CHIEF ANTHONY NWOHA v. AKUMA ENE & ORS
(2015)LCN/7814(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of March, 2015
CA/OW/03/2009
RATIO
EVIDENCE; ORAL AND DOCUMENTARY EVIDENCE; WHETHER AN ORAL EVIDENCE WILL ALWAYS SURRENDER TO THE DICTATES OF A DOCUMENTARY EVIDENCE ON A GIVEN ISSUE
Of course, in law, an oral evidence will always surrender to the dictates of a documentary evidence on a given issue, since the latter is superior and more reliable, and one cannot use oral deposition to vary what was agreed upon in a written agreement. See Intercontinental Bank Plc vs. Hilman & Bros. Water Engineering Service Ltd (2013) LPELR -; Union Bank of Nig Plc vs. Ajabule (2012) ALL FWLR (Pt 611) 1413 at 1438. The law is also that, though a Plaintiff is expected to succeed on the strength of his own case, he can take advantage of admissions by the defendant, on material facts, thereby leaving him (Plaintiff) to establish his claim on a minimal of proof. See the case of Gwantu vs. Yaki & ors. (2013) LPELR 21416 CA; ADFDL vs. NIWA (2012) ALL FWLR (Pt.611) 1563; Ukpo vs. Imoke (2009) 1 NWLR (Pt. 1121) 90 at 144; Agboola vs. UBA Plc (2011) ALL FWLR (Pt.574) 74. per. ITA GEORGE MBABA, J.C.A.
JUSTICES
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FEDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
CHIEF ANTHONY NWOHA Appellant(s)
AND
1. AKUMA ENE
2. EMEKA ENE
3. OGONNA ENE
(For Themselves and as Representing the Ene Akuma Family) Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Abia State High court in Suit NO:HU/226/2007, delivered by Hon. Justice O.A.K. Ogwe on 23/9/2008, wherein the trial Court granted all the reliefs sought by the Plaintiffs (Respondents herein) and dismissed the Counter-claim. Appellant was the Defendant at the trial Court.
By Amended statement of claim filed on 3/6/08, the Respondents had claimed as follows against the Appellant:
“(A) A declaration that the Plaintiffs are bonafide beneficiaries of the Estate of their late father, Mr. Ene Akuma
(B) A declaration that transaction between the Plaintiffs late father and the Defendant was the issue of advance rent of N100,000.00 (One Hundred Thousand Naira) collected by the Plaintiffs’ late father from the Defendant, of which the Plaintiffs’ late father surrendered the title Documents of his property at No.1 Ubakala Street Umuahia to the Defendant as a security.
(C) A declaration that the Defendant is indebted to the Plaintiffs in the excess of N200,000.00 (Two Hundred Thousand Naira) or at least in excess of N100,000.00… as arrears of his rent for the 2 rooms and one large warehouse at No. 1 Ubakala Street, Umuahia, from the 1st day of January, 2005 till date, or at least till the time of filing this suit, at N20,000.00 (Twenty Thousand Naira) (sic) per month.
i. A declaration that by the effect of paragraphs B(ii) and C above, the Defendant has exhausted the N100,000.00 (One Hundred Thousand Naira) advance rent in issue.
Or in the alternative:
D (ii) A declaration that even if the N100,000.00 (One Hundred Thousand Naira) in issue is taken as a friendly loan, the Defendant has exhausted the said sum of money in view of paragraph C above
E. An Order directing the Defendant to release, forth-with, the said title document of the property known as No.1 Ubakala Street, Umuahia to the Plaintiffs, who are the bonafide beneficiaries of the Estate of late Mr. Ene Akuma
F. Injunction, permanently, restraining the Defendant from forcibly occupying or dealing with the said No. 1 Ubakala Street, Umuahia in any other manner, except as tenant of the Plaintiffs.
(See pages 4 – 5 of the Records)
The Defendant (Appellant herein) had filed a Counter-claim, seeking
“(1) An order compelling the Plaintiffs to Execute an Irrevocable Power of Attorney in favour of the defendant in respect of the property known as and called Plot No. 1 Ubakala Street Umuahia, within the jurisdiction of the honourable court.
(2) An order of Court compelling the Plaintiffs to account to the Defendant for all rents collected from the first of (sic) the aforesaid property, No. 1 Ubakala Street Umuahia, amounting to the sum of N280,000.00 (Two Hundred and Eighty Thousand Naira) from the 1st day of August 2000 to 31st day of May 2006 at the rate of N4,000.00 (Four thousand Naira) per month.
(3) An order of Court compelling the Plaintiffs to pay to the Defendant the sum of N3,000,000.00 (Three Million Naira) being the principle (sic) sum and accrued interests thereto until judgment is entered.
(4) An order of injunction permanently restraining the Plaintiffs, their servants, agents, assigns, workers from further laying claims to the aforesaid No. 1 Ubakala Street, Umuahia or in anyway purporting to deal with the said property.”
(See page 9 of the Records)
After hearing the case and taking evidence and addresses of Counsel, the Court gave judgment to the Plaintiffs and dismissed the Counter-claim, as follows:
” In the final analysis, I make the following orders:
(1) A declaration that Plaintiffs are beneficiaries of the estate of their late father, Ene Akuma
(2) A declaration the Defendant is indebted to Plaintiffs in rent arrears for the premises he occupies at No.1 Ubakala Street Umuahia from 1st January 2005 till today
(3) The Defendant is ordered to release forthwith the title documents to No.1 Ubakala Street Umuahia to Plaintiffs.
(4) The Defendant is restrained from doing anything to the property inconsistent with the rights of a tenant ….. I had set out the reliefs in Defendant’s Counter claim. I have made a finding that Exhibit G is a spurious and suspicious document which was not made by Ene Akuma. The effect is that Ene Akuma neither borrowed N200,000 = nor was Defendant entitled to a transfer of the title of the said house to him on the basis of the non existent loan….. The Counter-claim has no merit and is dismissed in its entirety….. cost of N20,000.00 against the defendant. ‘(See Pages 55 and 56 of the Records)
That is the judgment Appellant appealed against on 20/10/08, as per pages 57 to 60 of the Records disclosing 5 grounds of appeal. Appellant filed his brief of argument on 16/10/12 and formulated five Issues for determination, namely:
“(1) Whether the relief sought by the Respondents in paragraph 14(c) of their amended statement of claim does not amount to a tacit admission by the Respondents that the Appellant gave an interest free loan of N200,000 to the deceased owner of the property in dispute and thus relieved the Appellant the burden of proving same – Ground 1.
(2) Whether the declaratory relief granted the Respondents to the effect that the Appellant is indebted to the Respondents in rent arrears can stand in the face of:
i. Findings by the Learned trial Judge that the Respondents did not prove the Amount of rents Appellant paid, and
ii. The testimony of PW1 and PW2 that they did not know the period covered by the advance rent paid by Appellant – Ground 2.
(3) Whether there was any material placed before the Learned trial Judge to sustain his finding, that the Appellant was indebted to the Respondents for rents, with effect from January 2005, or the order that Appellant surrender title documents of the disputed property to the Respondents, or the holding that Respondents proved their case – Ground 3.
(4) Whether the Learned trial Judge was right in the circumstances to grant to the Respondent a relief other than the reliefs claimed by them – Ground 4.
(5) Whether Exhibit ‘G’ on which Appellant anchored his Counter-claim is invalid on the ground:
(i) That the signature of Respondents’ father on Exhibit G is different from his signature on Exhibit F and
(ii) The son of the deceased original owner of the disputed property who signed Exhibit G as a witness was not called a witness – Ground 5.
The Respondents filed their brief on 17/1/14, which was deemed duly filed on 14/10/14. They too distilled the same five (5) issues for determination, as couched by the Appellant.
Arguing the appeal, Chief Nnamdi D. Uchendu, on Issue 1, submitted that there was evidence, as disclosed by Appellant to the Respondents, that the title documents to the property were surrendered to the Appellant as security for the friendly loan of N200,000.00 Appellant gave to the father of the Respondents; that the Respondents did not contest the fact of the loan transaction but only argued that Appellant not being a licensed money lender could not engage in interest yielding loan transaction. He relied on Exhibit G as the terms of the loan transaction and submitted that the Respondents, having founded their claim on the said loan transaction, cannot turn round to disallow the same; that the trial court was wrong, when it said that it could not hold that the father of the Respondents borrowed the amount (N200,000) from the Appellant.
Counsel relied on the case of Stowe vs. Benstowe (2012) ALL FWLR (pt. 620) 1245, to say that Respondents’ reliefs formed part of their pleadings and they were bound by their pleading; that where admissions are made in pleading, that dispenses of the need to lead evidence in proof of the fact admitted. He relied on Edosomwan vs. Ogbeyfun (1996)4 SCNJ 128; FMH vs. Comet Shipping Agencies (2009) ALL FWLR (Pt. 483) 1260 at 1276. He relied on paragraph 14(c) of the Amended Statement of Claim and paragraph 8 of the defence to Counter-claim, which, Counsel said, were consistent with the case of Appellant, that he gave the friendly loan of N200,000.00 to the Respondents’ father, repayable within 5 months, failing which the borrower would execute an irrevocable power of attorney in favour of the Appellant concerning the property.
On Issue 2, Appellant’s Counsel submitted that Appellant’s evidence showed that he paid the sum of N128,000.00 to Respondents’ father as advance rent in 1999, to expire on 31/12/2004, as per Exhibit F, which he said the Respondents denied, insisting that the advance rent was N100,000.00, but the trial Court believed the Appellant. He referred to page 53 of the Records. Thus, Counsel said the evidence by the Respondents’ witnesses was unreliable regarding the advance rent; that it was therefore strange that the trial Court, after finding that the Respondents’ evidence was not reliable on the issue, turned round to hold that Appellant was owing rent from 1st January, 2005. He submitted that the law is trite that the court should not speculate on evidence or make inconsistent use of evidence i.e. approbate and reprobate on evidence which it had held to be unreliable. Amadi vs. Amadi (2012) ALL FWLR (Pt.626) 559
On Issue 3, Appellant’s Counsel said that the evidence of the Respondents on the issue of Appellant’s indebtedness to them was more of conjecturing or, at best ‘hearsay’ evidence; that they did not satisfy the specification of the Supreme Court in the case of Anyanwu vs. Uzowuke (2009) 177 LRCN 204 at 244, as regards the quality of evidence that can amount to proof. Counsel argued that none of the Respondents’ witnesses had any knowledge as regards the rents paid by the Appellant or the loan transaction between Appellant and the father of the Respondents. Thus, he said there was no material on which the trial Court could base his findings that the Respondents proved their case; Counsel said that the Courts’ finding, in the circumstances, was perverse and erroneous. He relied on Nafiu Rabiu vs. Kano State (1980) FNR 509 AT 528; (1980) NSCC 291 at 309.
On Issue 4, Appellant said the trial Court was wrong to grant Respondents a relief not sought; that the Court cannot act ‘father Christmas’, dolling out largesse to the parties; he said that, in the same token, no court is allowed to make a case for a party, different from what the party made. He relied again on Stowe vs Benstowe (2012) ALL FWLR (Pt.620) 1245 at 1261; Ukiri vs. Fed. Civil Service Commission (2011) ALL FWLR (Pt.577) 783 at 794; UNICAL vs. Essien (1996) 10 NWLR (Pt.477) 225.
Counsel referred us to paragraph 14(c) of the Amended Statement of claim and submitted that, after finding that Respondents did not plead and prove in evidence, the amount of rents the Appellant paid, the Learned trial Court went ahead to grant a relief different from the one claimed by the Respondents, by unilaterally amending and excising vital components of the relief claimed in paragraph 14(c) of the Amended Statement of Claim like “in excess of N200,000.00 or at least in excess of N100,000= and “till date or at least till the time of filing this suit at N20,000.00 per month.”
On Issue 5, Counsel submitted that the Respondents did not dispute the signature of their father in Exhibit G, either in their pleading or in their evidence; that Exhibit G was admitted into evidence, without objection and no issue was joined by the Respondents as to the authenticity of the document relating to the signature of the father of the Respondents compared with Exhibit F. He submitted that the issue of the signature in Exhibit G only came up in the address of Counsel for Respondents, and argued that the Court did not call on the Counsel for Appellant to react to the allegation, before relying on it to find that the loan transaction was not proved by Appellant. Counsel added that address of Counsel, no matter how brilliant, cannot be a substitute for evidence led at the trial, that by law where a party disputes a signature, the onus is on him to produce the authentic signature is to enable the trial Court compare the disputed signature with the authentic signature. He relied on Zein vs. Geidam (2004) ALL FWLR (Pt.237) 457. Counsel added that even where there is discrepancy between the signature of a person on one document, compared to one in another document, that does not amount to proof, they were not made by the same person, in law. He relied on Babale vs. Eze (2012) ALL FWLR (Pt.635) 287 at 335.
Counsel said that it was on the basis of the perverse findings about the signature that the trial Court held that Exhibit G was a spurious document. He said that, save for the claim for interest on the loan, which the Appellant withdrew in the course of the proceedings, the Appellant was entitled to his counter-claim, since Exhibit G was not impeached as required by law and procedure and so was valid and enforceable.
He urged us to resolve the issues for the Appellant and allow the appeal.
The Respondents’ Counsel, Chief Ogbonna O. Igwenyi, on Issue 1, said that the burden was on the Appellant, who alleged that Respondents’ father took a loan of N200,000.00 from him to establish that fact; that they (Respondents) had always maintained that the father only took a rent advance of N100,000.00 from Appellant, as per Exhibit F; that Exhibit G, produced by Appellant, was made by his lawyer, John Iheanyi Chukwu Amajuoyi Esq., which carried a purported signature of Respondents’ father, which caricatured the man’s signature in Exhibit F, also made by the same lawyer; he submitted that before the matter came to Court, appellant had alleged that the Respondents’ father owed him N2,040,000.00, as per Exhibit B, pleaded and relied upon by the Appellant; that at the trial, Appellant changed his story, as per Exhibit G, that he advanced N200,000.00, interest free loan, to the father of the Respondents; that the trial Court had to compare the two documents – Exhibits F and G – to determine whether the two documents were signed by the Respondent’s father, and came out with a negative findings against Exhibit G. (page 64 of the Records).
Counsel referred us to paragraphs 8 and 9 of their Amended Statement of claim and paragraphs 2,3,4,5,6,7,8 and 9 of their defence to Counter-claim, where they denied the debt of N200,000.00, insisting on the rent advance of N100,000.00 (Exhibit F). He added that Appellant must succeed on the strength of his case and cited Eyigobe vs. Iyaji (2013) ALL FWLR (Pt.703) 1901 at 1916.
On Issues 2 and 3, which Respondents argued together, Counsel submitted that the finding of the trial court, who received the testimonies of the parties and watched their demeanour is not easily discountenanced on appeal, unless the Appellant is able to substantiate, by demonstrative evidence, that his case was not considered or was not properly reviewed along the line of other pieces of evidence, placed before the trial Court or that it drew wrong conclusions therefrom. He relied on Onwuka & Anor vs. Omogui (1992) 3 SCNJ 98; Ofondu vs. Niweigha (1993) 2 SCNJ 73.
Counsel added that the trial Court had also properly and fully evaluated the competing testimonies of the parties at the trial and compared the signatures of late Ene Akuma in Exhibit F with his purported signature on Exhibit G before reaching his conclusion in page 64 of the Records. He relied on the Obuobipi vs. Obuforibo (2010) ALL FWLR (Pt.546) 411 at 415. He argued that the fact that in all the correspondences tendered by Appellant, none made reference to Exhibit G, and the fact that Respondent had denied the alleged transaction in Exhibit G (See Exhibit H).
Moreover, Counsel submitted, that Appellant never raised any issue of repayment of the alleged debt, even when he attended the funeral ceremonies of the late Ene Akuma; that he waited until the Respondents sued him to surrender the title documents of the property, before he could come up with such debt in his Counter-claim! He argued that the said claim (debt) was even statute barred, going by the Abia State statute of limitation, Section 18, Cap 24, Laws of Abia State 1991-2000. Counsel noted that Exhibit G was purportedly made on 7/3/2000 and the period of repayment was five (5) months, that is, 31/7/2000! He said that the trial Court considered this fact on page 64 of the Records and faulted the Appellant; he added that the trial judge was right in its findings that only Exhibit F represented the advance rent received by the Respondents’ father.
On Issue 4, Counsel submitted that there was nothing in the judgment of the trial Court that was not claimed by the Respondents. He reproduced the reliefs claimed by the Respondents, to compare with the findings/holding of the Court on page 53 of the Records.
On Issue 5, Counsel submitted that the Respondents had denied the existence of any other contract between their father and the Appellant, except the payment evidenced by Exhibit F. He repeated the arguments of the Respondents in Issue 1, in respect of Exhibit G. Counsel added that the Exhibit G was even at variance with the pleadings of the Appellant; that while in his pleadings, he claimed that the father of the Respondents borrowed an amount which had risen with interest on the principal to over N2,040,000.00, in his oral evidence he told the Court that only N200,000.00 was involved and mentioned no interest! Yet, Counsel said, the Appellant expected the Court to believe his stories, even when the signature in Exhibit F, signed by the Respondents’ father had no resemblance with the purported signature of the same man in Exhibit G.
He urged us to hold that the trial Court was right in its holding on the counter-claim, saying that the Counter-claim was anchored on nothing and could not be expected to stand. He relied on Geneva vs. Afribank Nig PLC (2013) ALL FWLR (Pt.702) 1652 at 1687. Counsel argued that even without comparing the signatures in Exhibit F and G, the trial Court had enough reasons to nail the purported agreement in the Exhibit G. He said that the attitude of the Appellant was that of a man who was bent on seizing the property of the late Ene Akuma by using spurious document made by him for that purpose; that Ikechukwu Ene, a son of late Ene Akuma, whom Appellant alleged witnessed the transaction in Exhibit G. had since denied witnessing that transaction -See Exhibit H. He urged us to dismiss the appeal.
RESOLUTION OF ISSUES
I think the 5 issues raised by the parties for the determination of this appeal can be stream lined into three, namely:
(1) Whether the trial judge was right to hold for the Respondents, that their father collected advance rent of N128,000.00 as per Exhibit F from Appellant, (not N200,000.00), for which he surrendered the title documents of his house at No.1 Ubakala Street, Umuahia, as security, and that Appellant was owing rent from January 2005.
(2) Whether the trial judge was right to hold that Exhibit G (alleged loan agreement) which sought to dispossess the Respondents of beneficial right over the property at No.1 Ubakala Street, Umuahia, was invalid on the ground that the alleged signature on it was not that of the Respondents’ father.
(3) Whether the learned trial judge granted to Respondents, something outside what they claimed in relief 14 (c) or more reliefs than they claimed.
I think the Issue 1 reframed by us subsumes Appellant’s issues 1, 2 and 3, while our Issues 2 and 3, above, rephrased Appellants’ Issues 5 and 4, respectively.
By the findings of the trial Court, the summary of the Respondents’ case, as pleaded and given in evidence, was that Appellant paid rent advance of N100,000.00 (One Hundred Thousand Naira) to the father of the Respondents who needed the money for his medical treatment, and at the instance of the Appellant the father of the Respondents (Mr. Ene Akuma) deposited the title documents of the property at No.1 Ubakala street, Umuahia with the Appellant. The said amount had been exhausted, but Appellant would not pay any more rent on the property. Appellants reply was that the advance rent he paid was rather N128,000.00, that in addition to the said N128,000.00 advance rent, he also gave the Respondents’ father the sum of N200,000 (Two Hundred Thousand Naira) interest free loan, which had not been repaid to him and for which he was holding on to the title documents of the property. (See page 51 of the Records of Appeal)
Whereas, the parties agreed that the N100,000.00 (or N128,000.00) advance rent was the subject matter of the Exhibit F (an acknowledgment receipt) which was made on 30/8/99 by the father of the Respondents, Mr. Ene Akuma, in favour of the Appellant, there is no such agreement over Exhibit G. (Exhibit F reads in part):
“… I, Mr. Ene Akuma of No.1 Ubakala Street, Umuahia do hereby acknowledge receipt of the sum of N128,000.00 (One Hundred and Twenty Eight Thousand Naira from Chief Anthony O. Nwoha of No.32 Alor Street Umuahia, being advance rent for a period of five years and four months in respect of all that big warehouse and 2 rooms with appurtenances, situate, lying and being in my house at No. 1 Ubakala Street Umuahia. The duration of the tenancy which shall be yearly tenancy shall commence on the 1st day of September 1999 and determine on 31st day of December 2004… ” (see page 66 of the Records).
It was signed by the said Mr. Ene Akuma in the presence of J.I. Amajuoyi Esq. of No.15 Item Street, Umuahia.
The oral evidence on both sides agreed with Exhibit F as the advance rent (though the oral evidence by Respondent had initially said the advance rent was N100,000) See pages 14,16,17,18 of the Records). It was Appellant who produced the Exhibit F to show the exact amount (N128,000.00) he paid as rent advance. (See page 20 of the Record). It was on that basis that the trial court held on page 53 of the Record:
“The words of Exhibit F are clear and do not admit any addition or assumption or presumptions. I therefore hold that the amount of the advance rent was N128,000== which expired on 31/12/2004. From 2005, Defendant by his admission, has not paid any fresh rent to Plaintiffs.”
That findings by the trial Court was not faulted or appealed against by the Appellant and by law it remains binding and conclusive. See N.B.C.I. vs. Intergrated Gas (Nig) Ltd (2005) 4 NWLR (Pt.916)617; Dabup vs Kola (1993) 9 NWLR (Pt 317) 254 at 259; Nnaji vs. Alozie (2014) LPELR – 24014 (CA).
Of course, the character of the relationship between Appellant and the father of the Respondents was that of Tenant/Landlord and Exhibit F clearly explained the purport of the N128,000, advance payment by the Appellant to the Landlord, and the fact that the amount was to be exhausted by 31/12/04. Appellant, in evidence before the Court, admitted he made no further payment to the father of the Respondent as rental on the property. Appellant said on page 22 of the Records:
” I am still living there…. The last payment to Ene Akuma was in 1999 for 5 years plus. Since after his death I have not paid any other rent.”
There was evidence that the Respondents’ father died in 2001, and after the burial, the Respondents went to collect the documents of the property from Appellant. He then told the Respondents that the money he gave to their father was a loan not advance rent! (See page 14 of the Records).
Appellant must have then schemed how to dispossess the children of his landlord of the property, faking a loan agreement with multiple interests that would make repayment difficult for the children, (See Exhibit B) to force them to execute a power of attorney in his favour to surrender the property to him, as a result of their inability to clear the fathers’ debt. He took advantage of being in possession of the title documents of the property (which his landlord surrendered to him, at the time of the rent advance) to scheme this evil and with the aid of a lawyer! That appears to be the story of the Exhibit G, which I think was shady. (I shall say more on this later).
Though, on the Records, the Respondents, actually, exhibited a poor knowledge of their case, on the exact amount paid as advance rent and other detail of the rental – rate and duration of the lease, I think, it is safe to hold that the trial Court acted rightly, when it held that the Appellant was a tenant on the property and that the Respondents were entitled to enjoy their father’s right over the property, as the landlords of the Appellant, entitled to being paid rents after the expiration of the advance rent of N128,000.00 on 31/12/04. I do not think the error by the Respondents in pleading and stating that N100,000.00 was the advance rent, was capable of defeating their claim, since the production of Exhibit F, which, infact, carried the terms of the tenancy agreement between Appellant and the father of the Respondents, came to settle the dispute as to the actual amount paid by the Appellant as advance rent.
Of course, in law, an oral evidence will always surrender to the dictates of a documentary evidence on a given issue, since the latter is superior and more reliable, and one cannot use oral deposition to vary what was agreed upon in a written agreement. See Intercontinental Bank Plc vs. Hilman & Bros. Water Engineering Service Ltd (2013) LPELR -; Union Bank of Nig Plc vs. Ajabule (2012) ALL FWLR (Pt 611) 1413 at 1438.
The law is also that, though a Plaintiff is expected to succeed on the strength of his own case, he can take advantage of admissions by the defendant, on material facts, thereby leaving him (Plaintiff) to establish his claim on a minimal of proof. See the case of Gwantu vs. Yaki & ors. (2013) LPELR 21416 CA; ADFDL vs. NIWA (2012) ALL FWLR (Pt.611) 1563; Ukpo vs. Imoke (2009) 1 NWLR (Pt. 1121) 90 at 144; Agboola vs. UBA Plc (2011) ALL FWLR (Pt.574) 74.
Of course, the admission by Appellant, that what existed between him and the father of the Respondents was a tenancy relationship and that he made advance payment of the rental for 5 years and 4 months, as per Exhibit F. amounting to N128,000.00, had established the claim of the Respondents on this issue, though they had quoted a wrong amount as the advance rental.
I resolve this issue for the Respondents against the Appellant.
On Issue 2, whether the trial Court was right to hold that Exhibit G was invalid, I have already said that, from every indication, appellant appeared to have schemed to take over ownership of the property, rented to him by the father of the Respondents, upon the demise of the landlord, taking undue advantage of being in possession of the title documents of the property, said to have been given to him, on his request, at the time he paid the advance rent of N128,000.00 (See pages 52-53 of the Records).
In his evidence, Appellant had admitted that before the demise of the father of the Respondents, he (father of the Respondents) was his (Appellant’s) land lord at No. 1 Ubakala Street Umuahia, and added that they had many transactions; that if he (land lord) had problems, he would come to him (Appellant) and he (Appellant) would help him (land lord). See page 20 of the Records. He tendered the Exhibit F- the advance rent of N128,000.00. He then added:
“It is not true as alleged by Plaintiffs that I paid N100,000.00 as advance rent and claimed it to be a loan. I actually gave a loan of N200,000.00 to Ene Akuma (landlord). It was in writing. I see this document. It is the said receipt for the loan.” (Page 21 of the Records).
The document titled “Acknowledgment Receipt” was Exhibit G. It stated, inter alia:
ACKNOWLEDGMENT RECEIPT
By this Acknowledgement Receipt dated and or executed this 7th day of March 2000; I MR. ENE AKUMA of No. 12 Nise Street Abakaliki, Owner and landlord of No. 1 Ubakala Street Umuahia in the Umuahia North Local Government Area of Abia State of Nigeria do hereby acknowledge receipt of the sum of N200,000.00 (Two Hundred Thousand Naira) from CHIEF ANTHONY O. NWAOHA of No.1 Ubakala Street Umuahia, being interest free friendly loan granted to me by the said Chief Anthony O. Nwaoha for a duration of five months certain, to wit, from the 1st day of March 2000 to the 31st day of July, 2000.
I have as security and of collateral for the said loan rendered and or handed over to the said Chief Anthony O. Nwaoha, my title Deeds in respect of my said house, to wit, originals of my Statutory Certificate of Occupancy dated the 14th day of December 1987 and registered as Instrument No. 46 at page 46 in Volume 180 of the Lands Registry in the office formerly at Owerri, Imo State and now in the office at Umuahia, Abia State of Nigeria.
My earlier irrevocable Power of Attorney over the same property dated the 7th day of December 1986 and registered as Instrument No. 69 at page 69 in Volume 382 of the Lands Registry in the office formerly at Owerri, Imo State of Nigeria and now in the Lands Registry in the office at Umuahia, Abia state of Nigeria.
I hereby irrevocably agree, promise, undertake and bind myself to execute an Irrevocable Power of Attorney in his favour over my said property if at the expiration of the period hereby granted I shall fail, omit, refuse and or neglect to refund the said friendly interest free loan.
I have equally by these presents agreed, undertaken, promised and bound myself not to transfer title to any other person over and in respect of the said property as long as the said Chief Anthony O. Nwaoha is yet to exhaust his unexhausted rent paid to me in the said house and series of other interest free loans that I borrowed and or obtained from him.
Dated at Umuahia this 7th day of March, 2000.
Signed by me:
Mr. ENE AKUMA
In the presence of
1. Name: ENE AKUMA IKECHUKWU Sgd.
Address: No. 12 NISE STREET
ABAKALIKI EBONYI STATE
2. Name:……………………………………
Address:……………………………………..
…………………………………………………
3. Barrister J. Iheanyi Amajuoyi, Sgd.
No. 15 Item Steet,
Umuahia”
Appellant stated that when he was dealing with Respondents father, his son 19 years old then, Ikechukwu Akuma, was around. He produced a letter written by Barr. Dr. I.N. Ijiomah on 13/4/02 on behalf of the said Ikechukwu (Exhibit H), which rather denied the loan transaction. He said that the said Ikechukwu was the person who was collecting rents on the property, on behalf of the father; he said that Ene Akuma did not repay the loan of N200,000.00 and that he had made demands for same, orally and in writing, to no avail. He tendered Exhibit L written on 17/4/2001 as one of the demand letters by his Counsel. He added that since after the death of Ene Akuma, the 2nd Plaintiff (Emeka Ene) became the one collecting rents on the property.
Part of Exhibit H (written by Ikechukwus’ lawyer) reads:
“(1) That my clients’ late father did not borrow the sum of N200,000.00 (Two Hundred Thousand Naira) from you before his death.
(2) My clients late father rather borrowed N100,000.00 (One Hundred Thousand Naira) only from you “free of any interest whatsoever”. There could not have been any interest any way, as you are not a licenced money lender.
(3) That your claim in your aforesaid letter that my client is owing you the sum of N1,800.00 (sic) (One million, Eight hundred thousand Naira) inclusive of interest, from the said loan taken from you by his father is false.
(4) For avoidance of doubt, my client is prepared to pay the said sum of N100,000 (Hundred Thousand Naira) which his late father was owing you before his death………” See page 67 of the Records.
The trial Court did not believe Appellant’s story of debt relating to Exhibit G, the alleged debt having been denied by the Respondents, including Ikechukwu Akuma, whom the Appellant named as a witness! The Court took a studious look at the signatures on Exhibits F (tendered by the Appellant) and on Exhibit G and said:
“I have looked at the two receipts. As said above, Exhibit F was made before G. The two signatures are not the same on comparison. If Ene Akuma signed Exhibit F, then he could not have been the person who signed Exhibit G; Defendant’s only witness (because the solicitor being the maker of the receipts is not strictly his witness) Ikechukwu, though not called, denied the transaction, in Exhibit H. I also find it strange that since 2000, when Ene Akuma failed to pay back the purported loan, Defendant did nothing. He took no steps to enforce Exhibit G but waited until this suit was taken out before he raised the counter-claim, In Exhibits ‘B’ ‘J’ ‘L’ and ‘K’ all written by the Defendant’s solicitor, he never referred to the option of the house being conveyed to Defendant. Rather he dwelt on what he called accumulated interests on the unpaid loan.” See page 54 of the Records.
I cannot fault the above reasoning and finding of the trial Court, which greatly queried the authenticity of the Exhibit G. I have also read, the Exhibits B, J, L and K by the same Appellant’s solicitor, who also prepared Exhibit G. None of the letters had any reference to paragraph 4 of Exhibit G, which says:
“I hereby irrevocably agree, promise, undertake and bind myself to execute an irrevocable power of attorney in his favour over my said property if at the expiration of the period hereby granted, I shall fail, omit, refuse and or neglect to refund the said friendly interest free loan….” (Page 64 of the Records)
Appellants Exhibit B (which was his reaction to the quit Notice issued on him by the Respondents in August 2004), rather warned the Respondents of the growing interest on the alleged loan of N200,000, which Appellant said had risen to N2,040,000.00, as at 1st August 2004! See paragraph 3 of Exhibit B (page 62 of the Records.)
Paragraph 3 of Exhibit J (written on 13/5/02 warned “The interest rate is still soaring and accumulating. At appropriate time when my client will exercise his power of sale over his accumulated interest, where your client now claims arrears of rent, the truth will begin to be more glaringly obvious to you client….”
Exhibit K, written on 2/4/02 (page 70 of the Records) was not different, as paragraph 4 said:
“The said loan….” from the 1st day of August 2000 to the 31st March 2002 had attracted an interest rate of the sum of N1,600,000.00 (One Million, Six Hundred Thousand Naira. If you add this amount to the original sum of N200,000.00…..”
Exhibit L was written on 17/4/2001, and addressed to Ene Akuma (who must have been alive then). In paragraph 2 (page 72 of the Records)
Appellant’s Counsel wrote:
“I do hope that by this letter, you should be able to do something to settle my client and fast too. TAKE NOTICE that I shall at the earliest opportunity write to the tenants in the said property to commence the payment of rents to my client until you can make up your mind to settle the accrued huge debts, or in the alternative comply with your bond and undertaking. If after your receipt of this letter you still refuse, I shall proceed to court to get judgment over the debt against you and this shall be without further notice to you…..”
Quite strangely, while the substance of all the threat letters talked about accumulating and rising interests on the debt, the Exhibit G on which the letters were, allegedly, founded emerged in the Counter-claim to proclaim INTEREST FREE LOAN, with a clause agreeing or undertaking to execute a power of attorney, surrendering the property to Appellant, in the event of failure to repay the interest free loan of N200,000.00 within five months!
It is very improbable that a land lord, who in 1st September 1999, collected an advance rent of N128,000.00 from his tenant, over a small portion of his property, covering 5 years and 4 months, would be so silly to undertake to give out the whole property to the same tenant over an interest free loan of N200,000.00 taken in March 2000, if he failed to repay the debt in 5 months! It does not make any sense and mocks legal logic. What stopped him from collecting the money as additional advance rent, even if it was for another 5 years!
I think the entire document (Exhibit G) was a fraud and an evil scheme, which no sound lawyer should be associated with. Thus, apart from the signature problems, which the trial Court pointed out, the entire loan agreement and claim were founded on fraud and blackmail, and appeared to have been made because of the Respondents’ case, to deny them right to their father’s property.
Appellant was not correct to state that there was no challenge to the Exhibit G, simply because the Respondent did not object to its admissibility or did not raise any question of irregularity of the alleged signature of the father of Respondents on the document. Of course, a sound lawyer would not raise any objection to the tendering of a document, which he intends to use to the advantage of his client, once he spots a defect on it which would make his case! Having denied the alleged loan of N200,000, and the alleged witness (Ikechukwu) named by the Appellant, having denied the transaction, as per the letter tendered by the Appellant himself, the Respondents’ Counsel was in order to have addressed the Court on the fraud in the signature on Exhibit G, that it was not that of Respondents’ father, compared to the authentic signature of the same person on Exhibit F.
The trial Court acted properly, in my view, to have compared the signatures and make its findings. See the case of Davis vs. NDIC (2014) LPELR – 23768 CA; Godwin Okafor vs. Cecilia Okafor & Ors. (2014) LPELR – 23561 (CA)
I resolve the issue against the Appellant.
The last issue was whether the trial Court granted to Respondents relief other than what they claimed in Relief 14 (c), or more reliefs than they claimed. Appellant had submitted, relying on the case of Stowe vs. Benstowe (2012) ALL FWR (Pt.620) 1245 at 1261, that it is clear that a Court should not award that which was not claimed by a party, as a Court is not a charitable organization and the judge, who personifies the Court, is not a father Christmas. He argued that the Lower Court had granted reliefs different from the one which were sought by Respondents. The Paragraph 14(c) of the Amended Statement of Claim of the Respondents, which Appellant specifically complained about, was for:
“A declaration that the defendant is indebted to Plaintiffs in excess of N200,000 or at least in excess of N100,000 as arrears of rent for the 2 rooms and one large ware-house he occupies at the property of late Ene Akuma of No. 1 Ubakala street, Umuahia from 1st day of January 2005, till date or at least to the time of filing this suit, at N20,000.00 per month”.
The trial Court, reacting to all the reliefs, held:
“The Plaintiffs did not plead and prove in evidence the amount of rent Defendant paid. I agree with Plaintiffs’ contention that the Defendant is owing rent from 1st January 2005. In the final analysis I make the following orders:
(1) A declaration that Plaintiffs are the beneficiaries of the estate of their father Ene Akuma.
(2) A declaration that Defendant is indebted to Plaintiffs in rent arrears for the premises he occupies at No.1 Ubakala Street, Umuahia from 1st January 2005 till today.
(3) The Defendant is ordered to release forthwith, the title document to No. 1 Ubakala Street, Umuahia to Plaintiffs.
(4) The Defendant is restrained from doing anything to the property, inconsistent with the rights of a tenant.” (page 55 of the Records).
I have studied the orders made by the trial Court, carefully, in the light of the reliefs sought by the Respondents, particularly relief 14(c). I cannot see any part of the orders made or relief granted by the trial Court, which is not in keeping with the claims, or which (according to Appellant) amounts to “a relief different from the one claimed by the Respondent by unilaterally amending and excising vital components of the relief claimed in paragraph 14(c) of the Amended Statement of Claim.”
I had earlier reproduced the admission by the Appellant on page 22 of the Records where he said:
“I am still living there .. The last payment to Ene Akuma was in 1999 for 5 years. Since after his death I have not paid any other rent.”
Evidence as per Exhibit F had shown that the advance rent of N128,000.00 paid by Appellant to his landlord, Ene Akuma, was for 5 years and 4 months, beginning from September, 1999 to 31st December, 2004. Of course, his landlord died in 2001, and so the decision of the trial judge that Appellant was owing rental “from 1st January, 2005 till today” (meaning the date of the judgment of the lower Court) was correct and borne out the claim and evidence.
I cannot find any reason to disturb that finding/holding of the trial Court.
On the whole I resolve the issues against the Appellant and dismiss the Appeal, for lacking in merit.
Appellant shall pay the cost of this appeal assessed at N50,000.00 (Fifty Thousand Naira) only.
PETER OLABISI IGE, J.C.A.: My brother Mbaba, JCA gave me the opportunity of reading his Judgment just delivered by him.
I agree with the said judgment.
FREDERICK O. OHO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother I.G. Mbaba, JCA just delivered and I agree with this reasoning and conclusions therein that the Appeal is lacking in merit and has accordingly failed. Cost of this Appeal is assessed at N50,000.00 against the Appellant.
Appearances
Chief Nnamdi D. Uchendu (who settled the brief)For Appellant
AND
Chief Ogbonna O. IgwenyiFor Respondent
