EMMANUEL MUYIWA OPAWUMI & ANOR. V. MRS. ADEBOLA ONI
(2011)LCN/4352(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of March, 2011
CA/B/304/2005
RATIO
GROUNDS OF APPEAL: WHETHER GROUNDS OF APPEAL CAN BE SET OUT IN THE BRIEF OF ARGUMENT
Grounds of appeal are normally contained in, and filed with, the notice of appeal, and contrary to the practice adopted by learned counsel for the appellant the grounds of appeal are not set out in the brief of argument. See Osinupebi vs. Saibu & Ors (1982) 7 SC 104 at 111. PER NWALI, SYLVESTER NGWUTA, J.C.A.
FORMULATION OF ISSUES: HOW AN ISSUE FOR DETERMINATION SHOULD BE FORMULATED FROM A GROUND OF APPEAL
An issue is formulated from one ground, or usually a number of grounds of appeal and a ground of appeal should not be split to give rise to several issues. See Labivi v. Anretiola (1992) 10 SCNJ 1 at 2. PER NWALI, SYLVESTER NGWUTA, J.C.A.
GROUNDS OF APPEAL: WHETHER A GROUND OF APPEAL CAN GIVE RISE TO MORE THAN ONE ISSUE FOR DETERMINATION OR BE LESS THAN THE ISSUES FOR DETERMINATION
A ground of appeal cannot give rise to more than one issue. The principle is that in no circumstance should the grounds of appeal be less than the issues for determination. See Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385 wherein the Supreme Court condemned the splitting of a ground of appeal. See also Uqor v. Obiekwe & Anor (1 989)1 NWLR (Pt.99) 566. PER NWALI, SYLVESTER NGWUTA, J.C.A.
DEFAMATION OF CHARACTER: WHETHER STRONG AND ANGRY LANGUAGE USED IN A LETTER CAN AMOUNT TO LIBEL
The importance of good name is emphasized in Shakespeare’s Othello “who steals my purse steals thrash … But he who flinches from me my good name; robs me of that which not enriches him; And makes me poor indeed.” Quoted by Oputa JSC in Shitta-Bey v. Federal PSC (1985) 2 NWLR 599 at 618 SC. The letters may have contained vulgar abuse strong and angry language but the point in each letter is clear that the appellant is a debtor who would not pay his debts (rents). Nothing that he possessed by way of character and reputation of paying his rent as and when due was taken from him by the fact of the publication. In Shiplev v. Todhunter (183617 C & P at 690 Tindal C.J. said “It is not because strong and angry language is used that a letter is a libel. It is a case of justifiable indignation expressed in tirades and fits of vile temper. See Electric Supply v. Dukes The Times. June 17. 1929. Such abusive words uttered by uninformed minds and non-decent people as a prelude to a fight are not taken seriously. See Iloabachie Esq. v. Iloabachie (2005) All FWLR (Pt. 272) 223 at 252 SC where the allegation that the plaintiff fraudulently sold a family house was dismissed as vulgar abuse. PER NWALI, SYLVESTER NGWUTA, J.C.A.
PROVISION OF EVIDENCE: HOW A PARTY CAN PROVIDE EVIDENCE IN SUPPORT OF HIS CASE
A party can provide evidence in support of his case by calling witnesses or by evidence extracted from his opponent’s witness in cross-examination. See Akomolafe v. Guardian Press Ltd (2010) 3 NWLR (Pt. 1 181) 338 at 351: Daqash v. Bulama (2004) 14 NWLR (Pt. 892) 144 at 241. PER NWALI, SYLVESTER NGWUTA, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. 1. EMMANUEL MUYIWA OPAWUMI
2. 2. OLUFUNKE OPAWUMI Appellant(s)
AND
MRS. ADEBOLA ONI Respondent(s)
NWALI, SYLVESTER NGWUTA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Judgment of Akomolafe J of the Ondo State High Court of Justice Akure Judicial Division, delivered on 18th July, 2005 in Suit No. AK/291/97. The appellants and Respondent were plaintiffs and defendant respectively before the Court below.
1st Appellant claimed he bought a house, described as a duplex bungalow, situate at, and known as Plot 181 Block XV also known as No.3 Ikogosi street, ljapo Estate Akure, Ondo state, from one Mrs. Grace Ajayi, the deceased mother of the Respondent. 1st appellant said he paid the agreed sum of N70,000.00 for the property in two instalments of N10,500.00 and N59,500 by cheques and got receipt for each payment. Before she could obtain the transfer document from the Ondo State Housing Corporation who leased the property to her Mrs. Grace Ajayi died. The attempt of Mrs. Ajayi’s daughter, the Respondent to collect rent in respect of the property from the 1st appellant or re-possess the property as the administratrix of her mother’s property led the appellant to institute the action leading to this appeal.
In the amended writ of summons issued on 22/7/99 the 1st appellant made the following claims against the respondent as defendant in respect of the disputed property.
(1) Declaration of Ownership in favour of the appellants
(2) Order for specific performance to perfect title of the property in favour of the appellants. In the alternative the sum of N2m as damages for breach of contract “in lieu of and in addition to specific performance against the defendant”
(3) N2m as aggravated damages for libel.
(4) Perpetual injunction to restrain “the defendant and/or her agents, privies, assigns and any person howsoever taking through her or on behalf of the defendant from tampering with the property or disturbing plaintiffs possession/ownership and quiet enjoyment of the property or do anything against the interest of plaintiffs qua the property in dispute.”
(5) “Perpetual injunction restraining the defendant and her agents and assigns from further writing, printing or circulating or cause to be written, printed or circulated or otherwise publish anything concerning the 1st plaintiff or any similar libel” See pages 2 to 3 of the records.
On service of the writ and amended statement of claim on her the defendant (now respondent) filed a 47 paragraph statement of defence and counter-claimed as follows:
“a. A declaration that the defendant and or the administrators of the estate of Mrs. G. A. Ajayi are the persons entitled to the sublease of Plot 181 block XV at Ijapo Housing Estate.
b. Possession of the house situate, lying and being at No. 3 Ikogosi Street, Ijapo Estate Akure and more particularly described as plot No 181 Block XV Ijapo Estate, Akure.
c. For the sum of N102,000.00 being the arrears of rent from January 1993 to March 1997 at the rate of N24,000.00 per annum and mesne profit until possession is delivered by the plaintiff to the defendant” See page 18 of the records.
At the trial the 1st appellant testified and called two other witnesses. The respondent testified as PW1 but abandoned the proceedings half way into her testimony.
At their instance learned counsel for the parties filed written addresses. The appellant’s address is on pages 79 to 89 and that of the Respondent on pages 90 to 97 of the records. Appellants reply is on pages 98 to 100 of he records.
In its judgment at pages 101 – 132 of the records the trial Court concluded:
“In the sum having held (i) that the plaintiff is not the owner of the property in dispute by reason of purchase but rather that the plaintiff is a tenant therein and (ii) having held that though the publications complained of are defamatory but that the plaintiff is not entitled to any damage in any sum because they are justified plaintiff action therefore fails.” See page 137 of the records.
Against this judgment the aggrieved appellants filed a notice of appeal of 15 grounds on 5/8/05.
The parties herein, through their respective learned counsel, filed and exchanged briefs of argument in compliance with the rules.
In the appellant’s brief dated 10/6/08 and filed on 15/6/08 15 grounds of appeal were set out followed by 8 issues for determination hereunder reproduced:
“(i) Whether or not the learned trial Judge was right in formulating issues for determination suo-motu in this case different from that which parties formulated and are ad idem upon and proceed to base his decision thereon.
(ii) whether or not the trial court was right in holding that plaintiffs now appellants are not owners of the property in dispute but a tenant thereat.
(iii) Whether the trial Court properly evaluated or and reviewed the totality of evidence adduced before it.
(iv) Whether or not the trial Court was right in
(a) Holding at Judgment stage that the document exhibits P7C and P13 were inadmissible having ruled during trial after objections were taken) that the documents were admissible.
(b) Holding that both exhibits P7C and P13 were authored by plaintiffs/Appellants and in anticipation of litigation.
(c) Embarking on handwriting analysis or comparison of Exhibits P2, P7C and P13 notwithstanding that no dispute arose between parties on handwriting or/and signature and no specimen signature or handwriting was before Court with which the Court could embark on such comparison.
(d) Holding that the evidence of plaintiffs’ witness PW1 regarding the manner of payment of balance of the sum of N59,500.00 on the property in dispute is conflicting and therefore the evidence must be rejected.
(v) Whether or not the trial Court was right in acting upon evidence extracted under cross-examination but not rooted in the pleadings before Court and in holding that the said evidence was withheld by plaintiffs and therefore caught by Section 149 (d) Evidence Act LFN 2004.
(vi) Whether or not the learned trial Judge was right in holding that by December 1987, plaintiffs had not performed the contract of purchase of the property in dispute and therefore by exhibit P9 the offer for purchase was terminated leaving exhibits P, and P2 as establishing nothing but a contract that remains wholly unperformed.
(vii) Whether or not the trial Judge was right in holding that defendant had properly established the plea of justification which disentitled 1st Plaintiff/Appellant to damages for libel though admittedly proved.
(viii) Whether or not the trial Judge did not err in failing to strike out defendant statement of defence/counter-claim and the evidence proffered by defendant, same having been abandoned and found as such by the Court.”
In the Respondent’s brief of argument the lone issue hereunder reproduced was presented for determination: “1. whether the appellants made out any case at all before the trial Court to be entitled to any of the reliefs/orders sought.” The appellants filed a reply brief dated 25/9/2009 on 30/9/09.
Appellants brief could be better than it is presented. Grounds of appeal are normally contained in, and filed with, the notice of appeal, and contrary to the practice adopted by learned counsel for the appellant the grounds of appeal are not set out in the brief of argument. See Osinupebi vs. Saibu & Ors (1982) 7 SC 104 at 111.
Learned counsel formulated his issues for determination against the well established principle of formulation of issues in appeal. An issue is formulated from one ground, or usually a number of grounds of appeal and a ground of appeal should not be split to give rise to several issues. See Labivi v. Anretiola (1992) 10 SCNJ 1 at 2. Contrary to the principle stated above learned Senior Counsel for the appellant split ground 2, into issues 1 and 3, ground 3 into issues 3 and 4, ground 4 into issues 3 and 4 and ground 5 into issues 3 and 6.
Just as one ground of appeal should not be split into several issues an issue should not be split into general sub-issues. See Labivi v. Anretiola (Supra). Against the principle in the above case the appellant split issue 4 into issue (a) to (d).
The only issues properly formulated are issues 2, 6, 7 and 8. I will re-number them for ease of reference thus: issue 2 becomes issue 1, issue 6 becomes issue 2, issue 7 becomes issue 3 and issue 8 becomes issues 4. Appellant’s issues 1, 3, 4 and 5 in which grounds of appeal are split into several issues are struck out as vague.
A ground of appeal cannot give rise to more than one issue. The principle is that in no circumstance should the grounds of appeal be less than the issues for determination. See Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385 wherein the Supreme Court condemned the splitting of a ground of appeal. See also Uqor v. Obiekwe & Anor (1 989)1 NWLR (Pt.99) 566.
Respondent’s lone issue is encompassed in the appellant’s issue one as re-numbered. I will determine the appeal based on the appellant’s issues re-numbered as 1, 2, 3 and 4.
In issue one learned counsel for the appellant submitted that the appellant’s evidence of ownership of the property in dispute was not successfully challenged by the respondent. He relied on exhibits P2 and P13 dated 10/9/87 and 4/11/87 respectively which he said are receipts for payment of purchase price of the property issued to the appellant by Mrs. Ajayi who sold the property to the appellant. He referred to page 61 of the record to support his contention that the respondent did not contest the ownership of the property in her statement of defence in the Court below. He referred to exhibits P14, P15, P17, D1, D2A and D3 Counsel submitted that the purchase of the property was concluded in 1987. He referred to correspondence between the parties in 1991 – 1992 & 1993 and said that the issue of rent was laid to rest by Exhibit P16; as there was evidence that the respondent upon receipt of Exh.P16 did not relate back to the appellant on the issue of rent. He referred to paragraph 15 of the Statement of Claim and the ruling of the trial Court admitting Exh. P13 in evidence and impugned the judgment of the same Court that exhibits P7C and P13 one inadmissible.
In his own argument learned Counsel for the Respondent referred to the principle that in action for declaration of title it is the duty of the plaintiff to adduce sufficient and credible evidence to establish the mode of acquisition of his title. He relied on Ajibove v. Ishola (2006) 39 WRN 1 at 33 and Onwuohufor v. Okove (1996) 1 NWLR (Pt. 424) 252 in support of his argument that the plaintiff must succeed on the strength of his own case and not on the weakness of the defence. He stated that though the Respondent did not conclude her evidence exhibits D1, D2A, D2B, D2C and D3 tendered through PW1 in cross-examination are evidence in support of facts pleaded by the respondent in her statement of defence. He referred to exhibit P9 as evidence of Mrs. Ajayi’s intention to rescind the offer to sell the property to the appellant if the appellant fails to pay full consideration on or before 31/12/87. On the UBA cheque Exh. P7c counsel said that the appellant had two conflicting stories of how the payment by cheque was made. While he claimed in evidence in Chief to have forwarded the cheque Exh. P7C with a covering letter to Mrs. Ajayi he said under cross-examination that he personally handed Exh. P7C to Mrs. Ajayi Counsel argued that the trial Court was right to have rejected the two conflicting pieces of evidence based on Ude v. Nwara (1993) 2 NWLR (Pt.279) 538 SC Onafowokan v. State (1987) 3 NWLR (Pt.61) 538 at 553. He referred to exhibit P13, the receipt purportedly issued by Mrs. Ajayi for the sum of N59,500.00 and said that the receipt was not signed by anyone. He added that the appellant failed to adduce evidence of full payment of the purchase price of the disputed property Counsel referred to Exh. D1 dated 17/8/92 and said that the appellant acknowledged in writing that he was a tenant in the property and set out the modality for paying the arrears of rent.
Counsel relied on Ekunola v. CBN (2006)9 WRN 57 at 64 – 65 ratios 4 and 5 to support his argument that a trial judge can suo motu formulate pertinent issues for determination provided the issues are related to the pleadings and evidence before the Court.
On the basis of exhibits P74, P15 and D1 he contended that the statement complained of by the appellant is true. He said that the exhibits reveal that the appellant was never up to date with his rent. He noted that the appellant failed to call any witness to whom the publication was made. He urged the Court to dismiss the appeal.
It is clear from the records that one Mrs. Grace Adefolahan Ajayi said to be the mother of the respondent, offered to sell the property now in dispute to the appellant for the sum of N70,000.00. The offer is contained in Exh. P1 dated 15th June, 1987 Exhibit P2 purports to be a receipt for N10,500.00 as part payment for the property. It is dated 10/9/87. It is not signed by anyone. Exh. P12 of 19/10/87 is a letter from the appellant to Mrs. Ajayi acknowledging the receipt for N10,500.00. Enclosed was a UBA cheque No. 005503 for N59,500 as final payment for the property. It requested that ownership of the home be transferred to the appellant not later than 31/12/87. Exh. P13 purports to be a receipt for N59,500.00. Neither the payer nor the payee is indicated and it is neither signed nor dated. I shall return to this exhibit later in the judgment. Mrs. Ajayi wrote P9 on 18/9/87 to the appellant demanding settlement “with our business latest by the 31st of December, 1987” stressing that “anytime after this day is not going to be acceptable to me because the purpose for the transaction will be defeated.” Exh. P12 of 19/10/87 with the cheque enclosed, would on the surface appear to be in compliance with the demand in Exh. P9 of 18/9/87. But the only evidence of payment of the sum of N59,500.00 is Exh. P13. As is stated earlier in this judgment Exh. P13 is not dated. It is not signed and it does not show who paid and who received the sum of N59,500.00. In respect of Exh.P13 there is a 16 paragraph affidavit deposed to by one Francis Olayinka Adedare, clerk of Court, High Court of Justice Akure on 10th July, 2007. The relevant paragraphs are 11 – 15 and are hereunder reproduced.
“11. That sometimes in year 2002 I misplaced all exhibits in this case, but eventually found them save exhibit P13.
12. That when I could not locate exhibit P13 I secured the assistance of plaintiffs’ Counsel’s (Mr. Fakunle) clerk in Chambers without counsel’s knowledge to get a photocopy of the exhibit which the counsel had in year 2001.
13. That the photocopy of exhibit P13 has inscribed on it AK/291/97 which inscription is mine. The photocopy did not show the date November 4, 1987 on the receipt as the original shows.
14. That the error is mine and I informed the Court as such when the issue arose during proceedings.
15. That the document tendered as Exhibit P13 is the original copy and the Court admitted same as such.” If Exhibit P13 is a photocopy of any existing document how come the parties thereto and the date it was made were not contained in the photocopy. In my view the paper marked by the clerk as Exh. P13 and the source from which it was made are valueless. If there was a date on the original or copy from which it was made why was the date not shown. It appears to me that Exh.P13 is forged. It is not evidence of payment of any some of money by the appellant to Mrs. Ajayi. It lacks probative value. Exh. P7C is a photocopy of a cheque issued to Mrs. Grace Ajayi dated 19/10/87. It is drawn on United Bank for Africa Limited for the sum of N59,500.00. In view of the fact that Exh. P13 cannot be relied on as evidence of payment of any sum of money to Mrs. Ajayi the appellant should have called his bank to tender the cashed cheque. In the alternative he should have tendered his statement of account for the relevant period to show that his account was debited with the sum of N59,500 in favour of Mrs Ajayi.
On the other hand appellant claimed to have acquired the property in dispute in 1987. But in Exh. P14 dated 4/1/93 appellant was directed by his boss, upon the complaint of the Respondent, to issue a cheque within one week for the sum of N8,100.00 to the Respondent as arrears of rent on the same property. Not only did he comply but he exceeded the sum in Exh. P14 by issuing a cheque for N9,000.00 to the Respondent. The correspondence did not show that he claimed to have paid the sum under pain of loosing his job and that the property was his own. But those claims were not borne out by subsequent correspondences. In reply to a letter addressed to him by one Olawande Oni dated 13/8/91 he offered to negotiate for the purchase of the same property and did indicate he would pay between N100,000.00 to N120,000 for the property offered to him at N250.000. In Exh. D2A he was informed that the property was offered for sale on the instruction of the children of late Mrs. Ajayi. He did not protest and there is no evidence that he was under pressure when he made his offer to purchase the property he said he had acquired in 1987.
In Exh. D1 dated 17/8/92 and addressed to the respondent as “Dear Madam” he referred to an argument he had on the phone with the Respondent on the issue of rent and indicated he did not want further argument on the matter. He said “therefore I would want to put it on record that I am doing owing on the house a total of N6,480 (Six Thousand, Four Hundred and Eighty) if we take into consideration the remaining months to December 1992. I propose to offset this amount by sending you a N1, 000 (One Thousand Naira) draft monthly up till December 1992 and the remaining balance would be paid at once in January 1993. If this arrangement is acceptable to you it would represent the payments for 1990, 1991 and 1992.” If he purchased the property in 1987 or at anytime before 1990 he would ordinarily not be paying rent for it in 1990, 1991 and 1992. The above documentary evidence came from the appellant either in examination in chief or in cross-examination. His evidence that he purchased the property is in conflict with his documentary evidence and as the Court can not pick and choose which of the two conflicting pieces of evidence to credit or discredit both will be rejected, and this leads to a collapse of the appellant’s case in respect of the property. The other issues on the purchase of the property are rendered hypothetical by the resolution of issue one. It is not necessary to resolve them.
On the publication complained of learned counsel for the Respondent complained that the appellant did not call any person to whom the publication was made. He did not cross appeal against the finding of the trial Judge that the publication was made.
The publication the appellant complained of centred on the fact that he did not pay his rent. The letter may have been impolite but its basis is true. It would have been a different thing if the appellant was not owing rent at the time. See Exh.D1. The importance of good name is emphasized in Shakespeare’s Othello “who steals my purse steals thrash … But he who flinches from me my good name; robs me of that which not enriches him; And makes me poor indeed.” Quoted by Oputa JSC in Shitta-Bey v. Federal PSC (1985) 2 NWLR 599 at 618 SC. The letters may have contained vulgar abuse strong and angry language but the point in each letter is clear that the appellant is a debtor who would not pay his debts (rents). Nothing that he possessed by way of character and reputation of paying his rent as and when due was taken from him by the fact of the publication. In Shiplev v. Todhunter (183617 C & P at 690 Tindal C.J. said “It is not because strong and angry language is used that a letter is a libel. It is a case of justifiable indignation expressed in tirades and fits of vile temper. See Electric Supply v. Dukes The Times. June 17. 1929. Such abusive words uttered by uninformed minds and non-decent people as a prelude to a fight are not taken seriously. See Iloabachie Esq. v. Iloabachie (2005) All FWLR (Pt. 272) 223 at 252 SC where the allegation that the plaintiff fraudulently sold a family house was dismissed as vulgar abuse.
The Respondent rested her case on the appellant’s case. However she did extract in cross-examination of the PW1 facts which were in support of her pleading and which tendered to weaken the appellant’s case.A party can provide evidence in support of his case by calling witnesses or by evidence extracted from his opponent’s witness in cross-examination. See Akomolafe v. Guardian Press Ltd (2010) 3 NWLR (Pt. 1 181) 338 at 351: Daqash v. Bulama (2004) 14 NWLR (Pt. 892) 144 at 241. It follows that the Respondent did not abandon the statement of defence in as much as the evidence extracted in cross-examination support the case in the pleading. It would have been different if the respondent did not cross-examine any witness called by the appellant.
Even if the respondent did not file pleading and did not appear to cross-examine the appellant’s witnesses the appellant would still have to succeed on the strength of his own case as a declaratory action is a discretionary remedy granted subject to certain conditions. See Sunday Eguamwense v. Amachizemwen (1993) 9 NWLR (Pt.315) 1 at 30 SC: Egbunike & Anor v. Muonweoku (1961) 1 SCNLR 97.
On the evidence before the Court below the appellant did not prove his claim that he purchased the property in dispute and the substance of the publications he complained of is true. The appeal lacks merit and is hereby dismissed in its entirety.
Each side shall bear its own costs.
CHINWE B. IYIZOBA, J.C.A: I read before now, the judgment just delivered by my learned brother, Sylvester Nwali Ngwuta JCA. I agree with the reasoning contained therein and the conclusions arived thereat. I also hold that the appeal lacks merit and should be dismissed. It is hereby dismissed. I abide by all the consequential orders made in the lead judgment.
MOORE A.A. ADUMEIN, J.C.A: I had the privilege of reading before now the judgment just delivered by my learned brother, NGWUTA, JCA.
The issues raised in this appeal were comprehensively treated and properly resolved.
I agree with my learned brother that this appeal lacks merit. I too hereby dismiss the appeal.
I abide with the consequential orders in the lead judgment.
Appearances
Mr. Fakunle SAN;
K. Adetolabi and
O.O. OsekitaFor Appellant
AND
Prince A. A Ojopagogo;For Respondent
