitled. The redress in the claim is for a return of the chattel to the owner or for the payment of the equivalent value of the goods.

The tort is committed when the owner of the chattel demands it, and the defendant refuses to surrender it. The measure of damage in conversion is the value of the chattel or the cost of replacement of the chattel. See Hall v. Barclay (1937) 3 All ER 620 (II) Martin v. L.C.C. (1947) K.B. 628.

It is in this regard that the current market value comes into consideration if the defendant is to replace the converted chattels. How much he would expend to buy it to replace it to the plaintiff. In that event evidence must be taken by the court of the current market value; not an arbitrary sum. Not one of the three witnesses for the plaintiff deposed to the current value of any of the items shown on the receipts for blocks exhibits P2-P5. On page 62 of the record the trial court stated the current market value of the blocks, differently from what is contained on the receipt. Where did the evidence of the current market value emanate from? Surely the trial court cannot, and should not supply evidence in the proceedings before him.

For it is settled law, that a trial court should not substitute his own opinion for evidence in the trial. See Awoyegbe & Anor. v. Ogbeide (1988) 1 NWLR (Pt. 73) 695, (1988) 3 SCNJ (Pt.1) 99 at 108.In this case, the trial court appeared to have substituted his knowledge of the market value of the blocks as evidence in the proceedings and he has thereby vitiated his conclusion to award judgment to the plaintiff in the sum of N59,000. In the interest of clarity the result of the order of court appears to be a grant of an award to a litigant who did not ask for it. As in the case of Ekpenyong v. Nyong (1975) 2 SC 71. Infact the issue considered is not on that principle, the principle on which the order of N59,000 is vitiated by the court itself is the failure of the court to take evidence from the parties of what the market value of the itemized chattel is.

What is more the judgment is vitiated by the supply by the court of evidence of the market value on which the judgment of the court is based. A receipt in writing or a document is the best evidence in proof of its content. No oral evidence is generally admissible to vary or contradict a written document, unless such evidence is pleaded and proved by evidence of the parties. See Att.-General, Bendel State v. U.B.A. Ltd. (1986) 4 NWLR (Pt.37) at p.547. For the above reasons, I set aside the order of the court below of a judgment in the sum of N59,000, and substitute same with an order for the sum of N5,730. being the sum proved before the court. See Ordia v. Piedmont (Nig.) Ltd. (1995) 2 NWLR (Pt. 379) 516. In the event I resolve the said issues 1 and 3 in favour of the appellant.

In the appellant’s issues two and five, he asked whether by the material contradiction in the evidence of the plaintiff in the court below, the plaintiff in trial court discharged the onus of proof in her claim. The material contradictions alleged by the appellant in the evidence tendered by the plaintiff now respondent in the court below is on the estimate given by the witnesses of the number of blocks on the land now in the possession of the appellant. The issue has been dealt with in the issue above. The decision and judgment of the court below is not founded on the estimates given as evidence by the plaintiffs’ witnesses. The court below has acknowledged that none of the said witnesses placed the blocks on the land the evidence given by the witness is at best an opinion.

The court below showed that he relied on the number of blocks stated in exhibits P2-P5 tendered before the court. The alleged contradiction on the number of blocks on the land given by the witnesses does not go to the root of the main issue to be considered, which the court below considered, which were the blocks on the land which were subsequently possessed by the defendant and did the said blocks belong to the plaintiff? The answer to both question is in the positive. A contradiction which can vitiate a judgment must be such and that it can be said could lead to a wrong or perverse conclusion to warrant the interference of an appellate court. See Arase v. Arase (1981) 5 SC at page 63.

The printed record shows that despite the initial denial of the defendant now appellant, the plaintiff successfully proved and established her ownership of identifiable chattels of blocks, sand and gravel which she deposited on the parcel of land on which she intended to build a house when she lost the land to the vendor of the defendant. The respondent demonstrated a rare grace in admitting her loss and sought to remove her chattel which the appellant with little grace and candour had used and denied its use. An advanced formal education would appear to have played a very little part in creating candour on the appellant in the relationship of the medical doctor with a mere female contractor of sand whose words the court below believed.

The court below after reviewing the evidence has ruled that he believed that the plaintiffs chattel were on the land of the defendant at the time that the defendant took possession of the said lands and that the said defendant, now appellant used the said chattels to make a fence and refused to admit to return same or pay for the market value. An appellate does not intervene to reverse the findings of fact of the court below, even if the court would have held a different view. Vide Wahabi Aigbosho Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (pt. 265) 335, (1992) 11-12 SCNJ at 105-6.

In the instant appeal, this court is not of a different view. I therefore resolve the issues 2 and 5, against the appellant, and rule that the plaintiff in the court below proved his claim against the defendant/appellant on a balance of probabilities on issue 4 in the appellant’s brief, the issue presented is whether the court below wrongfully rejected the purchase receipt alleged tendered by the defendants; Appellant listed the receipts as receipts dated 4/8/88, 28/8/88, 30/8/88.
The testimony of the only witness for the defence is contained in pages 36 – 37 of the record of proceedings in the court below.

The receipt for purchase of six plots from Oba Famodun dated 28/7/77 is admitted as exhibit D.1. The record of judgment in suit No.NIF/59/85 was admitted as exhibit D.2. In his judgment on page 55 of the record par.22, the trial Judge considered and ruled against the admissibility of receipt dated 4/8/88, 28/8/88, and 30/8/88, on the issue of relevance of the receipts to the proceedings.

The court below held that the receipts do not show the name of the defendant and also the receipts offend the provisions of section 91 of the Evidence Act. The provisions of section 91 Evidence Act, 1990 which was the applicable provisions of the Evidence Act at the time the cause of action was determined in the court below. The court below has the power and capacity to determine the weight to be attached to a statement rendered admissible as evidence and to have regard to the contemporeniety of the evidence so tendered.

It seems to me that the provisions of section 91 Evidence Act, 1990 are not the appropriate section to deal with the admissibility of documents like receipts. Section 92 deals with the admissibility of documents and may include receipts and the receipt by itself is a primary evidence of its contents. The court below was of the view that the documents did not show the name of the defendant and failed to show the connection of the defendant with the receipts in that proceeding.

The record clearly leaves a reader with the view, that the defendant/appellant being a medical doctor, who tendered a receipt and because he so tendered the receipt showing the name of a hospital it will be concluded that the hospital is his own. The evidence of the defendant on the issue is at page 37 of the record, it is this; “It is not correct that the plaintiff put loads of sand and many blocks ready for building on the land, I paid for the materials I used to fence the land. I now tender three receipts”. The plaintiff objected to the tendering of the receipts. A party who said he made payment and tendered receipts which show the name of another has not shown relevance of his name to the receipt.

The receipt in the event is not self explanatory and no foundation has been laid for its admissibility, the court below rightly rejected the receipts. The statement made subsequently by the defendant that a medical doctor must have a hospital where he works, is a statement made after the court has ruled that he failed to see the relevance of the receipt to the witness.

I see no fault in the rejection of the exhibits by the court below. In any case the judgment of the court is based mostly on the proof that the existence of the blocks on the land now owned by the defendant/appellant. Several witnesses saw the blocks, sand and gravel but could not state the precise number, the court believed the statement of the plaintiff who went to the defendant when he was infact building the fence and deposed that the defendant promised to pay for the chattels, which the defendant denied, the forbearance of the plaintiff to act against the appellant at the time of the fencing of the wall, when evidence of the use of the blocks would have been glaring is commendable.

The denial of the defendant that he knew or ever saw the plaintiff/respondent and the subsequent admission of the defendant/appellant that he advised the plaintiff to contact the Owa, his vendor are all testimony to the existence of the respondent’s block on the appellant’s land. The alternative plea in the court below of the defendant that he was entitled to use whatever was fixed to the land he possessed in ‘quid quid plantator solo solo cedit’ all these lead conclusively that the defendant used the blocks on the land, and that he had previously promised to pay to the plaintiff for the use of the blocks, but eventually refused, and that the defendant used the said blocks on the land. Even if receipts are tendered which show the name of the defendant and which show that the defendant subsequently bought materials, the receipts would not have proved that the plaintiffs claim was false.

The learned trial court was clearly remiss in his decision to defer the ruling on the receipts without asking for further evidence; and in delaying the ruling till judgment, when, infact, complete submission were made on the issue before address. In the circumstance of the ruling in the judgment when no further evidence may be taken, the ruling to reject the document was the only conclusion to be made. Nonetheless, I resolve the issue against the appellant and affirm in substantial part the judgment of the court below. The appeal succeeds in part only on issues 1 – 3 and the appeal is refused, and dismissed on issues 2,4 and 5.

A word about the issues formulated. the issues formulated by the appellant are infact more than the grounds of appeal filed, which F is disapproved of but since the issues are consolidated, they were taken infact as three issues. The appeal is dismissed in issues 2, 4 and 5, and affirmed the judgment of the court below on those issues.

The appeal succeeds on issues 1 – 3.

There will be no order for costs.

Appeal allowed in part.

Appearances