ESIEGBUYA SOLOMON & ORS v. ETSEDE MONDAY & ORS (2014)

ESIEGBUYA SOLOMON & ORS v. ETSEDE MONDAY & ORS

(2014)LCN/7160(CA)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of May, 2014

CA/B/157/2007

RATIO

EVIDENCE: INADMISSIBILITY OF A PUBLIC DOCUMENT

It is undoubtless that where a public document is not certified in accordance with the provision of Section 111(1) of the Evidence Act, such a document cannot be admissible in evidence. Federal Airports Authority of Nigeria V. Wammal Express Services (Nig) Ltd (2011) 1 SCNJ 133 at 143 – 144; Aregbesola v. Oyinola (2009) All FWLR (Pt. 472) 1147 at 1180 (CA); Agagu V. Dawodu (1990) 9 NWLR (Pt. 160) 56. Therefore, secondary evidence of a public document can be admitted in evidence, if it is properly certified by the officer authorized to so do. Goodwill & Trust Investment v. Witt & Bush Ltd. (2011) 3 SCNJ 241 at 264; Okamagba v. Eke (2010) All FWLR (Pt.517) 755 at 759 (CA). Per TOM SHAIBU YAKUBU, J.C.A.

EVIDENCE: WHETHER IN THE SAME PROCEEDING A COURT CAN USE A DOCUMENT DECLARED INADMISSIBLE

Of course, the law is settled that where a court found a document as being inadmissible in evidence, the same court cannot later in the same proceeding turn round to use the inadmissible documentary evidence. Nigerian Ports Plc. v. B.P. PTE Ltd. (2013) 3 NWLR (Pt.1333) 454 (SC); Jinadu v. Esurombi – Aro (2005) All FWLR (Pt.251) 349; Oladele v. Aromolaran II (1996) 39 LRCN 937 at 987. Per TOM SHAIBU YAKUBU, J.C.A.

WHETHER CONFLICTING ORAL EVIDENCE CAN BE ASSESSED AND RESOLVED BY DOCUMENTARY EVIDENCE

I also agree with the submission of appellants’ learned counsel to the effect that documentary evidence being a hanger to be used in assessing oral evidence, conflicting evidence proferred viva voce by parties can be resolved by the documentary evidence. Indeed, where there are conflicting pieces of evidence, a party whose evidence is supported by documentary evidence has more credibility. Eya V. Olopade (2011) 11 NWLR (Pt. 1259) 505; (2011) 5 SCNJ 98.

Undisputably, the burden is on the party who tenders in evidence a documentary exhibit to throw more light on it in his evidence, that is, to demonstrate and tie the documentary exhibit to his claim. Ndulue v. Ojiakor (2013) 8 NWLR (Pt.13560 311 at 328 (SC); Egharevba v. Osagie (2009) 18 NWLR (Pt.1173) 299 (SC); (2009) 12 SCNJ 166; Fasheun v. Adekoya (1974) 6 SC 83; Kindey v. Military Governor Gongola State (1988) 2 NWLR (Pt. 77) 445 (SC). Per TOM SHAIBU YAKUBU, J.C.A.

EFFECT OF A LIMITATION LAW

The law is very settled that a limitation law takes away the right of a claimant to sue after the period stipulated in the limitation law. The authorities on this principle are a basketful. Just see a few of them. Amadi V. INEC (2013) 4 NWLR (Pt.1345) 595 at 631 (SC); Osun State Govt. V. Danlami Nig. Ltd. (2007) 9 NWLR (Pt.1038) 66; P.D.P. v. C.P.C. (2011) 17 NWLR (Pt. 1277) 485; E. Amodu V. Dr. J. Amodu (1990) 5 NWLR (Pt.150) 356 at 367; Attor. Gen. Kwara State & Ors. V. Raimi Olawale (1993) 1 SCNJ 208 at 221; Ogbimi V. Ololo (1993) 7 SCNJ (Pt. II) 447 at 454. Per TOM SHAIBU YAKUBU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

1. ESIEGBUYA SOLOMON
2. TONGBE O. EMMANUEL
3. ANUGENGE GODFREY
4. AJOFOTAN SHEYI
5. TAIYE ORO
(For themselves and on behalf of Gbokoda Zion of Gbokoda Community) Appellant(s)

AND

1. ETSEDE MONDAY
2. OLLEY WILLIAM
3. FREGENE HARRISON
4. JEMIRIGBE OFESI
5. ESTHER OKOTIE-EBOH
(For themselves and on behalf of Gbokoda Town of Gbokoda Community) Respondent(s)

TOM SHAIBU YAKUBU, J.C.A.: (Delivering the Leading Judgment): The claim of the appellants who were plaintiffs at the Delta State High Court of Justice, holden at Warri, was that they represent the Gbokoda Zion as a section of the Gbokoda Community in Warri North Local Government Council of Delta State. Hence, they are entitled to 40% of all entitlements, due to and payable to Gbokoda Community from any person, group of persons, corporate bodies, Government and/or companies operating and carrying on business in Gbokoda Community pursuant to an agreement between them and the respondents sometimes in 1997. The appellants further claimed that the respondents who represent the Gbokoda town of Gbokoda community had unilaterally altered the sharing formula of 60% to them and 40% to the appellants to 80% to the respondents and 20% to the appellants. Hence, the appellants took out a writ of summons against the respondents on 11th February, 2002, praying for certain declaratory reliefs, as contained in the extant further Amended statement of claim.

The respondents, denied the claim and in their Further amended statement of defence, they contended that there is no where known as Gbokoda Zion as a section of the Gbokoda community and that Gbokoda Zion is only a church known as Zion Mission Church in Gbokoda; hence it is not entitled to 40% share of whatever entitlements that are due to the Gbokoda Community. The respondents also filed a counter-claim whereof they prayed for certain declaratory reliefs.
The parties filed and exchanged their pleadings. They also led evidence viva voce and documentary exhibits were admitted in evidence at the trial. Learned counsel to each side addressed the court. At the end, in its judgment, the court below dismissed the appellants’ claim. The respondents’ counter claim succeeded in part.
This appeal is sequel to the judgment of the court below, delivered on 14th July, 2006. The appeal is erected on sixteen (16) grounds of appeal.
The appellants’ brief of argument settled by J. O. Aikpokpo-Martins, Esq., was dated 21st April, 2010 but filed on 22nd April, 2010 and deemed as properly filed and served by this court on 11th June, 2012. In it, twelve (12) issues were nominated for determination as follows:

“(1) Whether the Learned Trial Judge was right when she held that the Appellants were not able to show that they are entitled to 40% of all benefits, entitlements, benefits, gifts, compensation due to Gbokoda Community. OR that there was no existing sharing formula or 60% – 40% (Grounds 2 and 7).
(2) Whether the Learned Trial Judge was right when she held that Suit: W/238/99 was to challenge the illegal actions of the Appellants. (Grounds 7 & 9)
(3) Whether the Learned Trial Judge was right when she held that the Appellants were a Church in Gbokoda Community and not a section of the Community, (Ground 15, 8 & 3)
(4) Whether the Learned Trial Judge did not misdirect herself when she foiled to make finding on the failure of 1st Defendant/Respondent to give evidence. (Ground 13 & 5)
(5) Whether the Learned Trial Judge was right when she held that the Appellants were not from Gbokoda town (Grounds 3, 4 and 6)
(6) Whether the Learned Trial Judge did not misdirect herself when she placed heavy reliance on Exhibit PP to hold that the Respondents were able to trace the original roots of the families making up the 4 quarters of Gbokoda Community. (Ground 5)
(7) Whether the Learned Trial Judge was right when she relied on Exhibit E1, having held that it was an inadmissible document (Ground 12)
(8) Whether the Learned Trial Judge was right when she held that all the documents tendered by the Appellants were public documents that ought to hove been certified as required by section 112 of the Evidence Act and having not been so certified, that they could not be relief (sic) (relied) upon. (Grounds 1, 2, 7 & 11)
(9) Whether the Learned Trial Judge was right when she dismissed reliefs 1, 2, 3 and 4 of the Appellants (Grounds 10 & 16)
(10) Whether the Learned Trial Judge was right when she failed to consider the
(11) Submissions of the Appellants that the reliefs contained in the Counter-claim of the Respondents were statute barred. (Ground 14)
(12) Whether the Judgment is not against the weight of evidence.”

The respondents’ brief of argument, settled by T. C. Williams, Esq., was dated and filed on 4th July, 2012. The issues for determination as nominated by appellants’ counsel were adopted by learned counsel to the respondents; in his own brief of argument.
The appeal was argued in the following order, to wit:
Issue 1; issue 2; issues 3, 5 and 6 together; issues 7 and 8 together; issue 10; issues 9 and 11 together and issue 4. There is no argument canvassed by the appellants with respect to issue 12. Therefore, the same is deemed as abandoned. Issue 10 started and ended in issue 11. Therefore, I regard that issue as issue 10. So there is no issue 11.
In my consideration and determination of this appeal, I shall consider issues 1, 7 and 8 together; issues 3, 4, 5, 6 and 10 together; issues 2 and 9 each separately.
Issues 1, 7 and 8:
“1. Whether the Learned Trial Judge was right when she held that the Appellants were not able to show that they are entitled to 40% of all benefits, entitlements, benefits, gifts, compensation due to Gbokoda Community. OR that there was no existing sharing formula or 60% – 40%.”
7. Whether the Learned Trial Judge was right when she relied on Exhibit E1, having held that it was an inadmissible document.
8. Whether the Learned Trial Judge was right when she held that all the documents tendered by the Appellants were public documents that ought to have been certified as required by section 112 of the Evidence Act and having not been so certified, that they could not be relief (sic) (relied) upon.
With respect to issue 1, learned appellants’ counsel submitted that there was sufficient averments at paragraphs 5, 7, 9 and 10 of the further amended Statement of claim, to the effect that there are two sections of Gbokoda community and that the said sections had hitherto shared any benefit, compensation and entitlements meant for the Gbokoda community in the ratio of 60% to Gbokoda town and 40% to Gbokoda Zion. However, in 2002, the respondents unilaterally attempted to modify the sharing formula to the ratio of 80% to the respondents – Gbokoda town and 20% to the appellants – Gbokoda Zion. He referred to the pieces of evidence led by the 1st appellant to substantiate the averments in the pleadings of the appellants.
Learned appellants’ counsel referring to the contention of the respondents that the appellants perpetrated fraud with respect to the sharing formula or ratio of 60% to 40% submitted that the allegation of fraud was not particularized as to the facts relating to it. He relied on West Africa Breweries V. Savannah Bank (2002) LRCN, Vol. 100, page 1758 at 1774; Okoli V. Morecab Fin Nig. Ltd. (2007) LRCN Vol. 148, page 1158 at 1176; Jack V. Whyte (2001) FWLR (Pt. 43) 247 at 259. Learned appellants’ counsel contended that the standard of prove of charges of fraud is that of proof beyond reasonable doubt. He relied on Akpunonu V. Beakart (2000) LRCN Vol. 80, page 2754 at 2766; Total Nig. Ltd. V. Mokwa (2003) FWLR (Pt.148) 1343; Jules V. Ajani (2001) FWLR 763 at 775; and that the respondents neither led evidence and proved the allegation of fraud.
Appellants’ learned counsel insisted that with the oral and documentary evidence, particularly exhibits B, B1, B2, C and C1, there was sufficient evidence by which the learned trial judge could have assessed the oral evidence, in favour of the appellants. He placed reliance on Fagunwa V. Adibi (2004) LRCN Vol. 120. Page 4548 at 4567; Nuhu v. Fufore L.G.C. (2004) FWLR (Pt.193) 277. Furthermore, he insisted that Exhibit E1, being the document tendered in evidence by the respondents which admitted the fact of the sharing formula, was an admission against the interest of the respondents which needed no further proof. He placed reliance on Owie v. Ighiwi (2005) LRCN Vol. 124, page 503 at 520; Narindex Trust Ltd. v. N.I.C.M.B. (2001) FWLR (Pt.49) 1546 at 1558. He also submitted that section 75 of the Evidence Act operates as an estoppel against the respondents and that Exhibit E1, not having been challenged, was credible and ought to have been acted upon by the learned trial judge. He placed reliance on Ezennah v. Atta (2004) LRCN Vol.116 Page 3432 at 3457.
It is the contention of the appellants’ counsel on issue 7 that since the learned trial judge had found that Exhibit E1 being part of the documentary evidence which were tendered in evidence by the 1st appellant and which the learned trial judge had held were inadmissible because they were public documents which were not duly certified, she ought not to have relied on the same Exhibit E1 to say that the appellants are not a part of the Gbokoda community. Learned appellants’ counsel therefore submitted that since Exhibit E1 was held to be inadmissible by the learned trial judge, the latter could not have turned round again to rely on the same document in order to reach a decision. He placed reliance on Jinadu v. Esurombi-Aro (2005) All FWLR (Pt.251) 349 at 371.
Arguing issue 8, learned appellants’ counsel submitted that with the exception of Exhibits O, K and Q which were processes filed in the registry of the Delta State High Court, and are public document which were duly certified in accordance with the provisions of Section 112 of the Evidence Act; all the other documents tendered in evidence by the 1st appellant were private and not public documents by virtue of Section 109 of the Evidence Act. Therefore, according to appellants’ learned counsel, those documents needed no certification under Section 112 of the Evidence Act. He referred to Section 110 of the Evidence Act and submitted that this court has the power to re-evaluate the exhibits tendered in evidence in order to reach a just decision. He placed reliance on Iwuoha v. NIPOST (2003) LRCN Vol. 110. Page 1622 and 1645.
With respect to issue 1, respondents’ counsel argued it at paragraphs 1.0 to 1.26 of his brief of argument. He submitted that there was no evidence, whatsoever, that there was an existing sharing formula of 60% and 40% before the emergence of the 1st appellant, Moses Olley and Canaan Ajagbawa, who inserted the said formula in an agreement for the Gbokoda community without their consent and approval so that when the community became aware of it, the same was stopped. He referred to the evidence of the 5th respondent at page 99 of the record of appeal. Learned respondents’ counsel insisted that it was incumbent on the appellants to have proferred historical evidence as to the origin of the 60/40% sharing formula in question, which they failed to do. Hence the conclusion by the learned trial judge that the appellants did not lead evidence to show that there was an existing 60/40% sharing formula and no records of such proof conclusively and satisfactorily tendered by the appellants. Learned respondents’ counsel insisted that the 60/40% sharing formula was fraudulently introduced by the 1st appellant, Moses Olley and Canaan Ajagbawa, as alleged by the respondents.
Learned counsel to the respondents, argued issues 7 and 8 at paragraphs 4.0 to 5.12 of his brief of argument. It was submitted by respondents’ learned counsel that Exhibit E1 heavily relied upon by the appellants, contradicts the evidence-in-chief of the 1st appellant who testified to the fact that there are Olley, Etsede, Jemiregbe, Ama, Essio and other families in Gbokoda town whilst Exhibit E1 talked of four families – Amah, Jemiregbe, Olley and Etsede, in Gbokoda town. And that the learned trial judge relied on the uncontradicted and credible evidence of DW1 and DW2 to hold that Gbokoda Zion is not a quarter in Gbokoda community. He also submitted that since the evidence of DW1 and DW2 were not contradicted and the appellants did not offer any superior counter evidence to the effect that Gbokoda Zion is a quarter in Gbokoda town, the learned trial judge was right to have believed the DW1 and DW2, to the effect that Gbokoda Zion is a Zion Mission Church in Gbokoda and does not form a section of Gbokoda community. He placed reliance on Ya’u V. Dikwa (2001) 5 WRN 40; SPDC v. Otoko (1990) 6 NWLR (Pt.159) 693.
Learned respondents’ counsel furthermore, submitted that in cases bordering on establishing a customary law and traditional evidence, there must be other evidence to that effect apart from the person asserting it and that in the circumstances of this case only the 1st appellant gave evidence that Gbokoda Zion forms a section of Gbokoda town. He relied on Lipede v. Sonekan (1995) 1 SCNJ 184.
Arguing issue 8, the learned respondents’ counsel submitted that the learned trial judge never relied on Exhibit E1. He referred to pages 148 – 149 of the record of appeal. It is also the contention of respondents’ learned counsel that Exhibits A, A1, B, B1, C, C1, D, E, E1, F, F1, G, G1, P and P1 are all public documents because they all “are for and/or from or to sections/persons of the community for and on behalf of the community or section of the community.” He referred to Aregbesola v. Oyinlola (2009) All FWLR (Pt.4512) 1147 at 1159. Therefore, the said documents being photocopies, needed to be certified for them to be admissible in evidence. He referred to section 97(2)(c) of the Evidence Act.
Learned respondents’ counsel furthermore, submitted that though some documents are private in nature, when they are sent to or from and on behalf of a section of a community, they become public records kept by a private person. He relied on Edoziem V. Onwunike (2005) All FWLR (Pt.290) 1597 and that a power of Attorney is a public document on the authority of Okumagba v. Eke (2010) All FWLR (Pt.517) 755.
Learned respondents’ counsel also submitted that the fact that the respondents did not object to the admission in evidence of some documents did not mean that the court must admit in evidence inadmissible evidence and that the court can expunge such inadmissible evidence from the record as at the time of writing the judgment on the case. He relied on Suntai v. Tukur (2003) FWLR (Pt.157) 1128 at 1134.
Resolution of issues 1, 7 & 8.
Let me start with whether or not Exhibits A, A1, B, B1, B2, C, C1, D, E, E1, E2, F, F1, G, G1, P, and P1 are public documents which required certification pursuant to Section 109 vis-Ã -vis Section 111(1) of the Evidence Act. Section 109 of the Evidence Act provides, to wit:
“109.The following documents are public documents:
(a) documents forming the acts or records of the acts –
(i) of the sovereign authority,
(ii) of official bodies and tribunal, and
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere;
(b) public records kept in Nigeria of private documents.”
Section 111(1) of the Evidence Act provides, inter alia;
“111(1) Every public officer having the custody of public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certification written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certification shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
It is undoubtless that where a public document is not certified in accordance with the provision of Section 111(1) of the Evidence Act, such a document cannot be admissible in evidence. Federal Airports Authority of Nigeria V. Wammal Express Services (Nig) Ltd (2011) 1 SCNJ 133 at 143 – 144; Aregbesola v. Oyinola (2009) All FWLR (Pt. 472) 1147 at 1180 (CA); Agagu V. Dawodu (1990) 9 NWLR (Pt. 160) 56. Therefore, secondary evidence of a public document can be admitted in evidence, if it is properly certified by the officer authorized to so do. Goodwill & Trust Investment v. Witt & Bush Ltd. (2011) 3 SCNJ 241 at 264; Okamagba v. Eke (2010) All FWLR (Pt.517) 755 at 759 (CA).

Exhibit A – is a Power of Attorney date d 27th April, 1997 and donated to Solomon Oris Eseigbuya, Esq. by the Zion Section of the Gbokoda community, “to represent the interest of the entire Zion in the management of the affairs of Gbokoda community as a whole, with powers to negotiate with oil companies, Government Agencies etc and to receive compensation, Public Relation payments and any other entitlements due to Gbokoda Zion.” Solomon Eseigbuya is the 1st appellant herein.
Exhibit A1, is also a Power of Attorney dated 20th June, 1997 and donated by the GBOKODA Community in favour of Messrs Moses P. Olley; Solomon Oris Eseigbuya and Cannaan Ajagbawa, with respect to the management of the affairs of the community and also pertaining to “negotiation with oil companies, Government Agencies, Local State and Federal Government etc and to receive, on behalf of the entire community, compensations, Public Relation payments and any other entitlements due to the community.” The 1st appellant is one of the donees of the power of attorney.
Exhibit B – is a Joint Acknowledgment dated 19th August, 1997 indicating the disbursement of the sum of Five hundred thousand naira (N500,000.00) and shared between the Gbokoda town and Gbokoda Zion on the sharing formula or ratio of 60% Gbokoda town and 40% Gbokoda Zion.
Exhibit B1 of 17th September, 1998 indicates a sharing of some money in the ratio of 60% – Gbokoda town and 40% Gbokoda Zion;
Exhibit B2 is an acknowledgment note dated 17th September, 1998 signed by one William Olley and Moses Olley.
Exhibit C – dated 11th March, 1999 is a letter from the Gbokoda community addressed to the public Affairs Manager, Chevron Nig Ltd which nominated some five candidates of Gbokoda community, for the award of scholarship to study in the University and some colleges respectively.
Exhibit C1 contains an allocation of some items such as goats, bags of rice, beans etc to Gbokoda town by Gbokoda community. It is dated 16th December, 1998. Attached to same Exhibit C1 is also a list of some items such as goats, bags of rice, beans etc. allocated to Gbokoda Zion by Gbokoda community. It is also dated 16th December, 1998. Both documents are in relation to Christmas gifts to the Gbokoda community by Chevron Nig. Ltd.
Exhibit D is a certified True copy of a Resolution of a meeting by the council of Elders of Gbokoda Zion held on 22nd January, 2002 which mandated certain named persons to represent the Gbokoda Zion to institute and action in court against Gbokoda town in order to reject the modification of the 80/20% formula unilaterally carried out by Gbokoda town and to insist on the sharing formula of 60/20% of gifts to the community by Chevron Nig. Ltd.
Exhibit E – is a letter from solicitors of Gbokoda Zion dated 21st January, 2002 and addressed to the council of Elders of Gbokoda Town, Gbokoda community, which complained of the allocation of the sharing formula of 60% to 40% by the Gbokoda town to 80% to 20% of some items meant for the community and threatened court action against the Gbokoda town.
Exhibit E1, is a Reply to Exhibit E and addressed to the solicitors of the appellants by the solicitors of the respondents, denying the sharing formula/ratio of 60% to 40% but stated that Gbokoda Zion, just like any other family in Gbokoda community would be entitled to 20% of any gift/package received by the Gbokoda community. It is dated 29th January, 2002. It is indicated as having been certified by A.C. Registrar, without his name stated thereon.
Exhibit E2 is another letter from the solicitors of the appellants to the respondents dated 1st January, 2002 in respect of the controversy relating to the sharing formula/ratio which was applicable before. There is an indication thereon that it was certified by an A.C. Registrar, the name of whom is not indicated thereon.
Exhibit F – is a receipt for the filing fees of payment for notice of appeal issued by A. Oweka and Co. to Gbokoda community and dated 9th December, 2001.
Exhibit F1 – is also a cash receipt issued by G. A. Ovie & Co to Gbokoda community as professional fees.
Exhibit G – is a letter dated 21st December, 1998 addressed to the council of Elders of Gbokoda community, Warri by the 1st appellant, upon some complaints on agreement entered into by Moses Olley and Cannan Ajagbawa.
Exhibit G1 – is a reply to Exhibit G.
Exhibit P – is a letter from a solicitor dated 26th November, 1997 addressed to Mr. Moses Olley, warning him not to hold himself out as representing Gbokoda community.
An unnamed person as Registrar certified it.
Exhibit P1 is dated 12th December, 1997 by which Gbokoda community representatives was dissolved.
Exhibit Q is a copy of a summons on notice in respect of suit No. W/238/99 from the High Court of Justice Warri dated 6th September, 1999. It was allegedly certified by an unnamed Registrar.
Upon a careful perusal of Exhibits A and A1 which are copies of powers of Attorney, they each are doubtless, public documents which needed to have been certified under Section 111(1) of the Evidence Act before being admitted in evidence. Okamgba v. Eke (supra). They are therefore inadmissible documents.
I am satisfied that Exhibits B, B1, B2, C, C1, D, E, E1, E2, F, F1, G, G1, P and P1 are not public documents. They are each private documents of correspondences between private persons. None of them required any certification before being admitted in evidence.
In the circumstances it was wrong of the learned trial judge to have held that all the documents tendered for admission in evidence by the appellants were inadmissible in evidence.
I have considered the contention of appellants’ learned counsel to the effect that the learned trial judge at one stage held that Exhibit E1 was inadmissible and at another stage later also relied on the said Exhibit E1. I think that the learned appellants’ counsel read what the learned trial judge said at pages 148 – 149 of the record of appeal out of con. I cannot see where the learned trial judge relied on Exhibit E1. She only referred to it while considering the appellants’ contention that the said Exhibit E1 was a fulcrum upon which the sharing formula or ratio of 60% to 40% was anchored, which was not. It was thereafter that the learned trial judge came to the conclusion at page 153, lines 1 – 10 of the records that the said Exhibit E1 was inadmissible in evidence. I have already said that the conclusion by his Lordship was wrong because Exhibit E1 is a private and not a public document.
Of course, the law is settled that where a court found a document as being inadmissible in evidence, the same court cannot later in the same proceeding turn round to use the inadmissible documentary evidence. Nigerian Ports Plc. v. B.P. PTE Ltd. (2013) 3 NWLR (Pt.1333) 454 (SC); Jinadu v. Esurombi – Aro (2005) All FWLR (Pt.251) 349; Oladele v. Aromolaran II (1996) 39 LRCN 937 at 987.

However, in the instant case, that was not the position of things at the trial court.
The learned appellants’ counsel’s submission that this court has the same power as the court below to evaluate the documentary exhibits and come to a just decision on the appellants’ claim, rightly finds support on the authorities. Mrs. Ape Salisu & Ors v. Alhaji Lateef Odumade & Ors (2010) 2 SCNJ 257; Iwuoha V. Nipost (2013) 110 LRCN 1622.

In the instant case, the 1st appellant having tendered in evidence an avalanche of documentary exhibits aforementioned, was duty bound to demonstrate which of them assisted the appellants in proving the origin and existence of the sharing formula/ratio of 60% to Gbokoda town and 40% to Gbokoda Zion of the entitlements to the Gbokoda community from Government, Oil Companies, etc. Upon a careful perusal of the 1st appellant’s evidence, I am unable to see how he demonstrated and tied the documentary exhibits at his instance to assist the appellants’ claim.
Therefore, it is not difficult for me to agree with the learned trial judge that there was no sufficient evidence proferred by the appellants to prove that Gbokoda Zion is a section of the Gbokoda community.
The pieces of evidence by the DW1 and DW2 for the respondents are to the fact that Gbokoda Zion consists of persons who reside around the Gbokoda Zion Mission Church in Gbokoda community. Hence, to my mind, the learned trial judge was right in coming to the conclusion that the appellants did not proof the existence of any sharing formula/ratio of 60% to 40% in question. The appellants did not so demonstrate with the documentary exhibits at their instance.

The law is settled that where a mass of documents are tendered in evidence and not demonstrated as to their value by oral evidence, no duty is cast or placed on a court to give them any probative value. Belgore V. Ahmed (2013) 8 NWLR (Pt.1355) 60 at 100; Flash Fixed Odds Ltd. V. Akatugba (2001) 9 NWLR (Pt. 717) 46.

In sum, I resolve issues 1 and 7 in favour of the respondents whilst I resolve issue 8 in favour of the appellants.
Issues 3, 4, 5, 6, and 10 together
(3) Whether the Learned Trial Judge was right when she held that the Appellants were a Church in Gbokoda Community and not a section of the Community.
(4) Whether the Learned Trial Judge did not misdirect herself when she failed to make finding on the failure of 1st Defendant/Respondent to give evidence.
(5) Whether the Learned Trial Judge was right when she held that the Appellants were not from Gbokoda town.
(6) Whether the Learned Trial Judge did not misdirect herself when she placed heavy reliance on Exhibit PP to hold that the Respondents were able to trace the original roots of the families making up the 4 quarters of Gbokoda Community.
(10) Whether the Learned Trial Judge was right when she failed to consider the Submissions of the Appellants that the reliefs contained in the counter-claim of the Respondents were statute barred.
The thrust of the submission of learned appellants’ counsel with respect to issues 3, 5 and 6 is that the learned trial judge did not properly evaluate the evidence led before him vis-Ã -vis the state of the averments in the pleadings of the parties, when the court held that the appellants were a church and not indigenes of Gbokoda community. The linch pin of the appellants’ contention on issue 4 is that the respondents ought to have called the 1st Defendant at the trial court to give evidence.
Issue 10 is targeted at the respondents’ counter-claim. Firstly, the appellants’ learned counsel contended that the learned trial judge did not consider the submission that the respondents’ counter-claim was statute-barred and this occasioned a miscarriage of justice. He referred to Jinadu V. Esurombi-Aro (supra) and urged us to consider the question of the respondents’ counter-claim, as being statute barred.
It is the contention of the learned appellants’ counsel that the respondents’ counter-claim was filed on 20th December, 2005. Furthermore, he submitted that the cause of action between the parties arose on 26th November, 1997 when Exhibit P was made, regarding the dispute between the parties. Therefore, according to learned appellants’ counsel, a simple mathematical calculation from 26th November, 1997 to 20th December, 2005 is outside six years as stipulated under S.4 of the Limitation Law of Bendel State Cap. 89 Vol. IV applicable to Delta State.
In his response, the learned counsel to the respondents contended that since the respondents alleged that the ratio of 60/40% was fraudulently inserted in the transaction in question by the appellants, no court can enforce such an illegal transaction and that the question of fraud/illegality in the transaction is an exception to the applicability of the Limitation Law of Bendel State relied upon by the appellants. He placed reliance on Walter V. Skill Nig. Ltd (2000) 13 WRN 60; Opara V. Omolu (2000) 12 WRN 42.
Furthermore, learned respondents’ counsel submitted that the pieces of evidence adduced by DW1, DW2 and 5th respondent that there was no sharing formula of 60/40% in Gbokoda community until the 1st appellant and his cohorts fraudulently/illegally introduced it, was accepted by the learned trial judge.
Resolution of issues 3, 4, 5, 6 & 10:
Having considered the submissions of both learned counsel on these issues aforementioned, l am satisfied that with my resolution of issues 1 and 7 against the appellants, there is hardly any merit to be found in the contention of the appellants with respect to issues 3, 4, 5 and 6. The appellants claimed some declaratory reliefs against the respondents. In such a claim, the onus was squarely on the appellants as the claimants to prove their claim on a preponderance of evidence. Declarative reliefs are not granted on a platter of gold. They are granted as products of credible and cogent hard evidence proferred at the instance of the claimant, such as the appellants herein. Dumex Nig. Ltd V. Peter Nwakhoba & Ors. (2009) All FWLR (pt. 461) 842 at 850 (SC); Ejiogu V. Irona (2008) All FWLR (Pt.442) 1066 at 1101; Col. Nicholas Ayanru Rtd. v. Mandilas Ltd. (2007) 10 NWLR (Pt.1043) 463 at 477 – 478; (2007) 4 SCNJ 388; Chief L.L.B. Ogolo V. Joseph Ogolo (2006) All FWLR (Pt.313) 1.
The superior and uncontradicted pieces of evidence given by the DW1 and DW2 in favour of the respondents needed no further embellishment by any other witness such as the 1st Defendant at the court below whom the respondents did not consider to be a vital witness in their case. I do not think it was the duty of the respondents to call a particular witness who the appellants wished, was called as a witness through whom their claim could be proved. Aiku V. Idowu (2006) All FWLR (Pt. 293) 361; Keyamo V. House of Assembly, Lagos State (2000) 11 WRN 27.
With respect to issue 10, I have perused the respondents’ brief of argument. I discovered that learned respondents’ counsel did not offer any argument therein, in response to the contention by the appellants’ counsel that the learned trial judge did not consider the submission with respect to the respondents’ counter-claim as being statute barred. In the circumstances, the respondents are deemed to have conceded that point canvassed by the appellants. Dr. Arthur Nwankwo & 2 Ors. v. Alhaji Umar Musa Yar’Adua & 40 Ors. (2010) 3 SCNJ (Pt.1) 244 at 265; Okongwu v. Nigeria National Petroleum Corporation (NNPC) (1989) 7 SCNJ 106; (1989) 4 NWLR (Pt.115) 296; (1989) 7 SC (Pt. 1) 127; Richard Osa Nekpenekpen V. Mr. Iwazor Egbemhonkhaye (2014) LPELR-22335 (CA).
I shall now proceed to consider and determine whether the respondents’ counter claim is statute barred by virtue of Section 4 of the Limitation Law of Bendel State Cap. 89 vol. IV, as applicable to Delta State.
The law is very settled that a limitation law takes away the right of a claimant to sue after the period stipulated in the limitation law. The authorities on this principle are a basketful. Just see a few of them. Amadi V. INEC (2013) 4 NWLR (Pt.1345) 595 at 631 (SC); Osun State Govt. V. Danlami Nig. Ltd. (2007) 9 NWLR (Pt.1038) 66; P.D.P. v. C.P.C. (2011) 17 NWLR (Pt. 1277) 485; E. Amodu V. Dr. J. Amodu (1990) 5 NWLR (Pt.150) 356 at 367; Attor. Gen. Kwara State & Ors. V. Raimi Olawale (1993) 1 SCNJ 208 at 221; Ogbimi V. Ololo (1993) 7 SCNJ (Pt. II) 447 at 454.

Irrefutably, the cause of action with respect to the respondents’ counter-claim arose on 26th September, 1997 and the counter-claim was filed on 20th December, 2005. Hence, the counter-claim was filed about 8 years after the cause of action arose. Clearly this is outside the six years prescription in Section 4 of the Limitation Law, Cap. 89 Laws of Bendel State, as applicable to Delta State.
The contention of the respondents to the effect that where fraud is alleged in a transaction, limitation law becomes inapplicable, very curiously was not responded to by learned appellants’ counsel in a Reply brief of argument. In such a situation, it is deemed that the said point of law has been conceded by the appellants. Dr. Arthur Nwankwo V. Alhaji Umaru Musa Yar’Adua (supra) and other authorities referred to earlier in this judgment on the point are apt and applicable. Be that as it may, let us examine the law with respect to illegality and fraud, alleged in this case.
This court in Walter V. Skyll Nig Ltd. (2000) 13 WRN 60 (2001) 3 NWLR (Pt.701) 438 had this to say with respect to the effect of illegal transaction, to wit:
“It is a settled principle of law that the plaintiff cannot succeed in his claim where it will be unable to get at the relief he is seeking to recover without showing that the substratum of the claim is illegal. The principle to be applied would be those succinctly stated in the case: Attorney General v. Hollingworth (1857) 2 H & N 416, 423 by Baron Watson as follows;
“The rule laid down in the case: Simpson v. Bloss (1816) 7 Taunt 246 is that, where a demand connected with an illegal transaction can be sued on without the necessity of having recourse to the illegal transaction the plaintiff can maintain an action; but wherever it is necessary to resort to the illegal transaction to make out a case upon the new security the new security cannot be enforced”
See also Thirwell v. Oyewumi (1990) 4 NWLR (Pt.144) 384, 402.
The provisions of Sections 1(a) (ii) and (c)(ii) of the Foreign Exchange (Anti Sabotage) Act Cap. 114 of the Laws of the Federation of Nigeria, 1990 is applicable to the transaction in the instant appeal and create crimes punishable under S.2 thereof which prescribes various penalties for infringements. It is crystal clear that any agreement which violates the provisions of the Exchange Control Act Cap 113 or Exchange Control (Anti-Sabotage) Act Cap 114 is not only illegal it is equally criminal.
I agree with the learned counsel for the appellant that the illegality of the transaction that led to this suit and of the obligation sought to be enforced was apparent from the evidence proferred at the trial by the respondent and the trial court policy and morality by refusing respondent’s claim. Even if the when illegality of the contract had not been raised or pleaded when it was disclosed in evidence it was incumbent on the court to deal with it. When a contract is ex facie illegal whether such an illegality had been pleaded or not, the court will not close its eyes against it. It is not the duty of any court to lend its stamp of validity to any illegal transaction: See Ekwunife v. Wayne Africa Ltd. (1989) 5 NWLR (Pt. 122) 422 at 437 and Sodipo v. Lanminkainen Oy Nos. (1) and (2) (1986) 1 NWLR (Pt.15) 220; 238; (1985) 2 NWLR (Pt.8) 547, 557.
There is, therefore, no substance in the submissions of the learned counsel for respondent in its brief that the law appellant proposed to rely upon were not pleaded in the further amended statement of claim. It should be clear to him by now that illegality need not to be expressly pleaded. Once it is apparent from the record that a contract is prima facie tainted with irregularity the court has a duty not to enforce it. Not only that it is also elementary rule of pleadings that the facts and not law are to be pleaded but the principle does not prevent the fact which bring the matter within the law from being pleaded. In Lever Brother Ltd. V. Bell (1931) 1 KB 557 at 582 – 3 Scrutton J., said:-
“In my opinion the practice of the court has been to consider and deal with the legal result of the pleaded facts though the particular legal result alleged is not stated in the pleadings……………..”
In Shaw v. Shaw (1954) 2 All FR 638, 645 the Court of Appeal (England) per Denning L.J. stated thus:
“It is said implied warranty is not alleged in the pleadings, but all the material facts are alleged, and in these days, as long as the material facts are alleged, that is sufficient for the court to proceed to judgment without putting any particular legal label on the cause of action.”
It is therefore not one of the requirements to tag any illegal label to any matter sought to be pleaded once the fact which bring it within the law is pleaded.” Per Is Ayo Salami, JCA.
Further see Umaru V. Tunga (2012) All FWLR (Pt. 607) 726 (CA); Ehanire V. Erhunmwuse (2007) LPELR-8556 (CA).

In Afegbai V. Attor. Gen. Edo State (2001) 11 SCM 42 at 60, his Lordship Karibi-Whyte JSC., adopted the statement of Lord Selbourne L.C. in Earl of Anylesford V. Morris (1873) 8 Ch. 484 at 490, inter alia:
“Fraud does not here mean deceit or circumvention, it means an unconscientiously use of power arising out of these circumstances and conditions and when the relative positions of the parties is such as prima-facie to raise this presumption, the transaction cannot stand unless the person claiming the benefit of it is able to repel the presumption by contrary evidence, proving it to have been in point of fact, fair, just and reasonable.”
In Adimora V. Ajufo & Ors. (1988) 1 NSCC. 1005, his Lordship, Oputa, JSC., stated that:
“Fraud implies a wilful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to. Fraud for the purposes of civil law includes acts, omissions and concealments by which an undue and unconscientious advantage is taken of another: Green v. Nixon (1857) 23 Bear 530 at P. 535.”

Now, when did the respondents/claimants discover the fraudulent acts of the 1st appellant, Moses Olley and Canaan Ajagbawa, in this case? The 5th respondent’s evidence under cross-examination at pages 102- 103 of the record of appeal, testified to the fact that, to wit:
“It was not known that fraud has long being in the community since 1997. My mother and others started making trouble with the community, when they discovered there was fraud in 1999 and not 1997.”
The 5th respondent is the only person who expressly stated that the fraud was discovered in 1997, albeit that she later said it was discovered in 1999. Learned appellants’ counsel submitted that vide Exhibit P it was in 1997 that the respondents got wind of the alleged fraud. If that is so, the respondents’ cause of action in counter-claim which arose in 1997 and by virtue of Section 4(1) of the Limitation Law Cap. 89 Laws of Bendel State, the said cause of action abated in 2003. However, if the fraud was discovered in 1999, according to the 5th respondent’s later stand, it meant that the cause of action arose six years from thence, which was 2005. I am prepared to accept the evidence of the 5th respondent that the fraud was discovered in 1997 and not 1999 because her piece of evidence with the discovery of the alleged fraud in 1997 accords with the documentary evidence, per Exhibit P which does not lie. Documentary evidence, if not challenged in any manner pejorative to its integrity and authenticity must be believed and accepted. Lasisi Ogbe v. Sule Asade (2009) 12 SCNJ 288.

In the circumstance, the respondents’ counter-claim appears to be caught by Section 4 read together with Section 25 of the Limitation Law, Cap 89, Laws of Bendel State, 1988. Section 25 Provides:
“Where, in the case of any action, for which a period of limitation is prescribed by this Law, either –
(a) the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent:
or
(b) the right of action is concealed by the fraud of any such person as aforesaid; or
(c) the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:
Provided that nothing in this section shall enable any action to be brought to recover, or enforce any charge against, or set aside any transaction affecting, any property which –
(i) In the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed, or
(ii) In the case of mistake, has been purchased for valuable consideration, subsequently to the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.”
Therefore, the period of limitation began to run from the date the fraud was discovered, which was in 1997. By simple arithmetical calculation, the period from 1997 to 2005 is 8 years. That being the situation, it is obvious that the respondents’ counter-claim is statute barred by virtue of Section 4 read together with Section 25 of the Limitation Law, Cap. 89 Laws of Bendel State, applicable to Delta State. Hence, the respondents’ counter-claim was liable to be struck out because the court below had no jurisdiction to have entertained it. It was clearly incompetent. The same is struck out.
I resolve issue 10 in favour of the appellants.
Issue 2 says:
“Whether the Learned Trial Judge was right when she held that suit: W/238/99 was to challenge the illegal actions of the Appellants.”
The contention of appellants’ learned counsel on this issue is that the learned trial judge was in error for having not properly evaluated Exhibit Q before coming to the conclusion that the suit No. W/230/99 was instituted against the illegal actions of the appellants, upon the illegal acts “being brought to the notice of the accredited representatives of the community”.
Resolution of issue 2:
I have considered the submissions of both learned counsel to the parties herein. I have perused Exhibit Q which is a copy of a summons on notice in respect of suit No. W/238/99 filed at the High Court of Justice, Warri. It is dated 6th September, 1999. The said document was allegedly signed by an unnamed and unknown Registrar or person. Unarguably, Exhibit Q is a public document by virtue of Section 109 of the Evidence Act. For it to be admissible in evidence or be ascribed any probative value, it ought to have been duly certified by the appropriate officer in whose custody it was kept by virtue of Section 111(1) of the Evidence Act. Goodwill & Trust Investment v. Witt and Bush Ltd. (2011) 3 SCNJ 241.
It is crystal and clear to me that Exhibit Q was not duly certified by the appropriate officer authorized to so do. Therefore, in my considered opinion, the said Exhibit Q has no probative value, hence the finding of the learned trial judge with respect thereto, to the effect that it was instituted against the illegal actions of the appellants, when the illegal acts were “brought to the notice of the accredited representatives of the community”, was baseless
Issue 2 is accordingly resolved in favour of the appellants.
Issues 9:
(9) Whether the Learned Trial Judge was right when she dismissed reliefs 1, 2, 3 and 4 of the Appellants
The grouch of the appellants with respect to issue 9 is that the learned trial judge did not evaluate the evidence led in relation to the existing relationship between the appellants and the respondents in the community.
Resolution of issue 9
I feel that there is no need to rehash the submissions of learned counsel to the parties herein on this issue again. I have painstakingly perused and deeply considered them, and they are largely on the question of evaluation of evidence at the court below which was extensively dealt with earlier in this judgment while considering issues 1, 7 and 8, of which issues 1 and 7 were resolved against the appellants. I still maintain the considered opinion that the appellants failed to prove their claim on a preponderance of evidence. Hence, the conclusion arrived at by the learned trial judge that:
“On a preponderance of evidence the plaintiffs who led evidence through 1st plaintiff did not show that there was on existing formula sharing to 60 – 40% and no records of such proof conclusively and satisfactorily were tendered.”
See page 151 of the record of appeal.
I cannot agree any less, with the learned trial judge. I, therefore adopt my reasoning on issues 1 and 7 and come to the inevitable conclusion that issue 9 is not available to the appellants, hence it is also resolved against them.
In the end issue 9 is resolved against the appellants.
In all, the appeal succeeded in part on issues 2, 8 and 10 only. However it is dismissed on issues 1, 3, 4, 5, 6, 7, and 9.
I, affirm the judgment of P. O. Onajite-Kuejubola, J., delivered on 14th July, 2006 on suit No. W/39/2002with respect to the appellants’ claim, but allow the appeal with respect to the counterclaim, which is ordered as struck out.
Each side to bear own costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read in draft the judgment just delivered by my learned brother TOM SHAIBU YAKUBU, J.C.A. I agree with the comprehensive determination of all the issues in controversy between the parties. I have nothing useful to add. I also affirm the judgment of Hon. Justice P. O. Onajite-Kuejubola J. delivered on 14th July, 2006 in Suit No. W/39/2002 in respect to the appellant’s claim, but allow the appeal in respect of the counter-claim which is hereby struck out being statute barred. No order as to costs.

AYOBODE O. LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, TOM SHAIBU YAKUBU, JCA. His lordship has dealt extensively with all the Issues raised for determination in the instant appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the said Judgment. I have nothing to add.
In the circumstances, I too having resolved issues 2, 8 and 10 in favour of the Appellants and issues 1, 3, 4, 5, 6, 7 and 9 against the Appellants, find the appeal to succeed in part. In the final analysis, the judgment of the lower court delivered on 14/7/2006 is affirmed as it relates to the Appellants’ claim. The appeal is however allowed in relation to the counter-claim, which is hereby struck out.

Appearances

J. O. Aikpokpo-Martins, Esq.For Appellant

AND

B. V. Jakpa, Esq.For Respondent