ABEL OGUNTUWASE v. HON. TOPE JEGEDE (2015)

ABEL OGUNTUWASE v. HON. TOPE JEGEDE

(2015)LCN/7923(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 30th day of June, 2015

CA/EK/37/2014

RATIO

APPEAL: REPLY BRIEF; WHEN A REPLY BRIEF IS NECESSARY AND THE FUNCTION OF A REPLY BRIEF

In the case of HARKA AIR SERVICE (NIG) LTD V. KEAZOR (2011) ALL FWLR (PT.591) 1402, wherein the Supreme Court dwelling on reply brief, per Adekeye JSC stated at page 1416 thus:
“The Appellate Courts had in many decided cases laid emphasis on when a reply brief is necessary and what it should address. A reply brief is filed when an issue of law or argument raised in the Respondent’s brief usually by way of a preliminary objection calls for a reply. Where a reply brief is necessary, it should be limited to answering, any new points arising from the Respondent’s brief. Although the filing of a reply brief by an Appellant is not mandatory, where a Respondent’s brief raises issues or points of law not covered in the Appellant’s brief, an Appellant ought to file a reply as failure to file one without an oral reply to the points raised in the Respondent’s brief may amount to a concession of the points of law or issues raised in the Respondent’s brief. It is not proper to use a reply brief to extend the scope of the Appellant’s brief or raise issues not dealt with in the Respondent’s brief. A reply brief is not meant to have a second bite at the cherry, which is exactly the purpose of the Appellant’s reply brief in this appeal since the Appellant used the reply brief in the two issues raised for determination, it is utterly irrelevant to this appeal. “
See the case of OGBORU V. IBORI (2005) 13 NWLR (PT 942) PAGE 380 where the Supreme Court held: “That the function of reply brief and indeed oral reply, is for both to be used in addressing such new issues, particularly on points of law that the Appellant did not envisage and treat in the Appellant’s brief or initial argument in the oral prosecution of the appeal.” In the case of CAMEROON AIRLINES V. MIKE OTUTUIZU (2011) LPELR-827 (SC), the Supreme Court held that a nature of a reply should be limited to answering only new points arising from Respondent’s brief and therefore should not be used to proffer further arguments to those already made and contained in the Appellant’s brief”. In this appeal, the Appellant did not comply with the Supreme Court decisions that essence of a reply brief is to be limited to new points which are raised in the Respondent’s brief. In his Reply Brief, Defendant/Appellant did not comply with the above Supreme Court decisions. The reply brief of the Appellant herein clearly seeks to reargue the appeal. Consequently, the effect of non compliance with the Supreme Court decisions is that this Court will discountenance the Appellant’s Reply Brief. See also cases of ONUAGULUCHI V. NDU (2000) 11 NWLR (PT.590) 204 and ACB LTD V. APUGE (1995) 6 NWLR (PT 399) 65. per. FATIMA OMORO AKINBAMI, J.C.A.

CONTRACT: ENFORCEMENT OF A CONTRACT; WHETHER A CONTRACT THAT IS EX-FACIE NOT ILLEGAL OR OFFEND PUBLIC POLICY WILL BE ENFORCED BY THE COURT AND THE DEFINITION OF THE TERM “EX-FACIE”

The position in law is that a contract that is ex-facie not illegal or offend public policy will be enforced by the Courts. See – UBN V. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (PT 421) 558; OGWURU V. CO-OPERATIVE BANK of E.N. LTD (1994) 8 NWLR (PT 365) 685; SODIPO V. LEMMINKAINEN OY (1986) 1 NWLR (PT 5) 220; EKWUNIFE V. WAYNE (WA) LTD (1989) 5 NWLR (PT 122) 422.

The term “ex-facie” is defined in Blacks Law Dictionary 6th Edition, 1990, page 72 as follows:
“Ex-facie: from the face; apparently; evidently. A term applied to what appears on the face of the writing.” per. FATIMA OMORO AKINBAMI, J.C.A.

PRACTICE AND PROCEDURE: CLAIM; WHEN CAN A CLAIM BE SAID TO BE EX-FACIE TAINTED WITH ILLEGALITY AND WHAT A PERSON WHO INTENDS TO CLAIM ILLEGALITY AS A DEFENCE MUST PLEAD

The law is settled that before a claim can be said to be ex-facie tainted with illegality, it must be clearly apparent and unequivocal from the claim, that what the Court is being called upon to entertain is illegal and in breach of specific statute or law. Thus, for example, a contract for the supply of poison, has been held not to be ex-facie illegal and that the onus to prove illegality lay on the person claiming such defence. See- AGBAKOBA V. MEKA (1962) NNLR 1. The law is also settled that whoever intends to claim illegality as defence must not only plead the illegality, he is also required to set out the particulars of the illegality in his pleadings. This requirement is mandatory in all cases where the contract is not ex-facie illegal and the question of illegality depends on the circumstances of the case. As a general rule therefore, the Court will not entertain the defence, unless it is raised in the pleadings, unless where illegality is apparent on the face of the claim; See- NASSAR V. MOSES (1960) L.L.R. 170; GEORGE V. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71, (1963) 1 SC NLR 117 and OGWURU V. CO-OPERATIVE BANK of E.N. LTD (supra). per. FATIMA OMORO AKINBAMI, J.C.A.

CONTRACT: PARI DELICTO DOCTRINE; WHAT THE PRINCIPLE OF PARI DELICTO ENTAILS

The authors of Black’s Law Dictionary 8th Edition at page 807 defines in pari delicto doctrine to mean:
“The principle that a Plaintiff who has participated in wrongdoing may not recover damages, resulting from the wrongdoing.” That is the general rule, such that as the agreement between the parties herein was an alleged illegality and the Appellant, being aware that the Respondent could not sell his concession, yet he went ahead and entered the land and felled trees for his sawmill. He too was privy to an illegality for which he cannot turn round and benefit from it. The principle is founded on the law of equity that a person who has benefited from a transaction cannot just turn round and say that the transaction was illegal. Hence the attitude of Courts to parties in pari delicto, is that if “one or two persons who entered into a fraudulent transaction, well knowing what they are doing cannot come to the Court and obtain relief from his wrongdoing to the prejudice of his partner in the wrongdoing”. Such a proposition seems to me to be, apart from anything else, an abuse of the process of the Court and I do not find it possible to assent to it for a moment. Support for this view is to be found in the judgment of Jessel M.R in SYKES V. BEADON (1879) LR11 Ch.D. 170; per Myles J. Abott, Ag CJF in M.A. OKUPE & Co. LTD V. S.LIGALI SARUMI (1960) SCNLR 264.
This Court in ADEDEJI V. NATIONAL BANK of NIGERIA LTD (1989) 1 NWLR (PT 96) 212 per Akpata, JCA (as he then was) held that: “it is morally despicable for a person who has benefited from an agreement to turn round and say that the agreement is null and void ab initio.” As Wiggery, L.J said in BUSWELL V. GODWIN (1971)1 ALL E.R 418 at 421 “the proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the Court would wish to endorse. The effect is usually that the liberal meaning is departed from where it would result in wrongful self benefit.” See also- SANLES M. BATA LHA V. WEST AFRICAN CONTRUCTION Co. LTD (2001) 18 NWLR (PT 744) 95; UMARU V. TUNGA (2012) ALL FWLR (PT 607) 726. Furthermore, the general principle of the law that an illegal contract will not be upheld and enforced by the Court is founded on the public policy embodied in the maxim, in pari delicto, potior est conditio defendentis and ex-trupi causa non orituractio, that is, a party who is himself guilty of an action, does not have a right to enforce performance of an agreement founded on a consideration that is contrary to public interest or policy. Hence “it is already trite that no Court will be friendly with or countenance illegality” per Eso JSC in CHIEF HAROLD SODIPO V. LEMMINIKAINEN OY & ANOR (1986) 1 NWLR (PT 15) 220 at 233 or (1986) 1 NSCC 79. per. FATIMA OMORO AKINBAMI, J.C.A.

CONTRACT; ILLEGAL CONTRACT; WHETHER THE COURT WILL ENFORCE AN ILLEGAL CONTRACT

In the case of CHIEF CHRIS NWANKWO V. CHIEF ARTHUR NZERIBE (2004) 13 NWLR (PT.890) 422, His Lordship, Akintan JCA (as he was) at 434 of the report restated the law, beyond argument inter alia:
“The position of the law is that a loan transaction which shows that an offence has been committed against Section 114(1) of the Money Lender’s Law by charging unauthorized interest is an illegal contract and one which the Courts will not enforce.” See – FASHINA V. ODEDINA (1957) 11 ER NLR 45. per. FATIMA OMORO AKINBAMI, J.C.A.

COURT: DUTY OF A JUDGE; THE DUTY OF A JUDGE CALLED UPON TO ADJUDICATE ON A MATTER BETWEEN CONTENDING PARTIES TO ALWAYS STRIVE TO MAINTAIN BALANCE

It is pertinent to re-echo the admonition by the Apex Court in ODUTOLA V. MABOGUNJE (2013) 1 SCNJ 175 at 214 per Alagoa JSC that:
“The primary duty of a Judge called upon to adjudicate on a matter between contending parties is to always strive to maintain balance. Like the referee on a football pitch, he should be ready to share and apportion blame and show the red and green cards firmly and equally as the need arises. He goes into the field without any clear favorites in mind so that at the end of the game he can say with a clear conscience, I did what I was called upon to do without fear or favour. I am convinced that I did my best.” That indeed in a nutshell is the whole essence in the art or science of judging.” per. FATIMA OMORO AKINBAMI, J.C.A.

COURT: DUTY OF A COURT; WHAT THE EVALUATION OF EVIDENCE INVOLVES AND WHAT HE SHOULD GIVE REGARD TO IN DECIDING THE BALANCE OF PROBABILITY IN CIVIL CASES

As rightly submitted by learned counsel for the Appellant, the evaluation of evidence involves the consideration of each set of evidence given by the parties, the determination of the credibility of the respective witnesses and the ascription of probative value on the evidence evaluated. This fundamental principle has long been laid down by the Supreme Court in the case of MOGAJI V. ODOFIN (1978) 3-4 SC PAGE 65 at 67 wherein Fatayi-Williams JSC reading the lead judgment said:
“In short, before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the Plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following:-
(a) whether the evidence is admissible;
(b) whether it is relevant;
(c) whether it is credible;
(d) whether it is conclusive and
(e) whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial judge will then come to his final conclusion based on the evidence which he has accepted.”
In stressing the point further, I seek to emphasize that the very direction in which the pendulum tilts is the course of justice. Therefore, the onus is on the judge, as an adjudicator and umpire to act objectively in the process of arriving at a just evaluation of the evidence for purpose of achieving the ultimate end result. The determinant factor as to which evidence a Court accepts or rejects is not dependant on the quantum or quantity of witnesses called but rather by the quality or probative value of the evidence by the witnesses. See the case of SHA (JNR) V. KWAN (2000) 8 NWLR (PT 670) 685 at 705. per. FATIMA OMORO AKINBAMI, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF THE TRIAL COURT THAT TIS NOT PERVERSE

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

ABEL OGUNTUWASE Appellant(s)

AND

HON. TOPE JEGEDE Respondent(s)

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ekiti State High Court, Ise-Ekiti Division, delivered by Hon. Justice L.O. Ogundana on the 20th of January, 2014, in favour of the Respondent then the Claimant. The Defendant, now Appellant, being dissatisfied with the judgment of the High Court, Ise-Ekiti appealed against the said judgment to this Court.

The Claimant/Respondent approached the Lower Court, filed his Writ of Summons and Statement of Claim, on the 21st day of May, 2013. He sought the reliefs as contained in page 6 of the record of proceedings as follows:-
(a) The Claimant claims the sum of Seven Hundred and Fifty Thousand Naira (N750,000.00) being the remaining balance of the money which the Defendant owes the Claimant, after the Claimant has furnished a consideration of the forest reserve located at Ise-Ekiti for a total sum of One Million Naira (N1,000,000.00) which the Defendant refused/neglected to pay the remaining balance, despite several demands for same by the Claimant.
(b) The Claimant claims the sum of Ten Million Naira (N10,000,000.00) as damages from the Defendant as a result of unreasonable withholding of the said Seven Hundred and Fifty Thousand Naira (N750,000.00) being a calculated attempt to deny the Claimant the said sum and as a result of which the Claimant suffered financially, psychologically, mentally and emotionally.

In the Statement of Defence dated 23rd day of July, 2013 and filed on the same day, the Defendant/Appellant denied the Plaintiff’s claim. He insisted that, he had paid the balance sum of Seven Hundred and Fifty Thousand Naira (N750,000.00), upon the completion of his assignment, pursuant to the agreement. That the Claimant/Respondent is only denying the payment of Seven Hundred and Fifty Thousand Naira (N750,000.00), because the payment was not evidenced in writing. After the completion of exchange of pleadings, the suit was set down for hearing.

At the trial, in his evidence, the Claimant/Respondent called two witnesses including himself and tendered Exhibits ‘A-F’. The Respondent/Claimant in his evidence claimed for the unpaid contract sum of Seven Hundred and Fifty Thousand Naira (N750,000.00), being the total balance remaining unpaid by the Defendant/Appellant, on the contract entered into by the parties on the concession of the Forestry Reserve located at Ise-Ekiti, and equally claims for general damages of Ten Million Naira (N10,000,000.00) as well. The Defendant/Appellant in this case, gave evidence that he entered into an agreement with the Claimant/Respondent, and that he paid the sum of Two Hundred and Fifty Thousand Naira (N250,000.00), to the Claimant/Respondent through a cheque. All through the Defendant/Appellant’s evidence, he did not convince the Court by way of oral evidence, corroborated or documentary evidence, that he had actually paid the remaining balance of Seven Hundred and Fifty Thousand Naira (N750,000.00), to the Claimant/Respondent.

The learned trial Judge from the evidence led, granted reliefs sought by the Claimant/Respondent.

The Defendant/Appellant consequently, vide a Notice of Appeal, which was amended by order of Court on the 10th day of November, 2014 predicted on six grounds filed in this appeal. The said grounds of appeal, without their particulars are:-
(1) The Honourable Trial Judge erred in law and, misdirected himself on the facts thereby came to a wrong decision when he held as follows:
“I am unable to agree with or belief the Defendant that he had paid the Claimant the Seven Hundred and Fifty Thousand Naira (N750,000.00) outstanding of the contract sum” the Court did not consider the issue joined by parties and instead suo motu raised issue bothering on the nature of transaction between the parties and rest its judgment on it; And thereby reached a perverse decision occasioning a miscarriage of justice.
(2) The Honourable Trial Judge erred in law and misdirected himself on the facts thereby came to a wrong decision when he held as follows:-
“I am unable to agree with or belief the Defendant that he had paid the Claimant the sum of Seven Hundred and Fifty Thousand Naira (N750,000.00) outstanding of the contract sum.”
(3) The Honourable Trial Judge erred in law and misdirected himself on the facts thereby came to a wrong decision, which occasioned miscarriage of justice when he held that the Defendant has woefully failed to discharge the onus of proof thrust on him by law as the party asserting the positive in law.
(4) The Honourable Trial Judge erred in law and misdirected himself on the facts thereby came to a wrong decision which occasioned miscarriage of justice when he held that:
“On the basis of the reasons stated by me, in the foregoing, the Defendant cannot in law validly rely on the defence of illegality of contract and his reliance thereon herein accordingly fails.”
(5) The Honourable Trial Judge erred in law and misdirected himself on the facts thereby came to a wrong decision when he failed to assess the evidence despite all that was pleaded in the paragraphs of the Statement of Defence that the contract is illegal and void ab initio the testimony that he had paid same to the Claimant.
(6) The judgment of the Court is against the weight of evidence placed before the court.

In arguing the appeal before this Court, the Defendant/Appellant presented a brief of arguments dated 2nd day of February, 2015, filed same day, but deemed properly filed on the 26th February, 2015, settled by A.J. Oguntuase, Esq. The Claimant/Respondent’s brief of arguments in response settled by Busuyi Bankole Esq, was filed on the 5th of March, 2015. The Appellant filed a Reply Brief of Arguments, to the Respondent’s Brief, dated 25th of March, 2015 and filed same day. At the hearing of the appeal, Counsel to the parties relied on, and adopted their respective briefs of arguments.

Learned counsel for the Appellant formulated a lone issue for determination in the Appellant’s Brief of Argument as follows:-
“Whether having regards to the overwhelming evidence on record and circumstance of the instant case, the learned judge of the trial Court did not err in law and on facts, wrongly assess the pleadings, erroneously evaluated the evidence, despite the evidence adduced in support and reached a perverse judgment when upon finding rightly that the claim(s) and evidence of the Respondent are not justifiable but worthless, unlawful, untrue, false, unfounded, illegal, unenforceable, null and void ab initio.” (Distilled from Grounds 1,2,3,4,5 and 6 of the Notice of Appeal.)

Learned counsel to the Respondent was also of the view that only one issue, would determine the issues in this appeal:-
“Whether, from the evidence led, the Honourable trial Court was right to have granted reliefs sought by the Claimant/Respondent?”

It is the view of this Court that, from the records of appeal and the other processes filed in this appeal, the Appellant’s issue though inelegantly couched, encapsulates Respondent’s issue, I will therefore determine this appeal based on the Appellant’s issue.

At the hearing of this appeal, counsel to the Appellant referred this Court to the relevant part of the pleadings of the Appellant and Respondent, the relevant witnesses called and evidence elicited therefrom which are contradictory/tainted, the findings of the learned trial Judge. Learned counsel contented that the Trial Court has failed to appreciate the Appellant’s case, and he urged this Court to so hold. It is the view of learned counsel, that the Appellate Court cannot interfere in a trial Court’s findings of facts, and evaluation of evidence which are so clear and fair, but may interfere where the findings are perverse, wrong and not supported by evidence. Learned counsel contended that in this instant appeal, the findings of the Trial Court in favour of the Respondent were not amply supported by the evidence led by the parties.

And that in this appeal, the learned trial Judge in his judgment evaluated the evidence of the Appellant, Respondent and the Respondent’s witnesses. Both on credibility and cogency, the contradictions nevertheless entered/delivered judgment in favour of the Respondent against the Appellant.

The learned counsel reiterated the law that it is the duty of the Trial Court to receive evidence and weigh evidence so received. That the trial Court failed at this task. He cited in aid, the Supreme Court case of WACHUKU V. ONWUNWANE (2011) 14 NWLR (PT 1266) 1 SC 39 PARA A-C per Rhodes-Vivour JSC.

He then contended that the trial Court had resolved against the Appellant, the question of illegality and credibility of the witnesses. That the Court of Appeal is entitled to be satisfied on the following considerations in determining whether the tribunal made improper evaluation of evidence and came to incorrect findings as the Appellant contend:-
(a) The evidence before the trial Court.
(b) Whether it accepted or rejected any evidence upon correct perception.
(c) Whether it correctly approached the assessment of the value on it.
(d) Whether it used the imaginary scale of justice to weigh the evidence on either side or….
(e) Whether it appreciated, upon the preponderance of evidence, which side the scale weighed having regard to the burden of proof. See MOMOH V. UMORU (2011) 15 NWLR (PT 1270) 217 SC 274 PARA D-G.

Learned counsel further contended, that this Court will find that the trial Court lacked jurisdiction to entertain the suit on the ground that the Respondent’s claims were/are not justifiable but worthless, unlawful, untrue, false, unfounded, illegal, unenforceable, null and void ab initio. His position is that the decision of the Trial Court was perverse, reason being that the approach certainly occasioned a miscarriage of justice. He therefore urged this Court to so hold.

The learned counsel contended that the evidence of PW1 (Hon. Tope Jegede) and PW2 (Tunde Olaiya) were full of contradictions, the gamut of (documentary) Statements made at Police Station, ones made at the Magistrate Court, Ise-Ekiti, their witness Statements on Oath deposed to at the trial Court, Ise-Ekiti, and the evidence given and led at the trial Court are full of contradictions. He relied in aid, on the case of ACTION CONGRESS V. O.S.I.E.C. (2009) 12 NWLR (PT 1155) at 223-249 PARA C.

Relying on the above case, learned counsel surmised that the trial Court failed to properly evaluate the evidence before it, which have patent defects before arriving at the decision, and this has occasioned a miscarriage of justice. He submitted that the trial Court was wrong, to have entered judgment in favour of the Respondent, he urged the Court to so hold.

The learned counsel, referred this Court to the case of O.S.I.E.C. V. A.C (2010) 19 NWLR (PT 1226) PAGE 273 at 320, in urging this Court to resolve the issue for determination in favour of the Appellant, and consequently uphold the appeal. He further relied on the case of Hon. AMINU GARO V. SENATOR GWARZO (2008) 1 LRECN PAGE 239 at 292 PARA A-C.

On what a perverse judgment is, learned counsel relied on the cases of MOSES OKUHUAROBO & ORS V. CHIEF EGHAREVBA AIGBE (2002) 9 NWLR (PT 771) 29 at 85 PARA D-F; MOMOH V. UMORU (2011) 15 NWLR (PT 1270) 217 S.C 274 PARA D-G; OKULATE & ORS V. AWOSANYA & ORS (2000) 2 NWLR (PT 646) 530 at 546 PARA C-G.

It was the contention of learned counsel, that flowing from Momoh’s case (supra) the evaluation of evidence by the Trial Court, was a wrong evaluation leading to a perverse judgment. He noted that the Court in the case of OKULATE & ORS V. AWOSANYA & ORS (supra) highlighted the attributes of a standard judgment as follows:-
(a) Are the parties to the case appropriately stated?
(b) Is the nature of the claim and cause of action known and considered?
(c) Have the issues in controversy been appreciated and dealt with?
(d) Has the evidence been properly received and every relevant aspect thereof evaluated and given its probative value?
(e) Have findings supported by the evidence been made and conclusions in fact and in law drawn…..
(f) Has the accepted and treated evidence on both sides (if a civil case) been put on either side of the imaginary scale to see to which side it tilts favourably?
(g) Has verdict or decision been reached, judgment given and consequential orders, where necessary made?

The learned counsel submitted that the condition underlined in (d) and (f) above have not been met by the judgment of the tribunal. He consequently urged this Court to invoke Section 15 of the Court of Appeal Act. See – ABUBAKAR V. YARADUA (2009) ALL FWLR (PT 452) 1 at 156 PARA F-G. Based on the analysis in the above case, learned counsel urged this Court to reverse the findings of the Trial Court, and uphold the evidence of the Defendant/Appellant, and resolve this issue in favour of the Defendant/Appellant and grant the reliefs sought in this appeal.

The learned counsel contended that, inspite of all the obvious state of the evidence of the witnesses, the Trial Court went ahead to deliver judgment against the Appellant, and they are unable to come to terms with the basis of this findings of the Trial Court. He does not understand how the Trial Court, got to its conclusion, which he thinks is perverse. He contended that the position of the law is abundantly clear, that Court or Tribunals have a burden and abiding judicial duty to confine themselves only to the issues raised before it. See – SANNI V. ADEMILUYI (2003) 3 NWLR (PT 807) 318 at 395-396 PARA H.

The learned counsel argued that it follows that a Court or Tribunal, should not embark on a voyage of discovery or start searching for evidence to support the case of one of the parties before it. In that the law is clear that a Court or Tribunal in an adjudicatory process should not make a case for any of the parties. See- ADETOUN OLODEJI (NIG) LTD V. N.B PLC (2007) 5a NWLR (PT 1027) 415 at 441; PASCUTTO V. ADECENTRO (NIG) LTD (1997) 11 NWLR (PT 529) 467 at 481.

The learned counsel, referring to the above case, urged this Court that the decision or finding of the learned trial Judge be set aside, and resolve the Appellant’s lone issue in the affirmative. Summarizing his arguments, learned counsel noted that having put before this Court cogent facts and sufficient evidence, that the Trial Court ought to have considered the issue(s) raised by the Appellant and by not doing so occasioned a miscarriage of justice. Also that the issues raised by the Appellant, are recondite issues and this Court ought to allow the appeal, set aside the judgment of the Trial Court and uphold the Appeal of the Appellant, or in the alternative, order for a retrial at the Trial Court by way of pleadings.

The learned counsel further urged this Court to allow this instant appeal, having regard to the answer canvassed by the Appellant, in respect of the lone issue formulated for determination in his Brief, and resolve the lone issue in favour of the Appellant and grant the reliefs sought there for the following reasons:-
(a) The appellant has led sufficient evidence in proof and defence of his/the case and that the claim(s) of the Respondent were/are, not justifiable but worthless, unlawful, untrue, false, unfounded, illegal, unenforceable, null and void ab initio.
(b) Ipso-facto, the various statements made by/of the Respondent, PW1 (Hon. Tope Jegede) and his witness PW2 (Tunde Olaiya) were full of contradictions, the statements they made at Police Station, ones made, led at the Magistrate Court, Ise-Ekiti, the witness statement on oath deposed to at the High Court Ise-Ekiti, and the evidence given and led at the Trial Court are full of contradictions.
(c) Appellant has also made a case in support of the fact that the evidence of the Respondent and that of his witness are full of contradictions. The said evidence also supports the pleadings, same is also supported by pleadings.
(d) Appellant has shown that the learned trial judge did not properly evaluate the evidence before it and as such arrived at a wrong decision which, by the provisions of Section 16 of the Court of Appeal Act can evaluate and access.
(e) The trial Court was largely perverse in its decision, owing to wrong evaluation of evidence led.
(f) The trail Court also misdirected itself.

In the light of the above, the Appellant prayed as follows:-
(a) An order allowing this appeal.
(b) An order setting aside the whole judgment of the Trial Court delivered on the 20th of January, 2014 or in the alternative order a retrial at the trail Court by way of pleadings.

In response, counsel to the Respondent prefaced his arguments that the claim of the Respondent before the Lower Court is premised on a contract for the sale of compact Block No: 00169 to the Appellant for the sum of One Million Naira (N1,000,000.00).

On what constitutes a contract, he referred to the cases of ORIENT BANK NIG PLC V. BILANTE INTERNATIONAL LTD (1997) 8 NWLR (PT 515) 37 ratio 2 at 76 PARA C-E and OKUBULE V. OYAGBOLA (1990) 4 NWLR (PT 147) 723, that a contract is an agreement between two or more parties which creates reciprocal legal obligating or obligation to do or not to do a particular thing. For a valid contract to be formed, there must be mutuality of purpose and intention. The two or more minds must meet at the same point, event or incident. They must be saying the same thing at the same time. They must not be saying different things at different times.

In his case at the Lower Court, the Claimant/Respondent who was PW1, gave evidence that he sold the block 00169 to the Appellant for the sum of One Million Naira (N1,000,000.00), however the Appellant was able to make a part payment of Two Hundred and Fifty Thousand Naira (N250,000.00), remaining the balance sum of Seven Hundred and Fifty Thousand Naira (N750,000.00) unpaid. In support of the evidence of the PW1, Exhibit ‘C’ was tendered which was the agreement of the parties to the transaction, and the evidence of payment of Two Hundred and Fifty Thousand Naira (N250,000.00) boldly written at the foot of Exhibit ‘C’.

The Claimant/Respondent called PW2, who witnessed the agreement between the parties and who was present when the part payment of the sum of Two Hundred and Fifty Thousand Naira (N250,000.00) was paid by the Defendant/Appellant to the Claimant/Respondent, vide a cheque issued under the hand of the Appellant, the payment which was endorsed in writing at the foot of the Agreement between the parties, the agreement which is Exhibit ‘C’.

The learned counsel noted that the Claimant/Respondent placed before the Court a cogent and unequivocal evidence that he only received the part payment of Two Hundred and Fifty Thousand Naira (N250,000.00). This was corroborated by the evidence of PW2, and by Exhibit ‘C’. That it is for the Defendant/Appellant to rebut this, and call evidence to support his assertion that the balance of Seven Hundred and Fifty Thousand Naira (N750,000.00) was paid to the respondent. See the cases of FELIX O. OSAWARU V. SIMEON EZEIRUKA (1979) 6-7 SC 135 at 145; ADEGOKE V. ADEBISI (1992) 5 NWLR (PT 242) 410 at 423.

The learned counsel stated that it is trite law that the burden of proof lies on whoever asserts the positive but not the negative. Where issues are joined by parties, the burden of proof lies on the party alleging the existence of the fact in the positive sense, he relied in aid on the cases of IGBEKE V. EMORDI (2010) 11 NWLR (PT 1204) 1 at 49 PARA E-F; REYNOLDS CONSTRUCTION CO. LTD V. OKWEJIMINOR (2001) 15 NWLR (PT 735) and FAYEMI V. ONI (2010) 17 NWLR (PT 1222) 326. See also Section 133 and 134 of the Evidence Act, 2011. The learned counsel argued that, the Appellant has refused or neglected to discharge this burden in this case.

He made reference to Exhibit ‘B’ dated 16th day of August, 2011 written by the Claimant/Respondent to the Defendant/Appellant, which was never denied by the Defendant/Appellant. See Section 123 of the Evidence Act, 2011, which specifically states, that facts admitted needs no further proof. And that the Defendant/Appellant received Exhibit ‘B’, and did not deny the service of same on him, failure to react to such a letter of indebtedness is an admission of the content. See the cases of ZENON PETROLEUM and GAS LTD V. IDRISIYYA NIG LTD (2006) ALL FWLR (PT 312) 2121; CO-OPERATIVE DEVELOPMENT BANK PLC V. EKANEM (2010) ALL FWLR (PT 511) 833 and CHEMICAL & AFRO-ALLIED PLC V. VITAL (2006) ALL FWLR (PT 343) 1502.

Learned counsel contended that, the Claimant/Respondent has placed every fact before the Court and had adduced cogent and reasonable evidence before the Court as the evidence was corroborated by that of PW2, to warrant the grant of the claim before the Court.

On the issue of illegality of contract principles being raised by Appellant, learned counsel noted that the approach of Court to it was set out in the case of MOKAN INVESTMENTS CO. LTD V. ZANEN VERSTOEP & NIG LTD (2006) 38 W.R.N 111,135-136 lines 5-25. He further submitted that, a contract is illegal if the consideration or the promise involves doing something illegal or contrary to public policy, or if the intention of the parties in making the contract is thereby to promote something which is illegal or contrary to public policy. See the case of ALHAJI TAOFIK ALAO V. A.C.B. (1998) 3 NWLR (PT.542) 339 ratio 2 at 355 PARA E-F. A transaction or contract, the making or performance of which, is expressly or impliedly prohibited by statute is illegal and unenforceable. Where a contract made by parties is expressly forbidden by statute, its illegality is undoubted and no Court ought to enforce it, or allow itself to be used for enforcement of alleged obligations arising there under, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the Court as in the instant case, is himself implicated in the illegality. See the case of ALHAJI TAOFIK ALAO V. A.C.B. (supra) ratio 3 at 370. Learned counsel submitted that the issue of illegality of contract raised by the Defendant/Appellant goes to no issue, since the contract between the parties is not against public policy. In TOTAL NIG. PLC V. AJAYI (2004) 3 NWLR (PT 860) 270 ratio 5, it is settled that the aim of the principle of public policy, is to protect public interest. Thus applying the principles, a court would not uphold whatever is injurious to the public welfare, or is against the public good.

The learned counsel expressed shock that the Defendant/Appellant can blow hot and cold with every means of sabotaging the Claimant/Respondent from reaping the fruits of his labour. Reference was made by learned counsel to the evidence before the trial Court, wherein it was apparent that the Defendant/Appellant within a very short time entered into the Block 00169, at the Ekiti State Forestry Reserve at Ise-Ekiti, upon the agreement, fell trees and removed all the trees. He contended that the Defendant/Respondent’s defence of illegality of contract is an afterthought, and an avenue not to pay the remaining balance sum of Seven Hundred and Fifty Thousand Naira (N750,000.00), to the Claimant/Respondent since he has grossly benefited from the contract.

Learned counsel attacked the attitude of the Defendant/Appellant who executed an agreement with the Claimant/Respondent with full knowledge of its contents, who wants to renege from the terms of the contract. He contended that the Defendant/Appellant had full knowledge of the contents of the agreement, and it was belated for him to now go to Court to castigate the genuineness of the agreement. It was argued by learned counsel that the Court of equity, cannot come to the aid of such Appellant. See the cases of DENNIS NWOYE OKAFOR V. ANTHONY IGWITO & 2 ORS (1997) 11 NWLR (PT 527) 36 and PALMER of NIG. LTD V. FONSECA (1946) 18 NLR 49.

In his further submissions, learned counsel elucidated the point that before a claim can be said to be ex-facie tainted with illegality, it must be clearly apparent and unequivocal from the claim, that what the court is called upon to entertain is illegal and in breach of specific statute or law. See the cases of UKUTA V. ALLIANCE INTERNATIONAL NIGERIA LIMITED (1992) 8 NWLR (PT.259) 374; SODIPO V. LEMMIN KAINEN OY (1986) 1 NWLR (PT 15) 220; WEST CONSTRUCTION Co. LTD V. BATALHA (2006) ALL FWLR (PT 315) 1 at 16 PARA B PAGE 16 PARA D.

Referring to this particular case, learned counsel pointed out that the contract is neither ex-facie illegal, nor offends public policy, hence the Court is enjoined to enforce same. See the cases of WEST CONSTRUCTION Co. LTD V. BATALHA LTD (supra); UBN V. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (PT 421) 551; OGWURU V. CO-OPERATIVE BANK of E.N. LTD (1994) 8 NWLR (PT 365) 685; SODIPO V. LEMMIN KAINEN OY (supra) and EKUNIFE V. WAYNE (W.A.) LTD (1989) 5 NWLR (PT 122) 422.

Learned counsel contended that it is apparent that, where illegality does not appear on the face of the contract, the Court is not entitled to speculate upon its incidence, let alone expressly pronounce upon it. See the cases of NASR V. BERINI (BEIRUT-RIYAD) (NIG) BANK LTD (1968) 1 ALL NLR 274 and GEORGE V. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71.

It was reiterated by learned counsel, that illegality as propounded by the Defendant/Appellant is a special defence which must be pleaded specifically and fully particularized. He noted that the Defendant/Appellant all through his pleadings, did not particularize the alleged fraud in the contract, wherein he claimed to have paid the consideration in respect thereof, thereby contravening the provisions of Order 15, Rule 3 of the High Court of Ekiti (Civil Procedure) Rules, 2011. He further referred to Order 15, Rule 3 of the High Court of Ekiti State (Civil Procedure) Rules, 2011, wherein it is a mandatory provision, that illegality as a special defence must be stated and particularized in Defendant’s pleadings. And also that Order 15 Rules 7(1) and (2) of the High Court of Ekiti State (Civil Procedure) Rules, 2011, affirmed the fact that it is the duty of the Defendant/Appellant to specifically plead such illegality, as a special defence to the claim. And that failure of the Defendant/Appellant to state the particulars of the illegality and to specifically plead same is fatal to the case of the Defendant/Appellant. He therefore urged this Court to so hold. See the cases of WEST CONSTRUCTION Co. LTD V. BATALHA (supra) PAGE 16 PARA E-H PAGE 17, PARA A-B; AWOJUGBAGBE LIGHT INDUSTRIES LTD V. CHINUKWE (1995) 4 NWLR (PT 390) 379.

It was reiterated by learned counsel, that the Defendant/Appellant only mentioned the illegality in his statement of defence without stating the particulars or what makes it illegal.

Learned counsel noted that the law is that where a party intends to rely on a statutory defence, he is obliged to plead same or else he will be disentitled to place reliance on same. See the cases of OYEWUMI V. OSUNBADE (2001) FWLR (PT 82) 1999 at 1967 PARA D; NWAKANMA V. THE MILITARY ADMINISTRATOR of ABIA STATE (1995) 4 NWLR (PT 388) 185.

He contended that the Claimant/Respondent has proved his case. He urged this Court to dismiss the appeal in its entirety and uphold the judgment of the Lower Court.

In the case of HARKA AIR SERVICE (NIG) LTD V. KEAZOR (2011) ALL FWLR (PT.591) 1402, wherein the Supreme Court dwelling on reply brief, per Adekeye JSC stated at page 1416 thus:
“The Appellate Courts had in many decided cases laid emphasis on when a reply brief is necessary and what it should address. A reply brief is filed when an issue of law or argument raised in the Respondent’s brief usually by way of a preliminary objection calls for a reply. Where a reply brief is necessary, it should be limited to answering, any new points arising from the Respondent’s brief. Although the filing of a reply brief by an Appellant is not mandatory, where a Respondent’s brief raises issues or points of law not covered in the Appellant’s brief, an Appellant ought to file a reply as failure to file one without an oral reply to the points raised in the Respondent’s brief may amount to a concession of the points of law or issues raised in the Respondent’s brief. It is not proper to use a reply brief to extend the scope of the Appellant’s brief or raise issues not dealt with in the Respondent’s brief. A reply brief is not meant to have a second bite at the cherry, which is exactly the purpose of the Appellant’s reply brief in this appeal since the Appellant used the reply brief in the two issues raised for determination, it is utterly irrelevant to this appeal. ”
See the case of OGBORU V. IBORI (2005) 13 NWLR (PT 942) PAGE 380 where the Supreme Court held: “That the function of reply brief and indeed oral reply, is for both to be used in addressing such new issues, particularly on points of law that the Appellant did not envisage and treat in the Appellant’s brief or initial argument in the oral prosecution of the appeal.” In the case of CAMEROON AIRLINES V. MIKE OTUTUIZU (2011) LPELR-827 (SC), the Supreme Court held that a nature of a reply should be limited to answering only new points arising from Respondent’s brief and therefore should not be used to proffer further arguments to those already made and contained in the Appellant’s brief”. In this appeal, the Appellant did not comply with the Supreme Court decisions that essence of a reply brief is to be limited to new points which are raised in the Respondent’s brief. In his Reply Brief, Defendant/Appellant did not comply with the above Supreme Court decisions. The reply brief of the Appellant herein clearly seeks to reargue the appeal. Consequently, the effect of non compliance with the Supreme Court decisions is that this Court will discountenance the Appellant’s Reply Brief. See also cases of ONUAGULUCHI V. NDU (2000) 11 NWLR (PT.590) 204 and ACB LTD V. APUGE (1995) 6 NWLR (PT 399) 65.

Issue for determination of this appeal:
“Whether having regards to the overwhelming evidence on record and circumstance of the instant case, the learned judge of the trial Court did not err in law and on facts, wrongly assess the pleadings, erroneously evaluated the evidence, despite the evidence adduced in support and reached a perverse judgment when upon finding rightly that the claim(s) and evidence of the Respondent are not justifiable but worthless, unlawful, untrue, false, unfounded, illegal, unenforceable, null and void ab initio.” (Distilled from Grounds 1,2,3,4,5 and 6 of the Notice of Appeal.)

Let me commence my consideration of this issue by stating that the facts of this case are not in dispute. That the Respondent sold the Forest Reserve Concession Block No 00169 to the Appellant for the sum of One Million Naira (N1,000,000.00). The Appellant made a part payment of Two Hundred and Fifty Thousand Naira (N250,000.00), remaining the balance sum of Seven Hundred and Fifty Thousand Naira (N750,000.00) unpaid. Exhibit ‘C’ was the agreement of the parties to the transaction and evidence of payment of Two Hundred and Fifty Thousand Naira (N250,000.00) written at the foot of Exhibit ‘C’.

The Respondent was paid Two Hundred and Fifty Thousand Naira (N250,000.00) out of the One Million Naira (N1,000,000.00) contract sale price. The action of the Respondent was for the recovery of his outstanding sale price of Seven Hundred and Fifty Thousand Naira (N750,000.00).

The Appellant did not deny that he bought the Respondent’s Forest Reserve concession. But his defence is that the contract of sale was illegal, though he paid the balance of Seven Hundred and Fifty Thousand Naira (N750,000.00). That the contract contravene the Ekiti State laws and as such the Court should not entertain the claim.

The Plaintiff’s claim in the instant case, as already set out above, is briefly for the recovery of his outstanding balance of Seven Hundred and Fifty Thousand Naira (N750,000.00) due to him from the Appellant from the contract of sale of his forestry concession. There is definitely nothing apparent or evidently from the face of the claim to show or from which any act of illegality could be inferred. The claim is therefore ex-facie legal and enforceable.

The law is also settled that whoever intends to claim illegality as defence must not only plead the illegality, he is also required to set out the particulars of the illegality in his pleadings. This requirement is mandatory in all cases where the contract is not ex-facie illegal and the question of illegality depends on the circumstances of the case. As a general rule therefore, the Court will not entertain the defence, unless it is raised in the pleadings, unless where illegality is apparent on the face of the claim; See- NASSAR V. MOSES (1960) L.L.R. 170; GEORGE V. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71, (1963) 1 SC NLR 117 and OGWURU V. CO-OPERATIVE BANK of E.N. LTD (supra).

Applying the law as declared above to the instant case, I have no doubt in holding that the Plaintiff’s claim is a simple claim for outstanding balance of Seven Hundred and Fifty Thousand Naira (N750,000.00) on a contract of sale of concession. The claim was therefore ex-facie not illegal. It follows that the onus was on the Appellant, who wanted to rely on illegality as a defence, to duly plead that defence and set out the particulars of the illegality.

In his attempt to comply with the above legal requirement, the Appellant per his paragraphs 3 and 4 of the Statement of Defence and paragraphs 4 and 13 of the Defendant’s Statement on Oath, issues were joined and evidence led on the legality of the contract evidenced in Exhibit ‘C’ and submitted that the law applicable to Ekiti State at the relevant time is the Laws of Ondo State, 2006. Appellant cited and replicated Section 20(1)(2) and (3) of the Forestry Law, Cap 56. Laws of Ondo State, 2006, (then applicable in Ekiti State) and posited that it is clear by the provisions of the law that the Claimant can lawfully operate the concession granted him, but he cannot lawfully sell, mortgage or transfer such right without the written consent of the Governor being first had and obtained. Appellant submitted that a transaction or contract, the making or performance of which is expressly or impliedly prohibited by statute is illegal and unenforceable.

The two paragraphs 3 and 4 from Appellant’s Statement of Defence have been reproduced earlier above. The defence put up in paragraphs 3 and 4 is to the effect that the contract Exhibit ‘C’ was null and void in that, the Respondent was not given any concession by the Ministry of Agriculture Ekiti State to operate at Block No 00169 or to transfer, sub-let or sell the same.

The details of the Ondo State Forestry Law was not given by Appellant, and no evidence was led at the trial in support of that pleading. The presumption, therefore is that the Appellant abandoned that pleading. See – AWOJUGBAGBE LIGHT INDUSTRIES LTD V. CHINUKWE (1995) 4 NWLR (PT 390) 319; OJIKITU V. FELLA (1954) 14 WACA 628; OLAREWAJU V. BAMIGBOYE (1987) 3 NWLR (PT 60) 353. The Appelllant failed to lead evidence that the agreement Exhibit ‘C’ is illegal, null and void ab initio.

As has been clearly shown that the Appellant failed to plead the illegality of the contract on the ground that a breach of the provison of Section 20(1)(2) and (3) of the Forestry Law Cap 56, Laws of Ondo State, 2006. It follows that the question of considering any effect that such a breach would have on the contract does not arise.

The Defendant in the following paragraphs of the Statement of Defence stated:
“(3) The Defendant denies the averment in paragraphs 4 and 5 of the claim and states that the Claimant was not given any concession by the Ministry of Agriculture, Ekiti State to operate at Block No 00169, or to transfer, sub-lease or sell the same. The Claimant is hereby put to the strictest proof of same.
(4) In response to paragraphs 6 to 26 of the claim, the Defendant avers that the Claimant cannot legally and lawfully sell and or transfer such alleged right. That though the Defendant ignorantly entered into the agreement, but the agreement is illegal, null and void ab initio.
(5) In furtherance of the said agreement, the Defendant paid Two Hundred and Fifty Thousand Naira (N250,000.00)upon the execution of the agreement, and paid the balance of Seven Hundred and Fifty Thousand Naira (N750,000.00) upon completion of his assignment pursuant to the agreement. The Claimant is only denying the payment of Seven Hundred and Fifty Thousand Naira (N750,000.00) because the payment was not evidenced in writing.
(6) The Defendant avers that he is a well-to-do-businessman and an old man of over 70 years that should he because of paltry sum of Seven Hundred and Fifty Thousand Naira (N750,000.00). The Defendant says that the Claimant only wants to embarrass him by this suit.
(7) The Defendant further avers that upon completion of the transaction between the parties, the Claimant approached the Defendant for the sum of Fifty Thousand Naira (N50,000.00) to take care of his ailing brother, which the Defendant gave subsequently and unknown to the Claimant that the Defendant was aware that the ailing brother of the Claimant had died, the Claimant further requested for additional Fifty Thousand Naira (N50,000.00) on the same excuse. The Defendant refused and confronted the Claimant of the death of the said brother.
(8) The Defendant says that the Claimant who was surprised about the Defendant knowledge of the death of his brother, devised a means to prevent the Defendant from disclosing the fact that the Claimant wanted to extort him on the guise of his brother’s sickness. The Claimant started requesting for Seven Hundred and Fifty Thousand Naira (N750,000.00) from the Defendant and reported the Defendant to his friends and police. The Defendant repeatedly said that the contract sum of One Million Naira (N1,000,000.00) had been paid to the Claimant, the Claimant is only denying the payment of the balance of Seven Hundred and Fifty Thousand Naira (N750,000.00) because it was not evidenced in writing.
(10) The Defendant avers that he had transacted with the Claimant many times in the past and made series of payments to the Claimant without written evidence.
(11) The Defendant says that though he discharged his duty under the contract, he was ignorant of the fact that the contract was illegal, unlawful, and unenforceable.
(12) The Defendant shall contend before or during the trial that the instant suit is incompetent and that the court lacks jurisdiction to entertain and determine the same.”

The hot contention of the Appellant’s learned counsel, predicted on the above pleadings of the Appellant is largely that the contract between the parties evidenced by Exhibit ‘C’ was founded on a base cause and illegality, therefore it is unenforceable. I shall now turn my attention to a consideration of the doctrine of in pari delicto.

That is the general rule, such that as the agreement between the parties herein was an alleged illegality and the Appellant, being aware that the Respondent could not sell his concession, yet he went ahead and entered the land and felled trees for his sawmill. He too was privy to an illegality for which he cannot turn round and benefit from it. The principle is founded on the law of equity that a person who has benefited from a transaction cannot just turn round and say that the transaction was illegal. Hence the attitude of Courts to parties in pari delicto, is that if “one or two persons who entered into a fraudulent transaction, well knowing what they are doing cannot come to the Court and obtain relief from his wrongdoing to the prejudice of his partner in the wrongdoing”. Such a proposition seems to me to be, apart from anything else, an abuse of the process of the Court and I do not find it possible to assent to it for a moment. Support for this view is to be found in the judgment of Jessel M.R in SYKES V. BEADON (1879) LR11 Ch.D. 170; per Myles J. Abott, Ag CJF in M.A. OKUPE & Co. LTD V. S.LIGALI SARUMI (1960) SCNLR 264.
This Court in ADEDEJI V. NATIONAL BANK of NIGERIA LTD (1989) 1 NWLR (PT 96) 212 per Akpata, JCA (as he then was) held that: “it is morally despicable for a person who has benefited from an agreement to turn round and say that the agreement is null and void ab initio.” As Wiggery, L.J said in BUSWELL V. GODWIN (1971)1 ALL E.R 418 at 421 “the proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the Court would wish to endorse. The effect is usually that the liberal meaning is departed from where it would result in wrongful self benefit.” See also- SANLES M. BATA LHA V. WEST AFRICAN CONTRUCTION Co. LTD (2001) 18 NWLR (PT 744) 95; UMARU V. TUNGA (2012) ALL FWLR (PT 607) 726.

Furthermore, the general principle of the law that an illegal contract will not be upheld and enforced by the Court is founded on the public policy embodied in the maxim, in pari delicto, potior est conditio defendentis and ex-trupi causa non orituractio, that is, a party who is himself guilty of an action, does not have a right to enforce performance of an agreement founded on a consideration that is contrary to public interest or policy. Hence “it is already trite that no Court will be friendly with or countenance illegality” per Eso JSC in CHIEF HAROLD SODIPO V. LEMMINIKAINEN OY & ANOR (1986) 1 NWLR (PT 15) 220 at 233 or (1986) 1 NSCC 79.

However, where a contract or an agreement is not ex-facie illegal and the question of illegality depends on the surrounding circumstances, then as a general rule, the Court will not entertain the question of illegality, unless it is raised in the pleadings of the party that is complaining of illegality and in such circumstances evidence will be led on it, but if evidence is led in support of the unpleaded illegality, such evidence goes to no issue. See – OKAGBUE V. ROMAINE (1982) 5 SC, 133. The Supreme Court, in EKWUNIFE V. WAYNE W.A. LTD (1989) 5 NWLR (pt 122) 456, reiterated the same principle when it said: “where a contract is not ex-facie illegal and the question of illegality depends on a number of facts- probabilities or contingencies to be hammered out by evidence and forensic logic, the general rule is that illegality must be raised in the pleadings.”
And where it is “a Defendant who relies on the defence of illegality, he must state the facts on which he relies in his pleadings.” See – ONWUCHEKA V. NDIC (2002) 5 NWLR (PT 760) 317 at 388 and A.J.C LTD V. NNPC (2005) 1 NWLR (PT 937) 563.

Drawing inspiration from the authorities, ex abundati, on the principle of in pari delicto and applying them to the circumstances of this case, where are the facts upon which the Appellant relies with respect to the allegation of illegality, when Exhibit ‘C’ was executed on 2/10/09? I am unable to see any evidence proffered by the Appellant or any witness with respect to the aforementioned allegations.

However, it is said that you cannot eat your cake and still have it. He took advantage of the concession of the Respondent from the Ministry of Agriculture and felled down trees in Block No 00169, and ex debito naturali he had a moral obligation to satisfy the conditions of the said agreement Exhibit ‘C’. He cannot now approach the Court to intervene in a contract he freely partook of and gained from.

In this instant appeal, the Appellant bought the Respondent’s concession from Ekiti State Government. The Respondent sold same to the Appellant who made part payment of Two Hundred and Fifty Thousand Naira (N250,000.00) with a promise to pay the outstanding balance of Seven Hundred and Fifty Thousand Naira (N750,000.00) in seven days. The request was granted. The contract agreement was evidenced in writing and signed by the parties. After seven days, the Respondent made demand for the outstanding balance of Seven Hundred and Fifty Thousand Naira (N750,000.00), but the Appellant refused to pay. Consequently, the Respondent instituted this action, after trial, judgment was delivered in favour of the Respondent.

Finally, as it was not denied by the Appellant that he entered the forestry land, and felled trees which he disposed off, this was corroborated by the evidence of the Respondent, who insisted that the balance of Seven Hundred and Fifty Thousand Naira (N750,000.00) the outstanding balance on the contract of sale to the Appellant was never paid to him by the Appellant. I think the principle of unjust enrichment should be made applicable in this instant case. Under the principle the Appellant, who freely entered into the contract of sale of forestry concession and benefitted from the sale by felling trees for his timber business under the said agreement, should not be allowed to rely on frivolous excuses and thereby continue to unduly enrich himself from the benefit he received under the sale agreement.

In view of the foregoings, I am satisfied that the allegations of illegality were not proved by the Appellant because he led no evidence to support his allegations, and I am satisfied that, with the uncontradicted pieces of evidence proffered by PW1 and PW2 who witnessed the transaction between the parties, the learned trial Judge saw that those pieces of evidence clearly preponderated on the imaginary scale of justice to the side of the Respondent and not the Appellant.

The Respondent is clearly and manifestly the owner of the forestry concession Block No 00169, which he sold for One Million Naira (N1,000,000.00) to the Appellant. The Appellant paid only Two Hundred and Fifty Thousand Naira (N250,000.00) with a promise to pay the outstanding balance of Seven Hundred and Fifty Thousand Naira (N750,000.00) in 7 days. The Respondent was entitled to the balance sum of Seven Hundred and Fifty Thousand Naira (N750,000.00) from the contract of sale. However since the Appellant, as it appears, has reneged from the contractual agreement as per Exhibit ‘C’ which is tantamount to a repudiation of the said contract, the Respondent is at the very least entitled to the recovery of the outstanding balance of Seven Hundred and Fifty Thousand Naira (N750,000.00).

The onus was on the Appellant to show that he paid the outstanding balance of Seven Hundred and Fifty Thousand Naira (N750,000.00) on the contract sale of One Million Naira (N1,000,000.00). This burden could only be discharged by leading evidence at the trial to the effect that he paid the Seven Hundred and Fifty Thousand Naira (N750,000.00), the mode of payment, the witness present during payment, acknowledgment of the payment by the Respondent. In other words, that he Appellant had performed his obligation under the contract. Having failed to establish that at the trial, as it was not denied by the Appellant that he entered the concessioned land sold to him to fell trees.

The Appellant is bound by the agreement, and must pay the outstanding sum of Seven Hundred and Fifty Thousand Naira (N750,000.00) to the Respondent.

Contrary to the submission made out on behalf of the Appellant, in the case under consideration, the record before us reveal, that the trial Court construed the pleadings by the parties and properly evaluated and assessed the totality of their evidence, before arriving at the correct decision as it did which I affirmatively endorse.

In the instant case, the record of appeal shows that the learned trial judge extensively reviewed and assessed the evidence of the witnesses and gave value to the evidence before making the findings thereon and based on this evaluation, came to the conclusion in the judgment. Having effectively evaluated the evidence, I do not find any basis for a re-evaluation of the same evidence.

As a consequence, the conclusion has affirmatively answered the Appellant. I have gone into the pleadings and evidence of the parties which demonstrate beyond any equivocation that the parties are agreed on the fact of the sale of concession to the Appellant.

It is therefore not correct as argued by the Appellant that the finding was at large or not based on the issues raised by the parties. I am of the strong view from the foregoing pleadings and evidence that the finding is quite profound and resounding having been based on the pleadings and evidence of the parties.

The law is well settled and has often been pronounced time without number that this Court will not ordinarily disturb the concurrent findings of the Lower Court, except it is shown to have occasioned a miscarriage of justice or to have been perversely reached. See – ONYEJEKWE V. THE STATE (1992) 3 NWLR (PT.230) 44; OGUNDULE V. CHIEF OLABODE (1973) 2 SC 71; BALOGUN V. AKANI (1988) 1 NWLR (PT 70) 301; and POSU V. THE STATE (2011) ALL FWLR (PT 505) 234 where it was held by the Supreme Court that:
“The Supreme Court will not interfere with concurrent findings of Lower Courts unless compelling reasons are shown. In the instant case, the concurrent findings of the Lower Courts were not perverse, therefore the Supreme Court will not interfere with it”
A related further authority is the earlier case of TIZA V. BEGHA (2005) 5 SC 1 at 17 wherein Onu, JSC held and said:
“It is now trite law that concurrent findings of the trial Court and the Court of Appeal cannot be set aside by this Court except such finding is not supported by evidence. See – EMEAGWARA V. STAN PPL (2000) 78 LRCAN 1701 at 1720. The trial Court found that the Plaintiff is the owner of the land in dispute and that Orasoho is the natural boundary between the Plaintiff and the Defendants. The Court of Appeal confirmed this finding.”
The Appellant in the case at hand has fallen far short of the expectation by calling upon this Court to upset the judgment of the Lower Court. He has not justified any reason warranting the cause or reason for interference.
In the case of NSIRIM V. NSIRIM (2001) FWLR (PT 96) 433 the learned jurist Iguh JSC, also had the following to say on issue of concurrent findings of Court:
“I think both Courts are perfectly right in the above findings. In the first place, it is trite law that a trial judge having had the opportunity of hearing witnesses and watching their demeanour in the witness box is entitled to select witnesses to believe or facts he finds proved and the Court of Appeal should not interfere with such facts unless they are perverse. So this Court, will not ordinarily interfere with the concurrent findings of the trial Court and the Court of Appeal, on essentially issues of fact where there is sufficient evidence on record to support them and where there is no substantial error apparent on the record of proceedings unless special circumstances are shown such as violation of some principle of law or procedure or where such findings are shown to be perverse or patently erroneous and a miscarriage of justice will result if they are allowed to stand.”

In the same vein and as held out in the foregoing authorities, the findings of the Lower Court are also endorsed by me and cannot be interfered with.

The Appellant’s call that the Lower Court’s judgment be upset cannot be acceded to. Consequently the Appellant’s lone issue raised in this appeal is resolved against him. The appeal is without merit and is hereby dismissed, while the Judgment of the Lower Court is hereby affirmed.

I award the sum of Fifty Thousand Naira (N50,000.00) costs against the Appellant in favour of the Respondent.

ADZIRA GANA MSHELIA, J.C.A.: I have had the opportunity of reading the leading judgment of my learned brother, Akinbanmi, JCA. For the reasons stated therein, I also dismiss the appeal and affirm the judgment of the Lower Court. I also agree with the order as to costs made by my learned brother.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment delivered by my brother F.O. Akinbami J.C.A.; I completely agree with it.

I abide by all the orders made by my learned brother including the orders dismissing the appeal and as to costs.

Appearances

A. J. Oguntuase Esq.For Appellant

AND

Busuyi Bankole Esq with him O. B. Farounbi Esq.For Respondent