MR. DAVIDSON OGWUDIRE v. AUSTEN OBEGWE & ANOR
(2014)LCN/7284(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of June, 2014
CA/OW/132/2011
RATIO
WHETHER A GROUND OF APPEAL CAN ONLY BE SOURCED FROM THE RATIO DECIDENDI OF THE JUDGMENT APPEALED AGAINST.
It has always been stated that a ground of appeal or issue for determination can only derive from a valid and live complaint in the judgment appealed against, that is, from the ratio decidendi. See Ayangoke & Anor v. Keystone Bank Ltd (2013) LPELR-21896(CA), Shettima v. Gond (2011) 18 NWLR (Pt. 1297) 413; Unilorin v. Olawepo (2012) 52 WRN 42. per ITA G. MBABA,J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
MR. DAVIDSON OGWUDIRE Appellant(s)
AND
1. AUSTEN OBIGWE
2. THE REGISTRAR OF DEEDS, OWERRI Respondent(s)
ITA G. MBABA,J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Imo State High Court in Suit No. HOW/276/1992 delivered on 23/11/2010 by Hon. Justice N. B. Ukoha, where the lower court awarded the 1st Respondent (the 1st Defendant at the trial) the property, registered as 13/13/212.
By a writ, of summons, filed on 25/8/1992, the Appellant, as claimant at the court below, sued the 1st Defendant (1st Respondent herein) for the following reliefs:
“(a) A declaration that the Power of Attorney registered as No. 66 at in page 66 Volume 500 in the Lands Registry, Owerri, is void by reason of fraud and should be set aside.
(b) An order for possession of land structures therein, situate at Ugwu Orji Owerri, within Jurisdiction, by the court.
(c) Order of Court for defendant to accept refund of four hundred and twenty five thousand naira paid by the defendant to the claimant, as part payment of the contract sum.
(d) Order of court for the defendant to account for the rents so far collected on the said property”
Appellant (as claimant) filed Amended Statement of Claim which was deemed filed on 21/6/1993, wherein he repeated the reliefs in the writ of summons with the following modifications:
(b) An order compelling the defendant to surrender the following properties to the Plaintiff namely:
(i) 3 (three) buildings
(ii) 3 (three) room store verged violet in the Plaintiff’s plan.
(ii) 1 (one) uncompleted twin duplex verged yellow in the plaintiff survey plan (sic).
(c) Order of court for defendant to account for the rent so far collected in respect of the property now in dispute.
(d) Order of the court for the defendant to accept the refund of the sum of N42,000 (Four hundred and twenty five thousand naira) paid by the Defendant to the plaintiff as part payment of the contract sum.”
(Reference to Defendant above meant the 1st Respondent herein, who was the only Defendant the initial stages of the suit). See pages 1-12 of the supplementary Record.
At the trial the Appellant (as claimant) led evidence and tendered exhibits, including Exhibits 2, 3 and 4 (documents of purchase of land) Exhibit 4 was that of a piece of land registered as 13/13/212 at the Lands Registry, wherein were 3 storey buildings of 6 flats each. That was the property the Appellant offered to sell to the 1st Respondent in 1989 for N150,000.00 per block, totaling N450,000, in all. The 1st Respondent paid N425,000.00 in a prepared agreement therefor. The Appellant, however, objected to the Agreement, (Power of Attorney), saying that the Respondent had included his (Appellant’s) other property (other than the property he sold, registered as 13/13/212) in the agreement. Appellant cancelled that wrongly included part (property) in the agreement and signed same as a temporary agreement. That was Exhibit 6. (See page 57 of the Records)
Appellant said he instructed his lawyer, Chief S. O. Nwogu, to write to 1st Respondent and advise the Respondent to steer clear the said other two properties of Appellant and concentrate on the property registered as 13/13/212, and for the lawyer to prepare a final document on the sale of the property registered as 13/13/212; he contended that the 1st Respondent stilt went ahead to forge his (Appellant’s) signature and registered a document, based on the temporary agreement (Exhibit 6) to include the other property of the Appellant earlier cancelled; that 1st Respondent said that the property he bought from the Appellant was as per Exhibit 22 (Power of Attorney). Appellant said he therefore repudiated me contract.
Appellant, again, had filed application to further amend his claims and to add the 2nd Defendant (The Registrar of Deeds, Owerri) and the application was granted. Appellant claimed in the further Amended process as follows:
“(1) Declaration that there is no valid and existing Power of Attorney between the plaintiff and 14 Defendant.
(2) Order of court that the 1st Defendant should collect his N425,000 being money paid for failed consideration.
(3) Order of court to the 2nd Defendant Registrar of Deeds, Owerri to delete any purported registered interest of the 1st Defendant in the registered of deeds kept in Owerri.” See page 24 of the Records).
The 1st Respondent had filed a counter-claim in the suit (in a very immature manner, as, he confused his position of Defendant/Counter-claimant with Plaintiff’s Counter-claimant).
In law, it is understood that a counter-claim is a separate suit (within the suit), in which the Counter-claimant is like a plaintiff in the Counter-claim, but the Counter-claimant is not expected to change his designation to “Plaintiff” in the Counter-claim, as that is prone to confusion. Thus, the Defendant in a suit where there is counter-claim still remains the Defendant while the original Plaintiff still remain the Plaintiff. The defendant may be addressed as Defendant/Counter-claimant, while the Plaintiff is still referred as plaintiff, entitled to defend the Counter claim.
In the Counter-claim, the defendant claimed the sum of N4,381,393.86 as special and general damages. He broke down the damages as follows, (in a very confused manner): (1) N381,393.86 as special damages and N1,000,000, as general damages for breach of implied covenant
(2) N500,000.00 as general damages
(3) N500,000,00 as special and general damages for trespass and
(4) N3,000,000.00 as damages for libel.
He also prayed for Order compelling the defendant (meant to say Plaintiff) to deliver to him all title or other documents concerning the said property, particularly the Deed of Release of the property from Savannah Bank of Nigeria Ltd and the Certificate of Occupancy of 16/12/81 and registered as 71/71/45 at the Lands Registry, Owerri. He also sought an order of perpetual injunction restraining the Defendant (meant to say Plaintiff) whether by himself or his agents or privies from trespass or further trespass on the property. See pages 17 and 18 of the Records.
After considering the evidence, by both sides, the learned trial judge gave judgment to the 1st Respondent, in part and also to the Appellant, in part, as follows, on pages 209 to 211 of the Records:
“With respect to relief (2) praying the court that the 1st Defendant should collect his N425,000.00 being money paid for failed consideration. It has been found out that there was indeed transaction of sale of land of the property registered as 13/13/212 which the claimant himself admitted. Exhibit 7 which the court found out to be more believable than Exhibit 22 stated that the contract sum was N450,000.00. Even though there is no valid power of attorney, the court found out that the 1st Defendant has an equitable interest in the property registered as 13/13/212 which has a Certificate as Occupancy registered as 71/71/45.
In that wise it will be unjust for the claimant to ask the 1st Defendant to collect back the sum of N425,000 paid to him since 1989 when the transaction took place. The claimant is therefore ordered to hand over to the 1st Defendant all the title deeds in respect of the property registered as 13/13/212, which contains 3 separate buildings of 6 flats each all totaling 18 flats. Upon the 1st Defendant paying to him the balance of the N25,000, the claimant is also ordered to give to the 1st Defendant a valid power of attorney in respect of the said plot of land registered as plot 13/13/212 at the Land Registry, Owerri, which has a certificate of occupancy registered as 71/71/45 to it.
With respect to relief (c) the court having found out that Exhibit 22 registered as 66/66/500 is in-valid it ought to be deleted from the Register of Deeds kept in Owerri. In that wise Exh. 22 is hereby cancelled and the 2nd Defendant is ordered to delete same from the Register of Deeds.
In respect of relief (a) of the counter-claim, the court found out that there was no encumbrance on plot 134/13/212 (sic) with UBA at the time of sale and so the claimant had nothing to disclose. That claim therefore fails.
With respect to relief (b), since the 1st Defendant was claiming properties much more than what was sold to him, he is not entitled to any claim under that head because there was a disagreement as to what was actually sold to the 1st Defendant by the claimant. The issue as to which property the 1st Defendant was entitled to quite (sic) enjoyment was not identified, that relief also fails.
In respect of relief (1c) the ft Defendant lumping up the issue as to general and special damage and itemizing then from that of general damage puts the court into a voyage of discovery which the taw does not allow… The 1st Defendant therefore did not prove relief (1c)
With respect to relief (2) it is on record that an order had been made earlier, that the proceeds arising from the rents in favour of the 18 flats be paid into court… since the Deputy Director of court services was ordered… on 11/2/99 to collect the rent and manage the property pending the determination of this suit, the Director of Court services is therefore ordered to render an account to the 1st Defendant for a rents collected from the 18 flats since 11th February 1999, when the order was made since the 1st Defendant could not prove that the claimant was collecting the rents from the 18 flats prior to the said order…
With respect to relief (4) the Court hereby makes an order of injunction restraining the claimant, his agents and privies from trespassing into the property registered as 13/13/212 with its certificate of occupancy registered as, 71/71/45, which contains 3 separate buildings of 6 flats each, totaling 18 flats, only and no more. The court equally declares that the property with the uncompleted duplex containing 3 shops belong to the claimant and so the 1st Defendant is restrained from making any further claim over the said properties.”
That is the decision which the Appellant is challenging in this appeal and the 1st Respondent too has filed a Cross Appeal. Appellant’s Notice of appeal was filed on 23/12/2010. It disclosed 6 grounds of appeal, as per pages 348 to 352 of the Records of Appeal. The 1st Respondent’s Cross Appeal was filed on 22/2/2011, as per pages 51 to 56 of the Supplementary Records of Appeal, and it disclosed 6 grounds of appeal. The 1st Respondent later filed Amended Notice of Cross appeal on 9/6/13, with the leave of this court raising 11 (eleven) grounds of appeal. That leave was granted on 03/12/2013.
I shall deal with the main appeal first, for which Appellant filed a Brief on 15/1/2013 and distilled four Issues for determination, namely:
“(1) Whether the trial High Court had the jurisdiction to raise suo-motu and thereby granted the Respondent what he did not claim without affording the patties the right to address the court on same. Grounds 1 and 6
(2) Having found that exhibit 22 on which the Respondent’s claim was predicted was forged and invalid, whether the learned trial judge was right in granting by way of specific performance the property registered as 13/13/212 when that was not claimed by the Respondent. (Ground 2)
(3) Having found that the Respondent was in breach of fundamental terms of the contract, whether he learned trial judge was right to invoke the equitable jurisdiction of the court by rectifying and granting what the Respondent did not claim. (Grounds 3 and 4)
(4) Whether the learned trial judge was not in grievous error of law for failure to advert to lack of consensus ad-idem between me parties which vitiated the contract. (Ground 5)
Appellant also filed a Reply brief on 18/12/13 on being served with the Respondents’ brief which was filed on 18/6/2013 in the same document with the Cross-Appellant’s Brief. The document was deemed duly filed on 3/12/13. The Respondent distilled only 2 Issues for determination, as follows:
(1) Whether the learned trial judge had competence to grant to the Respondent the property which the court held was conceded by the Appellant as sold to the Respondent.
(2) Whether the grant made to the Respondent is not sustainable by evidence on record.
Arguing the Appeal, Counsel for the Appellant, Emeka Ozoani, Esq. (who settled the brief), on Issue 1, invited us to take critical took at the Respondent’s counter claim, the evidence in support and the findings of the trial court on the matter. He also invited us to consider the propriety of the trial court raising an issue suo-motu and resolving same, without inviting the parties to address the court on the issue so raised. Counsel reproduced the relief sought by the Respondent in his counter-claim, for release to him of the title documents in respect of the property the subject matter of certificate of occupancy of 16/12/81, registered as 71/71/45, and said that the evidence adduced in support of the claim related to Exhibit 22 (Power of Attorney), which related to property registered as 16/6/212. He argued that the property registered as 16/16/212 belonged to Appellant, which he bought from Igwe Clement Egbuokporo and on which were 3 rooms used for block industry that the Respondent was consistent with Exhibit 22 as the subject matter of the contract he entered into with the Appellant; that it is trite in law that where the intention of the parties to a contract are clearly expressed in a document, the court cannot go outside the document in search of other documents not forming part of the intension of the parties. He relied on Zakhem Con (Nig.) Ltd v. Nneji (2006) 5 SC (Pt. 11) 78 at 99.
Counsel submitted, that the findings of the trial court based on Respondent’s claim in Exhibit 22, showed that “what the 1st Respondent succeeded in buying from the claimant was the property sold to the claimant by Igwe Egbuokporo, which contains only 3 shops.” (Page 204 of the Records); but that the trial court, in search for a more palatable terms to suit the case of the Respondent invoked, suo motu, the equitable jurisdiction of the court and granted the property, registered as 13/13/212 when the Respondent’s case was heavily and squarely based on the property registered as 16/16/212. He submitted that the decision of the court that the Appellant hand over to the Respondent the property registered 13/13/212 was not borne out of pleadings and evidence of the Respondent. And the court did not invite the parties to address it on the propriety of invoking the equitable remedy; that the court cannot award to a party what he did not claim. He relied on the case of Badmus v. Abegunde (1999) 7 SC (Pt. 1) 78 at 89; Enekwe v. Merchant Bank Nig Ltd & Ors (2006) 11 – 12 SC 4 at 24
On Issues 2 and 3, Counsel submitted that the trial judge was in error, when he invoked, suo motu, equitable doctrine of rectification and specific performance and granted the Respondent the property registered as 13/13/212, after having held that the Respondent’s claim, based on Exhibit 22, was predicated on forgery and therefore invalid; he said that the forgery and invalidity of the claim of the Respondent based on Exhibit 22, is borne out of the records and that snippets of same were set out by the trial court at page 203 lines 31 – 36 of the Records:
“That Exhibit 22 is different in character. The same applies to exhibit 9. The content of exhibit 22 are the sane with the content of exhibit 9. I have already found out that while Exhibit 22, like Exhibit 9, cited plot registered in 16/16/212 as the property transferred or sold the content of the body of the document contained much more than what was sold.”
Counsel submitted further that, the court, having found out that the signatures on Exhibits 9 and 22 were not those of the Appellant; that the account of the Appellant as per Exhibit 7 was the correct transaction Appellant entered into with the Respondent; that the claim of the Respondent, as per Exhibit 22, was not valid and that there was no valid existing power of Attorney between the Appellant and the 1st Respondent, the trial court was therefore wrong to proceed to rectify the same contract and order specific performance of the same without inviting parties to ddress the court on the same, thereby recreating a contract for the parties.
Counsel submitted that by law, a party who has committed an illegality cannot be allowed to benefit from same. He relied on the case of Saleh v. Monguno (2006) 7 SC (Pt.11) 97 at 118; Oilfield Supply Centre v. Johnson (1987) 2 NWLR (Pt. 58) 625 and Brown v. Adebanjo (1985) 1 NWLR (Pt. 16) 283, where this court held that;
(a) A party who seeks equity must also do equity.
(b) It is not the duty of a trial judge to consider and decide issues not raised or pleaded by the parties and
(c) It is not the duty of a trial judge to consider defence not pleaded by a defendant.
Counsel further argued that the learned trial judge forgot to appreciate that he who comes to equity must come with dean hands; that equity is not a phenomenon doing battle with the law. He relied on Trans Bridge Co. Ltd v. Survey International Ltd (1986) 4 NWLR (Pt. 37) 576. He added that specific performance of a contract is an equitable relief which is not granted as a matter of course; that it is an exercise of court’s discretion, which is granted judiciously and judicially. He cited instances that equitable discretion will not be exercised in favour of a party:
(a) Where the party has been guilty of any misrepresentation, whether fraudulent or innocent, which would justify rescission of the contract. Holiday v. Lack wood (1917) 2 CH. 47 at 56-57.
(b) Mistake either induced of otherwise. Re Banister (1879) 12 CH.D 131, 142
(c) Mis-description of the subject matter – Jacobs v. Revell (1900) 2 CH.866
(d) Fraud, Rorgery – Anatogu v. Iweka II (1995) 8 NWLR (Pt. 415) 547, where the Supreme Court stated that fraud is an insidious disease which affects the body of any decision.
Counsel said that a party affected by fraud is ex-dibitio justified and entitled to repudiate the contract. He also said that rectification is equally equitable remedy which is not available under the following instances:
(a) Inconclusive contract – Shipley UDC ca. Bradford Corporation (1936) CH. P.375
(b) Common mistake
(c) Continuing intention of the parties – Oyadiran v. Baggett (1962) LCR 96.
(d) Repudiation
(e) Cancellation of documents
(f) Fraud
Counsel submitted that Appellant rightly repudiated the contract and prayed for order that the Respondent should collect back his money, that it was a failed consideration, as the court found that the Respondent’s claim was based on Exhibits 22 and 9, which were set aside; but, surprisingly he said the trial court, after setting aside the claim also sat, as if on appeal against that ruling, and reversed itself and ordered the very property, registered as 13/13/212, to be conveyed to the Respondent. He submitted that, that was a perverse decision, to be set aside. Saraki v. Koroye (1992) 9 NWLR (Pt. 264) 156 at 201 – 202, NEPA v. Ososanya (2004) 1 SC (Pt. 1) 159.
On Issue 4, Counsel submitted that it is the law that in matters of contract, parties and the court will not be allowed to read into the contract, extraneous terms on which they reached no agreement, as the court cannot make a contract for the parties; that the court’s primary duty is limited to interpreting and enforcing the terms of the contract, as agreed by the parties. Koiki v. Magnusson (1999) 5 SC (Pt. III) 30; International ile Industries Nig. Ltd v. Aderemi (1999) 6 SC (Pt. 1) 1. He argued that the property Appellant opted to sell to the Respondent was the one with 3 buildings, of 6 flats each, totaling 18 flats (that is the property registered as 13/13/212), but that the 1st Respondent laid claim to the property in exhibit 22, registered as 16/16/212) saying that the transaction was in respect of 3 completed buildings and one uncompleted building, some stores.
Counsel referred us to the evidence of DW1 at pages 89 – 90 of the Records. He added that, while the Appellant said the consideration was N425000.00, the Respondent said it was N450,000.00; that that meant the parties were not ad-idem as to the exactness of the property, the subject matter of the contract. He relied on the case of Alfotnin v. Ali of Federation (1996) 9 NWLR (Pt. 475) 634, to say that a contract would be declared void and unenforceable, where it lacked precise or asserted terms and conditions.
He added that for the Respondent to claim purchase of the property registered as 16/16/212, instead of the one offered, that is, 13/13/212, meant there was no acceptance of what the Appellant offered, and that that vitiated the contract. Moreover, he said that the very act of the Respondent predicated on fraudulent misrepresentations, showed that there was no meeting of the minds, therefore the contract was vitiated. He relied on Derry v. Peek (1889) 14 App Cap. 337; Kanyode Ventures Ltd v. Hon. Minister of Federal Capital Territory (2010) 2-3 SC (Pt. III) 1.
He urged us to resolve the issues for the Appellant.
The Respondent’s Counsel, Chief Mike I. Ahamba, SAN (who settled the brief), arguing the 2 issues Respondent formulated, observed that Appellant’s argument was as if he (Appellant) had no onus to discharge in proof of his case, as he, in fact, rested his argument on the counter-claim of the 1st Respondent; that the entire argument was on what the Respondent did not prove in his case, not what he (Appellant) had proved in support of his claim as the plaintiff at the trial court; he said that Appellant treated his own suit as non-existent in this appeal, thereby abandoning it.
Counsel submitted that in law, a counter claim is a separate suit, different from that of the Plaintiff, being an action against the Plaintiff by the defendant (NPA v. SPA (1974) ECSLR 658 at 66.
Counsel urged us to hold that where a Plaintiff had failed to prove his own case, he cannot rely on a conjectured or real failure of the defendant to prove his (Respondent’s) counter-claim; that it is trite that a Plaintiff succeeds or fails on the strength of his own case and not on the perceived weakness of the defendant’s case, although he may rely on any favourable evidence emanating from the defendants’ case. He relied on Ajao v. Alao v. (1985) 5 NWLR (Pt. 45) 802 at 826; Owoade v. Omitola (1988) 2 at WLR (Pt. 77) 413 at 421.
Counsel submitted that what happened in this case (at hand) is exactly as it was in Ajao v. Alao (supra) where Oputa, JSC (of blessed memory) said:
“As a Plaintiff is entitled to make use of any evidence from the defendant which supports his case, so also a defendant is entitled to make use of any evidence even that as in this case, extracted from cross-examination of the Plaintiffs’ witnesses to support the case.”
Thus, Counsel submitted, that the learned trial court rested on the evidence adduced by the appellant (as Plaintiff) in arriving at the decision, against which the Appellant is complaining; that one of the circumstances under which a plaintiff may benefit from the case of the Defendant is, where there is a concession by way of favourable evidence from the adverse party; that Appellant was bound by his pleadings. He referred us to Appellant’s amended writs of summons and statements of claim and to the case of Agbahomovo v. Veduyegbe (1993) 3 NWLR (Pt. 594) 181; Owonyin v. Omotosho (1961) ALL NLR (Pt. 1) 30.
Counsel restated the summary of Appellant’s case in this appeal, which was that the trial court having held that the Power of Attorney (Exhibit 22) was a forgery the court should not have held in favour of the Respondent in respect of any of the properties in dispute. He reminded us that the Respondent’s Cross-appeal also challenged that decision of the trial court that the Exhibit 22 was forgery. He urged us to note that Appellant had conceded signing the Power of Attorney (Exhibit 22) – See paragraph 15 of the Amended statement of claim on page 21 of the Records and 32 of the additional records) saying that when this is considered together with Exhibit 5, pleaded and tendered by the Appellant (pages 225 – 226 of the Records), forgery is out of the question. Counsel argued that with the failure of the foundation of forgery, based upon Appellant’s pleading, the suit should have been dismissed without considering the 1st Respondent’s case, since the alleged forgery was the root of Appellant’s case. He retied on Dim v. Ememuo (2009) 10 NWLR (Pt. 1149) 353
Counsel also submitted that, even if the trial judge was right in adjudging the Exhibit 22 as forgery (which he did not concede), that would not be a conclusive proof that there was no transaction between the Appellant and the Respondent over the land, when there are other pieces of evidence, including Appellant’s concessional pleadings and testimony in court that such a transaction existed; he said that the holding that Exhibit 22 was a forgery did not obliterate the concessional pleading and evidence of the Appellant, both oral and documentary, that there was a concluded sale of property between the Appellant and the Respondent over 3 block of 6 flats each, totaling 18 flats and which the trial court ruled for the Respondent.
Counsel relied on the findings of fact, by the trial court on page 204 of the Records, that Appellant, at all antennal times, had admitted that he sold property, comprising the 18 flats and registered as 13/13/212, to the Respondent, saying that that finding was not appealed against by the Appellant. He relied on the pleadings by Appellant as well as his evidence on page 57 of the Records, where he said:
“I observed that the building I was selling to the 1st Respondent was the one registered as 13/13/212…”
Counsel added that once the findings of a court is supported by evidence, unless evidence was such that no reasonable court could have believed, an Appellate court would not disturb that findings. He relied on Balogun v. Labiran (1988) 3 NWLR (Pt. 80) 66 at 84; Ogbechie v. Onochie (1986) 2 (Pt. 23) 484, Akibu v. Opaleye (1984) 11 SC 189.
Counsel noted that the Respondent had been collecting rents on the property since 1989, when the transaction was concluded and this court cannot disturb the findings of the trial court on the matter.
Counsel further relied on the case of Timitimi v. Amabebe 14 WACA 374 AT 378 to say that even where the court adjudged Exhibit 22 as forgery, there were other pieces of evidence to support the Respondents right to the property registered 13/13/212. That court (WACA) had held:
”Excluding exhibit ‘B’ from consideration we still have no doubt whatever that there is the amount of proof by the Plaintiffs-Respondents which would satisfy an unprejudiced mind beyond reasonable doubt that the Plaintiffs-Responding did discharge he onus upon then and that they were entitled to the judgment of the court.”
Counsel also relied on Ogunleye v. Ori (1990) 12 NWLR (Pt. 135) 745
On the application of the principle of equity, counsel submitted that the jurisdiction of court to apply the rules of equity is both statutory and inherent. He relied on Section 19 (1) of the High Court of Easter Nigeria Law Cap 61 vol. iv (applicable in Imo State):
“subject to the provisions of this law or any other written law in every civil cause or matter which shall be commenced in the court, law and equity shall be administered concurrently”
Counsel also relied on Section 6(6) (a) of the 1999 constitution with regards to the inherent powers of the court, in the exercise of its jurisdiction. He said that the trial court is enjoined to exercise its equitable powers, side by side the law, as the need arises, in the course of considering the justice of each case; that application of the principles of equity is thus not a new point of taw arising from the judex, suo motu, in this case, as alleged by the Appellant. Rather it is an exercise of the court’s original statutory jurisdiction and inherent powers, to do justice under the law in the proceedings before it. Therefore, the court does not need to invite parties to address it as to whether equity should apply or not, before it can infer equitable principles in a case.
Counsel submitted that the learned trial court was perfectly in order, when it applied the number one principle of equity in this case, which is that equity does not suffer a wrong to be without a remedy, by allowing the Respondent to keep what the Appellant agreed was sold to the Respondent and ordering the Respondent to pay N25,000.00 for which the Appellant threatened to repudiate or revoke the transaction. Counsel added that the conflict over N25,000.00 should not cause a man to lose property in which he was in possession and collecting rent with leave and license of the adversary.
On the allegation that the trial court granted relief not claimed by the Respondent, Counsel referred us to pages 17 and 18 of the Records and said that paragraph 47c of the counter-claim pleaded and sought order compelling the Appellant to deliver all documents concerning the said property, Certificate of Occupancy registered as 71/71/45, at the Land Registry, Owerri, which from evidence on Records is the same, as property registered as 13/13/212 which the Appellant conceded to the 1st Respondent; Counsel said that what happened was that the trial court did not grant the Respondent all that he asked for but what was revealed in evidence, which was the property registered as 13/13/214; that there were evidence in support that sale, even without exhibit 22. Thus, the court did not grant what was not claimed. He relied on Order 45 Rule 14 of Imo State High Court (Civil Procedure) Rules, which allows the court in all causes and matters to make any order which it considers necessary for doing justice, whether such order had been expressly asked by the person entitled to the benefit of the order or not.
He urged us to resolve the issues against the Appellant.
In his Reply brief, Appellant reacted to the observation by the Respondent that Appellant’s appeal was not founded on his case but on the counter-claim (case of the Respondent), that Appellant treated his own suit as non-existent in the appeal, thereby abandoning it. Appellant submitted that appeal presupposes a challenge to the ratio decided of the decision; that issues are distilled from the grounds of appeal; that Appellate court is not a forum to determine the onus of proof or a forum for the determination of the existence or otherwise of the case of the Appellant at the trial court. He urged us to discountenance Respondent’s line of argument. He relied on Ekong v. Udo (2002) 15 NWLR (Pt. 292) 1 at 23.
Counsel also submitted in reply, that it is true that processes filed in the court whether amended or otherwise form part of the records of court. However, that in determining an appeal; it is the decision of the court that is a reference point and that the parties pleading upon which the decision of the court is founded should be the focal point of an inquiry.
RESOLUTION OF ISSUES
I think the 2 issues as distilled by the Respondent, more aptly apply for the determination of this appeal, as Respondent’s issue I seems to take care of the complaints of the Appellant in his issues 1, 2 and 3, This is because, the question whether or not the trial court raised, suo motu, and invoked the equitable principles in favour of the 1st Respondent, or whether the court was right in granting 1st Respondent relief, by way of specific performance, after ruling that exhibit 22 was forged, all challenged the competence of the trial court to grant the Respondent the relied in the circumstance. Of course, the 2nd issue, by 1st Respondent whether the grant made to the 1st Respondent is sustainable by evidence, agrees with Appellant’s query in Issue 4 whether the trial judge was not in grievous error of law for failure to advert to lack of consensus ad-idem between the parties which vitiated the contract,
Was there credible evidence to show that the parties had entered into a contract of sale of the property in question/registered as 13/13/212, which the court awarded to the 1st Respondent, retying on the concession by the Appellant? That appears to be the relevant question to consider.
I shall also take the two issues together, as were argued by the Respondent’s Counsel. See NEKA BBB MANUFACTURING CO. LTD v. ACB LTD (2004) LPELR-1982(SC), on the power of court to formulate issue(s) on which to determine appeal
I have to observe that the entire appeal by Appellant tends to be directed, against the decision of the trial court on the Counter-claim, which decision even favoured the Appellant, when the court rather adjudged exhibit 22 on which the 1st Respondent based his claim to the entire land, registered as 66/66/500, as invalid and forgery and ordered it to be deleted from the Register of Deeds. That decision of the trial court also satisfied the 1st and 3rd Reliefs sought by the Appellant, as per his final amended statement of claim, on page 24 of the Records.
The only aspect of Appellant’s relief which the trial court refused was relief 2, which prayed for order that the 1st Defendant should collect refunds of his money N425,000.00 paid to the Appellant as money paid for failed consideration. Of course, the court held that the consideration did not fail, rather that Appellant had expressly admitted selling his land/property, with 3 separate buildings of 6 flats each, totaling 18 flats, that is, property registered 13/13/212, to the 1st Respondent for that amount. The court made elaborate and unassailable findings on the sale, thus:
“It has been found out that there was indeed transaction of sale of land of the property registered as 13/13/212 which claimant himself admitted. Exhibit 7 which the court found out to be more believable than exhibit 22 stated that the contact sun was N450,000.00. Even though there is no valid power of attorney the Court found out that the 1st Defendant has an equitable interest in the property registered as 13/13/212 which has a Certificate of Occupancy registered as 71/71/45. In that wise it will be unjust for the claimant to ask the 1st Defendant to collect back the sum of N425,000.00 paid to him since 1989 when the transaction took place “see page 209 of the Records.
Appellant was the person who supplied he necessary evidence to which the trial court used to arrive at that findings. On pages 56 and 57 of the Records, the Appellant, testifying as PW2, said:
”There was a transaction between the 1st Defendant and myself… The transaction was in respect of 3 different lands. I bought the 3 separate pieces of land from 3 different persons at different times. I brought out one out of the 3 pieces of lands for sale. The piece of land I wanted to sell to the 1st Defendant had 3 buildings of 6 flats each i.e. 18 flats on that building (sic). I filed a plan in this suit… The 1st Defendant and myself agreed on the amount I will sell the 3 buildings to him. We registered for N250,000 for each of the three buildings. Later the 1st Defendant came down to 150,000 each because he saw that I needed the money for my goods at the Wharf. The 1st Defendant, instead of paying the N450,000 as he agreed for the 3 buildings gave ne the sum of N150,000 just for one of the buildings. There was agreement prepared by 1st defendant. The 1st Defendant brought the agreement and showed same to me… I observed that what was written was not what we agreed on. I observed that the building I was selling to the 1st Defendant was the one registered as 13/13/212 but the 1st Defendant wrote it as registered 16/16/212. The 1st Defendant also included in the said agreement the property or building that was on a different land altogether and wanted me to sign same and I refused… These were what I cancelled and then signed the document… Exhibit 6″
PW2 Continued:
“I then wrote to the 1st Defendant through my Counsel to remove his hands from all the other properties and concentrate on the one we agreed and prepare valid documents for same.”
He identified the letter written by his lawyer (Chief S. O. Nwogu) as Exhibit 28. He further said:
”… First the properly registered as 13/13/212 was the property I had intended selling to the 1st defendant.
… Instead of writing the property with registration No. 13/13/212 which I sold to him, the 1st defendant in that document referred to the land sold to him as 16/16/212. In 13/13/212, I have 18 flats of 2 storey buildings in 3 places. I also own 16/16/212″ See page 59 of the Records.
Under Cross examination the Appellant admitted that he Exhibit 4 (property registered as 13/13/212) is the land in Exhibit 15, that is, Certificate of Occupancy registered as 71/71/45, (page 54 of the Records).
Thus, having expressly admitted selling the property registered as 13/13/212 to the 1st Respondent, I think Appellant cannot in good conscience raise issue against the decision of the learned trial judge, giving effect to his admission that the land/property registered as 13/13/212 remained the property of the 1st Respondent, in equity, from 1989, when the sale transaction took place. This is more so, as the Appellant never appealed against those clear findings of the trial court, nor against the decision of the trial court on the Appellant’s case at the court below.
The law is that any findings of the court on which there is no appeal is deemed conclusive and is binding on the parties. See Shukka v. Abubakar (2012) 4 NWLR (Pt. (1291) 497; Gwantu v. Yaki & Ors (2013) LPELR-21416(CA); Okotie-Eboh v. Manager (2004) 18 NWLR (Pt. 905) 242; Asabe v. Babale (2013) LPELR-22360(CA).
In this appeal Appellant’s grounds of appeal, and issues 1 to 3 there from rather targeted the decision of the trial court on the counter-claim, which in the main favoured the Appellant. He quarreled with the invocation of principles of equity, which he said was, raised, suo motu, and the application of the equitable relief of specific performance to award the 1st Respondent the land registered as 13/13/212. Appellant’s argument was that since the court had voided the power of Attorney (Exhibit 22) (by reason of forgery) on which the Respondent founded his claim, the contract of sale between the parties became non-existing and there was nothing to give effect to. Moreover, Counsel argued that, having established that Exhibit 22 was a forgery, proceeding to rectify the same contract and ordering specific performance of the same would amount to allowing the 1st Respondent to reap dividend from his wrong doing, or is akin to the court re-creating the contract to favour the 1st Respondent.
The above arguments appear to have lost touch with the provisions of Order 45 Rule 14 of the High Court (Civil Procedure) Rules of Imo State, which enjoins the court in all causes and matters to “make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”
Also by Section 19(1) of the High Court of Eastern Nigeria (applicable in Imo State) “… in every civil cause or matter which shall be commenced in the court, law and equity shall be administered concurrently.”
I think the Appellant was in grave error to have argued that the land/property registered as 13/13/212 was not part of the Respondent’s claim and that the court was awarding to the 1st Respondent what he did not ask for.
A close look at the 1st Respondent’s claim in the Counter-claim shows that his claim included:
“An order compelling the defendant by Counter-claim to deliver to the Plaintiff by Counter-claim all title or other documents concerning the said property particularly the Deed of Release of the property from Savannah Bank of Nigeria Ltd and the Certificate of Occupancy of 16/12/81 and registered as 71/71/45 at the Lands Registry, Owerri.
We have earlier stated that, by evidence of the Appellant, the property registered as Certificate of Occupancy 71/71/45, is the same property registered as 13/13/212, being the 3 storey buildings of 6 flats each, which the learned trial judge held was the property sold to the 1st Respondent by Appellant, for N450,000, of which 425,000 had been paid since 1989. Thus, whereas, Exhibit 22 (Power of Attorney) which the 1st Respondent relied upon, had sought to include other lands of the Appellant, which the Appellant objected to, as being the subject matter of the consideration (N450,000.00), Appellant was consistent by saying the sale transaction was in respect of property registered as 13/13/212, and the court agreed with the Appellant, in the light of the evidence adduced. There was therefore no introduction of any issue, suo motu, by the court to determine the justice of the case, as the application of the rule of equity to sever the property registered as 13/13/212, which evidence of the Appellant established as the only property sold to the 1st Respondent, was borne out of the pleadings by the parties, and the evidence adduced before the court. The court was merely applying the rules of equity which,by law, shall be applied concurrently with the law, in the light of the evidence before the court to determine the rights of the parties in the case, as the justice of the case demands. That, in my opinion, cannot amount to introducing an issue, suo motu, by the court and using it to determine the case without calling on the parties to address it.
The court does not call on counsel or parties to address it on now to apply the law or equity to resolve an issue, which the evidence adduced have a ready pointed the way out, parties can only be called upon to address the court, where a fresh issue, not contemplated or considered in the case, and for which no evidence was adduced, was raised, where the court deems the same necessary to determine the conflict of dispute between the parties.
The court does not have to invite parties to address it on the application of equitable remedy, deemed necessary to do justice in a case, before it can apply the same, as the principle flows, naturally, from and is consequential upon the findings of the court, in a given situation. See the case of Olurunkule v. Adisun (2012) 6 NWLR (Pt. 1297) 407 held 2 and 3, where my lord Okoro, JCA (as he then was) said:
“A court can only be accused of raising an Issue, suo motu, if the issue or matter of fact did not exist in the litigation. A court cannot be accused of raising an issue, suo motu or a matter or fact, suo motu, if the issue or matter of facts exist in the Litigation … A judge by nature of his adjudicatory functions can draw inferences, in a case, and by such inferences, the judge can arrive at conclusions. It will be wrong to say that the inferences legitimately, drawn from facts are introduced suo motu.
Equally, where a Judge refers to a piece of legislature or rule of court which assists him to exercise its discretion one way or the other, he cannot be accused of introducing the rule of court suo motu.” See also Ikenta Best Nig Ltd v. A.G. Rivers State (2008) 6 NWLR (Pt.1084) 612; British American Tobacco Nig. Ltd v. International Tobacco Company Plc & Anor (2012) LPELR-9292(CA); (2013) 6 WRN 2B.
In the case of NEKA BBB MANUFACTURING CO. LTD v. AFRICAN CONTINENTAL BANK LTD (supra),
The Supreme Court said that:
“It is not in all occasions that a court must inevitably accept issues framed by the appellant as though they are immutable, particularly when the issues formulated by the Respondent address the points in consideration or in controversy much more squarely. Indeed the court may decide in an appropriate case, to suo motu frame issues which though do not and ought not in any way depart from the contents or purport and ramifications of the issues already framed by the parties, and distilled framed the grounds of appeal, but are much more succinct precise and readily understandable…”
It was therefore proper, in my opinion, for the learned trial court to delve into the realm of equity to identity the real issue that was thrown up in the case by the evidence adduced, for a just determination of the case, It was obvious that, after the Appellant had consistently pleaded and testified that he had intended to sell and actually sold the property registered as 13/13/212 to the 1st Respondent for which 1st Respondent paid N425,000 to Appellant in 1989 and was let into the property, (3 storey buildings of 6 flats each) and was collecting rents, the principles of equity would come into play to compel specific performance of the contract and refuse the Appellant to hide under any technicality of law, or on even the misfeasance of the Respondent to void the sale, capitalizing on the error or disagreement in the mode of agreement, prepared by the 1st Respondent to evidence the sale.
Whereas the purported agreement (Exhibit 22) tried to annex other lands of the Appellant, not contemplated in the sale and was held to be invalid for forgery, other pieces of evidence abound, both oral and documentary (including Exhibit 7) to show that Appellant had sold the property, registered as 13/13/212, to the 1st Respondent and had made use of the consideration. He could not, therefore, wake up after many years, to say he was repudiating the contract, simply because the 1st Respondent attempted to take more and than Appellant had sold to him (Respondent).
The law does not frown against awarding a party less than what he claimed, if the evidence tends to support what is awarded, but is against awarding what was not claimed or more than what the Plaintiff claimed, See the case of AP Plc v. Aborisade (20362) CA at 28-29; See also ARABE v. ASANLU (1980) LPELR-530 (SC); (1980) 5-7 SC (REPRINT) 52, where the Supreme held:
”It is trite law in a claim for declaration of title to a large parcel of land, the court may grant declaration, if the evidence justifies it, over a smaller area of the land claimed. See Owon v. Eto Ndon & Ors 12 WACA 71; Josiah Sobanjo v. Adeshina Oke & Anor 14 WACA 593.
We have also held that the property registered as 13/13/212 (or Certificate of Occupancy registered as 71/71/45), that is, the 3 storey buildings of 6 flats each, was part of the property which the 1st Respondent claimed in the Counter-claim (page 19 of the Records). That, too, was one of the properties the Appellant sought order of the trial court for the 1st Respondent to surrender to him (Appellant) and collect back his (1st Respondent’s) money (N425,000.00) paid on the property. That means, the said property registered 13/13/212 was, indeed, not a recondite issue in the pleadings and evidence of the two parties, for which the trial court had the power to rule on and award as the justice of the case required. I cannot therefore fault the findings and decision of the learned trial judge on the issues, I therefore resolve the issues against the Appellant and dismiss the appeal for lacking in merit. Appellant shall pay N30,000 cost to the Respondent.
CROSS APPEAL
The Cross Appellant filed Amended Notice of Cross Appeal on 19/6/2013, with the leave of this court and disclosed eleven (11) grounds of appeal. He filed Cross-Appellants brief on 18/6/2013, which was deemed duly filed on 3/12/2013. He distilled ten (10) issues for determination, as follows:
“(1) Whether the trial Judge did not misdirect herself on the relevance of Cross-Appellant’s case to the Cross-respondent’s original amended writ of summons and statement of claim and if she did, whether the misdirection did not occasion a miscarriage of justice, (Ground 1)
(2) Whether the trial Judge was not in error by declaring that Exhibits 9, 20 and 22 were not signed by the Cross-respondent and consequentially invalid (Grounds 2 and 3)
(3) Whether the trial Judge was not in error by failing to treat the Cross-respondent as lacking in credibility, instead of believing him. (Grounds 3)
(4) Whether Exhibits 10 and 11 are not illegal evidence on record which are subject to be expunged by the learned trial Judge. (Ground 7)
(5) Whether the learned trial Judge did not misplace the onus of proving the date on Exhibits 10 and 11 by placing same on the 1st Defendant (Ground 4)
(6) Whether the learned trial Judge’s conclusion that plot 13/13/212 was not encumbered at the united Bank for Africa (UBA) was proper in law. (Ground 5)
(7) Whether the finding by the learned trial Judge that the Cross-respondent was not a person of multiple signature is supported by evidence on Record (Ground 8)
(8) Whether on the totality and preponderance of evidence on record the Cross-Appellant’s counter-claim should not have been granted (Ground 9)
(9) Whether the conclusion by the court that Exhibit 7 was the temporary agreement between he parties was not perverse (Ground 10)
(10) Whether the conclusion of the learned trial Judge that there was no auction sale by UBA of property No. 13/13/212 to the 1st Defendant was proper in law (Ground 11).”
The Cross-respondent, on receipt of the Brief filed a Notice of preliminary objection to challenge the competence of the original Notice of appeal, on 30/12/13. His grounds were that:
“(1) The original Notice of Cross Appeal dated the 20th day, of February 2011 is incompetent and incurable defective as same was not signed by either the Cross-Appellant himself or his counsel, Chief M. I. Ahamba SAN.
(2) That the affixing of a stamp titled “Original signed by me Chief M. I. Ahamba KSL, SAN” is not a signature. See Exhibit A annexed the affidavit in support.
(3) The identifiable signature of the Cross-Appellant Counsel, Chief M. I. Ahamba SAN is appended on the Amended Notice of Cross appeal, dated 9th May, 2013 as Exhibit B!
(4) The original Notice of Cross-Appeal Exhibit A being unsigned robbed the court of jurisdiction to entertain the Cross-Appeal as sane is liable to be dismissed.”
The Cross-Respondent however, filed Cross-Respondent’s brief also on 30/12/13 and adopted the ten issues distilled by the Cross-Appellant.
The Cross-Respondent’s preliminary objection was argued on pages 1 to 6 of the Cross- Respondent’s brief. He raised two issues, namely:
“(1) Whether the original Notice of Cross-Appeal (Exhibit A) is signed when compared with the Amended Notice of Cross-appeal (Exhibit B).
(2) If the answer to issue one above is assuredly in the negative, whether the court is not robbed of the jurisdiction to entertain the Cross-Appeal.”
It is rather surprising that the Cross-Respondent’s Counsel still deemed it necessary to raise this objection, predicated on the grounds (earlier reproduced) and on the above issues, when it should be obvious to him that, upon admitting that the original Notice of appeal, which he complained against, had been amended with the leave of this court. I think it is an elementary principle of law that once a process of court has been amended, the original process ceases to be, as it is subsumed and replaced by the new and amended process, and so the Amended process becomes the authentic legal instrument for reference and use in the determination of any issue in controversy.
Of course, in that circumstance, the new Amended process supercedes the old which is confined to the refuse heap. See the case of Garau v. Olomu (2013) LPELR-20340(SC), where the apex court said:
”A process is said to supercede another, if it is subsequent to and completely served from the other … For supersession of the earlier process by the subsequent process to occur, there must be a complete disconnect between the two, imposed by the fact of the one completely occupying the place at role of the other.”
That, in essence, is the purported amendment of a process of court, as the new (amended process) replaces and, completely, occupies the place of the old process and is deemed to take effect from the date the old process came into being. In the case of the Registered Trustees of the Airline Operators of Nigeria v. Nama (2014) LPELR-22372(SC), the apex court held;
“Appellant herein commenced this action… with the name Airline Operators of Nigeria” Both parties attest to this… The matter was prosecuted with that name until the Appellant woke up from slumber and realized that such a name was unknown to law. It then filed a motion to have the name corrected which the learned hat judge obliged on the date of judgment the matter was delivered. That amendment, with all intends and purpose took effect from the date of the originating process filed. This is so because an amendment duly made takes effect from the date of the original document sought to be amended and this applies to every successive further amendment of which every nature and whatever stage it is made. Therefore, when the trial judge granted the amendment, it dated back to when the originating summons was issued and the action would continue as if the amendment was inserted from the beginning. See Adewumi v. A.G. Ekiti State (2002) 2 NWLR (Pt. 751) 474; Imonikhe v. A.G. Bendel State (1992) NWLR (Pt. 248) 396 Oja v. Ogboni (1976) 1 NMLR 95; Okoro v. UBN Ltd (1999) 10 NWLR (Pt. 623); Shell Petroleum Dev. Co. Nig. Ltd v. Ambah (1999) 3 NWLR (Pt. 593) 1 per Okoro, J.S.C.”
Thus, with the amendment of the original process which the Cross-Respondent faulted, for non-proper signing by Cross-Appellant’s Counsel, the defect noticed therein had been corrected and it ceases to haunt the new process. It is even commonsensical to ignore the old (original) process, since the Brief of Arguments of the Cross-Appellant are not founded on the old process, but on the Amended process. Accordingly, the preliminary objection by the Cross-Respondent is hereby dismissed, being a misconception of the law, and incompetent.
The Cross-Appellant had raised ten (10) issues for the determination of the Cross Appeal. That, obviously, was an over flow or torent of issues in the circumstances, amounting to another form of proliferation of issues, as many of them were just replication of the same complaints, over and over again, or simply arguments.
Issue 1 – whether the trial judge did not misdirect herself on the relevance of the Cross-Appellant’s case to the Cross-Respondent’s original amended writ of summon and statement of claim, if she did whether the misdirection did not occasion miscarriage of justice, seemed to be founded on the misconception of the place of original processes filed to originate the suit, even when the same has been amended.
Though the Cross-Appellant only tried to call the attention of the trial court to the fact that the original writ and statement of claim by the Cross-Respondent agreed with the Cross Appellant’s case, (and he claims the trial court failed to understand the submissions), I cannot see what the Cross-Appellant can gain from his argument on this issue, as the alleged misconception or misunderstanding by the trial court did not relate to the ratio decidendi or live issue in the judgment in the case, but related to only a passing comment (obita dictum) of the trial court. It has always been stated that a ground of appeal or issue for determination can only derive from a valid and live complaint in the judgment appealed against, that is, from the ratio decidendi. See Ayangoke & Anor v. Keystone Bank Ltd (2013) LPELR-21896(CA), Shettima v. Gond (2011) 18 NWLR (Pt. 1297) 413; Unilorin v. Olawepo (2012) 52 WRN 42.
I think the 1st Issue by the Cross-Appellant only appealed to sentiments, bordering on academics, which accrues no benefit to the Cross-appellant, or anybody, even if it were resolved in his favour, as it cannot affect the outcome of the appeal. The said issue is hereby struck out for being incompetent.
The Cross-Appellant argued issues 2, 4, 5, 7 and 9 together, because, he said, the decision on Exhibits 9, 20, 22 and 7 rested substantially on the Courts conclusion on Exhibits 10 and 11 and the trial court’s findings on the Cross-respondents signature. He said that the argument on one would relate to and affects the other, (See paragraph 902 of the Cross Respondent’s brief).
Counsel submitted that, whereas the Cross Respondent denied having any mortgage transaction with UBA, claiming his signature in Exhibit 20 was forced, the trial court actually found that the Cross-Respondent “used the property 13/13/212 to obtain an overdraft from UBA in 1980 which was renewed in 1982.” (Page 207 of the Records); but that that findings was inconsistent with the final judgment.
On Exhibit 22 (Power of Attorney registered as 66/66/500 with which Cross-Appellant claimed the sate of the lands, including 13/13/212), Cross-Appellant argued, that the Cross-Respondent denied signing the document and selling the properties therein to the Cross-Appellant (except 13/13/212), but that on page 75 of the Records, the Cross-Respondent said:
“the first document that we cancelled was the same with Exhibit 22 and so I could not have signed it”.
To say that “I could not have signed it”, Counsel said, was not a positive statement of denial when the documents are conceded to be the same. Counsel also faulted the way the trial court admitted and/or treated Exhibits 10, 11 which he said were liable to be expunged from the Records, and how the trial court failed to properly examine and compare the signature of the Cross-Respondent in Exhibits 9, 20, and 22, to debunk the claim of the Cross-Respondent that he did not sign the three Exhibits.
Counsel for the Cross-Respondent submitted that the trial court was not in error, when he held that Exhibits 9, 20 and 22 were not signed by the Cross Respondent; that the court in making comparison did not limit itself to Exhibits 7, 9, 11, 10 and 22, but also looked at other documents earlier filed and signed by the Cross-Respondent; that it is the law that the court is at liberty to look at and utilize a document in its file while writing judgment (Oyewole v. Okande (2009) 15 NWLR (Pt. 1153) 119 at 148; Geco Prakla (Nig) Ltd v. E. B. Ukiri (2004) 1 NWLR (Pt. 855) 519 at 544). Counsel further submitted that the court can compare signatures on documents so as to arrive at a finding as in the instant case. (Asuguo v. Asuguo (2009) 16 NWLR (Pt. 1167) 225. On Exhibits 10 and 11 Counsel said the same were not illegal, and that they were tendered and admitted without objection.
It would appear the objections raised by the Cross-Appellant on the exhibits, particularly, exhibit 10 and 11, are belated, having not raised any such objection at the time of tendering them. I do not think the findings of a trial court on the said exhibits, with regards to the signature of the Cross-Respondent, can be disturbed, in the absence of any credible facts by the Cross-Appellant to show that the said findings were perverse, when compared with the evidence adduced. It does not also appear to me that the complaints and issues raised about the exhibits in issues 2, 4, 5 and 7, have much bearing (if any ) with the live issue in the judgment of the trial court, which is on the whether the Cross-Respondent sold all the land claimed by the Cross-Appellant in Exhibit 22 to him, or it was only the subject matter of Exhibit 4 – land registered as 13/13/212 (said to be the same as the property registered as 71/71/45).
I had earlier held, while considering the main appeal that the Cross-Appellant, in Exhibit 22, had claimed more than the exact property the Cross-Respondent agreed to sell to him (Cross-Appellant) for the sum of 450,000.00, which the Cross – Appellant paid for (except the outstanding sum of N25,000.00). By Exhibit 6, the Cross-Respondent had from the onset objected to inclusion of his other property in the agreement drafted by the Cross-Appellant over the sale transaction, and he had cancelled the said other properties in the agreement. See page 228 of the Records.
The Cross-Appellant had told the trial court that the Cross Respondent gave him the document/ registered as 16/16/212 at the time he bought the property, but admitted that the survey plan (Exhibit 2) attached to the said property (16/16/212) at the Lands Registry was different from the survey plan he (Cross-Appellant) made under Exhibit 22. He added that in Exhibit 22, the Plaintiff acquired more lands! (See page 108 of the Records – Cross examination of Cross-Appellant). He also admitted, under Cross examination, that the land registered as 13/13/212 was part of the subject matter in dispute and distinct from 16/16/212; (See page 115 of the Records)
Whatever gave the Cross-Appellant the impudence to prepare Exhibit 22 (Power of Attorney) to include other lands of the Cross-Respondent, not included in the sale transaction, may have also beclouded Cross-Appellant’s sense of decency, and would not allow him to give up the dirty fight, after the trial court had adjudged his act as forgery, nullifying the Exhibit 22 (Power of Attorney), as the Cross-Respondent never signed the same.
I think the Cross-Appellant, instead of pursuing a cross-appeal, should rather be thankful to the Cross-Respondent, for openly admitting, in court that, at least, he sold the property registered as 13/13/212 to him (Cross-Appellant) for the amount of N450,000.00, and to the trial court, for painstaking sifting the evidence, to affirm that, invoking the quitable remedy of rectification or specific performance, to allow the Cross-Appellant to escape with a remedy.
To further Cross-appeal, to assert right and legitimacy over the forged Exhibit 22 (seeking to justify it), the Cross-Appellant, appears to tell the court he has no remorse and did not deserve the equitable relief, as his assertion can be interpreted to mean admission that there was no sale, after all; that the parties were not ad-idem as to the exact property sold in 1989! That would be another story of greedy dog that lost its game, in his bid to go for a bigger game that happened to be the shadow of the real thing it had! He should be thankful that he was not prosecuted for the forgery of Exhibit 22.
I resolve the said issues against the Cross-Appellant.
The same reasoning (above) is applicable to Issues 3, 6 and 8 of the Cross-Appeal, where the Cross-Appellant queried whether the trial court was not wrong in failing to treat cross-Respondent’s evidence as lacking in credibility, and failing to hold that the property registered as 13/13/212 was encumbered at UBA; and arguing that the Counter-claim should have been granted.
I think the trial court was right in holding that the evidence of the Cross-Respondent was more credible, as Exhibits 6 and 7 (pages 227 to 232 of the Records) carry what the parties agreed on, when they documented the sale transaction concluded on 18/6/1989. In Exhibit 6 the property in transaction was:
“… piece or parcel of land and the structure therein 3 three completed buildings of 6(six) flats each…”
There is evidence of cancellation of what was included by Cross-Appellant as “one uncompleted twin duplex constructed up to deck level and 3 (three) shops” and the cancellation was signed. (See page 228 of the Records).
In Exhibit 7, the property in transaction was also stated as “3 (three) completed buildings of 6 (six) flats each…” See page 231 the Records.
The Cross-Respondent had testified that the Cross-Appellant prepared the documents for him (Cross-Respondent) to sign. (See pages 57 and 71 of the Records). There is no where in the Records that the Cross-Appellant denied Exhibits 6 and 7. In Exhibit 22, procured by the cross-Appellant, the lands purportedly donated to him, suddenly became:
“… piece or parcel of land and structures therein 3 (three) completed buildings of 6 (six) flats each, one uncompleted twin duplex constructed up to deck level and 3 (three) shops…” See page 276 of the Records.
There was no where the Cross-Appellant could justify the inclusion of what the Cross-Respondent had earlier cancelled in Exhibit 6. The findings of the trial court on the point was therefore unassailable, when it said:
“It has been found out that there was indeed a transaction of the sale of land of the property registered as 13/13/212 which the claimant himself admitted. Exh. 7 which the court found out to be more believable than Exh. 22 stated that the contract sun was N454,000.
Even though there is no valid power of attorney, the court found out that, the 1st Defendant has an equitable interest on the property registered as 13/13/212 which had a certificate of occupancy registered as 71/71/45…” See page 209 of the Records.
I think the trial court was well guided when it relied on exhibit 7 as it did. As earlier noted in this judgment, I think the Cross-Appellant (the 1st Respondent) referred above, should rather be grateful that the trial court did not nullify the whole sale transaction as a result of the fraudulent Exhibit 22, which, if not for the oral evidence of PWZ and Exhibit 7, tended to portray absence of agreement or consensus ad-idem as to what size of property sold.
The trial court had rather relied on the other documents – Exhibit 7 and the oral evidence of the Cross-Respondent, admitting selling the property registered as 13/13/212 to the Cross-Appellant, to award him the property, invoking the principles of equity. By persisting in the path of infamy, seeking to still hold on to the fraudulent Exhibit 22, to enforce it, as this Cross-appeal tends to portray, the Cross-Appellant is tending to show that he is not worthy of the equitable concession! I shall, however, refrain from disturbing the findings and conclusions of the learned trial judge, in the circumstances, which remains sound and proper.
I have also said that the issue of whether the proper, registered as 13/13/212 was encumbered at UBA is of no consequence in this appeal, as that is not a live issue in the appeal and cannot affect the decision of the trial court, that the said property was what was sold by the Cross-Respondent to the Cross-appellant.
I think this Cross-appeal was ill-advised as it rather tended to open old wounds and question the integrity of the Cross-Appellant, if he has any.
I resolve all the issues against the Cross-Appellant and hold that the Cross-Appeal is, completely, devoid of merit and should be dismissed. It is accordingly dismissed.
The Cross-Appellant shall pay N50,000.00 cost to the Cross-Respondent.
IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to read in advance the well researched and erudite Judgment of my learned brother, I. G. Mbaba, JCA. Characteristically, he has adequately analyzed all the issues which have arisen in this Appeal with utmost diligence and indepth appreciation of the principles of the which informed his reasoning and conclusion that the Appellant’s Appeal is unmeritortous and should therefore be dismissed.
There is ample evidence to support my Lord’s opinion that after the Appellant had consistently pleaded and testified that he had intended to sell and actually sold the property registered as 13/13/212 to the 1st Respondent for which adequate consideration in the sum of N425,00.00 was furnished in 1989 and the 1st Respondent was let into possession of the 3 Storey Buildings of 6 flats each and was collecting rent in respect thereof; the learned trial Judge was right to have invoked the equitable doctrine of specific performance to compel the Appellant to perform his part of the bargain with the 1st Respondent rather than hide under the error in the Agreement for the sale of the flats to repudiate the contract.
Speaking specifically about specific performance, the Supreme Court had in the case of Mrs. Florence Coker v. Gabriel Ajewole (1976) 6 & 10 SC 17 at 28-29; invoked the dictum of Lord Radcliffe in Australian Hardwoods Pty. Ltd v. Commissioner for Railways (1961) 1 A.E.R. 737 P.C. at 747; in holding that a Plaintiff seeking the Court’s enforcement by mandatory order of some stipulation of an agreement which in itself consists of inter-dependent undertakings between the Plaintiff and the Defendant, cannot succeed in obtaining it, if he at the time in breach of his own obligations. In other words, where a plaintiff in an action for specific performance has been guilty of delay in performing his own part of the agreement, the delay may bar his claim for specific performance if either:
(a) Time was, in equity, of the essence of the agreement;
(b) If although originally time was not of the essence of the contract but time was subsequently made so, by agreement implied or express, or;
(c) If by his conduct the delay on the part of the Plaintiff was such that may be regarded as evidence of abandonment of the contract or agreement.
In this case, although the Agreement (Exhibit 22) tried to incorporate other pieces of land that were not part of what the Appellant intended to sell and was held to be a forgery and accordingly set aside by the learned Trial Judge, I am also in tandem with my learned brother that there are ample oral and documentary evidence tending to show that the Appellant had sold the property registered as 13/13/212 to the 1st Respondent and that he collected and made use of the consideration of N425,000.00 from the 1st Respondent. The Appellant cannot therefore wake up from hrs slumber after several years to seek to repudiate the contract. Delay, they say, defeats equity as equity also aids the vigilant and not the indolent!
Closely tied to the doctrine of specific performance as invoked by the Learned Trial Judge, is that of substantial performance. Since the 1st Respondent had paid a substantial part of the price for the sale of the property, equity will not allow him to recover the contract price as the court will also invoke equity to compel him to complete the purchase price and take the property as he bought it assuming he sued for the recovery of the purchase price of the buildings after recess on of the contract of sale at that juncture. See Jackie Philips v. Arco. Ltd (Pharmacobiological Institute) (1971) 1 ALL LR 299 at 301-311.
I too shall abide by the conclusion of my lord from the foregoing, that the decision of the Court below invoking the equitable doctrine of specific performance to compel the Appellant to collect the balance of N25,000.00 and hand over the 3 Storey Building of six flats to the 1st Respondent cannot be faulted. I equally hold that the Appeal lacks merit and is accordingly dismissed with 130,000.00 costs in favour of the 1st Respondent.
As regards the Cross-Appeal having taken into consideration all the Issues raised therein and the way and manner my learned brother resolved them, I am also in agreement that the cross-appeal was ill-advised because with the forgery committed in including land which was not part of the property sold to him by the Appellant n the Agreement (Exhibit 22), and the said Agreement having been vitiated by fraud the Appellant ought to be handed over to the E.F.C.C. or other Law Enforcement Agencies for prosecution for the offence of forgery. He ought to have buried his head in shame rather than come to this Court to open up old wounds as my Lord rightly put it in the Lead Judgment and used the Court to profit from his rather ignoble and greedy act.
It is therefore, for the above reasons and the fuller reasons advanced in the Lead Judgment that I also dismiss the Cross-Appeal as completely unmeritorious and abide by the order as to costs.
PETER OLABISI IGE, J.C.A.: I agree with the Leading judgment delivered by my Learned Noble Lord and brother MBABA, J.C.A.
It is also my decision that the main appeal and the cross appeal be dismissed as lacking in merit.
I endorse all the consequential orders made on the main appeal and the cross appeal.
Appearances
Amaechi Nwaiwu, SAN FC1 ARB, with him Emeka Ozoani, Esq. (who settled the brief), Chief Ifeanyi Eke, N. D. Iwu (Mrs.), I. C. Achara Esq., I. C. Nwaogu (Miss), E. C. Okafor Esq. George Manufor Esq. and P. C. Chinaka Esq. ” Appellant/Cross-RespondentFor Appellant
AND
Chief M. I. Alamba KSC, SAN, (who settled the brief) with him C. C. Okoroafor Respondent/Cross-AppellantFor Respondent
