MISS MINA JACK v. THE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, RIVERS STATE & ORS
(2013)LCN/6472(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of October, 2013
CA/PH/287/2005
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
CA/PH/287/2005
MISS MINA JACK
AND
CA/PH/287A/2005
1. THE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, RIVERS STATE
2. THE DIRECTOR GENERAL LANDS & HOUSING BUREAU
3 THE RIVERS STATE HOUSING & PROPERTY DEVELOPMENT Appellant(s)
AND
CA/PH/287/2005
1. THE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, RIVERS STATE
2. THE DIRECTOR GENERAL LANDS & HOUSING BUREAU
3 THE RIVERS STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY
AND
CA/PH/287A/2005
1. CHIEF DOMINIC ANUCHA
2. MISS MINA JACKS Respondent(s)
RATIO
DEFINITION OF AN AGGRIEVED PARTY
A party aggrieved, as recently stated by the Supreme Court in NWAORGU v. ATUMA (No. 1) 2013 9 NWLR [pt. 1358] 113 at page 129, is a party who has suffered legal grievances or a party against whom a decision has been pronounced which has wrongfully deprived him of something or wrongly refused him something or wrongly affected his right or title to something. The law on this “does not grant any fiat to everybody who has interest in the subject matter, it must be one legally cognizable interest” per S. J. Adah, JCA in SENATOR ANDY UBA V. NICHOLAS C. UKACHUKWU & ORS (unreported No CA/PH/718M/2013 OF 8TH October, 2013). PER EKO, J.C.A.
WHETHER OR NOT A PERSON WHO ASSERTS MUST PROVE
It is clear from Section 135 (1) of the Evidence Act 2004 (extant at the time decision appealed – now Section 131 (1) Evidence Act, 2011) that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. See also FAMUROTI v. AGBEKE (1991) 5 NWLR (pt. 189) 1 at 13E (SC); COMMISSIONER OF POLICE v. OGUNTAYO (1993) 6 NWLR (pt. 299) 259 at 268 E (SC).
The burden of proof in any suit or proceeding lies on that person who would fail if no evidence at all were given on either side. See ARE v. ADISA (1967) ANCR 158 at 161 – 162; MAXIMUM INSURANCE v. OWONIYI (1994) 3 NWLR (pt. 331) 178 at 192; and also Section 136 Evidence Act, 1990 (now section 132 Evidence Act, 2011).
I am therefore, in agreement with the Appellant’s counsel on authority of KATE ENTERPRISES LTD v. DAEWOO NIG LTD (1985) 2 NWLR [Pt. 5] 116 that where a fact is pleaded and no evidence is adduced establishing that pleaded fact, no onus is cast on the other side to disprove that fact pleaded for which no fact in proof thereof was offered. PER EKO, J.C.A.
THE BURDEN OF PROOF IN CIVIL PROCEEDINGS
The law in Section 137 (1) of the Evidence Act, 2004 (now Section 133 (1) Evidence Act, 2011) is that in civil cases the burden of first proving the existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were given on either side, regard being had to any presumption that may arise on the pleadings. The plaintiff has the burden of first making out his case before the onus shifts unto the defendant to rebut. A defendant who feels that the plaintiff had failed to make out his case may simply rest his case on the case of the Plaintiff without calling any evidence. See NASR v. BERINI (1968) ANLR 269 at 270; QUO VADIS HOTELS & RESTAURANT LTD v. COMMISSIONER OF LANDS (1973) ANLR 568 at 588. PER EKO, J.C.A.
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): On 14th December, 2004 A.C. WORYI, J of the Rivers State High Court delivered judgment in the suit of the 4th Respondent no PHC/481/93. The judgment has incited the filing of the appeals nos CA/PH/287/2005 and CA/PH/287A/2005. Both appeals have been consolidated on the orders of this Court for hearing for purposes of convenience. The action of the 4th Respondent was instituted on 15th July, 1993 against the present 1st – 3rd Respondent and the present Appellant (in CA/PH/287/2005) as defendants. The 4 reliefs claimed are as follows –
(i) A declaration that the Plaintiff is entitled to the Statutory Right of Occupancy in respect of the piece of land known as plot 102 Diobu GRA Phase 1, Port Harcourt.
(ii) A declaration that the purported acquisition of plot 102 Diobu GRA Phase I by the Rivers State Government is unconstitutional, null and void and of no effect whatsoever.
(iii) A declaration that the purported sale of the said plot 102 Diobu GRA Phase 1 to the 4th Defendant is illegal, null and void.
(iv) A perpetual injunction restraining the Defendants either by themselves, agents, servants and privies from interfering in any manner whatsoever with the Plaintiff’s proprietory interest in plot 102 Diobu GRA Phase, Port Harcourt.
CA/PH/287A/2005
The appeal no CA/PH/287A/2005 was brought by the Attorney-General of Rivers State; the Director-General, Lands and Housing Bureau of Rivers State, Property Development Authority. The respondents in that appeal are Chief Dominic Anucha and Miss Mina Jacks.
The record of appeal was only compiled and transmitted in respect of appeal no CA/PH/287/2005. Mr. Gbasam of counsel to the appellant in appeal no CA/PH/287A/2005 admitted before us on 18th September, 2013 in the open court that the Notice of Appeal in appeal no CA/PH/287A/2005 was not in any record of appeal before the court; that they did not compile the records, and they had applied to use the record in appeal no CA/PH/287/2005.
Since the Records of appeal in CA/PH/287/2005 do not contain the Notice of Appeal in the appeal no CA/PH/287A/2005 and the appellants in that appeal say that they obtained leave of court to use the Records in appeal no CA/PH/287/2005; the proper thing to do, since the existing records do not contain their notice of appeal, was for the appellants in appeal no CA/PH/287A/2005 to have compiled and transmitted additional records of appeal containing their notice of appeal. Mr. A. R. George of counsel to 1st Respondent in appeal no CA/PH/287A/2005 was therefore right, in my view, in submitting that in the absence of any record indicating that there is any record of appeal in appeal no CA/PH/287A/2005 there exists no valid record of appeal on which the Appellants’ Brief filed on 11th October, 2010 pursuant to the order made on 4th October, 2010 could be anchored.
On the authorities of EKPEMPOLO v. EDREMODA (2009) 8 NWLR (pt. 1142) 166 and OKOCHI v. ANIMKWOI (2003) 18 NWLR [pt. 251] 1 this Court has no duty to hear appeal on an incomplete record, especially when the missing portion is very vital. In otherwords this Court has no jurisdiction or competence to hear any appeal on an incomplete record. Order 8 Rule 7(d) of the Court of Appeal Rules, 2011 makes it imperative that every record of appeal shall contain a copy of the notice of appeal. Therefore, the Notice of appeal is a very vital portion of the record of appeal.
The consequence for failure to transmit complete record of appeal within the time prescribed by Order 8 Rules 1 and 4 of the said Rules is an order dismissing the appeal for want of diligent prosecution under Order 8 Rule 18 of the Court of Appeal Rules, 2011. Consequently, appeal no CA/PH/287A/2005 is hereby dismissed. The Appellants’ Brief of Argument filed on 11th October, 2010 pursuant to the order made by this court on 4th October, 2010, and the Respondents’ briefs, particularly the 4th Respondent’s Brief filed 5th March, 2013 in response thereto, are hereby struck out. The said briefs are incompetent.
CA/PH/287/2005
The facts of the case, as could be gleaned from the records, are that on 13th March, 1981 the 4th Respondent applied to the Governor of Rivers State for purchase of plot 102, Diobu GRA, Phase 1, Port Harcourt. The plot originally belonged to Mr. C. C. Mojekwu, an Ibo man. The government of Rivers State, pursuant to Abandoned Property (Custody and Management) Law, 1969 bought the interest of the original owner of the plot, having paid him N103,000.00. On the application of the 4th Respondent the Government of Rivers State sold the same plot to the 4th Respondent for the sum of N103, 500.00. The 4th Respondent and the Government of Rivers State on 28th July, 1981 executed an agreement which inter alia required the 4th Respondent
i. to pay an initial sum of N20, 600.00 or 20% of the purchase price.
ii. to liquidate the balance of the purchase price within 12 months from the date of the payment of the initial deposit of 20% of the purchase price.
The Plaintiff/4th Respondent seemed to have fallen in breach of the said agreement, Exhibit ‘7’. He had, after executing the agreement failed, neglected or refused to pay the balance, as agreed, after 12 months of his paying the initial deposit of N21,535.00 out of the purchase price. The Rivers State Government, assuming that in consequence of that breach, the property had reverted to it then sold the same plot to the 4th Defendant/Appellant between 1989 and 1990 who promptly paid in full the purchase price of about N175,000.00. The plaintiff/4th Respondent thereafter was forcefully evicted in 1985 from the property or plot in dispute, hence his suit.
The Plaintiff/4th Respondent, a lawyer, also bought another plot no 334 Eagle Island, after acquiring the disputed Plot 102 Phase 1 GRA Port Harcourt from the Rivers State Government. For better appreciation of the facts or the cause of action paragraphs 12 – 22 of the statement of claim at pages 4 – 5 of the Record are herein below reproduced –
12. The Plaintiff after taking possession of the premises expended a considerable sum of money to make the premises structurally adequate for human habitation.
13. Sometime in 1984, the Government of Rivers State set up the Sanomi Panel to investigate the issue of plot allocation and ownership in the Rivers State.
14. The Plaintiff was invited and later interviewed by the aforesaid panel with respect to his ownership of Plots 102 and 334 respectively.
15. The Sanomi Panel after the completion of its assignment recommended that Plaintiff should retain Plot 102 whilst plot 334 should revert to the State Government. The said decision was recorded and reported by the mass media.
16. The Plaintiff, placing reliance on the said decision made further developments on the property.
17. Sometime after the said decision, and upon the publication on the Government Gazette, the Plaintiff was surprised to observe that the said property had reverted to the State government to be used as Staff Quarters. The Plaintiff had hitherto not been informed of a reversal of the decision of the Sanomi panel.
18. The Plaintiff by a letter dated 16th September, 1985 wrote a petition to the 3rd defendant requesting it to allow him retain Plot 102.
(The Plaintiff will at the trial place reliance on the letter dated 16th September, 1985 and the 3rd Defendant is hereby put on notice to produce same).
19. The 3rd Defendant by a letter dated 21st November, 1985 acknowledged receipt of the Plaintiff’s petition and stated that Plaintiff would be subsequently informed of whatever decision taken. (The Plaintiff will at the trial place reliance on the letter dated 21st November, 1985 and it is hereby pleaded).
20. The Plaintiff however, had earlier been invited by the 3rd Defendant to appear before its Protests and Petition Committee on the 29th November 1985, the plaintiff was also enjoined to take along all documents relating to the property the subject matter of this action. The letter of invitation dated 28th November 1985 will be relied upon at the trial and is hereby pleaded.
21. The Plaintiff was however not informed of the outcome of the petition he made with respect to the purported acquisition of the property, the subject-matter of this action.
22. The Plaintiff was therefore surprised, when he was informed by the Lands Bureau, upon application for the issuance of a Certificate of Occupancy, that the 4th Defendant, Miss Mina Jacks, had been allocated the plot of land and that the plaintiff no longer had a valid interest in Plot 102.
The defendants, that is the present 1st – 2nd Respondents joined issues with the plaintiff/4th Respondent. The issue of Sanomi Panel appears very prominent and central in the pleadings.
Paragraphs 6, 7, 8, 9, 10, 11, 12 and 13 of the statement of defence of the 1st and 2nd Defendants, at page 7 and 8 of the Records are herein below reproduced:
6. By an Agreement made on or about the 28th July, 1981, the Director, Committee on Government Properties (a post and body unknown to law under the Land Use Act 1978), purportedly acting on behalf of the Rivers State Government, sold to the Plaintiff ‘the unincumbered fee simple in possession’ of the property in dispute at the price of N103,500.00. The said Agreement is hereby pleaded and the Plaintiff is given notice to produce the original at the trial of this action.
7. Under the said Agreement, the Plaintiff was required, inter alia, to:
(a) pay an initial sum of N20,700.00 or 20% of the purchase price.
(b) liquidate the balance of the purchase within 12 months from the date of the payment of the initial deposit of 20% of the purchase price.
The Defendants say that even though the Plaintiff paid the initial deposit of 20% of the purchase price, on 19th March, 1981, he failed, neglected or refused to pay the balance of the purchase price within 12 months as stipulated in the Agreement and consequently title to the property in dispute did not pass to the plaintiff.
8. The Defendants say that in 1984, the Rivers State Government set up a panel generally known as the SANOMI’S PANEL to look into sale of Government lands. In the coverage of its assignment, the Plaintiff was invited to appear before the panel which he did but he could not produce evidence to show that he had finished paying for the property in dispute which should have been completed by March, 1982. The Plaintiff was therefore informed that since he had breached the terms of Agreement he entered into in respect of the property the Rivers State Government had revoked the said Agreement.
9. The Defendants therefore say that as far as the Plaintiff was concerned title to the said property reversed to the Rivers State Government for breach of contract and not because the property was to be used as Government Quarters. The Defendants also say that at no time was the plaintiff told that he would be allowed to keep the property in dispute while the Defendants keep plot 334 Eagle Island. The Defendants shall at the trial rely on the Government White Paper on the SANOMI’s PANEL REPORT in proof of the above.
10. The Defendants say that with the reversion of the property to the Rivers State Government, it had the right to assign it to any willing purchaser in order to recover the amount it paid as compensation to the original owner.
11. Consequently, in 1989, the Rivers State Government sold the property in dispute to the 4th Defendant herein who has paid the full purchase price for the property.
12. The Defendants shall at the trial contend as follows:
(a) That the Agreement made between the Plaintiff and the Director,
Committee on Government properties, whereby ‘the unencumbered fee simple in possession’ of the property in dispute was sold to the plaintiff is null and void as it was not done in accordance with the provisions of the Land Use Act 1978, and that no title or interest in the property passed to the Plaintiff.
(b) That the sale of the property to the 4th Defendant is valid and subsisting as it was made in conformity with the provisions of the Land Use Act 1978.
13. Wherefore the Defendants say that the Plaintiff is not entitled to the reliefs claimed or at all.
The 4th Defendant/Appellant amended her statement of defence and filed the said Amended Statement of Defence. Paragraphs 7 – 14 of the Amended Statement of Defence of the 4th Defendant, at pages 17 and 18 of the Record, being germane are herein below reproduced:
7. By an Agreement made on or about the 28th day of July 1981, a Director or the Committee on Government Properties purportedly acting on behalf of the Rivers State Government sold the said property to the Plaintiff for the sum of N103,500.00. The said Agreement is hereby pleaded and the plaintiff is hereby given Notice to produce the original copy at the hearing of the case which Agreement the 4th Defendant will contend has no legal validity.
8. Under the said Agreement, the Plaintiff was required inter alia to:
(a) pay an initial sum of N20,000.00 (Twenty Thousand Naira) which is 20% of the purchase price.
(b) liquidate the balance of the purchase price within 12 months from the date of the payment of the initial deposit of 20% of the purchase price.
9. During the findings of the Sanomi Panel set up by the Rivers State Government to look into the sale of Government Lands in 1984, when the plaintiff was called upon to satisfy the panel that he had completed his side of the Sale Agreement and when he could not satisfy the panel that he has completed the payments, the Rivers State Government revoked the sale. The 4th Defendant will contend that, at no time did the Rivers State Government ask the plaintiff to keep the land in dispute. The 4th Defendant will put the Plaintiff to the strictest proof of the averments at the hearing.
10. The 4th Defendant will contend that, the Rivers State Government with the reversion of the property has a right to assign the said property to any willing purchaser in order that, it can recover the amount it had paid, i.e. compensation to the original owner.
11. The Rivers State Government sometime in 1989, offered the said property to the 4th Defendant for sale. The 4th Defendant accepted the offer. Evidence will be led to establish the offer and acceptance of the sale.
12. Consequent upon the acceptance of the sale, the 4th Defendant paid to the Rivers State Government a total sum of N175,000.00 which sum was more than the original price because of the delay in payment due to the Plaintiff’s action. The Receipts of payment will be founded upon at the hearing.
13. The 4th Defendant will in further aver that upon the full payment of the sale price, she executed a Sale Agreement dated 10/7/90 and which was registered as No. 94 at page 94 in Vol. 154 in the Lands Registry in Port Harcourt with the Vendor, the Rivers State Housing and Property Development Authority. She thereafter applied to the Rivers State Government for the issuance to her of the Certificate of Occupancy for the land, which the Rivers State Government had not been able to do because of the plaintiff’s action in court.
14. The Defendant will at the trial contend that:
(a) The purported sale of the property in dispute to the plaintiff by the Director of Committee on Government properties is null and void that having not been done in consonance with the provisions of the Land Use Act, 1978.
(b) The sale of the property to the 4th Defendant is valid and subsisting as same was made in conformity with the provisions of the Land Use Act.
At the trial only three (3) witnesses testified. Several exhibits were tendered. The Plaintiff, now the 4th Respondent, testified as PW.1 and tendered 7 exhibits. The Rivers State Government Gazette No 9 Vol. 18 of 27th March, 1986 containing the order revoking the plaintiff’s interest in Plot 102 is Exhibit ‘3’. The plaintiff/4th Respondent’s protest letter: PETITION ON REPORT OF SANOMI PANEL dated 16th September, 1985 is Exhibit ‘1’. Exhibit ‘7’ is the agreement evidencing the sale of the disputed Plot 102 phase 1 GRA, Port Harcourt to the plaintiff/4th Respondent.
It will appear, from the totality of the evidence at the court below, that apart from the N21,535.00 paid as deposit by the Plaintiff/4th Respondent, who testified as PW.1, that he paid nothing further to discharge his obligations under Exhibit ‘7’ – the agreement of sale. Clearly, therefore, he was prima facie in breach of the agreement.
It would also appear that the report of the Sanomi Panel did not favour the plaintiff’s retention of Plot 102: hence his protest letter, Exhibit ‘1’. There is no evidence that the report of the Sanomi Panel and Exhibit ‘3’, were set aside. The plaintiff, a lawyer, took no formal steps, apart from his Exhibit ‘1’, to set aside the report of the Sanomi Panel and the Government White Paper on it, as well as Exhibit ‘3’. I will come anon to the implications of these when I discuss the issues.
The 4th Defendant/Appellant testified as DW.1. She called another witness, DW.2 and tendered documents in evidence.
The 1st – 3rd Defendants did not testify. They made no tangible efforts to put in their evidence to establish the pleadings of 1st and 2nd Defendants. On 5th October, 1999, after several wasted opportunities given to the 1st – 3rd Defendants to put in their defence the learned trial Judge foreclosed their defence; holding at page 4 of the Additional Record of 8th May, 2006 viz:
“That the 1st to 3rd Defendants who failed again today to offer their defence in court be and they are hereby deemed to have abandoned their defence”.
It appears the efforts made for the learned trial Judge to set aside the foreclosed order was unsuccessful.
The order foreclosing the right of the 1st, 2nd and 3rd Defendants to call defence evidence is an appealable decision by dint of Section 318 read together with Sections 241 and 242 of the 1999 Constitution, as amended and Section 24 of the Court of Appeal Act, 2004. The right of appeal enured to the 1st – 3rd Defendants to appeal the foreclosure order if they were aggrieved thereby. Having not exercised their right of appeal they are deemed not to be aggrieved thereby, and that they have accepted the decision. A party aggrieved, as recently stated by the Supreme Court in NWAORGU v. ATUMA (No. 1) 2013 9 NWLR [pt. 1358] 113 at page 129, is a party who has suffered legal grievances or a party against whom a decision has been pronounced which has wrongfully deprived him of something or wrongly refused him something or wrongly affected his right or title to something. The law on this “does not grant any fiat to everybody who has interest in the subject matter, it must be one legally cognizable interest” per S. J. Adah, JCA in SENATOR ANDY UBA V. NICHOLAS C. UKACHUKWU & ORS (unreported No CA/PH/718M/2013 OF 8TH October, 2013). This right of the aggrieved party does not enure to third parties, or any party who may be the remote beneficiary of the appeal.
Coming as I do to this conclusion I should think that the Appellant’s issue 1 is a non-starter. She cannot by proxy be more aggrieved by the order foreclosing the right of the 1st – 3rd Defendants to call evidence than those defendants themselves. In otherwords, she cannot be more catholic than the Pope.
Assuming she had the right of appeal, as an interested party (and I do not think she has), she could only exercise that right upon leave and/or extension of time granted to her to so do, time within which to apply for leave to appeal and time within which to appeal having elapsed. In the circumstance ground one of the grounds of appeal, being incompetent, is hereby struck out by virtue of Order 6 Rule 6 of the Court of Appeal Rules, 2011. Consequently issue 1, being unwarranted, is hereby struck out.
The Appellant filed a total of 6 grounds of appeal. She has formulated no issues from grounds 3 and 6, which grounds having been abandoned are hereby struck out. Ground 1 of the Grounds of Appeal, and issue 1 formulated therefrom have been struck out. The remaining issues are as follows:-
ii. whether the learned trial Judge was right in granting the Plaintiff/Respondent all the reliefs sought by him when same was not substantiated with credible evidence.
iii. whether the learned trial Judge was right in holding that the sale of the property in dispute by the 1st – 3rd Defendants/Respondent to the Plaintiff/Respondent was valid as per Exhibit ‘7’ when the conditions of sale as stated in Exhibit ‘7’ were not complied with by the Plaintiff/Respondent.
iv. whether the evidence led by the 4th Defendant was weak to sustain her defence against the Plaintiff’s claim.
Only the 4th Respondent filed and exchanged brief. The 1st – 3rd Respondents filed no briefs. I have struck out Appellant’s ground 1 and issue 1 formulated therefrom. The 4th Respondent’s Issue 1, formulated from Appellant’s ground 1, will suffer similar fate. Accordingly, it is hereby struck out.
The remaining two issues formulated by the 4th Respondent are as follows:-
ii. whether the learned trial Judge was right in holding that the 4th Respondent proved his title to the property subject matter of this suit.
iii. whether the purported subsequent sale of the property subject of this suit by the Rivers State to the Appellant was valid.
The 4th Respondent’s two issues are more concise, and they cover all the field articulated by the Appellant’s issues ii – iv. I therefore adopt the 4th Respondent’s issues II and III as I prefer them to Appellant’s issues ii, iii and iv. I shall nonetheless consider the Appellant’s issues.
The undisputed fact is that the Plaintiff, the 4th Respondent, even at the commencement of this suit had paid only N21,535.00 deposit out of the purchase sum of N103,500.00. He executed Exhibit ‘7’ the purchase Agreement on 28th July, 1981. Exhibit ‘7’ is plaintiff’s own evidence. The learned trial Judge, at pages 85 and 86 of the Record reproduced paragraphs 3, 4 and 5 of the Agreement (Exhibit ‘7’), which he said were “the relevant clauses of the contract of sale viz-
3. The purchaser shall pay the balance of the purchase money within 12 (twelve) months from the date of the initial deposit of 20% (Twenty per cent) of the purchase price.
4. If the purchaser shall fail to make full payments herein before provided whether of the balance or of the instalment within 28 (Twenty-Eight) days after the expiration of 12 (twelve months) paragraph 3 herein before stipulated for the same the Vendor may by 14 (fourteen) days notice in writing determine this Agreement and shall there upon become entitled to re-enter upon the premises and repossess the same free from any right or interest of the purchaser therein and to retain all payments of whatsoever nature thereto for made by the purchaser.
5. On payment of all instalments of the balance of the purchase money the Vendor shall execute a proper assurance to the purchaser of the property.
Paragraph 3 of Exhibit ‘7’ enjoined plaintiff, now 4th Respondent, to pay the balance of N81, 965.00, having paid the deposit of N21,535.00 out of N103,000.00 on 14th March, 1981 vide Exhibit ‘5’, within 12 months and 28 days from the date of the initial deposit. Exhibit ‘5’, evidence of payment of initial deposit, is dated 14th March, 1981. That means the plaintiff, now 4th Respondent, had up to 10th April, 1982 (12 months after 14th March, 1981 plus 28 days thereafter) to pay the balance of N81, 965.00. It is therefore perverse, in the face of the unambiguous provision of paragraph 3 of Exhibit ‘7’ for the learned trial Judge to hold at page 86 of the Record that the “Defendants failed to prove the nature of the failure” of the plaintiff to pay the balance of N81,965.00 within 12 months after 14th March, 1981 when the deposit of N21,535.00 was paid by the plaintiff. The nature of the failure of the plaintiff to pay his debt is his neglect or refusal to pay the balance of N81,965.00 within the time stipulated by the agreement, Exhibit ‘7’.
The plaintiff, as PW.1, could not have been a credible witness when, himself a lawyer and inspite of the clear provision of paragraph 3 of Exhibit ‘7’ he testified, under cross-examination at page 29 of the Record that –
It is not correct that by Exhibit ‘7’ [I] was supposed to pay the full purchase price of the property within one year of the payment of the first deposit.
This piece of oral evidence materially contradicts paragraph 3 of Exhibit ‘7’.
As rightly submitted by the Appellant the learned trial Judge had misplaced the burden of proof when at pages 77 and 78 of the Record he held as follows –
DW.1 (Appellant) however did not tender the Government White Paper which she also pleaded and upon which she relied for the correctness of her information –
However, neither the Dw.2 nor Dw.1. tendered the SANOMI PANEL REPORT, or the Government White Paper recommendations on which they relied, to prove their case.
Was it not the plaintiff who introduced the SANOMI PANEL REPORT in paragraphs 13 – 16 of the statement of claim and in paragraph 3 of his Reply to the 4th Defendant’s statement of claim? In paragraph 15 of the statement of claim the plaintiff asserts categorically that “the Sanomi Panel, after the completion of its assignment recommended that the plaintiff should retain plot 102 whilst plot 334 should revert to the State Government” and that “the said decision was recorded and reported by the mass media.” He neither produced the report of the Sanomi Panel, nor did he call the nebulous “mass media” that “recorded and reported” the said decision of the Sanomi Panel. The burden of proof lies on he who asserts the affirmative. It is clear from Section 135 (1) of the Evidence Act 2004 (extant at the time decision appealed – now Section 131 (1) Evidence Act, 2011) that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. See also FAMUROTI v. AGBEKE (1991) 5 NWLR (pt. 189) 1 at 13E (SC); COMMISSIONER OF POLICE v. OGUNTAYO (1993) 6 NWLR (pt. 299) 259 at 268 E (SC).
The burden of proof in any suit or proceeding lies on that person who would fail if no evidence at all were given on either side. See ARE v. ADISA (1967) ANCR 158 at 161 – 162; MAXIMUM INSURANCE v. OWONIYI (1994) 3 NWLR (pt. 331) 178 at 192; and also Section 136 Evidence Act, 1990 (now section 132 Evidence Act, 2011).
I am therefore, in agreement with the Appellant’s counsel on authority of KATE ENTERPRISES LTD v. DAEWOO NIG LTD (1985) 2 NWLR [Pt. 5] 116 that where a fact is pleaded and no evidence is adduced establishing that pleaded fact, no onus is cast on the other side to disprove that fact pleaded for which no fact in proof thereof was offered.
It is also the law by dint of Section 149 (d) Evidence Act, 2004 (now Section 167 (d) Evidence Act, 2011) that the party who withholds any fact he has pleaded is presumed to have withheld the fact because its production would be unfavourable to him.
The learned trial Judge had wrongly placed on the defence the burden of proving their denial of asserted facts, when the plaintiff who asserted those facts himself failed woefully to prove his assertion. The law in Section 137 (1) of the Evidence Act, 2004 (now Section 133 (1) Evidence Act, 2011) is that in civil cases the burden of first proving the existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were given on either side, regard being had to any presumption that may arise on the pleadings. The plaintiff has the burden of first making out his case before the onus shifts unto the defendant to rebut. A defendant who feels that the plaintiff had failed to make out his case may simply rest his case on the case of the Plaintiff without calling any evidence. See NASR v. BERINI (1968) ANLR 269 at 270; QUO VADIS HOTELS & RESTAURANT LTD v. COMMISSIONER OF LANDS (1973) ANLR 568 at 588.
By the peculiar nature of this case the law enjoins the plaintiff to succeed on the strength of his case and not to rely on the weakness of the defence. The learned trial Judge had wrongly misplaced the burden by expecting the defence to fill up the lacuna in the plaintiff’s case.
The plaintiff testified at page 29 of the Record that he failed to pay the balance of the purchase price within one year after 14th March, 1981 because that requirement of paragraph 3 of Exhibit ‘7’ had been “overtaken by events of Government decision” but he could not tell if the said government decision was gazetted. Inspite of this poor showing of the PW.1 under cross-examination the learned trial Judge at pages 86 – 88 of the Record held that Exhibit ‘7’ was orally varied by an unverified Government Policy. The plaintiff pleaded and relied in paragraphs 15, 16 and 17 of the statement of claim “the publication on (sic) Government Gazette” for the alleged variation of his agreement in Exhibit ‘7’. He could not produce the Government Gazette. And yet the trial court came to his rescue, howbeit wrongly and perversely, to hold at page 86:
I find that there is evidence, by the plaintiff, of such promise and representation from 1st to 3rd defendants. There is pleading by the plaintiff, supported by his unchallenged oral evidence, that it was decided as a Government policy by the Okilo Civilian Administration which made the contract with him (which Government is now represented by the 1st to 3rd defendants as the successors) that the period of payment was extended to fifteen (15) years from the original one year.
And at page 87 of the Record the trial court further held that “Evidence shows that he placed reliance on the premise of Sanomi Panel that chose to substitute his Eagle Island plot for his plot in dispute”. The Sanomi Panel report was not before the court. This finding is either a product of taking extraneous matters into consideration, or relying on oral hearsay evidence to prove contents of a report of the Sanomi Panel. Either way, the approach is not admissible in law. As admitted by the trial court, a written contract, as Exhibit ‘7’, cannot be varied orally. The plaintiff, a lawyer, knows, or is expected to know, this much.
From all I have said, I do agree with the Appellant that the trial court was not right in granting all the reliefs sought by the plaintiff. The plaintiff led no credible evidence to establish all the reliefs claimed. The plaintiff did not prove his title to the disputed Plot 102 Diobu, GRA Phase 1, Port Harcourt to warrant a declaration that he is entitled to the statutory Right of Occupancy to or in respect of the said Plot 102. Having repudiated his obligation in Exhibit ‘7’ the plaintiff cannot be heard to say that title in Plot 102 Diobu passed to him in law. The totality of the evidence shows a reckless disregard or breach of the plaintiff’s obligations under Exhibit ‘7’. The breach is contractual and not constitutional. The plaintiff having breached his contractual obligations contained in Exhibit ‘7’ cannot be heard to demand for an order of injunction perpetually restraining the defendants, particularly the 1st, 2nd and 3rd Defendants, by themselves, agents servants and privies from interfering in any manner whatsoever with the plaintiff’s interest in the said plot 102 Diobu. Where parties have agreed and drawn up the terms of their agreement in a written contract the court will not by injunction aid a party to further commit breach of the agreement. Evidence shows clearly that up to the alleged Sanomi Panel report in 1984 and even to the filling of the suit in 1993 the plaintiff was still in breach of Exhibit ‘7’.
Equity follows the law. He who comes to equity must come with clean hands, and conscience too. The plaintiff, it was, who repudiated his obligations under the contract contained in Exhibit ‘7’. While in breach of his contact he came to court to request the court to restrain the co-contractor from interfering with his supposed rights under the contract he had himself repudiated.
I have not seen, from the statement of claim and the reliefs claimed by the plaintiff, how the trial court came to the finding at page 94 of the Record:
c. That the purported revocation of the Rights of Occupancy and certificates of occupancy order 196, contained in Exhibit ‘3’ (the Rivers State Official Gazette) is null and void and of no effect whatsoever, in so far as it concerns the property in dispute, by being contrary to Sections 28 (6) and 44 Land Use Act 1978, since no personal service of the Notice was executed on the plaintiff.
This finding is most perverse. The plaintiff did not, in his pleadings, complain that the revocation order Exhibit ‘3’ violated, in its making, Sections 28 (6) and 44 of the Land Use Act on the ground that there was no personal service of the revocation notice. As stated by Karibi-Whyte JSC in COMMISSIONER FOR WORKS, BENUE STATE & ORS v. DEVCON DEV. CONSULTANTS LTD & ANOR (1988) NWLR (Pt. 83) 407; it is elementary and fundamental principle for the determination of disputes between parties that the judgment must be confined to the issues raised by the parties. It is clearly not competent for the Judge to suo motu make a case for the either party or both parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him. The learned trial Judge, in the instant case, has committed this forbidden extravaganza. Surely, the perverse finding cannot stand. And that is the only basis for granting relief iii and ii claimed by the plaintiff. That is, a declaration that the sale of the said plot 102 Diobu GRA phase 1 to the 4th defendant/Appellant is illegal null and void; and a further declaration that the acquisition of plot 102 Diobu GRA Phase 1, Port Harcourt by the Rivers State Government is unconstitutional, null and void and of no effect whatsoever.
The parties and the court are bound by the pleadings. Consequently, on the principle of audi alteram partem facts not pleaded go to no issue. The same principle abhors trial by ambush.
I notice from the pleadings and the available evidence that Exhibit ‘3’ containing the revocation of the plaintiff’s interest was made in 1985. The plaintiff did nothing to have it set aside, if he was aggrieved thereby. I also notice that it was only in 1989 that the offer for sale of plot 102 Diobu GRA was made to the 4th Defendant/Appellant. She paid the purchase price in full in 1990 and executed the sale Agreement on 10th July 1990. She appears to be a purchaser for value without notice. The plaintiff came to court only in 1993 – 8 years after Exhibit ‘3’. Delay defeats equity.
That is why equity does not aid the indiligent, but only the vigilant.
From the state of pleadings, including the issues and reliefs, before the trial court the evidence adduced do not justify the judgment and orders awarded to the plaintiff/4th Respondent. Consequently, I allow the appeal. The decision and orders of the Rivers State High Court in the suit no PHC/481/93 on 14th December, 2004 are all hereby set aside. The 4th Respondent herein is hereby ordered to pay, as costs, the sum of N50,000.00 to the Appellant.
MOHAMMED LADAN TSAMIYA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother EJEMBI EKO, J.C.A. just delivered. He has carefully set out the back ground facts and meticulously considered the relevant issues and the arguments of the respective counsel for the parties. His examination of the case law and the applicable principles relevant to the determination of this appeal is quite lucid and well articulated. I have nothing to add.
It is in view of this that I find appeal in this matter meritorious and is allowed.
Consequently the decision and orders of the Rivers State High Court in suit No. PHC/481/1993 dated 14/12/2004 are all set aside. The sum of N50, 000.00 as costs against the 4th respondent and in favour of the appellant.
MODUPE FASANMI, J.C.A.: I had the opportunity of reading in draft the consolidated judgments of my learned brother Ejembi Eko J.C.A just delivered.
From the records available there is no existing record for the appeal no CA/PH/287A/2005.
The alleged notice of appeal in CA/PH/287A/2005 could not be found in any of the records before the Court. The notice of appeal is the originating process which sets the ball rolling for the proper valid and lawful commencement of an appeal. See Shelim v. Gobang (2009) 12 N.W.L.R (Part. 1156) page 435 particularly at 453- 454.
In the absence of any record indicating that there is notice of appeal in CA/PH/287A/2005, I am on the same page with my learned brother that the Appellant’s brief of argument filed on the 11th Oct. 2010 and the Respondent’s brief filed on 5th March, 2013 are incompetent and should be struck out. They are accordingly struck out.
On CA/PH/287/2005 my learned brother has dealt extensively with the issues involved. The findings of the learned trial Judge do not conform with the evidence on record. The findings are perverse. For this reason and the fuller reasons stated in the lead judgment, I allow the appeal and set aside the decision of the lower court in suit no. PHC/481/93 delivered on the 14th of December, 2004. I also abide by the consequential orders contained therein, inclusive of cost.
Appearances
G. O. Uwalaka Esq. for Appellant in CA/PH/287/2005 and 2nd Respondent in CA/PH/287A/2005.For Appellant
AND
O. Gbasam, Esq. Senior State Counsel, Ministry of Justice Rivers State for 1st – 3rd Respondents in both appeals.
A. R. George, Esq. with N. Erema Esq. for 4th Respondent in CA/PH/287/2005 and 1st Respondent in CA/PH/287A/2005.For Respondent
