CLEMENT NWANKWO v. A. A. OFORKANSI & ORS (2016)

CLEMENT NWANKWO v. A. A. OFORKANSI & ORS

(2016)LCN/8177(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of February, 2016

CA/E/6/2009

RATIO

THE DOCTRINE OF ESTOPPEL: THE DOCTRINE OF ESTOPPEL BY CONDUCT

Section 151 of the Evidence Act, Cap. E14 Laws of the Federation of Nigeria, 2004 which was in operation at the time of the trial of the action at the Court below, provides that:
“When one person has, by his declaration, act or commission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
See also Section 169 of the Evidence Act, 2011. The doctrine of estoppel by conduct also called estoppel in pias, is a common law principle which has gained statutory acceptance in the Nigerian Evidence Act, stated above. The principle simply forbids any person from reneging or resiling on a state of affairs he participated in creating and the other party believed in it and even acted on it. That is, the former cannot be allowed to turn around and make a summersault – a volte de face, and disclaim or disown his earlier action which the other party had believed in and acted upon. Hence, the emphatic phrase used by the Legislature, the law maker of the Evidence Act, Section 151 aforesaid, that: “neither he nor his representative in interest shall be allowed ….” to turn around against the state of affairs created by him in favour of another person. This principle was clearly explained by the Supreme Court in Ude v. Osuji (1998) 10 SCNJ 75 at 122, to wit:
“The principle of estoppel by conduct is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relation between them and to be acted upon accordingly, then once the other party had taken him at his word and acted upon it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance has been made by him. He must accept their legal relation as modified by himself even though it is not supported in point of law by any consideration, but only by his word or conduct. See Combe v. Combe (1951) 1 All ER 669 at 770.
Therefore, by its very nature, the doctrine of estoppel by conduct, is so critical and important and conclusive that the party whom it affects will not be allowed to plead against it or even adduce evidence to contradict it. Yoye v. Olubo de (1974) All NLR 657; Koiki v. Magnusson (2001) FWLR (pt. 63) 167; Ukaegbu v. Ugorji (1991) 6 NWLR (pt. 196) 127.
The contention of the appellant’s learned senior counsel to the effect that the doctrine of estoppel by conduct is not a weapon of offence or a sword in the hand of the 1st Respondent herein, as the plaintiff at the Court below, with due respect, does not find any support on the decided and established authorities of the apex Court. In Fred Egbe v. Hon. Justice Adeforasin (1987) All N.L.R 1, his Lordship, Oputa, J.S.C succinctly stated that:
“It is also to be noted that estoppel is but part of the law of evidence. It is no other than a bar to testimony and its sole office is either to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail: estoppel is thus a mine layer or a mine sweeper. It is never a capital unit.”
The learned jurist furthermore referred to the enunciation of the same principle in Thompson v. Palmer (1933) 49 C.D.R. 507 at p.547 by Sir Owen Dixon, C. G. to the effect that: “The object of estoppel in pias is to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which unless the assumption is adhered to would operate to that person’s detriment.”
Further see: Attorney General of Nasarawa State v. Attorney General of Plateau State (2012) 3 SCNJ 273; Okwudu Nwakonobi & Ors v, Benedict Udeorah & Ors. (2012) 4 SCNJ 32. per. TOM SHAIBU YAKUBU, J.C.A.

APPEAL: WHEN THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

Indeed, the law is well settled to the effect that whenever there is a complaint that the trial Court did not properly evaluate the pieces of evidence placed before it and made findings based on such evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation of the evidence laid before the trial Court and see whether the trial Court made perverse findings as alleged by the appellant. Atolagbe v. Shorun (1985) 1 NWLR (pt. 2) 360; Oghoda v. Adulugba (1971) 1 All NLR 68; Eki v. Giwa (1977) 2 SC 131; Lion Building Ltd v. Shadipe (1976) 12 SC 135; Adedayo v. PDP (2013) All FWLR (pt. 695) 203 at 234, 265 – 266 (SC). per. TOM SHAIBU YAKUBU, J.C.A.

CRIMINAL LAW: THE ALLEGATION OF FRAUD; WHETHER FRAUD MUST BE DISTINCTLY ALLEGED

Now, it is undoubtedly settled on very firm ground on the authorities of the apex Court to the effect that: “The law requires that fraud must be distinctly alleged, with all necessary particulars and distinctly proved.” Per Nnaemeka – Agu, JSC in Ojiba v. Ojiba (1991) 5 NWLR (pt. 191) 296; (1991) 6 SCNJ 156; (1991) LPELR – 2374 (SC) at p. 13. Further see: High-grade Maritime Services Ltd v. First Bank of Nigeria Ltd (1991) 2 SCNJ 110; (1991) LPELR – 1364 (SC) at p. 9; Ezenwa v. Oko & ors. (2008) 1 – 2 SC 1; (2008) LPELR – 1206 (SC) at p.22. per. TOM SHAIBU YAKUBU, J.C.A.

COURT: THE DUTY OF THE TRIAL COURT; THE DUTY OF THE TRIAL JUDGE TO EVALUATE EVIDENCE

I should say that fraud was not even proved on a balance of probability, not to talk of a proof beyond reasonable doubt. I think it is instructive to re-echo the admission of my Lord, Uwaifo, JSC in Adeleke & ors. v. Iyanda & ors. (2001) 13 NWLR (pt. 729) 1 at 20; (2001) LPELR – 114 (sc) at p. 23, para B, to wit:
“A trial judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his wrongly stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported in law.” per. TOM SHAIBU YAKUBU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

CLEMENT NWANKWO Appellant(s)

AND

1. A. A. OFORKANSI
(suing through his Attorney Chief Basil Igwealor)
2. Onitsha North Local Government Respondent(s)

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):?The claim of the 1st Respondent who was the plaintiff at the Anambra State High Court of Justice, holden at Onitsha was with respect to his ownership of the Stall No. V1/14, Mandela Square at the Main Market Onisha. The appellant also laid claim to the same Stall No. V1/14 aforesaid. Hence, the dispute got the attention of the Onitsha North Local Government – the owner of the radical title over the Onitsha Main Market. In his claim, as represented in the Amended Statement of Claim, the 1st Respondent prayed as follows:-
“1. Declaration that the Plaintiff is the rightful allottee of Stall No. V1/14 Mandela Square Main Market Onitsha as shown on the plan containing the Original numbering as confirmed on 30/8/95, 12/10/95 and 18 /10/95 by the 2nd Defendant.
2. A Declaration that Plan as confirmed by the local Government letters of 30/8/95 and 18/10/95 is the only valid Plan upon which the Stall was allotted to the Plaintiff and the 1st Defendant.
3. A Declaration that the Plan as made on 4/12/95 by the 2nd Defendant is ultra vires the 2nd Defendant, null and void

and of no legal effect, in so far as the Plan purports to give Stall No. V1/14A to the 1st Defendant, as Stall No. V1/9A.
4. An Injunction perpetually restraining the 2nd Defendant, its agent and servant, privies etc. from tampering with or doing any other thing contrary to the Plan and allocation as made to the plaintiff on 31/10/94 and confirmed on 30/8/95 and 18/10/95 and 12/10/95.
5. An Injunction perpetually restraining the 1st Defendant, his agent, privies, servants from trespassing or further entering into or occupying the Plaintiffs Stall No. V1/14A Mandela Square Main Market, Onitsha as shown in the Plan confirmed on 30/8/95, 12/10/95 and 18/10/95 by the 2nd Defendant.
6. N100, 000.00 aggravated, exemplary and general damages against the 1st Defendant.
7. N5000.00 special damages for loss of earnings by the Plaintiff for each day of the trespass by the 1st Defendant until same is abated by the 1st Defendant.”

The claim was denied by the appellant herein and also by the Onitsha North Local Government – the 2nd defendant at the trial Court. They each filed their defences to the action and joined issues with the 1st Respondent.

The suit proceeded to hearing, with each side calling witnesses who gave evidence for them. Some documentary exhibits were tendered by both parties and admitted into evidence by the Court. At the end of leading evidence viva voce by the witnesses, counsel to the parties filed and exchanged written addresses. The learned trial judge, in his judgment largely found in favour of the 1st Respondent and dismissed the appellant’s counter – claim. This appeal is sequel to that decision of the trial Court delivered on 2nd October, 2008.

The appellant’s notice of appeal, contained in the Additional/Supplementary Record of Appeal, was dated and filed on 22nd December, 2008. The appeal is anchored on fourteen (14) grounds of appeal. The appellant in pursuit of the prosecution of the appeal, filed an Amended Appellant’s brief of argument, settled by Dr. Onyechi Ikpeazu, SAN, OON, on 7th February 2014.

?In it, seven (07) issues were nominated for the determination of the appeal thus:
“1. Whether the learned trial judge was justified in her conclusion that the identity of A. A. Ofokansi in whose name the suit was instituted was established. Grounds XI and

XII
2. Whether the 2nd Respondent was precluded from conducting an inquiry and resolving the dispute as to the proper allottee and location of the stall in dispute, having regard to the documents previously executed by its officers.
GROUND I
3. Whether the findings of the learned trial judge that the Appellant was adjudged a squatter in Stall No. V1/14A and was the one who wiped out the number and wrote V1/9A and boasted that Mr. Oradiwe would assist him retain the Stall was justified by evidence.
GROUND VI
4. Whether the learned trial judge was wrong in accepting as reliable the evidence of PW2 in holding that Exhibit L was the document which duly established the proper Allottee of the location in dispute.
GROUNDS VIII AND IX
5. Whether the learned trial judge was wrong in holding that Exhibit X evidencing the resolution of the issue of location of the Stalls by 2nd Respondent established the fraud alleged by the 1st Respondent.
GROUND VII
6. Whether the learned trial judge was wrong in her assessment of the case of the defence.
GROUNDS IV, V, X AND XIII
7. Whether the learned trial judge was justified in

awarding the sum of N200,000.00 aggravated, exemplary and general damages.
GROUND XII.”

On his part, the 1st Respondent’s Amended brief of argument settled by O. I. Nnadi, Esq., SAN., was dated 13th February 2015 and filed on 20th February 2015. He also nominated seven (07) issues for the resolution of the appeal.
They are, to wit:
“(1) Whether the trial Judge was right in holding that A. A. Oforkansi who was physically in Court exists and Section 118 of the Evidence Act enured to the benefit of A. A. Oforkansi on account of the evidence of PW2, PW3 and PW4. (Grounds XI and XII).
(2) Whether from correspondences particularly Exhibits A, C, E, F, G, H, I, K, M and N tendered in Court particularly Exhibits A, F, J and N and the evidence of PW2 as well as Exhibit W and W2 tendered by DW1, the trial Court was right in holding that the 2nd?Respondent was bound and estopped from rescuing or allocating the stall No. V1/14A of the Plaintiff/1st Respondent to the Appellant as stall No. VI/9A based on exhibit W3 and made on 13/9/95 and exhibit X of 4/12/95. (Ground I of the Notice of Appeal).
(3) Whether the trial Judge was right in holding

that the Plaintiff/1st Respondent established that stall No. V17 /14A (sic) (VI/14A) was allotted to him and any other occupant thereof is a squatter.
(4) Whether the evidence of PW2 which the trial Judge believed was properly accepted and found as reliable by the trial Judge.
(5) Whether the trial Judge was right in holding that neither the Appellant nor the T (sic) (2nd) Respondent can rely on exhibit X to deprive the 1st Respondent stall No. V1/14A allotted to the 1st Respondent based on exhibit J in 1994.
(6) Whether the trial Judge was right in dismissing the Counter Claim of the Appellant and in giving judgment for the Plaintiff/1st Respondent.
(7) Whether the trial Judge was right in awarding aggravated exemplary and general damages against the defendants.”

?Upon a careful consideration of the issues nominated by each learned senior counsel herein, for the determination of the appeal, it is clear to me that, but for semantics, they are saying the same thing. Therefore, I will simply adopt the issues identified by the appellant, which shall be the guide for the determination of this appeal. I shall take issue 1 separately and

thereafter take issues 2, 3, 4 and 6 together. Furthermore, I shall consider issue 5 separately and then determine issue 7 separately.

Issue 1
The thrust in the contention of the appellant is that there is no person in existence?called A. A. Oforkansi, in whose name the suit was instituted. The appellant at paragraph 5 of the Statement of defence indicated how his assertion that A. A. Oforkansi was a pseudo name, relying on five documents, including (a) a power of Attorney dated 13/10/95; (b) Treasury Receipt dated 1/11/94 for 300,000.00; (c) Protest letter dated 6/2/95 addressed to the Chairman of the Local Government; (iv) Undated letter of Inspection, Exhibit 4; (v) Letter of 12/10/95 – Exhibit M, would be proved.

?Furthermore, it is the contention of the appellant, that the best manner of proving the existence of A. A. Oforkansi was him to have been called as a witness and that through vigorous cross-examination, the doubt created with respect to his existence, would have been dispelled. Reference was made to particular dates where a man who called himself – A. A. Oforkansi and who even stood up at the instance of the Court on 9th

February 2015, did not give evidence by himself but through the PW1 – his Attorney. The appellant’s learned senior counsel also submitted that if A. A. Oforkansi really existed as a person, why were the treasury receipt – Exhibit C; the Protest letter of 6/2/95 ? Exhibit E; the undated letter for inspection – Exhibit H, all signed “for” him whilst Exhibits B – the Power of Attorney and Exhibit M – the letter of 12/10/95 were signed by him personally. He therefore submitted that Exhibits E, H and C belied Exhibit B – the Power of Attorney which he regarded as a worthless document. He referred to Nigeria Merchant Bank Plc v. Onabola (1999) 12 NWLR (pt. 630) 302 at 310 – 311; G. Chittex Industries Ltd v. Oceanic Bank International Bank Nig. Ltd 23 NSCQR 148 at 164; Fagunwa & Anor v. Adibi & Ors 19 NSCQR 415 at 435.

He insisted that A. A. Oforkansi, being a pseudo name cannot be a party to a case by virtue of Section 6 (6) (b) of the 1999 Constitution. He placed reliance on Fawehinmi v. IGP (2002) 7 NWLR (pt. 767) 606 at 689; Ndoma – Egba v. Government of Cross – River State (1991) 4 NWLR (pt. 188) 773 at 877; Shitta & Ors v. Ligali (1941)

NLR 23.

The learned 1st Respondent’s senior counsel, in his response, submitted that the plaintiff A. A. Oforkansi who had donated a power of attorney to another person, was not bound to appear in Court and give evidence, if he believed that he could prove his case through other witnesses. He referred to Musa v. Herima (1997) 7 NWLR (pt. 511) 27 at 50; Okerengwo v. Imo Education Board (1989) 5 NWLR (pt. 121) 295 at 302; British & French Bank Ltd v. Salal El- Assad (1967) N.M.L.R. 40 at 41; Bello v. Kassim (1969) N.M.L.R. 148 at 152; Vulcan Gases Ltd v. G. F. Ind. (2001) 9 NWLR (pt. 719) 610 at 640; 659. He furthermore submitted that with the pieces of evidence proferred by the PW1, PW2, PW3 and PW4 with respect to Exhibit B, the Power of Attorney executed by A. A. Oforkansi, the question of his existence was duly established. Furthermore, he contended that by virtue of the motion on notice filed by the appellant at page 43 of the record of appeal, which compelled the attendance of A. A. Oforkansi, in Court, through a subpoena and the same man physically appeared in Court, it was the burden of the appellant to have called the same man A. A. Oforkansi,

as a witness, which the appellant failed to do.

With respect to Exhibits E, H, C vis-a-vis Exhibits B and M, it is the contention of the 1st respondent’s senior counsel that?it was the duty of the appellant’s learned counsel to have cross-examined the PW1 on those exhibits which he failed to do. He insisted that there is a presumption of regularity in favour of the Power of Attorney Exhibit B, unless the presumption was rebutted by the appellant which the latter could not do. He placed reliance on Section 118 of the Evidence Act; Aderounmu v. Olowu (2000) 4 NWLR (pt.652) 253 at 264.

Resolution of Issue 1
There is no doubt that the question with respect to the existence of A. A. Oforkansi as a person was a serious issue raised by the appellant at paragraphs 3 and 5 of the appellant’s statement of defence. The 1st Respondent, in his Reply at paragraph 2 thereof denied the aforesaid averment of the appellant who was put to the strictest proof of the allegation that A. A. Oforkansi is non-existent. Thus, the appellant who made the assertion/allegation to the effect that A. A. Oforkansi is non-existent as a person, had the primary duty of proving

his assertion. For the law is well settled that, it is he who asserts that must prove his assertion or allegation. Thus, Section 135 (1) & (2) of the Evidence Act, 2004 which was in operation at the time of the trial of this action at the Court below provides, inter alia:
“135 (1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

Furthermore, by virtue of Sections 136 and 137 of the same Evidence Act, 2004, it is clear that the burden of proof lies on the person who would fail if no evidence at all were given on either side. In other words, if neither the appellant who alleged that A. A. Oforkansi is non-existent, gave no evidence to prove his assertion nor the 1st respondent gave no evidence to disprove the assertion that A. A. Oforkansi is non-existent, it is the appellant who would fail because he had the primary duty of providing evidence to support his allegation/assertion that A. A. Oforkansi is

non-existent. Wahab Kolawole Ishola & Ors v. Alhaji Karimu Folorunsho & ors (2010) 6 S.C.N.J. 151; Akinwunmi O. Alade v. Alic (Nigeria) Ltd (2010) 12 S.C.N.J. 143; Mrs. Oluwaseun Agboola v. United Bank for Africa Plc & ors (2011) 3 S.C.N.J. 208. Therefore, the success of the appellant in the suit in respect of the alleged non-existence of A. A. Oforkansi depended upon the proof?of that assertion and failing which the assertion becomes unsustainable. Chime v. Chime (2001) LPELR – 849 (SC); (2001) 3 NWLR (pt. 701) 527.

Now, on the 9th February, 2005 at the proceedings of the Court below, (see page 227 of the record of appeal), the Court asked: “Where is the Plaintiff?
Note: A man stands up.
Ononye: Prays that the alleged Plaintiff take the witness box as their case is that there is no A. A. Oforkansi for whom PW1 is attorney.
Okeke: Asks for adjournment at this point.
Court: Case is hereby adjourned to 8/3/2005; 23/3/2005 for continuation of hearing. (PW1 it be noted has not been cross examined).

It appears to me that, it was Ononye?for the appellant who bungled the proceedings of 9th February 2005. Why did he hurriedly

asked for the man who identified himself as A. A. Oforkansi, to enter the witness box at that stage when the PW1 had not finished giving his evidence and not even cross-examined by him (Ononye)? And in any event, even if the said A. A. Oforkansi became elusive and evasive, after the proceedings of 9th February 2005; what stopped the appellant’s counsel from applying for a subpoena to be issued on him to appear in Court again. After all, there is evidence at pages 43 and 64 of the record of appeal, that the appellant had filed a motion on notice whereof praying that A. A. Oforkansi be commanded by the Court, to appear in Court. The said subpoena was served on A. A. Oforkansi at No. 3 Ugwumba Street, Nkpor, which is his address. Why did the appellant think it not expedient, to have called other neighbours of A. A. Oforkansi at No. 3 Ugwumba Street, Nkpor, to ascertain if indeed the said A. A. Oforkansi lived there?

I have considered the appellant’s contention to the effect that the Plaintiff – A. A. Oforkansi ought to have given evidence in Court so that he could have been cross examined by the appellant in order to unravel the identity of the said A. A.

Oforkansi. I am afraid and with respect, that contention I must say, is tenuous. There is no law or practice or principle that a party to an action must be physically present in Court and give evidence in his case, if he has engaged a counsel to conduct his case for him and there are other witnesses beside him, who can testify for him and prove his claim. The authorities of Bello v. Kassim (supra); Musa v. Herima (supra); Kerengwo v. Imo Education Board (supra) British & French Bank Ltd v. Salad El-Assad (supra) relied upon by 1st Respondent’s learned senior counsel are quite apposite. Further see Zubairu & Anor. V. Mohammed & Ors (2009) LPELR – 5124 (CA).

In the instant case, the 1st Respondent, having donated a Power of Attorney to the PW1 and the suit was filed in the name of the donor and prosecuted by the donee of the power of attorney for the donor, the action was competently commenced. Vulcan Gases Ltd v. G. F. Industries A. G. (G.I.V.) (2001) 9 NWLR (pt. 719) 610 at 640 & 659; (2001) 5 S.C. (pt. 1) 1; (2001) LPELR – 3465 (SC).

With respect to Exhibit B, the Power of Attorney donated by A. A. Oforkansi to PW1, the evidence by

the PW3, the Legal Practitioner who notarized the same Exhibit B, remains uncontroverted, such that by virtue of Section 118 of the Evidence Act, 2004, there is a presumption of regularity and authenticity of the same. The said Section 118 of the Evidence Act, provides, inter alia:
“118. The Court shall presume that every document purporting to be a power of attorney, and to have been executed before or authenticated by a notary public, or any Court, Judge, Magistrate, counsel or representative of Nigeria or, as the case may be, of the President, was so executed and authenticated.”
Further see Aderounmu v. Olowu (supra) relied upon by the 1st Respondent’s learned senor counsel.

For all the foregoings, I resolve issue 1 in favour of the 1st Respondent, to the effect that the identity of A. A. Oforkansi in whose name, the suit was instituted was established.

Issues 2, 3, 4 and 6
It is the contention of the appellant that the 2nd Respondent was not precluded from conducting an inquiry in order to resolve the dispute between the 1st respondent and the appellant as to the proper allottee of the Stall No. V1/14A. That Exhibits F, N and I

notwithstanding the 2nd respondent had the responsibility of resolving the unending dispute between the 1st respondent and the appellant which led to an extensive inquiry that culminated in the resolution of the dispute on 4th December, 1995 from where Exhibit X emerged. According to the appellant, Exhibit X disclosed that Exhibits F, N and I were erroneous. He insisted that the doctrine of estoppel by conduct was not available against the 2nd respondent and that the said doctrine is a weapon of defence rather than an offence and that an action cannot be founded on it. He placed reliance on Omotosho v. Oloriegbe (1988) 4 NWLR (pt. II) 87 at 225; 231 – 232; Ashibuogu v. A. G. Bendel State (1988) 1 NWLR (pt. 69) 138; Williams v. Pinkey 67 CJCH 37.

Furthermore, it is the submission of the appellant’s learned senior counsel that even though Exhibit F indicated that Stall VI/14A was being occupied by a squatter, it never adjudged the appellant as that squatter. Therefore, he contended that the learned trial judge did not properly evaluate the pieces of evidence proferred before the Court with respect to that point and perversely held that the appellant was

adjudged a squatter in Stall No. VI/14A. He urged that this Court had the power to interfere with that finding and set it aside. He relied on Fajobi v. William (1956) 1 F.S.C 87; Okor v. Uzoka (1918) 5 S.C.77.

Arguing issues 4 and 6, learned appellant’s counsel submitted that if the learned trial judge had properly evaluated the evidence of PW2, he would have found that his evidence was not sacrosanct and urged that PW2 was not a truthful witness. And that the learned trial judge did not properly assess the evidence proffered and tendered by the defence.

Responding to the above issues, learned senior counsel to the 1st Respondent submitted that by virtue of Section 151 of the Evidence Act, the 1st Respondent rightly raised the plea of estoppel by conduct against the 2nd Respondent who had earlier through Exhibit A, allocated stall VI/14A to him, upon his payment of N300, 000.00 which was receipted vide Exhibit C. He referred to SOSAN v. Dr. Odemuyiwa (1986) 5 SC 152 at 157, Oke & Anor v. Atoloye & Ors (1986) 1 SC 422 at 426.

?The 1st Respondent’s learned senior counsel further submitted that the 2nd Respondent cannot renege from her

showings in Exhibits A, F, N and J. He insisted that whereas by Exhibit J, both 1st Respondent and the appellant were present at its production; vide Exhibit X, none of them was invited and heard before it was produced, hence the said Exhibit X cannot be said to be an enquiry by the 2nd Respondent. He insisted that Exhibit X is not a letter of revocation of the allocation of Stall No. VI/14A to the 1st Respondent vide Exhibit A at the instance of the 2nd Respondent.

Furthermore, it is the 1st Respondent’s contention that a perusal of Exhibits F and N leaves?no one in doubt that the appellant was found to be a squatter in Stall No. VI/14A, since the said Stall had been allocated to the 1st Respondent. He insisted that the learned trial judge properly evaluated the pieces of evidence both oral and documentary tendered before him and rightly found that having made Exhibits A, C, E, F, G, H, J, K, M and N, the 2nd Respondent was estopped from reneging from them and relying on Exhibit X made on 4th December, 1995.

?With respect to the evidence of PW2, the 1st Respondent submitted that the learned trial judge rightly found him reliable and preferred his

evidence to the effect that having made Exhibit J upon which the stalls were constructed in 1994, long before Exhibit L came into existence in 1995 after the construction of the Stalls and their allocation to persons, PW2’s evidence was properly evaluated and acted upon.

Resolution of issues 2, 3, 4 and 6.
There is no doubt that the 2nd Respondent vide his letter of 31st November, 1994 – Exhibit A, allocated Stall No. VI/14A to the 1st Respondent who had paid the sum of N300,000.00 to the former vide Exhibit C, for the construction of the market Stalls at the Mandela Square of the Onitsha Main Market. There is no doubt too, that when the dispute arose between the 1st Respondent and the appellant as to the real allottee of Stall No. VI/14A, the 2nd Respondent vide Exhibit F written on 6th February, 1995; the 1st Respondent was confirmed as the real allottee of the Stall in question and that any other person occupying the same stall be regarded as a squatter. The above notwithstanding, the dispute still lingered on and on the instruction of the 2nd Respondent, PW2 along with the 1st Respondent and the appellant, went to inspect the Stall in question

and as a result of which exercise, PW2 vide Exhibit J wrote to the 2nd Respondent on 30th August, 1995, attaching the sketch plan of the market stalls at the Onitsha Main Market. Therefore, considering Exhibits A, C, F and J, ex facie, was it proper for the 2nd Respondent to have turned round on 4th December, 1995 vide Exhibit X, to the effect that the 1st Respondent was no longer the real allottee of the Stall No. VI/14A? I think, that is where the doctrine of estoppel by conduct comes in, against the 2nd Respondent.

estoppel in pias, is a common law principle which has gained statutory acceptance in the Nigerian Evidence Act, stated above. The principle simply forbids any person from reneging or resiling on a state of affairs he participated in creating and the other party believed in it and even acted on it. That is, the former cannot be allowed to turn around and make a summersault – a volte de face, and disclaim or disown his earlier action which the other party had believed in and acted upon. Hence, the emphatic phrase used by the Legislature, the law maker of the Evidence Act, Section 151 aforesaid, that: “neither he nor his representative in interest shall be allowed ….” to turn around against the state of affairs created by him in favour of another person. This principle was clearly explained by the Supreme Court in Ude v. Osuji (1998) 10 SCNJ 75 at 122, to wit:
“The principle of estoppel by conduct is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relation between them and to be acted upon accordingly, then once the other party had taken him at his word and acted upon it,

then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance has been made by him. He must accept their legal relation as modified by himself even though it is not supported in point of law by any consideration, but only by his word or conduct. See Combe v. Combe (1951) 1 All ER 669 at 770.?
Therefore, by its very nature, the doctrine of estoppel by conduct, is so critical and important and conclusive that the party whom it affects will not be allowed to plead against it or even adduce evidence to contradict it. Yoye v. Olubo de (1974) All NLR 657; Koiki v. Magnusson (2001) FWLR (pt. 63) 167; Ukaegbu v. Ugorji (1991) 6 NWLR (pt. 196) 127.
The contention of the appellant’s learned senior counsel to the effect that the doctrine of estoppel by conduct is not a weapon of offence or a sword in the hand of the 1st Respondent herein, as the plaintiff at the Court below, with due respect, does not find any support on the decided and established authorities of the apex Court. In Fred Egbe v. Hon. Justice Adeforasin (1987) All N.L.R 1, his Lordship, Oputa, J.S.C

succinctly stated that:
“It is also to be noted that estoppel is but part of the law of evidence. It is no other than a bar to testimony and its sole office is either to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail: estoppel is thus a mine layer or a mine sweeper. It is never a capital unit.”
The learned jurist furthermore referred to the enunciation of the same principle in Thompson v. Palmer (1933) 49 C.D.R. 507 at p.547 by Sir Owen Dixon, C. G. to the effect that:
“The object of estoppel in pias is to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which unless the assumption is adhered to would operate to that person’s detriment.”
Further see: Attorney General of Nasarawa State v. Attorney General of Plateau State (2012) 3 SCNJ 273; Okwudu Nwakonobi & Ors v, Benedict Udeorah & Ors. (2012) 4 SCNJ 32.

In the circumstances of the present case, and drawing inspiration from the authorities of the apex Court above mentioned, the 2nd Respondent was estopped from

divesting the 1st Respondent of his lawful interest in the Stall No. VI/14A at the Mandela Square of the Onitsha Main Market. Hence Section 150 (3) of the Evidence Act, pointedly operated against the 2nd Respondent and in favour of the 1st Respondent, who as plaintiff at Court below was eminently entitled to raise the plea of estoppel in pias.

I have examined the complaint by the appellant against the learned trial judge to the effect that there was no proper evaluation of the evidence proffered and tendered before him and that he placed an undue reliance on the evidence of the PW2. Indeed, the law is well settled to the effect that whenever there is a complaint that the trial Court did not properly evaluate the pieces of evidence placed before it and made findings based on such evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation of the evidence laid before the trial Court and see whether the trial Court made perverse findings as alleged by the appellant. Atolagbe v. Shorun (1985) 1 NWLR (pt. 2) 360; Oghoda v. Adulugba (1971) 1 All NLR 68; Eki v. Giwa (1977) 2 SC 131; Lion Building Ltd v. Shadipe (1976) 12 SC

135; Adedayo v. PDP (2013) All FWLR (pt. 695) 203 at 234, 265 – 266 (SC).

Pw2 was the 2nd Respondent’s Town Engineer. He was very pivotal in the construction of the market stalls at the Onitsha Main Market in 1994. He testified at pages 238 to 243 of the record of appeal. Part of his evidence was to the effect that:
“I was involved with a (sic) supervised the construction of stalls at Mandela Square. We study the place, do the design and then construct:

Furthermore, he testified, thus:
“We did the sketch of the stalls to be constructed at the Mandela Square. The construction was done, based on the sketch, there could be minor addition. Subsequently, there was a time disagreement arose in the market. I visited the market for inspection. A petition was written to the Council by the plaintiff. The petition was minuted to me. I inspected the site. After the inspection, I made a report to the council and the interim Management Committee. If seen I would recognize the report.”

The learned trial judge, after a careful evaluation of the pieces of evidence proffered by the Pw2, DW1, Dw2 and DW3 vis-a-vis Exhibits J and L made the following

findings at page 283 of the record of appeal:-
“The evidence of Pw2 is preferable and straight forward. I believe his evidence. Even DW3 (Mr. Oradiwe) in his deposition confirmed that reconstruction of Mandela Square was completed in 1994. Dwz (Ojinaka L. A. Uzoechina) also confirmed that the stalls were reconstructed in 1994. The evidence of DW1, DW2 and DW3 as to the date of reconstruction confirm the evidence of the Town Engineer (PW2) that construction of the stalls was based on the drawing (exhibit J) as the 2nd drawing (exhibit L) came into existence in 1995 long after the stalls had been constructed and allocated.”

I am satisfied that the learned trial judge dispassionately and properly evaluated and correctly assessed the pieces of evidence placed before him. He rightly believed the evidence of Pw2 as a truthful witness.
Issues 2, 3, 4 and 6 are resolved for the 1st Respondent.

Issue 5
It is the contention of the appellant’s learned senior counsel that there is no evidence placed before the learned trial judge to have justified his conclusion that on the face of Exhibit X, fraud was proved beyond reasonable doubt. He referred

to paragraph 24 of the 1st Respondent’s amended Statement of claim and submitted that no evidence was led to the effect that the appellant participated in nor perpetrated the commission of any fraud with respect to the making of Exhibit X. He insisted that since the learned trial judge did not make any specific findings with the respect to the commission of the criminal fraudulent act, the Court was presumptuous in her conclusion that – “In the face of Exhibit X,?no further proof is required it is proof of fraud beyond reasonable doubt.”

On his part, the 1st Respondent’s learned senior counsel submitted that there was enough evidence led by the 1st Respondent to prove the particulars of fraud pleaded in the amended statement of claim. He also contended that fraud could be perpetrated in varied forms and needed not to be factually proved. He placed reliance on Vulcan Gases Ltd v. G. F. Industries (2001) 9 NWLR (pt.719) 610 at 652; Peek v. Gurney (1873) L. R. 6 H.L 377 at 403; Aaron’s Reefs v. Twiss (1896) A. C. 273 at 287 H. L; Chesterfield v. Hariasan 1750 page 1; Nocton v. Ashborton (1914) A. C. 932. He also contended that the use of the word “fraud” or

“fraudulent” in civil suits does not necessarily raise any allegation of crime requiring proof beyond reasonable doubt, placing reliance on Arowolo v. Ifabiyi (2002) 4 NWLR (pt. 757) 356 at 380-381; Nwankwere v. Adewunmi (1967) NWLR 45; Umana v. Attah (2006) 7 NWLR (pt. 1009) 503 at 536.

Resolution of issue 5
The 1st Respondent, at paragraph 24 of the Amended Statement of Claim, averred, to wit:
“The Plaintiff further states that the 2nd Defendant’s purported approval of another plan on 4/12/95 is fraudulent.
PARTICULARS OF FRAUD
A. The letter of 23/8/94 written by the Chairman of the Onitsha North Local Government is clearly a fraud as the volume under reference OLG/AD/284/Vol. VI existed in 1993, long before the Chairman was sworn in 1994. The Plaintiff shall found on the certified True Copy of the aforesaid letter tendered as exhibit in the counter Affidavit of the 1st Defendant.
B. Mr. Oradiwe whose name has consistently appeared in this case was aware of this suit before he led the council to purportedly resolve to have another plan on 4/12/95 when it is that same plan that was rejected on 18/12/95.
C. The Plan made on

4/12/95 was made with litigation in view in anticipation and to serve same such purpose.
D. The 2nd Defendant is caught by the doctrine of lis pendis and cannot alter the plan when the suit is already pending to the knowledge of the 2nd Defendant.
E. The approval of the Plan on 4/12/95 is tantamount to legislative and executive judgment or interference by the 2nd Defendant with the duty of the Court.?

I perused Exhibit V which is the letter of the allocation of stall No. VI/9A to the appellant vide the letter of 23/8/94 from the 2nd respondent, to him. The said letter of 23/8/94 was tendered in evidence through the appellant at page 253 of the record of appeal. It was admitted in evidence without any objection by learned counsel to the 1st respondent. It was marked as Exhibit V. Neither the appellant nor any other witness who gave evidence at the trial referred to it nor was cross examined on it. Therefore, I could not see how Exhibit V was tested at the trial to bring out the fraudulent element in it. So, it cannot be said that the issuance of Exhibit V – the letter of 23/8/94 was proved to be fraudulent.

?The next vexed document

which was tagged fraudulent is the plan made on 4/12/95 – Exhibit X. It is the minutes of the Onitsha North Local Government Caretaker Committee of 4/12/95. It was tendered from the Bar without objection through Anumonye for the appellant at page 258 of the record of appeal and marked as Exhibit X. Curiously, just like Exhibit V, no witness was pointedly cross-examined with respect to the perpetration and manipulation of Exhibit X as an instrument of fraud. However, in his assessment of Exhibits L, J and X the learned trial judge found that Exhibit X was tainted with fraud. This is what he said at pages 289 – 291 of the record of appeal, to wit:
“The contention of counsel for the plaintiff is that the meeting of 14/12/95 was conceived by Mr. Oradiwe DW3 for the sole purpose of fraudulently and through the back door revoking the plaintiff’s allocation of Stall No. VI/14A by allowing the 1st defendant who was illegally in possession of the Stall to remain permanently in possession. The irregular numbering as shown in the second plan Exhibit L as opposed to the first plan Exhibit J shows an influence by a person to favour another, and for a purpose not

mentioned in the minutes of the meeting Exhibit X. In respect of this submission, Counsel for the 1st defendant in his reply on law submitted that this was not pleaded and that no iota of evidence was adduced in support of this submission. With all due respect to Learned Counsel, the Exhibits L, J and X were tendered before this Court. Even without the above submissions by Counsel, the Court is entitled to examine the exhibits and come to whatever conclusion are deducible from the exhibits without need for further pleading or oral evidence on the issues. A comparison of Exhibit J with Exhibit L shows that there was a determination on the part of someone to ensure that Stall No. VI/14A in Exhibit J was changed to stall No. VI/9A in Exhibit L. otherwise how does one explain the fact that stalls which were numbering consecutively in Exhibit J starting from block I with Stall No. V/L and moving serially until Stall No. VI/9 when numbering suddenly stopped in Exhibit I and changed to Block 2 where it started with VI/9A to VI/98 and then 10A and suddenly returned again to Block I where the numbering continued to VI/10B and from there serially until VI/17B- Bearing

in mind that Exhibit L was allegedly adopted by the 2nd defendant on 4/12/95 and that in Exhibit F dated 12/4/95, a squatter was alleged to have written the official number from V/14A as contained in the original master plan to VI/9A, it becomes clear that this is a fraudulent manipulation to ensure that the Stall in dispute is numbered VI/9A to suit the 1st defendant squatter. Let us take a look at the reasons given by the 2nd defendant in Exhibit X for the change of the original plan. The first sentence in Exhibit X is that “the supervisor for Health, Rtd Commander Oradiwe (DW3) told members that the numbering of Mandella Square has thrown the issue of ownership into confusion.” Why should it be the Supervisor for Health that should bring up this matter before the meeting. The same man who is alleged to have come up with the plan Exhibit L in his own handwriting. The same man who is alleged to have taken the plan Exhibit L to the Town Engineer PW2 to sign and he refused to sign it, the same man whom the plaintiff’s attorney alleged the 1st defendant boasted would ensure that he the 1st defendant would retain the illegally acquired stall. Matters concerning

plans for construction and allocation of stalls are matters within the jurisdiction of the supervisor for works and his engineers. What has the supervisor for Health got to do with it? When the Chairman asked what led to the confusion in numbering of the stalls. It was then explained that some traders (Stall allottees in the Mandella Line) went and changed numbers of some stalls at strategic positions to numbers of stalls to rear position in order to secure strategic positions. One Mr. Fidelis Okeke was mentioned as having been allocated Stall No. VI/11 and he went and cleaned VI/17 and wrote VI/11. A copy of Mandella plan/stall numbering as produced and signed by the Town Engineer was brought and on that basis the VI/11 was written VI/17 as it was originally. Following an observation that the original plan produced and signed by the Town Engineer (PW2) contained 44 as against 46 stalls actually erected in the square, another plan of 46 stalls already produced was tabled before the council which adopted it and was so endorsed by the Town Engineer. In order to finally seal this grand and manipulation it was resolved that in order to ensure peace in the

Mandella line, the new plan which reflects what is on the ground in the market should be final and that everybody should remain where he is in the plan. This in effect meant that the 1st defendant who was adjudged a squatter in Stall No. VI/14A and who wiped out the original number and wrote VI/9A and who boasted that Oradiwe would assist him retain the stall got his way. For no valid reason Stall No. VI/14A in the original plan was changed to VI/9A to enable the 1st defendant retain the stall. The reasons given in the minutes for the need for a new plan does not justify the change. On the contrary it provides reasons to kick the 1st defendant out of the stall. He entered the stall illegally just as Fidelis Okeke who altered VI/17 to read VI/11. Based on the original plan produced and signed by the Town Engineer (OW2) the stall was reverted back VI/17. By this same plan produced and signed by the Town Engineer, the stall in dispute is VI/14A. Why then should the 1st defendant be allowed to get away with his illegality? I agree with Counsel for the plaintiff that the interpretation of the decision in Exhibit X to mean that Stall VI/9A should replace VI/14A is

fraudulent and totally unjustified. In the face of Exhibit X no further proof is required. It is proof of the fraud beyond reasonable doubt.”

Now, it is undoubtedly settled on very firm ground on the authorities of the apex Court to the effect that:
“The law requires that fraud must be distinctly alleged, with all necessary particulars and distinctly proved.” Per Nnaemeka – Agu, JSC in Ojiba v. Ojiba (1991) 5 NWLR (pt. 191) 296; (1991) 6 SCNJ 156; (1991) LPELR – 2374 (SC) at p. 13. Further see: High-grade Maritime Services Ltd v. First Bank of Nigeria Ltd (1991) 2 SCNJ 110; (1991) LPELR – 1364 (SC) at p. 9; Ezenwa v. Oko & ors. (2008) 1 – 2 SC 1; (2008) LPELR – 1206 (SC) at p.22.

In the circumstances of the instant case, it is clear to me that the two documents, that is Exhibits V and X upon which the allegation of fraud was anchored by the 1st respondent was not distinctly proved, as earlier demonstrated in this judgment at the outset of my consideration and determination of this issue. It is clear to me that in his assessment of Exhibit X and the inferences drawn from it, the learned trial judge did not make specific findings with respect

to the person who perpetrated the alleged fraud in Exhibit x, which was of course, not tested under cross examination, before arriving at the conclusion that fraud was proved beyond reasonable doubt. I should say that fraud was not even proved on a balance of probability, not to talk of a proof beyond reasonable doubt. I think it is instructive to re-echo the admission of my Lord, Uwaifo, JSC in Adeleke & ors. v. Iyanda & ors. (2001) 13 NWLR (pt. 729) 1 at 20; (2001) LPELR – 114 (sc) at p. 23, para B, to wit:
“A trial judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his wrongly stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case. His duty is to reach a decision only upon the basis of what is in issue and what has been

demonstrated upon the evidence by the parties and is supported in law.”

In the light of my finding that neither Exhibit ‘V’ nor Exhibit ‘X’ was tested and demonstrated by evidence as engines of fraud, I am satisfied that issue 5 be resolved and it is so resolved in favour of the appellant.

With respect to the question of damages, it is clear to me that the award of N200,000.00 for trespass as aggravated, exemplary and general damages in favour of the 1st respondent against the appellant was far beyond what the 1st respondent prayed for. The Court, not being a Father Christmas, it is settled principle of law, cannot award to a litigant what he did not claim or more than what he claimed. Attor. Gen. Abia State v. Attor. Gen. Federation (2006) 16 NWLR (pt. 1005) 265 at 387; Ezeakabekwe v. Emenike (1998) 11 NWLR (pt. 575) 529; Ekpeyong v. Effiong (1975) 2 SC. 71 at 80 – 91.

Therefore, this is an appropriate situation where the appellate Court would interfere with the award of damages, granted by a trial Court on a wrong principle of law. Cameroon Airlines v. Otituizu (2011) LPELR – 827 (SC) at page 31; Oyeneyin v. Akinkugbe (2010) 4 NWLR (pt. 1184)

265; (2010) LPELR – 2875 (SC) at p. 25; Williams v. Daily Times (1990) 1 S.C. 23; (1990) 1 NWLR (pt. 124) 1; (1990) LPELR – 3487 (SC) at p. 84 – 85.

In effect, issue 7 is resolved in favour of the appellant.

In sum, the appeal succeeds in part, only. Consequently, the sum of N200, 000.00 awarded as aggravated, exemplary and general damages to the plaintiff by the trial judge is varied to the sum of N100, 000.00 only as general damages, to the plaintiff (1st Respondent herein).
Each side to bear own costs of this appeal.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother TOM SHAIBU YAKUBU JCA. I am in complete agreement with his Lordship’s reasoning and conclusion that the appeal succeeds in part. I abide by all consequential orders.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I read in advance the lead judgment just delivered by my learned brother, Hon. Justice Tom Shaibu Yakubu, JCA. I agree with the comprehensive reasoning coupled with the resonating conclusion reached therein to the effect that the instant appeal matter ought to

succeed only in part. In this vein, I am of the same mindset with my learned brother, Yakubu, JCA. Thus, I also subscribe to the consequential orders made therein, with regard to variation of damages and costs.

Appearances

Miss M. J. OputaFor Appellant

AND

Olisa Ede, Esq. for 1st Respondent.
O. Anumonye, Esq. for 2nd Respondent.For Respondent